Shooting of Oscar Grant

Shooting of Oscar Grant

Fruitvale BART station, near where Grant was killed
Time 2:15 a.m. PST (10:15 UTC)
Date January 1, 2009 (2009-01-01)
Location Oakland, California, United States
Deaths Oscar Grant
Accused Johannes Mehserle
Convicted Johannes Mehserle
Charges Second-degree murder, voluntary manslaughter, involuntary manslaughter and gun enhancement
Convictions Involuntary manslaughter (jury's guilty verdict of gun enhancement charge overturned by the trial judge)
Litigation $50 million (originally $25 million) lawsuit by John Burris against BART on behalf of Grant's mother and daughter was settled for $2.8 million; Grant's father's lawsuit was denied

Oscar Grant III was fatally shot by BART Police officer Johannes Mehserle in Oakland, California, United States, in the early morning hours of New Year's Day 2009. Responding to reports of a fight on a crowded Bay Area Rapid Transit train returning from San Francisco, BART Police officers detained Grant and several other passengers on the platform at the Fruitvale BART Station. Officer Johannes Mehserle and another officer were restraining Grant, who was lying face down and handcuffed. Officer Mehserle stood and, according to his attorney, said, "Get back, I'm gonna Tase him." Then, Mehserle drew his pistol and shot Grant once in the back. During his court testimony, Mehserle said that Grant then exclaimed, "You shot me!" Grant was unarmed; he was pronounced dead the next morning at Highland Hospital in Oakland. The events were captured on multiple digital video and cell phone cameras. The footage was disseminated to media outlets and to various websites, where it was watched millions of times. The following days saw both peaceful and violent protests.

The shooting has been variously labeled an involuntary manslaughter and a summary execution. On January 30, 2010, Alameda County prosecutors charged Mehserle with murder for the shooting. He resigned his position and pleaded not guilty. The trial began on June 10, 2010. Michael Rains, Mehserle's criminal defense attorney, argued that Mehserle mistakenly shot Grant with his pistol, intending to use his Taser when he saw Grant reaching for his waistband. Pretrial filings argue that his client did not commit first-degree murder and asked a Los Angeles judge to instruct the jury to limit its deliberations to either second-degree murder or acquittal.

On July 8, 2010, Mehserle was found guilty of involuntary manslaughter and not guilty of second-degree murder and voluntary manslaughter. Though initial protests against the ruling were peacefully organized, looting, arson, destruction of property, and small riots broke out after dark; nearly 80 people were eventually arrested. On July 9, 2010, the U.S. Justice Department opened a civil rights investigation against Mehserle, as the federal government can prosecute independently for the same act under the separate sovereigns exception to double jeopardy, though no charges have been filed to date. On November 5, 2010, Mehserle was sentenced to two years, minus time served. He served his time in the Los Angeles County Jail protective custody, occupying a private cell for his own safety. On June 13, 2011, Mehserle was released under parole after serving 11 months.[1]

Oakland civil rights attorney John Burris filed a $25 million wrongful death claim against BART on behalf of Grant's family. BART settled with Grant's daughter and mother for a total of $2.8 million in 2011, while the cases of Grant's father and friends were denied.

Background

Oscar Grant had been celebrating with his friends at the Embarcadero in San Francisco, and was returning to East Bay in the lead car of a BART train bound for Fruitvale, in a group of about eight friends.[2][3][4] BART offered extended service and a special "Flash Pass" for the New Year's Eve holiday.[5][6] At approximately 2:00 a.m. PST, BART Police responded to reports of a physical altercation involving up to 12 people on an incoming train from the West Oakland BART Station and the participants were "hammered and stoned."[2][7][8]

BART Officers Tony Pirone and Marysol Domenici were the first officers to arrive at the scene. The officers removed Grant and several other men suspected of fighting from the train and detained them on the platform. Pirone handcuffed Grant's friend, angering other riders.[2] Pirone then lined up Grant and two other men against the wall.[2][9] According to Mehserle's motion for bail, Pirone confirmed with the train operator that the men detained were involved in the fight.[10] When five other officers, including Johannes Mehserle, arrived at the Fruitvale station, they claimed that they found the situation chaotic.[2][11] Mehserle's partner on duty, Officer Jon Woffinden, said the "incident was one of the most frightening he had experienced in his 12 years as a police officer." [12]

Mehserle's motion for bail, citing the police investigation, stated:

"Officer Pirone directed Officer Mehserle to arrest two of the individuals who had not been handcuffed. One of the individuals to be arrested was Oscar Grant, and Officer Pirone’s direction to Mehserle was overheard by Grant. Grant, upon hearing that he was under arrest, attempted to stand up, but was forced to the ground face first. Both Officer Mehserle and Officer Pirone attempted to restrain Mr. Grant and to seek his compliance by ordering him to put his hands behind his back to be handcuffed, but Mr. Grant resisted and refused to submit to handcuffing. Officer Mehserle was pulling at Mr. Grant’s right hand and arm, which remained under his torso near his waistband. Mr. Grant had not been searched by any officer for weapons, neither prior to his initial detention nor after being seated near the wall."

