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The BART Police shooting of Oscar Grant was a fatal shooting that occurred in the early morning hours of New Year's Day 2009. Bay Area Rapid Transit (BART) Police had detained Grant and several others on the platform at the Fruitvale BART Station in Oakland, California after a fight among several train passengers on a crowded train returning from San Francisco. While officer Johannes Mehserle and another officer were attempting to search and restrain Grant, who was unarmed, Mehserle released his hold on Grant, stood, and drew his gun and shot the prostrate Grant once in the back. On January 13, Alameda County, California prosecutors charged Mehserle with murder for the shooting. Mehserle is the first California police officer in decades to face murder charges for an on-duty incident. Mehserle, who resigned his position and has yet to give a statement to investigators or the media, pled not guilty.

Train passengers used video cameras and cellphones to record the events, including the shooting, with the footage widely broadcast by media outlets and on various websites subsequently watched hundreds of thousands of times. The shooting, and wide dissemination of the videos, led to both peaceful and violent protests.

Some activists have labeled the shooting an execution, but Michael Rains, Mehserle's criminal defense attorney, stated Mehserle intended to fire his Taser, but mistakenly shot Grant with a pistol when he thought Grant was reaching for a gun.

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

The incident

Background

Oscar Grant had been celebrating New Year's Eve with his friends in San Francisco on the Embarcadero and was returning to the East Bay in the lead car of a Bay Area Rapid Transit (BART) train bound for Fruitvale. BART offered extended service and a special "Flash Pass" for the New Year's Eve holiday. At approximately 2:00 AM PST, BART Police responded to reports that about twenty people were involved in the equivalent of a "barroom fight" on an incoming train from the West Oakland BART Station and the participants were "hammered and stoned".

Officers removed Grant and several other men suspected of fighting from the train and detained them on the platform. Grant and another man ran back onto the train after being detained, but Grant voluntarily returned to the platform when officer Tony Pirone grabbed the other man and dragged him from the train. Pirone handcuffed Grant's friend, angering other riders. Pirone then lined up Grant and two other men against the wall. Pirone confirmed with the train operator that the men detained were involved in the fight. When five other officers, including Johannes Mehserle, arrived at the Fruitvale station, they found the situation chaotic. BART police had been on edge before the shooting because two guns had been recovered in separate incidents along the rail line over the previous hour. Immediately before he arrived at Fruitvale, Mehserle was involved in an incident at the West Oakland station where a teenage boy with a semiautomatic pistol had fled from police and jumped off the station platform, breaking several bones.

A cell-phone video broadcast on KTVU on January 23 showed Pirone rushing towards Grant and punching him in the face two minutes before he was shot. Pirone's attorney stated that Grant provoked Pirone by trying to knee the officer in the groin and by hitting a female officer's hand. Grant's family alleges, in their civil claim against BART, that a "Latino officer" threw Grant against a wall and kneed him in the face. Grant then raised his hands while seated against the platform wall. A second claim filed against BART states that Grant and his friends were peaceful when the train stopped and alleges illegal search and seizure, false arrest and excessive force by BART police.

Fatally shot

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. Witnesses stated Grant pleaded with BART police not to shock him with a Taser. BART had recently purchased 64 Tasers and began placing them in service four months prior. According to Mehserle's attourney, he had received six hours of Taser training three weeks earlier and had yet to use the device on the job.

Pirone then kneeled on Grant's neck and told him that he was under arrest for resisting an officer. Mehserle's motion for bail notes he said, "Put your hands behind your back, stop resisting, stop resisting, put your hands behind your back." Then, "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." Mehserle then stood and said, "Tony, Tony, get away, back up, back up."

Mehserle then stood up, unholstered his gun and fired a shot into Grant's back. Immediately after the shooting, Mehserle appeared surprised and his defense attorney, Michael Rains, noted several eyewitnesses described the officer as looking stunned. According to prosecutors, Mehserle told a fellow officer after the shooting that he thought Grant was reaching for a gun.

The .40 caliber bullet from Mehserle's semi-automatic gun entered Grant's back, exited through his front side and ricocheted off the concrete platform, puncturing Grant's lung. According to one witness, Grant yelled, "You shot me! I got a four-year-old daughter!" Grant died seven hours later at Highland Hospital.

Defining restrained

There is disagreement of when, or if, Grant was handcuffed, although it is clear his hands were behind his back when Mehserle thought Grant was reaching for a gun. The attorney for Grant's family's claims that Grant's hands were restrained by Mehserle immediately prior to the shooting. The day after the shooting, BART spokesman Jim Allison said that Grant was not restrained when 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. The family's claim against BART alleges that Grant was handcuffed after he was shot.

