Lawyer says BART officer meant to fire Taser

January 31, 2009
By Kelly Rayburn, Paul Rosynsky and Harry Harris, Oakland Tribune

The BART police officer charged with murdering 22-year-old Oscar Grant III at the Fruitvale station New Year's Day intended to fire a Taser at Grant when he instead pulled his service pistol, the officer's attorney wrote in court papers filed before a bail hearing Friday.

The papers — obtained before Alameda County Superior Court Judge Morris Jacobson put a gag order on the parties in the case involving former Officer Johannes Mehserle — offer the first explanation from either Mehserle or an attorney of his as to what his state of mind might have been during the early hours of Jan. 1.

"The offense charged is serious," attorney Michael Rains wrote. "However, even a rudimentary and hasty examination of discovery provided to date indicates that Mr. Mehserle did not act ... with malice against Mr. Grant when he fired his weapon."

District Attorney Tom Orloff's office declined to release its own bail-hearing motion Friday afternoon, citing the gag order. Rains' request that bail be set at $100,000 was rejected. Bail instead was set at $3 million.

The court papers include statements from several witnesses — both officers and civilians — saying Mehserle indicated he was going to use his Taser on Grant and that he looked shocked after the shooting.

Mehserle was one of several BART officers at the Fruitvale station responding to reports of a fight on a train, according to the papers. Officers described a chaotic and out-of-control New Year's crowd.

One of those detained by police was Grant.

Mehserle was directed by BART Officer Tony Pirone to arrest Grant, according to the document, but Grant "resisted and refused to submit to handcuffing."

Pirone said he heard Mehserle tell Grant to stop resisting and put his hands behind his back before saying, "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."

But instead of pulling his Taser, Mehserle pulled his gun and shot Grant in the back, the papers state.

Other officers and witnesses who saw the shooting described Mehserle "as being in shock and many saw him putting his hands to his head," according to the document. One civilian witness said Mehserle had an expression on his face as if to say, "holy (expletive) what happened or what did I do."

Rains also argued that Mehserle had limited experience with a Taser. Mehserle had been certified to carry a Taser for less than one month before the incident occurred, the papers state. He carried a department-approved Taser somewhere between eight and 12 shifts before Jan. 1.

According to a statement from Pirone, Mehserle told his fellow officer, "Tony, I thought he was going for a gun." Grant was unarmed.

That statement, however, was used by Alameda County Superior Court Judge Morris Jacobson and Deputy District Attorney John Creighton to argue that Mehserle did have malice when he shot Grant and thus the murder charge is correct.

Creighton said during the bail hearing that Rains' explanation for Mehserle's state of mind was conflicting.

Although, Mehserle is claimed to have announced his intention to use his Taser on Grant, he also stated afterward that he believed Grant was reaching for a gun.

The two statements are in conflict, Creighton argued, because if Mehserle thought Grant was trying to reach for a gun he never would have announced his intention to use a Taser on Grant. Instead, Creighton said, Mehserle is trained to react to force with force, meaning he would have pulled out his gun if he thought Grant had a gun.

Jacobson agreed, saying the two statements made by Rains appear to be a defendant changing his story to protect himself.

"There was an indication from Mr. Mehserle that he was going to use a Taser, but within a few minutes (he) stated, 'I thought (Grant) had a gun.' These two things to me are inconsistent," Jacobson said. "There appears to be a change in the story. His willingness to change his story appears to me that he would be willing to do so to avoid the consequences."

While Rains' papers attempt to characterize Mehserle's state of mind, it does not quote the murder defendant directly and instead uses statements by others to describe the scene and Mehserle's possible motives.

Mehserle resigned from the BART police force rather than give a statement about the incident to BART officials who were investigating it earlier this month.

Asked if Mehserle was trained properly in the use of a Taser and whether a lack of experience in carrying a Taser could have contributed to what happened, BART spokesman Linton Johnson said, "All of that is part of the investigation."

Legal experts appeared to agree with Creighton and Jacobson that Rains' explanation was suspect.

"It's somewhat suspicious that it's taken this long to come up with that particular interpretation, which might make it suspect," said University of San Francisco law professor Robert Talbot, who has developed training programs for the San Francisco Police Department and San Mateo County Police Academy. "It would be harder for a jury to believe it, I feel, coming a month later. ... You'd expect something more spontaneous."

Still, it's "suspicious but not impossible," Talbot said. There have been other cases across the nation in which officers said they'd accidentally fired their firearms when thinking they were deploying their Tasers. Those officers haven't been criminally prosecuted, he acknowledged, but those shootings weren't caught on videotape and widely broadcast, either.

Talbot said he could see how Mehserle, even if he did believe Grant was reaching for a gun, might have reached for his Taser "not believing under the circumstances that he needed to use deadly force."

"Truthfully, for me, the videotape never looked like murder," Talbot said. "It never looked like somebody that was looking to blow somebody away, the body posture, the facial expressions."

Even if a jury accepts that Mehserle believed he was drawing and firing his Taser, Talbot said, it could still convict him of involuntary manslaughter if it finds he acted with gross negligence.

Involuntary manslaughter happens "in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection," according to the Penal Code.

This is punishable by imprisonment for two, three or four years with a potential additional three, four or 10 years for using a firearm.