On New Year's Day 2009, an Oakland police officer shot and killed an unarmed, pinned suspect. The officer, Johannes Mehserle, was arrested on murder charges on January 14th, 2009. The trial began on June 10, 2010. Here's what happened:
On January 1, 2009, at approximately 2 a.m., officers of the Bay Area Rapid Transit (BART) responded to reports of a fight on an Oakland subway car. They detained approximately 20 passengers. One of the passengers, who witnesses say was not actually involved in the fight, was 22-year-old Oscar Grant.
Grant, a local grocery store butcher, and the father of a four-year-old girl were unarmed. He [Grant] approached police in what appeared to be a nonviolent manner and was backed against the wall. In one video, he can be seen kneeling and pleading with police for reasons that are not yet clear. Some eyewitnesses say that he had already begun asking police not to shoot him. Officers restrained Grant and pinned him, face down, on the pavement. It is not clear whether he was handcuffed at this point.
As shown in a widely disseminated cell phone video of the shooting, Grant was restrained by two officers. A third, 27-year-old Johannes Mehserle, then drew his service pistol and shot Grant fatally in the back (Head 1).
Mehserle was charged with murder, but maintained throughout his trial that he mistakenly grabbed his service weapon, not his Taser, as he was attempting to arrest Grant (Booker 2).
While there had been previous cases where police officers confused guns with Tasers, modern Tasers weigh half as much as handguns. The prosecution argued that the position of Mehserle's Taser "in relation to his duty weapon, combined with the different 'feel' and color of the two weapons made it highly unlikely that he would have mistaken one for the other". [Grant family attorney] Burris responded to claims of Taser confusion by arguing that video evidence did not support the idea of Taser confusion. In any event, he said, 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 (Wikipedia 3).
His [Mehserle’s] trial was moved to Los Angeles where a jury convicted him of a lesser charge of involuntary manslaughter. As member station KQED reports, Mehserle, was convicted in 2010 and sentenced to a two-year prison term. However, he was released in 2011 after serving just 11 months.
Oscar Grant's name became a rallying cry and another example of excessive force by law enforcement against communities of color. Similar claims are being made at recent national protests sparked by the deaths of Black Americans [George] Floyd, Breonna Taylor, Elijah McClain and others this year.
A 2013 film, Fruitvale Station, based on Grant's final moments, helped introduce new audiences to his story. It won awards including the Grand Jury Prize at the Sundance Film Festival that year. (Booker 2).
Though initial protests on July 8, 2010, against the jury verdict were peacefully organized, after dark there were incidents of looting, arson, destruction of property, and small riots. Nearly 80 people were eventually arrested. On November 5, 2010, Mehserle was sentenced to two years, minus time served. He served his time in Los Angeles County Jail protective custody, held in a private cell for his safety. On June 13, 2011, Mehserle was released under parole after serving 11 months. Oakland civil rights attorney John Burns filed a $25 million wrongful death claim against BART on behalf of Grant's family. BART settled with Grant's daughter and mother for a total of $2.8 million in 2011. It also settled with several of Grant's friends who had sued for damages because of police brutality. A separate suit by Grant's father did not result in a jury award, as it was decided that due to his imprisonment he was not sufficiently involved in Grant's life (Wikipedia 2).
More than a decade after the BART police killing of Oscar Grant, the transit agency has released [in 2019] a long-sealed report on a shooting that shocked the Bay Area, led to a rare criminal conviction for an officer's use of force and heralded a national movement for police accountability.
The 94-page report released Tuesday shows that investigators questioned Officer Johannes Mehserle's explanation for the New Year's Day 2009 shooting — that he meant to draw a Taser, not his service firearm, before firing the round that killed Grant.
The document also lays much of the responsibility for the incident, which occurred after BART police responded to a report of a fight on a train, on a second BART officer — Anthony Pirone. The report says Pirone, who punched and kneed Grant after detaining him, "started a cascade of events that ultimately led to the shooting."
The report, completed by independent investigators hired by BART in July 2009, was released by the agency Tuesday [2019] under terms of SB 1421, California's new police transparency law.
Sections of the report relating to Mehserle were redacted, and investigators noted they had been unable to interview the officer.
But they wrote that videos of the Fruitvale Station incident showed Mehserle may have known he was drawing his firearm, not his Taser, before shooting Grant.
"Despite the inability to interview Officer Mehserle, the conclusion can be made from a close viewing of the enhanced video that he was intending to pull his firearm and not his Taser," the report says, noting that Mehserle repeatedly reached for his gun "and on the final occasion can be seen looking back at his hand on the gun/holster to watch the gun come out."
