This post is in response to the OS open call regarding the upcoming verdict in the trial of BART officer Johannes Mehserle. If you are unfamiliar with the case I recommend first reading the open call post and the linked article provided in that post.
With respect to the demands of justice what matters in this case are the facts of the case. That some members of that community are upset about the shooting is irrelevant. That some members of that community have chosen to riot and destroy property is irrelevant. That there have been other cases of police officers shooting unarmed black suspects around the country is also irrelevant. All that matters in this case are the facts related to this case, and that is what I will discuss in this post.
Unfortunately, this will make for a very boring post. I will not engage in hand-wringing or garment-rending or blanket denunciations of law enforcement or expressions of sympathy to particular racial groups. OS members will have to look to other posts to get their fill of that.
While I cannot discuss all the facts in the case, these are the ones that I find particularly significant:1) there is no reason why an officer would intentionally shoot a prone suspect in the back, resisting or not, in full view of other officers and the cell-phone-camera-carrying general public. It simply goes against common sense to hold that the officer intentionally murdered this fellow. That said, sometimes common sense does not prevail, and so we must look at additional facts.
2) as far as I know the officer in question had no prior complaints of brutality or excessive force.
3) while it is highly unlikely that a police officer will mistakenly draw a handgun instead of a Taser, it has happened in a few cases in the past. If you have a million cops drawing a million Tasers, every once in a while one of them will pull the gun instead of the Taser.
4) as police officers are required to carry more equipment, the likelihood of mistakes increases in stressful situations. This can be minimized through policy and training. For example, the Taser can be carried on the duty belt on the opposite side of the handgun. It may be (and I believed the defense alledged this) that Taser training for BART officers has been inadequate. Better training could reduce (but not eliminate) the possibility of drawing the wrong device.
5) in this case only one shot was fired. When police fire in self-defense they are typically trained to fire more than one shot. That only one shot was fired is consistent with the defense assertion that the officer believed he was firing a Taser.
6) Officer Mehserle was carrying a Sig Sauer P226 handgun in .40 caliber. This handgun does not have a manual safety. Instead, the first shot is double-action (hammer uncocked), with a 10 pound trigger pull, and subsequent shots are single-action (hammer cocked), with a 4.5 pound trigger pull. Rather than a safety lever, the gun has a decocking lever so that the gun can be placed in double-action mode. The significance is that if the trigger is pulled, the gun will fire. A safety lever would have provided another step before the gun fired, but the P226 does not have one. In fact, manual safeties are not typically provided on double-action handguns.
7) the videos are inconclusive. It appears that the subject could have been resisting at the time the officer drew the gun. Around the time he draws the gun, it appears that a couple of other officers start to back away, which is consistent with the belief that a Taser is about to be fired. After the shot is fired, officer Mehserle appears to hold his face in both hands, in a kind of "my God, what did I just do" gesture.
Based on the above I think that Mehserle should be found not guilty of second degree murder. The family of the victim will still have their day in court, to the tune of a $25 million dollar lawsuit. And BART probably needs to look at their Taser training.
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Tom Cordle
Paul J. O'Rourke
Rick Lucke
Whindbagg
Kanuk
Mick Arran
Salon.com
Comments
Is that justice to you? If a cop shot your kid by mistake, would you forgive him?
No, NOT because he is a police officer. Because he is not guilty of the crime of second-degree murder.
We do give police more leeway, not because they are police per se, but because as police we expect that in the course of executing their duties mistakes will happen. The difference between police and civilians such as us is that we can simply walk away from a situation. If guys are fighting on a commuter train, we shake our heads and walk away. Police can't; they have to intervene.
I think in this case the officer made a mistake, a tragic mistake, but not a crime.
Unlawful, sans malice or intent.
I don't think the Oops Factor should spare the officer from paying for his crime. Had the situation been reversed, not in the precise sense, but in the mistake, sans malice sense...does anyone doubt Grant would have been looking at 1st degree?
Mehserle should serve time.
Reckless indifference and 2nd degree will be harder to sell, but is not impossible.
If Mehserle is found guilty, the jury will have a choice of 3 charges. 2nd degree murder, voluntary or involuntary manslaughter.
I think it will be the latter.
