TheAgitator.com
A (Mild) Defense of the Cop in the BART Shooting
Thursday, January 15th, 2009So after looking at the videos several times, I have to dissent from the chorus calling for the head of Johannes Mehserle, the cop who shot and killed Oscar Grant at an Oakland BART station two weeks ago.
Mehserle’s body language after he fires the shot to me indicates panic and confusion, not satisfaction at having just carried out a deliberate execution, as some local politicians have portrayed it. I find the explanation that Mehserle thought he he had grabbed his taser to be not only plausible, but likely.
That doesn’t mean Mehserle should get off. He’s clearly at fault. Whatever line of work he finds next, a portion of his paycheck should go to Oscar Grant’s family for the rest of Mehserle’s life. That should probably go for the people who trained him, too (though that isn’t going to happen). Moreover, Mehserle should never wear a badge again. Oscar Grant’s death will either haunt him for the rest of his life, or it won’t. In either case, it disqualifies him from being a cop. If it’s determined that there was no reason for Mehserle to draw his taser (Grant appears to be handcuffed and on his stomach in the videos), then he’s guilty of excessive force, and a manslaughter charge might be appropriate.
The police should be held to a higher standard than those of us without a badge. As Glenn Reynolds points out in the New York Post today, the courts unfortunately seem to hold them to a lower one. The doctrine of qualified immunity, which affords police officers (and other government employees) protection from negligence not afforded to those of us who don’t get a government paycheck, is another example.
That said, there seems to be a mob-fueled rush to pin a murder charge on this guy. Given the videos, it just doesn’t seem warranted to me. Speaking as a journalist who has reported on plenty of aggravating stories where bad cops got off scot-free, Mehserle shouldn’t have to suffer the accumulated anger of all of those stories. He should be charged for what he did, nothing more.
At the same time, I’d pose this question to the Mehserle defenders I’ve seen on police forums and bulletin boards: I’m sympathetic to the argument that in the heat of the moment, Mehserle inadvertently reached for the wrong weapon. But Mehserle had training. He had other cops there backing him up. If we’re going to be sympathetic to him, where’s the sympathy for people like Cory Maye or Ryan Frederick?
Why should we assume good intentions when a cop with training, wide awake and conscious, with other cops all around him makes a mistake that ends with a fatality, but assume the worst when a civilian is awoken by the sound of police breaking into his home, and in the heat of the moment, fires a gun after mistaking them for criminal intruders?
Seems to me you can’t simultaneously argue that trained police officers should be forgiven for nervous mistakes made in the heat of the moment, but ordinary people should be expected to show impeccable judgment and restraint, even under unimaginably volatile and confrontational circumstances.
When I viewed the video from the cell phone, it appeared that he drew a pistol, and as he cocked it, it slipped and fired. Why he should have drawn it is not clear. Whether his action distresses him is irrelevent. Police are given power and privelege (try carrying a holstered gun in a mall) and authority over us. We must keep them on an extremely short leash. I would not want to live without cops, but they must be controlled.
How this could be anything other than murder escapes me. The victim was laying prone on the floor when he was shot. It’s hard to imagine a more defenseless and nonthreatening position that one could find in a public place. Given the difference in heft and balance between a Taser and a handgun, no one is going to legitimately confuse the two. The officer was arrested on suspicion of murder, and I’d bet that the charge filed will be second degree murder, as it should be. His badge, and his freedom, should be taken from him for what he did.
I’d still find it questionable if he tased a handcuffed man.
I can believe that he mistakenly drew his gun when he thought he was getting his taser, but tasers should not be used on a handcuffed and prone man. That’s surely assault, and if he killed someone while assaulting them, that sounds like it would normally be treated as a murder.
I’m not at all sympathetic to the argument that in the heat of the moment he murdered someone he only meant to torture.
Surely Mr. Balko can’t believe that if the victim had been killed by a mere peasant and not one of our high and mighty lords and master that the killer would _not_ have been charged with murder immediately.
“Mehserle inadvertently reached for the wrong weapon.”
This is where Balko’s argument falls apart. Drawing any weapon in this circumstance shows intent to inflict bodily harm — since death resulted, murder is the appropriate charge.
I hope this isn’t yet another case of Balko straddling the fence to appear “moderate” to the Beltway crowd that might be protesting a little too loudly over his generally excellent journalism.
Mr. Balko have you handled a taser, and a handgun?
This is simply not a reasonable assumption, even in a panic, and considering the man was face down on the pavement with other officers holding him I don’t even see any excuse for any panic at all.
You can’t accidentally shoot a modern pistol, as most of these guns are double action on the first pull. This means the first trigger pull is very heavy because it has to cock the weapon and then fire. If he cocked the weapon manually, he had every intention of firing it that evening. He is way at fault. And no one that I have polled locally in my office (I live in Texas, full of good ol’ boys) could confuse a pistol handgrip with a an of mace or tazer as they are shaped differently. He should have been pulling for handcuffs in the position he was in, and maybe a tazer, but in no way a pistol.
“My bad” is not generally a defense accorded to the general population. Cops, if anything should be held to a higher standard.
Facts:
1. The victim was face down in handcuffs – there is no reason ever that *any* weapon – taser, gun, club, *anything* – could be legitimately used against him at that point.
2. His corrupt cronies immediately set about the cover up before the corpse was cold, stealing cell phones from anybody they saw with one. You don’t do that if there’s no crime committed.
3. He quit the force so he wouldn’t have to answer the softball questions from the internal “investigation”/coverup – he screwed up big if he didn’t trust his fellow officers to completely cover for him.
4. The station’s cameras conveniently weren’t working. Whaddya bet they would have been in great shape had a cop been shot?
Sorry, the circumstantial evidence is in – he shot someone he had no business shooting, he and his buddies tried to cover it up, and then he quit the force when it looked like plan A might not pan out.
Until I see otherwise, he’s guilty.
Now, in a court of law, he’s innocent until proven guilty. But I can still draw my own conclusions.
The appropriate phrase is reckless disregard of human life.
Even if it is possible to confuse a taser and a pistol–especially if it is possible to confuse them–he had the responsibility to momentarily stop and make sure that he was holding the weapon he wanted to use (and a taser is after all a weapon). “In the heat of the moment” merely differentiates premeditated and unpremeditated homicide.
