Oscar Grant

The fatal shooting of Oscar Grant III occurred in the early morning hours of January 1, 2009.[1] On January 13, Alameda County, California prosecutors charged Bay Area Rapid Transit Police officer Johannes Mehserle with murder for the shooting. Mehserle is the first California police officer in decades to face murder charges for an on-duty incident.[1] Police had detained Grant and several others on the platform at the Fruitvale BART Station in Oakland, California after a violent fight among several train passengers.[2] While several officers secured Grant, who was unarmed, Mehserle drew his gun and shot the prostrate Grant once in the back.[2][3] Mehserle, who resigned his position and has yet to give a statement to investigators or the media, has pled not guilty.[1]

Recordings of the shooting with video cameras and cellphones by train passengers were later broadcast by media outlets and watched hundreds of thousands of times on the web in the days following the shooting.[4] The shooting, and wide dissemination of the eyewitness videos,[5] led to both peaceful and violent protests.

Some experts and others in the news media have speculated that Mehserle might have mistakenly thought he was firing his Taser.[6] Other activists and experts have labeled the shooting an “execution.”[6]

Oakland civil rights attorney John Burris filed a US$25 million wrongful death claim against BART on behalf of Grant’s family

Oscar Grant had been celebrating New Year’s Eve with his friends on the Embarcadero on San Francisco‘s waterfront and was returning to the East Bay on the train.[9] BART offered extended service for the busy New Year’s Eve holiday. At approximately 2:00 AM PST, BART Police officers responded to reports of an altercation between two groups of passengers on an incoming train from the West Oakland BART Station.[10]

Five BART Police officers found a chaotic situation when they arrived at the Fruitvale station, with a brawl continuing on the platform even after they arrived.[11] BART Police officers removed Oscar Grant and several other men suspected of fighting from the train and detained them on the train platform. Police have not said whether Grant had been involved in the fight. Grant’s family alleges in its civil claim against BART that a “Latino officer” threw Grant against a wall and kneed him in the face.[12] In at least two of the videos, Grant is depicted raising his hands, and speaking with police while seated against the platform wall.[10]

Oscar Grant III

While dozens of people are shouting and cursing at officers from the stopped train, Mehserle and another BART Police officer positioned Grant face-down onto the concrete platform. One officer knelt on Grant’s back.[10] A struggle ensued, and seconds later Mehserle began tugging at his handgun on his right hip.[10] Mehserle then stood up, unholstered his gun and fired a shot into Grant’s back.[10] Immediately after the shooting, Mehserle appeared surprised and raised his hands to his face.[3]

The .40 caliber[3] bullet from Mehserle’s semi-automatic handgun entered Grant’s back, exited through his front side and ricocheted off the concrete floor of the platform, finally puncturing Grant’s lung.[10][13] Immediately after the shooting, according to one witness, Grant yelled, “You shot me! I got a four-year-old daughter!” [14] Grant died seven hours later at Highland Hospital[11] from his bullet wounds.

BART spokesman Jim Allison said that Grant was not restrained when he was shot.[2] However, Grant’s family’s attorney claims that Grant’s hands were restrained by Officer Mehserle immediately prior to the shooting.[15] Court filings by the district attorney’s office say that Grant’s hands were behind his back and that he was “restrained and unarmed.”[1] The family’s claim against BART states that Grant was handcuffed after he was shot.[12]

An anonymous source claimed that BART police had been on edge before Grant’s shooting because two guns had been recovered in separate incidents along the rail line in the hour before the shooting.[16]

[edit] Oscar Grant III

Oscar Juliuss Grant III,[11] who was 22 at the time of the shooting, was the father of a 4-year-old daughter and lived in Hayward. Grant worked as a butcher at Farmer Joe’s Marketplace in Oakland’s Dimond District. Previously he had worked at Kentucky Fried Chicken outlets in Berkeley, San Leandro and Hayward.[7] He attended San Lorenzo High School and Mount Eden High School in Hayward until the 10th grade and eventually earned his GED.[7]

KPIX-TV reported Grant had a criminal record.[17][7] Grant, who had also been convicted of drug dealing, had been sentenced to 16 months in state prison in 2007 after he fled from a traffic stop while armed with a loaded pistol.[7] Grant was most recently released from prison September 23, corrections officials said. An attorney representing Grant’s family said that Grant had been doing well in recent months and that his record was irrelevant to the BART shooting because the police officer was not aware of it when he pulled the trigger.[7]

Toxicology reports from Grant’s autopsy will not be complete until March.[18]

Grant’s funeral was held at the Palma Ceia Baptist Church in Hayward on January 7, 2009.[19] He is survived by his mother, sister, daughter, and a girlfriend, all of whom have filed a wrongful death claim against Bay Area Rapid Transit.