Mehserle fired a single round into Grant's back.
Just prior to the shooting, the 22-year-old Grant, face down on the station platform with Officer Pirone kneeling on his neck and head, had put both hands behind him "in a handcuffing position," the report says.
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The report is unsparing in its criticism of Pirone's conduct in the chaotic 13 minutes before the shooting, saying the officer lied repeatedly to investigators about his actions.
The document says Pirone was the first BART officer on the southbound Fruitvale platform, responding to reports of a fight on a Dublin/Pleasanton train crowded with passengers returning from New Year's Eve festivities in San Francisco.
Witnesses would later describe Pirone to investigators as the "crazy cop," “very agitated," "harsh and unprofessional," and "not calm, not once."
Pirone left his partner, Officer Marysol Domenici, who was handling a separate issue at a station agent's booth, and climbed the stairs to the station platform about 2:04 a.m. He stopped three black men who'd just walked off the train, telling them either to "sit the fuck down" or "get on the fucking wall," according to what they told investigators.
When Domenici joined him, he told her to "watch these guys," while he ordered Grant over to the wall.
Pirone then got on the train to detain a passenger named Michael Greer. Witnesses described Pirone as loud, aggressive and profane, with one saying the officer yelled, "Get the fuck out of my car" before dragging Greer off the train and handcuffing him.
Grant, meanwhile, was telling his friends against the wall to "just be cool" and "be quiet — we’re going to go home tonight" as they argued with Domenici, according to Jack Bryson Jr., one of the detained men.
Pirone told investigators he saw Grant fighting with Domenici and that he rushed to help her.
"The video, however, shows a completely different story, one of Grant pushing his friends back from Domenici and no touching of her ever taking place," the report says.
When he reached Grant, Pirone told investigators they scuffled. But the report notes that video of the incident shows Pirone shoved Grant against the wall and punched him in the head and that Grant did not fight back.
"Pirone accomplished his apparent intended goal to have Grant sit down. Once down, Pirone kneed Grant in the face," the report says, calling the strike "punitive" and unjustified.
Pirone told investigators that Grant called him a "bitch-ass n-----" and that he responded by saying, "bitch-ass n-----, huh?"
"For a white law enforcement officer to utter the word 'n-----' to an African American male while detaining him in the tense racial atmosphere at the Fruitvale station undoubtedly contributed to the escalation of tensions," the report says. "The use of such a word diminished Officer Pirone and the BART PD."
At that point, the report says, Pirone and Mehserle began struggling to handcuff Grant.
Mehserle shoved Grant down, and Pirone put his knee on Grant's neck and head. The internal investigation found that Pirone's weight likely prevented Grant from getting his hands out from under his stomach to put them behind his back.
"When Pirone takes his weight off Grant, Grant immediately puts both hands behind his back for cuffing," the report says.
That's when Mehserle drew his gun and fired.
Nigel Bryson, one of the men detained along the wall, told investigators he heard the gunshot, then looked over to see Grant raise his head slightly and say, "You shot me" (Emslie and Brekke 1-3).
Here is a somewhat different account of the details of Pirone’s actions.
Leading up to the shooting, Grant was on the train and was recognized by his friend Katie, which in turn caused an enemy from a nearby gang to recognize Grant and proceed to fight him. However, some of the other passengers on the train, along with Grant's girlfriend Sophina, were able to break up the fight. Shortly afterward, the train conductor announced to the passengers that the police had been contacted and were on their way to the station at which they were stopped. As the passengers began to exit the train, Grant and his girlfriend saw the police walking towards them and split up. As they got closer to the train, police started to pick out people they believed to have been involved in the fight. Officer Pirone walked up to two African-American men and ripped the jacket off one. Pirone threw three people against the wall and then turned to the train, yelling for everyone involved in the fight to exit the train and come to him. Everyone remained on the train, so Officer Pirone walked into the train to see if there was anyone who looked as if they were involved in the fight. Pirone saw Grant dressed in an outfit similar to that worn by those who were sitting against the platform wall and therefore removed him (Wikipedia 1).
