Column by BART Police Chief Kenton Rainey

July 16, 2010

The following is an op-ed column by BART Police Chief Kenton Rainey that was published July 3 in the Contra Costa Times.

By Kenton Rainey
BART Chief of Police

Today marks the end of my second full week as the new BART Chief of Police. I wish I could report that it was pretty uneventful, but I cannot.

The majority of my time has been occupied with coordinating with my law enforcement peers in preparation for possible civil unrest in connection with the Mehserle trial. A large percentage of the remainder of my time has been spent addressing questions about why one of our police officers used his Taser against a suspect who was resisting arrest after being contacted for fare evasion.

The obvious answer for anyone interested in why the officer felt compelled that he had to arrest this suspect is that the aforementioned behavior is against the law, and we are paid to enforce the law no matter how minor. More importantly, however, it's not normal for a 35-year-old man to engage in fare evasion or for him to aggressively and physically resist a uniformed officer who is engaged in the lawful performance of his duty. Bottom line, it's because of this suspect's behavior that there's an issue.

Often, we find that individuals who engage in this type of behavior are no strangers to law enforcement. That's why it was no surprise to learn that the suspect's criminal history includes arrests and/or contacts for battery on a police officer, auto theft, domestic violence, reckless driving, giving false identification to an officer, trespassing and fare evasion.

If we are going to maintain a safe, secure and customer-service friendly transit system, it's important for BART police to enforce minor quality of life crimes like fare evasion. We often ask the men and women of our law enforcement agencies to exercise their discretion when performing their public safety duties on our behalf under the most adverse conditions. They regularly go about their daily routines knowing that their split second decisions are subject to being hotly debated for days, weeks, and months.

With that said, this does not excuse officers who behave intentionally or unintentionally in a manner that is not consistent with BART Police Department operating procedures. That's why we have processes and systems in place to review all incidents involving the use of force. Therefore, we should all step back and let that process occur regarding this incident. Once completed, you have my pledge as the BART Chief of Police that if we have done something wrong, we will admit it, take the necessary steps to fix it and move forward together making our transit system and communities safer.

Finally, one of our elected officials who expressed her opposition to Taser usage has been subjected to personal criticism because of her views. This is both unfair and undemocratic. In a free society the police are entrusted with awesome power that must be open to scrutiny, criticism and citizen oversight if we are going to maintain the public trust. Therefore, not only should we expect this debate to occur, we should welcome it.

Expert: Mehserle made right call to use taser

June 27, 2010
Demian Bulwa, San Francisco Chronicle

A use-of-force expert hired to defend Johannes Mehserle at his murder trial testified today that the former BART officer was justified in using a Taser shock weapon to subdue train rider Oscar Grant because Grant was fighting Mehserle's efforts to handcuff him.

Mehserle, 28, said last week that he meant to deploy his Taser on Grant, but accidentally pulled out his pistol and fired a single shot into the 22-year-old Hayward resident's back at Fruitvale Station in Oakland on Jan. 1, 2009.

In calling retired Los Angeles police Capt. Greg Meyer to the stand, the defense sought to varnish Mehserle's testimony last Thursday and Friday.

But Meyer, who indicated he was paid at least $44,000, was also put through a bruising cross-examination by Alameda County prosecutor David Stein - a session that lasted longer than his direct examination by defense attorney Michael Rains.

Meyer, who often defends police officers over their use of force, said he had not reviewed some evidence that Stein considers vital, and that he did not have a mastery of some of the case's central facts.

Meyer also said he had been closely involved in the aftermath of the Rodney King case, and that he had concluded that the officers who beat King did not use excessive force. Rather, he said, the officers had acted in accordance with faulty training and policies.

At one point, Meyer referred to Grant as "the defendant in this case" before Stein corrected him.

Under questioning by Rains, Meyer said Grant was properly arrested by former BART Officer Anthony Pirone for resisting officers. It was Pirone who ordered Mehserle to handcuff Grant.

According to witnesses, Grant had been in a fight on a Dublin-Pleasanton train. His arrest, Meyer said, was justifiable because he tried to avoid Pirone - the first officer on the scene - by ducking back into the train, and because at one point he stood up after being told to sit down.

Pressed by Stein, though, Meyer said that if a person were arrested for standing after being told to sit, that would be a "cheap arrest."

Meyer said his review of video footage of the shooting convinced him that Grant resisted Mehserle's efforts to handcuff him by keeping his right hand underneath him as he lay on his chest and by using "evasive movements - twisting, turning."

A decision to use a Taser on Grant would have been a good one, Meyer said, because it would have caused lesser injuries than a gun or a baton, and it wouldn't have inflamed the emotions of onlookers.

Meyer also said the Taser training BART gave Mehserle a month before the shooting was deficient because officers were not put in role-playing situations that "got their adrenaline up" and were not asked to make split-second choices between different weapons.

Meyer said he had reviewed other cases in which officers have claimed they confused their gun and Taser, and that in each case the officers wore the Tasers in a way that necessitated a strong-hand - or gun-hand - draw from a holster. That's how Mehserle was wearing his Taser on the night of the shooting.