A cell-phone video broadcast on local television station KTVU on January 23 showed what appeared to be Pirone rushing towards one of the detained men and punching him in the face several times two minutes before the shooting.[2][9][13] Grant's family alleges in their civil claim against BART that an officer threw Grant against a wall and kneed him in the face.[14] The subsequent autopsy showed that Grant's body had no injuries other than that from the bullet wound.[15] Pirone's attorney stated that Grant provoked Pirone by trying to knee the officer in the groin and by hitting Officer Marysol Domenici's arm when she attempted to handcuff one of Grant's friends.[16][17] Witnesses testified that Pirone was the aggressor during the incident.[18] Burris also disputes Pirone's account and claims that Grant and his friends were "peaceful" when the train stopped.[17] Grant then raised his hands while seated against the platform wall.[19] Additional footage from a cell phone was presented in court showing Pirone standing over the prone Grant before the shooting and yelling: "Bitch-ass nigger, right?" Pirone and his attorney say he was merely parroting an insulting epithet that Grant had yelled at him.[20]

Shooting

While dozens of people shouted and cursed at officers from the stopped train, Mehserle and Pirone positioned Grant face-down. According to Pirone, Grant was disobeying instructions and cursing at officers.[7] Witnesses stated Grant pleaded with BART police not to shock him with a Taser.[21] Pirone then knelt on Grant's neck and told him that he was under arrest for resisting an officer.[7][9]

Mehserle's motion for bail, citing the police investigation, stated:

Pirone said he told Grant "Stop resisting, you're under arrest, put your hands behind your back." At that time Pirone said he heard Mehserle say, "Put your hands behind your back, stop resisting, stop resisting, put your hands behind your back." Then Mehserle said, "I'm going to taze him, I'm going to taze him. I can't get his arms. He won't give me his arms. His hands are going for his waistband." Then Mehserle popped up and said, "Tony, Tony, get away, back up, back up." Pirone did not know if Grant was armed. Mehserle had fear in his voice. Pirone had never heard Mehserle's voice with that tone. Mehserle sounded afraid.[10]

The motion also states that the man sitting next to Grant also told police he heard Mehserle say "I'm going to taze him."[10]

Mehserle then stood up, unholstered his gun, a SIG Sauer P226,[7] and fired a shot into Grant's back.[19] Immediately after the shooting, Mehserle appeared surprised and raised his hands to his face; according to Michael Rains, Mehserle's criminal defense attorney, several eyewitnesses described Mehserle as looking stunned.[7][22] Witnesses say Mehserle said "Oh my God!" several times after the shooting,[23] and many saw him put his hands to his head.[24]

The .40 caliber bullet from Mehserle's semi-automatic handgun entered Grant's back, exited through his front side and ricocheted off the concrete platform, puncturing Grant's lung.[22][25] According to one witness, Grant yelled, "You shot me! I got a four-year-old daughter!"[26] Grant died seven hours later, at 9:13 am, at Highland Hospital in Oakland.[11]

Initially there was disagreement about whether Grant was handcuffed before he was shot. Court filings by the district attorney's office say that Grant's hands were behind his back and that he was "restrained and unarmed" but do not say he was handcuffed. Mehserle voiced his fear that Grant was "going for his waistband," where weapons are often kept.[7][27][28] In addition, the day after the shooting, BART spokesman Jim Allison said that Grant was not restrained when he was shot,[5] and multiple witnesses testified that Grant refused to give up his hands for handcuffing prior to the shooting.[29] The family's claim against BART stated that Grant was handcuffed only after he was shot.[14]

BART Officer Marysol Domenici was first officer on the scene with her partner, Tony Pirone. Domenici testified at the BART incident hearing that Grant and his friends swore at her and did not obey her orders. She is quoted as having testified that: "If they would've followed orders, this wouldn't have happened. They probably would've just been cited and released." She was terminated by BART on an accusation that she was untruthful in her statements to transit investigators. On December 18, 2010, it was reported that San Francisco labor arbitrator William Riker ordered her re-instated with full back pay because there was no basis to find that Domenici was not telling the truth. Domenici's attorney, Alison Berry Wilkinson, was quoted as saying that "She [Domenici] has been vindicated." [30]

Involved parties

Oscar Grant III

Oscar Grant III

Oscar Juliuss Grant III (February 27, 1986[31] – January 1, 2009) lived in Hayward, California.[11] Grant had worked as a butcher at Farmer Joe's Marketplace in Oakland's Dimond District after jobs at several Kentucky Fried Chicken outlets.[21] He attended both San Lorenzo and Mount Eden High Schools in Hayward until the 10th grade and eventually earned his GED.[21]

In the motion for bail, Mehserle's attorney, Michael Rains, stated that toxicology testing of Grant's blood revealed the presence of alcohol (0.02%) and Fentanyl, a potent pain reliever.[10] The coroner's bureau said the pathologist's autopsy protocol would be finalized in March 2009.[32]

Grant's funeral was held at the Palma Ceia Baptist Church in Hayward on January 7, 2009.[33] Grant's mother, sister, daughter, and girlfriend (his daughter's mother) filed a wrongful death claim against BART following his death.

Johannes Mehserle

Johannes Sebastian Mehserle (born c. 1982 in Germany[34]) was raised in the Bay Area from the age of four as the oldest of three children.[7] Mehserle graduated in the class of 2000 from New Technology High School in Napa, California. He attended college in Napa, in Monterey, and at Sonoma State University, where he majored in business, and he developed an interest in police work through a friend who was a police officer. He went on to graduate from Napa Valley College Police Academy in 2006, where he placed in the top five of his class academically and placed well physically.[24][35] Mehserle's girlfriend gave birth to their first child on the day after the shooting, January 2, 2009.[35][36]

Mehserle joined the Bay Area Rapid Transit (BART) Police in March 2007.[35] During the less than two years prior to the shooting, he had never been the subject of a sustained complaint from BART's internal affairs department.[37] Since the shooting, a Bay Area man has complained to the media that Mehserle had beaten him on November 15, 2008; Mehserle's police report on the incident states that four officers grabbed the man after he yelled threats and assumed a fighting stance.[38] The accuser was taken to the hospital for chest and facial injuries and was later booked into jail for resisting arrest. He has not filed a formal complaint against BART.[38]

Mehserle submitted to drug and alcohol testing per BART's standard operating procedure.[19] The results showed no drugs or alcohol in his system.[24] He retained a criminal defense attorney and refused to speak to the authorities, invoking the Public Safety Officers Procedural Bill of Rights Act (California Government Code section 3300-3313)[39] and the Fifth Amendment, claiming potential self-incrimination.[36][40]

On January 5, 2009, Mehserle's attorney postponed a scheduled meeting by BART investigators, seeking to defer it until the following week. BART Police administration and investigators did not allow this and commanded him to attend an investigative interview on January 7. Mehserle did not attend. Instead, his attorney and his BART Police Officers Association union representative arrived and submitted his resignation letter.[35][41]

Mehserle and his family received a number of death threats after videos of the shooting appeared, and he moved at least twice; his parents have also left their Napa home because of death threats to the family.[35][36]

Aftermath

Protesters holding signs while walking in the streets on January 8, 2009.