Mr. Balko,
If you are being held hostage by a lynch mob of cops please just post in bold. We’ll send a team over to get you out.
“That said, there seems to be a mob-fueled rush to pin a murder charge on this guy. Given the videos, it just doesn’t seem warranted to me.”
That’s a valid point. Some of the commenters here are mostly interested in heated rhetoric, rather than sound legal reasoning. I don’t believe there was any pre-meditation involved in this incident, thus, I don’t think this fits the traditional definition of 1st degree murder. I don’t know why the officer saw the need to draw his firearm. My guess is it was a reaction (actually, an overreaction) to the chaos occurring in the BART station, not necessarily to anything Grant was doing. A manslaughter or negligent homicide ruling is probably appropriate. If the DA over charges to placate the community, then loses the case, more chaos will ensue.
From my limited experience with police officers, let me offer a few thoughts. Most departments require officers pistols to be in holsters that have multiple retention mechanisms, often up to three, that require training and practice to use. I have only seen TASERs on a few officers’ belts, but they have always been on the side opposite that of the firearm. TASERs are lighter and bulkier than service pistols. It would seem to be an unlikely error to mistake a firearm on one’s dominant side, requiring use of up to three safety devices to bring into play, for a TASER on the other. In fact, when the officer draws his weapon, you can see the jerking of the belt holster he requires a second effort to actually get it out.
One video seems to show Grant being generally compliant. From the video, one officer appears to be pressing forcefully on Grant’s head or neck. I would think such a move would likely cause a natural, near-involuntary response and trained, experienced officers would expect this. Even so, it does not look like he presents a serious danger.
Even so, the officer does seem surprised after he shoots. However, I have seen people respond to their own deliberate actions, that they could not believe what they had just done.
Having said all that, I am in agreement with Mr. Balko’s last two paragraphs. However, the police have the full power of the state, police and district attorneys on one side (that’s executive and legal branches), against the much more limited resources of an individual. Who do you think is likely to end up with the short end of the stick?
Negligent homicide should be the charge. If it wasn’t intended, then it was “on accident” which is one of the definitions of negligent. In layman words, murder=homicide, but it’s different in the legal world.
I should have said “negligent homicide should be the minimum charge”.
my two cents:
judging by the officer’s post-shot body language, the officer appears surprised / horrified / stunned / confused.
therefore, a defense of “i didn’t mean to, it was an accident, i didn’t know, etc” seems like a reasonable selection for him.
as a fellow human being, i can understand that and i can sympathize with him for making an error.
but as a responsible adult, i know what the judge would say to me:
“you had a weapon. you pointed it at a person. how can you say that you didn’t think a person could get shot?”
i would be convicted quickly
I agree that negligent homicide or manslaughter is the correct charge and that he should be convicted of that based on the evidence I have seen. I also have to agree that mistaking a taser for your service weapon, especially up to the point of firing it, is unlikely for anyone with even a moderate amount of training. I don’t think this guy decided to kill a stranger in front of hundreds of people. I think he was poorly trained, lost his cool and did something very stupid. There are many people in jail for taking lives they didn’t mean to (drunk drivers for instance). He pointed a gun at another man and it went off, killing him. Any of us “civilians” would do time if we did the same. He should as well and the victims family should be well compensated.
I’ve never handled a taser or a handgun, but judging by the size, shape and mechanics of each I find it implausible that he meant to tase the victim.
Few thoughts….
First off, anyone calling for a first degree murder charge is a moron who is either a race baiter looking for an excuse to take to the streets (as people did in SF last week) or one of those crazy closet anarchists in libertarian clothing opposed to any and all government that give rational limited government classical liberals a bad name by providing a convenient strawman for the statists to foist on us.
That said, I’ll echo the commenters who have said that it is damn near impossible to confuse a taser with a firearm. Almost all police departments carry the firearm on the strong side (dominant hand) and the taser on the weak side. As also previously stated, tasers have a different weight and grip feel than a handgun. Making that mistake is a serious lapse in judgment and should be punished with some sort of severe legal penalty, either manslaughter or negligent homicide, regardless of whether or not there was cause to draw a taser.
You say police ought to be held to a higher standard. I can guarantee that if I happened to be carrying both a taser and a firearm and accidentally shot and killed someone with my gun when I would have been justified using my taser, I would still be getting charged at the MINIMUM with manslaughter or negligent homicide.
I have held both police issue tasers and handguns there’s a huge difference. He should have known what he was holding.
My interest is only to see whether they attempted to protect the guy because he was “one of theirs”. From the looks of things, I’d say they’re not. There’s still a lot of bargaining and stuff that can go on behind closed doors, though, so I’ll wait and see how it ends before rendering final judgment.
…anarchists in libertarian clothing… and …rational limited government…?
I’m sorry, but all I see here are contradictions. Stop intellectually fellating the state for a moment and think about what it is and whether it deserves your die-hard allegiance.
…anarchists… opposed to any and all government…
I am not opposed to government by consent or by right, although I doubt most people would call that a government at all. Again I’m sorry, but basic decency causes me to oppose initiated coercion, which is implicit in anything you’re likely to mean by “government.”
Even thought I’m the FUCK THE POLICE guy, I’m inclined to your view, Radley. From what I can tell on the video, the officer does appear to be shocked, like, “Oh, fuck, I did NOT mean to shoot him.” In any event, the officer should not be allowed to serve on the force ever again. The commenter who said that police must, of necessity, he held to a higher standard is right. You can’t make mistakes like this and walk away as if nothing happened. If that means he has to change careers, so be it. Some of us aren’t meant to be cops. I wouldn’t take the job if someone offered me $1ML/yr, partly because i’d be obliged to enforce laws I don’t believe in, but also partly because I know that I’m psychologically unfit for the job. I’d be a nervous wreck before the end of the first week.
we’re finally getting a cop to court, which is a big step in the right direction. Another issue that I hope comes up- I’m curious about the cops trying to take cameras that night… This could be a big deal for all of us, especially if the police are forced to back away from trying to confiscate cameras or delete photos.
Here’s my problem. He had no reason to pull out his taser, let alone a gun. The idea that he mistook his gun for at taser seems improbable given how different both weapons are. If this is legitimately what happened, why did he refuse to give a statement to police after the shooting, especially given that that statement could NOT have been used in court.
