#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.

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!

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.

“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.

@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:

The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.

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.

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.

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?

@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.

“§ 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.

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.