Meyer said police officers should only draw Tasers with their weak hands to avoid confusion. Stein asked Meyer, who has long given advice to the company that makes the Taser, whether he had said the same thing to the firm's officials.

Yes, Meyer said, "On Saturday."

Trainer: Mehserle was warned of Taser blunders

June 23, 2010
Demian Bulwa, San Francisco Chronicle

A month before he shot and killed Oscar Grant, former BART police Officer Johannes Mehserle was given Taser training that stressed the importance of not confusing the shock weapon with a gun - and was even told of cases in which police had reported shooting people by making such a mistake.

That was the testimony today of Stewart Lehman, a BART police officer who helped train Mehserle to use Tasers on Dec. 3, 2008.

Lehman was called as a defense witness for Mehserle, who is charged with murdering Grant while trying to arrest him Jan. 1, 2009, at Fruitvale Station in Oakland.

Defense attorney Michael Rains is trying to show that Mehserle intended to shock Grant with a Taser while handcuffing him after a fight on a train. Prosecutor David Stein says the Taser story is a fabrication and that Mehserle intentionally shot Grant in the back after losing control of his emotions.

In his questioning of Lehman, Rains suggested that the Taser training given to Mehserle and other BART officers had been inadequate because officers were allowed to fire the stun gun just once over the course of six hours. Lehman said the training met standards set by a state oversight agency.

Once they were armed with the stun guns, officers were allowed to choose where to carry them. However, Lehman said, a right-handed officer such as Mehserle was not allowed to position the Taser next to the gun on the right hip unless he aimed the weapon's handle in the opposite direction, making only a left-handed draw possible.

"The intent of that was to avoid the weapons confusion issue," Lehman said.

The jury also learned that officers in Madera, Sacramento and Rochester, N.Y., had reported shooting people by mixing up a Taser and a gun.

Stein, in his cross-examination, had Lehman demonstrate the difference between pulling a Taser and a gun from a holster. He gave Lehman the duty belt that Mehserle had used, then had him stand up and draw Mehserle's yellow Taser X26.

The night he killed Grant, Mehserle wore his Taser just to the left of his belt buckle, with the holster configured for a right-handed draw.

To pull the Taser in the courtroom demonstration, Lehman had to unsnap a button with his right thumb. Then, with the same thumb, he rolled forward a plastic hood over the Taser before pulling the weapon.

Earlier, Stein showed jurors how Mehserle would have had to pull his Sig Sauer P226 pistol. The gun holster requires an officer to roll forward a hood with the thumb of his gun hand, then use the same thumb to push back a lever that frees up the firearm.

Bay Area Rapid Transit (BART) cops turn in Tasers for more training

April 15, 2010
By Denis Cuff, Contra Costa Times

BART ordered its police officers Thursday to turn in their Tasers until the entire force can get more training in use of the weapon. The move comes ahead of the murder trial of a former BART police officer who shot an unarmed passenger last year.

Interim police Chief Dash Butler said he ordered a weeks-long time out for the stun guns to allow for more training in Taser policies and procedures.

Butler said he wants to make sure officers are familiar with court rulings that limit use of Tasers to defensive purposes. "It was already planned because of the court rulings," he said.

Butler acknowledged greater urgency for the move following an incident earlier this month in which a BART police officer fired a Taser at someone under circumstances that led to an internal affairs investigation. Butler declined to give details of the incident or comment on a television news report that the officer had fired at a 13-year-old boy fleeing on a bicycle.

The officer missed his target, Butler said. The Taser's use, coupled with the fact that the chief was not informed of the incident until several days later, raised concerns.

He said the training will emphasize BART procedures that officers must wear the Taser holster on their weak side — the side of their nondominant arm.

Previous BART policies allowed officers to wear the Taser holster in different ways, but "there is only one way now," Butler said.

Taser use is an issue in the defense of former BART officer Johannes Mehserle, who is charged in the Jan. 1, 2009, fatal shooting of Oscar Grant III, an unarmed BART passenger.

His defense team says Mehserle thought he was firing his Taser instead of his revolver at Grant.

John Burris, an Oakland attorney representing Grant's family, applauded the decision. "It was wise to take (the Tasers) from officers and retrain them so they understand both the law and the proper use."

Burris said he does not accept Mehserle's defense, but he added that even using a Taser on Grant would have been an "inappropriate use of force."

Murder trial ordered for ex-Bay Area transit cop

June 4, 2009
By TERRY COLLINS, The Associated Press

OAKLAND, Calif. (AP) — A judge ruled Thursday that a former transit police officer should stand trial on murder charges in the fatal shooting of an unarmed man on a train platform.

Alameda County Superior Court Judge Don Clay said there was sufficient evidence for ex-Bay Area Rapid Transit police officer Johannes Mehserle to face murder charges in the shooting of Oscar Grant early New Year's Day.

"There is no doubt in my mind Mr. Mehserle meant to shoot Oscar Grant with a gun, not a Taser," the judge said.

