BART victim was 'restrained' when officer shot him, police say

Source: San Francisco Chronicle

BART victim was 'restrained' when officer shot him, police say

Wednesday, January 14, 2009

(01-14) 19:51 PST OAKLAND -- The unarmed man killed by former BART police Officer Johannes Mehserle on an Oakland train platform early New Year's Day put up a brief struggle with officers but had been restrained and had both arms behind him when he was shot in the back, police investigators said.

snip

It was an extraordinary decision. Several legal experts said they could recall no instance of a police officer in California being charged with murder for an on-duty incident, and Alameda County District Attorney Tom Orloff said he had never brought such a case in his 14 years on the job.

But the circumstances of the case are equally extraordinary, in that the shooting was filmed by several BART passengers and Mehserle has refused to talk to investigators about why he shot Grant. Orloff said Wednesday that both factors played into his decision to charge Mehserle with murder.

snip

Orloff said Mehserle had committed murder because he killed Grant in an intentional, unlawful act. Orloff said no evidence his office reviewed - witness statements and video shot by BART passengers, including footage that the public has not yet seen but which the district attorney called "very helpful" - pointed to a justification for the shooting.

snip

The filing adds that the other officer was holding Grant down on his stomach, with his knee on Grant's head and neck. Mehserle was "seen trying to pull Grant's right arm, which appeared to be underneath Grant's body," before abruptly shooting him, police said.

"After careful analysis of the video, it is clear that both Grant's hands were behind his back, a position hands are commonly placed in by police officers in order to handcuff individuals," the police filing said. It concluded that Grant had been "restrained and unarmed" when he was shot.

snip

Mehserle's silence, Orloff said, "made it more difficult in the sense that his statement could or could not have given me some insight into his thought process, and I didn't have that insight. The videos are very powerful on what act was committed. The issue likely to be in this case is, what was the mental state at the time that act was committed?"

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/14/MNJE15A6O2.DTL&tsp=1

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The more I saw the videos the more I noticed that the officer stood up, stepped back and didn't need to control Grant before shooting him. And that's what stuck with me. There was no struggle involving the officer when he shot Grant.

the video i saw seemed as if there were a few other officers standing around watching.

including 1 other holding the victim down as he was shot.

no wonder they've got him for murder, if it's obvious from a grainy video. i wonder why they didn't get the other officer for accessory?

So, for all we know, they were just restraining the suspect, and this officer snapped and decided to shoot him.

They all got a real "WTF?!" look when the other officer shot him.

"It was an extraordinary decision. Several legal experts said they could recall no instance of a police officer in California being charged with murder for an on-duty incident, and Alameda County District Attorney Tom Orloff said he had never brought such a case in his 14 years on the job."


The lesson I get is when cops are on duty in CA they have a license to kill, unless they get video taped.

I find it odd that none of the officers appeared to try to help Grant after he was shot. Their priority was to snatch cameras out of the hands of the witnesses.

If it was not for the videos that got away from the suppression and confiscation of cell phones we would not have heard about this! Thank YouTube for this case!

and people wonder why they are hated by so many...rogue cop, my ass.

He also states it is because he wouldn't give a statement but in fact almost no cop would without lawyering up....

This same thing must have played out untold times before, but this time bystanders had video and the pig will go down. Technology is helping keep tyranny at bay. Learn to use your cell phone video camera, you may find yourself in a similar position some day.

Ever see the video of the airman where the cop told him to stand up and then when he stood up, the cop shot him? No billed by the grand jury, even with videotape evidence. Oh yeah, and the cops did a little payback on the guy that did the videotaping as well.

that the psychological standards of the police is being diminished, and some will say, a sign that our society is moving towards a police state. So how willing would "Officer Loose Cannon" be too open fire with deadly force, on command and upon unarmed civilians? When We the People have been officially declared the enemy of the state…

Of course such things couldn’t happen here in the most feared and aggressive country on the planet!

FACTOID: "After careful analysis of the video, it is clear that both Grant's hands were behind his back ..."

During the late afternoon edition of CNN, the "expert" on with Rick Sanchez has been SUGGESTING that Grant had NOT been fully restrained and that both of his hands were NOT behind his back. Also he SUGGESTED that "The Officer" became confused and thought his gun was "a stun gun" that the BART cops had been issued within the past year. :eyes:

I am not buying it. I have no idea how they carry either one, but I think that we would see many more incidents of cops confusing the two guns if that were that easy to confuse. Besides, the story say that the cop was refusing to speak with investigators somehow, although I am not sure that was even possible to do. If the cop had a senior moment, so to speak, I would think he would have already used that excuse by now.

