BART Police shooting of Oscar Grant
Encyclopedia
Oscar Grant was fatally shot by BART police
officer Johannes Mehserle in Oakland, California
, United States, in the early morning hours of New Year's Day
2009. Responding to reports of a fight on a crowded Bay Area Rapid Transit
train returning from San Francisco, BART Police officers detained Oscar Grant and several other passengers on the platform at the Fruitvale BART Station
. Officer Johannes Mehserle and another officer were restraining Grant, who was prostrate
and allegedly resisting arrest. Officer Mehserle stood and, according to witnesses, said "Get back, I'm gonna tase him." Then Mehserle drew his gun and shot Grant once in the back; Mehserle appeared stunned, put his hands to his head and exclaimed "Oh my God!" During his court testimony, Mehserle said that Grant then exclaimed, "You shot me!" Grant turned out to be unarmed; he was pronounced dead the next morning at Highland Hospital
in Oakland.
The events were captured on multiple digital
video and cell phone cameras
. The footage was disseminated to media outlets and to various websites, where it was watched hundreds of thousands of times. The following days saw both peaceful and violent protests.
The shooting has been variously labeled an involuntary manslaughter and a summary execution
. On January 13, Alameda County
prosecutors charged Mehserle with murder
for the shooting. He resigned his position and pleaded not guilty. The trial began on June 10, 2010. Michael Rains
, Mehserle's criminal defense attorney, argued that Mehserle mistakenly shot Grant with his pistol
, intending to use his Taser
when he saw Grant reaching for his waistband. Pretrial filings argue that his client did not commit first-degree murder and asked a Los Angeles judge to instruct the jury to limit its deliberations to either second-degree murder or acquittal.
Oakland civil rights
attorney John Burris
filed a $
25 million wrongful death claim
against BART on behalf of Grant's family.
On July 8, 2010, the jury returned its verdict: Mehserle was found guilty of involuntary manslaughter and not guilty of second degree murder and voluntary manslaughter. Initial protests against the ruling were peacefully organized; looting, arson, destruction of property, and small riot
s broke out after dark. Nearly 80 people were eventually arrested.
On Friday, July 9, 2010, the U.S. Justice Department opened a civil rights case against Mehserle; the federal government can prosecute him independently for the same act under the separate sovereigns exception to double jeopardy
. The Department of Justice will be working with the U.S. Attorney's office in San Francisco and the FBI.
On November 5, 2010 Mehserle was sentenced to two years, minus time served. He served his time in the Los Angeles County Jail, occupying a private cell away from other prisoners. He was released on June 13, 2011 and is now on parole.
with his friends on the Embarcadero
in San Francisco, and was returning to the East Bay
in the lead car of a 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 a.m. PST, BART Police
responded to reports that up to 12 people were involved in a 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. A source familiar with the investigation said that Grant and another man ran back onto the train after being detained; Grant returned voluntarily while BART Police 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. According to Mehserle's motion for bail, 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. Mehserle's partner on duty, Officer Jon Woffinden, said the "incident was one of the most frightening he had experienced in his 12 years as a police officer."
Mehserle's motion for bail, citing the police investigation, stated:
A cell-phone video broadcast on local television station KTVU on January 23 showed what appeared to be Pirone rushing towards Grant and punching him in the face several times two minutes before he was shot. Grant's family alleges in their civil claim against BART that an officer threw Grant against a wall and kneed him in the face. Pirone's attorney stated that Grant provoked Pirone by trying to knee the officer in the groin and by hitting Officer Marysol Dominici's arm when she attempted to handcuff one of Grant's friends. Witnesses testified that Pirone was the aggressor during the incident. Burris also disputes Pirone's account and claims that Grant and his friends were "peaceful" when the train stopped. Grant then raised his hands while seated against the platform wall. Additional footage from a cell phone was presented in court showing Pirone standing over the prone Grant before the shooting and yelling: "Bitch-ass nigger, right?" Pirone and his attorney say he was merely parroting an insulting epithet that Grant had yelled at him.
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 semi-automatic pistol had fled from police and jumped off the station platform, breaking several bones.
. Pirone then knelt on Grant's neck and told him that he was under arrest for resisting an officer
.
Mehserle's motion for bail, citing the police investigation, stated:
The motion also states that the man sitting next to Grant also told police he heard Mehserle say "I'm going to taze him."
Mehserle then stood up, unholstered his gun, a SIG Sauer P226, and fired a shot into Grant's back. Immediately after the shooting, Mehserle appeared surprised and raised his hands to his face; according to Michael Rains
, Mehserle's criminal defense attorney, several eyewitnesses described Mehserle as looking stunned. Witnesses say Mehserle said "Oh my god!" several times after the shooting. and many saw him put his hands to his head.
The .40 caliber
bullet from Mehserle's semi-automatic handgun entered Grant's back, exited through his front side and ricocheted off the concrete platform, puncturing Grant's lung. According to one witness, Grant yelled, "You shot me! I got a four-year-old daughter!" Grant died seven hours later, at 9:13 am, at Highland Hospital
in Oakland.
Initially there was disagreement about whether Grant was handcuffed before he was shot. Court filings by the district attorney's office say that Grant's hands were behind his back and that he was "restrained and unarmed" but do not say he was handcuffed. Video evidence showed Grant never surrendered his hands, and Mehserle voiced his fear that Grant was "going for his waistband," where weapons are often kept. In addition, the day after the shooting, BART spokesman Jim Allison said that Grant was not restrained when he was shot, and multiple witnesses testified that Grant refused to give up his hands for handcuffing prior to the shooting. The family's claim against BART stated that Grant was handcuffed only after he was shot. The Los Angeles Times video of the shooting shows that Grant was not cuffed at 2:03 seconds into the video, 5 seconds after the shot was fired.
BART Officer Marysol Domenici was first officer on the scene with her partner, Tony Pirone. Domenici testified at the BART incident hearing that Grant and his friends swore at her and did not obey her orders. She is quoted as having testified that: "If they would've followed orders, this wouldn't have happened. They probably would've just been cited and released." She was terminated by BART on an accusation that she was untruthful in her statements to transit investigators. On December 18, 2010, it was reported that San Francisco labor arbitrator William Riker ordered her re-instated with full back pay because there was no basis to find that Domenici was not telling the truth. Domenici's attorney, Alison Berry Wilkinson, was quoted as saying that "She [Domenici] has been vindicated."
Oscar Juliuss Grant III, (February 27, 1986 – January 1, 2009), lived in Hayward, California
. Grant had worked as a butcher at Farmer Joe's Marketplace in Oakland's Dimond District after 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 served two state prison terms for various felonies including a conviction for drug dealing. In 2007, San Leandro police stunned him with a Taser
to subdue him after a traffic stop, during which Grant threw his loaded pistol into the air and ran. He was sentenced to 16 months in state prison.
Grant was released from prison on September 23, 2008, and according to the attorney for Grant's family, John Burris
, "had been doing well in recent months;" at the time of the shooting he was still on parole. Burris also stated that the criminal conviction and Tasering were "irrelevant to the BART shooting because Mehserle wasn't aware of it when he opened fire."
In the motion for bail, Mehserle's attorney, Michael Rains
, stated that toxicology
testing of Grant's blood revealed the presence of alcohol (0.02%)
and Fentanyl, a potent pain reliever. The coroner's bureau said the pathologist's autopsy
protocol would be finalized in March 2009.
Grant's funeral was held at the Palma Ceia Baptist Church in Hayward on January 7, 2009. Grant's mother, sister, daughter, and girlfriend (his daughter's mother) filed a wrongful death claim
against BART following his death.
in Napa
, California. He attended college in Napa, in Monterey, and at Sonoma State University
, where he majored in business, and he developed an interest in police work through a friend who was a police officer. He went on to graduate from Napa Valley College
Police Academy
in 2006, where he placed in the top five of his class academically and placed well physically. Mehserle's girlfriend gave birth to their first child on the day after the shooting, on January 2, 2009.
Mehserle joined the Bay Area Rapid Transit (BART) Police in March 2007. During the less than two years prior to the shooting, he had not been the subject of a sustained complaint from BART's internal affairs
department Since the shooting, a Bay Area man has complained to the media that Mehserle had beaten him on November 15, 2008; Mehserle's police report on the incident states that four officers grabbed the man after he yelled threats and assumed a fighting stance. The accuser, who has served time for theft and burglary, was taken to the hospital for chest and facial injuries and was later booked into jail for resisting arrest. He has not filed a formal complaint against BART.
Mehserle submitted to drug and alcohol testing per BART's standard operating procedure. The results showed no drugs or alcohol in his system. He retained a criminal defense attorney and refused to speak to the authorities, invoking the Public Safety Officers Procedural Bill of Rights Act and the Fifth Amendment
, claiming potential 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.
Police in riot gear were dispatched and made efforts to disperse
the crowds. During the course of the evening, among other peaceful protest tactics, some of the protesters turned to riot
ing and rampant property vandalism
. Black Bloc
and other rioters smashed hundreds of car and shop windows, several private cars and numerous trash containers, and dumpsters. Public buildings such as the Oakland Police Internal Affairs office and almost restored Fox Theatre were heavily vandalized. The rioting wound down later in the evening and resulted in at least 105 arrests for suspicion of various offenses. Over 300 businesses were affected by the vandalism.
The effect of the wide viewership of the Direct evidence
videos of the shooting, and the riots themselves were covered in the United States in regional, national, in international,
Video images of the shooting were widely broadcast and streamed online in the days following Grant's death. Several hundred thousand viewed the videos in the first few days after the incident. Widespread dissemination of the direct evidence
of the shooting led to public outrage and protests and fueled riots. The riots highlight the impact technology can have on news events.
Community members and activists decried the shooting incident as yet another case of police brutality. There was a broad public perception that BART Police and the Alameda County District Attorney's office were not conducting an effective investigation. Others were angry that Mehserle allegedly did not cooperate with Police and District Attorney's Office investigators.
ed streets and diverted vehicle and foot traffic.After entering the central business district the march continued to BART Police command and control headquarters at 8th & Madison streets near the Lake Merritt BART station.
Once at BART Police Command and Control, a contingent of angry protesters surrounded a police car. The officer driving the car fled on foot. Meanwhile, the rioters broke out the cruiser's windows and attempted to overturn it. A line of police wearing gas masks swept up behind the rear of the march and deployed tear gas in an attempt to disperse the crowd.