Mehserle's defense has contended that Mehserle accidentally grabbed his pistol instead of his stun gun when he shot Grant, who was face down on the platform.

Mehserle has pleaded not guilty.

When the judge rendered his decision, Mehserle sat looking straight ahead. Grant's mother, Wanda Johnson, burst into tears.

During several days of a preliminary hearing, the prosecution and Mehserle's attorney called witnesses and presented evidence in the controversial video-recorded shooting that prompted sometimes violent protests in Oakland.

Jackboot Hall Of Shame: Police Brutality Videos Archive

Robert Allison
Prison Planet.com
June 1, 2009

This archive contains 64 videos, with direct links for file downloading. Unfortunately, many of these shocking and outrageous videos contain extreme violence and even death. This archive was made in memory of Oscar Grant of Hayward, CA.

Grant was executed Jan. 1, 2009 by Johannes Mehserle, a San Francisco BART Police officer. Grant is survived by his 4 year old daughter, mother, sister, and girlfriend (his daughter’s mother)

Judge denies lower bail for ex-BART cop

April 30, 2009
The Associated Press

SAN FRANCISCO—A judge has refused to reduce the bail for a former transit police officer charged with murdering an unarmed man on New Year's Day. Alameda County Superior Court Judge Larry Goodman last week denied Johannes Mehserle's motion to have his bail lowered from $3 million to $100,000. Attorney Michael Rains argued that bail should be reduced because a previous judge "abused his discretion because he was influenced by the public's outrage over this case."

Rains said Thursday that he will likely appeal Goodman's decision.

Despite the ruling, Mehserle remains free after posting the $3 million bail. The former officer has pleaded not guilty to the charges, saying he meant to fire his Taser instead of his gun when he killed Oscar Grant on an Oakland train platform.

Death by Police Taser

March 11, 2009
by Revolution ( revolution.sfbureau [at] gmail.com )
IndyMedia

Millions of people were stunned and outraged by the videos that showed Oakland BART (Bay Area Rapid Transit) cop Johannes Mehserle draw his gun and kill Oscar Grant. Mehserle quit his job 7 days after the killing to avoid giving any statement about what happened or why he did it. Now Mehserle’s lawyers are working hard to offer a plausible explanation to exonerate the cop for the killing. They say that contrary to what people might think, Mehserle had “no criminal intent” when he fired his gun into Grant’s back at point-blank range. They back up this outrageous statement by explaining their theory that this cop “may have mistakenly deployed his pistol rather than his taser” and did not mean to kill Oscar. He just meant to tase him.
Meanwhile, a little more than a month after Oscar Grant was killed in Oakland, another young man was killed by police taser, 40 miles away in San Jose. His name was Richard Lua, and police killed him in front of his own garage, during a “routine patrol.” Police murder has become so “routine” that many times an explanation is offered only as an afterthought. Like Oscar Grant, Richard Lua leaves behind a young daughter and a grieving, outraged family.

Taser use is so routine in San Jose that Lua’s is the 6th death by police taser there just since 2005. Death by police taser is on the increase, and in California these deaths are not even counted as part of the state attorney general’s official tally of “police involved homicides,” which numbers over 100 every year. Neither are deaths from police chokeholds or from asphyxiation through being maced or hog-tied. All of these weapons and methods are part of an ugly panorama of police brutality that is entrenched and endemic and an indispensable part of the function of police in this society.

Amnesty International reported in 2004 that the organization was “concerned by the growing number of fatalities involving police tasers. Since 2001, more than 70 people are reported to have died in the USA and Canada after being struck by M26 or X26 tasers, with the numbers rising each year.” In 2005, the ACLU issued a report saying that “Since 1999, at least 148 people in the United States and Canada have died after encounters with police who shocked them with Tasers.” A website put up by family and friends of Richard Bagnell, a Canadian man who died after being tasered, now lists 397 people killed in North America. And at least 8 people have been killed by tasers in only the first two months of 2009.

Ev’ry time I hear the crack of the whip
My blood runs cold
I remember on the slave ship
How they brutalized our very souls

—Bob Marley, “Slave Driver”

Tasers have replaced the slave driver’s whip and the prison guard’s cattle prod as one of the high-tech control device used by more than 12,000 police departments and in prisons worldwide.

Taser International claims that its products are a less lethal weapon than guns or even batons, and that tasers are "changing the world and saving lives everyday." But the new tasers deliver a staggering 50,000 volts of electricity. These electro-shock weapons can be used in “stun mode” or with darts. When in “dart” mode, the shocks cause total “momentary neuro-muscular incapacitation” (source: University of California, San Francisco press release), while the stun mode inflicts intense localized pain. Tasers are used extensively around the world, including in Iraq, most notoriously by the same U.S. military brigade accused of "sadistic, blatant and wanton" abuse in Abu Ghraib.

Along with guns, sticks, pepper spray and the choke-hold, tasers are part of an arsenal of weapons employed against the people to inflict terror and pain and even death. And, unlike firing his gun, in most places a cop needs only the slightest excuse to justify using his taser.

