Defense: BART Shooting Cop Meant To Use Taser

Friday, January 30, 2009 – updated: 6:37 pm PST January 30, 2009
OAKLAND, Calif. -- The former BART police officer accused of fatally shooting an unarmed man on a transit station platform told a fellow officer moments before firing his gun that he was going to discharge his Taser, according to a document released Friday.

Johannes Mehserle, 27, was ordered Friday to be held on $3 million bail on charges that he shot Oscar Grant III, a 22-year-old Hayward man, in the back while Grant was lying face down on the ground at the Fruitvale station platform after police responded to reports that there had been a fight on a train.

Mehserle remains in jail Friday evening and has not posted bail contrary to an earlier statement released by the office of Oakland's mayor, an Alameda County sheriff's spokesman said.

Oakland Mayor Ron Dellums' office issued a statement earlier Friday stating that Mehserle had been released from Santa Rita Jail in Dublin after posting bail, but sheriff's Sgt. J.D. Nelson said Mehserle remains in custody.

At the hearing, Alameda County Superior Court Judge Morris Jacobson said that he set a high bail of $3 million for former the former BART police officer because he thinks Mehserle gave an "inconsistent story" about why he shot and killed Oscar Grant III at the Fruitvale station in Oakland early New Year's Day.

Jacobson said it appears to him that Mehserle, who is charged with murder in connection with the highly publicized incident, wanted to "make up a story to avoid the consequences of his actions."

At a packed hearing that lasted nearly an hour, Jacobson said Mehserle told fellow BART police officers that he was going to use a Taser on Grant, a 22-year-old Hayward man, but after Mehserle shot Grant he told a colleague, "I thought he had a gun."

The judge said Mehserle's statements "seem to be inconsistent" because if Mehserle truly believed that Grant had a gun then Mehserle would have been justified to pull out his gun and use deadly force and wouldn't have needed to use his Taser.

Jacobson said that because he believes Mehserle hasn't been totally forthcoming about his actions he has "a lack of trust at promises that he will appear for future court hearings."

Before Jacobson ruled on Mehserle's bail motion, the former officer's attorney, Michael Rains, said that the shooting was "a tragic accident" and Mehserle only intended to use his Taser.

Rains said he thinks Mehserle should only be charged with involuntary manslaughter and consequently his bail should only be $30,000, which is the standard bail for that lesser charge.

In a draft of the bail appeal released Friday, Rains said that Mehserle told Officer Anthony Pirone he was "going to taze Grant and [yelled] at Pirone to 'get back.'"

Pirone told investigators, the document revealed, that Mehserle told Grant to -- "Put your hands behind your back, stop resisting, stop resisting, put your hands behind your back."

He then said: "I'm going to taze him. I'm going to taze him. I can't get his arms."

Several of the witness quoted in the bail document corroborate the difficult struggle officers were having getting Grant to remove his hands from in front of his stomach before hearing the "pop" of the fired shot.

Pirone told investigators Mehserle then stood up and said: "Tony, Tony, get away, back up, back up."

Mehserle was armed with both a Taser and a handgun. He then allegedly drew the handgun and shot Grant once. According to the court documents submitted by Rains, Mehserle had attended a six-hour training class in use of the X-26 Taser and passed the user certification test on December 3, 2008.

In the document, Rains notes the short amount of time – less than a month – that had passed since the certification and the shooting incident and estimates that Mehserle had likely only carried the department-approved Taser somewhere between eight and twelve shifts before the New Year's Day shooting.

The bail document later asserts that "the bulk of the discovery, including witness and officer statements, seem to indicate that this young officer, who carried a taser for only a few shifts prior to this event, may have mistakenly deployed his service pistol rather than his taser, thus negating any criminal intent."

Mehserle -- who resigned the week after the shooting incident that provoked widespread outrage and protests -- has pleaded not guilty to the murder charge.

With emotions in the community still simmering, authorities increased security at the courthouse as Mehserle's made his appearance before Alameda County Superior Court Judge Morris Jacobson. A group in the hallway outside could clearly be heard chanting "We are Oscar Grant. We are Oscar Grant."

The group of protesters marched through the streets of Oakland after the bail hearing, at one point congregating at the intersection of 14th Street and Broadway, stopping traffic and clambering on top of an AC Transit bus. Though there were reports of one arrest by early evening, police seemed to have the streets under control as night fell.

Former San Francisco District Attorney Jim Hammer predicted the bail would be set somewhere between $1 million and $3 million before the hearing. "In a run of the mill murder case, there is generally bail -- $2 to $3 million," Hammer said.

Hammer added that the bail hearing was just the beginning of a lengthy legal journey. With several cell phone videos having been broadcast of the shooting, the potential jury pool may have already been tainted.

"It's a real nightmare not just for the judge but for the DA also," Hammer said. "If you look back at the most recent case -- the Rodney King beating trial -- you have video of alleged police misconduct played over and over. What that means is that the jurors in Oakland probably have already made up their minds about it."

"The defense will make a motion to move it [the trial] out of the hothouse atmosphere here in Oakland and Alameda County," he added.

Hammer said the trial could be reassigned almost anywhere in the state, including communities where the racially charged nature of the case may be an issue. Grant was black and Mehserle is white.

"That would be bad news for the prosecutor," he said.

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"Put your hands behind your back, stop resisting, stop resisting, put your hands behind your back."

"I'm going to taze him. I'm going to taze him. I can't get his arms."

Several of the witness quoted in the bail document corroborate the difficult struggle officers were having getting Grant to remove his hands from in front of his stomach before hearing the "pop" of the fired shot.

At a packed hearing that lasted nearly an hour, Jacobson said Mehserle told fellow BART police officers that he was going to use a Taser on Grant, a 22-year-old Hayward man, but after Mehserle shot Grant he told a colleague, "I thought he had a gun."

The judge said Mehserle's statements "seem to be inconsistent" because if Mehserle truly believed that Grant had a gun then Mehserle would have been justified to pull out his gun and use deadly force and wouldn't have needed to use his Taser.