Until now, the courts and the public have placed the responsibility for Oscar Grant's death entirely on the BART police officer who shot the unarmed passenger on an Oakland train platform. But a federal appeals court ruling could shift some of the blame to the officer's supervisor and perhaps the transit system itself.
Former Officer Johannes Mehserle, who fired the shot that killed Grant on Jan. 1, 2009, served 11 months in prison for involuntary manslaughter, and is also a defendant in the damage suit by Grant's father and four of his friends. While allowing claims against Mehserle to go to trial, the Ninth U.S. Circuit Court of Appeals in a ruling last week stressed the role of the lead officer at the scene, Anthony Pirone.
Based on a plausible view of the evidence, the court said July 30, Pirone had no legal justification for forcing Grant and a friend off of a train and onto the platform, where the fatal encounter occurred.
Detention called unlawful
Attorney John Burris, who has represented Grant's family in earlier proceedings and represents his friends in the current case, said the ruling confirms what he has maintained all along: "But for (Pirone's) unlawful detention at the outset, Oscar Grant would be alive today."
The practical impact of that conclusion, if endorsed by a jury, would probably be minimal for Pirone and others involved in the current suit. Both Pirone and Mehserle are defendants, and BART, as their former employer, would be responsible for any damages resulting from their conduct on the job.
But a finding of liability by a supervisory officer such Pirone would move the dial of responsibility closer to BART and its leadership.
Pirone wielded more authority than Mehserle, whose actions might be discounted as those of an inexperienced, low-level officer, said Robert Weisberg, a Stanford criminal law professor. Generally speaking, he said, an employer "shouldn't be responsible for the actions of a rogue employee, but for negligent supervision."
Pirone's lawyer, William Rapoport, did not return calls seeking comment. In sworn statements in the case, Pirone has said he feared for his safety, and he could try to justify his actions to a jury if the civil suit against him goes to trial.
The events leading to Grant's death began as Pirone responded to a report of a fight on the train just before it reached Oakland's Fruitvale Station in the early morning hours of New Year's Day.
He approached a group of young black men on the platform and pulled his Taser on them. When three of the men started to walk away, he ordered them to sit down, the court said.
Two others in the group, Grant and his friend Michael Greer, re-entered the train, but Grant, who had been involved in the fight, got out when Pirone shined his Taser beam on him. The officer then pulled Greer from the train, yanking him by the hair and knocking him down when Greer spun to face him, the court said.
Pirone later slugged Grant in the head, saying he had seen Grant place a hand on the officer's partner, Marysol Domenici. At that point, Pirone ordered Mehserle to arrest Grant and another man. Mehserle then pulled Grant down, and Pirone and Mehserle pinned him to the platform, facedown.
Training failed, officer says
As Grant struggled -- to breathe, civilian onlookers said, or to resist, the officers testified -- Mehserle arose, told Pirone to step aside, pulled out his gun and shot Grant in the back. Mehserle then handcuffed and searched Grant before the 22-year-old Hayward man was taken to a hospital, where he died.
Mehserle testified that stress and inadequate training caused him to mistake his dark service revolver for the yellow Taser stun gun he thought he was shooting. The jury in his criminal case accepted his explanation and convicted him of manslaughter rather than murder.
Pirone was not criminally prosecuted. He was fired after the incident and is appealing.
BART has paid $2.8 million in settlements to Grant's mother and daughter, and could be assessed additional damages in the suits by Grant's father and the four friends, who spent hours in handcuffs at the transit agency's police station after the shooting.
Like the judge in Mehserle's criminal case, the appeals court last week rejected the former officer's claim that the shooting was legally justified and said it should go to the jury. The court also said a jury should decide whether Pirone had any reasonable basis for detaining Grant and his friends.
Courts usually give officers broad leeway in such heat-of-the-moment decisions, said David Levine, a law professor at UC Hastings in San Francisco.
But in this case, the appeals court said, evidence already presented to a federal judge would entitle a jury to conclude that Pirone had no reason to believe the men had committed any crimes, had no reason to hold them for investigation, and "had no lawful basis to detain the group."
The court cited U.S. District Judge Marilyn Hall Patel's findings in 2011 that Pirone had never asked the train operator if anyone was injured, if any weapons were used, if anyone had come forward to talk about the fight, or if the operator could identify any of the five men as participants. Pirone, by his own admission, never entered the train himself or looked for evidence of any crimes, Patel said.
'No apparent threat'
A jury could rely on that evidence to conclude that Pirone had no reason to detain Grant and his friends, Judge Mary Murguia said in the appeals court's 3-0 ruling.
"Pirone encountered a group of black men who were doing nothing but talking when he arrived" at the Fruitvale Station, were not committing any crimes, and posed no apparent threat that would justify his pulling a weapon and holding them, Murguia said.
Copyright 2013 - San Francisco Chronicle
McClatchy-Tribune News Service
