Omaha Police Chief Todd Schmaderer continues to stand by his decision to terminate four Omaha police officers directly involved in the June 2017 in-custody death of a mentally ill man.
A dozen jurors decided Monday that former Officer Scotty Payne was not guilty of two criminal charges. Schmaderer had decided within days after the incident that Payne and three other officers violated department policy and fired them.
The question is, will the fired officers get their jobs back?
One juror in Payne’s trial thinks they should.
“Definitely,” said the juror, a 71-year-old man. “Every one of them.”
A third-party arbitrator will decide, in a process that determines whether the terminations were well-founded. Schmaderer said he will respect the decision as he respects the jury’s decision.
In his first comments since Payne was found not guilty of assault, Schmaderer addressed Payne’s trial and how he and the department plan to move forward.
“The trial was rehashing old wounds on matters that we implemented and addressed,” Schmaderer said in an interview Tuesday. “We’ll continue to try to improve as the Omaha Police Department.”
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In the year since the death of Zachary BearHeels, who died after police officers detained and repeatedly punched and shocked him with a Taser, the department has added mental health training, reconfigured how superiors respond to incidents and revisited Taser and use-of-force protocols.
Schmaderer reiterated those changes and said department leaders learned lessons after the BearHeels incident.
“There were no winners in this,” he said. “It was a very traumatizing time for the city, and I felt that during the trial.”
Throughout the trial, law enforcement experts and members of Payne’s defense team pointed out several chances Omaha police had to help BearHeels before his death.
The juror acknowledged that a good chunk of his fellow jurors had concerns about the officers’ behavior. Not this juror — an over-the-road trucker who served three tours in Vietnam.
“I admire police officers for what they have to go through,” the juror said. “I’m glad they’ve got their job, and I’ve got mine. Because everyone’s second-guessing what they do.
“Hindsight, you can see it should have been handled different. But you can’t second-guess somebody when you’re not there in the fight.”
BearHeels had been traveling on a bus from South Dakota to Oklahoma but was kicked off at the downtown Omaha bus station because of erratic behavior. He wandered to the 60th and Center Streets area, where police officers came into contact with him twice within nine hours.
During the second encounter, his mother, Renita Chalepah, called police to ask them to take BearHeels to a hospital, telling then-Officer Jennifer Strudl that her son was bipolar, schizophrenic and off his medications.
The following officers had direct or indirect contact with BearHeels — either at 3:30 p.m. June 4, 2017, near a Brazilian wax salon, or just after midnight June 5, 2017, at a Bucky’s gas station. Both times, BearHeels was mostly incoherent and whispering, although his behavior was more extreme at the second scene.
The Omaha sergeant and two officers, Abby Price and Monique Brewer, were called to near 60th and Center to investigate a report that BearHeels was licking the window of a Brazilian wax salon. They encountered a discombobulated BearHeels. All three testified that BearHeels was mumbling, whispering and cursing — and that he may have been experiencing mental distress. One of the officers gave BearHeels a bottle of water.
During Payne’s trial, Picht conceded to Payne’s attorney, Steve Lefler, that he could have attempted to place BearHeels under emergency protective custody at a hospital. However, Picht and the officers said, they didn’t feel like BearHeels was a danger to himself or others because he, at times, could articulate where he was going.
Strudl and Makyla Mead, two of the fired officers, testified about callous comments they said Sgt. Forehead made in the case. When Strudl relayed that BearHeels was discombobulated and nonresponsive, she said Forehead responded: “Oh, so you’ve got a (expletive) retard.”
Mead said Forehead remarked, “Yeah, yeah, yeah, there’s nothing we can do about it” when she relayed the nature of BearHeels’ mental illness.
Forehead denied making those comments — and said the officers didn’t give him enough information about BearHeels’ condition.
Schmaderer said Tuesday that Strudl didn’t tell officers in her internal affairs interview about the alleged comments by Forehead. He plans to conduct more interviews and read the transcripts of the trial to compare testimony to what was said in internal interviews.
“The time to mention it would have been in internal affairs, for certain. I’m not saying it’s not true, I’m just saying it wasn’t mentioned,” Schmaderer said. “Certainly a statement like that is so unprofessional it would not be tolerated.”