Oscar Grant III

Oscar Juliuss Grant III, 22 at his death, was the father of a 4-year-old daughter and lived in Hayward. Grant had worked as a butcher at Farmer Joe's Marketplace in Oakland's Dimond District after previous jobs at several Kentucky Fried Chicken outlets. He attended both San Lorenzo and Mount Eden High Schools in Hayward until the 10th grade and eventually earned his GED.

Grant had a prior police record but the attorney for Grant's family, John Burris, argued it was "irrelevant to the BART shooting because Mehserle wasn't aware of it when he opened fire". Previously Grant had been convicted of drug dealing and, in 2007, was sentenced to sixteen months in state prison for fleeing "from a traffic stop while armed with a loaded pistol". At that incident, near his Hayward home, San Leandro police shot him with a Taser to subdue him after he threw the pistol into the air and ran. Grant was released from prison September 23, and according to Burris, had been doing well in recent months.

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 grams%) and Fentanyl, a strong narcotic pain reliever. The coroner's bureau said the pathologist's autopsy protocol won't be finalized until March 2009.

Grant's funeral was held at the Palma Ceia Baptist Church in Hayward on January 7, 2009. He is survived by his mother, sister, daughter, and a girlfriend, who are the claimants in a wrongful death claim against Bay Area Rapid Transit.

Johannes Mehserle

Johannes Sebastian Mehserle, 27 at the time of the shooting, was born in Germany and raised from age 4 in the Bay Area. He graduated in the class of 2000 from New Technology High School in Napa, California, and the Napa Valley College Police Academy in 2006. Until the shooting, Mehserle lived in Lafayette, California, with his girlfriend, who gave birth to their first child on the day after the incident, January 2, 2009.

At the time of the shooting, he had served the Bay Area Rapid Transit Police for about two years. Prior to the shooting, Mehserle had never been the subject of a sustained complaint from the agency's internal affairs department. 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. 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.

Mehserle submitted to drug and alcohol testing per BART's standard operating procedure. 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 and his Fifth Amendment rights against self-incrimination.

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.

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.

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. Mehserle waived extradition, and was held in protective custody at the Santa Rita jail in Dublin, California. Mehserle pled not guilty at his arraignment January 15. On January 30, Judge Morris Jacobson set bail for Mehserle at $3 million. A week later, with the help of fundraising from the police union, Mehserle posted bail.

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." Orloff noted Mehserle's refusal to explain himself as a reason for charging him with murder, rather than manslaughter. Orloff said he would fight any motion to change venue for the trial.

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

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. Rains claimed that some witnesses heard Mehserle say "Get back, I am going to taze him."

Prosecutors' theory of the case is that the video evidence shows that Mehserle deliberately reached for his weapon: "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." Prosecutors argued, and a judge 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.

As of January, Pirone had not been charged with any crime.

Analysis of case by legal and police experts

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

Several experts who observed video evidence suggested Mehserle might have confused his gun for his Taser causing him to mistakenly believe he was tasering Grant. If Mehserle thought he was firing his taser, the killing would be accidental and not subject to a murder charge.

While there have been previous cases where police officers have confused guns with tasers, modern tasers weigh half as much as handguns. The prosecution argues that the position of Mehserle's Taser "in relation to his duty weapon, combined with the different 'feel' and color of the two weapons makes it highly unlikely that he would have mistaken one for the other." 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.

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

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." 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."

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.

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.

Mehserle is facing up to life in prison if convicted of first-degree murder, but if a jury instead convicts of involuntary manslaughter, his sentence could be as little as two years.

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.

Burris says BART confiscated numerous cell phone images that he believes contains additional evidence of the killing. Witnesses at the scene also claim police attempted to confiscate cameras. These claims have not been confirmed by BART police and are contradicted by a San Francisco Chronicle investigation that showed that police, concerned about the angry crowd inside the train, simply allowed the train to leave the station without any effort to systematically interview eyewitnesses.

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

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

On January 23, KTVU aired a cell-phone video of a second officer punching Grant in the face before kneeling on his neck.

BART officials initially claimed that the Fruitvale platform cameras could not record. 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. BART's video remains unreleased.

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

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

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. Since then, BART has held multiple public meetings to ease tensions. BART board member Lynette Sweet said that "BART has not handled this correctly," 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.

On January 12, BART created an oversight committee to monitor police-related incidents. It will have a third party conduct a "top-to-bottom" review of police practices.

