Emotional testimony and breakdown as trial continues

Zachary Bear Heels, 29, died after encounter with policeBy Kevin Abourezk

OMAHA, Nebraska – The 29-year-old Lakota man sat facing the side window of the police cruiser, looking outside, mumbling to himself and occasionally cursing.

A ponytail hung below the bill of his backward Yankees baseball cap. Zachary Bear Heels’ hands were handcuffed behind him, as Omaha officer Jennifer Strudl sat in the front of the cruiser talking on the phone with his mother, trying to find some place to take Bear Heels.

“We have him, but I don’t know what you want us to do with him,” she told his mother, who spoke to her from Oklahoma City, where Bear Heels had been scheduled to arrive by bus that same day before a nervous driver kicked him off the bus after he exhibited erratic behavior.

His mother asked Strudl to take him to a bus station so he could get on another bus and come home, but Strudl was reluctant and concerned he would wander away and start causing problems again.

Strudl’s cruiser was parked just outside a convenience store west of downtown Omaha. She had responded to a call from the store’s clerk, who asked police to remove Bear Heels from the premises after he had demonstrated strange behavior.

“There’s not buses that run right now,” Strudl told his mother. “It’s 1 o’clock in the morning. We’re going to have figure something else out.”

Eventually, she took her phone and stepped out of the car, walking around to the rear passenger window and lifting up her phone to an open window so Bear Heels could hear his mother’s voice. But even his mother seemingly couldn’t get through to him, as he continued mumbling and cursing quietly. So Strudl walked back to the front of the car and got back in the driver’s seat.

Because he wasn’t a threat to himself or others, Strudl didn’t feel like she could force him into emergency protective custody, and because he hadn’t committed a crime, she couldn’t take him to jail. Because he passed a breathalyzer test, the officer also couldn’t take him to a detox center.

So she sat in her cruiser with the mentally ill man, reaching out to others for help, including her station sergeant, who refused her request to take him into emergency protective custody.

She eventually decided to take him to the bus station anyway, and walked around the car to put his seat belt on him. As she leaned into the back of the car to do so, Bear Heels stepped out of the car and walked away.

Strudl and three other officers then began struggling with Bear Heels to get back in the car, an altercation that culminated with officers shocking him 12 times with a Taser gun and punching him in the head 13 times. About an hour later, Bear Heels died.

* * *

On Thursday, Strudl shared her memories of her encounter with Bear Heels on June 5, 2017, with the 12 jurors gathered in a Douglas County courtroom to hear the case against former officer Scotty Payne. The third day of Payne’s trial culminated with emotional testimony from Strudl and a juror breaking into tears after watching video of Bear Heels getting shocked and beaten.

Payne is charged with felony second-degree assault and is accused of shocking Bear Heels 12 times with a Taser before his death last year. Another former officer, Ryan McClarty, is accused of punching Bear Heels 13 times in the head.

Bear Heels died about an hour after being shocked and punched by the two officers.

The trial of a former police officer who is accused of assaulting a Native man who later died is taking place in a Douglas County courtroom in Omaha, Nebraska, seen here on November 28, 2018. Photo by Kevin Abourezk

Payne, McClarty and two female officers – Strudl and Makyla Mead, who also were involved in the encounter with Bear Heels – were fired by Omaha Police Chief Todd Schmaderer for their roles in the encounter.

Bear Heels was traveling from South Dakota to his home in Oklahoma City when he was kicked off the bus in Omaha for erratic behavior. His relatives have said he had schizophrenia, was bipolar and wasn’t taking his medication.

After Payne, Strudl and Mead found him outside the Bucky’s convenience store, they attempted to put him in a police cruiser. Payne began shocking him after he refused to get into the cruiser and even after he was sitting on the ground, handcuffed, near the back passenger tire of a police cruiser. McClarty, who arrived just before the altercation began, started punching Bear Heels after he got a hand free from his cuffs.

A coroner’s physician who conducted an autopsy on Bear Heels later concluded his death was attributable to “excited delirium” and not necessarily related to his injuries or shocks.