An investigation was conducted 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 released only 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
KTVU broadcast cell-phone video that showed Pirone striking Grant, resulting in additional agency actions. BART General Manager Dorothy Dugger said a "rigorous" internal affairs investigation would be ordered. Later, an attorney, representing BART and referring to the same video, 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, in its unreleased report, had recommended the termination of Tony Pirone and Marysol Domenici. After being on leave since the incident, Domenici was terminated on March 24, 2010. She was rehired the following December after labor arbitration settled in her favor. Pirone was terminated on April 21 after an internal investigation upheld a finding of misconduct against him. Like Domenici, Pirone later sought to be reinstated through arbitration. This is a process whereby the BART administration and BART police union elect a member of the police union to decide if the firing of Anthony Pirone was justified. This arbitration was delayed, as Pirone served a tour in Afghanistan in the US Army. When he returned, the arbitration was set to finish by the end of 2013, but was delayed until the end of 2014. In December 2014, BART spokesperson Alicia Trost told reporters that Pirone's arbitration was denied, and the arbitrator upheld the termination (Wikipedia 4).
In October [2020], Alameda County District Attorney Nancy O’Malley reopened the investigation into Anthony Pirone, a former BART officer who hauled Grant out of a train car and pinned his knee to Grant’s neck and back in a manner similar to that used in the death of George Floyd last year.
Grant’s family had sought criminal charges against Pirone for years and at a news conference Monday, his mother, the Rev. Wanda Johnson, continued her call for justice, the Bay Area News Group reported.
“My son laid on the cold concrete with that Officer Pirone’s knee on his neck. My son’s head was smashed against the wall and he was kicked and he was pushed. Pirone still walks around free today,” Johnson said.
In a 16-page memo, O’Malley … [ultimately concluded] that no matter how “offensive or unacceptable” Pirone’s conduct that night, he did not fire the gun that killed Grant and there is no evidence that he knew Mehserle would fire his gun, which Mehserle said at trial he thought was his Taser (AP 1-2).
“My heart hurts on today, because 12 years I've been crying out for justice for my son," said Rev. Wanda Johnson, Grant's mother, in a press conference Monday. "Let the district attorney do what is right and charge him for the acts that he committed that led up to my son's death."
…
"I want to say to you that when you sleep on tonight and you think about why we're standing here — why I'm standing here — it's because my son laid on the cold concrete with that officer Pirone's knee in his neck," Johnson said. "And he continued to say he couldn't breathe. My son's head was smashed against the wall and he was kicked and he was punched. And the officer, Pirone, still walks around free today."
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"It can't be hard to see that he was treated not humanly. It couldn't be hard to hear that a racial epithet was used against him. And if you or I used those against someone, and a crime was committed, we would definitely be charged with the hate crime," Johnson said. "So I'm not asking anything different than what our United States Constitution says or what our laws say. I'm asking for him to be charged for his actions leading up to my son's death."
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[O’Malley’s] decision also cites a recent California Supreme Court decision, saying in the report that “a non-killer participant in a crime cannot be held vicariously liable for any death that results from that crime” unless the participant knew beforehand that death would likely occur and “with a knowing and willful disregard of the likelihood that death would occur."
Grant’s family and their attorneys plan to keep meeting with O’Malley and pressing for criminal charges.
"We want you to know that the fight still goes on. We've been standing at these banks, as you know, for the last 12 years and we're not going anywhere," said Cephus "Uncle Bobby X" Johnson, Grant's uncle (Wiley 1-2).
Works cited:
Booker, Brakkton. “California District Attorney Says Probe Of Oscar Grant Killing Will Be Reopened.” NPR, October 6, 2020. Net. https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/10/06/920895464/california-district-attorney-says-probe-of-oscar-grant-killing-will-be-reopened
Emslie, Alex and Brekke, Dan. “BART Releases Report with New Details of Officers' Roles in Oscar Grant Killing.” KQED, May 1, 2019. Net. https://www.kqed.org/news/11744106/bart-releases-report-with-new-details-of-officers-roles-in-oscar-grant-killing
Head, Tom. “The Shooting Death of Oscar Grant.” ThoughtCo, Updated August 11, 2019. Net. https://www.thoughtco.com/shooting-death-of-oscar-grant-721526
“No Charges against 2nd Officer in 2009 Police Killing of Oscar Grant.” The Associated Press, January 11, 2021. Net. https://www.nbcnews.com/news/us-news/no-charges-against-2nd-officer-2009-police-killing-oscar-grant-n1253843
Wikipedia. “The Shooting of Oscar Grant.” Wikipedia, the Free Encyclopedia. Net. https://en.wikipedia.org/wiki/Shooting_of_Oscar_Grant
Wiley, Michelle. “'Crying Out for Justice': Oscar Grant's Family Vows to Keep Fighting after DA Declines to File New Charges.” KQED, January 11. 2021. Net. https://www.kqed.org/news/11854829/crying-out-for-justice-oscar-grants-family-vows-to-keep-fighting-after-da-declines-to-file-new-charges
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