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

The newly created BART Police Department Review Committee responded to the KTVU broadcast of a cell-phone video showing a second officer punching Grant in the face by ordering a "rigorous" internal affairs investigation. BART will have an outside law firm or agency will conduct the investigation in an attempt to give it credibility.

A January 30 San Francisco Chronicle article was critical of the BART investigation of the shooting for permitting the train to leave the station before interviewing all of the witnesses.

Public reaction

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

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

Protests and violence

Protesters have organized several demonstrations and marches in the weeks following the shooting and during court hearings.

On January 7, a protest march of about 200 people 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. Police arrested over 100. Grant's family pleaded for calm and spoke out against the violence at a press conference the next day. 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.

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. 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.

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.

Oakland Tribune columnist Katherine Drummond criticized the protestors as "self-described 'anarchists,' who aren't even from Oakland, and wannabe Black Panthers... playing right into the hands of the defense" by giving Mehserle a plausible case for change of venue. But Black Panther founder Bobby Seale also criticized the riots as pointless.

Civil action

Oakland attorney John Burris filed a $25 million wrongful death claim against BART on behalf of Grant's family on January 6. 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. Such claims are prerequisites to a civil lawsuit if BART denies the claim or fails to respond within 45 days.

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63. Associated Press (2009-01-13). "Oakland cops prepare for big BART shooting protest". San Jose Mercury News. Retrieved 2009-01-20. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help)
64. Woodall, Angela (2009-01-31). Oakland Tribune http://www.insidebayarea.com/oaklandtribune/localnews/ci_11591898. Retrieved 2009-02-02. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help); Missing or empty |title= (help)
65. ^ Matthai Kuruvila, Charles Burress, and Demian Bulwa (2009). "Oakland protest organizer watched in horror". San Francisco Chronicle. Retrieved 2009-01-09. {{cite web}}: Italic or bold markup not allowed in: |publisher= (help)CS1 maint: multiple names: authors list (link)
66. Dori J. Maynard (2009-01-13). "When is a riot a riot? Did you see what I saw?". San Jose Mercury News. Retrieved 2009-01-14.
67. "Oakland: Fewer Businesses Damaged By Protest Than Originally Estimated". KPIX. 2009-01-12.
68. ^ "Grant's family pleads for peace". The San Jose Mercury News. Retrieved 2009-01-08.
69. Chip Johnson (2009-01-09). "Protesters who trashed Oakland missed the mark". San Francisco Chronicle. Retrieved 2009-01-11.
70. Terry Collins (2009). "Fatal Calif. train station shooting sparks anger". Associated Press. Retrieved 2009-01-08. {{cite web}}: Italic or bold markup not allowed in: |publisher= (help)
71. Jesse McKinley (2009). "In California, Protests After Man Dies at Hands of Transit Police". New York Times. Retrieved 2009-01-10. {{cite web}}: Italic or bold markup not allowed in: |publisher= (help)
72. "Police in Riot Gear Stave Off Another Protest of Deadly California Transit Shooting". Fox News. 2009-01-09. Retrieved 2009-01-21.
73. Christopher Heredia, Carolyn Jones,Leslie Fulbright (2009-01-15). "18 arrested at Oakland protest of BART killing". San Francisco Chronicle. {{cite web}}: Italic or bold markup not allowed in: |publisher= (help)CS1 maint: multiple names: authors list (link)
74. ^ Drummond, Tammerlin (2009-02-03). "Drummond: Grant deserves justice, but so does Mehserle". Oakland Tribune. Retrieved 2009-02-04. {{cite web}}: Italic or bold markup not allowed in: |publisher= (help)
75. Hicks, Joe R. (2009-01-19). "What Oakland should be protesting". Los Angeles Times. Retrieved 2009-01-20.
76. Bender, Kristin (2009-02-03). "Black Panther Party co-founder Bobby Seale speaks in Berkeley". Oakland Tribune. Retrieved 2009-02-04. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help)

External links

• People v. Mehserle, Motion to Set Bail and Prosecution Opposition to Defendant's Release on Bail
• Audio of BART board meeting 2009-01-08: Public comment on the death of Oscar Grant
• Oakland Tribune coverage of the shooting of Oscar Grant

• Misplaced Pages articles needing copy edit from February 2009
• Misplaced Pages neutral point of view disputes from February 2009
• Alleged police brutality in the United States
• Citizen journalism
• People shot dead by police
• Unarmed people shot by police
• 2009 in the United States
• 2009 riots
• History of Oakland, California
• Law enforcement in California
• Bay Area Rapid Transit
• Riots and civil unrest in the United States