UPDATE: Case against former police officer in Bearheels death moves to District Court
Former Omaha Police Officer Scotty Payne made an appearance in court Monday morning in connection with the in-custody death of Zachary Bearheels.
Payne, a four year veteran of the force, was charged with second degree assault in the case.
He and three other officers were fired by Omaha Police Chief Todd Schmaderer.
Payne deployed a taser on Bearheels a total of 12 times. The confrontation with Bearheels happened June 5th at the 60th and Center Bucky’s. Bearheels, 29, had allegedly been causing a disturbance at that location around 12:30 a.m.
Officers arrived and questioned him. Bearheels became erratic and officers eventually placed him in handcuffs and later into the back of a police cruiser. The struggle began when Bearheels got out of the vehicle.
In the course of that clash, Bearheels was punched, dragged by the hair, and repeatedly stunned with the taser. He was eventually taken to the hospital where he was pronounced dead. Authorities list the cause of death as "excited delirium" - a sudden death caused by agitation and distress.
In court, Mandee Kampbell , assigned to the OPD Training Unit since 2014, was asked by Deputy Douglas County Attorney Jim Masteller how an officer can deploy a taser for 18 seconds. “You take the safety off and hold the trigger down for 18 seconds,” she replied, adding that the use of a taser is not to exceed 15 seconds.
Kampbell, who trained Payne in the use of a taser, said none of the 12 deployments was necessary.
“It was not justified,’ she said. When asked why, Kampbell responded, “Well all the deployments were outside of Omaha Police policy and training standards. None of the deployments seem to be reasonable or justified and they’re excessive. He’s handcuffed and he’s not under arrest.”
When asked if the Omaha Police Department allows for the use of a taser in some circumstances, Kampbell replied, yes, when suspects are actively resisting officers.
Masteller said it is clear that Payne violated Nebraska law.
“In this case, there was no arrest, nor an attempt to arrest, therefore under 28-14-12 no use of force was justified or authorized by that statute,” he said.
Defense Attorney, Steve Lefler, grilled Kampbell about police procedure when using tasers and trying to restrain a suspect. Kampbell said when using a taser, officers want to avoid prolonged, repeated, continuous exposure. She said anything over 15 seconds, or three cycles of five seconds each is the threshold where the body gets negative response. She added that OPD prohibits the use of tasers when someone is handcuffed, using it to threaten or intimidate a suspect or to use it as a “come along” technique.
Lefler asked Kampbell if once Bearheels slipped out of his handcuffs, was he still technically considered cuffed.
“No,” she replied. She added that officers should have regained control with a minimum amount of force. Kampbell said at some point, it is appropriate for officers to put their hands on a suspect. She said she feels a restraining hold would have been appropriate.
Kampbell said when the handcuffs were off, Bearheels was "swinging punches. Is it because he was being tased and scared or was it because he’s committing a crime? We’ll never know," she said.
She added that verbal commands and retreating are methods that officers could have used to stop Bearheels from swinging.
Referring to video captured of the incident and shown to the media by Douglas County Attorney Don Kleine, Kampbell said "I heard (officers say) 'get down,' 'get in the car' but nothing about stop resisting. He was never told he was under arrest, just get in the car.” After being tasered, Kampbell said, “You can see his (Bearheels’s) body bend backwards. If the cruiser wasn’t there, it would have pushed him all the way back. You can see his legs constrict. Even his toes are pointed.” After the tasing, Bearheels “was told to get up, which is impossible," Kampbell said.
She said she didn't believe any of the methods used in attempting to restrain Bearheels by the four officers was adequate.
Kampbell said Bearheels was never placed under arrest. When asked why officers handcuffed him and put him in the back of the cruiser she said it was so officers could take him to the bus station and send him back home to Oklahoma.
"And do what with him?" Masteller asked.
"Leave him there until the buses run," Kampbell replied.
Lefler argues that Payne was just doing his job after the first two responding officers stood by and did nothing.
“You guys all saw the video,” he said. “She’s (one of the responding officers) hiding behind water bottles. Maybe you’ve already seen that. She doesn’t have any charges against her, so its sending a message to our police officers that if you do nothing you won’t have a felony on your record.”
Lefler said Kleine did him no favors when he showed the video to the media.
“I like Mr. Kleine, but I think he poisoned the jury pool by showing the video a couple of months ago,” Lefler said. “I think he’s denying Mr. Payne his opportunity to have a fair and impartial jury.”
Lefler said right now a change of venue request is unlikely but he said Omaha Police Department’s standards on taser use are not the same as other police departments across the country.
“The Omaha Police Department standards are higher than the constitutional standards,” he said. “There are a number of US Supreme Court and Nebraska Supreme Court cases that talk about what an officer can do and how an officer has to respond reasonably to the circumstances that he or she encounters at the time.”
Douglas County Judge Marcena Hendrix ruled that prosecutors have enough evidence to pursue their case against Payne.
After the hearing, Payne was surrounded by people who are showing support for the fired police office.
If convicted, Payne could face a maximum of 20 years in prison.
Another former police officer, Ryan McClarty, faces a misdemeanor third degree assault charge in connection with the Bearheels case.