The officer had poor training and lacked common sense. Regardless of the verdict, we will probably see rioting by the loser elements of society.
Bad scene all the way around.
So far I have not heard anyone here explain the elements of the lesser crimes, and how the officer's actions might fit those elements. If anyone has some insight into that, I would be interested to hear it.
Unintended, but illegal. I'd add shooting a guy is illegal, but I don't think I need to.
If his immediate reaction is accurate --that he was shocked at what he did, and expressed instant remorse...I'd relate it to the times when our minds are distracted, and we open the cabinet above the freezer when our initial thought was to open the freezer.
We reach for the wrong thing for the right reason because we're not focused.
I feel sorry for the guy if that is the case, but the act was illegal.
If you're going to Oakland California
Be careful which gang colors you wear
If you're going to Oakland California
Summertime is the riot time to be there.
Voluntary manslaughter: http://www.shouselaw.com/voluntary_manslaughter.html
"The defendant killed someone out of a sudden quarrel or in the heat of passion if:
1. The defendant was provoked;
2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment;
AND
3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.
Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection."
As far as I can tell, this doesn't fit the situation under discussion.
Involuntary manslaughter: http://www.shouselaw.com/involuntary_manslaughter.html
"California Penal Code 192 defines "manslaughter" as the unlawful killing of another person without malice.1 "Involuntary Manslaughter," which is the least serious variant of manslaughter, gets charged when the killing occurs:
• in the commission of an unlawful act, not amounting to a felony, OR
• by way of a lawful though dangerous act, that is done in an unlawful manner or without due caution or circumspection."
Again, I don't think this fits the situation. For example, let's say that I agree to tow you on your skateboard behind my car. I get up to 40 mph, and you crash and die. That would probably be considered involuntary manslaughter.
From what I've read California doesn't have a "negligent homicide" statute.
• by way of a lawful though dangerous act, that is done in an unlawful manner or without due caution or circumspection."
I think this fits best. Lawful in that the intended action was legal, and meant to subdue the victim. I suppose drawing his gun wasn't illegal, given the situation. Unlawful because he shot, not Tasered. Without due caution -- as the act demonstrates. Lacking circumspection because there was insufficient consideration. That he was immediately remorseful shows the consequence of not exercising caution was only considered after the act.
Given the facts as I know them, that would be my jury vote.
I could also make an argument for voluntary, I think, along the same lines, but see involuntary as the better fit.
Adding to that, he was trained in how to respond, and so should have more control than the average person. Though not part of the law, it certainly adds strength to the idea he acted without sufficient caution and consideration of the consequence.
I don't think he should serve anymore time or be punished more than the norm, but even mistaken actions have consequences, and a man is dead.
What he did was to use the wrong piece of equipment. That sounds rather trivial, but I don't mean it to be. He thought Taser and pulled a gun. There are indications that BART officers were inadequately trained in the deployment and use of the Taser.
In my view, what he did was comparable to someone who intends to step on the brake but hits the gas pedal by mistake. It's unfortunate and tragic. But I don't see that it rises to the level of a crime. He has lost his career; I read that he has already resigned. And the family will pursue a legitimate civil case against the city. So even if he is found innocent of a crime the situation is not without legal consequences for the city and personal consequences for the officer. At this point I don't see what good would be accomplished by sending this guy to prison, especially considering what can happen to police who end up in prison.
All things considered, that's my take on it. But I obviously wasn't on the jury, and it will be interesting to see what the jury decides.
This seems important to you "He has lost his career; I read that he has already resigned." I am not so impressed, the officer quit before any investigation could happen even by the department. I do agree with you he seems to have been poorly trained since he found this to be a situation where he needed a weapon to deal with someone who was already quite contained.
http://lascftp.lasuperiorcourt.org/hp/mzbldkimpbaiqzvzq1g3eo45/1386727507.pdf
Here is some information on another case in which an officer mistakenly shot a person with a gun instead of a Taser:
"BREMERTON, Wash. — A sheriff's deputy who was trying to get a man down from a tree shot and wounded him after mistakenly pulling a gun instead of a Taser, authorities say."
