Defense expert says officer’s Taser use before man’s death was reasonable but has questions

December 7, 2018

A defense expert called them “eyebrow raisers” and “justifiably questionable.”

His concern: three of the 12 pulls of a Taser trigger that former Omaha Police Officer Scotty Payne made while trying to get a mentally ill Oklahoma man into a police cruiser.

READ MORE: Cruiser camera video showing final minutes of Zachary BearHeels’ life brings juror to tears

All three occurred while Payne and his fellow officers had a mentally ill Oklahoma man pinned against a rear tire of an Omaha police cruiser.

Zachary BearHeels’ rear end was planted on the parking lot and he slumped against a tire. The 29-year-old man’s hands were cuffed behind his back. His breathing was heavy.

The three pulls caused BearHeels’ legs to either seize or stiffen and his back to straighten.

Stephen Ijames, a former Springfield, Missouri, police commander and now a member of the International Association of Chiefs of Police, agreed that at that point, BearHeels was passively resisting. He also acknowledged that Omaha police policy prohibits officers from using a Taser on a passive person.

“All three of them would be in that category of an eyebrow-raiser,” Ijames testified.

But in the eighth day of Payne’s second-degree assault trial, Ijames told jurors that he ultimately concluded that Payne’s use of the Taser was “reasonable.”

Ijames emphasized that the U.S. Supreme Court has ruled that jurors must judge officers based on their split-second mindset at the time — not how they should have acted based on 20-20 hindsight. The question isn’t whether the use of the Taser was necessary, it’s whether it was reasonable under the circumstances.

Ijames said it was. He noted that every time officers converged on BearHeels, BearHeels struggled with them.

“The best indication of what is going to happen tomorrow is what happened yesterday,” Ijames said.” (Payne) reasonably believed that if I lay hands on him, a fight is going to follow.”

That said, Ijames told jurors that he had several concerns with Omaha police officers’ training and response. BearHeels was stranded in Omaha after being kicked off a bus that was taking him from his aunt’s house in South Dakota to his mother’s house in Oklahoma City. He died within minutes of his encounter with Omaha police.

Ijames said Omaha officers were not adequately trained on excited delirium — the condition that a coroner determined BearHeels ultimately died of.

Ijames said BearHeels clearly had exhibited signs of excited delirium in the 12 hours before his death. Some of those signs: obsession with one’s reflection, dehydration, mumbling in gibberish, increased body temperature.

With proper training, Ijames testified: “They would have recognized that this was an ambulance run immediately.”

“It should have been readily apparent that this person was in medical distress and in need of medical treatment,” he said.

A police official said that Omaha officers do receive excited delirium training. Payne, who had four years on the force, would have had it, but it’s not clear that the three other officers would have. All were essentially rookies.

Ijames also bristled at Omaha Police Sgt. Erik Forehead’s response to then-Officers Jennifer Strudl and Mikyla Mead telling him that BearHeels was discombobulated. Strudl testified that, in response, Forehead said: “Oh, you’ve got a (expletive) retard.” Mead said Forehead blew off her phone call telling him that BearHeels’ mother had informed the officers that BearHeels was bipolar and schizophrenic and off his medications. Mead said Forehead cut her off.

Forehead denied those accounts, saying the officers didn’t give him a clear picture of BearHeels’ condition.

Ijames said Forehead should have authorized an emergency placement and should have gone to the scene much more quickly than he did. Forehead has testified that he was supervising the entire southwest Omaha precinct because another sergeant was on vacation.

“You have a very difficult situation that is begging for a supervisor to come,” Ijames said.

Ijames said the four officers — Payne, Strudl, Mead and Ryan McClarty — showed “remarkable restraint” in trying to wait out BearHeels for much of the nine-minute struggle.

Ijames noted that Strudl and Mead had BearHeels under control initially. Strudl erred when she went to put a seat belt on BearHeels. At that point, BearHeels, handcuffed behind his back, shot his legs out and walked out of the cruiser.

Strudl should have blocked his way out of the car, Ijames said.

“She was simply trying to be kind and soft, and that didn’t work,” Ijames testified.

Ijames said officers had other options as BearHeels was seated on the ground, handcuffed against the wheel well. They could have attempted to wire-strap his ankles together. Better yet, he said, they should have called an ambulance and poised themselves to strap him to a gurney.

All of that hindsight doesn’t mean Payne was wrong to pull the trigger on the Taser 12 times throughout the ordeal, Ijames said.

Prosecutor Corey O’Brien asked whether Payne and fellow officers should have abandoned the Taser at the point that BearHeels was slumped against the cruiser. He noted Omaha policy that calls for officers to use a Taser no more than three times, for a total of 15 seconds. Payne pulled the trigger 12 times for 68 seconds, though experts say the Taser didn’t have a good connection and thus didn’t work for many of the pulls.

After the first pull incapacitated BearHeels, Ijames said, only three of the subsequent Taser pulls showed effect, minimally. The trial is expected to conclude Friday. Jurors could begin deliberating Friday afternoon or Monday morning.

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