The shooting and the subsequent riots were covered in regional, national,[19][42] and international news.[43][44][45] Video images of the shooting were widely broadcast and streamed online in the days following Grant's death. Several hundred thousand viewed the videos in the first few days after the incident.[46] Widespread dissemination of the direct evidence of the shooting led to public outrage and protests and fueled riots.[47]

Police in riot gear were dispatched and made efforts to disperse the crowds. During the course of the evening, among other peaceful protest, some of the protesters turned to rioting and rampant property vandalism. Black Bloc and other rioters smashed hundreds of car and shop windows,[48] several private cars and numerous trash containers, and dumpsters. Public buildings such as the Oakland Police Internal Affairs office and the almost restored Fox Theatre were heavily vandalized.[49] The rioting wound down later in the evening and resulted in at least 105 arrests for suspicion of various offenses. Over 300 businesses were affected by the vandalism.[50]

Community members and activists decried the shooting incident as yet another case of police brutality. There was a broad public perception that BART Police and the Alameda County District Attorney's office were not conducting an effective investigation. Others were angry that Mehserle allegedly did not cooperate with Police and District Attorney's Office investigators.[51]

Fruitvale protest and march; downtown rioting

On January 7, 2009, protests over the shooting and administration of justice began peacefully about 3:30 p.m. with about 500 people gathering at the Fruitvale station.[52] In the early evening, some of the protesters marched toward Oakland's central business district and downtown. Over 200 Oakland police officers were dispatched in an attempt to disperse the protesters. Police roadblocked streets and diverted vehicle and foot traffic. After entering the central business district, the march continued to BART Police command and control headquarters at 8th & Madison streets near the Lake Merritt BART station.

Once at BART Police Command and Control, a contingent of angry protesters surrounded a police car. The officer driving the car fled on foot.[53] Meanwhile, the rioters broke out the cruiser's windows and attempted to overturn it. A line of police wearing gas masks swept up behind the rear of the march and deployed tear gas in an attempt to disperse the crowd.[53]

The protest continued as the crowd marched along 8th Street through Chinatown. At Broadway, officers wearing gas masks deployed more tear gas canisters and acted quickly to charge and disperse the crowd as they approached the vicinity of Oakland Police headquarters at 7th and Broadway.

The protest regrouped downtown at the intersection of 14th and Broadway, blocking motor vehicle traffic.[54] Some of the protesters lay face down in the intersection, in a symbolic act of solidarity with Grant, who was killed in the same position.[53] Others shouted at police and chanted in unison. Others carried signs that read, "Your idea of justice?" and "Jail Killer Cops"[53] and lit candles in remembrance of Grant.

Police in helmets and gas masks grouped in standing line formations on the south, west, and north sides of the intersection, allowing an avenue of retreat down 14th Street on the east side of the intersection.[53]

About an hour later, police gave orders to disperse and fired tear gas, rubber bullets,[55] and other non-lethal weapons and devices at demonstrators.[56] Protestors threw bottles, rocks, and other objects at police.[57] Police pushed the crowd east along 14th Street into the Lakeside Apartments District and the scene dissolved into a riot along the 14th Street spine.

Numerous helicopters which had been airborne throughout the evening converged on the area. Law enforcement helicopters shined powerful spotlights down onto surface streets,[58] while media helicopters shot video of developments, which were broadcast in real time on local television stations.

In the ensuing hours, a small clutch[59] of rioters burned the contents of trash cans, dumpsters, newspaper boxes and set fire to at least five cars, including an Oakland police patrol car.[60] Some rioters smashed the windshields of parked cars.[60] The riot spread deep into the Lakeside Apartments District and cars were burned and heavily damaged on Madison Street. Other rioters in this clutch broke storefront windows, including those of a McDonalds fast-food restaurant at Jackson and 14th Streets in the Lakeside Apartments District. The night of the riot coincided with trash collection day the following morning and numerous trash dumpsters and containers were parked curbside. Rioters used these dumpsters to start fires along city streets.[61] Rioters damaged some of the carefully restored historic woodwork and terra cotta on the nearly restored Fox Theater. Damage to the Fox was preliminarily estimated at $10,000 to $20,000.[60]

Dellums' appearance and rioting flare up

As the rioting moved east toward Lake Merritt, Oakland Mayor Ron Dellums and Larry Reid held an impromptu press conference at 14th and Jackson Streets, along the spine of the rioting, and called for the crowd to disperse peacefully.[53] Dellums peacefully marched with the crowd back West along 14th Street to the steps of City Hall, where he attempted to address the crowd, but cut the meeting short and entered City Hall after the crowd became agitated, began booing, and shouted Dellums down.

After Dellums entered City Hall with his own delegation, locking the doors behind him, the demonstrators continued through City Hall Plaza, with angry splinter groups of rioters smashing the windows of Oakland Police Department's Internal Affairs and Recruiting Office at the east side of 250 Frank Ogawa Plaza (now known locally as Oscar Grant Plaza). Windows of police cruisers parked outside the offices were also smashed.

The protesters continued east along 17th Street into the 17th Street Commercial District in Oaksterdam, crossing Broadway and Franklin, where rioters broke numerous storefront windows,[58] and continued back into the Lakeside District, lighting discarded christmas trees on fire. Police continued their efforts to disperse the crowds, and rioting continued on Broadway Downtown.