The protest continued as the crowd marched along 8th Street through Chinatown. At Broadway, officers wearing gas masks deployed more tear gas canisters and acted quickly to charge and disperse the crowd as they approached the vicinity of Oakland Police headquarters at 7th and Broadway.
The protest regrouped downtown at the intersection of 14th and Broadway, blocking motor vehicle traffic. Some of the protesters lied face down in the intersection, in a symbolic act of solidarity with Grant, who was killed in the same position. Others shouted at police and chanted in unison. Others carried signs that read, "Your idea of justice?" and "Jail Killer Cops" and lit candles in remembrance of Grant.
Police in helmets and gas masks grouped in standing line formations on the south, west, and north sides of the intersection, allowing an avenue of retreat down 14th Street on the East side of the intersection.
About an hour later Police gave orders to disperse and fired tear gas grenades, rubber bullets, and other "less lethal" weapons and devices at demonstrators. Protestors threw bottles, rocks, and other objects at police. Police pushed the crowd east along 14th Street into the Lakeside Apartments District
and the scene dissolved into a riot
along the 14th Street spine.
Numerous helicopters which had been airborne throughout the evening, converged on the area. Law enforcement helicopters shined powerful spotlights down onto surface streets, while media helicopters shot video of developments from overhead, which were broadcast in real time on local television stations.
In the ensuing hours, a small clutch of rioters burned the contents of trash cans, dumpsters, newspaper boxes and set fire to at least five cars, including an Oakland police patrol car. Some rioters jumped from parked car to parked car, smashing in the front and rear windshield like crushed eggshells The riot spread deep into the Lakeside Apartments District
and cars were burned and heavily damaged on Madison Street. Other rioters in this clutch broke storefront windows, to include those of a McDonalds fast food restauarant at Jackson and 14th Streets in the Lakeside Apartments District
. The night of the riot coincided with trash collection day the following morning and numerous trash dumpsters and containers were parked curbside. Rioters used these dumpsters to start fires along city streets. Rioters damaged some of the carefully restored historic woodwork and terra cotta on the nearly restored Fox Theater. Damage to the Fox was preliminarily estimated at $10,000 to $20,000.
and Larry Reid held an impromptu press conference at 14th and Jackson Streets, along the spine of the rioting, and called for the crowd to disperse peacefully. Dellums peacefully marched with the crowd back West along 14th Street to the steps of City Hall, where he attempted to address the crowd, but cut the meeting short and entered City Hall after the crowd became agitated, began booing, and shouted Dellums down.
After Dellums entered City Hall with his own delegation, locking the doors behind him, the demonstrators continued through City Hall Plaza, with angry splinter groups of rioters smashing the windows of Oakland Police Department's Internal Affairs and Recruiting Office at the East side of 250 Frank Ogawa Plaza. Windows of police cruisers parked outside the offices were also smashed.
The protesters continued east along 17th Street into the 17th Street Commercial District in Oaksterdam
, crossing Broadway and Franklin, where rioters broke numerous storefront windows, and continued back into the Lakeside District
, lighting discarded christmas trees on fire. Police continued their efforts to disperse the crowds, and rioting continued on Broadway Downtown.
, assault
on a police officer, and arson
. Police recovered two handguns from the rioters. Around 120 people in total were arrested for offenses arising from the protests during the course of the evening. Two have been charged to date.
The Lake Merritt
and 12th Street
BART stations were temporarily shut down during the evening.
Numerous media photographers and videographers, both affiliated and independent, filmed the scene from close proximity on the ground. Media helicopters shot video of developments from overhead, which were broadcast in real time on local television stations.
District Attorney Tom Orloff
filed a complaint for murder
and an Alameda County Superior Court Judge then signed a fugitive arrest warrant. Mehserle was arrested January 13 at a friend's home in the Zephyr Cove, Nevada, area near Lake Tahoe
where his attorney said he had gone after receiving death threats in the Bay Area. Mehserle waived extradition
, and was held in protective custody
at the Santa Rita jail in Dublin
, California. Mehserle pleaded not guilty at his arraignment January 15. On January 30, Alameda County Superior Court 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 County District Attorney Tom Orloff refused to speculate whether Mehserle would be charged with first or second degree murder, saying "What I feel the evidence indicates is an unlawful killing done by an intentional act and from the evidence we have there's nothing that would mitigate that to something lower than a murder." 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 retained Pleasant Hill
criminal defense attorney Michael Rains, who previously successfully represented one of the Oakland Riders. 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's defense was paid for by a statewide fund for police officers.
The prosecutors' theory of the case is that the video evidence shows that Mehserle deliberately reached for his weapon. They argued: "What we see in the video is an officer releasing his control of a suspect, standing up, drawing his weapon, with some difficulty, and shooting it." Jacobson agreed in deciding to set bail at $3 million that Mehserle's claim of Taser confusion was inconsistent with his earlier statement to a fellow officer and that Mehserle might be changing his story. He later imposed a gag order
on attorneys and investigators in the case, prohibiting them from releasing future filings or otherwise commenting to the press.
In a supplemental motion filed Rains argued that Judge Clay should take a second look at a ruling that barred him from presenting evidence about Grant's criminal background as well as a ruling that barred him from presenting evidence that Mehserle told a fellow officer just before the shooting incident that he planned to use his Taser on Grant. He protested that "Both rulings amount to grave errors under longstanding and never-questioned California authorities" and alleged that they "substantially interfere with Mehserle's federal due process right to defend against the murder charge." Rains had also failed to convince Judge Clay to remove District Attorney Tom Orloff's office from the case. Rains claimed Orloff violated his client's rights because he ordered two Oakland police officers to try to interview Mehserle after he was arrested even though Orloff knew Mehserle had an attorney. Judge Clay said Orloff's actions did not prove a bias nor did it meet the requirements necessary for him to be taken off the case.
Los Angeles County Judge Robert J. Perry was assigned to the case. He signaled that he would not allow cameras in the courtroom. There was a hearing on February 19, 2010 to address two issues. Mehserle's bail was not reduced as requested by the defense. The judge also rejected a motion to remove Alameda County prosecutors from the case. Rains had argued that prosecutors and detectives acted inappropriately when they interviewed Mehserle earlier in the case. Another hearing was set for March 26.
Mehserle's attorney is expected to argue that his client did not commit first-degree murder and has asked the judge to instruct the jury to limit its deliberations to either second-degree murder or acquittal. Rains wrote that Mehserle will not argue the killing was conducted in the heat of passion or in self-defense. Rains also argues that prosecutors have shown no evidence that the fatal shooting is either voluntary or involuntary manslaughter.
On May 7, Judge Perry granted a motion by defense to discuss Grant's conviction for possessing a gun and evading arrest. Perry formally selected the jury on June 8. The 12-member jury consists of eight women and four men; of these jurors, seven were white, four Hispanic, and one Asian. Of the alternates, there were five women and one man with three Asians, two whites, and one Hispanic. It is alleged that six of the jury have law enforcement connections. Grant's family expressed outrage at the absence of blacks in the jury. The day before the trial began, Deputy District Attorney David Stein revealed a photo that Grant took of Mehserle with a cell phone camera. The photo showed Mehserle pointing a Taser at Grant.
charge, depending on whether Mehserle had a legal right to use his taser at all, which was also brought into question. Prosecutors allege that paperwork, including a blood alcohol test, completed by Mehserle after the shooting show that he has changed his story.
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. Mehserle was wearing his Taser on the left side of his body (on the opposite side from which he wore his gun) -- but set up for a cross-body, strong hand (right-hand) draw.
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.
(3 to 11 years), or involuntary manslaughter (2 to 4 years); in addition the jury could have decided to acquit
. Prosecutor Michael O'Brien said that Mehserle committed a crime inherently by shooting Grant. Intention meant murder or voluntary manslaughter, and an accident indicated recklessness on Mehserle's part and thus involuntary manslaughter. Judge Perry gave two interpretations of Mehserle's shocked reaction after shooting Grant: either Mehserle actually wanted to use his Taser or Mehserle realized that many people were witnessing his action.
Closing arguments took place on July 1. Expressing a belief that Mehserle "lost all control" the night he shot Grant and labeled the shooting as an accident to avoid liability, Deputy District Attorney David Stein asked the jury to convict Mehserle of second-degree murder. Defense attorney Rains argued that the shooting was accidental and told them not to make "some sort of commentary on the state of relations between the police and the community in this country." Jury deliberations began on Friday, July 2, and the jury had the day off on July 5 because of the Independence Day holiday. On July 6, deliberations were suspended after one juror left for vacation having notified the judge in advance, another juror went to a medical appointment, and another called in sick. One new alternate juror joined the panel. One juror submitted a question asking whether provocation by "sources other than the suspect(s)" can make one guilty of voluntary manslaughter. Stein argued that the jury should be able to consider outsiders' influence of Mehserle, but Rains disagreed.
On July 8, 2010, the jury informed the court that they had reached a verdict by 2:10 p.m. The deliberations with this jury panel totaled six and a half hours over the course of two days. At approximately 4 p.m., the jury found Johannes Mehserle guilty of involuntary manslaughter, and not guilty of both the second-degree murder and voluntary manslaughter charges. The jury also found Mehserle guilty of a gun enhancement charge that could add up to ten years to his prison sentence, make him ineligible for probation, and force him to serve 85 percent of his sentence as opposed to the 50 percent most state prisoners serve.
Despite having been free on a $3M bond, Mehserle was remanded into custody after the verdict was read. The next court date, when sentencing would occur, was set for November 5, 2010.
When the time of the verdict announcement was announced, many people packed BART trains to leave Oakland, and Interstates 880 and 980
had heavy traffic. There were multiple peaceful gatherings held throughout Oakland after the verdict was announced, and sporadic conflicts were quelled quickly by the police early in the evening. The protests became more violent as darkness fell—see "Protests and Violence" below.
A two-page letter written by Mehserle was released after the verdict in which he said: "no words can express how truly sorry I am."
On November 5, Mehserle was sentenced to two years with double credit for time already served, reducing his term by 292 days for the 146 days he has already spent in jail. The judge overturned the gun enhancement, which could have added an additional 3 to 10 years to the sentence. He was released from prison at 12:01am on June 13, 2011.
of the shooting was documented by video cameras held by passengers on the train idling next to the platform, as police detained Grant and a number of other men police suspected of being involved in the disturbance. Several witnesses testified during the preliminary hearing
for Mehserle's trial that they began recording because they believed BART officers were acting too aggressively. These videos were made available through television news and internet video.