[edit] Johannes Mehserle

Johannes Sebastian Mehserle, 27 at the time of the shooting, graduated in the class of 2000 from New Technology High School in Napa, California. He graduated from the Napa Valley College Police Academy in 2006.[20] Until the shooting, Mehserle lived in Lafayette, California with his girlfriend, who gave birth to their first child on the next day after the incident, January 2, 2009.[20][21]

At the time of the shooting, he had served the Bay Area Rapid Transit Police for about two years.[20] Prior to the shooting, Mehserle had never been the subject of a sustained complaint from the agency’s internal affairs department.[22] Since the shooting, however, 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.[23] The accuser, who has served time for theft and burglary, was taken to hospital for chest and facial injuries and was booked into jail for resisting arrest. He has not filed a formal complaint against BART.[23]

Mehserle submitted to drug and alcohol testing per BART’s standard operating procedure.[10] The results of the toxicology testing have not yet been released. He quickly retained a criminal defense attorney and exercised his right to refuse to speak to the authorities under the Public Safety Officers Procedural Bill of Rights Act[24] and his Fifth Amendment rights against self-incrimination.[21][25]

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.[20][26]

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.[20][21]

[edit] Criminal prosecution

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 for murder. Mehserle was arrested January 13 at a friend’s home in the Zephyr Cove, Nevada area near Lake Tahoe, where he had gone to avoid death threats; Orloff stated that Mehserle was not suspected of trying to flee.[1] Mehserle waived extradition, and is in protective custody in the Santa Rita jail in Dublin, California.[1] Mehserle is being held without bail, which is common in Alameda County murder cases.[27] A bail hearing is scheduled for January 30.[28]

Through his attorney, Christopher Miller, Mehserle pled not guilty at his arraignment January 15.[1] “As the case moves forward through the justice system and all of the circumstances of that chaotic night become clear, I fully expect Mr. Mehserle will be cleared of the charges against him,” Miller told the press, though Miller gave no explanation for the shooting.[1]

Alameda Country District Attorney Tom Orloff refused to speculate whether Mehserle would be charged with first or second degree murder, saying “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.”[29][30] Orloff noted Mehserle’s refusal to explain himself as a reason for charging him with murder, rather than manslaughter.[1] Orloff said he would fight any motion to change venue for the trial.[1]

Mehserle has retained Pleasant Hill criminal defense attorney Michael Rains, who previously successfully represented one of the Oakland Riders.[28] Mehserle’s defense is paid for by a statewide fund for police officers.[28]

[edit] Analysis of case by legal and police experts

Although California police kill more than 100 people a year, criminal charges are rare, and this is the first murder prosecution for an on-duty killing in California in decades.[1]

Attorney John Burris pushed the Alameda County District Attorney Tom Orloff to press second-degree murder or involuntary manslaughter charges.[10]

Police experts interviewed by the San Francisco Chronicle had mixed opinions on whether there was any justification for the use of force, with one flatly saying “It’s clear it was not a use-of-deadly-force situation.”[31]

At a January 1 news conference, BART Patrol Cmdr. Travis Gibson said officers are trained to pull their guns when a BART patron or an officer is in danger.[2]

Several experts who observed video evidence suggested Mehserle might have confused his gun for his Taser[3][32] causing him to mistakenly believe he was tasering Grant;[31] Bart officials confirm that Mehserle was wearing a taser at the time “in the cross position”. He would have had to reach across his body to reach it.[33] Some video evidence appears to show that Mehserle had his Taser drawn prior to the Grant shooting.[25] If Mehserle thought he was firing his taser, the killing would be accidental and not subject to a murder prosecution.[34][6] While there have been previous cases where police officers have confused guns with tasers, modern tasers weigh half as much as handguns; Loyola Law School professor Laurie Levenson says “It’s hard to believe that it’s a reasonable mistake for an officer who’s had any training at all.”[6]