http://www.msnbc.msn.com/id/13512149/
And here's another case:
"Torres, 24, was shot as he sat handcuffed in the back of a police cruiser after his arrest on charges of resisting and delaying police as they tried to quell a loud party at Madera Villa Apartments on North Schnoor Avenue. Noriega told investigators she intended to shoot Torres with her nonlethal Taser because he was kicking at the car's window, but that she accidentally used her service weapon."
http://www.injusticebusters.com/2003/Tasers.htm
as far as the law goes, this is my stock reply: slavery was once the law of the land. the law can me manipulated, abused, "re-negiotated" according to the demands of the dominant forces in society.
as far as monetarily compensating the family, what is the going rate for a murdered man? what is the going rate for generations that won't exist?
i'm sure city of oakland accountants have it figured out because whenever people are murdered like this, they always find money to pay people to shut up about their murdered dead but never money for things [programs] the community might actually need...and could use for economic development. or maybe even just to finance a campaign for community control of the police since no one else seems to know how to train them properly.
point one: but you are ignoring the fact that in Oakland there is a history of disproportionate use of force by police officers. if it were an isolated incident it would be easier to claim that an officer would have no intention of killing a man...ideally yes. But if that officer has a history that gives him a belief that people of a certain race are criminal until proven innocent....
point two...the officer's prior history wasn't allowed into the trial. oscar grant's history was allowed in. So we don't know one way or the other this officer's history.
point three: pulling a taser--yes. but how many times have cops fired a gun thinking it was a taser? has that ever happened before? ever? pulling the trigger would have a very different feeling. I think this is far more rare and I haven't heard a taser defense before in a police shooting.
point four: only if the officer really did make a mistake it have affected this case. most people in oakland are suspicious of the taser defense because the officer went off the force after this incident...which means he had less explaining required regarding his actions. "taser defense," most people I know believe was dreamed up in a lawyer's office.
point five: when you shoot someone in the back you don't necessarily have to shoot more than once though, right? especially since he wasn't allegedly shooting to kill anyway.
point six: are you suggesting safeties should be required? I might agree there. I didn't know this about the gun.
point seven: inconclusive, but again you are drawing this conclusion without knowing that officer's history (because it wasn't allowed into the trial.) I think that the officer's history ought to have been fair game as to whether or not he intended to use a taser instead of a gun. again, the taser defense seems more like a laywer's concoction than a real defense to me. as for his face in his hands, that's subjective. I didn't see this video. He also might have been expressing fear of the crowd that caught the whole thing on video.
Its hard to know people's intentions anyway..most (white) people "want" to believe in the good cop instead of the bad one, but the situation in oakland doesn't lead so easily to this conclusion. I have a friend who was pulled over for a traffic violation in oakland (a woman of color) and she said when she argued with the officer about whether or not she had stopped at a stop sign (just arguing...while sitting in the car with a seatbelt on) his hand reached for his gun.
as a white person in america I don't know what that feels like. but it bothers me a lot that so many of my fellow citizens do have to live with that attitude (criminal until proven otherwise) on a daily basis. This must cause tremendous stress and ptsd within this community.
also please note (context matters) that there was a recent bust where oakland police were found to have been planting drugs on people in oakland in order to meet drug busting quotas....the idea of a "dirty cop" in Oakland, again, given that specific context, is not counter-factual or absurd.
just saying.
From what I have read, the officer in question had no complaints against him of any kind during his two years on the force.
Dolores: "pulling a taser--yes. but how many times have cops fired a gun thinking it was a taser? has that ever happened before? ever?"
Yes, it has happened. In an earlier comment on this point I cited two separate instances when that happened. It was even worse in those other cases because the people supposedly being tased weren't in the process of being handcuffed at the time.
Dolores: "most people in oakland are suspicious of the taser defense because the officer went off the force after this incident...which means he had less explaining required regarding his actions."
I'm not a mind reader, but I suspect that he knew his career was over. regardless of any potential criminal case.
Dolores: "when you shoot someone in the back you don't necessarily have to shoot more than once though, right? especially since he wasn't allegedly shooting to kill anyway."
Police are typically trained to fire more than once so as to make sure that the threat is eliminated. Mehserle was carrying a Sig Sauer P226, so he would have had one round in the chamber plus at least ten more in the magazine. In contrast, Mehserle's model X26 Taser can only be fired once (with two probes fired at the same time) before it has to be reloaded. Mehserle had a gun in his hand, but he fired it like a Taser, so to speak, which makes me believe that he thought he drew the Taser.