Oakland attorney John Burris says BART confiscated numerous cell phone images that he believes contains additional evidence of the killing. Alameda County District Attorney Tom Orloff said video confiscated by BART was useful in bringing the murder charge against Mehserle. Witnesses at the scene also claim police attempted to confiscate cameras. These claims have not been confirmed by BART police.
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 a video by an anonymous passenger who submitted a cell phone video of the actual shooting.
On January 23, KTVU aired a cell-phone video which appeared to show a second officer punching Grant in the face prior to the shooting. In late February, KRON 4 aired a clip of a video showing a different angle of this altercation. In the report, former Alameda district attorney, Michael Cardoza, told KRON that Pirone appears to be attempting to restrain Grant by grabbing his head and pushing him down. He also said that Grant appeared to be reaching for Pirone's gun. Burris responded by calling it a "ridiculous assumption" since Grant was trying to resolve the problem.
BART spokesperson Linton Johnson described the surveillance footage from the Fruitvale platform cameras as "benign" and said the platform cameras had recorded some of the incident, but did not include the actual shooting.
There has been varying commentary on the video evidence. 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.
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 later filed a legal response to the lawsuit that claimed that the shooting was "a tragic accident", and that Grant contributed to the fatal incident. BART said the officers were "just defending themselves" and that "Oscar Grant willfully, wrongfully, and unlawfully made an assault upon defendants and would have beaten, bruised, and ill-treated them if defendants had not
immediately defended themselves."
BART has also held multiple public meetings to ease tensions. BART board member Lynette Sweet said that "BART has not handled this [situation] 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. The Board of Directors created a transit police department review committee to review policies and monitor "major police incidents."
An investigation was launched to determine whether any other officers should be disciplined. On January 12, investigation results were forwarded to the district attorney. The investigation, which interviewed seven police officers and 33 other witnesses, came to no conclusion and made no recommendations. The details were forwarded to Meyers Nave, an outside law firm, for an independent investigation. It was led by Jayne Williams, the former city attorney for San Leandro
, and was estimated to cost $250,000. In August, the law firm provided two reports to BART but only released one publicly. The report said officers failed to follow recommended procedures, failed to work as a team, and had lapses in both tactical communication and leadership.
The footage of a cell-phone video showing Pirone striking Grant caused additional responses after KTVU's broadcast in January. BART General Manager Dorothy Dugger angrily said a "rigorous" internal affairs investigation would be ordered. Later, an attorney representing BART, said that Grant provoked Pirone's blow by trying to knee Pirone at least twice, "It is our position that there was a provocation and assault on Mr. Pirone based upon a video that shows Mr. Grant apparently hitting Mr. Pirone with his knee," On September 22, KTVU reported that Meyers Nave had recommended the termination of Tony Pirone and Marysol Domenici in its unreleased report. After being on leave since the incident, Domenici was terminated on March 24, 2010. Pirone was terminated on April 21 after an internal investigation upheld a finding of misconduct against him.
Protesters have organized several demonstrations and marches in the weeks following the shooting and during court hearings. 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. BART Police Chief Gary Gee remarked that the BART 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. Efforts by BART officers to confiscate witnesses' cellphones during the incident created controversy. The shooting stirred outrage among political leaders and legal observers; Alameda County Supervisor Keith Carson, 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." The fact that the jury contained no African-Americans also served as a point of tension.
Reason legal commentator Radley Balko
stated that he found "simply no basis for the accusation that Mehserle intentionally executed a man in front of dozens of witnesses" and described the verdict as "appropriate" although not "popular".
San Francisco KPFA-FM host J.R. Valrey has made a film “Operation Small Axe” which focuses on the Grant shooting, and also the Lovelle Mixon case, within the larger context of police brutality in the Bay Area. Valrey is screening the movie around the country in 2010. The film was directed and produced by Adimu Madyun and won the 2010 Rise Up Award from The Patois International Rights Film Festival in New Orleans, but Varney has also stirred controversy. "The headline for a cover story in the East Bay Express called Valrey an 'Agent Provocateur' – a term generally associated with police informants assigned to cause violence," wrote Temple University
associate professor Linn Washington, Jr. after a Philadelphia screening. "That article referred to Valrey as an 'advocacy journalist' who did things 'no mainstream journalist would do,' like speaking at an anti-police brutality rally. 'They tried to get the community to turn against me but I have strong support in the community,' said Valrey, who [also] serves [as] an editor at the San Francisco Bay View, a black owned online newspaper," Washington continued. While in Washington, DC for a screening, Valrey was accompanied by Malcolm Shabazz
, grandson of Malcolm X
. Shabazz spoke of "his life since being released from prison for the arson of his grandmother’s house" in a joint appearance. A blogpost which reported on the screening connected the title of the film to Bob Marley
's lyric "So if you are the big tree, then we are the small axe." The post also linked to a recent annotated first-person account of the Shabazz story.
A January 14, 2009 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.
Oakland Tribune columnist Katherine Drummond criticized the protestors as "self-described 'anarchists,' who aren't even from Oakland, and wannabe Black Panther Party
members... playing right into the hands of the defense" by giving Mehserle a plausible case for change of venue.
On May 18, 2009, 100 protested outside of the courthouse during the preliminary hearing and then marched to the nearby Oakland Police Department. A protest organizer was arrested after the group blocked traffic.
Protests continued throughout the pretrial process. The hearing on February 19, 2010 saw 50 protesters with signs outside of the Los Angeles courthouse. An estimated 200 protesters gathered at San Francisco's Embarcadero BART station on April 8, 2010 to call for the disbanding of the transit system's police department and the firing of an officer who was on the scene when Grant was shot.
On July 8, 2010, following the verdict, protests began peacefully, and officials commended both the protestors and the police for their demonstrated restraint. As night fell, vandals engaged in opportunistic looting of local businesses, such as The Foot Locker, a bank, and a jewelry store. Oakland's police chief was quoted as saying that the people doing violence did not primarily seem to be Oakland residents protesting the verdict, but instead were self-styled "anarchists...who are almost professional people who go into crowds like this and cause problems." Oakland police arrested 83 people on a variety of charges ranging from vandalism to failure to disperse to assault. According to the Oakland Police Chief Batts, nearly 3 out of 4 of those arrested during the protest do not live in Oakland.
The San Francisco Chronicle reported that many of the rioters who were most aggressive in damaging Oakland businesses and property were organized white anarchists wearing black clothing and hoods. An anarchist slogan was painted on one wall that read "Say 'no' to work. Say 'yes' to looting."
Some Oakland officials objected to the "anarchist" label, commenting that the outside agitators seemed to lack any cohesive philosophy and were simply bent on making trouble.
, 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.
Part of a $50 million federal civil rights lawsuit brought by Grant's family was closed when BART settled with the mother of Grant's daughter for $1.5 million. Grant's daughter will receive a series of payouts until her 30th birthday.
BART Police
The BART Police Department is the police force of the San Francisco Bay Area Rapid Transit District .The BART Police Department has more than 296 police personnel, of which 206 are sworn peace officers. BART Police officers derive their powers of arrest from Section 830.33 P.C...
officer Johannes Mehserle in Oakland, California
Oakland, California
Oakland is a major West Coast port city on San Francisco Bay in the U.S. state of California. It is the eighth-largest city in the state with a 2010 population of 390,724...
, United States, in the early morning hours of New Year's Day
New Year's Day
New Year's Day is observed on January 1, the first day of the year on the modern Gregorian calendar as well as the Julian calendar used in ancient Rome...
2009. Responding to reports of a fight on a crowded Bay Area Rapid Transit
Bay Area Rapid Transit
Bay Area Rapid Transit is a rapid transit system serving the San Francisco Bay Area. The heavy-rail public transit and subway system connects San Francisco with cities in the East Bay and suburbs in northern San Mateo County. BART operates five lines on of track with 44 stations in four counties...
train returning from San Francisco, BART Police officers detained Oscar Grant and several other passengers on the platform at the Fruitvale BART Station
Fruitvale (BART station)
Fruitvale is a Bay Area Rapid Transit station located in the Fruitvale District of Oakland. The station consists of two elevated side platforms with the concourse mezzanine at ground level. The redevelopment of the immediate station area from a parking lot to a mixed-use "transit village" has...
. Officer Johannes Mehserle and another officer were restraining Grant, who was prostrate
Prostration
Prostration is the placement of the body in a reverentially or submissively prone position. Major world religions employ prostration either as a means of embodying reverence for a noble person, persons or doctrine, or as an act of submissiveness to a supreme being or beings...
and allegedly resisting arrest. Officer Mehserle stood and, according to witnesses, said "Get back, I'm gonna tase him." Then Mehserle drew his gun and shot Grant once in the back; Mehserle appeared stunned, put his hands to his head and exclaimed "Oh my God!" During his court testimony, Mehserle said that Grant then exclaimed, "You shot me!" Grant turned out to be unarmed; he was pronounced dead the next morning at Highland Hospital
Highland Hospital (Oakland, California)
Highland Hospital is a public hospital located in Alameda County, Oakland, California. It is operated by the Alameda County Medical Center.It is a Level II trauma center.- History :-External links:*...
in Oakland.
The events were captured on multiple digital
Digital camera
A digital camera is a camera that takes video or still photographs, or both, digitally by recording images via an electronic image sensor. It is the main device used in the field of digital photography...
video and cell phone cameras
Camera phone
A camera phone is a mobile phone which is able to capture still photographs . Since early in the 21st century the majority of mobile phones in use are camera phones....
. The footage was disseminated to media outlets and to various websites, where it was watched hundreds of thousands of times. The following days saw both peaceful and violent protests.
The shooting has been variously labeled an involuntary manslaughter and a summary execution
Summary execution
A summary execution is a variety of execution in which a person is killed on the spot without trial or after a show trial. Summary executions have been practiced by the police, military, and paramilitary organizations and are associated with guerrilla warfare, counter-insurgency, terrorism, and...