I think his resignation will prove to be his downfall.
The other thing is that significant enough negligence can be a reason for a murder charge, though probably not 1st degree murder.
“(iii) Reckless indifference to an unjustifiably high risk to human life (sometimes described as an “abandoned and malignant heart”);”
“Under state of mind (iii), an “abandoned and malignant heart”, the killing must result from defendant’s conduct involving a reckless indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury.”
i don’t know radley. i have watched the video upwards of 20 times.. and the view that catches the full shooting, and not that shaky one. To me, it clearly looks like mehserle calmly draws his pistol, steadys it with his free hand and fires. maybe the news clip i saw cuts out his shock reaction to the shooting. and with handguns, when cocked with one in the chamber, it doesn’t take much to make them go bang, but i can’t for a second believe that this officer confused his taser for his firearm. And i also can’t believe for a second that what was occurring that night made him go into such a panic that he felt a tasing was necessary. BART officers were swarming and grant was pinned to the ground by at least 2 officers. what i saw of the the body language of mehserle does not indicate to me that what happened was any sort of accident. i don’t know. but then again i trust your opinion and neutrality radley so i will have to go back and look at it again.
The first question to be answered is why the guy drew his sidearm at all. It may not have had anything to do with Mr. Grant.
Why he drew pertains to his intent. Intent is critical to this case.
Regardless of his intent, a negligent discharge is in fact negligence that resulted in a death. I think that is probably cut and dried, but we’ll see.
First off, anyone calling for a first degree murder charge is a moron…
It does not seem likely to me that a first-degree murder charge would be appropriate; I’m unaware of any evidence to even suggest that. On the other hand, given the nature of the plea-bargain system, a murder charge might be necessary to prevent the officer from getting a plea bargain for “reckless endangerment” or other such nonsense. IMHO, this case needs to go to trial; the only way that’s going to happen is if the charge that’s filed is more severe than what’s likely to stick.
there’s no reason to believe that the killer was even carrying a Taser that night
http://carlosmiller.com/2009/01/11/was-bart-police-officer-johannes-mehserle-even-carrying-a-taser-gun/
Commenters: nicely done
Radley: have you gone mad? or are you just strategically posing?
For the sake of argument, let’s give the officer every favorable inference. He “accidentally” shot a suspect in the back b/c he thought he was pulling out a Tazer. Fine. That’s negligent homicide or manslaughter. When you cause the death of a human being because you were careless, that is still a crime. I neither lionize nor demonize law enforcement officers. The fact remains though, this guy shot Mr. Grant in the back, while Mr. Grant was restrained by at least two other officers. It’s on tape. His reaction afterwards goes to his state of mind, but really, he needs to have the book thrown at him because even on the most favorable reading of his actions, i.e. that he was merely careless, he needlessly took the life of a 22 year old man.
I didn’t think he was wearing a Taser.
I think he lost it psychologically, pulled his gun and shot the guy.
That’s 2nd degree murder.
He should not have been carrying a gun.
Actually… I think MOST cops shouldn’t be carrying guns.
I hope this isn’t yet another case of Balko straddling the fence to appear “moderate” to the Beltway crowd that might be protesting a little too loudly over his generally excellent journalism.
Radley: have you gone mad? or are you just strategically posing?
Yes, you guys caught me. Because everyone knows that the way to suck up to the liberal Beltway elite is to defend a white cop who shot and killed an unarmed black man.
Or…
I just happen to find it implausible that a cop would stage a deliberate execution in a subway station full of people.
Spare me the “yet another case” crap, and the second-guessing of my motivations.
And by the way, Kristen, it’s your buddy Lew Rockwell who has a history of defending police brutality.
Guess he’s just a Beltway suck-up, too, eh?
As I approach the third year…of the January 24, 2006 loss of my son…to an unjust killing…by a SWAT officer…even though my son was compliant…non-threatening…and never having owned a weapon…was of course…unarmed…I am more than upset…by this story and video.
We were told…in our tragedy…that there would be…no criminal charge against the officer…”intent” is hard to prove…and after waiting for almost a full year…for a police report…of what they claimed happened…our only recourse…was to file a civil suit… which we did in March 2007…and are still pursuing. Justice moves slowly…if at all.
My prayers…my condolences…and my heart…goes out to the parents…and family…of Mr. Grant. You have my deepest sympathy.
http://www.justiceforsal.com
@Bob: One of my friends had a client who was running from the police through a breezeway in an apartment complex when one of the officers drew his weapon, fired eleven shots and managed to hit the fleeing suspect exactly one time in the ass (of course) from about 10 yards. He endangered any number of children and other innocent folks in the apartments in the process and, as far as I know, he still has his badge and gun.
I see two problems here:
1) TASERS are not non-lethal devices. No matter what TASER Intl will
tell police departments, there is some degree of danger to a suspect
who is being tased. If the TASER is being use as an alternative to
an officer firing his handgun, clearly the TASER is a win.
However, all too often, TASERs are being employed to enforce
compliance with an officers orders. If you don’t move quickly
enough or voice an objection to an order, you get TASED. There’s
plenty of examples on YouTube (e.g.: Don’t tase me bro)
Police departments should change their use of force policies to
allow TASER use only as an alternative to deadly force.
2) If the officer did intend to pull his TASER and drew his handgun by
mistake and didn’t notice the difference, that would seem to indicate
that there is a potential product liability problem with the TASER.
If it is shaped similar to a pistol and is operated like a pistol (e.g.
trigger activated by pointer finger) it is easy to imagine that someone
under extreme stress may pull their service weapon and fire it
instinctively without noticing the difference.
Several models of TASERS marketed to the military and law
enforcement in fact do resemble pistols in their general shape and
are activated in a similar manner as a pistol.
Another poster in the comments section expressed the opinion that it’s
easy to tell the difference between a handgun and a TASER; yes, the
TASER at first glance seems quite different. It’s plastic. It’s garishly
colored. It probably weighs less than the standard sidearm. But the
similarities between the two outweigh the differences. When
you’re in a life-or-death situation – operating in fight or flight mode (or
just operating on auto-pilot) you don’t take the time to assess those
differences.
There’s a similar human factors example that might serve as an object
lesson.
