Patterico's Pontifications

1/15/2009

Shooter of Oscar Grant Charged with Murder

Filed under: Crime,General — Patterico @ 6:44 am



You’ve probably heard about the New Year’s Day shooting of Oscar Grant by a cop in an Oakland BART station. The shooting was captured by video from cell phones. Several days ago, Allah summed up what happened:

The shooting comes at 1:15 of the second video and 2:55 of the third. In brief: It’s early New Year’s Day, there’s a fight on the Oakland subway, the transit cops come and pull a few men aside, one of whom is Grant. He ends up sitting against a wall, then two cops maneuver him face down, presumably to cuff him. There’s a slight struggle, whereupon one of them stands, pulls his pistol — and fires, sending his colleagues backpedaling in shock.

The cop has now been arrested for murder. Jack Dunphy comments here:

One must always bear in mind that videos of police incidents may not tell the entire story, but if Mehserle is going to claim the shooting was somehow justified, I’ve seen little in any of the videos to suggest it. One theory circulating in the Bay Area media is that Mehserle believed he had drawn a Taser and intended to stun Grant rather than shoot him.

Dunphy calls the theory “plausible,” which causes me to reconsider my initial “You’ve gotta be kidding me” reaction. But I think prosecutors have a much bigger challenge. Allah sets forth three videos of the shooting and says:

Look closely in the second clip and you’ll see that even Mehserle, the cop who pulled the trigger, seems surprised.

It is that last fact that will give prosecutors fits trying to prove a murder charge. Judge for yourself (to the extent you can from simply watching videos, without the benefit of testimony):

53 Responses to “Shooter of Oscar Grant Charged with Murder”

  1. There is no amount of money that could get me, as a lawyer for either side or as a judge, to touch this case with a 20′ pole and a hazmat suit…

    No matter what the outcome, this will not end well.

    Scott Jacobs (a1c284)

  2. Pulling the gun was deliberate, possibly to keep the crowd from conducting a lynching (a term in the Penal Code for taking a suspect from police custody). I doubt the weight and feel of a Taser and service handgun are similar for this very reason.

    The shooting was accidental and more likely an involuntary manslaughter than murder. But Oakland jurors will have the last say.

    Alta Bob (5b0271)

  3. It appears to be some form of homocide. Murder? You could make a case for 2nd degree I suppose, but it would be hard (or perhaps not so hard with an Oakland jury).

    Joe (17aeff)

  4. The God the victim was white, eh?

    As for me, I think the cops would have been justified opening up on the crowd. What a bunch of animals.

    horace (4a046d)

  5. I’m guessing, and I’d like to hear your thoughts on this, Patterico, that they’re bringing the murder charge to placate the public and leverage Mehserle, but that they’re willing to deal it down to manslaughter.

    Barring facts that are not yet evident, Mehserle is going to have to pay for this. If I were him, I don’t think I’d want to be trying out a defense to murder charges in front of an Oakland jury. Those dice are loaded for snake eyes.

    Pablo (99243e)

  6. Dunphy calls the theory “plausible,” which causes me to reconsider my initial “You’ve gotta be kidding me” reaction.

    Plausible = in the realm of possibility. It is possible that Mehserle is profoundly stupid and woefully undertrained. Make that criminally undertrained. Any cop that doesn’t know where they’re carrying their taser and their sidearm and can’t tell the difference between the two in their hand has no business carrying either, or wearing a badge for that matter. That is his best defense: “I’m a complete idiot who should never have been a cop in the first place.”

    Pablo (99243e)

  7. Pablo, being a cop in Oakland sort of establishes his wisdom quotient. My son’s office is in Oakland and I hear Oakland stories all the time.

    Mike K (2cf494)

  8. That is his best defense: “I’m a complete idiot who should never have been a cop in the first place.”

    Ah… the “Barney Fife” defense…

    Scott Jacobs (a1c284)

  9. It does resemble an accidental discharge. If so, a tragedy more than a crime.

    SPQR (72771e)

  10. I will say the following — any Civil Serveant charged with a crime and “proven” guilty should do twice the penalty.

    For too many years I have seen arrogant PO behaving as if above-the-law and doing with citizens as they wish, all the while the community stands by and usually says “AMEN!”

    This belief that Cops are somehow “more moral” than the rest of us is sheer BS. Cops are as likely to lie, kill, cheat and steal as anyone else and I would gather to say maybe worse.

    Most Cops I know were mediocre, intellectual lightweights who could not hack schooling. They went Police Force because they want to retire young and go do security at night clubs upon retirement.

    Amongst, the least inspired folks in the world.

    So, frankly my view of this profession is quite dim and it does not shock me such “small” people would engage in wanton abuse of power simply b/c they think they could get away with it.

