So, you say you want Justice?


Other than one post, I’ve avoided posting about Mehserle for a year and a half now; however, since I run the risk of being directly impacted this week when the verdict is reached, I figured now was as good a time as any to give my opinion.

First, some points of law. Let’s start with looking at the three sections of the CA Penal Code being considered by the jury.
187.  (a) Murder is the unlawful killing of a human being, or a fetus,
with malice aforethought.
192.  Manslaughter is the unlawful killing of a human being without malice.
It is of three kinds:
(a) Voluntary--upon a sudden quarrel or heat of passion.
(b) Involuntary--in the commission of an unlawful act, not amounting to felony;
or in the commission of a lawful act which might produce death,
in an unlawful manner, or without due caution and circumspection.
This subdivision shall not apply to acts committed in the driving of a vehicle.
**I've not added the third as vehicular doesn't apply here.**
The three charges the jury is considering are second degree murder, voluntary manslaughter, and involuntary manslaughter. I’ll be using some bits of the jury instructions in this post, but if you are interested in reading the full jury instructions in the case, click here.

The judge instructed the jury regarding the charges saying, “The crime of second degree murder and the lesser included crime of voluntary manslaughter require proof of the union, or joint operation, of act and wrongful intent. For you to find a person guilty of either of these crimes that person must not only intentionally commit the prohibited act, but must do so with a specific intent and mental state. For you to find a person guilty of the crime of involuntary manslaughter, a lesser included offense to the crimes of second degree murder and voluntary manslaughter, a person must do an act with criminal negligence.”

There are more instructions in the 500s section of the jury instructions (that are length-prohibitive for posting). In that section, the judge goes into depth regarding the definitions and requirements for the three charges

Now, what is my opinion? I think Johannes Mehserle made a tragic error. I am glad he is no longer a police officer. Having said that, however, I don’t think the charges against him apply. Let’s keep in mind that a lot of my opinion stems from media coverage and my experience as a police officer. No, I wasn’t at the trial. No, I wasn’t on the BART platform on that day.

BART’s FTO program is five months long. (In my original BART post, I said 18 months, I have since learned differently). BART extends to four separate counties. That means the officers have to learn each county’s laws. In addition, they have to familiarize themselves with muni codes for each city BART travels through, not to mention all the jails and court systems associated with those cities/counties. All that on top of learning how to be a police officer as well. My point? Mehserle was a BART cop for two years. That means he was on his own for about 18 months. He was still a rookie. They say in order to be a competent police officer, one needs five years on the street. He was not an experienced police officer. I am not offering excuses, simply facts.

In my opinion, there is absolutely no intent associated with this incident. That takes second degree murder and voluntary manslaughter off the table. The judge instructed the jury, “The defendant is not guilty of second degree murder or the lesser included offense of voluntary manslaughter if he did not have the intent or mental state required to commit the crime because he mistakenly believed a fact, namely, that he had drawn his taser and not his firearm. If the defendant’s conduct would have been lawful under the facts as he believed them to be, he did not commit second degree murder or voluntary manslaughter.”

It has been purported that Mehserle believed he was drawing his taser. Let’s ignore the cell phone videos, media coverage, and witness statements for a moment and look at common sense. Does it make sense that an officer, rookie or vet, would pull his duty weapon on a crowded platform with witnesses everywhere in a day and age of cameras documenting one’s every move, and intentionally kill a man while he is on the ground and unarmed? Give me a break.

Voluntary manslaughter requires a killing in the heat of passion. The judge’s instructions were as follows: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. The defendant killed someone because of a sudden quarrel or in the heat of passion if: 1) The defendant was provoked. 2) As a result of that provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgement AND 3) The provocation would have caused a peace officer of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgement.

I would argue Mehserle wasn’t provoked. I would argue he was there doing his job. But, for the sake of argument, let’s say #1 is met. Both in the trial and the Grant family statements to the media, much has been made of Mehserle’s lack of emotion on the night in question. #2 seems to be an impossibility to reach as well. Those two points alone call up enough reasonable doubt in my mind.

Finally, there is the third charge of involuntary manslaughter. From the jury instructions: “The defendant committed involuntary manslaughter if: 1) The defendant (a) committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed or (b) committed a lawful act, but acted with criminal negligence; and 2) The defendant’s acts unlawfully caused the death of another person.

