What the Mehserle verdict says about how far we’ve come – and how far we have to go
By Rebecca Bowe and Alex Emslie
San Francisco Bay Guardian
Downtown Oakland became supercharged with emotion in the hours following the July 8 announcement of the verdict in the trial of former BART police officer Johannes Mehserle. And in the days that followed, the city remained electrified as residents struggled to make sense of the verdict, the rioting that occurred in its wake, and the historic significance of these developments.
But as the emotions dissipate, the issues behind the verdict and its aftermath remain — along with a series of questions that could determine whether this intensely scrutinized shooting of an unarmed man will lead to any changes in police practices or the justice system, as well as how the community will react if the judge imposes a light sentence.
After being moved out of the Bay Area because the publicity surrounding the case, a Los Angeles jury found Mehserle, a white officer, guilty of involuntary manslaughter for fatally shooting Oscar Grant, a 22-year-old unarmed black man who was detained on a BART train platform in Oakland on Jan. 1, 2009 following reports of a fight.
The verdict stood out as an almost unprecedented conviction of an officer in a case involving deadly use of force, and a departure from an all-too-familiar narrative in which tragedies resulting from police shootings bring no consequences for those responsible for pulling the trigger. However, in the wake of the verdict, Grant’s family members made it clear that they did not believe that justice had been served.
“This involuntary manslaughter verdict is not what we wanted, nor do we accept it,” Oscar Grant’s uncle, Cephus “Bobby” Johnson, said at a July 10 press conference at True Vine Ministries, a West Oakland church. “It’s been a long, hard road, but there are chapters in this war. The battle’s just getting started.”
To Grant’s relatives and a coalition of supporters who came together in response to the shooting, the trial is intrinsically linked to a long history of police brutality that occurs with impunity in cases involving youth of color. Meetings organized by clergy and community members have been held weekly in West Oakland over the past 19 months with the ultimate goal of bringing about greater oversight of the BART police and effective police reform on a broader scale.
On July 9, the U.S. Department of Justice announced that its Civil Rights Division, the U.S. Attorney’s Office, and the FBI have opened an investigation into the shooting and would determine whether prosecution at the federal level is warranted. Defense Attorney Michael Rains also made a motion to move Mehserle’s sentencing to a date later than Aug. 6, the date it was originally expected.
As the events of July 8 solidify into the Bay Area’s collective memory, attention is now shifting toward the next steps, and to lingering questions. Mehserle’s sentencing is key: will his sentence be light, reflecting the jury’s conclusion that he simply made a mistake — or will it include substantial prison time, reflecting the fact that he shot and killed an unarmed man without justification? Will he receive a lighter sentence than someone else without a criminal record found guilty of involuntary manslaughter simply because of his identity as a former officer with law enforcement organizations still in his corner? If Mehserle receives a long sentence, will it signify a shift in a justice system that many perceive as biased — or a stand-alone result of intense public scrutiny?
And as a result of all this, will the BART police finally get the type of training and serious civilian oversight they so badly need?
On the day the verdict was announced, thousands turned out for a peaceful rally near Oakland’s 12th Street BART Station and City Hall to hear speakers sound off about how their lives had been affected by police brutality.
As night fell, looting and rioting began to break out as the media covered scenes of rage set against small trash fires, causing anger and frustration for many Oakland residents who were dismayed and frightened by the chaos and disorder. More than 80 arrests were made, and dozens of stores including Sears, Whole Foods, Subway, Foot Locker, and numerous banks were damaged or looted. Police efforts to respond to the situation gave downtown city blocks the feeling of a war zone for several hours.
Reactions to the verdict, and the chaotic aftermath that followed, varied in the following days.
“The truth is that in American history, this is both a high point and a low point,” Olis Simmons, executive director of Youth UpRising — an Oakland nonprofit that works with youth of color — told the Guardian the following day. Speaking to the fact that an officer had been convicted in a case involving a wrongful death, she said: “I think it really is a signal that America is changing. This is the farthest we’ve ever gone.”