In the U.S., far from being used only on supposedly “violent suspects” the Amnesty International study says that tasers are often used against "passive resisters"—people who refuse to comply with police commands but do not interfere with an officer and pose no physical threat. Police use tasers on people who “mouth off,” or people who are distressed or mentally ill and who are not suspected of a crime. Amnesty reported that “at least 1,000 U.S. jails and prisons have adopted the new generation M26 or X26 Tasers, where they are deployed in both dart projectile and stun mode.” Amnesty documents cases of pregnant women having miscarriages after being tasered.

Children

In 2006 millions of people reacted with shock at a brutal taser attack on a student in the UCLA library, but a less-known outrage is that there are hundreds of reported cases where cops have used taser guns on children. In Arizona a 13 year old was tased for throwing a book in a public library. In another Arizona case, a 9-year-old runaway girl who was sitting in the back of a police car, handcuffed, was tased because she was "screaming, kicking and flailing, and would not listen." Would not listen? The youngest reported victim of police tasing was in Miami, a boy who was only 6 years old. He was in the vice principal’s office where he had broken a picture frame, and was waving a piece of glass around. His outraged mother told CNN, "If there's three officers, it's nothing to tell a 6‑year‑old holding a glass, if you feel threatened, 'Hey, here's a piece of candy, hey, here's a toy. Let the glass go."

Taser Confusion

While some media have jumped on the taser confusion bandwagon and trotted out various “experts” to talk about how stressed out Mehserle must have been to mistake a taser for his gun, others have ridiculed this idea as preposterous and marshalled the cold facts. The X26 taser issued to BART cops is a plastic device that weighs only 7 ounces. The Sig Sauer that Mehserle shot Grant with is made of metal, weighing 30 ounces unloaded—more than 4 times as much as the taser. The taser was holstered on the opposite side as Mehserle’s gun, and looks and feels completely different.

But another question needs to be asked. Before he was shot, Oscar Grant was detained, lying on his stomach, with his hands behind his back and with an officer’s foot on his neck. What excuse was there to even tase the 22 year old? Perhaps Officer Mehserle only meant to torture him?

The ACLU and Amnesty International are not alone in condemning tasers. In 2007 the U.N. Committee Against Torture said the use of tasers could constitute a form of torture. This cruel punishment, a brutality carried out by police for the slightest offense, without charges or trial, is increasingly a part of American injustice and part of an international epidemic of state-sponsored violence and murder.

The outcome of the murder trial of Mehserle has great significance. If the cop happens to “mistake” his gun for a taser and kills that person, and if this cop is then judged in court to be devoid of “criminal intent,” then what is to stop any cop from killing anyone at any time for any reason? If intending to use an electro-shock weapon on a person lying face down with his hands behind his back can be categorized as following correct police procedure, then it will exonerate police brutality. What kind of legal precedent will that set and how much of this can people tolerate? Enough is enough.

Sources:

“UNITED STATES OF AMERICA: Excessive and lethal force? Amnesty International’s concerns about deaths and ill-treatment involving police use of tasers,” Amnesty International report, November 2004

“UN Compares Tasers to Torture,” CBS News, November 26, 2007

“Unregulated Use of Taser Stun Guns Threatens Lives, ACLU of Northern California Study Finds,” ACLU press release, 10/6/05

San Jose Mercury, 2/2/09, 2/3/09

“Did BART cop who killed Oscar Grant mistake gun for Taser? Plan 9 from BART police,” by Junya, San Francisco Bay View, January 6, 2009

“398+ Dead After Taser Use,” April 6, 2008, http://truthnottasers.blogspot.com/2008/04/what‑follows‑are‑names‑where‑known.html

http://revcom.us

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.

BART cop: 'I'm going to Tase him'

January 30, 2009
Demian Bulwa, San Francisco Chronicle

Former BART police Officer Johannes Mehserle declared that he was going to fire his Taser stun gun, not his pistol, just before he shot an unarmed man he was trying to arrest early New Year's Day at an Oakland station, his attorney says.

Attorney Michael Rains wrote in a court document that a second BART officer, Tony Pirone, reported hearing Mehserle say just before shooting Oscar Grant, "I'm going to tase him, I'm going to tase him."

Afterward, Mehserle said he thought Grant had been reaching for a gun, Rains wrote.

Rains gave the account in a motion asking a judge to release Mehserle on bail while the former officer defends himself against murder charges. A hearing is scheduled for this afternoon before Judge Morris Jacobson in Alameda County Superior Court.

The legal filing by Rains does not specifically give Mehserle's explanation for the shooting at Fruitvale Station, which happened as he and other officers were trying to arrest Grant for resisting an officer. Instead, it quotes several other witnesses and refers to evidence from the scene.

Still, it marks the first time that Mehserle's attorneys have indicated what his defense could be at a trial.

Rains wrote that "the bulk of the discovery, including witness and officer statements, seem to indicate that this young officer, who carried a Taser for only a few shifts prior to this event, may have mistakenly deployed his service pistol rather than his Taser, thus negating any criminal intent."

The prosecutor in the case, John Creighton, questioned whether that account made sense.