Denouncement and subsequent media coverage

The rioting wound down around 10:40 p.m.[53] in the vicinity of 20th and Broadway outside of the Paramount Theater, where police detained around 80 individuals for various offenses. Most were cited and released for complaints which include inciting a riot, vandalism, assault on a police officer, and arson. Police recovered two handguns from the rioters.[62] Around 120 people in total were arrested for offenses arising from the protests during the course of the evening.[63] Two have been charged to date.

The Lake Merritt and 12th Street BART stations were temporarily shut down during the evening.

Numerous media photographers and videographers, both affiliated and independent,[64] filmed the scene from close proximity on the ground.[65] Media helicopters shot video of developments from overhead, which were broadcast in real time on local television stations.[66]

Reaction from the business community and city officials

The riots augmented the perception of crime in Oakland, adding to the previous year's run of takeover robberies, and were a challenge to overcome for greater economic investment.[67] The Dellums administration held a press conference in City Hall Hearing room 4 on January 8, and decried the riots as regressive. Dellums noted there were riots in the streets of Oakland 40 years ago "and here we are, still smashing cars.[68] Dellums noted that people were upset and had "lost faith in the process" because of what he called lack of communication by BART officials and the district attorney's office in the days after Grant was killed. BART has also been criticized for not ordering Mehserle to speak to internal affairs earlier.[69]

Criminal trial

On January 12, Alameda County District Attorney Tom Orloff filed a complaint for murder and an Alameda County Superior Court Judge then signed a fugitive arrest warrant. Mehserle was arrested January 13 at a friend's home in the Zephyr Cove, Nevada, area near Lake Tahoe where his attorney said he had gone after receiving death threats in the Bay Area.[27] Mehserle waived extradition, and was held in protective custody at the Santa Rita jail in Dublin, California.[27] Mehserle pleaded not guilty at his arraignment January 15.[70] On January 30, Alameda County Superior Court Judge Morris Jacobson set bail for Mehserle at $3 million.[7] A week later, with the help of fundraising from the police union,[71] Mehserle posted bail.[72]

Alameda County District Attorney Tom Orloff refused to speculate whether Mehserle would be charged with first or second degree murder, saying "What I feel the evidence indicates is an unlawful killing done by an intentional act and from the evidence we have there's nothing that would mitigate that to something lower than a murder."[73][74] Orloff noted Mehserle's refusal to explain himself as a reason for charging him with murder, rather than manslaughter.[27] Orloff said he would fight any motion to change venue for the trial.[27]

Mehserle retained Pleasant Hill criminal defense attorney Michael Rains, who previously successfully represented one of the Oakland Riders.[75] Before Mehserle retained Rains, Rains told the Associated Press that it could be difficult to prosecute Mehserle for murder because the law discourages "second-guessing and hindsighting" of police officers, who tend to be favorably viewed by juries.[76] Mehserle's defense was paid for by a statewide fund for police officers.[75]

Bail hearing

At a January 30 bail hearing, Rains told the court that Mehserle had only carried a Taser for a few shifts prior to the January 1 shooting and mistakenly deployed his service weapon when he thought Grant was reaching for a gun.[7] Rains stated "Mr. Grant was actively, actively, actively resisting arrest"[77] and that some witnesses heard Mehserle say, "Get back, I'm gonna taze him."[78] Rains said he plans to call witnesses who will show "there was a level of resistance by Oscar Grant and others that will negate malice".

The prosecutors' theory of the case is that the video evidence shows that Mehserle deliberately reached for his weapon. They argued: "What we see in the video is an officer releasing his control of a suspect, standing up, drawing his weapon, with some difficulty, and shooting it."[78] Jacobson agreed in deciding to set bail at $3 million that Mehserle's claim of Taser confusion was inconsistent with his earlier statement to a fellow officer and that Mehserle might be changing his story.[7] He later imposed a gag order on attorneys and investigators in the case, prohibiting them from releasing future filings or otherwise commenting to the press.[79]

Preliminary hearing

Rains argued during the preliminary hearing that Mehserle lacked the malice necessary for a murder charge and that he intended to tase Grant. A BART officer testified saying Grant and his friends yelled profanities and did not obey her orders to sit down moments before Mehserle fired at Grant. She said she was fearful when she heard taunts coming from Grant, his friends, and passengers on the train.[80] After the seven days of testimony, Judge C. Don Clay concluded that Mehserle had not mistakenly used his service pistol instead of his stun gun. The judge based this on Mehserle's statements to other officers that he thought Grant had a gun. He also noted that Mehserle had held his weapon with both hands when he was trained to use just his left if he was firing a Taser.[81] Mehserle faced up to life in prison if convicted of first-degree murder.[82]

Rains filed a supplemental motion arguing that Judge Clay should take a second look at a ruling that barred him from presenting evidence about Grant's criminal background as well as a ruling that barred him from presenting evidence that Mehserle told a fellow officer just before the shooting incident that he planned to use his Taser on Grant. He protested that "Both rulings amount to grave errors under longstanding and never-questioned California authorities" and alleged that they "substantially interfere with Mehserle's federal due process right to defend against the murder charge." [83] Rains had also failed to convince Judge Clay to remove District Attorney Tom Orloff's office from the case. Rains claimed Orloff violated his client's rights because he ordered two Oakland police officers to try to interview Mehserle after he was arrested even though Orloff knew Mehserle had an attorney. Judge Clay said Orloff's actions did not prove a bias nor did it meet the requirements necessary for him to be taken off the case.[84]

Plea and jury selection

On June 19, 2009, Mehserle pleaded not guilty, and the jury trial was scheduled to begin in October. Mehserle's attorney Michael Rains sought a change of venue of the trial on the grounds that there would not be an impartial jury in Alameda County.[85] Citing extensive media coverage and social upheaval, the judge agreed.[86] Rains's request was honored on October 16, and downtown Los Angeles was chosen on November 19.[87]

