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The People vs. Johannes Mehserle: Days 6 & 7 of the Preliminary Hearing

by Rekia Jibrin
(1) Inconsistencies in testimonies and court transcripts
(2) Aggressive and violent behavior
(3) Distortion of truth in testimony and the counter-narratives of video footage
(4) Racialized profanity and the language of excessive force
(5) Excessive force, excessive profanity to establish police authority
(6) Racializing youths and the aggressive use of weapons
(7) Misconduct in police procedure and practice
(8) Misrepresentation of youth resistance to justify excessive force:
(9) Misconstruing ‘threat’ and the misuse of legal semantics
(10) Fear of youths, criminalizing youths, to justify police violence
(11) “The blue wall of silence” and a contrived defense
The People vs. Johannes Mehserle
Preliminary Hearing
Alameda Superior Courthouse
Oakland, CA
June 3rd and 4th, 2009

Days six and seven of The People vs. Johannes Mehserle preliminary hearing ended with pained and emotional breaths of relief. After seven days of testimony from eighteen witnesses, Judge C. Don Clay ruled on June 4th, 2009, that without a doubt, Johannes Mehserle “intended to shoot Oscar Grant with a gun and not a taser.” Mehserle will stand trial for the murder and death of Oscar Grant. “God is our Justice, God is our Justice, God is our Justice, and justice prevailed today. Justice prevailed today.” The resounding words of Grant’s godmother on the microphone outside of the Alameda courthouse held the tears and exhaustion of Grant’s family members and friends. BART and Oakland Police, dressed in SWAT team uniform, silently looked on from across Oak Street in downtown Oakland. One of many community organizers, Tony Coleman, who was stationed outside of the Alameda courthouse each day of the preliminary hearing keeping Oscar Grant’s death in the minds of passerbys, stated, “it is time Oakland Police know that they too can face murder charges. Oakland is taking a stand for the world.”

The last two days of the hearing involved the testimonies of Officer Tony Pirone, media analyst Michael Schott, and BART Officer Foreman, as well as the concluding statements of the prosecuting attorney David Stein and Defense attorney Michael Rains. Seated within the courtroom were the families of Oscar Grant and Johannes Mehserle, Johannes Mehserle’s bodyguards, attorneys Burris and Rapoport (Tony Pirone’s lawyer), community members, note takers, reporters, and community leaders such as Dr. Ramona Tascoe, Jack Bryson, and Minister Keith Muhammed. Over six officers of the Alameda county Sheriff’s department held guard of the courtroom strictly removing anyone at the slightest disturbance. Despite known tensions between community and police officers, Oscar Grant’s family and supporters maintained friendly interactions with the Sheriff’s police officers who, with their vigilance in the courtroom, were courteous in return. The crux of the preliminary hearing’s rested on two legal arguments: (1) the legitimacy of BART police officers’ perception of deathly threat, and (2) whether Johannes Mehserle (and the other BART police officers) acted with intentional malice towards Oscar Grant.

Determining ‘deathly threat’ – Anthony Pirone’s Testimony and cross-examination

Four year BART Officer and former marine, Anthony Pirone had worked with Mehserle over ten times on a variety of graveyard shifts. Pirone stated that he was in fact a mentor and older brother figure to Mehserle, but that they did not socialize outside of work. Pirone’s testimony was full of contradictions. He remembered certain details clearly—to the exact positioning of his own body, in relation to Grant’s body; but, Pirone had difficulty remembering other details from January 1, 2009 when he was cross-examined by prosecuting attorney Stein. Pirone lied on the stand numerous times. He crafted his statements only after being shown video footage by BART and by his attorney, Bill Rapoport,, and after being coached to testify about certain details of the murder. When Pirone was asked questions that required a ‘yes’ or ‘no’ answer, he quickly deferred to an “I don’t know” statement so as not to further contradict himself. While on the stand, Pirone contradicted statements he made in transcripts from BART interviews (March 17th), BART’s walk-through (January 29th), and statements he made to the District Attorney. Numerous times, prosecuting attorney Stein read statements from interviews and supplemental transcripts that Pirone made, which contradicted what Pirone had just recounted on the stand. It was only when Stein read statements directly from the legal transcripts did Pirone admit, “if that is what the transcript says then that is correct.” At no point did Pirone directly state that his words were the truth, or that his statements were an accurate depiction of what occurred on the BART platform, on January 1, 2009. On two occasions, Pirone lost his calm under pressure. He flippantly made remarks about having one’s “ass kicked;” and, when Pirone described using a “hair-pull take down” to bring down one of the youths on the platform (Michael Greer), he stated that it would be difficult for the youth, pushed 3-4 feet off balance, to pull out a gun “when your head is in a wall.”