Dolores: "are you suggesting safeties should be required? I might agree there. I didn't know this about the gun."
There are pros and cons. Because the trigger pull is harder, double action guns typically don't have manual safety levers but some do. Taking the gun off safe is just one more thing you have to remember to do, and in a life and death situation that can be bad. On the other hand, the manual safety does provide another level of . . . well, safety. I don't know why Mehserle had the P226. Some departments require specific handguns; others don't. There was nothing unusual about Mehserle having a Sig.
Dolores: "she said when she argued with the officer about whether or not she had stopped at a stop sign (just arguing...while sitting in the car with a seatbelt on) his hand reached for his gun."
Every traffic stop is a potentially dangerous situation. You may recall that two police officers in Florida were recently shot and killed during a "routine" traffic stop. Any time I get pulled over by a cop I put the window down, turn the car off, have my hands on the steering wheel, and wait for instructions. And I NEVER argue.
I've never had a cop put his hand on his gun. I'm the same age of the women pulled over. and when I've argued, I've gotten out of the ticket. (sad but true...)
As far as other things go...when you shoot someone in the back, even if it is with a taser, you wouldn't have to shoot more than once. He was nearly sitting on him.
But the point is that even if it is accidental in this case, there is still much documented evidence (much) of excessive force used on people of SOME races and not others.
The woman I mentioned also did everything you said about turning off the engine and speaking politely and everything else. She is middle class, educated, drives a nice car, etc.
Sometimes I just feel there is this disconnect between people who don't want to see any racial problems in the way communities are policed and those who do.
Excessive force is a problem. Also the history of the officer was not revealed in the trial so we don't know his background.
This too was a fact interesting to me: "Mehserle’s former partner Jon Woffinden admitted during cross examination that Mehserle never stated that the shooting was an accident. "
If it was an accident, why wouldn't he have said so to his partner at the time? The taser defense came up AFTER Mehserle had an attorney, not before. Which is suspicious.
But if your predisposition is to trust the story, then it's pointless to look at counterevidence I guess.
Your blog is called "just the facts" so I wonder if you have read or are interested in this book:
http://www.powells.com/biblio/1-9781595581037-0
The New Jim Crow: Mass Incarceration in the Age of Colorblindness
This book gives more factual evidence of unequal process used to incarcerate, arrest etc. black men in our society. Police departments around the country were highly offended just a few months ago when obama used the term "stupidly" to describe the arrest of a Harvard professor in his own home but the fact is that being guilty until proven innocent isn't fair or just. And it is not uncommon. "Stupidly" is a kind word for discrimination and an arrest that was unmerited.
I also have a friend in college (black) who was waiting outside a house to babysit, just waiting in her car because she arrived early and a neighbor called the police and she was frisked...frisked....for sitting in her car and listening to music.
This hasn't ever happened to me. I worked for the college newspaper at the time and interviewed the officer who claimed it was because she was "out of state." I told him I was from out of state too (Washington and this was Tennessee) but I'd never been frisked.
I think some white people don't mind (don't see/don't care/don't believe in) this unequal and discriminatory treatment of their fellow citizens, and that bothers me quite a bit.
What I have tried to do in this blog is the stick to the facts of THIS case, because in determining guilt or innocence in this case, all the other stuff is irrelevant.
You write:
"This too was a fact interesting to me: 'Mehserle’s former partner Jon Woffinden admitted during cross examination that Mehserle never stated that the shooting was an accident. '
"If it was an accident, why wouldn't he have said so to his partner at the time? The taser defense came up AFTER Mehserle had an attorney, not before. Which is suspicious."
Remember the phase "anything you say can and will be used against you in a court of law." That's true, and that is why the prudent thing is to talk to an attorney before saying anything to anyone. It doesn't matter if you think that saying something would help or not. You keep your mouth such and talk to an attorney.
This is true whether one is a civilian or a police officer. For example, Massad Ayoob, the country's leading expert in the use of lethal force in self defense, teaches all of his students to say nothing until they talk to an attorney. He states that both in his books and in his training sessions. I know that because my wife studied with him.
So in not talking to his partner about the shooting, Mehserle did exactly what he should do.