Omaha officer James Mosby, who along with Strudl, was the first officer to arrive at the Bucky’s convenience store after police received the call from the store’s clerk, told jurors Thursday that he immediately became concerned after finding Bear Heels with two other men outside the store.

The other men quickly walked away after Mosby and Strudl pulled up in their police cruisers, but Bear Heels – who was facing a wall and talking to himself – stayed. As the two officers began questioning him, Bear Heels responded quietly, his voice nearly unintelligible in video footage from a body microphone on Strudl that was played for jurors on Thursday.

At one point, Bear Heels raised his hands and said something like “arrest me,” Mosby said. So he put him in handcuffs.

“His demeanor was of someone who may have been under the influence of something,” said the 16-year veteran officer. “I put him in handcuffs for my safety and for the safety of the other officer.”

"Loving Son, Brother, Grandson, Nephew, Uncle" -- Zachary Bear Heels was laid to rest in Apache, Oklahoma, following his death in Omaha, Nebraska, in June 2017. His headstone is seen in this courtesy photo.

After a third officer, Mead, arrived, Mosby left to respond to a report of a possible DUI and didn’t learn about the outcome of the encounter until he heard a dispatcher call for all available officers to respond to the convenience store several minutes later.

During cross-examination of Mosby on Thursday, defense attorney Steven Lefler asked the officer why he didn’t remove Bear Heels cuffs after learning he wasn’t drunk and had no weapons on him. Mosby said Strudl was technically the primary officer on the scene and it would have been up to her to decide whether to remove his handcuffs.

He also said he felt like Bear Heels’ demeanor was strange enough that the handcuffs were necessary to protect the officers present. He said he believed Bear Heels belonged in a health care facility.

For her part, Strudl told jurors that she didn’t feel like the primary officer in charge of the scene outside the convenience store.

“It’s just kind of an unspoken police culture for males to take over,” she said.

But she admitted she was the first officer called to the scene and that would have made her the primary officer there. But with less than four years within the Omaha Police Department, she said she didn’t mind allowing Mosby to take the lead.

After he left, however, she said she became concerned with where she might take Bear Heels.

She said she and Mead considered taking him to a hotel or a homeless shelter, but without his permission, they didn’t feel empowered to do so. After discovering a missing persons report had been filed earlier in the day for Bear Heels, Strudl first contacted her sergeant at the station to ask him about what she should do.

Upon hearing that Strudl was concerned because of Bear Heels’ behavior, Sgt. Erik Forehead initially made fun of the man.

“Oh, you got a fucking retard,” he told Strudl.

Indianz.Com Video by Kevin Abourezk: Native Community Demands Justice for Zachary Bearheels

She said her sergeant’s response frustrated her, and he told her to contact Bear Heels’ mother. So she did.

After getting off the phone with his mother after they agreed Strudl would take Bear Heels to the bus station, Officer Mead contacted Forehead again to ask him whether she and Strudl could take Bear Heels into emergency protective custody, but the sergeant refused to allow them to do that.

So Strudl walked to the back of her cruiser, opened the door and attempted to put Bear Heels’ seatbelt on she could take him to the bus station.

That’s when Bear Heels stepped out of the car and began struggling with the four officers.

In a video clip taken from a camera in the backseat of Strudl’s cruiser, Strudl and the other officers can be heard on Strudl’s body microphone wrestling with Bear Heels – who has been described as standing 5-foot-8-inches tall and weighing 250 pounds – and trying to calm him down.

They briefly managed to pin him against a pallet of water bottles before Bear Heels broke free. As they fought with him, Mead got kicked in the head by Bear Heels as he struggled to get free.

As he stood against the windows of the convenience store with his back against the glass, Payne shocked him with a Taser. Bear Heels initially slid down the window, as if incapacitated, before landing on his butt on the ground.

Payne can be heard yelling at Bear Heels: “I’ll motherfuckin’ Taser you! Is that what you want?”

The officers then began dragging him toward the cruiser as the crackling sound of Payne repeatedly activating his Taser can be heard.

As they got closer to the cruiser, the video footage finally caught sight of the officers and Bear Heels again.

In the footage, McClarty can be seen grabbing Bear Heels by his pony tail and repeatedly punching him in the head after Bear Heels got a hand free from the handcuffs.

