BART officer said he grabbed Gun instead of Taser

[nightsonge]

Former BART officer recounts fatal shooting
Johannes Mehserle sobs as he testifies at his murder trial that he mistakenly drew his handgun instead of an electronic stun gun while having trouble handcuffing a passenger.
June 26, 2010|By Richard Winton, Los Angeles Times
Sobbing as he testified, a former Bay Area transit officer for the first time offered his account of how he shot and killed a 22-year-old passenger, saying he mistakenly pulled out his handgun instead of an electronic stun gun and fired a single shot before realizing his mistake.

Johannes Mehserle, 28, testified that he was having trouble handcuffing Oscar Grant III and only intended to use the stun gun to make the man comply with his orders.
"I didn't think I had my gun," he testified. "I remember the pop. It wasn't very loud, it wasn't like a gunshot, and I remember wondering what went wrong with the Taser.

"I remember looking to my right side and seeing my gun in my right hand," he said of his .40-caliber pistol. "I didn't know what to think. I just thought it shouldn't have been there."

Mehserle said he looked down at Grant, who was lying on the floor of the Bay Area Rapid Transit station platform. "Mr. Grant said, 'You shot me,' " Mehserle testified.

Mehserle's trial was moved to Los Angeles because of pretrial publicity and the anger that the fatal shooting stoked in Oakland, where Grant was shot at the Fruitvale station. Mehserle is white and Grant was African American.

But moving the trial out of the Bay Area has hardly dampened emotions, which ran high throughout the former BART officer's testimony. Mehserle has acknowledged killing the unarmed passenger, but has pleaded not guilty to murder charges.

The shooting was videotaped by several train passengers and has drawn comparisons to the trial of four Los Angeles Police Department officers charged in the 1991 videotaped beating of Rodney King.

Grant's mother, Wanda Johnson, walked out of the courtroom during his testimony. And one spectator, Timothy Killings, 24, of Oakland, stood up and yelled: "Maybe you should save those … tears, dude." He was later arrested.

Mehserle said he tried to calm a hysterical Grant after the shooting.

"I was just trying to keep his eyes open," Mehserle testified.

Then Grant's eyes closed, he said. "I was scared," he said. "This wasn't supposed to happen. I remember putting pressure on the [gunshot] hole.

"I didn't intend to shoot Mr. Grant," he added. "Just Taser him."

Mehserle said the shooting unfolded when Grant tensed up as he tried to handcuff him and Grant fell to the floor. He said he ordered Grant to give him his hands but that, instead, Grant jammed his right hand into his right-front jeans pocket and began digging for what Mehserle said he believed could be a gun.

But under cross-examination by Alameda County Deputy District Atty. David Stein, Mehserle acknowledged he didn't tell anyone else that night that the shooting had been an accident.

"You never told him you meant to Taser him, did you?" Stein asked, referring to Grant.

"No sir," Mehserle replied.

Mehserle testified that he also briefly handcuffed Grant after shooting him. "I needed to search him," he said.

Mehserle said he did not warn other officers that Grant might be armed because he was not fully convinced Grant had a gun.

Asked by Stein if he had come to court prepared to testify, Mehserle said: "I think about this event every single day of my life."

Mehserle completed his testimony Friday, but other witnesses are expected to testify early next week. The case possibly could go to the jury late next week

[DefensiveCarry.com]

[jbum]

I hope he is convicted.

[HotGuns]

I hope that no one here that passes judgement on him is ever in a situation like that.

[Barren]

I remember the same situation occured some time ago not far from where I lived. In that case, it was not caught on film, the police officer was Hispanic (and female) as well as the perp, unlike this one where the cop is white the perp black. In the Hispanic case, the woman is still a cop.

[Barren]

Here is a link to the situation I just described. Not the same racial tension as the Bart cop situation.
Madera Tribune

No charges against officer

Saturday, May 03, 2003
By Glenna Jarvis - The Madera Tribune


Assistant district attorney for Madera County, Eric Wyatt, speaks during a press conference Friday regarding the officer involved shooting of Everardo Torres last October.
Marcie Noriega, the Madera police officer who says she mistook her service weapon for her Taser and accidentally shot and killed Everardo Torres, 24, of Madera, will not face charges for the shooting.

Madera police officers responded to a disturbance call at an apartment complex in the 2100 block of North Schnoor Avenue the night of Oct. 27, 2002. Shortly after, they requested assistance from sheriff's deputies.

Nine officers, including two deputies, were attempting to break up a party that had gotten out of hand when the incident occurred, according to earlier reports. Three individuals were taken into custody, including Madera Torres.

Torres was handcuffed and placed in the back of a police vehicle and, according to reports, attempted to kick out the vehicle windows. In an attempt to subdue Torres, Noriega intended to use her Taser, but drew her 40-caliber Glock instead and fired a single shot into Torres' chest, killing him.

"In a 1,100-page report, District Attorney Ernest LiCalsi told Madera Police Chief Kime ... (the DA's office) would not be filing charges against Marcie Noriega," Assistant District Attorney Eric Wyatt read from a prepared statement during a press conference Friday afternoon.

Wyatt explained that without the intent of criminal negligence, criminal charges against Noriega could not be sustained.