Just think how many dead there would be if the cops didn't get confused and pull out their stun gun by mistake! Stun guns save lives this way!

"This is my pistol, this is my stun gun. This one's for killing, and so is the other one."

in metal handcuffs) I'm thinking your partner is going to get it as well.

and yes I know cop killing young black (or old black men) is nothing new.
I think his superior should be fired for not having him arrested right away.

There was clear video and witness.

Before he turns to Grant, you can see him trying to subdue the man next to him, and it looks like he punches him until the man sits or kneels. Then, as he's leaning over Grant, you see him reach back and grab his holster, then returns to trying to cuff Grant, then he reaches back again, then stands and shoots.

After he shoots, the bald cop with his back to the camera looks stunned, and makes a gesture, like he's saying "WTF?" Meserhle says something, and makes a gesture himself, like he's explaining why he shot, then he reholsters the gun, snaps the holster (you can see the extra motion of snapping it, then unsnapping it, which makes me think he knew it was his gun and not his taser), and then starts trying to move Grant. None of the other cops really see what's happening, so they go into crowd control at that point, understandably.

What occurs to me is that none of the cops must be supporting him. If he had thought he had drawn his taser, someone would have said that by now, and the DA would take that into consideration. It would be hard to prove murder at that point, though manslaughter might be an option. But no one seems to be defending him. And from the video, he looks like he is pretty calm about it all--less shocked than his partner.

On the other hand, if he's convicted of murder, it might be harder to sue BART or the city for wrongful death. The suit would still win, but the settlement might be less if they throw Mehserle to the wolves than if they try to defend him. I can't imagine that's not a discussion that's been had.

as soon as he quit the force.

make a civil suit harder? Why would a settlement be less? That doesn't make sense.

then the penalties in a civil suit would likely be steeper than if the city could say "Those were the actions of an individual whom we put in jail for murder." They'd still likely be culpable for hiring him, training him, and just because he was on their clock (or BART's clock--I don't know exactly the relationship of Oakland entities) when it happened, but if they tried to support him or shield him, a plaintiff attorney would claim that they were not only responsible, but that their support after the fact created a mixed message for officers, and might even indicate that Meserhle's decision process was a direct result of his employer's attitudes.

are based on the age of the victim and their earning capacity over their lifetime.

The fact that the defendant has been convicted of a criminal offense is a help to a civil suit. it's already clear that a city or BART is responsible for the actions of their employees when they are on duty. That's not in question. The question is if the defendant acted wrongly, and a conviction for murder helps support that contention.

You're focusing on wrongful death, but the family could sue for Civil Rights violations as well. I wasn't concerned about who was prosecuting the murder, my only point is that the city (or BART) hasn't backed this cop, and there may be self-interest involved, in addition to any other considerations. If they back him, it seems to me they make themselves more liable to punitive damages in a suit in addition to any actual damages they will have to pay. I wasn't trying to say that a murder conviction would make it harder to sue for wrongful death damages, only that the city could be in worse trouble if they backed Meserhle, and that therefore there was self-interest as well as any outrage or sense of justice in their decision.

I could have worded that better originally, but it was an afterthought on an already-too-long post, so I didn't flesh it out.

of not talking, and the videos coming out that give better view - he really appeared to lose his cool and shot him because he was upsetting him - and yes, I agree with others - it's as if he'd still be on the force awaiting review if there was no video of this killing - AND - I was disgusted that the other officer who seemed 'in charge' didn't seem too concerned about Grant after he was shot. They were thugs, and the video show they BOTH were jerks and criminals, one was caught murdering the guy, the other didn't apprehend his fellow officer for doing it!

The thing is that that gun came out so damned naturally for him, so easy. To me it looks just like the ease with which video gamers shoot people in the games.

Which is, of course, one of my objections about the proliferation of violent video games out there.

I'd be willing to bet he has a history of playing violent first person shooter games.

If I played video games for a year straight, I wouldn't shoot a kid for no reason whatsoever. That's because I'm not a sociopath.

All this happened because it "looks" like he "may" have a history of playing violent games? You have no idea if he played any games at all, it just looks like he must have because he's a murderer?

