how to solve the BART PD shooting crisis

[drewkitty]

The Alameda County D.A.'s office should arrest former police officer Johannes Mehserle immediately. He is a felony suspect for involuntary manslaughter at least, and quite possibly murder two. A court should decide whether or not he is a flight risk and what bail to set.

As far as Mr. Mehserle is concerned, this is now a criminal investigation and he is the suspect.
He resigned rather than comply with his department's order to meet with investigators. This prevents any administrative action against him, such as counseling and/or termination. It does NOT end the administrative probe into the conduct of officers present, nor should it keep BART from investigating what happened and how to prevent it from ever happening again.

It is simple justice. If I were an armed guard or a homeowner who shot a man in the back, regardless of other surrounding circumstances, I would be arrested and my firearm would be taken into evidence. I would be booked, fingerprinted and arraigned before a judge. I would have the right to remain silent and the right to an attorney, just as Mr. Merhserle does. But I would not have the privilege of going free and uncharged, my civil liberty unhampered.

Are we to pretend that there is one justice for the public and "more" justice for the police? We are a nation of laws, not of men, and I for one hope that the Alameda County D.A.'s office remembers that.

Comments

[itybity-rose.livejournal.com]

I'm having trouble believing that a resignation will keep him from being investigated and possibly charged for some kind of misconduct - that is, if the investigation decides it was misconduct or murder. If that is actually the case, it's preposterous and totally against true justice. I'd be upset, too. I don't know all of the details of the shooting, so I'm not sure I have an opinion either way.

What I did see is the destructive riots on the news this morning, and have questioned why people think that destroying property - other people's property - is going to earn them the respect that they so think they deserve, or will incite change and 'fairness'. Violent riots don't make authority and police officers look bad, it makes the group look bad.

[drewkitty.livejournal.com]

There is a well-scripted process that is followed when a police officer is accused of a serious crime. The resignation prevents him from being compelled to answer questions from investigators. It also shifts the ground from a civil investigation, for which he can be fired, to a criminal one where he enjoys the rights of any other criminal suspect. Unlike most criminal suspects, he knows the process very very well and has the most high-powered legal representation that PORAC Legal Defense Fund money can buy.

The District Attorney's Office is the only entity that can charge him with involuntary manslaughter or murder. If they fail to do so, he could indeed escape criminal sanctions at the state level. It would then be up to the US District Attorney to charge him with violating Mr. Oscar Grant's civil rights (to breathe), which would put the matter into Federal court.

I do know the details of the shooting and it's a forgivable but serious judgment error (arguably excessive use of force, Taser deployed when noncompliant subject's hands are concealed) transformed into an unforgivable outrage by human error, i.e. firearm negligent discharge.

The people rioting are doing it because they can and they're angry. They have nothing to do with the peaceful protesters, but it's convenient for the government and the media to confuse the two as a way of ignoring the law-abiding protesters.

In a way, it's yet another form of racism. Black thugs throwing things and black middle-aged citizens protesting injustice are two different groups entirely -- except that they share some melanin content in their skin, and a common history of experiencing racism. It's what they've done and do about it that makes the difference.

[chucklemagne.livejournal.com]

Apparently some of the video captures show the officer in question with his taser drawn earlier, which makes it seem less likely that he was confused and thought he was drawing his taser instead of his gun.

[drewkitty.livejournal.com]

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/07/MNOV154P0R.DTL

Actually, more likely. The odds favor the officer thinking Taser and using Gun. There have been several accidental firearm shootings with this as a casual factor, as linked in the article above.

Adding to the madness, BART PD (for cost reasons) does not issue Tasers to every officer, but treats them as passdowns from shift to shift. This also creates accountability issues because Tasers timestamp when they are fired. Most agencies forbid officers to carry the Taser on the same side as their firearm, but with Tasers being passed around, officers have more freedom to do this.

[itybity-rose.livejournal.com]

Would you be so kind to post a one or two links to articles about the incident that I can read? Not that I believe you, but it'd be nice (especially if I want to further comment) to have more details.

[drewkitty.livejournal.com]

Initial KTVU news report: http://www.ktvu.com/news/18394595/detail.html#-

One of the two known publicly released videos: http://www.ktvu.com/video/18415632/index.html

One of many articles at the SF Chronicle: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/07/MNOV154P0R.DTL

Police article: http://www.policeone.com/police-products/less-lethal/taser/articles/1772254-BART-shooting-raises-issue-of-TASER-confusion/

(Note: by PoliceOne rules all commentators are sworn police officers and anyone who self-identifies as a Taser instructor almost certainly is one.)

[itybity-rose.livejournal.com]

I don't get it. Why did they create a standard that allows law enforcement agents to avoid civil investigation after causing the death of a civilian? Perhaps it this case, the death was caused by a serious error of judgment, but what about officers who blantantly shoot an individual simply because they are "the law" and they "can"? These officers get to wrongly injure and deprive someone of life and then walk away as if it was nothing and no big deal? Not having to take responsibility for his misjudgment?

My roommate commented this morning that this office, though he resigned, will probably never be able to continue his career in law enforcement. Will this at least (and I hope it will) be marked on his record permanently, and make it impossible to secure another position that allows him to legally carry a firearm under the 'guise' (can't think of a better word right now) of working for the law.

[drewkitty.livejournal.com]

This officer will never, ever work in law enforcement again. He will always be that BART guy, and the moment it comes up in an investigation, he will not be hired.

The whole agency is tarred pretty badly too. I saw a BART PD officer frankly hiding in his cruiser in a tucked-away corner of the parking lot at Bay Fair this morning.

The disability from carrying a firearm only comes with certain mental health adjudications or conviction of a crime. The latter (Gun Control Act of 1968) includes misdemeanor domestic violence and any felony. So he could end up as an armed security guard or other gun-toter somewhere, yes. Sorry.

As for why the double standard, that is a great question for the law enforcement lobby groups such as PORAC and CCOA. The suspect officer enjoys a lot of rights, effectively civil service protection with pay on suspension and assurance that any statement cannot be used in a criminal prosecution, in exchange for being compelled to cooperate. If the suspect officer resigns instead, they give up a lot of money for the right to keep their mouth shut.

So whatever anyone else thinks, the suspect officer and his lawyer think he's in severe danger from criminal prosecution. I think they're right, my only quibble is whether to charge it out as involuntary manslaughter ('lawful act in reckless manner, causing death') or murder two ('commission of a felony causing unlawful death, i.e. violating civil rights under color of authority, assault with a deadly weapon, etc.'). There probably is not an element of criminal intent, however, which tends more towards manslaughter.

a comment I posted to someone else's LJ

[drewkitty.livejournal.com]

People have a right to be furious. I'm furious and I'm about as
pro-police as anyone you're likely to converse with.

I would welcome radical suggestions that would make the BART system a safe place to travel, defuse the tension between police and the citizens, and uphold nonviolent means of conflict resolution.

I can see three good things that could come of this debacle. However all of these are incremental improvements, not radical ones.

1) The arrest and prosecution of former police officer Johannes Mehserle can communicate to the community that we are a nation of laws, not of men, and that no one is above the law. Not even -- and especially not -- the police, either as individuals or collectively.

2) The controversy surrounding the past and present behavior of BART Police can result in reforms including strong community oversight. BART PD is almost unique as a full peace officer agency which is not directly responsible to any voters. This is the root cause of the poor training, misconduct, and lack of public confidence which were contributing factors in this tragedy; and unless resolved will cause future tragedies. Not might, will.

3) Mr. Oscar Grant died a tragic and needless death. He need not have died in vain if the police community learns from this tragedy. The Taser is an important less-lethal weapon that saves lives every day. While technically justifiable, it certainly was not the preferred tool for the situation. The error in using the firearm instead of the Taser is outrageous and must never occur again. Officers must train with the Taser at least as much as they train with their firearms, if not more. This is not the first firearms ND caused by an intended Taser deployment. It needs to be the very last.

Re: a comment I posted to someone else's LJ

[deedeebythebay.livejournal.com]

Because I just couldn't imagine it, I googled images of tasers.....why on earth, if you don't want the mix-up, would you make the taser to be shaped just like a gun!!!??? The ones shaped more like...a woman's razer...those make more sense....different shape, less confusion.

*shakes head* This is an obscene crime....before googling the difference I couldn't fathom the mistake. I can to some degree now. But still....I watched the police be more aggressive than I thought would be necessary....I think police should be taught to slow down a bit.

At the same time, while I do completely understand the issue of racism....I was the only white person (besides my mother and grandmother) for blocks when growing up in innercity Oakland...I get stuff a lot more than people think this white woman should....I understand the culture of anger....and it is a culture of *anger*...I miss the emphasis of Dr. King's pacifism....it broke my heart to hear a man say on the news, "We're done with 'We shall overcome', we're going to take action." I've heard interviews with African Americans who were Black Panthers who state now their path was a mistake, they needed to unite with white people who wanted to help change things, not fight everyone. It is what I call "reverse racism"...and it comes from this culture of anger.

They have a right to be mad. Damn mad. But the rioting....*shakes head vigorously* It did nothing to help anyone's cause.

It is all a major travesty.

Re: a comment I posted to someone else's LJ

[drewkitty.livejournal.com]

BART PD is notoriously awful for ramping it up on people and being incredibly unresponsive to both the public and the press. Reporters are referred to the police chief, who refers them to BART PR, who refers them back to the chief. Citizen complaints (once one finally manages to get the form) are investigated by the BART PD detective bureau, which somehow has managed to find every single complaint unfounded.

So even by law enforcement standards, which are a bit aggressive as far as the public is concerned, BART PD is definitely an outlier.

Other comments will have to wait until later. Racism is a touchy subject and definitions are important.