    Much like Rodney King, they got caught on tape and now the apologists and agitators are out in force.

    Da'Shiznit (dc4a50)

  11. If they want to say that the cop purposely executed the person in front of all these witnesses and while being video taped, then they are making the argument for an insanity ( or temporary insanity ) defense. Since he didn’t try to evade authorities after the shooting, he must have wanted to spend the rest of his life in jail.

    Kind of like the Ramos and Compean x-file where two LEO’s simultaneously decided they wanted to spend the rest of their lives in jail by trying to murder an unarmed man in a situation where they wouldn’t be able to escape or dispose of the unarmed body. If you believe the likes of Johnny Sutton that is.

    j curtis (bc19c6)

  12. Alta, I doubt Oakland jurors will decide this; given the amount of publicity this has drawn up here, and the protests in Oakland, I would expect a change of venue.

    aphrael (9e8ccd)

  13. Jesus I feel dirty…

    I agree with j curtis…

    :)

    Scott Jacobs (a1c284)

  14. In regard to murder charges, is there not a point at which gross or reckless negligence can elevate manslaughter to murder? If that is true, this would seem to be a perfect case for such a theory.

    Soronel Haetir (cabedb)

  15. Soronel: There is, its called “depraved heart murder.” The definition is when someone engages in an action that is so likely to cause death or serious injury only a person with a depraved heart would do so (yes, it is a bit like Potter Stewart’s pornography).

    The example they used in my BarBri class was this: firing a pistol in the backyard of your 5 acre ranch and accidentally killing someone would be no more than civil homicide (since you had no reasonable assumption anyone would be there). Firing a pistol in the backyard of someone else’s 5 acre ranch would be misdemeanor manslaughter (since you had no way of knowing if anyone would be there). Firing a pistol in the back yard of your suburban tract home would be involuntary manslaughter. And firing an Uzi in your backyard and accidentally killing someone would be depraved heart murder. The theory is also used to convict drunk drivers who kill other drivers of second degree murder.

    However, I don’t see how DH murder wouldn apply here. Either he intended to shoot Grant or not. If he didn’t, and he intended to pull the taser (a theory I find HIGHLY implausable, but we’ll assume for this hypo) then he should be judged by the risk of that action, and pulling a taser on someone is not an act certain to lead to death or serious injury. Therefore, he’s either guilty of intentional murder or reckless homicide.

    Sean P (4e644b)

  16. If they want to say that the cop purposely executed the person in front of all these witnesses and while being video taped, then they are making the argument for an insanity ( or temporary insanity ) defense.

    Isn’t the standard for that significantly higher than a momentary lapse of reason/judgment? Don’t you have to prove mental illness and/or incapacity?

    Pablo (99243e)

  17. CORRECTION: a bit like Potter Stewart’s pornography definition (ie: “I know it when I see it”). Sorry.

    Sean P (4e644b)

  18. Sean: my sense is that it would be a bit different in California.

    Certainly there’s a second degree murder theory which stems from consciously doing an act with a high likelihood of killing someone. The problem here is that brandishing the gun isn’t per se an act with a high likelihood of killing someone, and it’s not clear that pulling the trigger was an intentional act.

    If it was intentional, then it’s clearly murder. Otherwise, I think it’s manslaughter.

    aphrael (9e8ccd)

  19. I doubt Oakland jurors will decide this; given the amount of publicity this has drawn up here, and the protests in Oakland, I would expect a change of venue.

    Would you be willing to bet money on that? If so, I’ll take the bet.

    The judge who would order that would by murdered by the mob. I mean that literally. He would, at the very least, need to quit his job and go into hiding.

    There will be no white males on the jury. There will be a couple of frail looking little white women and little Asian men on the jury so that the jury can be called “mixed” to give the guilty verdict legitimacy.

    j curtis (e1e33a)

  20. Mike K wrote:

    My son’s office is in Oakland and I hear Oakland stories all the time.

    I was born in Oakland, but that’s it; I live a long way away now.

    The only good thing left in Oakland id the Oakland Raiders!

    The Dana in Pennsylvania, watching the snow fall (3e4784)

  21. 16

    I don’t know, but wasn’t the bay area the site of the Twinkie Defense?

    j curtis (e1e33a)

  22. I’m very interested in hearing what the other cops, particularly the one holding Grant down, had to say in their statements to investigators.

    Pablo (99243e)

  23. I don’t know, but wasn’t the bay area the site of the Twinkie Defense?

    Yes, but it didn’t result in an acquittal, but rather a conviction on a lesser charge. And then there were riots.

    This is going to be interesting, no doubt about that.

    Pablo (99243e)

  24. Uh-uh. The trier of fact can infer that 1) your act is voluntary and 2) that you intended its natural consequences. He took out a gun, pointed it a human being and pulled the trigger at less than three feet range. The human being died as a result thereof. Prima facie case for murder.