Years ago, aircraft had the same type of lever to operate the flaps and
landing gear. By touch alone the pilot could not tell the difference. The
result was a large number of gear-up landing accidents. On final
approach the pilot would reach over and toggle what he thought was
the landing gear. He’s usually got his eyes on the runway 100 feet
ahead of him. Quite often he wouldn’t look to find the correct lever – he’d
do it from memory. Sometimes instead of lowering the landing gear he’d
flip another lever instead; maybe he’d flip on the landing light. Or,
instead of adding the final 10 degrees of flaps he’d accidently pull
up the landing gear.
The FAA decided to standardize the layout of aircraft cockpits. The
knobs for flaps, landing gear, throttle and mixture are specific shapes
that are easily discerned by touch alone. The flap control is always
shaped like a small wing. The landing gear knob is a wheel. The mixture
knob is scalloped. Always. In every plane from a Cessna 152 to a Boeing
777.
The result – gear up landing accidents were significantly reduced.
Gear up landings still happen, but it’s almost entirely due to the pilot
forgetting to lower the gear – not because he operated the wrong control.
Radley,
You’re right that this police officer shouldn’t have to suffer the collective anger over all police injustices. But while it doesn’t make me good to say this, I won’t feel as badly for him as I do for the Cory Maye’s of this world who are getting railroaded for a lesser offense. As others have said (including you), cops should be held to a higher standard.
Is there any word about consequences for the cops who confiscated the camera phones? I would like to see a conspiracy charge and some SERIOUS punishment for this garbage. It’s bad enough this incident happened, but the attempts to cover it up are even more dangerous for our safety and security.
And I resubmit my contention that all non-military gov employees should have a multiplier >1 for when they commit crimes, and should always get as a min the maximum that would be applied to civilians.
“He pointed a gun at another man and it went off, killing him. ”
Uh, no. A gun doesn’t just “go off”. It is fired. The trigger was pulled.
I believe Radley has mistaken what a charge of murder would require in regards to intent.
It’s not a matter of whether Mehserle intended to kill Oscar Grant, it’s whether Mehserle intended to harm Oscar Grant and that Grant’s death was a result of that intent to harm.
With that in mind, let’s examine this again.
Even if, and a disputable if it is, Mehserle intended to fire his taser, instead of his gun, into Grant’s prone back while Grant was being controlled by another officer and had his hands behind his back… what was his reason for doing so?
Is it a reasonable jump to use the “imperfect defense” and say that there was a sufficiently plausible risk of harm from Grant as he laid face down on the cement with an officer applying a pain-compliance hold via his knee on Grant’s neck while Grant’s arms were behind his back for Mehserle to be justified in using his “less than leathal” taser?
Or… is it clear that Mehserle, again if he intended to draw and fire his taser, did so with the malicious intent to cause harm to Grant since it is not reasonable to assume that Mehserle could have reasonably perceived any threat from Grant at that time?
It is the intent to harm at issue here, not the intent to kill… and I think the evidence shows that there was a clear intent to harm Oscar Grant that night, whether or not that harm was intended to be deadly.
Hence, I strongly disagree with Radley and believe that murder is an appropriate charge.
I’ve given it some time to think about. Just because the officer pulled the gun and shot in callous indiference that doesn’t necessarily meant that he’s not going to react to the shot with panic. The gun shot pulled the officer back to reality. When he realized what he had done, after the fact, he then panicked. I’m sure you’ve seen movies where people throw up or become despondent after killing someone. I was trained by the military and although I think I could have killed should they have sent me to war, that doesn’t necessarily mean that I wouldn’t be a complete wreck had I actually done so.
I have never accidentally gotten in on the wrong side of my car to drive it, because I have known left from right since I was 4.
I have never accidentally put my shirt on my legs when getting dressed, because they are not similar in feel even in the dark.
I have never accidentally squeezed shampoo onto my toothbrush, because their weights are so different.
I have never accidentally used sandpaper instead of toilet paper, because some shit is just not that hard to figure out.
If he is allowed to use the accidental taser/service weapon draw defense many more people will die due this built in excuse.
As far as 1st degree murder: The amount of time needed for premeditation of a killing depends on the person and the circumstances. It must be long enough, after forming the intent to kill, for the killer to have been fully conscious of the intent and to have considered the killing.
That does not mean you must sit at home and plan it. Only that you thought of it, considered the ramifications, then still carried it out. How long is that maybe a few seconds?
“Mehserle’s body language after he fires the shot to me indicates panic and confusion,…” {whack}
Too fuckin’ bad. He knew the job was dangerous when he took it, and he’s the one responsible. To hell with him. Period.
I still say it’s murder, because he had no business drawing his taser on a cuffed man laying on his stomach. The “accident” defense makes it murder 2, or at the very least, manslaughter.
Mike,
Your half-assed defense of liberty is what gives we anarchists/an-caps/agorists a bad name. What is the state if not a monopoly on the use of violence? How does the use of violence comport with living in a free society?
This is might seem off subject, or as some kind of half-assed defense for the officer, but it isn’t meant to be; it isn’t unusual for people to completely reverse tasks, even ones they should be crystal clear. For example, I’ve stopped at a green light, and went when it turned red, not realizing I had done it until I was through the light (no, I wasn’t drunk, high, or sleepy). I’m sure many of us have done similiar things (perhaps so insignificant as to forget about them immediately after). perhaps even daily. An even better example: there are thousands of reports of doctors committing egregious errors in surgery, such as cutting off the wrong limb, operating on the wrong patient, etc. The human brain screws up all the time, on tasks big and small, simple and complex.
So while I don’t think it should be an excuse, and I believe he should be held accountable (long jail term at a minimum), I don’t think that you can just say that he had training, and the gun and holster have safety mechanisms, therefore it must have been on purpose. It isn’t that simple.
I do believe you need to suss out the difference for murder 1, murder 2, manslaughter 1, manslaughter 2, etc as they are in California penal law before you sit there making declarations of is it murder or not. If we are talking in a normal sense of the word, yeah this is murder.
If we are talking in a legal Calfiornia sense, it might be Murder 1, Murder 2, Manslaughter 1, Manslaughter 2, etc depending on how California law defines each of those and the mitigating “enhancements” that push things between categories.
The man definitely doesn’t get the right to walk away from killing another person. He has no claim of self defense to deflect the minimum of Manslaughter (if everything as we know it so far pans out). It’ll be interesting to see how this gets played in the legal system.
