Early the morning of Jan. 1, 2009, in a now-infamous incident that dozens of cell phones captured on video and then replayed across the globe, Bay Area Rapid Transit (BART) Officer Johannes Mehserle shot and killed 23-year-old Oscar Grant as Grant lay on his stomach on an Oakland BART platform. Last week, a Los Angeles jury found Mehserle guilty of involuntary manslaughter. Because the jury had the option to convict Mehserle of second-degree murder, and perhaps because the jury contained no blacks (Mehserle is white, Grant was black), the verdict has enraged civil-rights groups and sparked protests and rioting in Oakland. The Department of Justice is now looking into the possibility of trying Mehserle a second time under federal civil rights law.
The jury got it right. There's ample evidence that Mesehrle was negligent--likely criminally negligent. There's evidence that Mehserle and his fellow officers may have used excessive force the night Grant was killed. Evidence also shows that Mesehrle's fellow officers tried to cover up the shooting by confiscating the cell phones of BART passengers who recorded the incident (generally speaking, police can ask for your name and address to later obtain a court order for video of evidentiary value, but they aren't permitted to take your cell phone or camera at the scene). There's evidence that one of Mehserle's fellow officers used a racial slur just before Grant's death. But there simply isn't any evidence that Mehserle is a murderer.
Mehserle claims he mistakenly grabbed his gun while reaching for his Taser. This is not only plausible, it's the explanation by the evidence most support. In the video, Mehserle's body language, just after the shooting, indicates surprise and shock. Witness statements supports this, stating that Mehserle exclaimed "Oh my God!" several times after he fired, and then put his hands to his head, a gesture that indicates disbelief. These aren't the actions of a man who intended to kill someone. There's simply no basis for the accusation that Mehserle intentionally executed a man in front of dozens of witnesses.
Under California law, a defendant must have acted with malice in order for a killing to be elevated to murder. To find malice, a jury must determine that the defendant committed the act that caused the death, that the "natural and probable consequences of the act were dangerous to human life," that "at the time (he/she) acted, (he/she) knew (his/her) act was dangerous to human life," and that "(he/she) deliberately acted with conscious disregard for (human/ [or] fetal) life."
Even by Mehserle's account, he used a Taser on a man who was lying on the floor and on his stomach. Early reports indicated Grant was handcuffed, though it now appears he wasn't. The state does say Grant was "restrained," though Mehserle and other officers at the scene (two of whom have also been fired) say he was also resisting. The entire incident arose after an early morning fight on the train. It's clear from the videos that the train station that night was a volatile scene. Mehserle's decision to use his Taser may not have been the correct one, but there doesn't seem to be any evidence that it was a mistake that rises to the level of reckless disregard for human life. (Whether the Taser itself is "dangerous to human life" is a continuing debate.) Mehserle's actions seem more like those of a young, poorly trained cop overwhelmed by what was going on around him.
Mehserle shouldn't ever work as a cop again. And he should be sending a portion of his paycheck to Oscar Grant's family for the rest of his life. Grant's family should also get money from the city of Oakland, which failed to train Mehserle properly. But involuntary manslaughter sounds about right. A mistake shouldn't send a man to prison for the rest of his life.
The anger at Mehserle's conviction on a charge short of murder stems from the perception that cops who allegedly commit crimes are held to a lower standard than regular citizens accused of the same crimes. The police certainly have more protections. Police officers accused of crimes, particularly while on duty, are typically first internally investigated by their colleagues before they face criminal charges. In many jurisdictions, those investigations are guided by rules negotiated by police unions that give cops extraordinary protections. (Some states, Louisiana for example, even have a codified "policeman's bill of rights.") The infamous "blue wall of silence" adds to the perception that cops can't be trusted to protect us from other cops.
There's also the appearance of a double standard. Mehserle's defense is that he made a mistake. 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, we should also show some sympathy and understanding for people like Cory Maye and Ryan Frederick, both of whom were tried for murder for killing police officers who broke into their homes at night. Both Maye and Frederick say they mistook the raiding cops for criminal intruders. A jury convicted Maye of capital murder. Frederick's jury opted for voluntary manslaughter.
That said, Mehserle shouldn't be required to suffer the accumulated anger stemming from other problems in the criminal justice system. He should be convicted of--and punished for--the crime the evidence presented at his trial proves he committed, nothing more. His jury did the right thing.
Radley Balko is senior editor of Reason magazine where this column originally appeared. The JFP Daily features his column every Tuesday.
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