It seems the key in this charge is “criminal negligence”. Once again, from the jury instruction: “A peace officer acts with criminal negligence when the way he acts is so different from the way an ordinarily careful peace officer would act in the same situation that his act amounts to a disregard for human life or an indifference to the consequences of that act….In considering whether the defendant’s conduct was criminally negligent, you must not consider the consequences of that conduct. You must focus on the question of whether the defendant’s conduct itself was reckless and whether his actions were such a departure from the actions of a reasonable peace officer in the same circumstances that his acts amounted to a disregard for human life or indifference to the consequences of his acts.”

The last instruction with regard to this charge is key. From the jury instruction: “In considering whether the defendant’s conduct was criminally negligent, you should consider all the evidence in this case, including whether the defendant’s conduct violated applicable policies and training. A finding by you that the defendant acted in reasonable compliance with applicable policies and training would tend to negate a finding that he acted with criminal negligence. A finding by you that the defendant did not act in reasonable compliance with applicable policies and training would tend to support a finding that he acted with criminal negligence.”

This is key because if he acted in accordance with BART policy and training, criminal negligence is more difficult to prove, thus, reasonable doubt. Prior to this incident, I don’t believe BART had a policy regarding where on one’s person one was required to carry a taser. Much has been said since then about weapon confusion and making sure the taser is a cross draw. That is to say if you are right handed, your duty weapon is worn on your right hip and your taser on your left. It would not surprise me if BART has not enacted that very policy since this incident happened.

If you truly want Justice, you must follow the rules of law. Is BART being civilly sued? Is Mehserle? Oh, most assuredly. The Grant family is going to get paid. In this case, I think they should. Now, I’m not extolling the virtues of Oscar Grant by any means. This whole thing could have been avoided from the outset if he had A) not been in an altercation and B) not resisted. Neither of those actions, however, deserved anything close to the result he received.

At the end of the day, Mehserle made a deadly error. As I read both the law and the jury instructions, I don’t think Mehserle is guilty of a crime. As much as race has been ballyhooed about in this case, it seems to me that both the media, community, and Grant family have assigned that particular label. If Justice is truly blind, race shouldn’t play into this at all.

Where will Justice be when opportunistic vandals destroy downtown Oakland? Where were the riots for the four CHP officers killed this month? Listen people, civilized folks don’t riot. Civilized folks don’t loot. Civilized folks don’t react to a tragedy in order to use it as a crutch to commit a slew of crimes.

It is a sad state of affairs when the hard working, law abiding citizenry and merchants of Oakland are going to be doubly victimized when the verdict is announced. Make no mistake, it doesn’t matter what the verdict is to the kinds of scumbags that will be “protesting”. Look at Los Angeles. The Lakers won the NBA championship and people “celebrated” by vandalizing and looting. There were arrests. People got hurt. It was a fucking sporting event! This issue is so much more volatile it nearly defies definition.

Truth be told, I don’t really believe the majority of people the media has featured in the last year and half. I don’t think they want Justice…at least not true Justice. When the trial first started, people were screaming for first degree murder. These are the uneducated, ignorant (albeit angry) masses. Their knowledge of law is non-existent. They simply want their pound of flesh. That is their perverted sense of “justice”. They want to get back at the cops that have been locking up their baby’s daddies. They want to rail against decades of perceived inequities. They want an excuse to rape and pillage (be it figurative or literal). In short, they want legalized, sanctioned anarchy.

While they are committing a litany of crimes, we, the police, will still be out there enforcing the law. We will not bow to the mob mentality. We will win the day. The sad thing is I agree with those that have called for Justice in this case. I just adhere to a different, more lawful, sense of said Justice. Hold Mehserle responsible for what he did to the fullest extent of the law. It needn’t be solely criminal law, either. He and/or his department should be held civilly responsible for the actions of that night. Unfortunately, tempers are running high in and about the city of Oakland and I don’t think the kinds of people that will be running rampant have any desire to have any kind of intellectual discussion about rules of law.

On a final note, if you find yourself wearing a badge and a gun this week, take heart! Believe it or not, the senseless bullshit we are all about to endure is not truly reflective of the citizens of Oakland or its surrounding cities. Take care of one another, keep your heads down, and we will come out the other side.

Please note: I reserve the right to delete comments that are offensive or off-topic. Snark is encouraged. Being a prat is not.

23 thoughts on “So, you say you want Justice?

  1. Tough call, MC. I can see where you're coming from and a LEO friend of mine described this soon after it happened as "Dude Fucked up!"

    In the way you describe it the officer was ill trained in using his weapons of deadly force as well as taser, found himself in a physical struggle with another person, chose to use force, then couldn't tell the difference between a taser and a gun.