Creighton noted that the defense attorney quotes Pirone as saying after the shooting that Mehserle approached him and said, "Tony, I thought he was going for a gun."

"If he intended to pull his Taser and pulled his service weapon by mistake, why would he say to another officer after the fact, 'I thought he was going for a gun'?" Creighton said. "Why wouldn't he say, "Oh my God, Tony, I meant to pull my Taser,' or something to that effect?"

Rains' 14-page bail motion asserts that Mehserle is not a danger to the community or a flight risk. But John Burris, an attorney representing Grant's family, said Mehserle should not be released.

He said the evidence in the case - including camera footage of the shooting - suggested that the officer meant to fire his gun, not his Taser.

"That's a defense that's not surprising, as much as it's been talked about," Burris said. "I would only say that, No. 1, the Taser shouldn't have been used, either. There wasn't any basis for that. And No. 2, the facts on the videotape don't support that as an argument. But that has to be presented at trial."

Burris said, "The evidence is consistent with murder."

Mehserle, 27, and other BART officers had detained the 22-year-old Grant and four of his friends just after 2 a.m. at the Fruitvale Station while investigating reports of a fight onboard a Dublin-Pleasanton train. Grant was shot just after Pirone told him he was under arrest for resisting an officer.

Grant put up a brief struggle, but was lying face-down, with both hands behind his back, when Mehserle shot him, Oakland police investigators said in a court affidavit.

District Attorney Tom Orloff said his office charged Mehserle with murder because the former officer had committed an intentional, unlawful act when he shot Grant.

Mehserle declined to talk to criminal investigators. He quit the BART police force Jan. 7 after two years on the job rather than be interviewed by internal affairs inspectors who could have brought a disciplinary case against him.

BART said it bought 64 Taser X26 stun guns last year for $62,000, then placed them into service on Sept. 9 after officers did six hours of training. Mehserle shot Grant with his Sig Sauer P226 semiautomatic pistol, BART said.

The bail motion gives an account of the moments before the shooting, stating that Grant overheard Pirone tell Mehserle that Grant was under arrest. As a result, Rains wrote, Grant "attempted to stand up, but was forced to the ground face first."

Mehserle and Pirone ordered Grant to put his hands behind his back to be handcuffed, but Grant resisted, Rains wrote.

Rains quoted Pirone as saying that he tried to help Mehserle by holding Grant's head and shoulders down.

According to the motion, "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 tase him, I'm going to tase him. I can't get his arms. He won't give me his arms. His hands are going for his waistband,' " Rains wrote.

"Then Mehserle popped up and said, 'Tony, Tony, get away, back up, back up.' "

Rains wrote that several witnesses described Mehserle as looking stunned after he shot Grant. One said Mehserle "had an expression on his face like, 'Holy s-, what happened or what did I do, with his hands around his head,' " the attorney wrote.

He added that the witness "believed the officer also had an expression as, 'Why did my gun go off?' "

The bail motion also provides some background information on Mehserle. It says he was born in Germany but has lived in the Bay Area since age 4; that he grew interested in police work through a friend who was an officer; and that he plans to marry his girlfriend, who gave birth to the couple's first child Jan. 2.

Policing the police

Published On Tuesday, January 20, 2009

THE HARVARD CRIMSON

Oscar Grant's murder raises questions about cop culture

As most of the nation celebrated a hallmark of racial reconciliation on Tuesday, Oakland stood apart. For the past two weeks, the California city has been engulfed by racially tinged protests over the brutal New Years Day killing of 22-year old Oscar Grant III by transit officer Johannes Mehserle. Grant and a few friends were returning home from New Years Eve revelry, when they were stopped by Bay Area Rapid Transit Police for rowdy behavior. As documented by several amateur cell phone videos, Grant, who was unarmed, appeared to act cooperatively. Mehserle, however, threw him facedown onto the ground, and straddled his back while another officer squatted near Grant’s neck. Mehserle then drew his gun and fired into Grant’s back. The officer has resigned, but now faces murder charges to which he has pleaded not guilty.

Certainly, this specific incident should be condemned on all fronts. Grant’s shooting was unwarranted, and so were the transit officers’ hyper aggressive and disrespectful treatment of Grant and his cohorts throughout the episode. The fact that Grant was black and Mehserle is white has aggravated the charges of misconduct.

The shooting, however, should prompt police and law enforcement generally to reflect upon the culture of police and civilian relationships. Given the pervasiveness of police brutality, it is clear that something has gone awry in police culture. While we cannot speak to the effectiveness or quality of training that cops receive, these processes stand to be reevaluated in light of this incident. Citizens must be able to trust that the police will protect them while respecting their personal liberties. Stricter limitations and guidelines must be set in order to ensure that the police mistreat no one.

According to Justice Department statistics, cases in which law enforcement authorities have used excessive force or tactics to violate victim’s civil rights have increased 25 percent between fiscal years 2001 and 2007 —and the overwhelming majority of police brutality cases referred by investigators are never formally prosecuted. The Oakland incident has engendered such protest because it confirms, with a live videotape, the suspicions many civilians have about the integrity of their police. This issue is salient around the country. Last year, New York City police officers frisked more than 500,000 people, although they arrested only 4 percent of them. Of those frisked, 80 percent were black or Latino.

