The shooting of unarmed Oscar Grant on New Years Day 2009 by BART officer Johannes Mehserle has shed light on issues relating to police brutality.
Videos of the shooting have yielded an increased awareness of the existence of police brutality across the nation.
For advocates against police brutality, such video evidence against police is not a mere isolated 'incident', but the most visible example for how law enforcement agencies throughout the United States have continually used and justified excess force on civilians.
The trial of Johannes Mehserle served as a ralllying point to highlight problems endemic to law enforcement.
Recap of Events Leading to Mehserle Trial
Former Bay Area Rapid Transit (BART) officer Johannes Mehserle, 28, was convicted of involuntary manslaughter July 8th for killing 22-year old Oscar Grant III at a transit station in Oakland. This marks the first time in California history that a cop has been convicted of a killing while on duty.
Sentencing is scheduled for November 5. The conviction carries with it a minimum of probation for 5 years and a maximum of 14 years in prison.
The case gained attention largely because it was recorded on multiple BART transit riders' digital cameras and cellular phones in the early morning hours of New Year’s Day 2009. The fact that Oscar Grant was black and Johannes Mehserle is white has only heightened the tension.
Footage had reached numerous media outlets and have circulated widely, generating heated dialogue about race and excessive use of force by law enforcement.
Piecing Together the BART New Year's Day Shooting of 2009
A 2:00 AM call on New Year's Day had summoned the BART officers to the scene in search of 5 black males.
Alex Alonso, writer for Streetgangs.com who covered the trial recalled the testimony of the BART passengers who made the call.
- "The call that went out to the BART officers described a fight among 5 black males wearing black cloths. This description came from [a person] who witnessed blacks, Hispanics and an additional white male as the aggressor, but they only informed the train operator that black males were involved. Dennis claimed that he did not realized that David, the white male, had Grant in a headlock until he moved into the second car, but that was the main part of the conflict, and he claimed he was “right there” when prosecutor Stein asked him how close he was to the initial fight when it began."
Within minutes of the disturbance call, Oscar Grant and four his friends were pulled aside by police.
Officers Anthony Pirone and Marysol Domineci were the first to the scene. In testimony, they described the situation as 'chaotic.' However, the BART train operator described it as "typical New Year's."
While sitting down, Oscar Grant can be seen in the video using a cellular phone talking to his fiance. She was in the BART station as well, but had been separated from Grant.
Johannes Mehserle had pulled out his yellow TASER from his left pouch not once, but twice, as a way to "calm" the situation. Oscar Grant even managed to take a picture from his cellular phone camera of Mehserle fiddling with his TASER.
For the defense the fact that he was pulling out his TASER, even announcing his attention out loud, suggested that he had planned on using his TASER all along. He wasn't going to kill Oscar Grant. He made an honest mistake.
Mehserle's Expert Witness, Greg Meyer, a retired LAPD Captain testified how Mehserle could've confused his gun for his TASER :
- "For about four seconds, Mehserle unsuccessfully tugged at his handgun, then it came out. Dr. Lewinski testified that Mehserle subconsciously performed an “automatic program” (one that he was very practiced at) when his decision-making degraded under stress. We know from research that under stress, performance is negatively affected, and we react with movements that are most familiar to us. "
However, prosecution contended that since he was intent on using the TASER, the more he would have known to retrieve the TASER on the left side of his belt. He knew what he was doing when he took his gun out of the right side of his belt.
The confrontation between BART police and the young men escalated when Anthony Pirone appeared to strike Oscar Grant. The Defense's video testimony expert, Michael Schott claimed that the video evidence showed Oscar Grant as the one actually hitting Pirone.
In enhanced videos of the exchange, Pirone could also be heard using derisive racial epithets towards Grant. Pirone claimed that he was merely repeating epithets that Grant had made towards him.
As the argument escalated Pirone and Mehserle put Oscar Grant on his stomach, lying face-down on the BART platform. Officer Anthony Pirone laid his knee on Grant’s back.
According to Pirone and Mehserle, Oscar Grant was resisting arrest. Several witnesses did not support their claims, each independently recalling Grant specifically asking BART police not to shock him with a TASER.
The 6 foot 5, 240-pound Mehserle was trying to wrest away Grant’s hand from his pocket to handcuff, which he claimed was met with Oscar's resistance.
Prosecution claimed that Grant was already surrendering. He had been offering his hands to be cuffed. For prosecution, use of force while Grant appeared to be offering a condition of surrender was unnecessary.