    If the defendant presents nothing, he is found guilty of murder. If he presents evidence that he thought he was holding his Taser, or his weenie, or that he thought the victim was about to transform into a vampire who would fly away after drinking his and his fellow officers’ blood, the burden shifts to the prosecution to convince the jury beyond a reasonable doubt that a) the defendant did not really believe that so it’s murder or b) even if the defendant did sincerely believe that, his belief was unreasonable so it’s second-degree murder/voluntary manslaughter.

    In any case, it’s his tough tittie. Rule #1 for people who carry guns: Don’t point a gun at anyone you don’t want to kill. (Donald Hamilton’s Rule: The minute you have pointed a gun at someone you have become a murderer.)

    nk (9097f8)

  25. 22

    And if by some miracle the cop was acquitted or convicted of a lesser charge, then the Obama JD takes over after the riots, just like Rodney King.

    I hear that the courthouse in Simi Valley has an opening if they want a change of venue.

    j curtis (e1e33a)

  26. nk:
    (Donald Hamilton’s Rule: The minute you have pointed a gun at someone you have become a murderer.)

    I don’t understand the reference. Hamilton’s Rule has to do with evolutionary biology.

    http://en.wikipedia.org/wiki/Hamilton's_rule

    TomHynes (c43c0a)

  27. “If it was intentional, then it’s clearly murder. Otherwise, I think it’s manslaughter.”

    Agreed.

    Sean P (e57269)

  28. You went to the wrong place, Tom.

    Here is the right one.

    nk (9097f8)

  29. Oakland…the city that had “Moonbeam” Jerry Brown as Mayor, and now has Ron “Red” Dellums as their Glorious Leader.
    If there are riots after the trial, and they burn the place down, what have we lost?

    ***not completely, 100% snark***

    AD (d614d2)

  30. Take it easy Jake, it may not be Chinatown, but it is Oakland.

    Ropelight (d40bc3)

  31. Was he armed with a Taser? Has anybody confirmed this?

    CStudent (557fcb)

  32. Comment by CStudent — 1/15/2009 @ 10:27 am

    That’s a good question…

    Did he even have a freaking Taser to start with?

    Scott Jacobs (a1c284)

  33. Sean,

    My arguement would be that not knowing what device you are holding is the depraved portion. The surprise was the gunshot, not that the trigger wasn’t intentionally pulled.

    Soronel Haetir (cabedb)

  34. 22: aye, and it also resulted in the voters changing the penal code to no longer allow that defense.

    aphrael (e0cdc9)

  35. NK, the trier of fact may be able to infer that. But my argument on the other side would be that police officers regularly, as part of their job, draw weapons without intending to pull the trigger. Drawing the gun *in and of itself* is intended to act as deterrence, to force the person the gun is being brandished at to change and control their actions, and it’s a tool the police use regularly.

    We cannot infer from drawing the gun that he intended to shoot it.

    Now, can we infer intent to shoot from the fact that he shot? That’s going to be the real crux of the issue.

    aphrael (e0cdc9)

  36. 23

    Would this be the first case where someone was charged for shooting a man just to watch him die?

    Getting himself arrested in Reno was an interesting choice.

    Would he have to serve his sentence at Folsom?

    j curtis (362c45)

  37. …an observation from someone who engages in Tactical Training:
    (disclaimer: I do these activities to reinforce my ability to defend my own life, and those around me if the need arises…I do not work as a Police Officer, or as a Security Officer, though I do possess Security Guard credentials from the appropriate State Bureau)
    If this officer was armed with both a sidearm and a taser, was he carrying them both on the same side?
    And, if so, Why?
    You should be able to utilize your self-defense weaponry with either hand. You must train yourself to not confuse what you are reaching for. That is reinforced by carrying your primary self-defense weapon (your sidearm) on your strong-side, and your secondary weapon (taser) on your weak-side. You train reaching for the appropriate weapon with the appropriate hand. If, because of the situation, you need to change hands to effect the shot, you do that after having drawn the weapon and have it in control. You do these things time after time after time to instill muscle memory and to make them instinctive; hopefully, to counter-act the effects of the massive amount of adrenaline that you have in your system in a stressful situation.
    This situation will call for an extensive review of the training procedures of the agency that employed these individuals.

    Sometimes though, everything just goes to shit.

    It will be interesting to see what county they get to take this trial on the change of venue?

    AD (d614d2)

  38. 34
    He would have been brandishing the gun at the guy’s back while the guy was being held down by others.
    Not much use.
    Was he trying to deter the crowd?