As the jurors watched McClarty punching Bear Heels, prosecutor Corey O’Brien motioned to Judge J. Russell Derr and told him that a juror appeared to be in distress. Derr ordered the trial to halt and called for a 20-minute break to allow the juror to compose herself.

The juror could be heard crying and walked out of the courtroom holding a large folder in front of her head.

Children hold signs at a rally for Native justice held at the Nebraska State Capitol on May 12, 2018. Photo by Kevin Abourezk

Derr and attorneys for the state and Payne briefly discussed removing the juror from the trial but decided instead to simply instruct the rest of the jury to not feel swayed by her outburst.

“This is the first time I’ve ever faced this,” Lefler said.

“Unfortunately, this happens in a lot of my trials,” O’Brien said.

A few minutes later, the jury re-entered the courtroom, and Derr order the video footage of the altercation to continue.

The altercation continues for just a few more seconds until Bear Heels appears to stop struggling.

Sirens can be heard in the distance as more police cruisers, fire engines and ambulances arrived at the convenience store. Nearly 20 officers eventually arrived at the scene after the police dispatcher mistakenly called for all nearby officers to come to the store.

Several officers can be seen lifting Bear Heels into the cruiser as the video clip ended.

Upon questioning, Strudl said she didn’t realize three other officers had met Bear Heels around 4pm the day before after receiving a call that Bear Heels had been seen looking inside the windows of businesses in the area. And while she learned Bear Heels’ mother had called police earlier that day to report him missing, Strudl said she initially couldn’t open the missing persons report and had to call her duty sergeant to have him read it for her.

She told jurors if she had known that Bear Heels had been exhibiting such strange behavior for much of the previous day, she might have worked harder to get him placed in emergency protective custody.

And she told jurors that she had been 10 weeks pregnant at the time of the altercation with Bear Heels, though she hadn’t told her supervisors yet and wasn’t required to do so until later in her pregnancy.

She said she didn’t feel like there was anything she could have done to change the events of that evening, though she admitted to having violated several police policies, including putting Bear Heels in handcuffs despite never placing him under arrest.

“I had the best intentions for the situation,” she said, fighting back tears. “In my heart of hearts, I wanted the best for him (Bear Heels) in this situation.”

Asked if she ever intended to harm Bear Heels, Strudl denied ever feeling that way.

She said once Bear Heels left her cruiser, she and the other three officers had to pursue him and detain him as he had committed a crime by interfering with an investigation.

And she denied ever using unreasonable force against the mentally ill man.

“Did it come as a surprise to you that he ended up dying?” Lefler asked her Thursday.

“Yes,” she said, crying.

Outside the courtroom, Dr. Rudi Mitchell, a retired professor and citizen of the Omaha Tribe of Nebraska, said it had been difficult to watch the video of the altercation between Bear Heels and the four officers.

“It was hard watching that,” he said. “I’m glad the family didn’t have to see that.”

#NativeLivesMatter Native Americans are more likely to be killed by law enforcement than any other racial or ethnic group, according to the Center on Juvenile and Criminal Justice.

Jason Pero, 13 Bad River Ojibwe. Ashland, Wisconsin. November 8, 2017. Zachary Bear Heels, 29 Rosebud Sioux. Omaha, Nebraska. June 5, 2017. Loreal Tsingine, 27 Navajo. Winslow, Arizona. March 27, 2016. Paul Castaway, 35 Oglala Sioux. Denver, Colorado. July 12, 2015. Allen Locke, 30 Oglala Sioux. Rapid City, South Dakota. December 19, 2014. Joy Ann Sherman, 52 Oglala Sioux. Mitchell, South Dakota. November 8, 2014. Jordan Willis, 30 Choctaw. Mississippi. August 12, 2014. Mah-hi-vist GoodBlanket, 18 Cheyenne-Arapaho. Clinton, Oklahoma. December 21, 2013. John Williams, 50 Ditidaht First Nation. Seattle, Washington. May 30, 2010. Christopher Capps, 22 Oglala Sioux. Rapid City, South Dakota. May 2, 2010. prev next

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