BART Cop Gets ‘Involuntary Manslaughter,’ Fed Investigation

A white police officer has been convicted of involuntary manslaughter for killing a black man. Now, the Feds are considering leveling their own charges.


Former San Francisco Bay transit cop Johannes Mehserle was convicted of involuntary manslaughter in the killing of Oscar Grant.    The cop, naturally, was white and the victim, naturally, was black.   Outrage follows.

The facts, from Demian Bulway of the Chronicle:

A jury found former BART police Officer Johannes Mehserle guilty Thursday of involuntary manslaughter, concluding that he did not intend to kill train rider Oscar Grant when he shot him in the back on New Year’s Day 2009 but acted so recklessly that he showed a disregard for Grant’s life.

The verdict was an all-but-unprecedented instance of a police officer being convicted for an on-duty shooting. But it deeply disappointed Grant’s relatives, who said the video-recorded shooting was a murder and that Mehserle deserved a sentence years longer than the one he is likely to receive.

“My son was murdered,” said Wanda Johnson, Grant’s mother, outside the downtown Los Angeles courthouse where the trial was moved to escape heavy publicity in the Bay Area. “He was murdered and the law has not held the officer accountable.”

The jury also found that Mehserle, 28, had used a gun during the crime. In all, he could be sentenced to five to 14 years in prison.

The jury took 6 1/2 hours over two days to decide that Mehserle was guilty of a crime, but not guilty of the other options it had been given – second-degree murder and voluntary manslaughter.

Their verdict suggests they believed Mehserle when he testified that he had mistaken his pistol for his Taser as he sought to subdue the 22-year-old Grant at Fruitvale Station in Oakland following a fight on a BART train, a shooting that was captured on video by five other riders as well as a platform camera.

I haven’t followed the case.  Two Californians who have, though, have interesting and opposite reactions.  Kevin Drum:

You can judge for yourself in the cell phone video taken by a witness (the clearest view starts around the 1:45 mark).

I hardly even know what to say about this. I wasn’t in court and I wasn’t on the jury, so I didn’t hear all the evidence. But for chrissake. Look at the video. Mehserle didn’t look confused and modern tasers don’t feel much like service revolvers. And it’s not as if he was acting under extreme duress. At most there was a brief and perfunctory struggle, after which Mehserle calmly raised himself up while Grant was pinned to the ground, drew his revolver, and shot him. The only thing that even remotely makes Mehserle’s story believable is that doing what he did is just flat out insane. It doesn’t make sense even if he were a stone racist and half crazy as well.

Given three police officers and one more-or-less subdued perp, it’s hard to see why a taser would be needed to begin with.   And I tend to agree, it’s hard to believe that a trained cop would mistake a handgun for a taser.

Someone calling himself The Mayor of Concord notes the similarities and differences of the weapons:

BART has approx. 64 Taser X26 stun guns in their inventory and would only allow officers to use them after they did six hours of training. Mehserle shot Grant with his Sig Sauer P226 semiautomatic pistol.

The similarities of the weapons are obvious. The differences are what is going to be called into question. Did Johannes Mehserle not know what side of his belt he carried his Taser on vs. his firearm?  The two weapons weigh a lot different than each other. The Sig Sauer weighs about 31 oz. loaded and the TASER X26 only weighs in at 7 oz. I couldn’t imagine that he pulled his firearm and didnt’t notice that it was not his Taser. In fact before firing since he was not in some immediate threat, wouldn’t he have visually noticed that he was holding a handgun and not a Taser?

The safety mechanisims on both weapons are different also. So unless BART police walk around with weapons off safe, (I don’t know if they have a policy on this) that would have been a flag that would be raised.

But Mark Kleiman, who’s generally to the left of Kevin — and certainly me — on these issues, retorts:

I haven’t followed the case closely, but when I heard the story my first reaction was “involuntary manslaughter,” which is what the jury decided on. To bring in second-degree murder, the jury would have had to be sure, beyond reasonable doubt, that an ill-trained very junior cop, operating at 2am on New Year’s, didn’t make the unforgiveable error of drawing his handgun thinking it was his taser. They would have had to be sure, beyond reasonable doubt, that instead he decided at random to murder someone he’d never met before, in front of a big crowd of people and several other police officers.

Well, now it appears that the feds are going to get involved.

The U.S. Department of Justice will conduct an independent review of the Johannes Mehserle case in order to determine whether or not the shooting merits federal prosecution, according the department.

