2 Nebraska officers face assault counts

Case tied to death of mentally ill man

Douglas County Attorney Don Kleine announces during a news conference in Omaha, Neb., Wednesday, July 26, 2017 that two Omaha police officers, Scotty Payne and Ryan McClarty, will be charged with assault in the death last month of 29-year-old Zachary Bearheels, a mentally ill Oklahoma man who was shocked with a stun gun a dozen times.  Payne and McClarty were fired from the Omaha Police Department this month based on the recommendation of police Chief Todd Schmaderer. (AP Photo/Nati Harnik)
Douglas County Attorney Don Kleine announces during a news conference in Omaha, Neb., Wednesday, July 26, 2017 that two Omaha police officers, Scotty Payne and Ryan McClarty, will be charged with assault in the death last month of 29-year-old Zachary Bearheels, a mentally ill Oklahoma man who was shocked with a stun gun a dozen times. Payne and McClarty were fired from the Omaha Police Department this month based on the recommendation of police Chief Todd Schmaderer. (AP Photo/Nati Harnik)

OMAHA, Neb. -- Two Omaha police officers will face assault charges in the death of a mentally ill man who was shocked with a stun gun a dozen times and repeatedly punched even after he was on the ground, a Nebraska prosecutor said Wednesday.

Douglas County Attorney Don Kleine made the announcement while revealing police video that captured the altercation that officers Scotty Payne and Ryan McClarty had with Zachary Bearheels, 29, at an Omaha convenience store. Kleine said he wouldn't file more serious charges against the officers because a coroner could not directly link their actions to the Oklahoma man's death.

Police cruiser video shows Payne using a stun gun to shock Bearheels, and McClarty punching Bearheels. Some of the blows came after Bearheels was on the ground and not resisting, the video shows. Kleine said he would charge Payne with second-degree assault, a felony punishable by up to 20 years in prison. He said he's charging McClarty with third-degree assault, a misdemeanor punishable by up to one year in prison.

Bearheels, an American Indian from Oklahoma, was lost in Omaha after being kicked off an interstate bus going from South Dakota to his home state, according to his family. Police were responding to a report of a man causing a disturbance when they encountered Bearheels. Kleine said Bearheels "had committed no crimes."

Police have said Bearheels was acting erratically and fought officers' efforts to take him into custody. After the altercation, Bearheels was taken to a hospital, where he was pronounced dead.

Matthew Burns, an attorney for Payne, said his client is hoping that bail is set low enough that Payne can be released Friday, when he's scheduled to surrender to police.

"He feels awful," Burns said of Payne. "He's not a bad person. He didn't set out that day to go to work with the intent to hurt anyone."

Joseph Naatz, an attorney for McClarty, did not immediately return a message Wednesday seeking comment.

The officers, both of whom are black, were fired earlier this month based on the recommendation of Police Chief Todd Schmaderer. Two other officers who witnessed the altercation were placed on administrative leave after Bearheels' death but do not face any charges.

Asked why he didn't charge Payne or McClarty with murder or manslaughter, Kleine said "there's no evidence whatsoever that these officers intentionally killed Zachary Bearheels." Kleine also cited an autopsy report that said Bearheels died of "excited delirium," but couldn't say if the shocks or punching of Bearheels caused his death.

Bearheels' mother has told police and the media in Omaha that her son was bipolar and schizophrenic. Relatives believe he had stopped taking his medication.

Nebraska law requires a grand jury investigation anytime a person dies in police custody or while in the process of being arrested. Kleine said a grand jury is to convene Sept. 26 but that the charges he's filed will "likely make the grand jury process in this case moot."

The case prompted Omaha to announce the formation of an American Indian advisory board and training for police officers on indigenous culture.

Several members of the American Indian community were present Wednesday for the announcement of charges. Most expressed anger that Payne and McClarty aren't facing more serious charges and that no charges have been filed against the two other officers at the scene.

A Section on 07/27/2017

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