    Richard Aubrey (a9ba34)

  39. But my argument on the other side would be that police officers regularly, as part of their job, draw weapons without intending to pull the trigger. Drawing the gun *in and of itself* is intended to act as deterrence, to force the person the gun is being brandished at to change and control their actions, and it’s a tool the police use regularly.

    I’ve seen enough of that, in fact I’ve been on the receiving end of it, but it was not my (USAF SP) training. I was taught not to draw on anything I wasn’t prepared to kill. It is not a wise nor good policy. Likewise, I was taught that there is no such thing as a warning shot. A weapon should only be drawn by law enforcement in the event of a distinct likelihood of deploying deadly force in the immediate future.

    Pablo (99243e)

  40. I was taught not to draw on anything I wasn’t prepared to kill.

    I’ve always been told “Never draw a weapon if you aren’t willing to use it, never point a weapon if you aren’t INTENDING to use it.”

    Scott Jacobs (a1c284)

  41. Oh wow, he was black. Guess its those florescent lights in the BART station, or bad eyes.

    Surprised I haven’t heard more about it in that case. HuffPo helpfully gives the races of perp and victim in the first line of their story. Wonder if they do that with all the interracial crime stories?

    Horehound (a846c8)

  42. The officer was carrying a taser, it’s visible on his off-hand side in the video. They were issued taser’s witin a few weeks of this incident. Also police in Napa, California detonated a suspicious package that was left in front of the residence of the officer’s parents. Both the officer and his family have been receiving death threats since the incident.

    I’ll take the change of venue bet. No way this case is being heard in Alameda County.

    Patrick (5903bd)

  43. Ah… the “Barney Fife” defense…

    Comment by Scott Jacobs — 1/15/2009 @ 7:59 am

    Naw, Barney was issued only a single bullet for his service revolver carried in his pants pocket. If Barney did it, then it would have to be murder!

    TC (0b9ca4)

  44. We cannot infer from drawing the gun that he intended to shoot it.

    Now, can we infer intent to shoot from the fact that he shot? That’s going to be the real crux of the issue.

    Comment by aphrael — 1/15/2009 @ 10:48 am

    Brandish a gun around a cop and find out what happens to ya. They will shoot you almost 100% of the time!

    TC (0b9ca4)

  45. Naw, Barney was issued only a single bullet for his service revolver carried in his pants pocket

    Shirt pocket.

    :)

    Scott Jacobs (a1c284)

  46. TC: ahh, but the rules are different when the brandisher is a cop!

    aphrael (e0cdc9)

  47. I am a retired deputy DA who spent many years representing and defending law enforcement officers accused of excessive force. I seriously doubt the plausibility of the “I thought it was my Taser” defense after watching these videos. I think it is more likely the officer will claim he was in fear of his safety due to the crowd and the struggling subject, but I don’t think that’s a strong argument either.

    grs (fba0d0)

  48. I am surprise no one has offered up the classic Bay Area defense: The Twinkie Defense!

    Alta Bob (5d017d)

  49. It almost certainly wouldn’t apply if it were still legal, which it isn’t.

    aphrael (9e8ccd)

  50. Let’s recap. This tool:

    1) Pulled his gun on an unarmed man lying face down on the ground, being (successfully) restrained by several large police officers.

    2) Took aim at the man’s back

    3) Pulled the trigger

    Be honest. If this thug hadn’t been wearing a badge in that video, absolutely nobody would be debating whether or not he was guilty of murder.

    (The whole “He thought it was a Taser!” excuse is sub-moronic. Don’t insult people’s intelligence further.)

    CTD (7054d2)

  51. CTD, so since you don’t understand the issue of confusion between sidearms and Tasers ( hint: there have been actual instances of this in the past ) its moronic?

    SPQR (72771e)

  52. Pulled his gun on an unarmed man lying face down on the ground, being (successfully) restrained by several large police officers.

    If he was being “successfully” restrained, why were they unable to get the cuffs on? And, IMMSMR, there were only two officers attempting to restrain this individual.
    They only got the cuffs on after he was shot, something that the family is a little bit upset about, but it would seem to be procedure since he hadn’t been searched, and was still alive.

    AD (87db80)

  53. I am not going to give my “verdict” of this situation. The merely “obvious” from cameras is not guaranteed to be fact, but this “obvious” will be a bit tricky to beat.

    From my understanding, the taser he was trained on and issued had the same firing mechanism as a pistol. To prevent any confusion between taser and pistol BY FEEL, the firing mechanism of the taser should be different than that of a pistol.

    But, I’m all for getting rid of tasers altogether in the field. Billy clubs and side-arms should be plenty as on-the-body weapons.

    As has been stated, there have been times when a side-arm was mistaken for a taser. I am not suggesting this was the case here, but if there is no taser, there is no chance to mistake the side-arm for a taser.

    John Hitchcock (fb941d)


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