The imperative for restraint goes further than the obvious need for cops to take care with loaded guns. Brutality is not defined by a weapon but by a mentality; it can occur with a baton, Taser or even bare fists. The mistake is not in the specific physical harm done by the police, but by the general propensity to abuse these positions of power.

Police departments might need to make unprecedented changes in order to ensure the integrity of police protection. This may mean reducing the number of armed cops on the street, or reevaluating exactly which cops truly need guns to facilitate their duties. For example, in the Bay Area, transit police are employed to preserve the safety of transit riders. In the majority of cases, a gun might not be needed to fulfill this objective, as shown by this recent incident, guns may counter that purpose. Departments could, alternatively, become more stringent about the police’s freedom to use lethal force. Drawing a gun should be a very last resort—a tactic used when an officer’s life is at stake and shooting would be the only sufficient defense.

Oscar Grant is not the first to die from police brutality, but his murder has made headlines as one of the best documented. We hope this attention can be channeled into constructive change.

Murder charge in transit death - Oakland officer who may have used his handgun rather than taser by mistake arrested in Nevada

January 15, 2009
Terry Collins, ASSOCIATED PRESS

OAKLAND, Calif.–A former transit officer has been charged with murder in the shooting death of an unarmed black man that set off violent protests, officials said yesterday.

Johannes Mehserle, 27, was arrested Tuesday in Nevada and was promptly returned to California.

Witnesses said Mehserle, who is white, fired a shot into the back of 22-year-old Oscar Grant while the man was lying face down on a train platform in Oakland.

In videos of the incident widely viewed on the Internet, Mehserle appeared stunned after the shooting, holding his head in his hands. His body language and the apparent senselessness of the shooting has fuelled speculation the officer meant to subdue Grant with his Taser but drew his 40-calibre handgun, roughly the same shape but heavier, by mistake.

Grant and others had been pulled off a train after reports of fighting after midnight on New Year's Eve.

The shooting inflamed long-running local tensions between law enforcement authorities and the black community. People have taken to the streets calling for prosecution of Mehserle, with one rally last week spiralling into more than 100 arrests and damage to dozens of businesses.

Mehserle surrendered without incident Tuesday at a family friend's house on Lake Tahoe, officers said.

Arresting officer Paul Howell said Mehserle went to Nevada temporarily for his own safety. "He just wanted to get out of the Bay Area. ... He wasn't trying to run.''

Mehserle refused to talk to transit investigators before resigning last week. "I want to know why he did it," said board member Carole Ward Allen yesterday. "We've heard from everybody else but him."

Officer in BART shooting quits force, avoids internal affairs quizzing

This is a tragic story. Officials are investigating the possibility that the involved police officer may have intended to use his newly-acquired taser, but instead ended up grabbing his revolver and shooting a young, unarmed and already restrained man, Oscar Grant, to death. Today, as Oscar Grant's family gathered together for his funeral, the officer sent a resignation letter instead of showing up to answer investigators' questions. According to the following report, "Mehserle's resignation means he does not have to talk to BART investigators."

There oughta be a law ...

January 7, 2009
Demian Bulwa, Henry K. Lee, San Francisco Chronicle

The BART police officer who shot an unarmed man to death on the platform of the Fruitvale Station in Oakland early New Year's Day resigned from the force today, avoiding an interview with police internal affairs investigators about the incident.

Officer Johannes Mehserle, 27, was supposed to have been questioned today by internal affairs about why he shot Oscar Grant, 22, of Hayward as Grant lay face down on the station platform, BART spokesman Linton Johnson said.

However, Mehserle did not show up for the interview. Instead, his lawyer and union representative appeared and handed over a short resignation letter, Johnson said.

Mehserle's resignation is effective immediately. BART said its investigation of the shooting would continue, as will a separate investigation by the Alameda County district attorney's office.

BART had come under fire from John Burris, the attorney for Grant's family, for not having forced Mehserle to talk with internal affairs investigators since the shooting. Unlike in criminal investigations, in which a suspect has the right not to talk to police, officers involved in on-the-job shootings must talk to inspectors as part of administrative inquiries or risk being fired.

Mehserle's resignation means he does not have to talk to BART investigators.

"I'm not surprised," Burris said of Mehserle's departure. "It should have happened long ago."

Anger over Grant's death was evident this afternoon at Fruitvale Station, where about 200 protesters gathered just after 3 p.m. outside the entrance to the station. The demonstrators were not obstructing passengers.

Johnson said today that Mehserle's attorney, David Mastagni, had postponed a meeting between the officer and internal affairs investigators that had been set for Tuesday and wanted to reschedule it for next week. Instead, BART told Mehserle to show up this morning, Johnson said.

Mehserle resigned the same day that Grant's family gathered in Hayward for his funeral. Burris has filed a $25 million claim against BART on behalf of Grant's mother and 4-year-old daughter, the likely precursor to a lawsuit.