. On January 13, Alameda County
Alameda County, California
Alameda County is a county in the U.S. state of California. It occupies most of the East Bay region of the San Francisco Bay Area. As of the 2010 census it had a population of 1,510,271, making it the 7th most populous county in the state...
prosecutors charged Mehserle with murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
for the shooting. He resigned his position and pleaded not guilty. The trial began on June 10, 2010. Michael Rains
Michael Rains
Michael Rains is a California criminal defense attorney known for representing police accused of misconduct, including the case of the BART Police shooting of Oscar Grant and a successful defense of the Oakland Riders. Rains also won acquittal of the Corcoran 8, prison guards accused of staging...
, Mehserle's criminal defense attorney, argued that Mehserle mistakenly shot Grant with his pistol
Pistol
When distinguished as a subset of handguns, a pistol is a handgun with a chamber that is integral with the barrel, as opposed to a revolver, wherein the chamber is separate from the barrel as a revolving cylinder. Typically, pistols have an effective range of about 100 feet.-History:The pistol...
, intending to use his Taser
Taser
A Taser is an electroshock weapon that uses electrical current to disrupt voluntary control of muscles. Its manufacturer, Taser International, calls the effects "neuromuscular incapacitation" and the devices' mechanism "Electro-Muscular Disruption technology"...
when he saw Grant reaching for his waistband. Pretrial filings argue that his client did not commit first-degree murder and asked a Los Angeles judge to instruct the jury to limit its deliberations to either second-degree murder or acquittal.
Oakland civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
attorney John Burris
John Burris
John Leonard Burris is an American civil rights attorney, based in Oakland, California, known for his work in police brutality cases representing plaintiffs....
filed a $
United States dollar
The United States dollar , also referred to as the American dollar, is the official currency of the United States of America. It is divided into 100 smaller units called cents or pennies....
25 million wrongful death claim
Wrongful death claim
Wrongful death is a claim in common law jurisdictions against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives, as enumerated by statute...
against BART on behalf of Grant's family.
On July 8, 2010, the jury returned its verdict: Mehserle was found guilty of involuntary manslaughter and not guilty of second degree murder and voluntary manslaughter. Initial protests against the ruling were peacefully organized; looting, arson, destruction of property, and small riot
Riot
A riot is a form of civil disorder characterized often by what is thought of as disorganized groups lashing out in a sudden and intense rash of violence against authority, property or people. While individuals may attempt to lead or control a riot, riots are thought to be typically chaotic and...
s broke out after dark. Nearly 80 people were eventually arrested.
On Friday, July 9, 2010, the U.S. Justice Department opened a civil rights case against Mehserle; the federal government can prosecute him independently for the same act under the separate sovereigns exception to double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
. The Department of Justice will be working with the U.S. Attorney's office in San Francisco and the FBI.
On November 5, 2010 Mehserle was sentenced to two years, minus time served. He served his time in the Los Angeles County Jail, occupying a private cell away from other prisoners. He was released on June 13, 2011 and is now on parole.
Background
Oscar Grant had been celebrating New Year's EveNew Year's Eve
New Year's Eve is observed annually on December 31, the final day of any given year in the Gregorian calendar. In modern societies, New Year's Eve is often celebrated at social gatherings, during which participants dance, eat, consume alcoholic beverages, and watch or light fireworks to mark the...
with his friends on the Embarcadero
The Embarcadero (San Francisco)
The Embarcadero is the eastern waterfront and roadway of the Port of San Francisco, San Francisco, California, along San Francisco Bay, constructed atop an engineered seawall on reclaimed land, and derives its name from the Spanish verb embarcar, meaning "to embark"...
in San Francisco, and was returning to the East Bay
East Bay (San Francisco Bay Area)
The East Bay is a commonly used, informal term for the lands on the eastern side of the San Francisco Bay, in the San Francisco Bay Area, in California, United States...
in the lead car of a BART train bound for Fruitvale
Fruitvale, Oakland, California
Fruitvale is a neighborhood in east Oakland, California, in the United States. It is located about two miles southeast of Lake Merritt and is home to Oakland's largest Latino population, with Latinos comprising 49.5% of Fruitvale's population . Fruitvale's ZIP code is 94601...
. BART offered extended service and a special "Flash Pass" for the New Year's Eve holiday. At approximately 2:00 a.m. PST, BART Police
BART Police
The BART Police Department is the police force of the San Francisco Bay Area Rapid Transit District .The BART Police Department has more than 296 police personnel, of which 206 are sworn peace officers. BART Police officers derive their powers of arrest from Section 830.33 P.C...
responded to reports that up to 12 people were involved in a fight on an incoming train from the West Oakland BART Station
West Oakland (BART station)
West Oakland is a Bay Area Rapid Transit station located in the neighborhood of West Oakland in Oakland. It has two elevated side platforms, and is located near the eastern end of the Transbay Tube...
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. A source familiar with the investigation said that Grant and another man ran back onto the train after being detained; Grant returned voluntarily while BART Police 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. According to Mehserle's motion for bail, 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. Mehserle's partner on duty, Officer Jon Woffinden, said the "incident was one of the most frightening he had experienced in his 12 years as a police officer."
Mehserle's motion for bail, citing the police investigation, stated:
"Officer Pirone directed Officer Mehserle to arrest two of the individuals who had not been handcuffed. One of the individuals to be arrested was Oscar Grant, and Officer Pirone’s direction to Mehserle was overheard by Grant. Grant, upon hearing that he was under arrest, attempted to stand up, but was forced to the ground face first. Both Officer Mehserle and Officer Pirone attempted to restrain Mr. Grant and to seek his compliance by ordering him to put his hands behind his back to be handcuffed, but Mr. Grant resisted and refused to submit to handcuffing. Officer Mehserle was pulling at Mr. Grant’s right hand and arm, which remained under his torso near his waistband. Mr. Grant had not been searched by any officer for weapons, either prior to his initial detention or after being seated near the wall."
A cell-phone video broadcast on local television station KTVU on January 23 showed what appeared to be Pirone rushing towards Grant and punching him in the face several times two minutes before he was shot. Grant's family alleges in their civil claim against BART that an officer threw Grant against a wall and kneed him in the face. Pirone's attorney stated that Grant provoked Pirone by trying to knee the officer in the groin and by hitting Officer Marysol Dominici's arm when she attempted to handcuff one of Grant's friends. Witnesses testified that Pirone was the aggressor during the incident. Burris also disputes Pirone's account and claims that Grant and his friends were "peaceful" when the train stopped. Grant then raised his hands while seated against the platform wall. Additional footage from a cell phone was presented in court showing Pirone standing over the prone Grant before the shooting and yelling: "Bitch-ass nigger, right?" Pirone and his attorney say he was merely parroting an insulting epithet that Grant had yelled at him.
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 semi-automatic pistol had fled from police and jumped off the station platform, breaking several bones.
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 TaserTaser
A Taser is an electroshock weapon that uses electrical current to disrupt voluntary control of muscles. Its manufacturer, Taser International, calls the effects "neuromuscular incapacitation" and the devices' mechanism "Electro-Muscular Disruption technology"...
. Pirone then knelt on Grant's neck and told him that he was under arrest for resisting an officer
Resisting arrest
Resisting arrest is a term used to describe a criminal charge against an individual who has committed, depending on the jurisdiction, at least one of the following acts:* threatening a police officer with physical violence while being arrested...
.
Mehserle's motion for bail, citing the police investigation, stated:
Pirone said he told Grant "Stop resisting, you're under arrest, put your hands behind your back." At that time Pirone said he heard Mehserle say, "Put your hands behind your back, stop resisting, stop resisting, put your hands behind your back." Then Mehserle said, "I'm going to taze him, I'm going to taze him. I can't get his arms. He won't give me his arms. His hands are going for his waistband." Then Mehserle popped up and said, "Tony, Tony, get away, back up, back up."
Pirone did not know if Grant was armed. Mehserle had fear in his voice. Pirone had never heard Mehserle's voice with that tone. Mehserle sounded afraid.
The motion also states that the man sitting next to Grant also told police he heard Mehserle say "I'm going to taze him."
Mehserle then stood up, unholstered his gun, a SIG Sauer P226, and fired a shot into Grant's back. Immediately after the shooting, Mehserle appeared surprised and raised his hands to his face; according to Michael Rains
Michael Rains
Michael Rains is a California criminal defense attorney known for representing police accused of misconduct, including the case of the BART Police shooting of Oscar Grant and a successful defense of the Oakland Riders. Rains also won acquittal of the Corcoran 8, prison guards accused of staging...
, Mehserle's criminal defense attorney, several eyewitnesses described Mehserle as looking stunned. Witnesses say Mehserle said "Oh my god!" several times after the shooting. and many saw him put his hands to his head.
The .40 caliber
.40 S&W
The .40 S&W is a rimless pistol cartridge developed jointly by major American firearms manufacturers Winchester and Smith & Wesson. The .40 S&W was developed from the ground up as a law enforcement cartridge designed to duplicate performance of the FBI's reduced velocity 10mm cartridge which could...
bullet from Mehserle's semi-automatic handgun entered Grant's back, exited through his front side and ricocheted off the concrete platform, puncturing Grant's lung. According to one witness, Grant yelled, "You shot me! I got a four-year-old daughter!" Grant died seven hours later, at 9:13 am, at Highland Hospital
Highland Hospital (Oakland, California)
Highland Hospital is a public hospital located in Alameda County, Oakland, California. It is operated by the Alameda County Medical Center.It is a Level II trauma center.- History :-External links:*...
in Oakland.
Initially there was disagreement about whether Grant was handcuffed before he was shot. Court filings by the district attorney's office say that Grant's hands were behind his back and that he was "restrained and unarmed" but do not say he was handcuffed. Video evidence showed Grant never surrendered his hands, and Mehserle voiced his fear that Grant was "going for his waistband," where weapons are often kept. In addition, the day after the shooting, BART spokesman Jim Allison said that Grant was not restrained when he was shot, and multiple witnesses testified that Grant refused to give up his hands for handcuffing prior to the shooting. The family's claim against BART stated that Grant was handcuffed only after he was shot. The Los Angeles Times video of the shooting shows that Grant was not cuffed at 2:03 seconds into the video, 5 seconds after the shot was fired.
BART Officer Marysol Domenici was first officer on the scene with her partner, Tony Pirone. Domenici testified at the BART incident hearing that Grant and his friends swore at her and did not obey her orders. She is quoted as having testified that: "If they would've followed orders, this wouldn't have happened. They probably would've just been cited and released." She was terminated by BART on an accusation that she was untruthful in her statements to transit investigators. On December 18, 2010, it was reported that San Francisco labor arbitrator William Riker ordered her re-instated with full back pay because there was no basis to find that Domenici was not telling the truth. Domenici's attorney, Alison Berry Wilkinson, was quoted as saying that "She [Domenici] has been vindicated."
