The verdict is in on former Oakland Police Officer Johannes Mehserle, who was responsible for the death of Oscar Grant. Guilty of involuntary manslaughter, the least culpable of the charges against him. Popehat provides a thorough examination of the charges and elements, and presents a cogent discussion of why, in the absence of evidence to the contrary, the verdict was right.
There’s a nagging problem. Why does this “benefit of the doubt” argument apply so readily, so easily, when the culprit is a cop? As Norm Pattis points out from his §1983 work, any crack in the proof against a cop and chances are good that a judge will toss the case. So what if the judge never tried a case in his life. He still knows the limits of a reasonable jury.
In Mehserle’s case, the defense was that he went for his taser and grabbed his Glock instead. Add to that the stress, the flurry of activity, the lack of time for reflection, and to a jury, and likely a judge, it seems horribly unfortunate, but certainly possible. Police officers aren’t perfect. They aren’t Supermen. They are just hard working civil servants who put their life on the line every day so that law-abiding citizens may walk on the streets without constant fear of crime. And sometimes, something goes wrong.
No sale.
No cop reaches for his taser and grabs his Glock. No cop doesn’t know exactly where his gun is on his belt. No cop, even under the most extreme of circumstances and pressures, grabs his gun by accident. Never.
The fault lies in society’s belief that we can substitute the judgment of well-intended, ordinary folks for that of people trained for specialized service. What regular people think is reasonable has absolutely nothing with what the dumbest, nastiest, laziest cop thinks is reasonable. Regular people have not been through the Academy. Regular people don’t strap on a weapon to go to work. Regular people don’t think, whether true or not, that any day could be there last, so if nothing else, nothing else, they know where their gun is. If it’s going to be their last day on earth, they will go down with their finger on its trigger.
Intent isn’t discerned from voodoo, but from conduct. Mehserle’s intent is known only to him. The intent of a defendant, however, is known to all by what he did. Intent is not the best word to describe the element, but it’s what we use. The only thing we can ever truly know is the action that corresponds to the mindset, and that becomes intent for the purposes of a jury.
The defense offered a great alternative to the reasonable belief that when a cop shoots a person with his gun, that’s precisely what he meant to do. The old Taser/Glock switcheroo. It can happen right?
No, it can’t. It is unreasonable to believe that former Oakland Police Officer Johannes Mehserle grabbed his Glock when he meant to grab his taser. In fact, it’s ridiculous. Except to a jury.
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Worryingly what would happen if the officer grabbed his Taser when he should be grabbing his gun? Would he then be at risk of losing his life (and possibly others losing their lives) to a personal mistake?
I don’t know a lot about Tasers, as far as I am aware they are only meant to stun, although I understand they have caused fatalities.
I believe the Taser/Glock mix up could look to be a more important issue if it were viewed in a different way.
Maybe “Hey, you know how juries give cops the benefit of the doubt when they get charged with murder for shooting an unarmed suspect in the back, because they have a tough job, live in constant fear of death, blah blah blah” would be a good voir dire subject when discussing BRD with a venire panel.
I think you’d hafta work on my wording, making it both more substantive and subtle (although I’m tempted to leave the “blah blah blah” part in).
Great post!
While not agreeing with the verdict, I do think it’s a bad idea to make a tazer that is shaped like a pistol.
“No cop reaches for his taser and grabs his Glock.”
BS. Happens frequently. Then again, you’ve never been a cop, so you have no idea what you’re talking about. Listening to a criminal defense attorney explain about policing makes about as much sense as asking a giraffe to explain quantum physics.
Given that the victim was face down on concrete with another officer’s knee in his back, what would have happened would have been Grant would have lived, yet suffered under the Taser. Given his position, there’s also no way the Taser was justified.
The problem that Mehserle ultimately faces is that we have thousands of cops in this country to go to work every day and deal with people like Grant (who isn’t exactly a nominee for sainthood) and yet somehow don’t have this gun/taser mixup problem. Oddly, Mehserle didn’t seem to recall this problem until the trial – he never mentioned the little mixup to his buddies on the scene.
There are a lot of other very troubling aspects to this case that were never explored, such as the other officers stealing phones with cameras in the aftermath of the shooting. One of the videos even features an officer running toward the train screeching something like “give me that camera” only to have the doors close in her face. No media organization that I know of followed up to find out if they ever gave the cameras back and if they erased the condemning videos on them. If they did – and there’s no other reason to steal them – that’s destruction of evidence, itself a felony I believe.
Another troubling event was that the officers proceeded to handcuff Grant after he’d been mortally wounded. There’s a certain depravity to that action that a normal mind just cannot comprehend.
