The tactics used by BART police officers who responded to a confrontation at the Fruitvale station in Oakland 10 years ago that led to the fatal shooting of Oscar Grant by an officer were seriously deficient, according to a 10-year-old report made public earlier this month.
The July 31, 2009, report by former Oakland City Attorney Jayne Williams and Kimberly Colwell of the law firm Meyers Nave, also says former Officer Johannes Mehserle, who shot and killed Grant, had a history of aggression and alleges that former Officer Anthony Pirone escalated the situation at the station.
The report, which was commissioned by BART because of the public outcry about Grant’s shooting death, was finally released recently under California’s new police transparency law, which makes internal records about officers’ misconduct and shootings available to the public.
Mehserle was charged with murder for the shooting death of Grant, a 22-year-old Hayward man who worked as a butcher at an Oakland grocery store, at the Fruitvale station at about 2 a.m. on Jan. 1, 2009, after Mehserle and other BART officers responded to reports of a fight on a train.
Grant, who was on parole for two prior felony convictions, was unarmed at the time.
In a highly-publicized trial that was moved to Los Angeles County because of concerns about whether he could get a fair trial in Alameda County, Mehserle admitted that he shot and killed Grant, but said he had meant to use his Taser on Grant and fired his service gun by mistake.
He was convicted of the lesser charge of involuntary manslaughter and was sentenced to two years in prison, but was released early because of credits he had accumulated.
Williams and Colwell noted that there were protests and civil unrest in Oakland after the fatal shooting of Grant because “some were of the belief that race played a part in the shooting,” as Grant was black and Mehserle is white.
‘This incident has racial overtones’
They wrote, “Justifiably or not, this incident has racial overtones.”
The report says that at the time of the Grant shooting, BART police had a culture of dismissing or not reporting use-of-force incidents, and some officers lacked basic training in how and when to apply force.
Williams and Colwell wrote that the lax policy for reviewing use-of-force incidents may have contributed to the fatal shooting of Grant, saying, “Had officers on the scene of the Grant incident known that BART police would relentlessly investigate use-of-force incidents, including pulling of video and canvassing the scene, it is doubtful that people would have been punched or kicked when it did not appear reasonable to do so.”
The report says, “There were ample warning signs of an impending problem within the BART Police Department,” noting that Mehserle had six use-of-force incidents in 2008, which was more than any other officer involved in the Fruitvale station incident and more than most other BART officers that year.
The report says Pirone, who ultimately was fired for his actions during the incident, “started a cascade of events that ultimately led to the shooting of Grant.”
It says, “Officer Pirone’s overly aggressive and unreasonable actions and conduct in violation of policy and acceptable standards contributed substantially to the escalation of the hostile and volatile atmosphere during the course of the incident.”
Williams and Colwell say they believe that Mehserle deliberately killed Grant, even though he testified that the shooting was an accident.
They wrote, “The conclusion can be made from a close viewing of the enhanced video that he was intending to pull his firearm and not his Taser, as he can be seen trying to draw it at least two times and on the final occasion can be seen looking back at his hand on the gun/holster to watch the gun come out.”
Lawyer calls report ‘completely flawed’
But Mehserle’s lawyer Michael Rains said May 2 that the report’s analysis was “completely flawed” and its conclusion was
“unsupported” because Mehserle never looked at his gun before he pulled it out.
Rains said Alameda County prosecutors who asked jurors to convict Mehserle of murder didn’t show the video the report refers to because they knew it didn’t prove that Mehserle looked at his gun.
Rains said Mehserle “was sick to his stomach” after he realized that he had shot Grant and the juries at his criminal trial and at a later civil trial agreed that the shooting was an accident.
Rains said he agrees with the report’s conclusion that Pirone’s actions contributed to Grant’s death, saying, “I’ve always been critical of Tony because the station platform was a very angry place since it had been stirred up by Tony.”
After the Grant shooting, BART police implemented a series of reforms, including establishing an independent police auditor and a police review board to review citizen complaints and provide a higher degree of accountability over the transit agency’s police force.