After viewing the shooting from multiple angles, police use-of-force expert Roy Bedard commented: “I hate to say this, it looks like an execution to me” and “It really looks bad for the officer.”[31] But 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.”[6]

Attorney Harland Braun, who won acquittal for an officer in the Rodney King beating, noted that video evidence can be deceptive, and doesn’t show what happened before or after an incident.[6]

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.[35]

[edit] Video evidence

The incident 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. These videos were made available through television news and internet video.[10][36][37][38][39]

Attorney John Burris “said BART had confiscated numerous cell phone images from others” that he believes contains additional evidence of the killing.[40] In her video interview with station KTVU, eyewitness Karina Vargas stated that the female officer on the scene approached her, the doors of the BART train shut just then, and the officer “banged” on the door “telling me to give her my camera.” Vargas refused to surrender it.[41]

Orloff, the district attorney, said that several passenger videos that have not been made public were “very helpful” in the investigation.[1]

On January 2, KTVU aired another video by an anonymous passenger who submitted a cell phone video of the actual shooting, and since, there have been higher resolution, clearer videos surfacing.[citation needed]

BART officials initially claimed that the Fruitvale platform cameras could not record.[11] Subsequently BART spokesperson Linton Johnson described the surveillance footage as “benign” and said the platform cameras had recorded some of the incident, but did not include the actual shooting,[11][42] BART’s video remains unreleased.[citation needed]

[edit] 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.[31] One local television station video posted to its website was downloaded more than 500,000 times in four days and [4] one independent media video posted to the internet averaged more than 1,000 views per hour.[31] Widespread dissemination of the direct evidence of the shooting led to public outrage and protests and fueled riots.[5]

The case—and the overall intense community response to it—highlights the impact technology can have on news events.[4]

[edit] BART’s response

The District placed Mehserle on paid administrative leave following the shooting, but Mehserle resigned the Wednesday after the shooting.

On January 8, 2009, BART’s elected directors offered apologies to the victim’s family.[43] Since then, BART has held multiple public meetings to ease tensions.[44] BART board member Lynette Sweet said that “BART has not handled this [situation] correctly,”[43] and called for the BART police chief and general manager to step down, though doubted a majority of board members agreed.[45]

On January 12, BART created an oversight committee to monitor police-related incidents.[45]

BART Police Chief Gary Gee forwarded BART’s investigation results to the district attorney the morning of January 12.[45] The investigation, which interviewed seven police and 33 other witnesses,[46] came to no conclusion and made no recommendations.[45]

[edit] Public reaction

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

Alice Huffman, state president of the NAACP, said there was little doubt the shooting was criminal.[34] Many reporters and community organizers have stated that racial issues played a role both in the killing and in the community response.[47] Grant’s family claims that officers used racial slurs during the arrest.[48] Chief Gee remarked that the investigation had found no “nexus to race that provoked this to happen.”[1]

There was a broad public perception that BART Police were not conducting an effective investigation.[citation needed] The shooting stirred outrage among political leaders and legal observers; Alameda County Supervisor Keith Carson (Oakland),[6] Oakland City Councilmember Desley Brooks (Eastmont-Seminary), and Berkeley Copwatch labeled the shooting an execution.[6][49] 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.”[50][51]

[edit] January 2009 protests and violence

Protesters have organized several demonstrations and marches in the weeks following the shooting.[52]

Protesters holding signs on January 8th.

On January 7, a protest march of about 200 people[53] in Oakland 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.[22][53][54][55][56][57][58] Police arrested over 100.[22][56] Grant’s family pleaded for calm and spoke out against the violence at a press conference the next day.[53][56][59] Nevertheless, on January 8, police in riot gear had to disperse a crowd of about 100 demonstrators after some of the protesters stopped vehicles and threw trash cans in the street.[60] 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.[61]

African-American conservative activist Joe R. Hicks questioned “whether the rioters were demanding ‘justice’ or simply seeking a reason to engage in mindless, nihilistic behavior” and criticized the protests for focusing on a single police killing when black on black crime was a much worse problem.[62]

[edit] Civil action

Oakland attorney John Burris has filed a $25 million wrongful death claim against BART on behalf of Grant’s family on January 6.[8][10] A claim is a prerequisite to a civil lawsuit if BART denies the claim or fails to respond within 45 days.[8]

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