I'm also a gun owner and a hunter (although I don't go out as much as I used to).

It would never even occur to me to draw a gun on someone in that situation. In my opinion, that cop is crazy and a murderer.

I am not about to put a cap in anyone. I am so sick of people blaming video games for someone's lack of judgment.

Let's face it, they're very stupid people.

I am not arguing right or wrong here or what punishment or charge is appropriate. I can't imagine what the family of the killed man is going through and wish no one would ever have to go through such a thing. My sympathy goes out to this family for what happened.

But there is something a legal expert needs to be asked around here and that is if he or she believes a murder charge will be successful in a criminal trial.

I am very curious what a criminal defense attorney, or a prosecutor, would have to add about this charge, because it seems a murder charge alone will be a very, very hard thing to prove in a court of law. Even the prosecutor in the report mentioned the importance of proving intent. And imagine if a murder charge results in an acquittal.

any history in the military? They could use a PTSD defense. It would get him sympathy from a jury, esp. if his wife shows up day after day with the baby.

Experts?

Look at that video and imagine you are on the jury.

Could you convict someone of murder?

The cop

1) let go of the suspect

2) stood up,

3) stepped back

4) pulled out his gun

5) pointed it at the suspect's back

6) shot the suspect at point blank range

the suspect could not move, did not get closer, the officer felt no need to keep his hands on him. he shot a man under full control who was unarmed.

this is complicated for you?

please!

First, examine this through the eyes of law and not through emotion and what you would like to see happen. I'm not talking about things like that.

There are so many side issues regarding this terrible incident that are going to come up much later when/if this case hits a courtroom.

I am not applying any sort of judgment in this discussion, but issues of law (that is why I wish to hear the comments of some criminal law experts).

A couple issues to examine are where this trial is going to end up being held and if it will be a jury or bench trial.

If it is a bench trial, if intent is not proven by the prosecutors and the defense is able to show the intent to murder was not there, it could lead to an acquittal during a trial by a lone judge or later in an appeal.

Think of it - if the prosecutor only charges this man with murder and the defense is able to successfully argue it was an accident or even possibly a weapon malfunction (yes, it may be laughable, but what if), then a charge of murder may not be sustainable.

Then there is the venue of any possible trial. And don't forget, this trial will probably be held more than a year from now.

Of course, all of these factors are moot if a witness or some additional information comes out that clearly proves the intent by the officer was to actually murder this poor man.

And I do not know the exact murder statute in California, but when it comes to court, whether one agrees with it or not, the legal definition of murder in California will be an important issue in this case.

Lastly, please don't misunderstand my point, I'm not arguing what this man did was justified. What I'm suggesting is if he is not charged with the appropriate offense, then later on that could be an issue in trial.

If the evidence does not support murder beyond a reasonable doubt.

The advocates for both sides have to agree to those instructions IIRC. It does happen. The defense isn't going to deny the obvious facts, which clearly support an unlawful killing.

Not to be cynical about this tragedy, but it would not have been politically wise of the DA to charge Mehserle with anything less than murder regardless of what he really thinks. The DA post is an elected office, and Mehserle's silence made it very easy for the state to raise that charge.

The situation was completely under the officers' control. Grant was not going anywhere nor was he any kind of threat. What happened there was cold blooded cowardly murder. I would charge the man with second degree. There was no damn excuse for his actions.

Or are you saying that if they are a cop it's hard to prove intent?

If they are a civilian, no problem proving intent?

If it weren't for the people raising hell about it, I bet they would have swept it under the rug despite evidence.

According to the news tonight, which is big because of Mehserle's arrest and the continuing demonstrations, Grant was restrained by a cop kneeling on his neck. You can see that in the video. Local news seems to be pretty accurate, from what I've seen.

I originally thought that, in the heat of the moment, Mehserle intended to use his taser, and mistakenly drew his gun instead. That doesn't mitigate anything; it's still murder. But it would be one explanation of a senseless and brutal act. The other cops on the scene will be forever tainted by Mehserle's atrocious behavior.

But a friend at work brought up a point. Grant had at least one, and possibly three, cops holding him down. If Mehserle had tased Grant, would the cops have been tased also? Who knows the answer? If the answer is yes, then it reduces the likelihood of an intention to tase.


Immediately following the murder, Grant was handcuffed. It looks like they cuffed the wrong guy.