The Grant shooting overshadowed the rest of it, but there were a lot of crimes committed that evening, and the more mundane (in light of a homicide) acts are, in aggregate, as troubling as the shooting. The fact that they were ignored by the media and everybody else is also troubling.
FYI – he was a transit cop – not OPD – the incident happened to have occurred in Oakland in a train station.
What I don’t understand is this: why would it be reasonable to try to Taser a handcuffed man anyway? Isn’t a Taser supposed to “less lethal” rather than “non-lethal”?
No doubt if I had to sit through the trial on the jury I might understand this better. Or maybe not.
Funny you should say that. My statement was based on what I was told by a number of cop friends. Maybe you’re just an incompetent buffoon, not to mention too much of a coward to leave your name. Did you think you were the only cop in the world, bozo?
Grant wasn’t handcuffed until after he was shot. An early news report mistakenly reported that he was handcuffed before, but that’s not true. He was, however, face-down on the ground with another officer putting weight on him, so there’s still no justification for using the taser.
To reply to the cop with the giraffe analogy – again, if this taser/gun mixup problem were real Mehserle would have mentioned it to the officers at the scene. Also, we would be seeing more incidents of people being shot given the thousands of officers out there who carry both weapons.
It does you no good to defend bad cops like Mehserle. What he did was wrong and he’s going to pay the price, although obviously not a high enough price for the crime. If you’re an honest cop, you have nothing in common with him. If you’re like his buddies who proceeded to attempt to cover up the crime just seconds after it occurred, then you’re part of the problem.
“an incompetent buffoon”
“bozo”
This from the man who says he “invites thoughtful comments, but please keep it civil and respectful.” Apparently you need to do some self policing. I didn’t call you a “buffoon” or a “bozo.”
How do you know so much about policing yet you don’t know that many police officers cannot use their real names in any kind of public statement, including online postings on blogs?
How do you know so much about policing but you don’t know a basic fact that the Oakland Police Department and the BART PD are not the same department?
If I had a dime for every defense attorney who claims inside knowledge because of “cop friends,” I’d be retired already. How come your “cop friends” aren’t here to back you up?
And do try to keep your response civil this time.
Or maybe he’s right. In which case, cops must either give up their guns or their tasers. AECC, it’s your pick.
Geez, do I have to explain this again? You are the commenter. This is my blawg. You are a guest, This is my home. You get to comment because I allow it. I get to do what I want. You have to keep it civil and respectful. I can call you any damn thing I like. You don’t like it? Go away.
As for using your name, cut the BS. There are plenty of cops, judges and prosecutors who comment here under their real names. You just don’t have the guts.
What does my distinguishing between the BART PD and OPD have to do with anything? If you have to pull out something that meaningless, you’ve got nothing.
And finally, who cares about you and your dimes. You don’t even have the guts to use your own name. For all I know, you’re some 12 year old fraud. At least the cops I know are real cops, not to mention honest and have balls. Nobody you would be familiar with.
Since you’ve got nothing to offer, time for you to go to the donut shop and complain about how mean the criminal defense lawyer was to you. If it’s not past your bedtime.
Hey AECC – If cops really do mistake tasers for Glocks “frequently” then is it a good idea for them to have both?
I think this is a yes or no question, but, especially, if the answer is “Yes, it’s still a good idea” I’d love to hear why…
If we take the cop’s alibi at face value, this would seem to have some interesting policy implications. If it is reasonable to believe that an officer could confuse a firearm and a Taser, then we should be concerned that it could happen more frequently. And since the Taser is treated as a non-lethal weapon, it is deployed in many situations where a gun would not. That seems to increase the risk to the public substantially, rather than reducing the risk of harm to those the police encounter.
On the other hand, if the policy is protected by the claim that this kind of confusion is incredibly unlikely…then Mehserle should be going away for murder.
So, as a former cop (2 years experience) and the neighbor of a 21-year Santa Cruz PD veteran, we both say “you’re full of it” to AECC.
From day 1 of training, you are taught not to pull a weapon without precautions. Period.
Many departments require that the taser and the gun be on opposite sides of the belt. When they are not, it falls to the officer to be sure of what he’s doing.
There’s something ultimately wrong with pulling any weapon on a man down. Get the cuffs/restraints on him, then get off.
OPD are trained by the same facility as Transit, if my memory serves me. And should be held to the same (low, unfortunately) standards.
My point exactly. In fact, AECC says this is a well established fact.
