Worse than "Mall Cop"

By now you've probably heard the story and even seen the video. If not, go here for both:

In short, there were reports of fights between gangs on BART (Bay Area Rapid Transit) trains in the wee hours of New Year's morning, a time when nothing good happens.

At the Fruitvale Station BART cops stopped trains and arrested several young men. It has not been determined whether Oscar Grant had been one of the hellraisers or one of the victims of the violence. Nevertheless, he was being taken into custody when it happened. Grant was face down on the station floor. There were three or four cops holding him down. He wasn't struggling although he may have flopped around a little because the cops had his hands behind his back and were bending his arms in unnatural ways in order to get handcuffs on him. Grant begged the cops not to tase him because tasers sometimes kill people and he had a child (four years old).

Then the inexplicable happened. Johannes Mehserle, a BART cop who had been kneeling over Grant, stood up, pulled out his sidearm and shot Grant in the back while other cops were holding down Grant and preparing to cuff him. The bullet passed through Grant's body, hit the concrete station floor, then ricocheted back into Grant. He was dead at the scene.

Last night, a week after the shooting, neither the Oakland DA nor the BART police had interviewed or gotten a statement from Mehserle. Granted, Mehserle's attorney has been delaying his client's appearance by various tactics, but at a certain point the DA should have been losing patience. At a certain point the DA should send out the cops to arrest the guy and charge him. Then Mehserle has the right to remain silent or tell his side of the story.

And so peaceful demonstrations yesterday afternoon devolved into riots last night.

If the situation had been reversed and Grant had been standing over Mehserle, who was being held down by two of Grant's friends, does anyone think that a week after the incident the DA would be waiting for Grant to saunter into City Hall to give his side of the story?

Mayor Ron Dellums, the former congressman who had been hoping to catch an appointment in the new administration and get himself back out of Oakland, has said that the Oakland police should not get involved in the investigation at this point. Why not? It was a murder, it is on film, it happened in the City of Oakland. Now that Mehserle has resigned from BART the transit system has no ability to force him to testify. Now Mehserle is an ex-cop videotaped shooting someone in the back.

If the City of Oakland does not detain and question the shooter in this case by sundown today then the federal prosecutor should move and arrest not only Mehserle but the people in power who are protecting him.

This case also shows how technology has changed the terrain in law enforcement. In the past law-breakers have been caught on security cameras. Traffic cameras are set up so that police can catch red light runners. Cops in patrols cars and traffic helicopters film wrongdoers driving recklessly. The television show "Cops" has thousands of hours of video documentation of dumb people doing illegal things. But with the advent of video capabilities for cellphones everyone can be an investigative reporter. Now, if a witness has a cellphone handy (two cellphones caught the shooting), you can't get away with murder. Even if you're a cop.

From the linked Oakland Tribune article:

... UC Berkeley Boalt Hall Law School professor Franklin Zimring, a
criminal justice expert, said "absolutely conclusive" videos of the shooting
have convinced him there's no possible justification for Mehserle's
actions.

"Normally, what you get in a police deadly force interaction is a 'he said,
she said' in which there's at least an accusation like, 'There was a flash of
metal as he reached toward his pocket,' " Zimring said. "But this guy was
already down on the ground. ... He's not in a position to be threatening
anybody."

Use of deadly force is considered "in terms of a threat to the physical
safety of the officer or somebody else, and there's none there in this case," he
added. "So it's accident versus intention, but justification is off the
table."

Whether Mehserle meant to draw his Taser but accidentally drew his firearm,
or whether he meant to draw his sidearm but didn't mean to fire it, it looks
like involuntary manslaughter, Zimring said.

"My money is on that second horse: I think it was an accident, but I don't
think the drawing of the gun was an accident," he said, noting it probably
wouldn't have been appropriate to draw the Taser but "under no circumstance I
could imagine" should Mehserle have drawn his firearm given what's seen on the
videos.

Zimring said accidental shootings by officers are rarely charged.

"They don't even have to meet criminal juries most of the time, but most of
the time there's a plausible officer vulnerability," he said. "That's what
juries can identify with, and that's what's missing in action here. If I were a
U.S. or prosecuting attorney, I would not be afraid of taking a criminal case
here, certainly for involuntary manslaughter, before an Alameda County
jury."

In the absence of a statement from Mehserle, the proper thing to do is to charge the case based on the evidence at hand and then hear his side of the story later, Zimring said: "Not giving a statement in this context may be motivated by an unwillingness to incriminate oneself, but it also deprives the officer of an opportunity to allege that the conduct was unintended."