Verdict

Johannes Mehserle has been found guilty of Involuntary Manslaughter. He's facing 2 to 4 years with a potential addition of 10 years for using a gun. DOJ (The same DOJ who dropped the Black Panther case) has apparently opened an investigation for civil rights violations and he may face federal time after his state time is served.

There's a lot of video on this shooting out there. I've watched as much of it as I can stomach. A few things are obvious, both from the video and testimony. I'm not a huge fan of wikipedia but this entry has a lot of very important and factual information all in one place with good footnotes.

BART uses the Taser X26. If you go to that link you'll see it has a safety on the left side that must be rotated up before firing. This not only enables the Taser to discharge but also turns on a red dot laser. That's the clear plastic lens under the cartridge below the muzzle. The holster for the Taser is also different. The Taser is locked in at the top and the thumb is used to push the plastic retainer forward. It is unlike any normal pistol holster with which I am familiar.

BART, like most law enforcement agencies, requires a weak side carry of the Taser and a cross draw, strong hand draw.

BART officers carry the Sig Sauer P226. The pistol has no external safety. It does have a decocker on the left side that rotates down to function. The decocker does not have to be manipulated before firing and in fact would do nothing if one were to do so. It is for safely lowering the hammer after firing or cocking the hammer. I think I'm on safe ground when I say no agency trains it's officers to sweep the decocking lever before firing the first shot.

The other officer struggling with Grant was Tony Pirone. One of his statements was;

"Pirone said he told Grant "Stop resisting, you're under arrest, put your hands behind your back." At that time Pirone said he heard Mehserle say, "Put your hands behind your back, stop resisting, stop resisting, put your hands behind your back." Then Mehserle said, "I'm going to taze him, I'm going to taze him. I can't get his arms. He won't give me his arms. His hands are going for his waistband." Then Mehserle popped up and said, "Tony, Tony, get away, back up, back up." Pirone did not know if Grant was armed. Mehserle had fear in his voice. Pirone had never heard Mehserle's voice with that tone. Mehserle sounded afraid." (Emphasis mine)

Mehserle's partner on duty, Officer Jon Woffinden, said the "incident was one of the most frightening he had experienced in his 12 years as a police officer." (Emphasis mine)

Oscar Grant was no angel. He'd served two stints in state prison, once for fleeing after a traffic stop while armed and resisting arrest. This was not known to Mehserle at the time of the shooting. There had been 2 incidents in the precious hour where guns had been found on BART passengers. There were a minimum of 6 officers (and perhaps as many as 7) at the incident.

If that was the most frightening incident the officers had ever experienced then the level of calls in BART would make Mayberry look like South Central LA.

As I watched the video and read some of the testimony and statements I was struck by one thing. At least some of the officers involved, and most especially Mehserle, were frightened and rapidly losing control of the situation. At the risk of monday morning quarterbacking, they were systematically over reacting to a relatively minor incident (past tense fight on the BART train, drunk or stoned participants). As a very experienced former officer I can see a call going bad from a mile away and this one was a prime example. As soon as attention was turned to Grant this encounter went rapidly downhill. Pirone was angry and haranguing Grant before the arrest attempt. You can see it in his body language even though it's not audible (Pirone was later fired for misconduct in this case). Pirone knelt on Grant's head instead of grabbing an arm and trying to assist Mehserle in handcuffing and controlling him.

Anger is contagious. Panic even more so.

You can see and feel the tension and emotion ratchet up as the incident progresses and the crowd grows more vocal. Mehserle struggles with Grant's arms for a few seconds while Grant lays face down on the ground. I see Grant's hands as beneath his body, an officer safety no no and certainly a factor that Mehserle must deal with. Pirone moves away from Grant as Mehserle stands up, fumbles with his pistol as he draws it and shoots Grant.

Mehserle was a relative rookie. This incident took place on January 1, 2009. Mehserle graduated the Academy in 2006 and started with BART in March, 2007.

Now there is nothing wrong with being afraid. All of us are at one time or another. Even fear for your life. I've been afraid of dying on more occasions than I can count. But if there is one thing an officer cannot do, ever, is panic. The person in any violent and dangerous encounter that must be in complete control of his fear is a police officer. If you cannot control your emotions, your fear, your fight or flight responses you have no business in the profession. Period.