Hell, the defendant has already been acquitted of the most serious charges (pending investigation by the Federales notwithstanding) so I say let’s take the explanation at face value, and ban Tasers.
You’re darn right it’s your blog. You’re welcome to fly off the handle and jump right into ad hominem insults and leaping to unfounded conclusions about someone you don’t even know if you think that will project the professional image you wish.
As for identifying who I (or any other cop) am online, I would think as a defense attorney you would realize that anything posted online under someone’s real name is something that could be used against that person in court sometime in the future. That’s why virtually every cop I know doesn’t use his real name online whether or not it’s department policy.
Here’s the relevant section from our department’s operations manual FYI:
440.70 ONLINE PRESENCE. Officers shall not use any department logos or departmental identification on any social media accounts or webpages accessible by the general public. Officers shall not incorporate photographs featuring themselves, other officers, other department personnel, departmental vehicles, departmental equipment, departmental facilities, suspects, crime scene, persons under arrest, evidence, official documents, or similar subject material relating to any aspect of department employment on any webpage or social media accounts accessible by the general public. Officers shall not identify their employment by the department nor their rank on any webpage, social media account, blog, online journal, online forum, online bulletin board, or similar website accessible by the general public. Officers shall not identify themselves by name and/or rank and/or department in any letter to the editor, comment section, news story, online debate, online interaction, online chat, or similar online interactive medium accessible by the general public within any discussion or interaction involving department practices and procedures, pending cases, matters of criminal law, law enforcement tactics, law enforcement training, emergency preparedness, or similar aspects of departmental employment. Officers shall not maintain a blog, online journal, or similar electronic narrative accessible to the general public with any mention of name and/or departmental employment and/or rank or discuss on such medium any aspect of department practices and procedures, pending cases, matters of criminal law, law enforcement tactics, law enforcement training, emergency preparedness, or similar aspects of departmental employment.
Here’s an excellent overview from The Police Chief magazine about several real-world cases involving taser/firearm mistakes in officer-involved shootings; this article was published before the Oscar Grant shooting:
http://preview.tinyurl.com/pcmfirearmecw
The Henry v. Purnell standard is particularly noteworthy to the case at hand, in light of the opinion shared by many police officers that Mehserle’s training was inadequate and he therefore was not guilty of involuntary manslaughter based on the evidence presented at trial. Henry held that five factors should be considered in determining the reasonableness of the officer’s taser and firearm mixup mistake:
(1) the nature of the training the officer had received to prevent incidents like this from happening; (2) whether the officer acted in accordance with that training; (3) whether following that training would have alerted the officer that he was holding a handgun; (4) whether the defendant’s conduct heightened the officer’s sense of danger; and (5) whether the defendant’s conduct caused the officer to act with undue haste and inconsistently with that training.
Here is a news article about the Torres shooting mentioned in The Police Chief piece:
http://www.maderatribune.com/news/newsview.asp?c=56821
You come here with guns ablazing (pun intended) about how a defense lawyer doesn’t know squat about cops, and then start whining about ad hominems? Sorry that I hurt your feelings teacup.
As for your department policy, which means nothing here, it doesn’t stop you from using your name. You make the choice to put your name to your big ideas or not. You chose not. There are lot of reasons to lie or hide. Fear of your truth coming out on cross isn’t a good one.
The article, and Henry v. Purnell test, has to do with civil liability. But from the article, there were a total of 3 cases where an officer claimed to have grabbed a gun instead of a taser by mistake, each time where the taser was next to the holster. Sure doesn’t look like it happens all the time.
You said it never happened. Rick provided proof of at least 3 other times of it happening. Sure looks to me like he proved you wrong.
Maybe, assuming that one accepts as truthful the claims of the officers in the 3 incidents out of millions that it was purely accidental. But it may be true that it happens, like winning the lottery twice times in a row, Even AECC recognized that it had to be commonplace to make the argument that it was an accident fly. When something like is such an extreme rarity, the mere claim without corroborating evidence (as was the case in the three incidents mentioned in the link) is inadequate to sustain the assumption.
So, fortunately for me, it doesn’t alter my point, my hyperbolic “never” statement notwithstanding.
Here’s a fourth example:
http://www.kirotv.com/news/9413774/detail.html
Point? If it turns out that it happened 10 times, still assuming that it’s accidental, out of a million times a weapon is drawn, does that make it a sufficiently common mistake to make it sufficiently reasonable that the mere claim is enough to defeat a murder charge?
