Ambiguous autopsy may hamper charges in death of man Omaha police shocked 12 times with Taser
Uncategorized July 7, 2017, Comments Off 0In his last 24 hours, Zachary Bearheels didn’t die while licking the windows of a salon in central Omaha.
He didn’t die when police arrived at that scene, though responding officers described him as agitated.
The Oklahoma man — stranded after being kicked off a bus in Omaha — didn’t die while traveling 5 miles through the heat from downtown Omaha to an Aksarben-area business district.
Bearheels didn’t die while dancing in front of a convenience store nine hours after the window licking.
His death didn’t come until just a few minutes after Omaha police officers shocked him with a Taser a dozen times and punched him as many as 15 times.
According to autopsy results released Thursday, a Douglas County coroner’s physician couldn’t say “with medical certainty” that either the punching or the repeated use of a Taser caused Bearheels’ death. Dr. Michelle Elieff instead said he suffered a “sudden death associated with excited delirium … physical struggle, physical restraint and use of a (Taser).”
But she was careful to note that “associated with” does not equal “caused by,” Douglas County Attorney Don Kleine said.
In turn, Kleine may be hamstrung when it comes to the charges he’s considering in Bearheels’ death. In order for Kleine to prove a manslaughter case under state law, he must demonstrate that someone’s unlawful actions were the proximate cause of a death.
Asked why the Taser or the punching couldn’t be considered a proximate cause of Bearheels’ death, Kleine said:
“I don’t know the answer to that. And we’ll sort through that. There hasn’t been a final decision made about that” by Kleine’s office.
“I’m just letting people know what the doctor said.”
Kleine said he will take another week to 10 days to make a charging decision. He said his office plans to contact use of force experts to further evaluate the officers’ actions.
The ambiguous autopsy may not be all that significant when it comes to possible punishments.
Under state law, second-degree assault — using a weapon to cause bodily injury — carries the same penalty as manslaughter: up to 20 years in prison. In second-degree assault cases, prosecutors need to prove only that a person used a weapon to cause injury.
Omaha Police Chief Todd Schmaderer has recommended that the city fire Scotty Payne, the officer who used a Taser to shock Bearheels 12 times — many of those shocks coming while Bearheels was handcuffed and on the ground, according to Schmaderer. The chief also recommended firing Officer Ryan McClarty, who reportedly struck Bearheels as many as 15 times after Bearheels ripped one of his wrists free from a handcuff.
To prove manslaughter, Kleine would have to show definitively that an officer’s actions (such as the repeated use of a Taser) caused someone’s death.
Elieff’s autopsy doesn’t do that. Kleine said Elieff looked for evidence that the use of the Taser directly caused Bearheels’ death, such as if one of the prongs had lodged in his heart. (The prongs did not. One hit his stomach; the other his right thigh.)
Elieff couldn’t decide whether the strikes or the shocks or the struggle while handcuffed — or perhaps all of those things, combined with his underlying mental illness — caused Bearheels’ excited delirium, Kleine said.
The autopsy did have a few clear-cut findings:
» Bearheels had no alcohol or drugs in his system. Family members have said that Bearheels suffered from bipolar disorder and schizophrenia and was off his medications.
“Very simply, he was ill,” Kleine said. “He wasn’t under the influence of anything. He was a person in a disturbed state because of his mental illness.”
» Bearheels suffered 30 bruises, including 12 to his head and face, nine to his torso and two to his neck. The bruises ranged in size from 1/8 inch to 4 inches long.
» Bearheels suffered no skull fractures or broken bones. In turn, Elieff ruled out blunt-force trauma as a cause of death.
» Bearheels’ body temperature was 102.4 degrees, above the normal body temperature of 98.6 degrees. Kleine said he was told an elevated body temperature is common in excited delirium cases.
Asked if repeated shocks from a Taser causes increases in body temperature, Kleine said he didn’t think so.
Across the country, coroners often have attributed Taser deaths to “excited delirium,” a condition in which a person, whether because of mental illness or drug use, becomes violent, hyper-aggressive, agitated and feverish.
A “significant portion,” though not all, of fatal Taser incidents involve repeated shocks, said Ed Byers, a doctoral student in criminal justice at the University of Louisville and a 31-year law-enforcement veteran. Of those who died, roughly 79 percent had mental health issues or were displaying erratic behavior.
Schmaderer last month provided the following account:
In the early morning hours of June 4, Bearheels was kicked off a bus that was taking him to Oklahoma City. Another passenger complained about his behavior.
More than 15 hours later, Omaha police officers first encountered Bearheels outside a Brazilian wax salon where he was licking windows. About 3:50 p.m. June 4, two officers gave him water and offered to take him to a shelter or a hospital. Bearheels became agitated but did not commit any crime, so he was allowed to leave the area.
On the evening of June 4, Renita Chalepah, Bearheels’ mother, called Omaha police to report him missing. She had been expecting him to arrive home in Oklahoma at 12:30 p.m. June 4.
In the early morning hours of June 5, Omaha Police Officers Jennifer Strudl and Makyla Mead were called to a report of a man who was refusing to leave a Bucky’s convenience store at 60th and Center Streets.
Strudl and Officer James Mosby, who had been nearby, were able to put handcuffs on Bearheels without incident and put him in the back of a cruiser.
Strudl spoke on the phone with Chalepah for 23 minutes. Mead arrived and called a sergeant, who said there was insufficient justification to detain Bearheels or place him in emergency protective custody. Under state law, authorities can seek a commitment if the person is mentally ill and a danger to himself or others.
Officers decided to take Bearheels to the bus station, one of the options discussed with Chalepah.
Bearheels was in the cruiser for 36 minutes. When Strudl opened the door to buckle Bearheels’ seat belt he leapt out of the car and walked away.
Payne, who had just arrived at the scene, joined Mead and Strudl in trying to maintain control over the handcuffed Bearheels, who was 5-foot-9 and 250 pounds. They requested backup at 1:32 a.m., and McClarty arrived 3 minutes later.
The four officers tried to move Bearheels back to the cruiser, and Payne warned him he would be shocked with a stun gun. The officers tried to carry Bearheels, Schmaderer said, but he broke free and landed on his feet.
After additional warnings, Payne loudly announced, “Taser, Taser, Taser” and discharged the Taser.
Payne continued to activate the Taser. Bearheels then ended up in a seated position with his back against the rear of the cruiser. For the next minute and 45 seconds, as Bearheels sat on the ground and offered no resistance, Schmaderer said, Payne activated the Taser three times.
Bearheels was able to pull his left hand out of the handcuffs, in the process ripping skin off his hand. He then turned toward McClarty, swinging his arms and kicking his legs.
McClarty hit Bearheels in the head multiple times with his fists, Schmaderer said. While McClarty delivered the blows, the chief said, Payne activated his Taser.
“Video showed Mr. Bearheels to be motionless on the final few strikes,” Schmaderer said. Bearheels was placed on a gurney, his hands cuffed to the rails. Inside the rescue squad, he stopped breathing and didn’t have a pulse.
He was pronounced dead at 2:16 a.m., about an hour and a half after Strudl first encountered him.