It stretches credulity to the breaking point to believe Mehserle didn't know he had his Sig P226 in his hand when he fired. I can buy not being able to tell the difference between the Taser and the pistol by feel in the heat of an encounter (With serious reservations). But remember; cross draw, safety, red laser sight and fumbled draw. At some point Mehserle had to know what was in his hand. Had to. It's what he was selected, trained and paid to do. Every officer must. It's as basic as breathing. The Taser is drawn and operated distinctly differently from the pistol precisely to prevent such a mistake.

From the preliminary hearing;
After the seven days of testimony, Judge C. Don Clay concluded that Mehserle had not mistakenly used his service pistol instead of his stun gun. The judge based this on Mehserle's statements to other officers that he thought Grant had a gun. He also noted that Mehserle had held his weapon with both hands when he was trained to use just his left if he was firing a Taser. (Emphasis mine)

Mehserle panicked in a situation that he and the other BART officers allowed to spiral out of control. He was so panic stricken that he was convinced Grant was an imminent threat to life and limb, drew his firearm and deliberately shot the supine Grant. He may have formed the idea that he thought he was reaching for his Taser but I'm unconvinced. I think he lost control of his fear and his fight or flight response took over and he reacted instinctively. When faced with a perceived deadly threat he responded with deadly force. It may have been subconscious (in fact it almost certainly was as opposed to a reasoned, thought out action) but it was still a deliberate response.

Academies and agencies spend a considerable amount of time on officer safety training. It's a part of the FTO curriculum. It's a rated category and failure can lead to dismissal as well as death or serious bodily injury. The problem is we have a couple of generations who have grown up without hunting or gun handling experience who are now serving officers or will soon be. The job they took as an officer isn't just their first LE job, it's their first job period. They lack maturity, real world experience, critical problem solving skills, logical thought processes and common sense. They are being scared to paranoia by horror stories from instructors who tend to emphasize the worst case in every scenario. This makes for jumpy cops who ratchet their way up the use of force ladder far quicker than is necessary in most cases. And that's the rub right there. Most Cases.

There will always be those out there who are looking for any excuse for a fight, whether it's with a cop or a spouse or a total stranger. Ambushes, hideouts, hidden accessories, a call can jump up and bite you on the ass pretty quickly and without warning. Training and preparing for these situations is only good sense but we've got to find balance. We've gotten to the point where officers (mostly young but by no means are they the only demographic represented) view everyone through the Worst Case Scenario, Officer Safety Lessons Learned lens. I want every officer out there to go home at the end of their shift but I also don't want any person shot who does not absolutely deserve and desperately need to be.

It's a dangerous job. Everyone knows that but if you're unwilling to die on the job stay away from the profession. I wanted to go home as bad as anyone out there but I prepared myself and my family for The Call. We must accept the inherent risks associated with policing and the losses of officers doing their jobs if we are to avoid such incidents as this one. That doesn't mean stopping officer safety training but it does mean halting the horror show it's become for a more real world and common sense approach.

I'll give a story here to establish my bona fides and give an example of what I'm talking about.
Many years ago I was working midnights. I was blacked out on a major thoroughfare watching for drunks when an officer I'll describe as sluglike in work habits sped past with lights on. The Voice (in my head. Yes, that's what I called it) said "Hey! You might want to follow up with officer Escargot there Skippy." Off I went and pulled in behind the traffic stop. As I got to the passenger door (Escargot was at the driver's window) he turned to me and practically screamed "Pat search That Guy!" That Guy was the passenger who turned out to be a 6 foot, 300 plus pound mountain of humanity. I got him out and said "I just need to do a quick pat search sir. If you'll just turn around and raise your hands this'll only take a minute." Easy peasy lemon squeezy. The response was one word. No. "No really sir, this will only take a second. It you'll just turn around and raise your arms up." No again. I got insistent. "Turn around and raise your arms" with a hand to an arm to encourage compliance. He shook me off and then announced in a loud and clear voice "I've got a gun." He followed that announcement up by sticking his right hand inside his jacket and pulling on something.
I now had 2 choices. Pull my pistol and shoot him as soon as he produced the gun or take him on. I wasn't really afraid. Oh, I was deeply concerned but I was confident in my training and fitness. I could take this guy so I took him on. I grabbed his right wrist with my right hand, pivoted around behind him, grabbed his left wrist, pulled him into a bear hug (Lord this guy was big), lifted him off his feet, unceremoniously dumped him on the ground face down and held him there until the cavalry arrived. Longest 2 minutes of my life. He kept screaming that he had a gun. Turns out he had a revolver in a shoulder holster with the butt in one ham like fist. The hammer was caught in the cloth of his jacket. A misdemeanor arrest and an admonition that maybe pulling guns on cops was contraindicated and we were done. Afterward no one batted an eye. It was routine and I was perceived as having handled the situation well and as expected (I later learned that Officer Escargot has seen a couple of guns in the back seat, something he neglected to pass along at the time).