She said she hoped that people who were infuriated enough to react violently on the evening of July 8 would channel that energy toward constructive goals of pushing for a more satisfactory outcome. Before rallies and later rioting began that night, Youth UpRising sent people into the crowd to hand out glossy flyers proclaiming “violence isn’t justice.”
Davey D Cook, an independent radio journalist who extensively covered activity surrounding Grant’s death on a news site called Davey D’s Hip Hop Corner, said he thought the mainstream media was ready to have “a field day” with the riots, pointing out that they ran special coverage in the days leading up to verdict, building up anticipation of violent outbreaks. He also said that the scope of the rioting should be kept in perspective.
On his July 9 KPFA radio show, Hard Knock Radio, Cook added a salient point: “Broken windows can be replaced, and in two weeks, they will be. Stolen merchandise can be replaced, and it will be. But who’s going to replace this justice system that got looted? What insurance policy takes care of that?”
Just before the July 10 press conference, a town hall meeting was held inside True Vine Ministries. It was crammed full of supporters from Oakland, San Francisco, and beyond who listened as Minister Keith Muhammad — a representative of the Nation of Islam who has worked closely with the Grant family and traveled to Los Angeles to watch the trial — spoke at length. Muhammad was dressed immaculately in a suit and tie, and spoke with an air of fiery conviction.
“In the outcome of this case, there is surely more to be resolved that has yet to be addressed,” Muhammad said. He emphasized that “we’re not satisfied,” but added: “You should know that dissatisfaction is the foundation of all change.”
He raised a number of questions about the proceedings, asking why there was an absence of African Americans on the jury, and why the judge called an early recess when Grant’s teenage friend, Jamil Dewar, sobbed uncontrollably on the witness stand — but not when Mehserle sobbed on the stand. He noted that Grant’s friends were kept in handcuffs for six hours after witnessing Grant’s death.
In the days following July 8, much was also said about mainstream media coverage of the events, in particular the notion that “outside agitators” would come in and start trouble. “I do not like this divisive campaign to divide our community and protestors by calling people outsiders,” Oakland defense attorney Walter Riley wrote in a statement posted on Indybay.org. “This is a great metropolitan area … we expect people from all over the map to participate in Oakland. Calling people outsiders in this instance is a political attack on the movement. The subtext is that the outsiders are white and not connected to Oakland. From the days of the civil rights movement to now, the outsider labeling failed to address the underlying problems for which people came together. We must engage in respectful political struggle. I understand the frustration. I do not support destruction and looting as political protest.”
Mehserle’s conviction suggests the jurors believed his defense that he meant to draw and fire his Taser instead of his gun. In legal terms, settling on involuntary manslaughter, rather than second-degree murder or voluntary manslaughter, means the jury was not convinced beyond a reasonable doubt that Mehserle had malice toward Grant. But the jury found that he was criminally negligent when he failed to notice that he had his gun instead of his Taser in the moments before he pulled the trigger.
“In California, and really in any state, it is extremely difficult for jurors to convict a police officer. There’s an extreme reluctance to do that,” Whitney Leigh, an attorney who formerly worked in the San Francisco Public Defender’s Office, told us.
“There are undoubtedly instances where things like this have happened at some time in the past in California, that weren’t videotaped,” Leigh continued. “But for the videotape, if you walked 10 witnesses in who said that what happened, happened, no one would believe them if the officer took the stand and said that’s not what happened. The only reason there’s a case at all is that there’s a videotape.”
Leigh said he thought that unless the public develops a better awareness that police misconduct regularly occurs, “individuals are going to continue to be victimized by a system that effectively encourages officers to believe that they can act with significant impunity.”
Asked whether he thought it was likely that the federal government would decide to step in after concluding its investigation, he said it was a tough call. “The Justice Department is highly selective in the cases it chooses to prosecute for these crimes,” he cautioned. “That said, the kinds of cases they choose are ones that tend to have a lot of public attention and concern, so this fits within that category. Since it’s such a public case, it can have more of a widespread impact.”