Pirone’s contradictions and verbal slip-ups gave the court a taste of his excessively violent and aggressive tendencies. It was evident that Pirone’s statements on the stand were to corroborate legal statements he made in a variety of investigations—statements that did not accurately narrate the facts of January 1, 2009 against other testimonies and court transcripts. For example, when Pirone was asked if he ever saw Grant’s hands behind his back before Grant was shot, Pirone stated “no.” However, when prosecuting attorney Stein rolled video footage and zoomed in on Grant’s hands behind his back in a cuffing position, it was then that Pirone responded to the image indicating “what appears to be two hands.” According to Pirone, Grant had called Pirone a “Bitch ass nigga”. When asked whether Pirone had yelled at Grant to, “sit the fuck down,” Pirone hesitantly stated, “probably yes,” but that he had used that language because he was in shock at the language that Grant had directed towards him. Throughout his testimony Pirone made numerous requests for permission to swear in the court, adding that he did not typically use language like that. Even though Pirone showed an unwillingness to repeat racialized profanity in the courtroom, transcripts, video, and audio footage show Pirone yelling at Greer to “get the fuck off my train,” yelling at Grant to “sit the fuck down,” and yelling twice at Grant who was face down on the platform, “Bitch ass nigga?! Bitch ass nigga?! Yeah!” Pirone later stated that he used profanity as a method of force, after it was established by the footage that Pirone had lost all self-control and had in fact been more of a threat to the youths on the platform. At no point did Pirone make the connection that his use of force elicited protective and defensive reactions from the youths on the platform on January 1, 2009, which Pirone described as combative stances that were threatening to the officers’ safety.

In his testimony, Pirone stated that he charged Grant and Michael Greer with Penal Code 148, a misdemeanor for resisting arrest. Despite Pirone’s claim that Grant was uncooperative and that he “never stopped with the profanities,” when Pirone was asked whether he remembered Grant speaking about having a child, Pirone stated that he remembered Grant saying that he had a four-year-old daughter but that he did not remember when the discussion occurred. This discredited Pirone’s claim that Grant was wholly uncooperative. Pirone continued on that Grant was not listening and Grant had taken a combative stance, with his fists clenched. Pirone also stated that Grant had kneed him in the groin and had thrown punches; moments later Pirone suggested that it might have been a kick or a knee, but that he was not sure. Pirone said that he had delivered an elbow to the upper portion of Grant’s body, after he was kneed or kicked, and that his defensive arm posture may have come into contact with Grant’s head. When asked why Pirone had not reported and charged Grant with Penal Code 243C (a felony) for assaulting a police officer, Pirone responded stating that “penal codes are semantics when someone is under arrest.” The reason Pirone never arrested Grant for a felony was because Grant never assaulted Pirone. Pirone’s portrayal of Grant as a threat was false. The video footage discredited Pirone’s claims showing that Grant did not advance towards him, nor did Grant knee Pirone, and in fact, Pirone showed no difficulty with walking around the platform after claiming that Grant had kneed him in the groin.

Pirone also stated that Grant’s hands were never visible and that Grant’s hands appeared to be at his waistband. He did not remember whether Grant landed on his back or on his side. He remembered that he had held Grant’s upper back and head down with his hands and that while Mehserle was straddling him, Grant was “flopping around trying to get away.” When questioned about whether Pirone had taken any action to prevent Grant’s head from striking the ground, Pirone stated that he did not remember. Surprisingly, however, Pirone remembered that he held down Grant with two of his hands and with his knee, later having to change position because Grant was squirming and had broken free. He ordered Grant, twice, to put his hands behind his back, and to stop resisting, but he never saw Grant put his arms behind his back. Pirone, who weighs 250lbs with his gun belt on, does not remember applying his full weight to Grant’s body. When questioned about whether Grant said anything with regards to being compliant or with regards to giving up, Pirone stated, “no”.