I don’t think it’s hard to figure out what happend.
He pulled the GUN out intentionally, because cops enjoy that. They enjoy pointing weapons at people. It makes them feel strong. The proof is that they always do it, even in situations where it is legally not permitted, if they are facing a ‘felon’ or somone with a warrant.
That to me this the problem.
It may have gone off unintentionally, or negligently, but to me that doesn’t matter.
Some say that because he threw his hands up after he shot it appears to be an accident.
OK lets go along that reasoning of what you do after points to guilt, or accident.
After he refused to meet with BART officials he refused to be interviewed then fled the state, so that appears to point to guilt.
I know many are going to argue that his life was in danger, but as many of us know his life was never in danger as much as compared to when you interact with police.
Certainly if a gunman went into a Sack-O-Suds, and shot the clerk, but immediately put his hands up like it was an accident not one of us would be saying it was an accident.
The gunman did not want to kill the clerk, he wanted to rob the store, and just happened to commit murder.
The cop did not want to kill Grant, he wanted to hurt him, because Grant was not submissive enough, and just happened to murder him.
It is what happens before the killing that is a deciding factor for murder, not what excuse you have after.
Radley – I just wanted to point you in the direction of some reference material as to why they charged this guy with murder:
http://www.youtube.com/watch?v=xm7K4VM_7Rg
In this scene, Brian, the main character, wishes to purchace an item from a vendor. The vendor gives him a price. Brian accepts. The vendor tells him he must haggle. Brian does not want to. Finally, they haggle and everyone is happy.
We learn that sometimes you price (or charge) a much higher price (or indictment, in this case) than you can hope to sustain simply to get a better price (or charge) than you can if you start at what the item (or crime) is worth.
I hope this is informative or at least entertaining.
Mr. Balko,
Count me among those of your readers who are asking what you’re smoking, because I’d like some.
The idea that you could “confuse” a Taser with a loaded handgun is silly beyond belief. Have you ever handled either? Anecdotaly, most cops I’ve seen even keep them on opposite sides of their belt.
I understand your inability to see why this tool would do such a thing in front of a ton of people. I don’t claim to know either. Possibly he’s disturbed. But it’s as mysterious as it is irrelevant. There are multiple videos of this man drawing his weapon on an unarmed, restrained suspect lying face down on the ground, taking aim and pulling the trigger. The “why” doesn’t really matter. Why, for that matter, would he Taser a restrained man being piled on by a couple of his fellow burly officers? That doesn’t make much sense either.
And esoteric interpretations of his “body language” are less than meaningless to me.
This was cold-blooded murder. How anyone can view those videos and come away with any other interpretation boggles my mind.
Packratt pretty much nails this and Edmund Dantes is right as well: The legal definitions are key here. Under the Model Penal Code (MPC – that’s liek the generic code that most states base thier laws around) First degree murder is only when you have a pre-meditated homocide. Intentional Homocides committed in passion, or done on the spur of the moment become 2nd degree murder. The difference between murder and manslaughter is generally the lack of intent to perform a violent act towards a person, but to nonetheless intentionally act with a certain amount of recklessness or disregard for human life (think drunk driving accidents, or dropping a heavy object off a tall building)- negligence is a lower standard than recklessness and is very rarely used in homocide charges, though it does fit into the MPC.
It is also important to note that premeditation does not require planning or multiple steps. It merely requires a “moment’s contemplation” to be premeditation. So one could make a case that the officer did commit first degree murder here in that he deliberately drew his gun (and maybe that involved unstrapping it and clicking off the safety etc.), and then deliberately fired it. All of the dicussions here about how unliekly it is that the gun misfired or that he thought it was his taser would support that argument. This argument could overcome the “heat of the moment” argument by saying that perhaps the heat of the moment drove him to feel he needed to use deadly force, but he had several moments to contemplate his decision and still carried it out. (It’s like a guy who gets upset and “in the heat of the moment” drives across town with a gun he just loaded and shoots his ex-girlfriend – first degree murder).
It’s very tough to argue this case down to manslaughter becasue ultimately the act was intentional (again giving the unlikelihood of an accidental misfire), it was directed at a specific person and it was very likely to cause his death. This is where packratt’s analysis is exactly right. It’s the intent to harm in any way plus the fact that death is an even somewhat forseeable possibility of that harm. His state of mind really only goes to draw the difference between 1st and 2nd degree murder. He would have to explain why there was a major accident (like the misfire) in the causal chain to get down to manslaughter.
And packratt is also right, that let’s say he had used his taser and the young man had died, there would still be a very strong argument for 2nd degree murder.
*Please note this analysis is not specific to CA law.
Certainly if a gunman went into a Sack-O-Suds, and shot the clerk, but immediately put his hands up like it was an accident not one of us would be saying it was an accident.
THIS.
If that thug hadn’t been wearing a badge when this happened, absolutely nobody would be debating that what is recorded on those videos is a cold-blooded murder.
How many officers were present when he “panicked”, unholstered his firearm, used two hands to aim and fired into the back of the man? With that many officers around where was the danger to discharge his weapon or even a reason for panic? If he can’t be trusted to function in society he shouldn’t be allowed outside his prison cell without immediate supervision.
So, Radley would you be alright if I was at the grocery store and showed shock and surprise on my face after drawing my concealed pistol and shooting the cashier thinking I was reaching for my wallet? Maybe I just panicked because I felt rushed by the people standing in line behind me? Do I get the benefit of your doubt?
Also, if he actual thought he was firing his taser, he should have warned the officer who was already standing on the man’s neck that he was about to use the taser. If he was mindlessly following training for use of a taser he would have given that warning.
CTD That is very true, and many of have really missed it.
In the video we see a blue suit with badge, shoot a subdued person in the back, and his actions afterward have lead some to say it looks like it may have been an accident.
If the video showed a dread locked, T-shirt with B.Marley emblem, shoot a subdued man in the back, no matter what his actions after would any be saying “accident”.
Radley would you still be saying it looks not only plausibly an accident, but likely in this above situation?