If Mehserle was prosecuted at the federal level, the case would invoke Criminal Code 18 U.S.C. Sec. 242, used when a government agent or an individual acting under the color of authority denies someone their civil rights through force, threats, or intimidation, based on their race, gender, or another protected category.
Then again, the federal government’s decision over whether or not to step in may be linked to the degree of severity of Mehserle’s sentence.
California Penal Code Section 193 specifies the mitigated, midterm, and aggravated sentences for involuntary manslaughter: two, three, or four years in state prison, respectively. Because Mehserle’s case involves his personal use of a firearm, a sentence enhancement of three, four, or 10 years can be added to his prison time under California Penal Code Section 12022.5.
The judge will weigh circumstances to determine Mehserle’s sentence, possibly including his record as a police officer, his criminal record, age, remorse, and other factors, explained Jim Hammer, a former prosecutor and current San Francisco Police Commission member. The judge could toss out the sentence enhancement for personal use of a gun — and there’s a possibility he would deem extreme circumstances, such as his police record, to warrant probation rather than prison time. But Hammer said he thought both of those outcomes are unlikely.
“The judge will want to appear more than fair, not giving special treatment,” Hammer said. “Judges have to stand [for] election too, and in the light of the fact that somebody’s dead, I think the chance of probation is incredibly slim.”
Even if Mehserle receives a light sentence and then faces prosecution at the federal level, there is a chance that information about his past record as an officer — which was not admitted as evidence, thanks to laws that afford protections for police officers in these kinds of cases — would continue to be shielded. The protection applies even though Mehserle resigned.
“The average person just wants courts to be fair,” Leigh said. “And there’s an inherent unfairness in a system that allows a government or a police department that has all the resources and records to … use against you while shielding what might be much more serious and relevant acts by police officers. That’s one change that would be great if that did happen.”
A key legal issue in the case and any possible federal case is reasonable doubt, Hammer said. “Reasonable doubt is everything, and no one talks about it. They just say, ‘Oh, he didn’t have intent.’ That’s not the issue. Can anybody really, honestly say that they don’t have some doubts about his intent?”
At the same time, Hammer tempered his legal analysis with some understanding of Grant’s mother’s pain in light of what happened to her son and as the verdict was reached.
“If the dictionary had three pictures of murder for a picture image, one would be shooting somebody in the back who is unarmed,” he told the Guardian. “What she’s saying is not outrageous. If it were my relative I would probably call it murder too. She’s not crazy.”
As things continue to unfold with Mehserle’s sentencing and the federal civil rights investigation, civil litigation is in the works too. Wrongful death civil lawsuits will likely be filed against BART by Oakland civil rights attorney John Burris on behalf of Grant’s mother, as well as another suit by five friends who were with Grant the night he was killed. BART settled a suit filed on behalf of Tatiana Grant, the slain man’s five-year-old daughter, in January. That total settlement should amount to more than $5.1 million, according to a media release on Burris’ website.
During an interview after the July 10 press conference, Johnson was asked how Grant’s young daughter was doing. He responded: “Tatiana is still struggling with the issue of when her daddy’s coming home. So it’s going to take time for her, when she does understand that he is not coming back home.”
Outside Grant’s family, many observers hope to see systemic change come out of this tragedy. Assembly Member Tom Ammiano introduced legislation to create civilian oversight of BART police after the shooting, but was unhappy to see how it was watered down during the legislative process. Now he wants to see stronger reforms.
“I think Oscar Grant’s death was inevitable based on the lack of caring about how those police were trained,” he told us. “If you’re going to have the kind of independent civilian oversight that’s going to prevent a repeat of what happened to Oscar Grant, you can’t have this namby-pamby law. The mantra has been, well, this is better than nothing. Unless they’re made to do it … it’s not going to happen the way we want.”
A version of this story was published in the San Francisco Bay Guardian on July 14, 2012.
This story was honored by the California Newspaper Publishers Association and the San Francisco Peninsula Press Club in 2010.