As he allegedly struggled to handcuff Oscar Grant, the moment of tragedy struck. Johannes Mehserle pulled out his .40 caliber handgun from its fastener, after a 4-second struggle from his right pouch, and shot Oscar Grant in the back.
Prosecution claimed in opening statements that the video showed Mehserle looking directly at his gun holster in his right pouch before killing Grant.
Mehserle claimed that he was actually reaching for his yellow TASER gun, which was located on the left side of his pouch. Based on what he had already experienced earlier in the evening, he claimed to be thinking that Oscar might have been getting ready to pull out a gun.
Immediately after the shooting, BART Police attempted to confiscate cellular phones and digital cameras but proved unsuccessful.
Within one week of the fatal shooting, Johannes Mehserle resigned from BART. He was apprehended in Nevada, his lawyer claiming his client needed to flee death threats. Prosecution claimed that his flight was an attempt to escape prosecution and a guilty conscience.
After the hearings were over on July 2nd, Mehserle expressed regret in a hand-written note.
However, the letter was rejected by the Grant family on the basis that he did not express any concern immediately after the shooting and offered no direct apology. Commentators have criticized it as tactically convenient, coming just before jury deliberations.
The jury ultimately selected consisted of seven whites, four Latinos, and one Asian, and most controversially no blacks, which provoked adverse reaction from the Grant family and supporters. Los Angeles is 25% white, but made up almost 60% of the jury. Five out of the twelve jurors had significant ties to the police.
The shooting could have been ruled one of four ways by the jury: 1) second degree murder 2) voluntary manslaughter 3) involuntary manslaughter or 4) acquittal.
Ultimately, after two full days of deliberation and many hold-ups, the jury decided beyond a reasonable doubt that Mehserle was guilty of involuntary manslaughter. The charge maintains that he was “criminally negligent” --- the shooting was a result of a dangerous accident. Prosecution was unable to prove to the jury, who deliberated for only 2 days, beyond a reasonable doubt that Mehserle had intent.
However, the jury also found him guilty of a gun enhancement charge which would add additional years to his sentence. Alameda County District Attorney Nancy O'Malley stated that Mehserle faces between 5 and 14 years in prison.
In hopes of incurring the minimum sentence of 5 years in prison, Mehserle will attempt to show good behavior and how the circumstances were so unusual that it warranted such a response.
On July 9th, the US Justice Department announced that it will conduct an independent review of the shooting to determine whether the case warrants federal prosecution for violation of civil rights. If federal prosecution is taken and Mehserle is ruled against, he would serve time in federal prison in addition to his sentencing in the State of California.
Public reaction to the conviction of involuntary manslaughter has ranged from outrage to apathy.
Though disappointed with the verdict, The Grant family had urged supporters of Oscar Grant to suppress violent reactions out of respect for their son.
Amongst the peaceful demonstrations, a small group of demonstrators was found to be responsible for rioting immediately after the verdict was announced on July 8th. Of the 78 people arrested, only 9 were charged. Over 75% of those arrested were found to be outside of Oakland.
Some consensus has been that involuntary manslaughter was the right charge. This has been premised on the fact that Mehserle "looked" surprised as read an editorial in the San Francisco Chronicle.
A popular blogger from Walnut Creek talked about how the evidence seemed to be a clear-cut case of involuntary manslaughter. Commenting on the attention the case got, she wrote about how she failed to see how the shooting as "about some larger cause of racism [and] injustice in America."
July 14th saw a pro-Mehserle rally in Walnut Creek, east of Oakland. Over 100 demonstrators showed support for Mehserle and police forces. Counter-demonstrators however were keen on making just as much noise, as they held signs in support of Oscar Grant.
On July 16th, Governor Arnold Schwarzenegger signed into law a measure that would create an independent body to investigate complaints about BART Police.
Other Instances of Questionable Police Use of Force
A flurry of activity has put the police use of lethal force into the national spotlight.
In New Orleans, six police officers face the death penalty under Federal law for shootings undertaken in the aftermath of Hurricane Katrina in 2005.
In wake of the trial, an article on MotherJones.com highlighted several instances of questionable police use of lethal force.
In Bakersfield, a teenager who led the police on a chase was shot to death. Witnesses said that the shooting was unnecessary.
In Miami, a 36 year old man named Decarlos Moore was shot in the back of the head after a midday traffic stop.