Los Angeles County Judge Robert J. Perry was assigned to the case. He signaled that he would not allow cameras in the courtroom.[88] There was a hearing on February 19, 2010 to address two issues. Mehserle's bail was not reduced as requested by the defense. The judge also rejected a motion to remove Alameda County prosecutors from the case. Rains had argued that prosecutors and detectives acted inappropriately when they interviewed Mehserle earlier in the case. Another hearing was set for March 26.[89]

Mehserle's attorney stated that his client did not commit first-degree murder, and asked the judge to instruct the jury to limit its deliberations to either second-degree murder or acquittal. Rains wrote that Mehserle will not argue the killing was conducted in the heat of passion or in self-defense. Rains also argued that prosecutors had shown no evidence that the fatal shooting was either voluntary or involuntary manslaughter.[90]

On May 7, Judge Perry granted a motion by defense to discuss Grant's conviction for possessing a gun and evading arrest.[91] Perry formally selected the jury on June 8. The 12-member jury consisted of eight women and four men; of these jurors, seven were white, four Hispanic, and one Asian. Of the alternates, there were five women and one man with three Asians, two whites, and one Hispanic. It was alleged that six of the jury had law enforcement connections.[92] Grant's family expressed outrage at the absence of blacks in the jury.[93] The day before the trial began, Deputy District Attorney David Stein revealed a photo that Grant took of Mehserle with a cell phone camera. The photo showed Mehserle pointing a Taser at Grant.[94]

Taser confusion

Several experts who observed video evidence suggested Mehserle might have confused his gun for his Taser[22][95] causing him to mistakenly believe he was tasering Grant.[46] If Mehserle thought he was firing his Taser, this could provide a full or partial defense to the murder charge,[96][97] depending on whether Mehserle had a legal right to use his Taser at all, which was also brought into question.[7] Prosecutors alleged that paperwork, including a blood alcohol test, completed by Mehserle after the shooting showed that he had changed his story.[90]

While there had been previous cases where police officers confused guns with Tasers, modern Tasers weigh half as much as handguns.[96] The prosecution argued that the position of Mehserle's Taser "in relation to his duty weapon, combined with the different 'feel' and color of the two weapons made it highly unlikely that he would have mistaken one for the other."[98] Burris responded to claims of Taser confusion by arguing that video evidence did not support the idea of Taser confusion and, in any event, Mehserle had no reason to fire his Taser.[7] Mehserle was wearing his Taser on the left side of his body (on the opposite side from which he wore his gun) -- but set up for a cross-body, strong hand (right-hand) draw.[99]

BART purchased the Taser X26 stun guns in September, and provided them to officers after six hours of training,[7] which was the amount recommended by the manufacturer.[100]

Witness testimony

On June 14, Carlos Reyes recalled Mehserle saying "Oh shit, I shot him" after shooting Grant. Grant's former girlfriend, Sophina Mesa, testified she called Grant while he and his friends were being detained and he said, "They're beating us up for no reason, I'll call you back." Deputy District Attorney David Stein believed that Grant's phone call proved a desire not to resist arrest that night. Cell phone records showed two calls between Grant and Mesa — at 2:05 a.m. and 2:09 a.m. — the latter just two minutes before Grant was shot.[101]

On June 15, three eyewitnesses of the account testified that neither Grant nor the other suspects actively resisted the officers at any time. Each expressed disgust at the behavior from officers preceding the shooting that night.[101]

On June 22, Jackie Bryson, one of Grant's friends "who was kneeling and handcuffed just inches from Grant when Johannes Mehserle shot him", testified for the prosecution. Bryson said that Grant's hands were under Grant's body and Grant said: "I quit. I surrender." Mehserle then supposedly said "Fuck this" before shooting Grant. Defense attorney Rains repeatedly accused Bryson of lying to convict Mehserle and pointed out a video showing Bryson running towards the train while handcuffed. Responding to Mehserle's question "You were going to leave your friend on that platform, weren't you?" Bryson said "I would never leave my friend." Rains accused Bryson of being inconsistent from statements in Bryson's lawsuit against BART, and Bryson admitted that he lied to investigators, distrusted the police, and was frequently stressed after Grant was killed.[102]

On June 25, Mehserle took the witness stand. Sobbing, he said that he thought that he was not holding his gun until he heard a pop and looked at his right hand. Responding to a question from Rains, he recalled Grant saying "you shot me" right after the shot went off. Judge Perry called a recess after Oscar Grant supporter Timothy Killings shouted out to Mehserle to "save those fucking tears."[103] Killings was later arrested for contempt of court.[104]

Closing arguments and verdict

Judge Perry offered jurors three conviction options: second-degree murder (with a sentence of 15 years to life in prison), voluntary manslaughter (3 to 11 years), or involuntary manslaughter (2 to 4 years); in addition the jury could have decided to acquit. Prosecutor Michael O'Brien said that Mehserle committed a crime inherently by shooting Grant. Intention meant murder or voluntary manslaughter, and an accident indicated recklessness on Mehserle's part and thus involuntary manslaughter. Judge Perry gave two interpretations of Mehserle's shocked reaction after shooting Grant: either Mehserle actually wanted to use his Taser or Mehserle realized that many people were witnessing his action.[105]

Closing arguments took place on July 1. Expressing a belief that Mehserle "lost all control" the night he shot Grant and labeled the shooting as an accident to avoid liability, Deputy District Attorney David Stein asked the jury to convict Mehserle of second-degree murder. Defense attorney Rains argued that the shooting was accidental and told them not to make "some sort of commentary on the state of relations between the police and the community in this country."[106] Jury deliberations began on Friday, July 2, and the jury had the day off on July 5 because of the Independence Day holiday. On July 6, deliberations were suspended after one juror left for vacation having notified the judge in advance, another juror went to a medical appointment, and another called in sick. One new alternate juror joined the panel. One juror submitted a question asking whether provocation by "sources other than the suspect(s)" can make one guilty of voluntary manslaughter. Stein argued that the jury should be able to consider outsiders' influence of Mehserle, but Rains disagreed.[107]