    Legal points aside, he should have known the difference.

    I would ask the situation reversed and a citizen shot a LEO, thinking him an intruder, then claimed he thought it was a taser. Video later shows the citizen holding his head and calling for help.

    Does the citizen, who was ill trained, in a moment of fear for their life meet the requirements?

    Indeed Mesherle shot an unarmed man who by no means was an angel. If what he did is not murder, and is not man slaughter, then what is it under the law?

    Man, be careful out there, the fan blades are indeed spinning, no matter the result.

  2. This is a truly amazing analysis of the FACTS of what is an incredibly emotional situation. Seriously one of the most balanced viewpoints I've seen (and I'm not just saying that because I agree). I wish all were as reasonable and rational as you are, MC. Be careful out there.

  3. Anything less than a 187 conviction is going to make some people very unhappy. Should that occur, I sincerely hope that mob mentality does not take hold and the insanity of L.A. is not repeated.

    I also hope that East Bay Cities are a little more assertive in the early stages of an event than L.A.P.D. was and that total chaos is avoided.

    Having said that, I hope that the threat of unrest is not even a subconscious thought in the minds of the jurors as they deliberate.

    Regardless, it is going to be an interesting week in the east bay.

  4. Taking into account the fact that the explanation for this death is that the state entrusted a deadly weapon and significant authority to a man who was not sufficiently trained…and perhaps the anger towards police and government in general is easier to understand.

    It's not a justification for any violence, or for disregard of the law. But when enforcement of that law is entrusted to people who aren't well enough trained to know the difference between a Taser and a gun, why should you expect that those angry about it will take a technical view of the law?

    Anything that happens probably won't be justified. But that doesn't make it senseless.

  5. As usual I bow to the greatness that is your analysis of a FUBAR situation. This whole case has been much debated among family, friends, classmates, etc. and it's amazing how ignorant many are about the law. THANK YOU for condensing it into a down and dirty post I can refer people to.

  6. Even the most highly trained people can make mistakes, especially when the adrenaline starts flowing. Police officers are human and are subject to the same flaws as all of us; they aren't robots. That doesn't excuse the officer's mistake but I truly do believe that it was an unintentional act.

    Anytime an officer uses force against you, there's a chance that you might die. You could hit your head when they tackle you. Your heart might give out from the taser. You might get an ASP in the wrong place, etc.

    If you attract the attention of the police in a way where they have to respond with force, you are rolling the dice. Accidents happen and will continue to happen; no amount of training will prevent them all. That's a good reason right there to live life in such a way where you don't attract that kind of attention.

  7. One thing I don't understand is how this case even got to a trial.

    I know that prosecutors usually stack charges to encourage the defendants to plead to a lesser offense. In this case it's patently obvious to anyone with even a slight understanding of law that the dude seriously fucked up but he's only guilty of involuntary manslaughter.

    Was he gambling to get an OJ jury?

  8. HM…You're friend nailed it. Yes, he should have known the difference; however, that is not a crime (IMHO).

    With regard to your analogy of the citizen with a taser, I can only say it's like comparing apples to grommet design. The two topics don't sync. Comment boxes are too short to explain, though. We shall have to do that over a beverage soon.

    "…then what is it under the law?" A tragic accident would be my answer. Again, I believe he and/or his dept. should be civilly liable, but not criminally.

  9. Todd's comment is nothing short of brilliant. In civil law, there's something known as "contributory negligence," defined as behavior by a plaintiff which contributes to the harm caused by the defendant's negligence. Had Oscar Grant behaved himself, he would be alive today. He started the domino chain, not Johannes Mehserle.

  10. Antelope…

    I'm guessing that's what the jury (if they don't acquit…which I think they should) will convict on.

    Per the jury instructions, though, if he followed applicable policy and training (which the defense spent a lot of time detailing) it would tend to negate criminal negligence which is the key to involuntary manslaughter.

    This is all amongst the retarded fucking shenanigans of the jury this week which is amazingly frustrating.

    Just my two cents…

  11. "Per the jury instructions, though, if he followed applicable policy and training (which the defense spent a lot of time detailing) it would tend to negate criminal negligence which is the key to involuntary manslaughter."

    If he followed the "applicable policy and training," Mr Grant would've received his dose of Edison Medicine plus a free ride to a nearby drunk tank, not a two-for-oner shot in the back.

    MC, I gotta give you credit for one thing though – you're at least speaking outloud about the fact that 99.9% of cops feel like the way you do that just being on duty entitles you to a blank check to do just about whatever the hell they want with no real consequences.

