Nancy O’Malley, district attorney of Alameda County who prosecuted former BART cop Johanes Mehserle for the death of Oscar Grant, told reporters that the jury didn’t buy the weapons confusion defense.
She noted that the jury rejected Mehserle’s claim that he’d been reaching for his Taser, not his gun. Instead, the jury found Mehserle discharged his gun in a negligent and criminally reckless manner.
No explanation was offered as to what she meant. Was she claiming he pulled the trigger accidentally? Did he mean to point the Sig Sauer at himself rather than Grant? Is she just rationalizing a verdict after the fact? Who knows, but there’s nothing to suggest that there’s merit to her claim.
In the interim, Karl Mansoor sent over this fascinating post at Police One by retired Capt. Greg Meyer, who was the hired “use-of-force” expert on behalf of Mehserle at trial. Meyer explains the scenario:
Mehserle loudly announced to the other officer, “Tony, get back, I’m going to tase him. I’m going to tase him.” Multiple witnesses (including at least one of Oscar Grant’s nearby handcuffed buddies) heard Mehserle’s “I’m going to tase him” announcement, and so testified.
At the time, BART did not issue TASERs and holsters individually to officers. They are rotated, shift to shift. Sometimes you get one, sometimes you don’t. When you get one, there are three different holster configurations at BART. Weak-side/weak-hand; strong-side/weak-hand crossdraw; and (the one Mehserle happened to have that particular night) strong-hand/cross-draw.
Mehserle’s (strong) right hand moved to his right side (instead of to his left-front, where his TASER was located in a cross-draw holster), and he partially gripped his handgun with his fingers. His right thumb moved back and forth in the air, in and out toward his own ribcage, inches above where the handgun holster safety was, consistent with the motion needed to undo the TASER holster safety strap if a TASER holster were there (which it was not); and totally inconsistent with undoing the Level-3 handgun holster — these motions are clearly seen on video.
For about four seconds, Mehserle unsuccessfully tugged at his handgun, then it came out.
From this description, two things are learned: First, that the Tasers used by BART officers were potentially holstered differently every shift, impairing a reflexive reaction to grab the right weapon. Second, that Mehserle’s Taser was on the opposite side of his body from his gun. The “Tony”, referred to in the quote, was BART cop Tony Pirone who punched Oscar Grant in the head beforehand and then “took a knee” on Grant’s head before Mehserle’s “struggle” occurred.
For those who haven’t viewed the video of the shooting lately, here’s another go at it for context.
Meyer also addresses the issue of an officer confusing his gun with a taser. In my prior post on this, I argue that such stupidity “never” happens. Commenters pointed to four instances where it did. Meyer documented a total of six instances over nine years where officers claimed that they intended to use a taser but pulled their gun instead. Note that Meyer says that there were seven instances, but the seventh is this one, which obviously can’t be included and undermines his point that weapons confusion was in fact the cause. Clearly, Meyer simply accepts that officers’ claims with critical analysis.
While my “never” language was obviously hyperbolic, and assuming arguendo the claims documented by Meyer to be true, the incidence of “weapons confusion” occurring is ridiculously rare. Consider that a meteorite is estimated to strike the earth every 30 seconds. Add to that the fact that Mehserle’s taser was on the opposite side of his body from his gun, whereas every other alleged incident involved the Taser and weapon being on the same side of the body.
Meyer goes on to argue that BART officers aren’t trained to draw their Taser under high stress situations. Whether this constitutes a high stress situation, however, is subject to dispute, given that Grant was face down on the ground, with Tony’s knee on his head, and Mehserle on his back. That there was wiggle room for Grant’s arm may be argued to suggest that there was some theoretical basis for concern, but high stress?
But omitted from Meyer’s analysis is that officers are trained in drawing their gun in high stress situations. Drawing a Taser under stressful conditions appears to be false distinction, as the training for one applies to the other, and the training for drawing his weapon should have been more than sufficient for Mehserle to have been cognizant of what he was doing. The same rapid, under pressure, decision making that applies to his gun should have been sufficient to guide his use of a Taser, even if this is deemed a high stress situation.
Moreover, Meyer makes no mention of the feel of the grip of his Sig Sauer as opposed to a Taser. Remember that Mehserle struggled to get his gun out of the holster? The same four second claimed in the struggle were the four seconds during which he should have realized that his hand was on the grip of a gun rather than a taser.
While Capt. Meyer’s “expert” arguments are well-crafted for the cause of exculpating Mehserle from the murder charge, they fall short of a well-founded argument that this was the one in ten million incidence of weapons confusion. Clearly, it’s absurd to argue, as some commenters did, that this happens all the time. I was wrong, however, to argue that it never happens. Never say never.
It’s hard to imagine that Mehserle made the intentional decision to execute Oscar Grant in front of so many witnesses, though this imputes a certain degree of forethought to him, as well as an absence of arrogance that experience has shown too often comes with the shield. However, the best I can make of this is that Mehserle was so utterly incompetent, so pathologically stupid, that it was fundamentally reckless to give him a weapon under any circumstances, and it was reckless of him to strap on a gun if he couldn’t tell that his fingers were around its grip. As his fingers wrapped themselves around the grip of the gun, struggled to pull it out of its holster, lifted and aimed it at Oscar Grant, then pulled the trigger, Mehserle’s conduct demonstrated a conscious disregard for human life.
Nothing in Meyer’s explanation serves to reduce this to a mere accident.
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I am not sure that you can answer a hypothetical question like this, but let me ask:
Imagine that you were Johannes Mehserle’s defense lawyer engaged on Jan 1, 2009. Mehserle confidentially tells you that he mixed up his gun and taser. He then asks whether you recommend that he tell (or have you, his atty, tell) this fact to investigators.
