Jury Clears Former BART Officer of Civil Rights Violations, Part II

Posted on Wednesday, October 01, 2014 at 12:00AM

Rains Lucia Stern, PC

For Part I of this article, please see the September 2014 issue of the PORAC Law Enforcement News.

The Federal Civil Rights Actions (Continued)

     Second issue: Did former BART Police Officer Johannes Mehserle “intend to harm” Oscar Grant III on January 1, 2009? The jury found that there was absolutely no evidence presented by the plaintiff to establish that Mehserle had acted “maliciously, sadistically, and with a purpose to harm or punish” Grant when he shot him on January 1, 2009. The evidence that was introduced through a number of witnesses established that Mehserle had repeatedly trained to draw and fire his Sig Sauer P226 DAK model pistol from the Safariland ALS holster thousands of times to develop “muscle memory.” In contrast, just three weeks prior to this incident, Mehserle had been trained at BART to use the X26 Taser. That training had involved an eight-hour course (much of it academic and presented through PowerPoint) and the drawing of the Taser from a holster in a classroom approximately 10 times from several different holster configurations. After that, Mehserle, like other BART officers, was allowed to carry the Taser in several holster configurations that were almost always different, because BART officers were not assigned a Taser but instead had to find whatever Taser and holster configuration was available at the beginning of their shifts.
     We called Sergeant Paul Garcia, the BART firearms instructor, to testify about the purpose of repetitive training in the drawing of firearms. Sergeant Garcia demonstrated the way in which an officer draws a firearm from the Safariland ALS holster Mehserle wore on January 1, 2009 (thumb movements downward, forward and directly back), versus the drawing of a Taser from its holster (thumb movements inward, and then forward). Through this testimony, we primed the jury for what the video showed in this case.
     While Mehserle was on his knees, he announced his intention to tase Grant, and reached with his right hand for the firearm in his ALS holster. However, Mehserle was unable to get the firearm out of its holster because the video showed him pushing inward with his right thumb, ostensibly to push the inside snap of a Taser holster. After increasing physical force to try to get the gun out of the holster, the gun actually came out from the right side of Mehserle’s leg due to the amount of force he exerted. The video showed him finally getting the gun out of its holster after pulling on it three times, and starting to stand in order to create distance. The BART firearms instructor testified that if Mehserle intended to shoot Grant, there was no reason for him to stand up at the time.
     Sergeant Garcia also testified that since the P226 DAK model pistol did not have a safety or de-cocker on the slide of the weapon, there was no reason for Mehserle’s thumb to move in an upward direction on the slide of the weapon just before firing it. Yet, from one of the six different videos taken of the incident, as soon as the weapon was removed from its holster, Mehserle’s right thumb moved forward on the slide of the weapon, identical to the demonstration provided to the jurors of the way an officer activates the selector switch on an X26 Taser.
     Sergeant Garcia told the jury that Mehserle had been trained to fire multiple rounds to stop a threat if he intended to use his firearm, and that the firing of a single round from the firearm would be inconsistent with that training. He also testified that an officer who intended to shoot a subject was trained to keep the weapon pointed at the target after the shooting in order to scan and assess whether the suspect had been disabled. Clearly, as the video showed, Mehserle immediately holstered his weapon after the shooting, contrary to his training, and threw his hands up to the sides of his head.
     The video evidence clearly showed that Mehserle was using thumb movements consistent with an officer who thought he was drawing and firing a Taser. That evidence, coupled with testimony from a Taser expert about the eight other reported cases of firearms/Taser confusion, was compelling to this jury. As the expert pointed out, one of the eight other cases mirrored identically the same ALS holster in the same location on the equipment belt and a yellow X26 Taser to be drawn in a cross-draw motion using the dominant hand, as involved in this case. In addition, all eight other “mistaken firearms” cases involved two common characteristics with this case: 1. The officer used his or her dominant hand to draw both the firearm and the Taser, irrespective of where the Taser was located on the officer’s equipment belt; 2. The officer, when firing the firearm, fired a single round, and not multiple rounds.