Another fatal BART-related shooting took place the morning of July 18th involving a 48 year old man who apparently overcame several TASER shots and came at police with knives. The shooting took place at the same station where Oscar was shot.
Perspective: Putting the Mehserle case into context
Radley Balko, a writer for Reason.com, who agreed with the Mehserle verdict, managed to highlight some of the inconsistencies the justice system has in dealing with police officers versus civilians:
"...If the jury was going to be sympathetic to [Johannes Mehserle], we should also show some sympathy and understanding for people like Cory Maye and Ryan Frederick, both of whom were tried for murder for killing police officers who broke into their homes at night.
"Both Maye and Frederick say they mistook the raiding cops for criminal intruders. Maye was convicted of capital murder. Frederick's jury opted for voluntary manslaughter."
Notably downplayed is the fact that Cory Maye is black, incurring a maximum charge, and Ryan Frederick is white, incurring the lesser charge.
The justice system appears to have given wide latitude for policemen to act, while giving little benefit of the doubt to civilians, particularly people of color.
Chela Simone, a rapper from Oakland, offered an anecdote about police shootings in Oakland, "In between 2004-2008 there were 45 officer involved shootings in Oakland, as of May 2009, 62 in review, of which, 80% of the victims were African American 40% had no weapons. Over 2,000 people were murdered by police in the U.S. since 1990 and this is the first one brought up on charges. When exactly is a good time to be angry about that?"
The Mehserle trial drew instant parallels to the LAPD Trial for Rodney King beatings in 1991 for the fact that the beating too was caught on video. After a high speed chase, police officers were seen administering beatings to a fallen Rodney King. Despite strong visual evidence showing the cops administering excessive force, the four officers charged were initially acquitted by an all-white jury in Simi Valley.
Comparisons have also been drawn to the individual deaths of Robert Tolan, Adolph Grimes, Amadou Diallo and Sean Bell, all black men in their 20s. In neither of the cases did the victims appear to have any opportunity to explain themselves, before incurring rounds of lethal force from the police. In all cases, police officers were widely viewed as having reacted too eagerly with lethal force. Police have explained such cases away by having misidentified and miscommunicated with victims.
After Robert Tolan's death, a family lawyer remarked what has been a feeling for many people of color for years against police "There is no doubt in my mind that if these had been white kids, this would not have happened."
Systematic Injustice in Mehserle trial?
There appeared to be a systematic favoritism towards Mehserle applied by Judge Robert Perry.
Controversially, out of 200 candidates not a single black juror was selected. However, permitted were 5 of the 12 jurors had connections to police.
In weeks prior to the incident, Mehserle was accused of another instance of police brutality. Kenneth Carrethers, 41, an engineer at a hotel, had been described as "loud" and yelling profanities, leading to a charge of "resisting arrest." He alleged that Johannes Mehserle had been the aggressor, filing a complaint with BART.
However, Judge Robert Perry ruled such testimony against Mehserle as irrelevant to the case, ruling that it was against the Police Bill of Rights. Meanwhile, Mehserle’s defense attempted to paint Oscar Grant’s past activities as criminal to the point where he was “deserving” of the crime.
Several writers discussed the favoritism that Judge Robert Perry appeared to show towards Johannes Mehserle.
One instance of favoritism was noted early on during pre-trial hearings:
- "The judge overseeing this trial is Robert Perry who came under fire for allowing corrupt cops to walk during the infamous Rampart Scandal. He’s been doing everything in his power to tilt the trial in the direction of killer cop Johannes Mehserle. Among one of his more egregious rulings is to put a gag order on the famed Police Brutality lawyer John Burris. If thats not enough, Mehserle’s lawyer Michael Rains is pushing to have Black people excluded from the jury."
Judge Perry also had a peculiar relationship with the media in this trial that seemed to favor Mehserle.
A Huffington Post/Youth Radio writer wrote:
"Defense attorney Michael Rains took aim at a story by KTVU, a media outlet in the Bay Area. He expressed his anger that a story posted on the station's website, which mixed up testimony between witnesses. Rains said that inaccurate reporting could have negative consequences for the case. Then Judge Robert Perry piggy-backed on Rains' comment, stressing the importance of accurate reporting and encouraging members of the media to avail themselves of court reporters. What's interesting is that Judge Perry ruled that no cameras, computers, or audio recorders are allowed in the courtroom to capture the trial of former BART officer Mehserle, who stands trial for the murder of Oscar Grant."
