Training, preparation, and evaluation of officer involved shootings typically focus on the physical conflict without looking at the other battles that continue long after the physical conflict has ended. To completely survive an officer involved shooting, you must prevail in all the battles.
This update is part of an ongoing series about officer involved shootings. It began with The Bart Shooting and continued with a short update when Mehserle confirmed he intended to fire his Taser instead of his pistol. We are doing a similar series on an Austin PD officer involved shooting.
The Shooting
On January 1, 2009 Bay Area Rapid Transit (BART) Officer Johannes Mehserle shot Oscar Grant during a disturbance at the Fruitvale Station in Oakland. The incident was captured by several cell phone videos, the main video shown below. The video went viral and ignited racial tensions in the Bay Area. If you are interested in the details of the shooting, the BART Shooting Wikipedia entry has been fairly detailed and objective.
If video is not visible then click this link.
Legal Battles
Criminal Trial
After the shooting Mehserle refused to give a statement and resigned when ordered to give one. On January 12th the BART police completed their investigation and passed the findings to the Alameda County DAs office. Two days later the DA filed on Mehserle for murder and a warrant was issued for his arrest. Mehserle had left town because of death threats and was contacted through his attorney’s office. He voluntarily turned himself in to authorities in Nevada and waived extradition.
Bail was set for Mehserle at three million dollars. The judge cited Mehserle’s “flight” to Nevada for the high bail. Mehserle was able to post bail with police union help but later attempts to reduce the amount have been unsuccessful.
The preliminary trial took seven days and resulted in Mehserle being ordered to stand trial for murder. Judge Don Clay rejected Mehserle’s defense by stating, “There is no doubt in my mind that Mr. Mehserle intended to shoot Oscar Grant with his gun and not a Taser.”
Mehserle’s criminal trial is set for October 13th.
Civil Lawsuits
Oscar Grant’s family filed a civil lawsuit within days after the shooting. The same attorney filed a $1.5 million claim on behalf of Oscar Grant’s friends that were with him. Finally, Oscar Grant’s father, who has been in prison for murder since Oscar Grant was 1 month old, filed a separate federal lawsuit against BART.
Federal Investigation
BART requested the assistance of the Department of Justice to investigate civil rights issues related to the shooting or BARTs policies and procedures. The DOJ responded with a letter that confirmed the DOJ was monitoring the response to the incident. The Civil Rights Division would determine if federal prosecution was needed after the state trial was concluded. In previous high profile incidents like Rodney King, the officers were charged federally when acquitted on state charges.
The letter also mentioned the Special Litigation Section that is responsible for enforcing the Violent Crime Control and Law Enforcement Act. This section could bring a civil action against BART forcing it to sign a consent decree or memoranda of agreement.
Career Battles
Internal Investigation
This incident already cost Mehserle his job when he resigned as a criminal defense strategy. Typically the internal investigation would become a formality when that happens. However the fallout from this shooting has spread beyond Mehserle to fellow officers. The first two officers that responded, Tony Pirone and Marysol Domenici have been on paid leave since the shooting.
BART chose to have an outside law firm conduct the internal investigation at a cost of $250,000. Two reports were produced by the law firm. One was focused on personnel issues and is confidential under state law. Despite the confidential nature, A TV station recently reported that this report recommended firing Pirone and Domenici.
The second report reveals all aspects of the investigation that could be released to the public. This report was extremely critical of officers and supervisors during the incident as well as the policies and procedures of the police department. BART has begun implementing the changes recommended by this report.
Chief Retiring
Chief Gary Gee announced his retirement right after the BART board passed their model of civilian oversight. He will retire on December 30, 2009 after nine years as Chief and 42 years in law enforcement.
Departmental Battles
Civilian Oversight
Since the shooting, several different attempts have been made to provide civilian or independent oversight over the BART police department. To be enacted, the oversight process must be approved be the state legislature. The first model presented by the BART board had both an independent auditor and civilian review board. This created a convoluted process that was criticized for being inefficient and ineffective. As a result no state legislator would sponsor their model.
A legislator later proposed a bill that only gave the citizen review board the power to recommend punishment to the police chief. That bill was withdrawn when it could not gain enough support before the legislative session ended.
Review of Departmental Policies
In an attempt to avoid federal oversight by a consent decree, BART asked the National Organization of Black Law Enforcement Executives (NOBLE) to review BART’s hiring practices, training, equipment, and policies. The price for the review was $127,688.
On Sept 29, NOBLE published the results including an executive summary that criticized almost every aspect of the BART police department except their response times to calls.
Thoughts
These investigations have deteriorated to finding blame rather than finding truth. One thought remains in my head while following all of these hearings and reports. What if Mehserle did make a mistake and accidently used his gun instead of his Taser? Watching Mehserle’s reaction after the gun goes off, I find it hard to believe he intended to shoot Oscar Grant.
This shooting was a tragedy and efforts should be made to keep it from happening again, but will any of the policy changes recommended by the law firm or NOBLE do that? It feels like getting a flat tire in your car, throwing away the car, and making sure the next car is a different color, make, and model to ensure you don’t get another flat tire. Getting a new car is a dramatic change but isn’t an effective solution for the problem.
Further Reading and References
BART website with their ongoing response to the shooting
BART investigation by law firm
NOBLE report Executive Summary
NOBLE report chapters 1-4
NOBLE report chapters 5-14
NOBLE report chapters 15-16
Department of Justice Letter
BART report not expected to influence Mesherle trial
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Here is a handy tip: Don’t taser handcuffed men who have another officer on their neck and yet another officer on their legs. This kind of tasering of a subdued person is a felonious assault, and if the person dies it is felony murder.
Here is another tip: When you look down at your weapon before firing, note the color. If it is not yellow, then it is not your taser.
Yet another tip: if you meant to draw your taser, make that clear right away — even before the videos have surfaced on Youtube.
Yet another tip: if you meant to draw your taser, then don’t say, “I thought I saw a gun.” This is the exact wrong thing to say in that circumstance.