Police officers are allowed to assault people, even kill them, if the force is reasonable and necessary to protect themselves or others, attorneys told jurors Tuesday.
The question in a Douglas County courtroom this week is: Were 12 pulls of a Taser trigger reasonable and necessary in an Omaha police officer’s handling of a mentally ill Oklahoma man who died within minutes of his encounter with police?
A jury will decide after a historic trial this week and next. Scotty Payne, 39, is one of the first Omaha police officers to be charged in connection with an in-custody death.
In opening statements Tuesday, prosecutors said Payne “crossed a line” when he repeatedly used the Taser on Zachary BearHeels, 29, outside a convenience store near 60th and Center Streets on June 5, 2017.
Assistant Nebraska Attorney General Jason Bergevin, who is prosecuting the case along with fellow special prosecutor Corey O’Brien, said he will ask jurors to find Payne, 39, guilty of second-degree assault and weapon use after the two-week trial.
Payne’s defense team suggested that most of Payne’s use of the Taser — perhaps all but one of the pulls — did not work and did not send a shock through BearHeels. Data from the Taser will confirm that, they said.
Attorney Steve Lefler told jurors that Omaha police training was inconsistent and unrealistic and that Payne’s actions should be evaluated based on the crisis he encountered.
Payne was one of the last officers to arrive and was not privy to what Officer Jennifer Strudl had learned from BearHeels’ mother: that BearHeels was schizophrenic and bipolar and off of his medications.
“You folks will find this to be one of the most interesting and emotional cases you’ll see,” Lefler said. “It deals with so many issues that are so prevalent in our society — race, gender, training, mental health treatment or lack of it.
“These days in our society, officers are the ones who have to make the decisions for how to take care of the mentally ill.”
Omaha police have acknowledged missteps in the case, firing Payne and Strudl and fellow Officers Ryan McClarty and Makyla Mead. All four have appealed their terminations.
Their boss that night, Sgt. Erik Forehead, will tell jurors that he now wishes that he would have ordered that BearHeels be placed under emergency protective custody at a hospital — as BearHeels’ mother requested that night, Lefler said.
Lefler promised to point out inconsistencies in how command staff viewed proper use of Tasers. He suggested that one of the department’s leading authorities on Taser use was removed from a team reviewing Payne’s actions because his conclusion wasn’t what Omaha police commanders wanted.
And the defense attorney even took aim at the other officers present.
Lefler pointed out that McClarty pulled BearHeels by the hair and struck him 13 times in 15 seconds.
He also suggested that BearHeels, who weighed about 250 pounds, was a powerful man.
“No disrespect to the female officers, but they were not of much help in trying to control Mr. BearHeels,” Lefler said.
At that, Payne nodded.
Lefler told jurors that Payne will probably testify.
Lefler pointed out that at one point that night, after officers finally subdued BearHeels, Payne told paramedics: “Hey, be careful. He’s really strong. ... He’s very quick.”
Within minutes, BearHeels was dead.
BearHeels had been acting erratically after getting kicked off of a bus in Omaha, on his way from an aunt’s house in South Dakota to his mom’s house in Oklahoma.
He wandered Omaha streets, mumbling to himself, licking the windows of a business and sometimes dancing in front of stores.
His stopover in Omaha ended disastrously when police were called to the Bucky’s at 60th and Center Streets, where BearHeels was mumbling incoherently outside.
Prosecutors methodically took jurors through an overview of Payne’s use of the Taser. In all, Payne pulled the trigger on the Taser for a total of 68 seconds.
The first uses of the Taser occurred near a display of water bottles in front of the store after BearHeels had gotten out of the back seat of Strudl’s cruiser.
First pull: 5 seconds. The standard shock when a Taser user pulls the trigger and lets go. Second time: Payne held the trigger down for 18 seconds.
Payne used the Taser three more times — for a total of 14 seconds — while McClarty and other officers tried to drag a struggling BearHeels back to the cruiser.
He ended up on his rear end, sitting against the back wheel of a cruiser.
“Get in the (expletive) car,” Payne said, according to prosecutors.
BearHeels sat there, catching his breath, Bergevin said.
Before he pulled the trigger a seventh time, Payne said: “You’re going to get it again.”
BearHeels straightened his legs and arched his back.
Payne pulled the trigger two more times.
BearHeels ripped his hand free from a handcuff. At that, McClarty punched him 13 times in 15 seconds.
And Payne placed the stun gun directly on BearHeels, pulling the trigger three more times in what Taser users call a “drive stun.”
Officers finally got BearHeels subdued and into an ambulance, where his heart stopped.
His body temperature 40 minutes after he was declared dead: 102.4 degrees, almost four degrees above a person’s average body temperature of 98.6 degrees.
“It will be clear to you that the defendant crossed a line and should be held criminally accountable for his actions,” Bergevin told jurors.