I find the possibility of getting the ‘wrong weapon’ plausible to the point that when you reach for it on your belt your hand may find the gun before the taser. At that point, it ends for me. I cannot believe that a ‘trained’ person’s hand can’t tell the minute their hand finds a gun, and not a taser, that they don’t then just slide their hand back one more slot find the taser. I can’t believe the holster, the shape of the item, the weight, the feel of the grip and it’s location on one’s waist are not enough to register that this was not what you were reaching for.
Even as he started to draw it he did not realize it was his gun? Even as he brought it around in front of him he did not realize it wasn’t a taser? Come on!
How many contruction guys out there can find the right tool on their belt without looking? How many can tell it is the wrong tool before even pulling it out? Hell, I have four remotes next to my couch and I can tell which one I am grabbing without looking. We are supposed to believe that this cop fired a weapon thinking it was a different weapon? BS.
I know the ‘heat of the moment’ argument comes into play. A construction worker is not in danger when reaching for his tools. My response? Neither was this guy! He was not afraid for his life. No one was a threat to him, his fellow officers or the people on that platform. This was no panic situation. The guy was completely under control.
Sorry, I cannot buy the ‘wrong weapon’ argument.
The human factors problem touched on in comment #37 is very real here. Guns and TASERs should look and feel totally different (even if it makes them garish) and the two weapons should be stored in very different locations on the officer’s body.
Can I also add to my analysis above that the “heat of the moment” argument as a defense to mitigate a first degree murder down to second also must provide a reasonable basis for why the person was so upset. The classic example is a man who finds his wife in bed with another man, he will usually have a viable “heat of the moment” argument. But just being excited or anxious or whatever is not enough, it must be based on circumstances that would drive a reasonable person to feel such emotions. The officer likely doesn’t have a very good reason, even if he was, in fact, feeling crazy emotions.
The more I think about this and apply my most sober legal analysis (even granting the officer an excited emotional state beforehand and immediate feelings of guilt afterwards), this seems to fit within first degree murder. Sorry, Radley.
Regardless, this is NOT manslaughter.
I’m an anarcho-capitalist, and I’m not closeted at all. I’m wide open about it on my website, and it’s one of the ten most visited blogs in Virginia.
So do I count as one of those closeted anarchists who give you classical liberals a bad name? Just wonderin’, since I don’t go around badmouthing the minarchists.
The charge is 2nd-degree murder, according to the TV news last night.
The shooter will either plea-bargain or a jury will decide.
The newsreader said that a California police association spokesman could not recall another instance of an on-duty police officer being charged with murder in the State of California.
What we have is a black-swan event — the State is not rallying around one of its own. This can be because:
1. They believe the officer acted with malintent.
2. The rioters and news coverage have so motivated the populace as to create a temporary superior mini-State that is forcing the State of California to bow to its demands.
I’m more inclined to believe the second at this point. We could be witnessing Rodney King redux. I wonder if the people of Oakland have the stamina to outlast the State of California. This could drag on for years.
My money’s on a reduced charge plea for Mehserle, a couple of years in prison at most, if not 10 years of probation. No way this one goes to trial.
Rick, I compliment you on your contributions here, you’re always informative. I am curious about your site and will be checking it out.
That poster doesn’t have a clue about anarchism, BTW. Don’t count on him coming back for a debate.
I just happen to find it implausible that a cop would stage a deliberate execution in a subway station full of people.
Instead of being defensive, you should lissen to what your posters are saying about unjustified taser use and the correct legal consequences for that over here and at the cross-post blog. This is one of those rare situations where the rabble is smarter than you are and you should be smart enuf to see that.
So what if he’s charged? The prosecution can “oops” and forget to prove jurisdiction and the conviction ends up overturned anyway. It happened to Kathryn Johnson’s murderer:
http://www.guardian.co.uk/world/feedarticle/8267050
One additional potential charging theory would be felony murder. I don’t think the State will go this route, but its an interesting thought experiment. The theory would be that under Mehserle’s own account, the attempt to “tase” the victim was felony assault, because Grant presented no threat at the time. If the State won that argument, then even if Mehserle did not realize he had a gun, and did not intend to shoot Gran, he is still guilty of felony murder (which I believe carries penalties similar to first-degree murder under CA law; it may even be a type first degree murder under CA’s murder statute).
@ Nick T: With all due respect, that analysis does not relate to the MPC definition of murder. The MPC rejected degrees of murder entirely, having only murder, manslaughter and negligent homicide. See MPC §§ 210.01-210.04. But why would we do MPC analysis when the California Penal Code is available?
All killings of another human being are unlawful unless excused.
I would find that there was “no considerable provocation” as a matter of law given that the victim was face-down on the ground in handcuffs. That gives us malice aforethought.
This particular crime does not fall within any of the provisions of the first sentence of § 189.
This is cursory analysis, and the defendant can try to prove an excuse, but it seems under CA law that the correct charge is murder in the second degree.
Cynical,
The black-swan event, IMO, was brought about by the rioters (#2). I don’t want to say that too loud as the PC line is that rioting is always bad and never brings about any positive–even when dealing with thugs who are ONLY moved by violence.
However; as they were unable to surpress this case the state’s pursuit of Mehserle is purely political and self-serving. They will appease both sides (as they always do). Never stand between a politician and a vote, even if you’re a cop. That means having a circus for the voters while eventually Mehserle serves very, very little time (sell a bong and you’ll serve more time) making cops happy.
Yes, it will likely be plea bargained away, but not until after the circus for the people. The state doesn’t want to set a precedent here.
Nice to see all the other cops in the station rush over and subdue Mehserle after he executed Grant. Oh wait, they didn’t move a muscle did they.
I’ve got much more to say on this, but I’ll leave it at this for now. I don’t buy the “wrong weapon” argument, and I believe it’s wholly irrelevant. As I state in my post above, there is never ever any valid reason to pull any weapon on any person who is cuffed face-down with an officer on him.
Never.
Ever.
Any.
Reason.
Even if he really did think he was pulling a taser, that meant he wanted to simply torture the guy instead of kill him. Fine. Last I saw, that’s felony assault in this case (don’t give me any bs about “duty”, that’s never a cop’s “duty” to torture some guy with a taser). I don’t know if CA has a felony murder law, but, if so, well, do the math.