Your recommendation on this?
Karl forwarded the article to me, too. The part of it I found most interesting was right at the bottom:
Well, if you can’t trust Taser International, who can you trust?
That said, I’m confident — I can’t prove it, other than by third-hand anecdotes — that, under stress, a gun is drawn when the cop thinks he’s going for a Taser much more often than Mr. Meyer implies. If no shot is fired — either because the cop realizes the mistake early enough, or somebody else does, or the situation cools down enough so that the cop doesn’t try a .40 caliber tasering — we’re vanishingly unlikely to hear about it.
Assuming it is very common, I still come down to this: is the frequency of a lethal error an excuse for it, or a reason to not excuse it?
I wasn’t sure what the Taser sponsorship meant, and figured that Meyer’s having been paid by the defense was sufficient to appreciate his motives. That said, I can’t jump to the conclusion that it happens. As discussed before, I’m told that there are some things that any competent cop doesn’t do, but then, that leaves an awful lot of cops unaccounted for. Do they confuse weapons, but they’re never documented because no one gets shot? I dunno, but find it hard to believe that there were a total of 6 over 9 years if that was the case. I would expect there to be dozens, maybe hundreds.
Of course, if there were, then it might negatively impact Taser’s sales.
Or lead to product liability findings against Taser in civil court.
It would be interesting to know what Mehserle’s late assertion of the mix up defense would have on statute of limitations analysis on lawsuits that Grant’s survivors may want to bring against Taser International.
Notice of the defect is what got McDonald’s in trouble in the hot coffee case. Hmm, TaserInc, your boy Greggie implies that these mixups happen all the time and you knew — justice time for the Grant family. Let the product recall begin.
Meyer is walking a fine line. I still can’t believe that he didn’t advise his client’s client to come clean earlier (Meyer says he was involved in Jan 09). Would have saved him a murder trial. Might have spared him any criminal trial at all.
I’m not a firearms expert like Jdog, but I’ve read enough about gun safety and the psychology of training and stress that I agree with him. This sounds a lot like a routine bit of confusion under stress.
I don’t know enough about the law to have much of an opinion on what kind of crime this is. These days I keep hearing about prosecutors who file murder charges against people who cause ordinary but fatal accidents.
And then of course there’s the question of what sort of charges could you expect if the situation were reversed, and a young black man with a gun had accidentally killed a police officer. Maybe somebody could ask Cory Maye.
That’s likely the way the jurors felt when they convicted Mehserle of involuntary manslaughter. Is it valuable to say, “I don’t really have a clue what I’m talking about, but I’m happy to speculate and it sounds about right to me”? What Joel did, you’ve done, and perhaps what they jury did, might be the root of the problem here.
There was no need for a TASER in this case, there was no need for a gun to used in this case, and the cop was convicted and should have been. That said: if cops are going to use TASERs that are shaped like handguns, I still stand by the propositon that the TASERs should be a distinctive color, like pink. When the hand comes up, and the officer is expecting pink and sees black instead, he’ll know somthing is not right (and if he shoots anyway, there is more evidence for the prosectution later.)
By his own admission, the officer made a mistake with terrible consequences. Whether that mistake was a “mere accident” or whether he was acting with “conscious disregard for human life” is something I leave up to you. All Joel and I are adding is that the officer’s claim of confusion doesn’t strike either of us as implausible on its face.
Rob R has two good points: First, was a Taser really necessary? If not, it sounds a little bit like felony murder. Second, regardless of the specifics of this case, it’s kind of dumb to give the lethal and non-lethal weapons the same user interface. Perhaps tasers should activate with a thumb button like pepper spray or a flashlight.
By the way, “I don’t really have a clue what I’m talking about, but I’m happy to speculate and it sounds about right to me” is kind of what we do here in the blogosphere.
I guess what I’m trying to say is that when the critical issue is whether this is a common occurrence or not, and the defense’s own expert can only come up with 6 instances in 9 years, saying that it kinda sorta seems like it’s common, even though you have nothing to base it on is, well, counterproductive to the purpose of reaching a substantiated determination.
What kind of holster did this cop have for his gun? With the ‘struggle’ to get it out of the holster, it sounds like one that is made a certain way so that other people can not easily remove it. (It has to be removed a certain way.)
A taser would not have the same type holster. In that ‘struggle’ he should realize right away the difference.
But then as Rob & I & many others have pointed out there was never any need to pull a taser. The guy was already down, with enough cops there to cuff him.
What kind of holster did this cop have for his gun?
Level III, dollars to doughnuts. (These days, just about the only cops who don’t are the ones who were grandfathered in.) A Level III holster has three different thingees securing the gun in place, only one of which can be tension.
If I’m right, that supports both sides of the argument — i.e. “He couldn’t have even thought he was reaching for his Taser because the motion to draw a Taser is so different from that of drawing from a Level III holster” (The latter part is true) and “Cops who have Level III holsters, unless they’re utter idiots, practice so much with the peculiarities of their holster that it becomes utterly second-nature.” (Also true.)
…unless they’re utter idiots.
Sigh. Always an out.
…unless they’re utter idiots.
In too many PDs, that seems to not only be a feature but a benefit.
You do understand that all these videos of Meherle killing Grant are misleading because they “don’t show what happened before or after” (an actual LEO argument against any videotaping of them while working). This because of course, we have no right to criticize them, as we don’t know how stressfull their job is, we aren’t trained, we are second guessing their split-second decision, etc. Yeah, I know I went off on a tangent but the guardians’ claim only they can rightly watch the guardians infuriates me.
But productive to the purpose of raising a reasonable doubt, clearly.
Mehserle’s taser was on the same side as his gun. There is a video on youtube where he has his taser drawn, and holsters it on the right, not the left side.