“The Justice Department has been closely monitoring the state’s investigation and prosecution,” the department said in a statement.  “The Civil Rights Division, the U.S. Attorney’s Office, and the FBI have an open investigation into the fatal shooting and, at the conclusion of the state’s prosecution, will conduct an independent review of the facts and circumstances to determine whether the evidence warrants federal prosecution.”

Congresswoman Barbara Lee, D-Oakland, said she has been in touch with the justice department. “I remain in close contact with the Department of Justice and will continue to work with them, the family and the community in the days ahead,” she said in a statement.

The statement also addressed local reactions to the Mehserle verdict.  “Understandably there is grave concern in the community,” Lee said. “However, during this time our city must come together peacefully so that we can begin to heal.”  Lee said she stands with Oakland Mayor Ron Dellums, the City Council and community leaders in supporting people who want to express themselves.

Well, it all depends on the form the expression takes.

As to the DOJ investigation, I am always very queasy to see the feds take a second bite of the apple after someone is acquitted — or, as in this case, convicted of a lesser offense than prosecutors hoped for — at the state and local level.  Supreme Court rulings to the contrary, this is clearly double jeopardy.   It’s simply not right for someone’s life to be put on hold twice while various levels of government with comparatively unlimited resources try to deprive them of liberty.

I can understand the rationale for federal involvement in extraordinary circumstances, since as existed decades ago when all-white juries refused as a matter of principle to convict whites for murdering blacks.  But there’s no evidence that this happened here.    (And, no, it’s not because I reflexively side with whites — I thought O.J. Simpson guilty as hell but wouldn’t have supported retrying him in federal court and, indeed, was dubious of his retrial in civil court.)

FILED UNDER: Law and the Courts, Race and Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. john personna says:

    Sad, sad. To the extent that they can make Tasers feel especially different than guns, they should.

    I guess I could point out this is a big business opportunity for Taser(TM). They get to re-sell to all police departments.

  2. PD Shaw says:

    It looks to me like the cops are working in tandem to restrain the victim in order to taser him. Otherwise, my reaction is much the same as Mark Kleiman’s.

  3. Franklin says:

    I think the conviction was appropriate and hope the Feds agree.

    While I still think cops using Tasers a bit too early and haphazardly in many cases (at least the ones that make it to YouTube), I think we can agree this particular situation is pretty unusual. Meaning, cops are not very likely to mistake guns for Tasers.

  4. Brian Knapp says:

    Well, in my police experience, the Taser is usually on the off-hand side of the belt. So the issue isn’t the size, weight, and feel of the gun, but the proximity. As an officer, one is drilled for hours and hours and hours on drawing a weapon. Less so on the Taser, but still enough to reflexively know. When you think gun, your body goes to the gun, when you think Taser, your body goes to the Taser, likewise for OC – or other pepper spray – and cuffs. But I suppose in rapidly evolving situations that can get crossed (although not likely).

    Yet this did not look like a rapid evolving situation. The scene was well under control and the struggle mild relative to the control and force present.

    But I don’t know all the facts and video doesn’t show us what HE saw.

  5. grampagravy says:

    I have to agree that double jeopardy for the BART cop (or anyone) is wrong. In this case I think the jury should go through a rigorous evaluation to determine if they are a danger to self or danger to others. Those who believe a 31oz. Sig on one’s right side can be “mistaken” for the 7oz. taser on one’s left side might think too that the tooth fairy is out to get them or that fluoride in the water is a Commie conspiracy–wait, the last is Sharron’s Angle.

  6. matt says:

    Maybe just maybe if cops took tazering people a little more seriously this wouldn’t of happened..

  7. Brummagem Joe says:

    “Supreme Court rulings to the contrary,”

    Being choosy aren’t you Jim. Personally having handled both I’d have said you had to be fairly brain dead to mistake a sig semi automatic for a taser. Maybe Mehserle is? As to the involvement of the DOJ you’re obviously suggesting the DOJ is in some way politically motivated in looking at this again which I think is unlikely. Completely regardless of politics I have very high confidence in the integrity of Holder, which is more than I can say for his three predecessors. As for his life being “put on hold,” he’s awaiting sentencing for godsake and is certainly going to spend a few years in the slammer do I don’t see the DOJ’s second look causing him that much inconvenience.

  8. James Joyner says:

    “Supreme Court rulings to the contrary,”

    Being choosy aren’t you Jim

    Not sure I follow. SCOTUS rulings are the law but I frequently disagree with them. They’ve niggled down several of our fundamental rights to mere technicalities and I don’t like it.

    As to the involvement of the DOJ you’re obviously suggesting the DOJ is in some way politically motivated in looking at this again which I think is unlikely.