According to Pirone’s testimony, Mehserle stated twice that he was going to tase Grant, yelling, “get back, get back, Tony, Tony!” Pirone then “popped up,” recollecting that at some point Mehserle yelled that Grant’s hands were at his waistband, “I can’t get his hands!” stated Mehserle. Pirone stated that he still did not know if Grant had a gun, nor did he search Grant. When questioned whether Grant’s hands appeared to be out, Pirone stated “no,” and that he had gotten up right after Mehserle yelled, “get back, get back, Tony, Tony!” Pirone did not know why he got up. Before he had stood erect, he heard the gun shot. “I thought the taser malfunctioned,” Pirone stated, even though he could not see taser probes on Grant’s back. According to Pirone, when tasers are deployed, two probes puncture the skin, sending out voltage for five seconds upon penetration. Thin copper wires are typically visible at the end of the probes, but Pirone did not see those wires or the probes, instead he saw a black hold. When he looked up, Pirone saw a gun in Mehserle’s hands, pointed at Grant. Pirone stated, “I think I said, Oh shit!” The gunshot was not what he expected to hear, and there was a look of shock on Mehserle’s face. Pirone radioed in for a supervisor and for detectives. Pirone stated that he never searched Grant, nor did he radio in an officer-involved shooting, because he did not want other officers in the area to be distraught. Pirone stated that he thought radioing in for a supervisor was adequate enough to suppress the situation at hand. When asked if he attended to Grant, Pirone stated not until after he had made the request for a supervisor. He did say that he called in a code 3 medical, asking for a paramedic. As he was transmitting, Mehserle followed Pirone around. When Mehserle started to say something, Pirone told him to wait. As Pirone was walking towards Grant, Mehserle stated to Pirone that he thought Grant had a gun. At this point the train had left, but Pirone stated that he did not know who released the train, or when it was released. Who was attending to Grant in these moments?!

When asked whether Pirone had administered CPR to Grant, Pirone stated that BART officers do not administer CPR for people who are conscious and breathing. Apparently, Grant was conscious and breathing and Pirone was talking to him. Officer Garra (spelling?) came up and applied pressure to Grant’s back. His handcuffs were removed and “someone searched him,” although Pirone could not recollect who searched Grant. “There was something shiny protruding from the top left” portion of Grant’s chest. Pirone stated that he was holding Grant’s hand, trying to coach him to “stay with me” until paramedics arrived on the platform. Pirone later left with Officers Gibson and Domenici to the Lake Merritt Bart where he gave an interview in the late morning, and was later interviewed three more times in the following days.

It was evident from video footage and from his testimony that Pirone acted aggressively and violently with the youths on the platform—he treated all of the youths as though they were armed and guilty of a crime. Pirone already had his taser drawn and had hit the taser’s safety switch, even though the youths had done nothing to justify the withdrawal of the taser. Though Grant did not match the radio call description of “five African men” dressed in black, Pirone aggressively escorted Grant off the BART train. Even though Pirone did not recall pointing his taser at Grant, video footage concurred that Pirone had in fact pointed his taser through the BART train window, banging it on the window, pointing it at Grant who was still on the BART train before being taken out onto the platform. When questioned about why Pirone had not ordered or actually pat searched the three young men who were compliant on the platform, Pirone stated that because they were cussing at him he did not search them or ask them if they had any weapons. Pirone stated that even though Domenici arrived on the scene, he still did not search the youths because he did not want to put Domenici in a threatening situation. He stated that they were outnumbered and there were still two suspects (Grant and Greer) whom Pirone needed to detain because he feared that those two might be armed. When questioned about the wisdom of leaving his partner in a dire scenario with three young men—where there was a “high probability” that at least one of the young men was armed—Pirone stated that he chose not to pat search the young because they were cooperative since their hands were visible. This contradicted his earlier testimony that the young men seated on the platform were uncooperative and cussing at him. Furthermore, Pirone’s mental state about feeling threatened by youths he assumed had guns, does not make sense since he did not search or ask them about weapons. Pirone did not act on his mental state, which brings into question his entire testimony about facing, “deathly threat” on the “chaotic and very loud” platform scene where “fifty to a hundred people” were exiting train cars towards him.

Video footage shown in court indicated that the platform was not as chaotic as the BART officers’ testimonies suggest; nor were there over fifty people exiting train cars; at no point did any of the officers activate their emergency buttons; nor did the youths physically resist the officers as the officers suggested in their testimonies. Pirone’s inability to pat search, handcuff, or inquire about weapons, and his decision to abandon his partner with youths who had not been searched—to go after Grant and Greer whom he charged with a misdemeanor—indicated that Pirone in effect had no concern that Grant or any of the youths had guns. Instead, Pirone testified that there was a high probability that the youths might have had guns to make it appear that the shooting of Grant was justified.