An expert — a former deputy chief in Springfield, Missouri — said Forehead should have authorized an emergency hospitalization for BearHeels. He also said he should have gone to the scene sooner than he did. The scene “was begging for a supervisor to come,” said the expert, Stephen Ijames.
The juror said he and his fellow jurors didn’t understand why Forehead failed to order BearHeels to be committed under a state law that allows for emergency hospitalization for someone who is mentally ill and a danger to himself or others. Forehead was supervising two crews — each with eight to 10 officers — that night because another sergeant was on vacation.
“I think the officers at the scene wanted to do it,” the juror said. “And I think he should have ordered it.”
Strudl had opened her cruiser door to put a seat belt on BearHeels when BearHeels barged out of the cruiser. Ijames said Strudl should have forced the cruiser door shut or blocked BearHeels’ path at that point. None of the ensuing events would have happened, Ijames said.
Nearly every expert suggested that she and Strudl should have been more insistent that Forehead place BearHeels under emergency custody. Both testified that Forehead wasn’t listening to them.
“There were several policy violations and actions that we felt should have been taken and incumbent upon law enforcement officers,” Schmaderer said of the reason he fired Mead and Strudl. “Sometimes, it’s not just action, it’s your inaction.”
Mosby — at the time a 14-year-veteran and a member of the department’s traffic unit — had responded after hearing the call. The 6-foot-3, 230-pound officer easily got BearHeels in handcuffs. He didn’t stay long, however. After administering a breath test that showed that BearHeels had not been drinking, Mosby heard a call on the radio about a possible drunken driver. As he left the gas station, he said he mentioned to Strudl and Mead that they might want to place BearHeels in emergency protective custody.
Mosby did nothing wrong. However, Schmaderer has stated previously that he doesn’t believe the scene would have spiraled out of control if a veteran like Mosby had stayed.
McClarty and Payne took control of the scene after BearHeels broke away from Strudl’s cruiser. McClarty dragged BearHeels by the ponytail and the arm as he tried to put him in the cruiser. After BearHeels freed his hand from a cuff, McClarty punched BearHeels 13 times in 15 seconds. Most experts in Payne’s trial said McClarty’s response was appropriate. McClarty, one of the four officers who was fired, is awaiting trial on misdemeanor third-degree assault charges.
Payne, who pulled the Taser trigger a dozen times to subdue BearHeels, said after the trial Monday that he wants to be an Omaha police officer again. Anthony Conner, the president of the Omaha Police Officers Association, said the union will help Payne fight for his job during arbitration.
If Payne returns to the force, Schmaderer said he will have discretion on Payne’s job assignment. He added that Payne had no reported negative encounters with the public until BearHeels.
The juror acknowledged that his fellow jurors weren’t pleased with some of what they saw in Payne’s actions. In the first vote, three jurors — a man and two women — voted to find Payne guilty. One of those jurors quickly changed his mind to not guilty, the juror said.
The two remaining jurors who voted guilty included a woman who had burst into sobs in court while watching the cruiser camera video of Payne and McClarty’s treatment of BearHeels. The woman collapsed into a fellow juror’s arms. Her reaction temporarily halted the trial as Judge J Russell Derr ordered a recess.
Throughout the trial, one of Payne’s attorneys, Steve Lefler, referenced an old law enforcement saying: “Just because it looks awful doesn’t mean it’s unlawful.”
Schmaderer said he planned to call Frank LaMere, a Native American activist who is close to the BearHeels family and was upset about Monday’s not guilty verdict.
“I want to hear them, I want to hear what they have to say,” Schmaderer said. “And then I will respond to their feelings and emotions.”
Omaha police officers respond to multiple mental health calls daily, Schmaderer said, and they handle them with precision. But there needs to be systemic change in order to help the mentally ill, he said.
“At some point in time, law enforcement officers across this country cannot bear the sole responsibility for mental health in this society,” he said. “In the aftermath of an incident, it’s not enough, in fact it’s relatively narrow-minded, to just look back and say, ‘Gee, we need to train more.’ Because that doesn’t address the root cause of mental health in our society. And the root causes need to be addressed before there’s contact with law enforcement.”