  12. Antelope…what I was alluding to was the training aspect. He likely got little training and I don't think BART had a policy about where on one's belt to carry the taser.

    Weapon confusion is a serious issue…as is illustrated by this very case.

    "MC, I gotta give you credit for one thing though – you're at least speaking outloud about the fact that 99.9% of cops feel like the way you do that just being on duty entitles you to a blank check to do just about whatever the hell they want with no real consequences."

    I'm not sure if I understand this last bit. I don't think I've said anything about how other cops may be feeling and I have absolutely never said or even hinted that being on duty entitles us to a blank check of any kind.

    If anything, we are held to a much higher standard than the general public. We are more closely scrutinized.

    If you've gotten any of that from either this or any other post I've ever written, you have seriously misunderstood and profoundly misinterpreted the things I've said here.

    If I just didn't grasp the comment, please help me understand.

  13. Well, your other comment stated "if they don't acquit…which I think they should"

    IMO, this can only be interpreted as a statement that ex-Ofc. Mehserle did absolutely nothing wrong and deserves to walk out a free man. If you're willing to positively repeat this sentiment, be my guest!

    Just by reading PC192(b) on its face makes it pretty clear that while Mehserle's conduct was entirely lawful, it had a potential to produce death (for well-known, if entirely different reasons) and that his conduct was "without due caution and circumspection." By his own testimony, he didn't check what he was holding in his hands before pulling the trigger.

    "If anything, we are held to a much higher standard than the general public."

    And that is why I think he's 110% guilty of involuntary MS for just that reason (but nothing more).

    Honestly, I'm white, so I have nothing against Mehserle. The fact that this case didn't get tossed out right out of the gate on qualified immunity grounds, like most such cases do, speaks volumes already.

  14. I just started reading your blog a couple month ago, man you are hitting some heavy topics lately.

    I have been reading your posts, while trying to see things from 18 different angles. Too many "what ifs and yeah, buts" in my head.

    Either way, you are speaking from your heart that is for sure. And that is a rare rare thing these days when most people are typing little cupcake posts about their job.

    As with most matters, raw truth and bitter fact get swallowed up by the wet blanket of politics and attorney motions.
    My opinions aside, Capt. Schmoe said it, "I sincerely hope that mob mentality does not take hold and the insanity of L.A. is not repeated."

    ~Keep typing your thoughts man. It's helping me to SEE things from your perspective! And that aint a bad thing!

  15. How easy is it to confuse your taser with your pistol? I would think the two are very dissimilar, but I've never handled the taser.

    This is a better evaluation than most serious evaluations or summations of the case. I'm waiting for the jury to return a verdict, secure in the knowledge that I'm in Ohio and thus far removed from the rioting that is sure to take place when the verdict is read.

  16. MC,Putting aside for a moment whether this was a scared cop with insufficient training and absent strong leadership or something more sinister…why would he need to taser a prone,cuffed and controlled suspect? What does that buy him situation wise? Or was it to be punitive? Not asking you defend, just thinking out loud.

  17. Dear MC,
    I just read this post, how i wish I had seen it earlier. I just posted as a civilian and I think we are much in agreement.

    Thanks for a thoughtful post, and, for parsing this out for us. It's so hard I think, when everyone is ready to jump on people of your profession, to hold out a reasonable analysis.

    I hope Mr. Mehserle gets next to no time, although the sentencing guidelines give me no reason for that hope.

    Sincerely yours,
    Ann T. Hathaway

  18. I, like Ann, wish I had seen this earlier. My husband and I had a lengthy debate about this even though we live nowhere near the area.

    Basically, I agree with you wholeheartedly. There's no way in hell Ofcr. Mesehrle (sp?) acted intentionally to kill someone on a crowded platform. Let alone who was watching, that just adds more incentive for restraint. I don't think he should be criminally liable, but civilly liable all the way.

    His actions are no reason for people to break the law. His actions are no reason for people to scream racism. His actions are no reason for people to threaten his family (oh, his family wasn't on the BART platform you say?). We need more people who will fucking think things through a little bit instead of just reacting in a knee-jerk fashion.

    I guess that's why there are only so many people suited to be cops and firefighters and the like. I'm obviously very pro-LEO if you remember any of my other comments. But that isn't the ONLY reason I agree with you. Thanks for breaking this one down without media bias.

  19. Thank you for this well-thought, analytical approach to the reality of this case. Beautifully spoken.

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