In the claim, Burris said Mehserle "mercilessly fired his weapon" at Grant after the supermarket butcher and several friends were pulled off a train at the Fruitvale Station following a reported dispute with another group of passengers.

Grant was unarmed when he was shot in the back; the bullet went through him and ricocheted off the platform, then hit him again in the torso.

BART, Mehserle and the officer's lawyer have all been silent about why Mehserle opened fire, but BART has said one possibility it is investigating is that Mehserle mistook his revolver for a Taser stun gun.

Mehserle was a BART police officer for two years. He and other BART officers were equipped with stun guns only within the past few weeks.

Grant's death has attracted attention well beyond the Bay Area. An official of the human rights group Amnesty International USA, Dalia Hashad, said today before Mehserle resigned that BART's delay in interviewing the officer "hints at the callousness to the worth of human life to a public that is all too familiar with racial profiling, police brutality and cover-ups."

Was BART cop reaching for taser?

January 7, 2009
By Sean Maher, Oakland Tribune

OAKLAND — The BART police officer who shot and killed an unarmed man early New Year's Day in Oakland could have done it intentionally or by dire mistake, and a key factor is whether the officer was armed with a Taser that day, an attorney representing the dead man's family said Tuesday.

The officer, identified as Johannes Mehserle in a wrongful death claim, is seen on several recently released cell phone videos of the Fruitvale station incident standing over Oscar Grant III, at which point the officer appears to draw his gun from its holster on his right hip and point it at Grant, who is facedown on the station floor. Within moments a gunshot is heard and, in a video released Monday night, the officer looks up and down twice, then briefly touches his face with his hand.

Many online viewers of the video have posted comments speculating the officer may have thought he was reaching for a Taser when he grabbed his gun, suggesting he meant only to stun Grant, a 22-year-old Hayward man.

"In the case I'm involved in, it doesn't matter if he was reaching for a Taser or not," said civil rights attorney John Burris, who is representing Grant's family in a $25 million wrongful death claim filed Tuesday against BART and Mehserle. "At the end of the day, it's what he did that counts."

Burris has publicly asked Alameda County District Attorney Tom Orloff to consider filing criminal charges against Mehserle, however, and said the Taser question could have bearing on that issue.

"If he thought he was reaching for a Taser and pulled a gun, that's negligent. That would be involuntary manslaughter, a negligent homicide," Burris said. "If he didn't have any Taser on him ... that's an intentional killing: second-degree murder."

Burris and BART police Chief Gary Gee have said the facts remain unclear whether Mehserle had been carrying a Taser that day.

BART police began training to use Tasers about three months ago, BART spokesman Linton Johnson said.

The department does not have enough of the stun guns to equip every officer with one, Gee said. When officers do carry Tasers, he added, they are kept on a separate part of their belts from their service pistols.

"They keep those Tasers on the opposite side of their gun hand, or in the middle, pointed the opposite direction so you have to turn your hand to get it," Burris said. "No movement (on the videos) suggests (the officer) was reaching for anything other than the location where the gun was."

Burris said he has not requested any information from BART police but plans to submit a request in the next day or two.

Standard-issue pistols for BART police are Sig-Sauer .40-caliber semi-automatic pistols, Gee said, and the department uses the X26 model Taser.

A loaded Sig-Sauer weighs nearly three times as much as the X26 Taser and is taller by about 2 inches, according to specifications on a gun dealer and official Taser Web sites.

When five officers responded to reports of a fight on a BART train by stopping the train at the Fruitvale station about 2 a.m. Jan. 1, they ordered several passengers to get off that train and detained some of them, officials said. Grant was among those passengers, though officials have yet to confirm whether he was suspected of being involved in the fight.

BART officials have not confirmed the exact time of the shooting. The Oakland Fire Department responded to a call for medical help at 2:13 a.m., and Grant was still breathing at 2:22 a.m. when an American Medical Response ambulance arrived to take him to Highland Hospital, where he died.

BART police and the district attorney's office are continuing to investigate the shooting. Anyone with information is asked to call BART investigators at 877-679-7000, ext. 7040, or the district attorney's office at 510-272-6222.

Organizers have written on Facebook that a protest of the shooting is planned to begin at 3 p.m. today at the Fruitvale station, 3401 East 12th St.

Bay Area Rapid Transit (BART) shooting captured on video

"A source familiar with the investigation has said BART is looking at the possibility that Mehserle had intended to fire a Taser at Grant but drew his service weapon instead ... Several cases have been documented of police officers in the United States accidentally shooting people with handguns when they intended to use Tasers ..."

January 7, 2009
Matthew B. Stannard,Demian Bulwa, San Francisco Chronicle

The New Year's Day shooting death of Oscar Grant on an Oakland BART platform has been electronically re-enacted hundreds of thousands of times as videos of the incident are broadcast on television and spread over the Internet.

The videos now could play a critical role in the investigation into the shooting of Grant, 22, by BART police Officer Johannes Mehserle, 27.