     The jury told us after the trial that it was convinced that Mehserle accidentally used his firearm instead of his Taser, based upon the expert testimony, the testimony from the BART firearms instructor, and watching the video evidence. However, they added that there was no other evidence showing that Mehserle had intent to “maliciously or sadistically” harm or punish Grant. Indeed, Mehserle had arrived on the platform only two and a half minutes before he shot Grant, and during that time, he had been calm despite an agitated scene; he had not been heard yelling at anyone, he had not been heard uttering a profanity, and when he had seen Grant, who was sitting against the wall pulling out and talking on his cellphone, he had simply instructed Grant to “put it away.” Interestingly, while Grant had the cellphone out of his pocket and was talking, he actually took a photograph of Mehserle standing in front of him, and the photograph showed Mehserle’s face not even looking in the direction of Grant and without any look of anger at all.
     When Mehserle was angrily confronted by Bryson about one and a half minutes before the shooting, Mehserle simply pushed Bryson to the ground, moved in behind him and handcuffed him matter-of-factly, without a display of anger or overreaction. One eyewitness, whom we called to testify, saw Mehserle trying to get Grant’s hand out from under him and said that Mehserle did not appear to be angry but just appeared to be “doing what he needed to do.” The same witness stated that while Mehserle was wrestling with Grant’s hands, she looked at Grant’s face and observed him say, “Don’t tase me, man.” This confirmed the fact that Mehserle had issued such a warning about his intention to use his Taser before he shot Grant seconds later.
The jury in this case not only unanimously found in favor of Mehserle, but also found that Officer Domenici did not unreasonably detain Caldwell. In fact, Caldwell’s claims were bordering on the absurd and were refuted by the video evidence taken by the BART platform camera that morning. Thus, this trial was a resounding victory for Officer Domenici and her attorney, Alison Berry Wilkinson, as well as for Mehserle and me.
     The finding of this jury is really not significantly different than the finding reached by the criminal jury in Los Angeles. That jury decided that Mehserle did not have any intention to shoot Grant. There, the jury concluded merely that Mehserle’s actions were negligent and resulted in a death; hence the involuntary manslaughter conviction.
     While BART paid for the defense of Mehserle and Domenici in this case, it could have refused to do so by claiming that both officers were “acting outside the course and scope of their employment” in connection with the allegations leveled against them in the two different complaints. We are heartened that BART stood by both officers throughout this ordeal, but we are also very much aware that, had BART not done so, LDF had consistently advised both Alison and me that it would retain us to provide our respective clients with a defense in connection with these specious allegations.
     From the beginning of this incredible saga on January 1, 2009, PORAC LDF has stood in the trenches with and for Johannes Mehserle, and the Trustees have continuously expressed their support and extended their hand of friendship to Mehserle, in their approval of coverage for his defense and through other gestures of support.
     When we met with the jurors following this civil trial, more than a few tears were shed in the San Francisco federal courthouse as they asked if they could hug my client. As that occurred, there were words of thanks from Mehserle and kind words of encouragement by the jurors. Officer Domenici was also the recipient of hugs and wishes of success in her continuing police career at BART.
     Johannes Mehserle is 6’4” and 250 pounds, but he almost flew out of the San Francisco federal courthouse on July 1, 2014, like a feather, no longer having to bear the enormity of the weight of these allegations. He is done testifying about the events of January 1, 2009, at 2:11:03 a.m., even though the memories of that moment will never go away.

About the Author
Mike Rains is a principal and founding member of Rains Lucia Stern. He heads the firm’s criminal defense and legal defense of peace officers practice groups. Mike is one of California’s top trial attorneys, with over 30 years of experience representing peace officers and other high-profile clients in civil and criminal litigations. His practice focuses on criminal trial work in both state and federal courts. Mike also handles civil and labor-related actions, and has served as both defense and plaintiff’s counsel in state and federal court employment cases. 

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