On July 8, 2010, the jury informed the court that they had reached a verdict by 2:10 p.m. The deliberations with this jury panel totaled six and a half hours over the course of two days. At approximately 4:00 p.m., the jury found Johannes Mehserle guilty of involuntary manslaughter, and not guilty of both the second-degree murder and voluntary manslaughter charges.[108] The jury also found Mehserle guilty of a gun enhancement charge that could have added up to ten years to his prison sentence, made him ineligible for probation, and forced him to serve 85 percent of his sentence as opposed to the 50 percent that most state prisoners serve.[109]

Having previously been free on a $3 million bond, Mehserle was remanded into custody after the verdict was read.[110] The next court date, when sentencing would occur, was set for August 6, 2010.[111]

A two-page letter written by Mehserle was released after the verdict in which he said: "no words can express how truly sorry I am."[112]

Sentencing

Mehserle was originally scheduled to be sentenced on August 6, 2010. Sentencing was rescheduled for November 5 at the defense's request.

On November 5, 2010, Mehserle was sentenced to two years with double credit for time already served (due to CA jail/prison overcrowding, one day in custody counts as two for most inmates), reducing his term by 292 days for the 146 days he has already spent in jail.[113] The judge overturned the gun enhancement, which could have added an additional 3 to 10 years to the sentence.[114][115] He was released from prison at 12:01 am on June 13, 2011.

Appeal

On May 9, 2012, nearly a year after his release from prison, Mehserle appealed his conviction to the First District Court of Appeals in San Francisco. His lawyer, Dylan Schaffer, stated the purpose of this appeal was to allow Mehserle to return to "police work" which was not possible with this conviction on his record. They intended to continue to the state and the U.S. Supreme Court,[116] but in September 2012, the California Supreme Court unanimously denied review of an appellate ruling upholding the conviction.[117]

Video evidence

The immediate and subsequent direct evidence of the shooting was documented by video cameras held by passengers on the train idling next to the platform, as police detained Grant and a number of other men police suspected of being involved in the disturbance. Several witnesses testified during the preliminary hearing for Mehserle's trial that they began recording because they believed BART officers were acting too aggressively.[18] These videos were made available through television news and internet video.[19]

Oakland attorney John Burris said BART confiscated numerous cell phone images that he believed contains additional evidence of the killing.[118] Alameda County District Attorney Tom Orloff said video confiscated by BART was useful in bringing the murder charge against Mehserle.[119] Witnesses at the scene also claimed police attempted to confiscate cameras.[120][121][122] These claims were never confirmed by BART police.[2]

Orloff, the district attorney, said that several passenger videos that had not been made public were "very helpful" in the investigation.[27]

On January 2, KTVU aired a video by an anonymous passenger who submitted a cell phone video of the actual shooting.

On January 23, KTVU aired a cell-phone video which appeared to show a second officer punching Grant in the face prior to the shooting.[13] In late February, KRON 4 aired a clip of a video showing a different angle of this altercation. In the report, former Alameda district attorney, Michael Cardoza, told KRON that Pirone appeared to be attempting to restrain Grant by grabbing his head and pushing him down. He also said that Grant appeared to be reaching for Pirone's gun. Burris responded by calling it a "ridiculous assumption" since Grant had been trying to resolve the problem.

BART spokesperson Linton Johnson described the surveillance footage from the Fruitvale platform cameras as "benign" and said the platform cameras had recorded some of the incident, but did not include the actual shooting.[11][123]

Frank Borelli, a retired police officer and writer[124] said that the scene as shown in the video moments before the shooting would be as important to understanding what happened as the shooting itself. "The four officers have to be operating under a high level of stress given the relatively confined setting and the people on the BART train who are expressing, in a very loud vocal fashion, their displeasure with the officers' actions. Those officers, should things go bad for them, are vastly outnumbered by a group of people who have already voiced their unhappiness with the police."[46]

After viewing the shooting from multiple angles, police use-of-force expert Roy Bedard changed his mind and commented: "I hate to say this, it looks like an execution to me" and "It really looks bad for the officer."[46] University of San Francisco law professor Robert Talbot said the videos could support a claim of an accidental shooting: "Nothing about his body looks murderous."[96] Attorney Harland Braun, who won acquittal for an officer in the Rodney King beating, noted that video evidence can be deceptive, and does not show what happened before or after an incident.[96]

Impact of technology

Video images of the incident were widely broadcast and streamed online. Several hundred thousand viewed the videos in the first few days after the shooting.[46] One local television station video posted to its website was downloaded more than 500,000 times in four days,[125] and one independent media video posted to the internet averaged more than 1,000 views per hour.[46] Widespread dissemination of the direct evidence of the shooting led to public outrage and protests and fueled riots.[126]

Responses

BART

On January 8, 2009, BART's elected directors offered apologies to the victim's family.[127]

BART later filed a legal response to the lawsuit that claimed that the shooting was "a tragic accident", and that Grant contributed to the fatal incident. BART said the officers were "just defending themselves" and that "Oscar Grant willfully, wrongfully, and unlawfully made an assault upon defendants and would have beaten, bruised, and ill-treated them if defendants had not immediately defended themselves." [128]

BART also held multiple public meetings to ease tensions.[129] BART board member Lynette Sweet said that "BART has not handled this [situation] correctly,"[127] and called for the BART police chief and general manager to step down, but only one other board member, Tom Radulovich, has supported such action.[130] The Board of Directors created a transit police department review committee to review policies and monitor "major police incidents."[131]

