Winnebago activist Frank LaMere stands outside Omaha Mayor Jean Stothert's office on November 28, 2017, as he awaits a meeting with the mayor's staff about efforts to establish a Native American advisory committee. Photo by Kevin Abourezk
Law | National

Grand jury seeks another charge against officer accused in Native man's death




Zachary Bearheels, Rosebud Sioux, was repeatedly struck by police officers in Nebraska

Activist: 'I will not be satisfied until justice is served'
By Kevin Abourezk
@Kevin_Abourezk

UPDATE: The story has been updated with information from the grand jury's report.

A grand jury has decided that the state of Nebraska should prosecute two former police officers accused of assaulting a Lakota man who later died.

The grand jury met last week in the Douglas County Courthouse and heard evidence presented by the Nebraska Attorney General’s Office. Douglas County Attorney Don Kleine has filed a second-degree assault charge against officer Scotty Payne and a third-degree assault charge against a second officer, Ryan McClarty.

The grand jury decided to add a charge of use of a deadly weapon to commit a felony against Payne. The grand jury also criticized the role that an Omaha police sergeant played in the encounter with Bearheels.

“We believe that Sgt. Erik Forehead’s actions and inactions were contributing factors to the outcome of the incident with Zachary Bearheels,” the grand jury wrote in its opinion.

The grand jury agreed with a coroner’s physician who concluded Bearheels died as a result of “excited delirium, physical struggle, physical restraint and use of a conducted energy device.”

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

The grand jury recommended annual and mandatory training for Omaha police officers regarding interactions with mentally ill people and those affected by “Excited Delirium Syndrome,” as well as crisis intervention training for officers.

Over the course of five work days, the grand jury heard from 20 witnesses and examined 847 exhibits, including police and autopsy reports, photographs and hours of digital media.

The grand jury’s decision is unrelated to Kleine’s case against the two officers, and it’s unclear whether Kleine will pursue the additional weapons charge against Payne.

Payne is accused of shocking 29-year-old Zachary Bearheels 12 times with a Taser in the city of Omaha on June 5. McClarty is accused of punching the Rosebud Sioux man 13 times.

Bearheels died about an hour after being shocked and punched by the two officers. He suffered from bipolar disorder and schizophrenia and may have been off his medications at the time of his encounter with the two officers, his family has said.

Zachary Bearheels, 1987-2017, is seen on the left in this photo posted on Facebook.

Nebraska law requires that a grand jury be called any time a person dies in police custody.

Winnebago activist Frank LaMere said he’s unsatisfied with the grand jury’s decision, as well as by the case being prosecuted by Kleine.

“I will not be satisfied until justice is served and everybody complicit in the death of Zachary Bearheels is prosecuted to the fullest extent of the law, from the dispatchers to the officers who hit him and Tasered him and the officers who stood by and watched,” he said.

He called on Kleine to prosecute former officers Jennifer Strudl and Makyla Mead for failing to stop Payne and McClarty. Strudl and Mead were both fired for their involvement in the encounter with Bearheels.

“Why prosecute two Black officers and let the two White officers walk?” LaMere said. “I don’t think justice is being served. Prosecute them all.”

On November 28, a group of Native Americans gathered at the Douglas County Courthouse to demand justice and transparency in the case against Payne and McClarty. They later walked to Omaha Mayor Jean Stothert’s office to demand that the mayor fulfill a promise she made shortly after Bearheels’ death to create a committee to advise her on Native American issues.

Native Americans talk with Marty Bilek, second from right, chief of staff for Omaha Mayor Jean Stothert, in Omaha, Nebraska, on November 28, 2017, about efforts to establish a mayoral advisory committee on Native American issues. Photo by Kevin Abourezk

Bearheels was traveling to Oklahoma City when he was kicked off the bus for erratic behavior. His relatives have said he had schizophrenia, was bipolar and wasn’t taking his medication.

After the two officers found him, 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 began punching Bearheels after he got a hand free from his cuffs.

“I cannot bring myself to a point where I can try to imagine what Zachary Bearheels must have been thinking in his last seconds of life, when he had no one to help him and one to cry out to,” LaMere said. “All humanity had turned on this young Indian man for no other reason than he was not like the rest of us.

“I want the Omaha police chief, the Omaha Police Department, the Omaha city fathers and all Nebraskans to think about that. Then we can begin to honestly address the need for justice in Omaha, Nebraska.”