Oscar Grant III
Hayward, California
Hayward is a city located in the East Bay in Alameda County, California. With a population of 144,186, Hayward is the sixth largest city in the San Francisco Bay Area and the third largest in Alameda County. Hayward was ranked as the 37th most populous municipality in California. It is included in...
. Grant had worked as a butcher at Farmer Joe's Marketplace in Oakland's Dimond District after jobs at several Kentucky Fried Chicken outlets. He attended both San Lorenzo
San Lorenzo High School
San Lorenzo High School, also known as "SLZ", is a public high school located in San Lorenzo, California and is part of the San Lorenzo Unified School District. Its crosstown rival is Arroyo High School...
and Mount Eden High Schools in Hayward until the 10th grade and eventually earned his GED
GED
General Educational Development tests are a group of five subject tests which, when passed, certify that the taker has American or Canadian high school-level academic skills...
.
Grant served two state prison terms for various felonies including a conviction for drug dealing. In 2007, San Leandro police stunned him with a Taser
Taser
A Taser is an electroshock weapon that uses electrical current to disrupt voluntary control of muscles. Its manufacturer, Taser International, calls the effects "neuromuscular incapacitation" and the devices' mechanism "Electro-Muscular Disruption technology"...
to subdue him after a traffic stop, during which Grant threw his loaded pistol into the air and ran. He was sentenced to 16 months in state prison.
Grant was released from prison on September 23, 2008, and according to the attorney for Grant's family, John Burris
John Burris
John Leonard Burris is an American civil rights attorney, based in Oakland, California, known for his work in police brutality cases representing plaintiffs....
, "had been doing well in recent months;" at the time of the shooting he was still on parole. Burris also stated that the criminal conviction and Tasering were "irrelevant to the BART shooting because Mehserle wasn't aware of it when he opened fire."
In the motion for bail, Mehserle's attorney, Michael Rains
Michael Rains
Michael Rains is a California criminal defense attorney known for representing police accused of misconduct, including the case of the BART Police shooting of Oscar Grant and a successful defense of the Oakland Riders. Rains also won acquittal of the Corcoran 8, prison guards accused of staging...
, stated that toxicology
Toxicology
Toxicology is a branch of biology, chemistry, and medicine concerned with the study of the adverse effects of chemicals on living organisms...
testing of Grant's blood revealed the presence of alcohol (0.02%)
Blood alcohol content
Blood alcohol content , also called blood alcohol concentration, blood ethanol concentration, or blood alcohol level is most commonly used as a metric of alcohol intoxication for legal or medical purposes....
and Fentanyl, a potent pain reliever. The coroner's bureau said the pathologist's autopsy
Autopsy
An autopsy—also known as a post-mortem examination, necropsy , autopsia cadaverum, or obduction—is a highly specialized surgical procedure that consists of a thorough examination of a corpse to determine the cause and manner of death and to evaluate any disease or injury that may be present...
protocol would be finalized in March 2009.
Grant's funeral was held at the Palma Ceia Baptist Church in Hayward on January 7, 2009. Grant's mother, sister, daughter, and girlfriend (his daughter's mother) filed a wrongful death claim
Wrongful death claim
Wrongful death is a claim in common law jurisdictions against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives, as enumerated by statute...
against BART following his death.
Johannes Mehserle
The oldest of three children, Johannes Sebastian Mehserle (born in Germany circa 1982) was raised in the Bay Area from the age of four. He graduated in the class of 2000 from New Technology High SchoolNew Technology High School
New Technology High School is a secondary school located in Napa, California.The school was founded in 1997 as a joint project of the Napa Valley Unified School District and the business community of the Napa Valley. One business community member, Ted Fujimoto, was instrumental in visioning the...
in Napa
Napa, California
-History:The name Napa was probably derived from the name given to a southern Nappan village whose people shared the area with elk, deer, grizzlies and cougars for many centuries, according to Napa historian Kami Santiago. At the time of the first recorded exploration into Napa Valley in 1823, the...
, California. He attended college in Napa, in Monterey, and at Sonoma State University
Sonoma State University
Sonoma State University is a public, coeducational business and liberal arts college affiliated with the California State University system. The main campus is located in Rohnert Park, California, United States and lies approximately south of Santa Rosa and north of San Francisco...
, where he majored in business, and he developed an interest in police work through a friend who was a police officer. He went on to graduate from Napa Valley College
Napa Valley College
Napa Valley College, formerly known as Napa Community College, is one of California's community colleges, located in Napa Valley. The main campus is in Napa, California, with an Upper Valley Campus in St. Helena and a Small Business Development Center in downtown Napa. In 2004-2005, the total...
Police Academy
Police Academy
Police Academy is a series of American comedy films, the first six of which were made in the 1980s. The seventh and to date last installment, Mission to Moscow, was released in 1994. The series opened with Police Academy which started with the premise that a new mayor had announced a policy...
in 2006, where he placed in the top five of his class academically and placed well physically. Mehserle's girlfriend gave birth to their first child on the day after the shooting, on January 2, 2009.
Mehserle joined the Bay Area Rapid Transit (BART) Police in March 2007. During the less than two years prior to the shooting, he had not been the subject of a sustained complaint from BART's internal affairs
Internal affairs (law enforcement)
The internal affairs division of a law enforcement agency investigates incidents and plausible suspicions of lawbreaking and professional misconduct attributed to officers on the force...
department Since the shooting, a Bay Area man has complained to the media that Mehserle had beaten him on November 15, 2008; Mehserle's police report on the incident states that four officers grabbed the man after he yelled threats and assumed a fighting stance. The accuser, who has served time for theft and burglary, was taken to the hospital for chest and facial injuries and was later booked into jail for resisting arrest. He has not filed a formal complaint against BART.
Mehserle submitted to drug and alcohol testing per BART's standard operating procedure. The results showed no drugs or alcohol in his system. He retained a criminal defense attorney and refused to speak to the authorities, invoking the Public Safety Officers Procedural Bill of Rights Act and the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
, claiming potential 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.
Riot 2009
Disperse
Disperse is a Christian Rock band from Southern Indiana. The band was formerly known, with an adjusted roster, as "Stuff."-Members :...
the crowds. During the course of the evening, among other peaceful protest tactics, some of the protesters turned to riot
Riot
A riot is a form of civil disorder characterized often by what is thought of as disorganized groups lashing out in a sudden and intense rash of violence against authority, property or people. While individuals may attempt to lead or control a riot, riots are thought to be typically chaotic and...
ing and rampant property vandalism
Vandalism
Vandalism is the behaviour attributed originally to the Vandals, by the Romans, in respect of culture: ruthless destruction or spoiling of anything beautiful or venerable...
. Black Bloc
Black bloc
A black bloc is a tactic for protests and marches, whereby individuals wear black clothing, scarves, ski masks, motorcycle helmets with padding, or other face-concealing items...
and other rioters smashed hundreds of car and shop windows, several private cars and numerous trash containers, and dumpsters. Public buildings such as the Oakland Police Internal Affairs office and almost restored Fox Theatre were heavily vandalized. The rioting wound down later in the evening and resulted in at least 105 arrests for suspicion of various offenses. Over 300 businesses were affected by the vandalism.
The effect of the wide viewership of the Direct evidence
Direct evidence
Direct evidence supports the truth of an assertion directly, i.e., without an intervening inference...
videos of the shooting, and the riots themselves were covered in the United States in regional, national, in international,
Video images of the shooting were widely broadcast and streamed online in the days following Grant's death. Several hundred thousand viewed the videos in the first few days after the incident. Widespread dissemination of the direct evidence
Direct evidence
Direct evidence supports the truth of an assertion directly, i.e., without an intervening inference...
of the shooting led to public outrage and protests and fueled riots. The riots highlight the impact technology can have on news events.
Community members and activists decried the shooting incident as yet another case of police brutality. There was a broad public perception that BART Police and the Alameda County District Attorney's office were not conducting an effective investigation. Others were angry that Mehserle allegedly did not cooperate with Police and District Attorney's Office investigators.
Fruitvale protest and march; downtown rioting
On January 7, 2009, protests over the shooting and administration of justice began peacefully about 3:30 p.m. with about 500 people gathering at the Fruitvale station. In the early evening, some of the protesters marched toward Oakland's central business district and downtown. Over 200 Oakland police officers were dispatched in an attempt to disperse the protesters. Police roadblockRoadblock
A roadblock is a temporary installation set up to control or block traffic along a road. The reasons for one could be:*Roadworks*Temporary road closure during special events*Police chase*Robbery*Sobriety checkpoint...
ed streets and diverted vehicle and foot traffic.After entering the central business district the march continued to BART Police command and control headquarters at 8th & Madison streets near the Lake Merritt BART station.
Once at BART Police Command and Control, a contingent of angry protesters surrounded a police car. The officer driving the car fled on foot. Meanwhile, the rioters broke out the cruiser's windows and attempted to overturn it. A line of police wearing gas masks swept up behind the rear of the march and deployed tear gas in an attempt to disperse the crowd.
The protest continued as the crowd marched along 8th Street through Chinatown. At Broadway, officers wearing gas masks deployed more tear gas canisters and acted quickly to charge and disperse the crowd as they approached the vicinity of Oakland Police headquarters at 7th and Broadway.
The protest regrouped downtown at the intersection of 14th and Broadway, blocking motor vehicle traffic. Some of the protesters lied face down in the intersection, in a symbolic act of solidarity with Grant, who was killed in the same position. Others shouted at police and chanted in unison. Others carried signs that read, "Your idea of justice?" and "Jail Killer Cops" and lit candles in remembrance of Grant.
Police in helmets and gas masks grouped in standing line formations on the south, west, and north sides of the intersection, allowing an avenue of retreat down 14th Street on the East side of the intersection.