"The required aggravation ... did not occur in this case," he said.

"This decision was not reached quickly or without a tremendous amount of reflection," Wyatt said, adding that LiCalsi "strives to make decisions that - under the law - are just."

"It is the opinion of the Madera County District Attorney's office - under the law of California - not to file charges," he said.

Wyatt said the decision was based on all the evidence and statements of the witnesses at the scene.

"The man seated in the car next to Torres said he knew it was an accident when it happened," Wyatt said. "There is not a single piece of evidence showing intent on the part of Marcie Noriega."

He added that the decision was not made without many questions and "many sleepless nights" as he and LiCalsi conducted the investigation, and while he understands the moral issues involved - the fact that a life was taken - they could only seek justice as established by law.

"Despite what I may feel, it is our job to follow the law," Wyatt said.

Wyatt said that the fact Noriega is a sworn peace officer did not factor into the decision.

"There is nothing in the law that makes the standard any different," he said.

Earlier in the day, Wyatt sent two investigators to the Torres house to deliver a letter informing the family of the decision, he said, but he had no idea if they were successful in making that delivery.

The complete report has been forwarded to both the Federal Bureau of Investigation and the State Attorney General's office for review, Wyatt said.

"We've made everything available to them," he said. "We were committed to turning everything over to them so it could be double checked."

The night of the shooting, Torres had a blood alcohol level of 0.15 and his blood contained tetrahydrocannabinol, the active chemical in marijuana, according to the autopsy report.

Madera Police Department guidelines states the M26 Taser is a "control device to be used to control violent or potentially violent suspects" and "should be worn when officers are responding to calls for service that may ... necessitate the use of the Taser."

The M26 Taser can either be used in direct contact with the subject, or by firing projectiles which embed in the subject's flesh. The projectiles can be removed by the officer unless lodged in a highly sensitive area, according to the guidelines.

Steve Tuttle, director of Government and Law Enforcement Affairs for Taser International, explained that the taser causes central nervous system override in which all conscious thoughts are overridden by subconscious thoughts in order to protect oneself from further perceived damage.

Attorney Arturo Gonzalez filed a $10 million lawsuit in federal court against the City of Madera on Nov. 4 citing negligence, excessive force and violation of Torres' civil rights.

In February, the Torres family changed attorneys, and hired Johnnie Cochran, the attorney who represented O.J. Simpson during the trial for the murder of his wife, Nicole Simpson.

Bruce Praet, the attorney representing the city, said he and Gonzalez had established a good working relationship, and he feared that the family rejected Gonzalez because his "target wasn't what they wanted."

Prate said he believed that the monetary value Gonzalez attached to the case has been exceeded by the Cochran firm, and the family had been given "unrealistic expectations" by the firm as to what the case is worth.

[ArmyCop]

I remember seeing the video in the news. Very bad mistake indeed.

[nutz4utwo]

it is a plausible explanation, but still criminal. He is going to jail. I don't see the murder sticking, but I do see a negligent homicide or manslaughter verdict.

[ctsketch]

really? can't tell the difference between your service weapon and a taser? they aren't even in the same place!

[SIXTO]

As someone who carries both daily, and trains hundreds of cops in the same subject matter, I can see it happen with poor training.
And this is not a murder case. Manslaughter yes. But not murder.

[MattInFla]

This sort of thing is why many departments, including my local SO, requires that the Taser be carried in a cross-draw position, to physically separate it from the firearm.

Matt

[AtlantaSW40]

i guess that's what happen when you're undertrained, under the stress of the sitaution, and carry a plastic gun that has the same pistol grip as your plastic laser.

I mean he looks confused as hell in the video after he pulls the trigger. I honestly think he just reached for the wrong thing in the heat of the moment.

[mprp]

it is a plausible explanation, but still criminal. He is going to jail. I don't see the murder sticking, but I do see a negligent homicide or manslaughter verdict.

Yup, that's what I see. Tragic for the kid, family and the cop. I think before people decide to struggle with LEO's they need to realize that bad things can happen during a struggle even if it wasn't intentional. Accidents happen!

[Janq]

it is a plausible explanation, but still criminal. He is going to jail. I don't see the murder sticking, but I do see a negligent homicide or manslaughter verdict.

Agreed.

To be murder in most states its got to be pre-meditated or taking of life with malice.
He seems to have had no malice nor intent.
Even still he took a life even as it was by accident, and that well fits the definition of negligent homicide if not outright manslaughter (murder in the second degree).

This is though sad for everyone.
I constantly advise friends and family members if/when pulled by the police do not at all resist. Period.
Put on your Sunday best face and if you are caught red handed doing wrong and you are going to be cuffed then well just let it happen.

The lesson to learn here is; Do not resist....As in doing so you literally gamble your life into some other mans hands.

- Janq

[ep1953]

Allow me to go against popular opinion.

If the suspect had not resisted and allowed himself to be handcuffed he would still be alive.

I would vote to acquit.

[Guns and more]

Allow me to go against popular opinion.

If the suspect had not resisted and allowed himself to be handcuffed he would still be alive.

I would vote to acquit.

Resisting doesn't deserve the death penalty.
Be careful what you wish for, there are too many rogue cops now.