I tell this story to illustrate how conflicts can be controlled and reasonable choices made even in life and death situations if one keeps one's head and does not panic. In a split second I weighed what I saw and knew against my skills and abilities. My point is that I used my head and those precious few fractions of a second that I had to assess the situation, form a plan and react appropriately. I was just an ordinary street cop but I did the job the way common sense and decency told me to do it. I saw a way to avoid killing this man and I took it. Yes, my life was literally on the line and I could have easily lost that fight. If I failed or was wrong not only was I going to pay but officer Escargot probably would as well. That's what I got paid to do, protect life, even a criminals, when and where I possibly could. Killing was a last straw and meant it had either completely dropped in the pot or I screwed up bad though I came very near to choosing to kill this man. Others would make that choice and that's Ok, as long as that decision is made from the standpoint of training, experience and self control. Not panic or blind fear.

Common sense, decency, a willingness to accept casualties on the police side and calmness in the face of violence and ridicule aren't just good ideas, they're supposed to be the hallmarks of policing in America. These precepts were conspicuously missing in the BART incident. Indeed, as far as I can see the whole thing was pretty tame by comparison to a real life or death event.

Johannes Mehserle killed Oscar Grant. I cannot possibly know what was in his mind but I am imminently qualified to judge his actions and the actions of those officers with him. I am convinced that they took a loud, drunken, emotional incident and let it spiral out of control to the point that Mehserle made an instinctive decision to employ deadly force through blind, panic fueled fear. Mehserle probably should have been identified as an unacceptable officer early on in the selection and training process. As a former training officer myself I can say with absolute certainty that officers prone to panic and fear based decision making are easy to spot and virtually impossible to rehabilitate. Some people are cut out to do the job properly and some are not. Most in fact are not and that's Ok. Let's just avoid giving them a job that's beyond their ability. If it was easy we wouldn't need people the caliber of these.

Mehserle was convicted of Involuntary Manslaughter. California Penal Code Section 192 covers Manslaughter. Take a minute, go to that link and read it in total. It covers Homicide and malice. In part;
192. Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: (a) Voluntary--upon a sudden quarrel or heat of passion.
(b) Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.
(c) Vehicular--
Murder is covered by Section 187 PC:
187. (a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.
188. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

I'm am not an attorney but I am of the opinion that malice was absent but heat of passion (evidenced by Mehserle's panicky response to the provocation of a resistive Grant) is very much in fact. I'd have gone for Voluntary but Involuntary isn't unreasonable and hardly a slap on the wrist. Mehserle is going to prison for a long time, bank on it.

That said, we're supposed to be held to a higher standard not a lower one. I'm not buying accident or mistake or even heat of the moment. If he couldn't handle the pressure and the fear he should have turned and walked away. I'd much rather be on my own then partnered up with a hysteric. It's a tough job and only them mentally tough should be allowed to even apply.

Johannes Mehserle shot Oscar Grant in the back and killed him. By any reasonable standard he should go away for the rest of his life at a minimum. His actions are indefensible. I've said it before and I'll go on saying it til the day I die. America deserves the best law enforcers possible. The bullies, the hysterical, the fear and emotion driven need to be identified and weeded out.

I love my brothers and sisters in the profession of policing. Love them. They've chosen to pursue one of the most difficult careers in America. There are more ways to screw up that I can possibly count. Many will cost you your health, your job or your freedom. A lot of them will cost you your life. Ask Lagniappe's Dad what the cost is. But we must learn from our mistakes. This shooting was avoidable and should never have happened. Oscar Grant should have gone to jail as he so richly deserved and paid his debt to society again (as small as that undoubtedly would have been).

Oscar Grant was not a hero nor a man to be held up for your children to emulate. His actions most certainly contributed to his own demise. But make no mistake, the end result was badly out of proportion to the provocation and cannot be excused. The real tragedy is that Johannes Mehserle's action has now made this man a martyr and given those less inclined to obedience to basic decency and the rule of law an excuse to once again riot and help themselves to other people's property. Perhaps the only true victims in this sad case.

Six