An investigation was launched to determine whether any other officers should be disciplined. On January 12, investigation results were forwarded to the district attorney.[131] The investigation, which interviewed seven police officers and 33 other witnesses,[132] came to no conclusion and made no recommendations.[131] The details were forwarded to Meyers Nave, an outside law firm, for an independent investigation.[133] It was led by Jayne Williams, the former city attorney for San Leandro, and was estimated to cost $250,000.[134][135] In August, the law firm provided two reports to BART but only released one publicly. The report said officers failed to follow recommended procedures, failed to work as a team, and had lapses in both tactical communication and leadership.[136][137]

The footage of a cell-phone video showing Pirone striking Grant caused additional responses after KTVU's broadcast in January. BART General Manager Dorothy Dugger said a "rigorous" internal affairs investigation would be ordered.[13] Later, an attorney representing BART, said that Grant provoked Pirone's blow by trying to knee Pirone at least twice, "It is our position that there was a provocation and assault on Mr. Pirone based upon a video that shows Mr. Grant apparently hitting Mr. Pirone with his knee," [128] On September 22, KTVU reported that Meyers Nave had recommended the termination of Tony Pirone and Marysol Domenici in its unreleased report.[138] After being on leave since the incident, Domenici was terminated on March 24, 2010[139] but was rehired the following December.[140] Pirone was terminated on April 21 after an internal investigation upheld a finding of misconduct against him.[141] Pirone later sought to be reinstated through arbitration. This is a process where the BART administration and BART police union elect a member of the police union to decide if the firing of Anthony Pirone was justified. Note these proceedings are generally secretive, and most details of the arbitation process are not allowed to be disclosed under the terms of the contract between the union and the administration. This arbitration was delayed, as Pirone went on tour in Afghanistan in the US Army.[142] When he returned, the arbitration was set to finish by the end of 2013. Unfortunately, it was delayed until the end of 2014. In December 2014, BART spokesperson Alicia Trost told reporters that Pirone's arbitration was denied,[143] and the arbitrator upheld the termination. Pirone's lawyer, William Rapoport, declined to comment.

Public

Protesters holding signs on January 8, 2009

Protesters organized several demonstrations and marches in the weeks following the shooting and during court hearings.[144][145] Alice Huffman, state president of the NAACP, said there was little doubt the shooting was criminal.[97] Many reporters and community organizers stated that racial issues played a role both in the killing and in the community response.[146] Grant's family claimed that officers used racial slurs during the arrest.[147] BART Police Chief Gary Gee remarked that the BART investigation had found no "nexus to race that provoked this to happen."[27]

There was a broad public perception that BART Police were not conducting an effective investigation.[148] Efforts by BART officers to confiscate witnesses' cellphones during the incident created controversy.[149] The shooting stirred outrage among political leaders and legal observers; Alameda County Supervisor Keith Carson,[96] Oakland City Councilmember Desley Brooks (Eastmont-Seminary), and Berkeley Copwatch labeled the shooting an execution.[96][150] Local columnists criticized such language as "inflammatory" and "the exact opposite of the kind of sane leadership we need and expect from our elected officials."[151][152] The fact that the jury contained no African-Americans also served as a point of tension.[149]

Reason legal commentator Radley Balko stated that he found "simply no basis for the accusation that Mehserle intentionally executed a man in front of dozens of witnesses" and described the verdict as "appropriate" although not "popular".[149]

March for Oscar Grant, 14 January 2009

San Francisco KPFA-FM host J.R. Valrey made a film entitled “Operation Small Axe,” which focused on the Grant shooting, as well as the Lovelle Mixon case, within the larger context of police brutality in the Bay Area. Valrey showed his movie around the country in 2010.[153] The film was directed and produced by Adimu Madyun and won the 2010 Rise Up Award from The Patois International Rights Film Festival in New Orleans,[154] but Valrey also stirred controversy. "The headline for a cover story in the East Bay Express called Valrey an 'Agent Provocateur'[155] – a term generally associated with police informants assigned to cause violence," wrote Temple University associate professor[156] Linn Washington, Jr. after a Philadelphia screening. "That article referred to Valrey as an 'advocacy journalist' who did things 'no mainstream journalist would do,' like speaking at an anti-police brutality rally. 'They tried to get the community to turn against me but I have strong support in the community,' said Valrey, who [also] serves [as] an editor at the San Francisco Bay View, a black owned online newspaper," Washington continued.[153] While in Washington, DC for a screening, Valrey was accompanied by Malcolm Shabazz, grandson of Malcolm X. Shabazz spoke of "his life since being released from prison for the arson of his grandmother’s house" in a joint appearance. A blogpost which reported on the screening connected the title of the film to Bob Marley's lyric "So if you are the big tree, then we are the small axe." [157] The post also linked to an annotated first-person account of the Shabazz story.[158]

Grant's death has been cited as one of several police killings that contributed to the nationwide Black Lives Matter movement.[159][160]

Protests and riots

During hours of the unrest, shops were vandalized in Downtown Oakland

On January 9, 2009, a protest march in Oakland involving about 250 people[161] became violent. Demonstrators caused over $200,000 in damage while breaking shop and car windows, burning cars, setting trash bins on fire, and throwing bottles at police officers.[37][60][161][162][163][164] Police arrested over 100.[37][60] Grant's family pleaded for calm and spoke out against the violence at a press conference the next day.[60][161][165] Nevertheless, on January 8, police in riot gear dispersed a crowd of about 100 demonstrators after some of the protesters stopped vehicles and threw trash cans in the street.[166]

A January 14 demonstration briefly turned violent, and police arrested 18 people after protesters smashed car and store windows in Oakland's City Center district.[167] Another eight were arrested in a January 30 demonstration after Mehserle's bail hearing, causing Mayor Ron Dellums to suggest that Mehserle's right to bail should be abrogated to prevent violence in the community.[168]