The Huffington Post/Youth Radio reporter, King Anyi Howell, himself was almost found in contempt of court by Robert Perry for leaving a Verizon Wireless device plugged into an outlet. Perry thought that the device included recording and transfer capability.
During the trial, LA Sentinel reported on the latitude and sympathy allowed for Mehserle by Judge Robert Perry, juxtaposed with the impersonality shown towards Oscar Grant's family.
- "...after Johnson saw Mehserle's testifying, she said, "The officer who killed my son was crying on the witness stand but his tears did not seem to be real. It was more like he was seeking sympathy from the jurors." She then continued, "And the judge was sympathetic and offered him cool water to help console his tears. When members of my family and friends cried inside the courtroom, expressing our emotions for the loss of my son, the judge called for an immediate recess so that the jury would not be influenced by our emotions."
The fact that sentencing was moved from August 6 to November 5th was a suspect cause for concern.
Columnist Earl Oafari Hutchinson noted "Prosecutors ceded vital ground to the defense in agreeing to the indeterminate delay in the sentencing. Mehserle's attorneys will take full advantage of the delay to make the case that Mehserle should get little or no jail time. The Grant case was a near textbook example of how the rare time police officers are tried for murder or the overuse of deadly force, a conviction doesn't end things."
San Francisco Chronicle: A summary of the prosecution vs. defense in Johannes Mehserle trial
Youth Radio's Online Magazine: Chronicles different points of views on the killing of Oscar Grant
Oscar Grant: What the mainstream media covered up: Calls into question the decisions made by the judge to influence the jury’s decision
Media Coverage of the Trial
Trial Day 1, June 10: Prosecution: "Emotional anger led to killing"
Trial Day 2, June 11: Witnesses who record video observe that Oscar Grant did not resist
- "Karina Vargas pulled out her camera as she said she saw BART officer Tony Pirone yelling to get Grant and a friend off the train while several others were being detained nearby. "It was the aggressiveness that compelled me to record," she said."
Trial Day 3, June 14: Oscar Grant's fiance, Sophina Mesa testifies
- "Sophina Mesa, 26, told jurors in Los Angeles that she was unable to get hold of Oscar Grant on her cell phone after she went downstairs and exited the train station in Oakland on New Year's Day 2009. She managed to reach him during a second attempt in which she described Grant, 22, as "scared." "He picked up my call and he said, real fast, 'They are beating us up for no reason,"' Mesa recalled Grant saying to her."
Trial Day 4, June 15: BART officers and weapons experts testify about training
Trial Day 5, June 17: Ex-BART Officer Marysol Dominieci describes circumstances under which shooting takes place, describes situation as 'chaotic'
Trial Day 6, June 18: Ex-BART Officer and Mehserle Partner, Tony Pirone describes events leading up to the shooting, claiming to not remember hitting Grant
Trial Day 7, June 21: BART Employees Testify
- "[BART Employee] Keecha Williams recalled the events of January 1, 2009. Williams was the driver of the Bart train bound to Dublin. She testified that former Bart officer, Tony Pirone, never asked her to identify Oscar Grant or his friends from the train. She said that she told Pirone that it was a typical New Year's eve on the train--with crowds and fights. Her testimony refuted one of Pirone's main points from his testimony on Friday--that he specifically asked the BART train operator to identify who was fighting on her train."
Trial Day 8, June 22: Testimony of Oscar Grant's friend, Jackie Bryson, who was feet away from Oscar Grant's shooting
Testimony of Jackie Bryson, Oscar Grant's Friend
- "He stands up and says '(expletive) this' and he shoots him," Bryson said of Mehserle, who resigned shortly after the incident.
- "You understand somebody just got shot in front of me for no reason by somebody that is here to protect us," Bryson said. "He's supposed to be the good one. You want to make me look stupid like I'm the bad one? Come on, now."
Trial Day 9, June 23: Mehserle's TASER Trainer testifies
Video expert witness Michael Schott notes the resistance of Oscar Grant, the motions of Johannes Mehserle that mimicked him getting a TASER
Trial Day 10, June 24: Johannes Mehserle testifies
Grant family reacts to Mehserle's Testimony
Trial Day 11, June 25: Johannes Mehserle continues testimony
Trial Day 12, June 28: Greg Meyer, ex-LAPD Captain testifies
Closing Arguments, July 1: