justice done (singular) but not justice done (plural)

[drewkitty]

We have a verdict in the BART shooting. Involuntary manslaughter.

Judicial Council Of California Criminal Jury Instruction 581 -- Involuntary manslaughter.

"A person acts with criminal negligence when: [1] He or she acts in a reckless way that creates a high risk of death or great bodily injury; AND [2] A reasonable person would have known that acting in that way would create such a risk. In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.]"

So the jury did its job. Justice was done in one case: a peace officer was convicted of a crime for mistakenly drawing his firearm instead of his Taser.

What about all the other peace officers who were present? Not so much. One witness alleged that he begged officers to call an ambulance and was told, "When you sit down, we'll call an ambulance." Other witnesses allege that officers turned the victim over and let him bleed out. No direct pressure on his wounds. Video shows him 'being turned like a sack of meat.'

What about the BART PD sergeants, lieutenants, FTOs, police chief, BART management and the BART board of directors? Where is their liability? Where is their trial?

On 4 January 2009 the chief of BART PD is quoted as follows:

"Chief Gee: That after a person is shot it is part of standard procedure to handcuff the person until you're certain that the threat, that there's not threat and the person isn't armed.

"Reporter: Are officers trained or instructed to perform any medical care to people who are shot?"

"Chief Gee: Well, they, we're taught basic first aid and CPR but certainly are not equipped to handle gunshots. So, to that extent, no."

Actually, Chief, POST Learning Domain 34, titled "First Aid / CPR" does teach officers how to treat penetrating injuries to the chest and abdomen. In Chapter 4, "Traumatic Injuries," the example of an officer being shot is used to ask trainees how they would respond. "Activate EMS system. Control bleeding. Treat for shock."

Police officers carry firearms and respond to crime scenes and medical emergencies. To claim that your officers are "not equipped to handle gunshots" means that they are either untrained or incompetent or both. And so are you.

How about the law enforcement community in Alameda County and across the San Francisco Bay Area? Where is the justice for the entire sordid history of poor relations between law enforcement and the minority communities they "serve and protect?"

Comments

[svashtar.livejournal.com]

When are the riots going to start in Oakland?

[bradhicks.livejournal.com]

Which should I assume? (1) The safety on his firearm was off. (2) The safety on his firearm is identical to the safety on his Taser, so he instinctively flicked it off without thinking about it. Or (3) he flicked the safety off of his pistol before firing it, and he failed to notice that his Taser doesn't have a safety. Or (4) he flicked the safety off on his pistol, which means he knew damn well what he had in his hand, and we just acquitted a guilty man? Because having seen the video, I can't see his hand well enough to make out if he thumbed a safety or not. But I saw his face and body language clearly enough to to be pretty damned confident I saw murderous intent.

[drewkitty.livejournal.com]

The safety on a Taser is ambidextrous (a lever that runs through the unit and can be manipulated from either side) and in the same position as a firearm safety. This was a conscious design decision by Taser Intl. to leverage existing firearms skills.

Murderous intent or frustration? A poorly trained officer confronting a passively noncompliant subject, with not enough training in how to use the tools on his belt and almost no training on how to avoid using any of them.

Your last point is an interesting argument in favor of transferred intent, however, if one stipulates that one can read homicidal intent from facial expressions. I'm not so sure -- I've seen people really, really furious that I felt completely safe with their level of self control; I've also seen mild irritation immediately lead to stupid, self destructive and/or violent behavior.

[bradhicks.livejournal.com]

Same position and same action? It is reasonable to think that someone can be deactivating the safety on a Taser and not notice that it's different from the safety on his handgun?

[drewkitty.livejournal.com]

Only if drawing and firing are taking place in one action, as appeared to be the case here. Motion, especially upward, can disguise differences in weight. The Taser is 7 oz; the Sig is 30 oz.

News reports have it that he was carrying a Sig-Sauer handgun. Checking the Sig manual (http://www.sigsauer.com/upFiles/CmsContent/documents/OwnerManual/P226X5OM.pdf), I see that the manual safety is in approximately the same position (although smaller) and is engaged in the up position. Thus it could be flipped off using the same motion as on the larger Taser safety -- if he were carrying his handgun with safety on at all.

