Metropolitan News-Enterprise


Wednesday, July 31, 2013


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Court Allows Father of BART Shooting Victim to Sue Officer




Oscar Grant’s father can sue the Bay Area Transit District police officer who shot and killed his son on a train platform, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel affirmed a U.S. district judge’s denial of qualified immunity to former officer Johannes Mehserle. Judge Mary H. Murguia said there was conflicting evidence as to whether Mehserle had a “legitimate law enforcement purpose” when he shot the unarmed Grant  in the back as he lay face down on the train platform, so that a qualified immunity ruling at the summary judgment stage would be inappropriate.

Oscar Grant III was killed during a 2009 New Year’s Day melee captured on video by several bystanders. Police were summoned as the train was pulling into Fruitvale Station in Oakland, after the train operator reported a fight on board, and encountered several men on the platform who were suspected of having been involved.

One of those was Grant.

Witnesses at Mehserle’s criminal trial—he was convicted of manslaughter and sentenced to two years in custody, but was paroled in June 2011—said that Grant, who had been resisting arrest, was pinned down by another officer, in apparent distress, and verbally surrendered before Mehserle shot him.

Accident Claimed

Mehserle said the shooting was an accident, and that he intended only to use his taser against Grant but grabbed and used his handgun instead.

They said Mehserle appeared stunned, and that Grant exclaimed “You shot me!” He died the next morning at Highland Hospital in Oakland.

The case led to protest marches in Oakland and demands for a federal civil rights investigation. It is also the subject of a new theatrical movie entitled, “Fruitvale Station.”

In upholding the criminal conviction, a First District Court of Appeal panel said the jury could have convicted Mehserle of involuntary manslaughter on either of two theories, that he reached for the taser unnecessarily, or that a reasonable person would not have mistaken a handgun for a taser under the circumstances.

Grant’s mother, daughter, and estate settled their claims against the transit district and the officers, while yesterday’s appeal concerned two lawsuits under 42 U.S.C. Sec. 1983—one by five of Grant’s friends, who claimed they were illegally detained, and one by Grant’s father, for deprivation of the familial relationship.

Judge Upheld

Murguia agreed with Senior U.S. District Judge Marilyn H. Patel of the Northern District of California that the plaintiff presented sufficient evidence of misconduct on the part of Mehserle to avoid summary judgment, including testimony that:

“Grant struggled with Mehserle and [Officer Anthony] Pirone because they were preventing him from breathing; Grant was adequately subdued before Mehserle shot him; Pirone was surprised by Mehserle’s command that he stand back (because Pirone thought Grant was adequately subdued); and Grant’s hands were behind his back when Mehserle shot him.”

In the other suit, the court said Grant’s  friends could pursue most of their claims against Mehserle and Pirone. But the panel ordered reconsideration of a ruling that denied Mehserle qualified immunity against a claim that he was responsible for the extended detention of the plaintiffs.

Patel had ruled that because Mehserle was involved in the arrests, the burden was on him to establish that he did not influence the decision to continue to detain the plaintiffs. But that ruling, Murguia said, was based on an inapposite case.

Case Distinguished

Dubner v. City and County of San Francisco, 266 F.3d 959 (9th Cir. 2001) held that where the plaintiff was arrested without probable cause, but could not establish which individual officers were responsible, the burden was on each officer who was sued to establish a lack of involvement. But Murguia said that did not apply here, and that the judge must decide on remand whether the plaintiff has presented evidence of Mehserle’s actual involvement in the detention decision.

Senior Judges Michael Daly Hawkins and A. Wallace Tashima joined in the opinion.

The case is Johnson v. Bay Area Rapid Transit District, 11-16456.


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