Judge A. Wallace Tashima, 9th Circuit U.S. Court of Appeals
image: Jason Doiy/The Recorder
SAN FRANCISCO — Former BART cop Johannes Mehserle may face no further civil liability for the Jan. 1, 2009, shooting of Oscar Grant on a BART platform. But two other BART officers may have to stand trial for violating the rights of other detainees on that fateful night.
That was the impression left by questions at the U.S. Court of Appeals for the Ninth Circuit on Monday. If it sounds counterintuitive, it's because of the nature of the claimants and the varying levels of misconduct each must prove in order to recover.
Grant's mother and daughter have already settled their claims against Mehserle, who shot Grant in the back as he lay facedown on the Fruitvale BART platform. That leaves Grant's father, Oscar Grant Jr., who did not have a close relationship with his son, with a single claim for denial of familial relationship in violation of the 14th Amendment.
On Monday, Mehserle's counsel, Michael Rains of Pleasant Hill's Rains Lucia Stern, said that under Ninth Circuit case law, Grant Jr. must show "a purpose to harm unrelated to legitimate law enforcement objectives" to defeat qualified immunity. And he can't meet that high standard, Rains said, because the evidence shows that Mehserle drew and fired his service revolver when he meant to draw his Taser.
"It's a familiar mistake with BART officers, isn't it?" asked Judge A. Wallace Tashima.
That question sounded pointed at first, but it actually favored Rains. "It's a familiar mistake that a lot of officers make," he said, calling it the ninth such mistaken shooting by law enforcement in North America.
John Burris of Oakland's Law Offices of John L. Burris, who represents Grant's father, argued that even if the court accepts Mehserle's claim that he acted in good faith, there's no legitimate purpose for tasing someone "in the back who is flat out" and helpless.
"You can infer from that fact there was a purpose to harm?" Tashima asked. "That's all you have?"
"That's all I need," Burris replied, setting off murmurs of affirmation among Grant supporters in the audience.
"Well, what case supports that?" Tashima pressed.
Burris struggled a bit, citing a 2008 case that actually seems to favor Rains. "I mean, you shoot someone in the back, you intended to harm them," Burris said.
Judge Michael Daly Hawkins sounded more skeptical of Mehserle's explanation. Mehserle was convicted of involuntary manslaughter in state court.
But all three judges sounded critical of Officer Anthony Pirone, the first BART officer to arrive at the platform after a train operator reported a misdemeanor battery on the lead train car. Pirone made the initial detention of five men on the platform near the lead car, but two of them, including Grant, returned to the train while the other three walked toward the exit. Pirone then threatened four of the men with his Taser gun while forcibly dragging the fifth, Michael Greer, out of the car as backup arrived. When he asked the train car operator about the battery, she told him it was only "some B.S.," and Pirone then directed Mehserle to arrest Grant and Greer for resisting arrest.
The remaining detainees sued Pirone for the initial detention, which they say was racially motivated, and Pirone and other officers for keeping them handcuffed for hours after the Grant shooting. Those detainees need to prove only that Pirone acted contrary to clearly established law to defeat qualified immunity.
Donald Ramsey, of The Law Offices of Donald T. Ramsey, said Pirone had reasonable suspicion to detain the five men, based on the report of fighting on the train involving African-American men wearing black clothing. "The report is of an ongoing fight ..."
"No," Tashima interrupted, pointing out Ramsey had just conceded to Hawkins that any fight was over.
"But it's a report of a crime ..." Ramsey said.
"... that's been completed," Tashima said.
Judge Mary Murguia told Ramsey there would not have been authority to arrest someone for a completed misdemeanor.
"The question is not whether he had probable cause to arrest," said Ramsey, growing more exasperated. "The question is whether he had reasonable suspicion to ask a question. And that he emphatically had!"
This time Hawkins interrupted. "You are not in front of a jury, and you are not making any progress in your argument by yelling at us," the judge told him. Ramsey apologized.
Daniel Siegel of Oakland's Siegel & Yee was calmer on behalf of four detainees, but was still a hit with their supporters in the audience.
"They didn't meet the description" of the report, he said. "They were not a large group of black males. They were a large group of people of various races."
"That's right," someone in the audience uttered.
"They were not wearing all black clothing," Siegel continued. "In fact, the evidence is all of the men were wearing blue jeans."
"Thank you," came a quiet reply from the audience.
Even if they had been engaged in a fight, Pirone had no idea "whether they were victims or aggressors. He assumed that because they were black males, or dark-skinned males, that they were the aggressors, and immediately took aggressive action."
This time there was no response from the audience or the court.
