BART officer arrested on murder warrant in NY Day shooting

**Terminator** · 01-14-09, 08:11 PM

(01-14) 00:13 PST Oakland -- The BART police officer who fatally shot an unarmed man on an Oakland train platform and then refused to explain his actions to investigators was arrested Tuesday in Nevada on suspicion of murder, authorities said.
Johannes Mehserle, 27, of Lafayette was taken into custody in Douglas County, Nev., said Deputy Steve Velez of the Douglas County sheriff's office. The arrest was also confirmed by David Chai, chief of staff to Oakland Mayor Ron Dellums.
Mehserle was arrested in the New Year's Day shooting of Oscar Grant, a 22-year-old supermarket worker from Hayward who was lying facedown after being pulled off a BART train by police investigating a fight. An Alameda County judge signed an arrest warrant alleging murder, and Mehserle surrendered without incident, authorities said.
The shooting, which was recorded by passengers in videos widely circulated on the Internet and television, prompted public outrage, and some viewers said that the shooting appeared to be an execution.
Sources said Mehserle was in Nevada because he feared for his safety after death threats were made against him. Douglas County is 15 miles south of Carson City in northwestern Nevada and includes part of Lake Tahoe.
Mehserle's attorney, Christopher W. Miller of Sacramento, confirmed early today that his client was arrested on suspicion of murder. He said he would not comment further until a news conference today.
Alameda County District Attorney Tom Orloff was expected to announce details of the arrest today. He could not be reached late Tuesday.
Authorities have been under immense pressure to take action in the case. On Tuesday, BART board President Thomas Blalock and board Director Carole Ward Allen sent a letter to Orloff, urging the district attorney to move expeditiously to complete the investigation and file charges if warranted.
Some Oakland community leaders and civil rights activists said the case is symbolic of larger problems with police officers using excessive force on young black men. Grant was black and Mehserle is white.
The arrest came on the eve of a protest scheduled for 4 p.m. today outside Oakland City Hall, the latest in a series of demonstrations in which BART has been accused of mishandling the investigation.
BART police on Monday turned over the results of their preliminary investigation to Orloff's office. A separate investigation by Oakland police was launched last week, and Mehserle's arrest was related to that probe, sources said. The state attorney general is also monitoring the case.
BART officers had detained Grant and several other passengers at about 2 a.m. Jan. 1 as they investigated a fight aboard a train from San Francisco. Passengers with cellular phone cameras captured footage that shows Grant lying facedown when he was shot.
In the videos, Mehserle appears to be trying to put cuffs on Grant, and Grant appears to be struggling, when Mehserle suddenly pulls his service weapon from his holster and fires one shot into Grant's back.
Mehserle declined to speak to BART criminal investigators after the shooting. Then last Wednesday he resigned rather than answer questions from BART's internal affairs division.
His departure came the same day Grant was buried and a peaceful protest at the Fruitvale BART Station erupted into violence in downtown Oakland. Demonstrators set cars on fire and broke windows at dozens of businesses. By night's end, police had arrested 105 people.
Grant's family has filed a $25 million legal claim against BART, signaling an intention to sue for damages. The family's attorney, John Burris, said late Tuesday that he was pleased to hear of Mehserle's arrest.
"If it's true, the family is delighted, and it will really help with the healing process," Burris said. "This is also very important for the community. This had to occur; it was almost a no-brainer. I think the district attorney ought to be commended for moving (the case) expeditiously."

**Retdetsgt** · 01-14-09, 08:14 PM

It looked to me like he probably thought he pulled his taser, not his pistol. A dumb mistake, but a mistake. His second was not talking to investigators though. He would be better off it didn't go to trial. Now that he has an attorney, he will go to trial and probably be found guilty by a hanging jury.

**Norm357** · 01-14-09, 08:36 PM

How are they charging hiim with murder?

**Retdetsgt** · 01-14-09, 08:48 PM

Originally Posted by Norm357

How are they charging hiim with murder?

There's no evidence that it wasn't. He pulled out his gun and shot the guy, killing him. With all the witnesses, it's up to him to provide a defense. He hasn't yet. Murder is the logical charge at this point. The theory that he thought it was a taser is just that, conjecture.

**Xiphos** · 01-14-09, 10:25 PM

Originally Posted by Retdetsgt

There's no evidence that it wasn't. He pulled out his gun and shot the guy, killing him. With all the witnesses, it's up to him to provide a defense. He hasn't yet. Murder is the logical charge at this point. The theory that he thought it was a taser is just that, conjecture.

Had this been unintentional, he thought he was deploying his Taser, what should the outcome have been if he was cooperative?

**Retdetsgt** · 01-14-09, 11:31 PM

Originally Posted by Xiphos

Had this been unintentional, he thought he was deploying his Taser, what should the outcome have been if he was cooperative?

I would suspect he would be charged with a lesser crime, if anything at all. The taser defense is reasonable and shows no intent. No intent, no murder charge, but perhaps a manslaughter (I'm not familiar with California laws). In Oregon, it would be second degree manslaughter, comparable with a drunk driver killing someone. It was done out of stupidity, not intent.

