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Jim Porter: Officer uses Sig Sauer instead of Taser – oops

Jim Porter
Special to the Bonanza

TRUCKEE, Calif. – Remember the Bay Area Rapid Transit shooting, in which BART officer Johannes Mehserle mistakenly pulled his pistol instead of his Taser and shot and killed BART passenger Oscar Grant who was lying on the ground face down? Big news on the first day of 2009.

Mehserle, charged with murder, was convicted of involuntary manslaughter. He was sentenced to two years in prison. He appealed. I would have thought he would be happy to get two years. He was out before his appeal decision.

Shooting on BART Platform

BART passenger Oscar Grant and others got into a large fist fight in the wee hours of New Year’s Day 2009. Two BART officers were waiting for the train as it pulled into the Fruitvale station.

Officer Anthony Pirone and his partner attempted to stop the fight and control Grant and others – as more officers arrived. Pirone was yelling profanities and taking an aggressive, no-nonsense posture, ultimately knocking the resisting Grant down to the ground. Pirone used his knees to pin Grant’s neck down while Mehserle tried to pull Grant’s arms behind him so he could be handcuffed. Grant held his hands firmly to his waistband.

Mehserle finally lost patience, yelled a profanity and said “I’m going to tase him … get back.” Cell phone video shows Mehserle tugging three separate times on his handgun, unsuccessfully trying to remove it from his holster. He finally removed his gun, held the weapon with both hands, and fired a bullet into Grant’s back. Several witnesses said Mehserle appeared surprised and dumbfounded and heard him scream, “Oh, my God.” He bent over and put his hands on his knees. Grant died after emergency surgery.

Mehserle told others he thought Grant was reaching for a gun. He said he was not aware he had mistakenly drawn his handgun until he heard the shot.

Charged with Murder

Charged with murder, a jury found Mehserle guilty only of involuntary manslaughter, finding the shooting was not accidental but was criminally negligent.

Instead of sending flowers to the jurors as I would have expected, Mehserle appealed claiming there was insufficient evidence of criminal negligence.

Sig Sauer Versus X26 Taser

To understand the events surrounding the shooting and better evaluate whether Mehserle was criminally negligent, consider this. Mehserle carried two weapons: a black Model 226 40-caliber Sig Sauer handgun and a bright yellow X26 Taser. The handgun weighed more than three times as much as the Taser. The handgun had no safety (I have never seen a gun without a safety), while the Taser had a safety on/off switch. The Taser had a red light laser site; the handgun did not.

The Sig Sauer was holstered on Mehserle’s right side, his dominate side as he is right-handed, while the Taser was on his left side, in a cross-draw configuration for use with his right hand. The handgun holster had an automatic locking system requiring a two-step process to remove the weapon. The Taser holster had a safety strap and a safety hood.

In short, the weapons could not be more dissimilar, but that’s easy to say as I sit in my office writing this column, which was not the situation at the chaotic Fruitvale BART station on New Year’s morning as dozens of angry, drunk passengers threatened the cops.

Criminal Negligence

Mehserle argued he “accidentally fired his gun” and that Grant’s death was a “tragic error,” not amounting to involuntary manslaughter. The Court of Appeal quickly determined that for a killing to be an accident, there must be no negligence, and there was ample evidence of negligence.

Criminal negligence requires a higher degree of negligence. It must be aggravated, culpable, gross or reckless, a disregard of human life or an indifference to the consequences. More than ordinary carelessness or mistaken judgment. Mehserle met that standard.

BART Taser Policy Change

At trial Mehserle attempted to introduce evidence that shortly after the January, 2009 incident, BART instituted new Taser requirements mandating its officers to carry Tasers only on the non-dominant side of the body, and that officers draw their Tasers only with their non-dominant hand, so their handgun is drawn with one hand and their Taser with the other.

Officer Mehserle was attempting to show it was BART’s fault, not his. BART’s post-shooting change in policy was not allowed into evidence, and appropriately so. Public policy supports making subsequent repairs after an incident, and if admission of evidence of subsequent repairs is allowed to prove negligence, it would discourage repairs after the occurrence of an accident. (I still remember that from law school – back in the dark ages .)

The Court of Appeal upheld the jury’s conviction of involuntary manslaughter and sentence of two years, much to the chagrin of others on the platform of the Fruitvale BART station that tragic morning.

Jim Porter is an attorney with Porter Simon, with offices in Truckee and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at porter@portersimon.com or at the firm’s website http://www.portersimon.com.


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