Against that, I see that he was carrying his handgun in a Level II high retention holster which he had practiced with much more than his Taser. His total Taser training was the six hour basic course and he had only carried it for less than a month, in different positions that he had not practiced drawing from.

I genuinely think it's a muscle memory error. If he had intended to kill, his training would have been to fire center-mass and repeatedly.

This doesn't take BART PD off the hook. In fact, it damns them for setting up this 'kid' to take the heat for killing someone due to bad training, bad tactics, bad leadership and bad policy.

http://www.policeone.com/police-products/less-lethal/TASER/articles/1917458-NOBLE-to-BART-PD-Your-house-is-a-mess/

[nolly.livejournal.com]

"a peace officer was convicted of a crime for mistakenly drawing his Taser instead of his firearm."
Vice versa, no?

[drewkitty.livejournal.com]

Fixed, thanks.

[playfuleye.livejournal.com]

I love to read your thoughts on events like these. Thank you for sharing them. :)

[finnkveldulfr.livejournal.com]

Drew--

I am curious.... while I've been following this case a bit, and discussing the issues and the verdict with military comrades-- I guess I'm gonna believe it was a mistake, pulled the gun instead of the taser, didn't notice before he pulled the trigger-- entirely possible.

But-- so it ain't murder, but even if he'd gotten the taser he was intending to reach for, it's still pretty blatant reckless and stupid behavior under the specific circumstances in question... couple guys holding the suspect down, getting cuffs on him, *and* blasting him with a taser at point-blank range?

Question I have that you probably know the answer to: what's the difference between voluntary & involuntary manslaughter; and should this case have perhaps deserved a voluntary, rather than involuntary, manslaughter conviction?

[drewkitty.livejournal.com]

>> couple guys holding the suspect down, getting cuffs on him, *and* blasting him with a taser at point-blank range

More or less. The officers were afraid because they couldn't see Oscar Grant's hands and he wasn't doing what he was told. Whether he knew what he was told, and was choosing to not comply, is a fact forever lost as we can't ask him.

The difference between voluntary and involuntary manslaughter is buried in jury instructions, and I'm quite tired, so this is a very rough version: voluntary manslaughter is a death resulting from a misdemeanor, or a minor crime; where involuntary manslaughter is a death resulting from criminal negligence, or a lawful act done in a reckless manner.

Now here's the fun part: misuse of force under color of authority by a peace officer is a felony. Improper use of force that does not rise to the felony level tends not to be treated as a criminal matter at all, resulting in internal sanctions, disciplinary action and sometimes termination.

For example: if the officer used the Taser to torture Oscar Grant, and that was his purpose in firing it, that would be a felony in and of itself. Given that Oscar Grant died as a result, under the felony-murder rule this would be neither form of manslaughter, but instead murder in the 2nd degree.

If I had been the one to shoot instead of Taser the deceased, as a private person, I have no doubt that I'd be looking at murder 2. But the same qualified immunity and leeway for making mistakes that the criminal justice system gives to peace officers, leaves wiggle room for reasonable doubt -- stupid and lawful is still lawful, if stupid.

Eeenteresting

[yresim.livejournal.com]

I hadn't even considered all of the other parties involved here. I think you are completely correct, especially in that this was caused, primarily, by a lack of proper training.

I did spend 3 hours arguing with my mother over whether or not he could have made that mistake, and whether or not involuntary manslaughter was a sufficient charge.

I agree with you that it was likely a mistake of muscle memory. Nothing I saw in the videos ever indicated to me that he intended to kill the guy, and the reaction he had after his gun went off indicated quite the opposite. I suppose that it is possible that he had a momentary lapse of control and was then horrified by his actions. However, certainly not provable beyond a reasonable doubt.

What is your opinion on the addition of the gun enhancement? Do you have one? I suspect it may have been the jury trying to compromise between voluntary and involuntary manslaughter, but I have no idea whether or not it will stand on appeal.

Oh, and do you have any thoughts on how we might improve relations between minority communities and law enforcement? Because it seems, right now, as if they are not properly represented, served, or protected, but - at the same time - their own attitudes about past injustices create future ones.