Then again, it might not have been charged with anything.

http://www.thehighroad.org/archive/i...p/t-33440.html

This is a civil case, but it does refer to the shooting as "accidental" and there is no evidence the officer was charged.

http://findarticles.com/p/articles/m..._/ai_n20518015

But without his statement, the DA has to assume the shooting was intentional since there is no evidence to the contrary sans it.

**Xiphos** · 01-14-09, 11:36 PM

Would a jury be able to find him guilty of a lesser crime? Or would he be able to prove the "no intent" and the jury have to find him not guilty of the murder?

His refusal to cooperate could be a brilliant legal move, or incredibly stupid legal move.

**CTR man** · 01-15-09, 12:09 AM

One thing is for sure, if and when this goes to trial, there are many places in CA that I don't think he would get a fair jury trial due to pre-trial publicity. The SF Bay Area would fry him. As well as the Central Valley. Too many Bay Area commuters.

**Retdetsgt** · 01-15-09, 12:17 AM

Originally Posted by Xiphos

Would a jury be able to find him guilty of a lesser crime? Or would he be able to prove the "no intent" and the jury have to find him not guilty of the murder?

His refusal to cooperate could be a brilliant legal move, or incredibly stupid legal move.

I wouldn't want to go to trial in Oakland or anywhere near it after that. I'd rather plead to a lesser charge, if there is going to be one. I think it was a dumb legal move. The fact he shot and killed the man isn't up for grabs, that's already a proven fact.

I suspect the investigating officers would be somewhat sympathetic if he'd talked to them. I've investigated a couple of dozen officer involved shootings. I wanted the facts, but I also gave the officer every chance to explain what was going on in his head at the time. It was never a hostile interview. He can't expect that from the DA when he's on the stand and that will be the next time he gets a chance to tell his side of it. His defense really can't raise the taser issue very effectivelyl without his testimony. Alienating the police and DA by refusing to talk and then running didn't help his case at all.

I googled accidental gun vs taser and found two other cases in Kentucky and Washington where officers mistook their firearm for their taser. In neither case was there mention of criminal charges against the officer. He might have been able to get off after the interview and get the hell out of Dodge. Now the DA may well go after him and the taser defense may never get off the floor or not be believed by the jury.

**Retdetsgt** · 01-15-09, 12:18 AM

Originally Posted by CTR man

One thing is for sure, if and when this goes to trial, there are many places in CA that I don't think he would get a fair jury trial due to pre-trial publicity. The SF Bay Area would fry him. As well as the Central Valley. Too many Bay Area commuters.

But I bet that's where his trial will be, don't you? Cops don't get the same breaks as anyone else, that's just a fact.

**CTR man** · 01-15-09, 12:23 AM

I wouldn't be surprised in the least. And remember, Oakland borders Berkeley, or as some of us call it Bezerkly. The most liberal city in the state.

**Retdetsgt** · 01-15-09, 12:26 AM

I know nothing for sure, of course. But it appears on the surface to me that the guy did a dumb thing and then compounded it by freezing and then running. In my 63 years, there haven't been very many circumstances I've faced where being honest and up front didn't serve me the best.

I feel for the guy, he's made a rough road for himself now.

**CTR man** · 01-15-09, 12:38 AM

Originally Posted by Retdetsgt

I know nothing for sure, of course. But it appears on the surface to me that the guy did a dumb thing and then compounded it by freezing and then running. In my 63 years, there haven't been very many circumstances I've faced where being honest and up front didn't serve me the best.

I feel for the guy, he's made a rough road for himself now.

That's the way I was always taught.

**IndianaFuzz** · 01-15-09, 01:25 AM

As for the so called "taser defense"......To be honest, I really don't buy that defense, unless someone can explain to me how it can be plausible without being the officers fault.

It all starts with placement on your belt. If you put your taser right next to your gun and in the same position (pointed down so that the drawing motion would feel more like the gun) then you can only blame yourself for any "accident" of mistaking the two. I have my taser mounted just to my left of the front buckle so that it isn't even on the same side of the belt as my gun (my gun is on my right hip). VERY hard to mistake the two that way.

Also I have my taser mounted at a sharp angle that A) makes it easier to crossdraw, and B) has a completely different set of mechanics to the draw than drawing my gun. My gun draws straight up from my right side, and my taser draws slightly down from my left front. Much harder to confuse the two, especially when practicing draws of each such that each unique drawing motion becomes muscle memory.

There is no way possible I could ever get away with using the "taser defense".

**Xiphos** · 01-15-09, 09:53 AM

Originally Posted by Retdetsgt

I wouldn't want to go to trial in Oakland or anywhere near it after that. I'd rather plead to a lesser charge, if there is going to be one. I think it was a dumb legal move. The fact he shot and killed the man isn't up for grabs, that's already a proven fact.

I suspect the investigating officers would be somewhat sympathetic if he'd talked to them. I've investigated a couple of dozen officer involved shootings. I wanted the facts, but I also gave the officer every chance to explain what was going on in his head at the time. It was never a hostile interview. He can't expect that from the DA when he's on the stand and that will be the next time he gets a chance to tell his side of it. His defense really can't raise the taser issue very effectivelyl without his testimony. Alienating the police and DA by refusing to talk and then running didn't help his case at all.