[169] Oakland Tribune columnist Tammerlin Drummond criticized the protestors as "self-described 'anarchists,' who aren't even from Oakland, and wannabe Black Panther Party members... playing right into the hands of the defense" by giving Mehserle a plausible case for change of venue.[168]

On May 18, 2009, 100 protested outside of the courthouse during the preliminary hearing and then marched to the nearby Oakland Police Department. A protest organizer was arrested after the group blocked traffic.[170]

Protests continued throughout the pretrial process. The hearing on February 19, 2010 saw 50 protesters with signs outside of the Los Angeles courthouse.[171] An estimated 200 protesters gathered at San Francisco's Embarcadero BART station on April 8, 2010 to call for the disbanding of the transit system's police department and the firing of an officer who was on the scene when Grant was shot.[172]

On July 8, 2010, following the verdict, protests began peacefully,[173] and officials commended both the protestors and the police for their demonstrated restraint.[174] When the time of the verdict announcement was announced, many people packed BART trains to leave Oakland, and Interstates 880 and 980 had heavy traffic.[175] There were multiple peaceful gatherings held throughout Oakland after the verdict was announced, and sporadic conflicts were quelled quickly by the police early in the evening. As night fell, vandals engaged in opportunistic looting of local businesses, such as The Foot Locker, a bank, and a jewelry store.[176] Oakland's police chief was quoted as saying that the people doing violence did not primarily seem to be Oakland residents protesting the verdict, but instead were self-styled "anarchists...who are almost professional people who go into crowds like this and cause problems."[177] Oakland police arrested 83 people on a variety of charges ranging from vandalism to failure to disperse to assault.[173] According to the Oakland Police Chief Batts, nearly 3 out of 4 of those arrested during the protest did not live in Oakland.[178]

The San Francisco Chronicle reported that many of the rioters who were most aggressive in damaging Oakland businesses and property were organized white anarchists wearing black clothing and hoods. An anarchist slogan was painted on one wall that read "Say 'no' to work. Say 'yes' to looting." [179]

Some Oakland officials objected to the "anarchist" label, commenting that the outside agitators seemed to lack any cohesive philosophy and were simply bent on making trouble.[180]

Civil lawsuits

Oakland attorney John Burris filed a $25 million wrongful death claim against BART on behalf of Grant's family on January 6, 2009.[19][181] In February, he also filed claims for a total of $1.5 million on behalf of five of Grant's friends who he says were detained without cause for five hours after the shooting, alleging illegal search and seizure, false arrest, and excessive force.[8][17]

Burris later increased the amount sought to $50 million and the case was partially resolved when BART settled with Grant's daughter for $5.1 million (with accrued interest) per the law firm of John L. Burris who represented the plaintiff,[182] followed by a $1.3 million settlement for Grant's mother. Grant's father, who has been in prison since before Grant was born, sued Mehserle for the younger Grant's death.[183][184] However, on July 1, 2014, a civil jury rejected the claims of Grant's father against Mehserle in the shooting of Grant, as well as in favor of Marysol Domenici over excessive force used the night of the shooting on Johnnie Caldwell, a friend of Grant's.[185] The five friends of Grant settled with BART for a $175,000 payout.[186]

In popular culture

In January 2013, filmmaker Ryan Coogler premiered Fruitvale (later retitled Fruitvale Station), a dramatization of the last 24 hours in Grant's life; the film incorporates some of the footage shot by eyewitnesses during the BART confrontation, and principal photography also included locations in Oakland, San Francisco, San Leandro, and San Quentin State Prison. The film was at the center of a distribution bidding war, with rights ultimately acquired by The Weinstein Company for approximately US$2 million. The film initially screened at the 2013 Sundance Film Festival on January 19, and the distribution deal was reported and finalized two days later.[187] Featured in the cast are Michael B. Jordan as Oscar, and Octavia Spencer as Oscar's mother, Wanda; the cast also includes Ahna O'Reilly, Melonie Diaz, Chad Michael Murray, and Kevin Durand; Spencer and Forest Whitaker are among the film's producers. On January 26, 2013, the film won the U.S. Dramatic Grand Jury Prize as well as the U.S. Dramatic Audience Award at the 2013 Sundance Film Festival.

Additionally, the Oakland, California indie rock band Rogue Wave reference the incident in the song "Solitary Gun" on their 2010 album Permalight.[188] "Stepped off the train and looked for Fruitvale signs. The January air it whips across my spine."

In 2009, a short time before his own death, the rapper Dolla created a song titled "Oscar Grant" and it is dedicated to him.

See also

References

  1. ↑ "Ex-BART Officer Johannes Mehserle Released From Jail". CBS San Francisco. June 13, 2011.
  2. 1 2 3 4 5 6 7 Bulwa, Demian (January 30, 2009). "BART's shooting probe missteps". San Francisco Chronicle.
  3. ↑ "Family Files Claim In BART Shooting; Officer ID'd". KPIX-TV. 2009. Archived from the original on January 21, 2009.
  4. ↑ Maher, Sean (July 16, 2011). "Man fatally shot in Hayward identified as Oscar Grant III's best friend". Oakland Tribune. Archived from the original on July 31, 2013. Retrieved July 31, 2013. A group of about eight friends, including Grant and Caldwell, rode BART from San Francisco to Oakland
  5. 1 2 Jill Tucker; Kelly Zito; Heather Knight (January 2, 2009). "Deadly BART brawl — officer shoots rider, 22". San Francisco Chronicle. Archived from the original on January 4, 2009. Retrieved January 5, 2009.
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  14. 1 2 "$25 million claim by family of man killed by BART police". San Jose Mercury News. January 6, 2009.
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  128. 1 2 BART filing says shooting victim, Oscar Grant, contributed to fatal incident Associated Press April 3, 2009
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  182. ↑ Oscar-Grant-s-Daughter-Settles-Lawsuit-For-5-1-Million
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