    I suggested nothing of the kind, merely that the locality had already had their shot.

    Do I think it’s some Democrat conspiracy? No. Do I think Holder and company listen to the input of Lee and the public outcry in the area? Sure.

    As for his life being “put on hold,” he’s awaiting sentencing for godsake and is certainly going to spend a few years in the slammer do I don’t see the DOJ’s second look causing him that much inconvenience.

    We’ll see what sentence he gets — it could be negligible depending on the judge. Cops, first offenses, and all that.

    The only reason DOJ would be investigating would be with an eye toward opening another suit, which would require much hassle, cost, and jeopardy.

  9. tom p says:

    ***The only reason DOJ would be investigating would be with an eye toward opening another suit, which would require much hassle, cost, and jeopardy.****

    Awwww jeeeezzz…..

    Just terrible that a cop should kill a restrained man and be put to such inconvenience… My heart goes pitter patter for the poor cop… who is given a gun… and a taser… and a club…. and pepper spray, and the training in how and when to use these weapons.

    AND YET… when confronted with a situation (not even a bad situation) he reaches for his gun.

    James, I grew up on the south side of St. Louis… I have seen cops deal with all kinds of crazed lunatics (with pipes, knives, baseball bats)…. short of a gun, none of them ever shot a person. (a buddy of mine once saw a cop take down a meth crazed phanatic in about 2.5 secs…. no guns)

    I finally watched the video (I have been avoiding it) and I can tell you, as one who has watched a few die on the streets, this was murder.

    Pure and simple. A gun is a gun, and we know the difference. So did this cop.

    The “double jeapordy” claim I can sympathize with. But I am telling you here and now, the jury was filled with a bunch of suburban idiots who don’t even know what a gun is (never even held one)

    A travesty of justice,… is. One can rail against it, acknowledging the existence of it, while saying, “Under our current system, it is what it is. Imperfect…”.

    Your principles are getting in the way of common sense, James.

  10. superdestroyer says:

    It is humorous that the militant blacks who never have found a black that they could not acquit are now mad that reasonable doubt is applied.

    I am also amazed that the hatred and contempt for law enforcement. Maybe Oakland could give the militant blacks what they want and shut down its police department for six months and disconnect 911 service and let the citizens take law enforcement into their own hands. That would probably make Barbara Lee very happy.

    Maybe the problem with most law enforcement is they get to see the underside of America from a very close range and without the benefit of political correctness.

  11. James Joyner says:

    I finally watched the video (I have been avoiding it) and I can tell you, as one who has watched a few die on the streets, this was murder.

    The jury disagreed. Probably for the reasons that Kleiman states and Drum hints at: There’s no rationale that’s been proven as to why he’d murder this guy. Still, I agree that the “oops, I thought it was a taser” story doesn’t jibe with me.

    The “double jeapordy” claim I can sympathize with. But I am telling you here and now, the jury was filled with a bunch of suburban idiots who don’t even know what a gun is (never even held one)

    But that’s the nature of a jury system. The people will seldom be experts.

    Your principles are getting in the way of common sense, James.

    The right not to be subjected to double jeopardy is one of our most fundamental protections. It simply trumps any sense that an injustice might have been done in any particular case.

    My view is that, if there’s a concurrent claim of jurisdiction, then the feds should get the first crack at it. If they don’t think the locals can’t fairly try the case, they should take it on. But, if they pass, the lower judgment is final — minus appeals, of course, if there’s a conviction.

  12. Brummagem Joe says:

    “We’ll see what sentence he gets — it could be negligible depending on the judge. Cops, first offenses, and all that.”

    I don’t see it being less than 3 or 4 years which will give DOJ ample time to do their thing.

    “I suggested nothing of the kind (ie. poliical motivation) Do I think it’s some Democrat conspiracy? No. Do I think Holder and company listen to the input of Lee and the public outcry in the area? Sure.”

    Er, that would be a political motivation Jim. It’s much more likely they’ve seen the video like the rest of us, appreciate the weakness of Mehserle’s mistake alibi which is risible to anyone whose ever handled firearms as you have, and feel it justifies another look.

  13. PD Shaw says:

    One doesn’t have to believe the cop’s story about confusing his gun with his tazer. It’s the prosecutions burden to prove beyond a reasonable doubt that the killing was the result of “malice aforethought.” Kevin Drum’s suggestion that the cop would have had to have been “flat out crazy” to simply kill the man suggests that it wasn’t murder.

    Involuntary manslaugher: “the unlawful killing of a human being without malice aforethought and without an intent to kill.”