I googled accidental gun vs taser and found two other cases in Kentucky and Washington where officers mistook their firearm for their taser. In neither case was there mention of criminal charges against the officer. He might have been able to get off after the interview and get the hell out of Dodge. Now the DA may well go after him and the taser defense may never get off the floor or not be believed by the jury.

Excellent points, thank you. I suspected he would have been better off cooperating. Any kind of trial in that area is going to be a rough road for a cop, I wouldn't want to pick that option anywhere really.

**Xiphos** · 01-15-09, 09:54 AM

Originally Posted by IndianaFuzz

As for the so called "taser defense"......To be honest, I really don't buy that defense, unless someone can explain to me how it can be plausible without being the officers fault.

It all starts with placement on your belt. If you put your taser right next to your gun and in the same position (pointed down so that the drawing motion would feel more like the gun) then you can only blame yourself for any "accident" of mistaking the two. I have my taser mounted just to my left of the front buckle so that it isn't even on the same side of the belt as my gun (my gun is on my right hip). VERY hard to mistake the two that way.

Also I have my taser mounted at a sharp angle that A) makes it easier to crossdraw, and B) has a completely different set of mechanics to the draw than drawing my gun. My gun draws straight up from my right side, and my taser draws slightly down from my left front. Much harder to confuse the two, especially when practicing draws of each such that each unique drawing motion becomes muscle memory.

There is no way possible I could ever get away with using the "taser defense".

Not everyone gets quality training and training isn't very stressful. We'll find out in the trial if he carried his taser in a bad spot and if nobody knew any better to correct him.

**IndianaFuzz** · 01-15-09, 10:12 AM

Well training does play a big part in issues like this, but regardless of how much training an officer gets, he/she must take it upon himself to make sure that he is being as tactical as he can be. How can we preach taking it upon ones' self to be responsible for their own safety if we can't do that ourselves?

I know that my department trains like crap. So sometimes, I have to do on my own to make sure that I'm as safe as I can be. Safe from threats, safe from accidents, and safe from liability. I know I'm not perfect in that regard, but I try at least.

Stressful situations do cause things to go FUBAR! That is why having good tactics, training, and planning things out ahead of time such as placement of equipment for tactical advantage when the shit hits the fan is so important. It would be a good thing for every officer on this board to evaluate how they carry their equipment for the best tactical advantage when a situation goes to shit.

**Xiphos** · 01-15-09, 10:23 AM

Originally Posted by IndianaFuzz

Well training does play a big part in issues like this, but regardless of how much training an officer gets, he/she must take it upon himself to make sure that he is being as tactical as he can be. How can we preach taking it upon ones' self to be responsible for their own safety if we can't do that ourselves?

I know that my department trains like crap. So sometimes, I have to do on my own to make sure that I'm as safe as I can be. Safe from threats, safe from accidents, and safe from liability. I know I'm not perfect in that regard, but I try at least.

Stressful situations do cause things to go FUBAR! That is why having good tactics, training, and planning things out ahead of time such as placement of equipment for tactical advantage when the shit hits the fan is so important. It would be a good thing for every officer on this board to evaluate how they carry their equipment for the best tactical advantage when a situation goes to shit.

You need to do what you are trained to do. If you deviate from that you are losing the support of your agency in a lawsuit. If you aren't getting good training you need to try and fix that with your agency. If you are trained to do something stupid or illegal and you choose to ignore it without raising the red flags you are leaving your co-workers at risk. Not everyone has the training and the ability to discern that there are problems with what they are being taught. I'd be a little more charitable to the guy until we find out the details.

**Captain America** · 01-15-09, 10:50 AM

Another point, I feel by not initially talking to the investigators , the involved officer has made himself look guilty as hell. Now we all know that a jury isn't suppose hold against a defendant his or her's right to remain silent and not incriminate themselves. The jurors would probably be able to do that for a gangbanger accused of rape but not for a cop accused of shooting an unarmed man in the back because the public holds us to a higher standard. I'm of the opinion that a judge or jury will wonder, if that is indeed the defense he uses for the shooting, whether or not that is actually what happened or did he come up with the taser issue to cover his ass after the fact. By not talking to investigators and getting his version documented he has left himself open to endless speculation.

**Xiphos** · 01-15-09, 10:55 AM

Originally Posted by Captain America

Another point, I feel by not initially talking to the investigators , the involved officer has made himself look guilty as hell. Now we all know that a jury isn't suppose hold against a defendant his or her's right to remain silent and not incriminate themselves. The jurors would probably be able to do that for a gangbanger accused of rape but not for a cop accused of shooting an unarmed man in the back because the public holds us to a higher standard. I'm of the opinion that a judge or jury will wonder, if that is indeed the defense he uses for the shooting, whether or not that is actually what happened or did he come up with the taser issue to cover his ass after the fact. By not talking to investigators and getting his version documented he has left himself open to endless speculation.

Very good point.

Could you guys post some of your thoughts in the comments on the front page? I put up the video and a few of my thoughts, you've all made some excellent points.