About an hour later Police gave orders to disperse and fired tear gas grenades, rubber bullets, and other "less lethal" weapons and devices at demonstrators. Protestors threw bottles, rocks, and other objects at police. Police pushed the crowd east along 14th Street into the Lakeside Apartments District
Lakeside Apartments District, Oakland, California
The Lakeside Apartments District neighborhood, also known as The Gold Coast, and simply as The Lakeside, is one of Oakland, California's historic residential neighborhoods between its Downtown district and Lake Merritt...
and the scene dissolved into a riot
Riot
A riot is a form of civil disorder characterized often by what is thought of as disorganized groups lashing out in a sudden and intense rash of violence against authority, property or people. While individuals may attempt to lead or control a riot, riots are thought to be typically chaotic and...
along the 14th Street spine.
Numerous helicopters which had been airborne throughout the evening, converged on the area. Law enforcement helicopters shined powerful spotlights down onto surface streets, while media helicopters shot video of developments from overhead, which were broadcast in real time on local television stations.
In the ensuing hours, a small clutch of rioters burned the contents of trash cans, dumpsters, newspaper boxes and set fire to at least five cars, including an Oakland police patrol car. Some rioters jumped from parked car to parked car, smashing in the front and rear windshield like crushed eggshells The riot spread deep into the Lakeside Apartments District
Lakeside Apartments District, Oakland, California
The Lakeside Apartments District neighborhood, also known as The Gold Coast, and simply as The Lakeside, is one of Oakland, California's historic residential neighborhoods between its Downtown district and Lake Merritt...
and cars were burned and heavily damaged on Madison Street. Other rioters in this clutch broke storefront windows, to include those of a McDonalds fast food restauarant at Jackson and 14th Streets in the Lakeside Apartments District
Lakeside Apartments District, Oakland, California
The Lakeside Apartments District neighborhood, also known as The Gold Coast, and simply as The Lakeside, is one of Oakland, California's historic residential neighborhoods between its Downtown district and Lake Merritt...
. The night of the riot coincided with trash collection day the following morning and numerous trash dumpsters and containers were parked curbside. Rioters used these dumpsters to start fires along city streets. Rioters damaged some of the carefully restored historic woodwork and terra cotta on the nearly restored Fox Theater. Damage to the Fox was preliminarily estimated at $10,000 to $20,000.
Dellums' appearance and rioting flare up
As the rioting moved east toward Lake Merritt, Oakland Mayor Ron DellumsRon Dellums
Ronald Vernie "Ron" Dellums served as Oakland's forty-fifth mayor. From 1971 to 1998, he was elected to thirteen terms as a Member of the U.S...
and Larry Reid held an impromptu press conference at 14th and Jackson Streets, along the spine of the rioting, and called for the crowd to disperse peacefully. Dellums peacefully marched with the crowd back West along 14th Street to the steps of City Hall, where he attempted to address the crowd, but cut the meeting short and entered City Hall after the crowd became agitated, began booing, and shouted Dellums down.
After Dellums entered City Hall with his own delegation, locking the doors behind him, the demonstrators continued through City Hall Plaza, with angry splinter groups of rioters smashing the windows of Oakland Police Department's Internal Affairs and Recruiting Office at the East side of 250 Frank Ogawa Plaza. Windows of police cruisers parked outside the offices were also smashed.
The protesters continued east along 17th Street into the 17th Street Commercial District in Oaksterdam
Oaksterdam
Oaksterdam is a cultural district on the north end of downtown Oakland, California, where medical cannabis in a variety of competitively priced smokeable and edible preparations is available for purchase in multiple cafes, clubs, and patient dispensaries. Oaksterdam is located on the north end of...
, crossing Broadway and Franklin, where rioters broke numerous storefront windows, and continued back into the Lakeside District
Lakeside Apartments District, Oakland, California
The Lakeside Apartments District neighborhood, also known as The Gold Coast, and simply as The Lakeside, is one of Oakland, California's historic residential neighborhoods between its Downtown district and Lake Merritt...
, lighting discarded christmas trees on fire. Police continued their efforts to disperse the crowds, and rioting continued on Broadway Downtown.
Denouement and subsequent media coverage
The rioting wound down around 10:40PM in the vicinity of 20th and Broadway outside of the Paramount Theater, where police detained around 80 individuals for various offenses. Most were cited and released for complaints which include inciting a riot, vandalismVandalism
Vandalism is the behaviour attributed originally to the Vandals, by the Romans, in respect of culture: ruthless destruction or spoiling of anything beautiful or venerable...
, assault
Assault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
on a police officer, and arson
Arson
Arson is the crime of intentionally or maliciously setting fire to structures or wildland areas. It may be distinguished from other causes such as spontaneous combustion and natural wildfires...
. Police recovered two handguns from the rioters. Around 120 people in total were arrested for offenses arising from the protests during the course of the evening. Two have been charged to date.
The Lake Merritt
Lake Merritt (BART station)
The Lake Merritt Bay Area Rapid Transit station is located in Downtown Oakland on Oak Street near Lake Merritt, Chinatown, Laney College and the Oakland Museum. This station consists of an underground island platform....
and 12th Street
Oakland City Center/12th Street (BART station)
12th Street Oakland City Center is an underground Bay Area Rapid Transit station located at 12th Street and Broadway next to the Oakland City Center in Downtown Oakland...
BART stations were temporarily shut down during the evening.
Numerous media photographers and videographers, both affiliated and independent, filmed the scene from close proximity on the ground. Media helicopters shot video of developments from overhead, which were broadcast in real time on local television stations.
Reaction from the business community and city officials
The riots have augmented the perception of crime in Oakland, adding to last year's run of takeover robberies, and are a challenge to overcome for greater economic investment. The Dellums administration held a press conference in City Hall Hearing room 4 on 8 January and decried the riots as regressive. Dellums noted there were riots in the streets of Oakland 40 years ago "and here we are, still smashing cars. Dellums noted that people were upset and had "lost faith in the process" because of what he called lack of communication by BART officials and the district attorney's office in the days after Grant was killed. BART has also been criticized for not ordering Mehserle to speak to internal affairs earlier.Criminal trial
On January 12, Alameda CountyAlameda County, California
Alameda County is a county in the U.S. state of California. It occupies most of the East Bay region of the San Francisco Bay Area. As of the 2010 census it had a population of 1,510,271, making it the 7th most populous county in the state...
District Attorney Tom Orloff
Tom Orloff
Thomas Jensen Orloff is the retired district attorney for Alameda County, California.Orloff began work in the DA's office after graduating Boalt Hall in 1970, trying 25 murder cases before becoming Chief Assistant DA in 1989. When District Attorney Jack Meehan retired in 1994, Orloff ran unopposed...
filed a complaint for murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
and an Alameda County Superior Court Judge then signed a fugitive arrest warrant. Mehserle was arrested January 13 at a friend's home in the Zephyr Cove, Nevada, area near Lake Tahoe
Lake Tahoe
Lake Tahoe is a large freshwater lake in the Sierra Nevada of the United States. At a surface elevation of , it is located along the border between California and Nevada, west of Carson City. Lake Tahoe is the largest alpine lake in North America. Its depth is , making it the USA's second-deepest...
where his attorney said he had gone after receiving death threats in the Bay Area. Mehserle waived extradition
Extradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
, and was held in protective custody
Protective custody
Protective custody is a type of imprisonment to protect a prisoner from harm, either from outside sources or other prisoners. Many administrators believe the level of violence, or the underlying threat of violence within prisoners, is a chief factor causing the need for PC units...
at the Santa Rita jail in Dublin
Dublin, California
Dublin is a suburban city of the East Bay region of Alameda County, California, United States. Located along the north side of Interstate 580 at the intersection with Interstate 680, roughly east of Hayward, west of Livermore and north of San Jose, it was named after the city of Dublin in...
, California. Mehserle pleaded not guilty at his arraignment January 15. On January 30, Alameda County Superior Court Judge Morris Jacobson set bail
Bail
Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...
for Mehserle at $3 million. A week later, with the help of fundraising from the police union, Mehserle posted bail.
Alameda County District Attorney Tom Orloff refused to speculate whether Mehserle would be charged with first or second degree murder, saying "What I feel the evidence indicates is an unlawful killing done by an intentional act and from the evidence we have there's nothing that would mitigate that to something lower than a murder." Orloff noted Mehserle's refusal to explain himself as a reason for charging him with murder, rather than manslaughter
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
. Orloff said he would fight any motion to change venue
Change of venue
A change of venue is the legal term for moving a trial to a new location. In high-profile matters, a change of venue may occur to move a jury trial away from a location where a fair and impartial jury may not be possible due to widespread publicity about a crime and/or its defendant to another...
for the trial.
Mehserle retained Pleasant Hill
Pleasant Hill, California
Pleasant Hill is a city in Contra Costa County, California, United States, in the East Bay of the San Francisco Bay Area. The population was 33,152 at the 2010 census. It was incorporated in 1961...
criminal defense attorney Michael Rains, who previously successfully represented one of the Oakland Riders. Before Mehserle retained Rains, Rains told the Associated Press
Associated Press
The Associated Press is an American news agency. The AP is a cooperative owned by its contributing newspapers, radio and television stations in the United States, which both contribute stories to the AP and use material written by its staff journalists...
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's defense was paid for by a statewide fund for police officers.
Bail hearing
At a January 30 bail hearing, Rains told the court that Mehserle had only carried a Taser for a few shifts prior to the January 1 shooting and mistakenly deployed his service weapon when he thought Grant was reaching for a gun. Rains stated "Mr. Grant was actively, actively, actively resisting arrest" and that some witnesses heard Mehserle say "Get back, I'm gonna taze him." Rains said he plans to call witnesses who will show "there was a level of resistance by Oscar Grant and others that will negate malice".The prosecutors' theory of the case is that the video evidence shows that Mehserle deliberately reached for his weapon. They argued: "What we see in the video is an officer releasing his control of a suspect, standing up, drawing his weapon, with some difficulty, and shooting it." Jacobson agreed in deciding to set bail at $3 million that Mehserle's claim of Taser confusion was inconsistent with his earlier statement to a fellow officer and that Mehserle might be changing his story. He later imposed a gag order
Gag order
A gag order is an order, sometimes a legal order by a court or government, other times a private order by an employer or other institution, restricting information or comment from being made public.Gag orders are often used against participants involved in a lawsuit or criminal trial...
on attorneys and investigators in the case, prohibiting them from releasing future filings or otherwise commenting to the press.