Sorry, there’s no justification, no escape clause. He killed a guy, the piper’s calling…
John Jenkins, thanks for the correction you are right about the MPC. Other than the source I do stand by my analysis. Also thank you for taking the time to look up the applicable statute. I am too lazy :)
However, i think you overlooked a piece of that statute that allows this crime to fall into first degree murder. There is a line in there that reads “OR by any other kind of willful, deliberate,and premeditated killing, OR…” I emphasized the “ors” as a way to show that that clause is meant to stand on its own. Thus that staute can be read to say:
“All murder which is perpetrated … by any other kind of willful, deliberate,and premeditated killing… is murder of the first degree.”
Again given the “ors” on either side of that middle clause, it is not meant to be modified by any other phrase in the statute. We could argue all day about whether this crime fits into that description, but I just want to point out that there is a general clause that makes (willful, deliberate and) premeditated murder first degree murder. I explained why I think this could be fairly argued as a premeditated crime above.
John Jenkins:
Looks to me that even if he intended to use his taser, as some have suggested then by your post it would still be 1st degree murder.
“§ 189 All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, TORTURE, or by any other kind of willful, deliberate,and premeditated killing,”
Since Grant was subdued, and the cop intended to taser him, which could only mean intended to torture him. Is there another reason for tasering a subdued person?
I capped that to plainly show it is within the scope of the rule.
@MacK: You’d need to look at the CA statute on torture to see whether tasering would qualify, and in this situation I don’t think it would. See Cal. Penal Code § 206.
@Nick T: I didn’t overlook anything. Rules of statutory construction guide us in reading statutes. In this case, there are two important guides: ejusdem generis, which tells us when a general provision is at the end of a list of specific provisions, the general provision is to be read in accord with the specific ones; and the rule of lenity, which tells us that any ambiguity in a criminal statute is to be read against the government.
The items prior to the catch-all are: by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, and torture. The common thread among those things is some degree of preparation for the killing that seems absent here.
Without additional information that would permit an inference of preparation, or the application of one of the specific provisions, I do not believe that the defendant could be convicted of first degree murder, therefore he should be charged with second degree murder (since that is the catchall for all other murders).
Query: Suppose that California law permits police officers to use armor-piercing ammunition and this officer was using such ammunition. Would the shooting death of this victim then be first degree murder (assuming that it is not otherwise)?
I believe the answer is probably no, but it’s an interesting question.
John Jenkins:
I’m not sure I follow. I’m going by the plain language construction of statutes. Any killing that is willfull, deliberate and premediated is first degree murder. Premeditated means what premeditated means, whether or not the other specific clauses discuss crimes that involve a significant level of planning or preparation, premeditated’s meaning remains unchanged. In other words, I think you are stretching your interpretation to say that “premeditated” suddenly takes on a meaning requiring several steps or hours of preparation just because specific crimes that have those qualities are also included.
So then, would you not agree with the defnition I provided for premeditation? Would you not agree that had the officer decided in his mind “fuck this, I’m gonna kill this kid right now” then stood up, then drew his weapon, then, say, cocked the slide or released the safety, and then pulled the trigger to a degree of applying 5 pounds of pressure, (assuming a jury believed that to be the facts of the case let’s say) that that would NOT be premeditation? Or that it would be some form of premeditation not included in that independent clause of the statute? Does premeditation, by definition, require more than 5 seconds of time elapsing?
#28
I don’t know if I was watching the same video, but the cop did not look calm, at all, when he drew his gun. He looked pissed off! I guess that might be a state of mind where he would accidentally discharge his weapon. But his anger exhibits mal-intent. Arguing in court to a bunch of jurors, it might be harder to convince them that it was an intentional murder. But, I don’t think it will be hard, at all, to point out he had NO RIGHT to pull either his gun or a Taser on a cuffed man laying face down on the platform. There is no way one could justify the use of deadly force! I think, as others do, his macho,” I’m the cop” attitude resulted in the unneeded death of the man on the ground. He drew the gun because he was mad. Does that not show malicious intent? I think it could very well be 1st degree murder, if his anger implies intentional harm of the victim. But, the reality is, especially if it goes to jury, he will only be convicted of negligent homicide.
California law does permit police agencies to possess armor-piercing ammunition, Cal. Penal Code § 12322, but I don’t know whether that extends to individual officers or whether this officer was using that kind of ammunition. It’s a great question for a 1L criminal law exam though.
@Nick: You seem to be ignoring the statute. The elements of murder in California are the (1) unlawful killing; (2) of a human; (3) with malice aforethought. I think all of those are satisfied, so the issue becomes whether it is first degree murder.
The part of the first degree murder statute you are concentrating on says that murder is murder in the first degree if it is “any other kind of willful, deliberate, and premeditated killing.” Note that they are stated in the conjunctive. I don’t think willful and deliberate are at issue. There is no doubt that the officer’s act was willful and deliberate.
The California pattern jury instructions comment on premeditation this way:
CALCRIM No. 521.
In the hypothetical where the officer says, “fuck this, I’m gonna kill this kid right now,” I don’t believe that meets the standard, I would consider that “[a] decision to kill made rashly, impulsively, or without careful consideration.”
In California v. Anderson, 70 Cal.2d 15, 447 P.2d 942 (1968), the California Supreme Court set forth these factors regarding premeditation: (1) events before the murder that indicate planning; (2) motive, specifically evidence of a relationship between the victim and the defendant; and (3) method of the killing that is particular and exacting and evinces a preconceived design to kill. (note common thread of preparation). Here again, I don’t think this act qualifies.
[...] Full Story: the Agitator [...]
Leaving aside the question of intent and whether this constitutes murder, I did find this part of Radley’s post odd:
“That doesn’t mean Mehserle should get off. He’s clearly at fault. Whatever line of work he finds next, a portion of his paycheck should go to Oscar Grant’s family for the rest of Mehserle’s life. That should probably go for the people who trained him, too (though that isn’t going to happen).”
Why exactly are the people who trained Mehserle suddenly financially liable for what he did, whether intentional or accidental? Unless you know something further, such as his instructor(s) passed him even though he didn’t qualify, I don’t see why they should be held responsible, no matter how emotionally gratifying some might find it.
If I’m a flight instructor and you put in your training time, pass all your tests, etc, and then get your pilot’s license, I don’t think I should be held responsible if you screw up and crash your plane months or years later. Can the family of every car crash victim sue the DMV and the Driver’s Ed teachers? 9/11 victims go after the flight schools? I thought this was the kind of crap that libertarians were against.