Three videos made public so far show Grant's final moments from multiple angles in a way that could help investigators, attorneys and use-of-force experts determine whether the shooting was accidental, intentional or inexplicable.

The videos - taken by onlookers - have been downloaded more than 450,000 times from KTVU-TV's Web site, said William Murray, the site's managing editor. That's tantamount to two months' worth of downloads in a few days, he said. An annotated version of one video uploaded to YouTube on Sunday was averaging more than 1,000 views an hour.

"It's taken on a life of its own," said Murray. "It's one of those phenomenons of the Internet world."

BART spokesman Linton Johnson said the agency was troubled by the way the video footage had become a media sensation.

"It does a disservice to the integrity of the investigation because people form opinions, and then they can't give independent recollections of what they actually saw because they are tainted by the videos," Johnson said. "It's unfair to (Grant's) family, it's unfair to the police officer, and it's unfair to the public. But that's the world in which we live, and you have to adjust."

The Chronicle asked several use-of-force experts, many with years of experience training police officers and military personnel and several with decades of law enforcement experience, to analyze the videos - an endeavor several experts warned can be informative but also inconclusive.

Shooting in context

The videos begin with a chaotic scene: BART officers questioning and restraining several people as a crowd of onlookers - many wielding cameras - shout in protest from a nearby train. Several videos capture, from different angles, Mehserle and another officer speaking with and eventually moving to restrain Grant.

The trainers said 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," said Frank Borelli, a use-of-force expert in Maryland. "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."

But other experts saw the moment differently.

"It's clear it was not a use-of-deadly-force situation," said Gregory D. Lee, a retired supervisory special agent with the Drug Enforcement Administration who has testified in federal use-of-force cases. "You've got more than enough manpower there to handle these guys."

Bruce Siddle, founder of Illinois-based PPCT Management Systems, a use-of-force training and research firm, agreed with Lee's interpretation. "If you look at the officer's body language, it's clear in my mind he didn't believe he was in a deadly force situation," he said. "He's relaxed."

Seconds before the shooting, Mehserle and another officer apparently placed Grant on his stomach to be searched or handcuffed. "Two officers appear to be struggling with Grant prior to the shot being fired," Borelli said. "This would indicate that, at best, Grant was being uncooperative, or at worst aggressively resisting arrest. I have to emphasize that no one except those two officers knows what happened in that struggle and how the officers perceived it."

Escalation of force

Several use-of-force trainers said it appeared that the struggle led the officer to change tactics. "In my mind, what happened here was this guy was resisting," Siddle said. "And at some point there was a decision made ... we can't control him, so we're going to use the Taser."

BART officials say some officers carry a Taser X26, a top-of-the-line model used by several other Bay Area police agencies. A BART spokesman said the Police Department started training to use the devices three or four months ago, but a source within BART said officers had only been using them on regular patrols since mid-December.

Agency police have not said whether Mehserle had a Taser the night of the shooting, although several of the experts said the videos appeared to show that he had the device on his belt.

The experts were split on whether Mehserle should have been drawing a weapon of any kind, lethal or otherwise. "Why would you draw a firearm in that situation to begin with?" said George Kirkham, a Florida criminologist and consultant. "This doesn't even seem like a Taser situation."

Chaos on platform

Other experts said it is possible that given the chaos on the platform and the apparent struggle, Mehserle might have concluded that using a Taser to control Grant was justified.

A source familiar with the investigation has said BART is looking at the possibility that Mehserle had intended to fire a Taser at Grant but drew his service weapon instead.

Several cases have been documented of police officers in the United States accidentally shooting people with handguns when they intended to use Tasers, including a 2002 case in which a Madera (Fresno County) police officer shot and killed a 24-year-old man. The officer was not charged criminally; a civil case brought by the dead man's family is still pending.

Similar confusion could have led to Grant's death, said several trainers, who noted that Mehserle and the other officers appeared in the video to be startled by the shooting.

Siddle said changes in how the brain processes information in a stressful situation might have led the officer to mistake the butt of his service weapon for the Taser. But other experts found the idea that the shooting resulted from such a mix-up hard to believe.

"That's as reflexive as you getting in on the driver's side of the car (instead of) the passenger side if you want to drive it," Kirkham said. "There's no remote similarity to a conventional firearm. ... The Taser is just like apples and oranges."

It is more likely, Kirkham said, that the officer and his attorney will argue that the officer saw or felt something on Grant - a cell phone, a belt buckle - that he believed was a weapon and that Grant was about to use it.

"That is the only possible explanation I can come up with," he said. "Beyond that, you've got me."

BART officials have said Grant was unarmed.

Another expert, Roy Bedard, who has trained police officers around the world, advanced a different theory after his first viewing of the video: that the shooting was a pure accident, a trigger pulled because of a loss of balance or a loud noise.

But in an indication of how the videos might move the investigation, Bedard reached a different conclusion after viewing the shooting from a different angle.

"Looking at it, I hate to say this, it looks like an execution to me," he said. "It really looks bad for the officer. ... We have to get inside his head and figure out what he was thinking when he fired the shot."