Preliminary hearing
Rains argued during the preliminary hearing that Mehserle lacked the malice necessary for a murder charge and that he intended to tase Grant. A BART officer testified saying Grant and his friends yelled profanities and did not obey her orders to sit down moments before Mehserle fired at Grant. She said she was fearful when she heard taunts coming from Grant, his friends, and passengers on the train. After the seven days of testimony, Judge C. Don Clay concluded that Mehserle had not mistakenly used his service pistol instead of his stun gun. The judge based this on Mehserle's statements to other officers that he thought Grant had a gun. He also noted that Mehserle had held his weapon with both hands when he was trained to use just his left if he was firing a Taser. Mehserle faced up to life in prison if convicted of first-degree murder.In a supplemental motion filed Rains argued that Judge Clay should take a second look at a ruling that barred him from presenting evidence about Grant's criminal background as well as a ruling that barred him from presenting evidence that Mehserle told a fellow officer just before the shooting incident that he planned to use his Taser on Grant. He protested that "Both rulings amount to grave errors under longstanding and never-questioned California authorities" and alleged that they "substantially interfere with Mehserle's federal due process right to defend against the murder charge." Rains had also failed to convince Judge Clay to remove District Attorney Tom Orloff's office from the case. Rains claimed Orloff violated his client's rights because he ordered two Oakland police officers to try to interview Mehserle after he was arrested even though Orloff knew Mehserle had an attorney. Judge Clay said Orloff's actions did not prove a bias nor did it meet the requirements necessary for him to be taken off the case.
Plea and jury selection
On June 19, 2009, Mehserle pleaded not guilty, and the jury trial was scheduled to begin in October. Mehserle's attorney Michael Rains sought a change of venue of the trial on the grounds that there would not be an impartial jury in Alameda County. Citing extensive media coverage and social upheaval, the judge agreed. Rains's request was honored on October 16, and downtown Los Angeles was chosen on November 19.Los Angeles County Judge Robert J. Perry was assigned to the case. He signaled that he would not allow cameras in the courtroom. There was a hearing on February 19, 2010 to address two issues. Mehserle's bail was not reduced as requested by the defense. The judge also rejected a motion to remove Alameda County prosecutors from the case. Rains had argued that prosecutors and detectives acted inappropriately when they interviewed Mehserle earlier in the case. Another hearing was set for March 26.
Mehserle's attorney is expected to argue that his client did not commit first-degree murder and has asked the judge to instruct the jury to limit its deliberations to either second-degree murder or acquittal. Rains wrote that Mehserle will not argue the killing was conducted in the heat of passion or in self-defense. Rains also argues that prosecutors have shown no evidence that the fatal shooting is either voluntary or involuntary manslaughter.
On May 7, Judge Perry granted a motion by defense to discuss Grant's conviction for possessing a gun and evading arrest. Perry formally selected the jury on June 8. The 12-member jury consists of eight women and four men; of these jurors, seven were white, four Hispanic, and one Asian. Of the alternates, there were five women and one man with three Asians, two whites, and one Hispanic. It is alleged that six of the jury have law enforcement connections. Grant's family expressed outrage at the absence of blacks in the jury. The day before the trial began, Deputy District Attorney David Stein revealed a photo that Grant took of Mehserle with a cell phone camera. The photo showed Mehserle pointing a Taser at Grant.
Taser confusion
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, this could provide a full or partial defense to the murderMurder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
charge, depending on whether Mehserle had a legal right to use his taser at all, which was also brought into question. Prosecutors allege that paperwork, including a blood alcohol test, completed by Mehserle after the shooting show that he has changed his story.
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. Mehserle was wearing his Taser on the left side of his body (on the opposite side from which he wore his gun) -- but set up for a cross-body, strong hand (right-hand) draw.
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.
Witness testimony
- June 14: Carlos Reyes recalled Mehserle saying "Oh shit, I shot him" after shooting Grant, whose former girlfriend, Sophina Mesa, testified she called Grant while he and his friends were being detained and he said: "They're beating us up for no reason, I'll call you back." Deputy District Attorney David Stein believes that Grant's phone call proves a desire not to resist arrest that night. Cell phone records showed two calls between Grant and Mesa: at 2:05 a.m. and 2:09 a.m., the latter just two minutes before Grant was shot.
- June 15: Three eye witnesses of the account testified that neither Grant nor the other suspects actively resisted the officers at any time. Each expressed disgust at the behavior from officers preceding the shooting that night.
- June 22: Jackie Bryson, one of Grant's friends "who was kneeling and handcuffed just inches from Grant when Johannes Mehserle shot him", testified for the prosecution. Bryson said that Grant's hands were under Grant's body and Grant said: "I quit. I surrender." Mehserle then supposedly said "Fuck this" before shooting Grant. Defense attorney Rains repeatedly accused Bryson of lying to convict Mehserle and pointed out a video showing Bryson running towards the train while handcuffed. Responding to Mehserle's question "You were going to leave your friend on that platform, weren't you?" Bryson said "I would never leave my friend." Rains accused Bryson of being inconsistent from statements in Bryson's lawsuit against BART, and Bryson admitted that he lied to investigators, distrusted the police, and was frequently stressed after Grant died.
- June 25: Mehserle took the witness stand. Sobbing, he said that he thought that he was not holding his gun until he heard a pop and looked at his right hand. Responding to a question from Rains, he recalled Grant saying "you shot me" right after the shot went off. Judge Perry called a recess after Oscar Grant supporter Timothy Killings shouted out to Mehserle to "save those fucking tears." Killings was later arrested for contempt of court.
Closing arguments and verdict
Judge Perry offered jurors three conviction options: second-degree murder (with a sentence of 15 years to life in prison), voluntary manslaughterVoluntary Manslaughter
Voluntary manslaughter is the killing of a human being in which the offender had no prior intent to kill and acted during "the heat of passion," under circumstances that would cause a reasonable person to become emotionally or mentally disturbed. In the Uniform Crime Reports prepared by the...
(3 to 11 years), or involuntary manslaughter (2 to 4 years); in addition the jury could have decided to acquit
Acquittal
In the common law tradition, an acquittal formally certifies the accused is free from the charge of an offense, as far as the criminal law is concerned. This is so even where the prosecution is abandoned nolle prosequi...
. Prosecutor Michael O'Brien said that Mehserle committed a crime inherently by shooting Grant. Intention meant murder or voluntary manslaughter, and an accident indicated recklessness on Mehserle's part and thus involuntary manslaughter. Judge Perry gave two interpretations of Mehserle's shocked reaction after shooting Grant: either Mehserle actually wanted to use his Taser or Mehserle realized that many people were witnessing his action.
Closing arguments took place on July 1. Expressing a belief that Mehserle "lost all control" the night he shot Grant and labeled the shooting as an accident to avoid liability, Deputy District Attorney David Stein asked the jury to convict Mehserle of second-degree murder. Defense attorney Rains argued that the shooting was accidental and told them not to make "some sort of commentary on the state of relations between the police and the community in this country." Jury deliberations began on Friday, July 2, and the jury had the day off on July 5 because of the Independence Day holiday. On July 6, deliberations were suspended after one juror left for vacation having notified the judge in advance, another juror went to a medical appointment, and another called in sick. One new alternate juror joined the panel. One juror submitted a question asking whether provocation by "sources other than the suspect(s)" can make one guilty of voluntary manslaughter. Stein argued that the jury should be able to consider outsiders' influence of Mehserle, but Rains disagreed.
On July 8, 2010, the jury informed the court that they had reached a verdict by 2:10 p.m. The deliberations with this jury panel totaled six and a half hours over the course of two days. At approximately 4 p.m., the jury found Johannes Mehserle guilty of involuntary manslaughter, and not guilty of both the second-degree murder and voluntary manslaughter charges. The jury also found Mehserle guilty of a gun enhancement charge that could add up to ten years to his prison sentence, make him ineligible for probation, and force him to serve 85 percent of his sentence as opposed to the 50 percent most state prisoners serve.
Despite having been free on a $3M bond, Mehserle was remanded into custody after the verdict was read. The next court date, when sentencing would occur, was set for November 5, 2010.
When the time of the verdict announcement was announced, many people packed BART trains to leave Oakland, and Interstates 880 and 980
Interstate 980
Interstate 980 is a short Interstate Highway spur entirely within Oakland, California, connecting Interstate 580 and State Route 24 to Interstate 880 near Downtown Oakland. I-980 passes the Oakland Convention Center and near the famous Jack London Square. I-980 is commonly considered the dividing...
had heavy traffic. There were multiple peaceful gatherings held throughout Oakland after the verdict was announced, and sporadic conflicts were quelled quickly by the police early in the evening. The protests became more violent as darkness fell—see "Protests and Violence" below.
A two-page letter written by Mehserle was released after the verdict in which he said: "no words can express how truly sorry I am."
Sentencing
Mehserle was originally scheduled to be sentenced on August 6, 2010. On August 6, sentencing was rescheduled for November 5, 2010 so the judge could hear additional motions in the case.On November 5, Mehserle was sentenced to two years with double credit for time already served, reducing his term by 292 days for the 146 days he has already spent in jail. The judge overturned the gun enhancement, which could have added an additional 3 to 10 years to the sentence. He was released from prison at 12:01am on June 13, 2011.
Video evidence
The incident and subsequent direct evidenceDirect evidence
Direct evidence supports the truth of an assertion directly, i.e., without an intervening inference...
of the shooting was documented by video cameras held by passengers on the train idling next to the platform, as police detained Grant and a number of other men police suspected of being involved in the disturbance. Several witnesses testified during the preliminary hearing
Preliminary hearing
Within some criminal justice systems, a preliminary hearing is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine whether there is enough evidence to require a trial...
for Mehserle's trial that they began recording because they believed BART officers were acting too aggressively. These videos were made available through television news and internet video.
Oakland attorney John Burris says BART confiscated numerous cell phone images that he believes contains additional evidence of the killing. Alameda County District Attorney Tom Orloff said video confiscated by BART was useful in bringing the murder charge against Mehserle. Witnesses at the scene also claim police attempted to confiscate cameras. These claims have not been confirmed by BART police.
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 a video by an anonymous passenger who submitted a cell phone video of the actual shooting.
On January 23, KTVU aired a cell-phone video which appeared to show a second officer punching Grant in the face prior to the shooting. In late February, KRON 4 aired a clip of a video showing a different angle of this altercation. In the report, former Alameda district attorney, Michael Cardoza, told KRON that Pirone appears to be attempting to restrain Grant by grabbing his head and pushing him down. He also said that Grant appeared to be reaching for Pirone's gun. Burris responded by calling it a "ridiculous assumption" since Grant was trying to resolve the problem.