Grant's family is in excellent care with John Burris representing them. There is no lawyer more respected in the Bay Area than John Burris. It's a privilege to watch, hear, and read about him in the media. He is a master.

The issue that I see with this theory is that if he were to hold back on tasing the person because 3 cops are holding him down and would be so close as to be tased themselves, then he would also hold back on shooting the person also, at risk of shooting one of the 3 cops holding him down.

and it was obviously hideous judgment on Mehserle's part. In close quarters like that, the other officers were certainly in danger from the shot.

But I'm not speculating on him inadvertently hitting one of the cops with the taser.

In 7th grade science class, they had a hand-cranked DC generator. The whole class stood in a circle and held hands, with the first person holding one terminal, and the last person holding the other terminal. The teacher gave some vigorous cranks, and the current passed through all of us, hand to hand. It was quite a jolt.

If I tase you and people are holding on to you, does the current go into them, too? Are cops trained not to tase victims when other officers are holding them? If so, then that would count against Mehserle's intention to tase Grant.

Yes, cop training should also include not endangering other officers with your gun, too.

I don't know the answer, I'm just kicking this around.

When one is electrocuted , the person is usualy part of the circuit to ground where the current and voltage want to go. This depends on the conductivity of the ground that the person is standing on, and also the conductivity/resistance of the person that is completing the circuit.

I believe Tasers are not dependant on earth ground, so both the positive and negative poles are contained within the electrode. I know that the handheld Cow Prod type stun devices do this, as they spark between two electrodes. The ones that fire a dart, I have no idea how that circuit works, but I would assume that they work the same way, otherwise it would not be that predicatable. If thats the case, I doubt if the other officers would be at risk, although I think they should be just to remind them that they are inflicting pain on someone, and a little negative feedback can be a good thing.

Electricy is a finicky thing. One person can be a better conductor than another depending on many factors.

a person getting tased.
How bad of a shock the second person gets depends on how well grounded they are.But they still get shocked.

If it were not for the videos taken by the passengers, this case would have languished for months. Instead, videos dribbled out over a period of several weeks which finally drove the point home that this was a criminal event.

Criminally Negligent, or Criminally Insane. You be the judge. Nevetheless, he must be held accountable.

I personally believe that he shot him by accident, through mucle memory of training if you will, but that does not excuse him from ignoring the reality of his error the moment he realized that he pulled the wrong weapon out of his holster and fired without counting to 10.

We live is such a fast society, and everytime we are forced to make an action given limited time, we fail. It happens at the Car Lots, the Insurance Adjuster, anywhere where they say -- Limited time offer.

People need to learn that it's ok to wait a minutw, Hour, Day, Week, Years for something that we want.

When was the last time you shot and killed someone because you were in a hurry?

I've never done that.

First reaction...sitting forward in his chair going "SHIT!"

Second...shaking his head and saying "That man doesn't deserve a badge, and should go to jail."

We talked about it afterwords, he mentioned the look on the officers face before and after. Before: He looked pissed. After: Panic.

He stated that if the officer was a rookie, he should have backed off and relied on the experience of the other officers. I told him "He's been on the Dept 2 years" he replied "Then, he's no rookie."

He also said there is NO WAY he could have confused his gun for a taser, as you wear them on opposite sides. (Or do if you're responsible) also, the grip is different as is the drawing action.

Any cop worth his salt wears a safety holster, one that takes a particular movement to draw your weapon, Hubbys is a pro 3. That alone would clue you in that you have the wrong one.

He's been in Law Enforcement for 18 years in the Army, (out of a career of 22) and 5 years civilian. He's never once had an accidental discharge.

Trust me please when I say that no one, and I mean NO ONE is going to stand behind this guy and try to defend him.

I'm just thankful that I'm married to one of the good guys, and he's on a good Dept.

the only reason - he thought he could get away with it.
There is NO reason. The suspect would be under control.

Thank goodness for the video cameras.
This probably happens more often than we would like to think about.


I am glad the officer has been charged with murder.
I feel horrible for Mehserle's family,
and I hope Grant's family is able to get a little peace knowing his killer is going to be tried.
Hopefully a jury will convict.

We need some justice on this.

Johannes Mehserle? Still seems like an odd name to me. Is he native to the US?

it matters. Take a look at how the Germans handle brown people. Makes even the US look good.

It's not nice.