Let’s try to deal with this on a rational level: If a person “bought” a car with no payment due for a month, the person had no income or savings, and his argument to defeat larceny was that he expected to win the lottery, would that be reasonable? It could happen. Somebody wins the lottery. But would the claim be sufficient to overcome the presumed intent to steal?
Quoting you directly and verbatim: “No cop reaches for his taser and grabs his Glock. No cop doesn’t know exactly where his gun is on his belt. No cop, even under the most extreme of circumstances and pressures, grabs his gun by accident. Never.”
People here have proven that statement flat out wrong with documented examples but you continue to insist down is up.
These mistakes happen often enough, plus the opposite of drawing a taser instead of a weapon that many departments now train with specific techniques to prevent this confusion from happening. Johannes Mehserle did not receive that enhanced training.
Point? The point is that you claimed something never happened. YOu said: “No cop, even under the most extreme of circumstances and pressures, grabs his gun by accident. Never”
The dictionary defines “never” as “not ever; at no time; not at all; absolutely not; to no extent or degree”.
Rick and I gave four well documented cases that prove you wrong. Four does not equal “never” and no amount of dancing on pins will make it any different.
Are you taser certified and at what level? If so did you learn about crossdraw and alternative holstering to prevent misdraws of your weapon instead of a taser? Didn’t your instructor explain to you about the dangers of misdraws with statistics and a field demonstration? How many hours of training did you have to get your taser cert? How often have you re-certed?
If cops are having problems telling their guns apart from their Tasers why don’t we mandate that the Tasers a.) not be made in pistol-like shapes, or b.) mandate that they be PINK or some other eye-catching color that is completely different than the color of a firearm?
As far as this case goes, I remember seeing the video after the shooting and thinking that the cop thought he was going for his Taser instead. I saw a reaction that appeared to me that the officer knew he made that mistake. I have HUGE problems with the use of a Taser on an already subdued subject. It confirms to me that cops are abusing the Taser by using in situations were it should not be used.
Bottom line: Grant should not be dead, and Mehserie should go to jail for longer than the time he is going to get for this. The problem here is not so much the verdict, it is the level of punishment for the crime under California law.
If the taser was a mistake or not still leaves off that the guy was already DOWN.
Two cops had him down with a third right behind them, there was NO reason to even pull a taser…PERIOD!
This proves there are cops that should never have tazers in the first place.
Rick gave three examples before you. Rick’s examples showed my “never” statement to be hyperbolic, though didn’t change the point. Your one example adds nothing.
Four examples of incompetence amongst millions of opportunities shows these “mistakes happen often enough?” Sorry, but not quite. But only a cop or cop lover could believe that Mehserle couldn’t be expected to figure out a taser from a Glock without “enhanced training.”
Not orthogonally: unless my eyes were deceiving me, the cop had his Taser out at one point, and replaced it with his gun. As per Luci v. Desi, that means that he’s got some extra ‘splainin’ to do.
A few orthogonal notes: generally, Taser training is much less lengthy than firearms training. (One department that I know of does a grand total of four hours of Taser training. Period.) A cop when training will grab a gun much more often than he will grab a Taser — and he’ll grab handcuffs more often than both (not entirely orthogonally).
And then there’s on the street…
While very few cops ever end up — properly or otherwise — shooting a guy, pretty much all (and I’m weaseling on “pretty much”) street cops do draw and use guns as “situational control devices” a whole lot. (This is never pleasant for the person whose situation is being controlled, I can say without fear of correction. Drawn guns for real scare the hell out of people, and as far as I can tell, nobody doesn’t get scared when around a full felony stop (I have been), even if they’re not the guest of honor (I haven’t been; I like it that way) or one of the badged hosts. A (now-retired) friend of mine who never actually shot anybody, through a long career, did manage to either gain or maintain control of a lot of situations while pointing a gun and shouting, “Don’t make me have to clean this gun.” [Kids: don’t try this at home.]
In some PDs, the doctrine is that the Taser can be deployed for situational management when and only when there is another cop present with a gun drawn; in others (NYC comes to mind) Tasers are only issued to senior officers (I think it’s sergeants and above there) — those doctrines assumes, implicitly, that the Taser isn’t a stand-alone SHTF device.
Under stress, people do stupid stuff. Cops are people. Before they went to semiautos, the NYPD started hacking the hammer spurs off of the revolvers, to avoid the problem of a cop cocking the hammer to control a situation and prepare/threaten to shoot, and then dropping both the hammer and the surrendered guy. I think it’s worth noting that doing anything of the kind was against training and policy long before it was made physically impossible. Under stress, people do stupid things.
And, after doing bad things, and perhaps after consulting with other folks, people have been known to fib.