BART spokesperson Linton Johnson described the surveillance footage from the Fruitvale platform cameras as "benign" and said the platform cameras had recorded some of the incident, but did not include the actual shooting.
There has been varying commentary on the video evidence. 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
University of San Francisco
The University of San Francisco , is a private, Jesuit/Catholic university located in San Francisco, California. Founded in 1855, USF was established as the first university in San Francisco. It is the second oldest institution for higher learning in California and the tenth-oldest university of...
law professor Robert Talbot said the videos could support a claim of an accidental shooting: "Nothing about his body looks murderous." Attorney Harland Braun
Harland Braun
Harland W. Braun is a Los Angeles, California criminal defense attorney. His cases have included successfully defending John Landis and his co-defendant George Folsey, Jr. in the Twilight Zone manslaughter trial, defending Rep...
, who won acquittal for an officer in the Rodney King
Rodney King
Rodney Glen King is an American best known for his involvement in a police brutality case involving the Los Angeles Police Department on March 3, 1991...
beating, noted that video evidence can be deceptive, and doesn't show what happened before or after an incident.
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 evidenceDirect evidence
Direct evidence supports the truth of an assertion directly, i.e., without an intervening inference...
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
On January 8, 2009, BART's elected directors offered apologies to the victim's family.BART later filed a legal response to the lawsuit that claimed that the shooting was "a tragic accident", and that Grant contributed to the fatal incident. BART said the officers were "just defending themselves" and that "Oscar Grant willfully, wrongfully, and unlawfully made an assault upon defendants and would have beaten, bruised, and ill-treated them if defendants had not
immediately defended themselves."
BART has also held multiple public meetings to ease tensions. BART board member Lynette Sweet said that "BART has not handled this [situation] 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. The Board of Directors created a transit police department review committee to review policies and monitor "major police incidents."
An investigation was launched to determine whether any other officers should be disciplined. On January 12, investigation results were forwarded to the district attorney. The investigation, which interviewed seven police officers and 33 other witnesses, came to no conclusion and made no recommendations. The details were forwarded to Meyers Nave, an outside law firm, for an independent investigation. It was led by Jayne Williams, the former city attorney for San Leandro
San Leandro, California
San Leandro is a city in Alameda County, California, United States. It is considered a suburb of Oakland and San Francisco. The population was 84,950 as of 2010 census. The climate of the city is mild throughout the year.-Geography and water resources:...
, and was estimated to cost $250,000. In August, the law firm provided two reports to BART but only released one publicly. The report said officers failed to follow recommended procedures, failed to work as a team, and had lapses in both tactical communication and leadership.
The footage of a cell-phone video showing Pirone striking Grant caused additional responses after KTVU's broadcast in January. BART General Manager Dorothy Dugger angrily said a "rigorous" internal affairs investigation would be ordered. Later, an attorney representing BART, said that Grant provoked Pirone's blow by trying to knee Pirone at least twice, "It is our position that there was a provocation and assault on Mr. Pirone based upon a video that shows Mr. Grant apparently hitting Mr. Pirone with his knee," On September 22, KTVU reported that Meyers Nave had recommended the termination of Tony Pirone and Marysol Domenici in its unreleased report. After being on leave since the incident, Domenici was terminated on March 24, 2010. Pirone was terminated on April 21 after an internal investigation upheld a finding of misconduct against him.
Public reaction
There was a broad public perception that BART Police were not conducting an effective investigation. Efforts by BART officers to confiscate witnesses' cellphones during the incident created controversy. The shooting stirred outrage among political leaders and legal observers; Alameda County Supervisor Keith Carson, Oakland City Councilmember Desley Brooks (Eastmont-Seminary), and Berkeley Copwatch
Copwatch
Copwatch is a network of activist organizations in the United States and Canada that observe and document police activity while looking for signs of police misconduct and police brutality...
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." The fact that the jury contained no African-Americans also served as a point of tension.
Reason legal commentator Radley Balko
Radley Balko
Radley Balko is an American libertarian journalist, blogger, and speaker.- Education :Balko earned a B.A. in journalism and political science in 1997 from Indiana University.- Employment and publications :...
stated that he found "simply no basis for the accusation that Mehserle intentionally executed a man in front of dozens of witnesses" and described the verdict as "appropriate" although not "popular".
San Francisco KPFA-FM host J.R. Valrey has made a film “Operation Small Axe” which focuses on the Grant shooting, and also the Lovelle Mixon case, within the larger context of police brutality in the Bay Area. Valrey is screening the movie around the country in 2010. The film was directed and produced by Adimu Madyun and won the 2010 Rise Up Award from The Patois International Rights Film Festival in New Orleans, but Varney has also stirred controversy. "The headline for a cover story in the East Bay Express called Valrey an 'Agent Provocateur' – a term generally associated with police informants assigned to cause violence," wrote Temple University
Temple University
Temple University is a comprehensive public research university in Philadelphia, Pennsylvania, United States. Originally founded in 1884 by Dr. Russell Conwell, Temple University is among the nation's largest providers of professional education and prepares the largest body of professional...
associate professor Linn Washington, Jr. after a Philadelphia screening. "That article referred to Valrey as an 'advocacy journalist' who did things 'no mainstream journalist would do,' like speaking at an anti-police brutality rally. 'They tried to get the community to turn against me but I have strong support in the community,' said Valrey, who [also] serves [as] an editor at the San Francisco Bay View, a black owned online newspaper," Washington continued. While in Washington, DC for a screening, Valrey was accompanied by Malcolm Shabazz
Malcolm Shabazz
Malcolm Lateef Shabazz is the son of Qubilah Shabazz, the second daughter of Malcolm X and Betty Shabazz. His father is an Algerian Muslim whom Qubilah Shabazz met in Paris. He is the first male descendant of Malcolm X...
, grandson of Malcolm X
Malcolm X
Malcolm X , born Malcolm Little and also known as El-Hajj Malik El-Shabazz , was an African American Muslim minister and human rights activist. To his admirers he was a courageous advocate for the rights of African Americans, a man who indicted white America in the harshest terms for its...
. Shabazz spoke of "his life since being released from prison for the arson of his grandmother’s house" in a joint appearance. A blogpost which reported on the screening connected the title of the film to Bob Marley
Bob Marley
Robert Nesta "Bob" Marley, OM was a Jamaican singer-songwriter and musician. He was the rhythm guitarist and lead singer for the ska, rocksteady and reggae band Bob Marley & The Wailers...
's lyric "So if you are the big tree, then we are the small axe." The post also linked to a recent annotated first-person account of the Shabazz story.
Protests and violence
Riots
On January 7, 2009 a protest march in Oakland involving about 250 people 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 dispersed a crowd of about 100 demonstrators after some of the protesters stopped vehicles and threw trash cans in the street.A January 14, 2009 demonstration briefly turned violent, and police arrested 18 people after protesters smashed car and store windows in Oakland's City Center
Oakland City Center
Oakland City Center is an office and shopping and hotel complex in Downtown Oakland, California. The complex is the product of a redevelopment project begun in the late 1950s. It covers twelve city blocks between Broadway on the east, Martin Luther King Jr. Way...
district. Another eight were arrested in a January 30 demonstration after Mehserle's bail hearing, causing Mayor Ron Dellums
Ron Dellums
Ronald Vernie "Ron" Dellums served as Oakland's forty-fifth mayor. From 1971 to 1998, he was elected to thirteen terms as a Member of the U.S...
to suggest that Mehserle's right to bail should be abrogated to prevent violence in the community.
Oakland Tribune columnist Katherine Drummond criticized the protestors as "self-described 'anarchists,' who aren't even from Oakland, and wannabe Black Panther Party
Black Panther Party
The Black Panther Party wasan African-American revolutionary leftist organization. It was active in the United States from 1966 until 1982....
members... playing right into the hands of the defense" by giving Mehserle a plausible case for change of venue.
On May 18, 2009, 100 protested outside of the courthouse during the preliminary hearing and then marched to the nearby Oakland Police Department. A protest organizer was arrested after the group blocked traffic.
Protests continued throughout the pretrial process. The hearing on February 19, 2010 saw 50 protesters with signs outside of the Los Angeles courthouse. An estimated 200 protesters gathered at San Francisco's Embarcadero BART station on April 8, 2010 to call for the disbanding of the transit system's police department and the firing of an officer who was on the scene when Grant was shot.
On July 8, 2010, following the verdict, protests began peacefully, and officials commended both the protestors and the police for their demonstrated restraint. As night fell, vandals engaged in opportunistic looting of local businesses, such as The Foot Locker, a bank, and a jewelry store. Oakland's police chief was quoted as saying that the people doing violence did not primarily seem to be Oakland residents protesting the verdict, but instead were self-styled "anarchists...who are almost professional people who go into crowds like this and cause problems." Oakland police arrested 83 people on a variety of charges ranging from vandalism to failure to disperse to assault. According to the Oakland Police Chief Batts, nearly 3 out of 4 of those arrested during the protest do not live in Oakland.
The San Francisco Chronicle reported that many of the rioters who were most aggressive in damaging Oakland businesses and property were organized white anarchists wearing black clothing and hoods. An anarchist slogan was painted on one wall that read "Say 'no' to work. Say 'yes' to looting."
Some Oakland officials objected to the "anarchist" label, commenting that the outside agitators seemed to lack any cohesive philosophy and were simply bent on making trouble.
Civil action
Oakland attorney John Burris filed a $25 million wrongful death claim against BART on behalf of Grant's family on January 6, 2009. 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 seizureSearch and seizure
Search and seizure is a legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.Some countries have...
, false arrest
False arrest
False arrest is a common law tort, where a plaintiff alleges they were held in custody without probable cause, or without an order issued by a court of competent jurisdiction...
, and excessive force
Excessive Force
Excessive Force is a musical side project started in 1991 by Sascha Konietzko of KMFDM and Buzz McCoy of My Life With the Thrill Kill Kult.-History:...
. Such claims are prerequisites to a civil lawsuit if BART denies the claim or fails to respond within 45 days.
Part of a $50 million federal civil rights lawsuit brought by Grant's family was closed when BART settled with the mother of Grant's daughter for $1.5 million. Grant's daughter will receive a series of payouts until her 30th birthday.