Here’s a possibility I haven’t seen mentioned so far: The officer was drawing his gun because of a presumed threat from the crowd when he accidentally fired, and the taser confusion story was a stupid lie made out of fear. IF that was indeed what happened, I wouldn’t want the guy to be incarcerated. Regardless of that, though, the cops who tried to confiscate cameras should be thrown under the jail.
Both Obama and Hillary ,mentioned during the campaign,that they would like to see 100,000 more cops on the beat. Scary, “new professionalism” ,in the future. As for this sad LEO, throw him to the lions. Seems like a clear case of “2nd degree “to me ,maybe Scalia will get to decide.
Regarding the weight difference between a Taser and a handgun: A Taser M26 with cartridge weighs a bit over 21 oz. A loaded Glock 22 weighs a bit over 34 oz. The grip of the Taser is relatively similar in shape and size to the Glock, and both are plastic.
The Taser certainly looks as though it would be more nose heavy than a handgun. The BART PD had issued Tasers less than 2 weeks before the shooting.
Whether the weight and balance differences would be significant in an adrenaline dump, what the BART PD’s doctrine was as to where to carry the sidearm and the Taser, whether Officer Mehserle was in compliance with that doctrine, will undoubtedly feature in the trial.
Dan: Even if Grant had a legitimate reason for pulling his pistol, killing someone with a negligent discharge is still negligent homicide. The rules of gun safety are short and simple, and (if it was unintentional), he violated at least two of them:
- Don’t point the weapon at anything you don’t intend to shoot.
- Keep your finger off the trigger until you intend to shoot.
Everyone I know that owns a gun knows those rules, and I’m sure Grant’s employers have records showing that he was trained in them. If any non-cop was on trial for a clearly accidental shooting, the prosecutor would hammer on those rules, and in most jurisdictions the sentence would be a few years.
But really, if you or I were caught on tape making an angry face, pulling a gun, pointing it at a man, and it fired, who besides our defense attorney would be making excuses for how it could be unintentional? The only question would be whether the prosecutor was willing to plea bargain – and in most jurisdictions, the reduced charge would still be 1st degree murder, but without the death penalty.
If “I thought it was my taser” becomes a valid defense and taser use is almost unlimited, as it is currently, there are going to be a lot more murders by thugs with badges.
#78 You are so correct…in citing those two rules…and in Mr. Grant”s case…what is seen…is unforgivable.
Police department policies and protocols…that “require” you to be at “ready gun”…although I expect the officer…should be in control…of his weapon…and…whose departments…do not have…any “in place” restrictions or guidelines…addressing those profiles and assessments…made by the police themselves…of persons…who have been reported…by them…as…low risk…non-violent…non-threatening…having no criminal record…never having owned a weapon…and also…as in my son’s case…to then have a SWAT team…sent to his home…to serve a document search warrant…for sports betting…and was…later…reported by them…to be…of course…unarmed…non-threatening…and standing compliant…when being approached…was nevertheless…in front of…the pointed end…of a SWAT officer”s gun…and was unjustly shot and killed.
Unfortunately…unlike Mr. Grant’s family…we have no video…and the officer…although there were others present…is the only witness…to what happened.
The SWAT officer…said it was an accident. He thought…he had his finger on the rail…initially could not account…for how his finger slipped…from the rail of his H&K 45…to the trigger…then pulled the trigger…hitting my son center mass…while saying he (the officer)…was taking his weapon…out of his thigh holster…but later…attributed firing the weapon…to an involuntary “sympathetic reflex” action.
Please excuse my wordy response…but it will be three years…on the 24th of this month…since my son’s life was stolen…from him…and us…as a result…of this excessive use of force…resulting in his unnecessary…and unjust killing. Mr. Grant’s death…touches my heart…and reopens my own wound.
Each time…I read about these type of reports…I am infuriated by the disregard…for a human life…that is shown in situations…where police tactics that are/were used…have been totally uncalled for…and have the potential…to either escalate…into terrible outcomes…or are just blatantly inexcusable…because the particular situation…does not need…such violent actions.
They are sworn…to serve and protect…and while I want them to be safe…in situations where they ARE in harms way…they do not have the right…because they wear a badge…to act as God…and to unjustly end…someone’s life.
God help all of us!
Although our web site has not been updated…and we are currently in litigation…those who might be interested…can read about our tragedy at http://www.justiceforsal.com
Hey #79. You got mixed up. Grant is the dead guy! Not the cop.
[...]BART shooting evolves[...]
he shouldn’t have been doing anything that caused the cops to show up in the first place…..
#1. There is no evidence that he was handcuffed when shot.
#2. The victim was obviously struggling and it was a chaotic scene with numerous uncontrolled potential suspects.
#3. Cases were a gun was mistaken for a taser have occurred several times. It can happen and does. It is a recorded fact. Some people can’t handle stress and sometimes horrible mistakes happen to people who usually can.
#4. Cops confiscate phones, cameras, and other items because they are evidence! They are allowed to do this and should do it. No one has any evidence of a cover up.
#5. Tasers are perfectly suitable for use on people who want to resist through physical means. I have been tased. It hurt like hell but caused no injury other than slight bleeding from the probes and perhaps some minor injury from falling. Its better than being beaten by a night stick. Cops are allowed to “one up” the suspect, and they should be.
#5. There are a lot of immature people who don’t like the police and paint them all with a broad brush– especially on this board.
All of that being said, I don’t understand how he could have made that mistake even considering that he was under stress. It appeared to be absolutely reckless, but I don’t believe there was any malice involved. I absolutely don’t believe he intended to murder anyone. People that say that are being ridiculous. It just isn’t logical under the circumstances. He will never be a cop again for sure, and will most likely face some type of charge due to his recklessness. It is a reckless but tragic accident for the police officer and it will cost the city (hence the citizens) a lot of money.
“Previously Grant had been convicted of drug dealing and, in 2007, was sentenced to sixteen months in state prison for fleeing “from a traffic stop while armed with a loaded pistol”.
Grant was resisting! The cop reacted and made a serious mistake. This was not intentional murder. Anybody with common sense can see that. Let the jury decide. I’m sick and tired of the left wing propaganda and lynch mob mentality that’s going on here.