Proving ‘no malice’ – Day Seven

On the last day of the preliminary hearing, Judge C. Don Clay denied defense attorney Rains’ request for Jackie Bryson (who was on his knees next to Grant) to take the stand. Rains wanted to use circumstantial evidence to prove no malice on Mehserle’s part, but Judge C. Don Clay ruled against Bryson testifying stating that all of the past witness statements were cumulative, and that no one else on the platform could tell the judge what Mehserle was thinking except Mehserle himself. Despite attorney Rains’ outrage and charge that the judge’s decision was fundamentally prejudicial, the judge ruled against Jackie Bryson taking the stand. Judge C. Don Clay pointed out that the state of fear on the platform claimed by BART officers contradicted their use and choice of weapons. Pirone had testified that he thought the shot was a taser malfunction, but he also claimed that there was a threat of a gun since Mehserle had told Pirone that he thought Grant was going for a gun, and since Pirone claimed Grants’ hands were at his waistband and not visible, thus calling for deadly force on the part of the officers. According to Judge C. Don Clay, the change in mindset about the use of a taser and the use of a gun pointed out by Pirone’s testimony could only be explained by Mehserle. Rains stated that he wanted to prove no malice by asserting that Mehserle was ill trained with a taser, since Mehserle only had three weeks of taser training. Rains had wanted to call a witness to the stand to testify about Mehserle’s motor skills but the request was denied as speculative by the judge, since it would be based on unsubstantiated opinion rather than concrete knowledge. Consequently, Pirone returned to the stand and two more witnesses—Michael Schott, a former Alameda police offer, now media analyst, and BART Officer Foreman—would testify.

In the cross-examination, prosecuting attorney Stein continued pointing out discrepancies in statements that Pirone made on the stand in comparison to statements he made in, a supplemental report for the January 29th BART walk-through at Fruitvale BART station, a BART interview on March 17th, and in a statement that Pirone gave at the Lake Merritt BART station the morning that Grant was shot. Pirone crafted his statements about Mehserle intending to use his taser, because of what he knew about the defense’s stand. Pirone made no mention of looking for taser probes in his written statements from the morning of the shooting to the March 17th BART interview. When questioned about why he didn’t mention that he thought the gunshot was a taser malfunction in his March 17th statement, Pirone responded with “I don’t know” statements to each of the discrepancies.

Stein resurfaced statements that Pirone made in the transcripts about being afraid of being shot by Grant while Grant was being held down. Stein questioned Pirone about how Grant was pushed to the ground. When he asked if there was any need for Grant to be thrown down face down to the ground, Pirone stated that “yes, he needed to be handcuffed.” It became apparent that the difficulty that the officers faced in handcuffing Grant had more to do with how he was thrown to the ground than to Grant being resistant or a threat. According to video footage, Grant was so forcefully pushed to ground, that his body was strewn over Michael Reyes’ leg. In fact, Grant’s body had to be repositioned to allow Reyes to remove his leg. According to the footage, when Reyes was able to remove his leg out from under Grant, then Grant was able to remove his hands. Thus, “to solve the problem of Mr. Grant, was for Mr. Reyes to remove his leg. Isn’t it true, Officer Pirone that you posed more of a threat to Oscar Grant then he ever posed to you!” exclaimed prosecuting attorney Stein. Pirone’s perjury, coupled with replays of video footage exposed the grossly, prejudicial treatment of the youths on the platform, as well as the unjust cover-up of police violence and racism towards poor people.

When Pirone got off the stand, Rains immediately called attention to close-up images of Mehserle pulling out his weapon. Rains was trying to make it appear that the manner in which Mehserle’s hand was positioned on his gun, was the manner in which Mehserle would have been pulling out a taser. After calling attention to the ‘accuracy’ of these images, Rains called Michael Schott to the stand. Schott, according to Rains is a “forensic image analyst.” He retired as a police officer in 1992 after serving on the police force since 1975. Schott came to testify about “spatial distance distortion” in the video footage captured by BART riders. Rains’ hoped to use Schott to discredit the validity of the cell phone footage courageously taken by BART passengers. However, despite Schott’s doctored synchronization of the footage, Judge C. Don Clay became impatient, correcting Schott’s use of “we” when Schott described what he saw on the footage. Judge C. Don Clay kept emphasizing that what Schott was describing was in fact what Schott was seeing and that the judge knew exactly what evident to himself from the footage. After tediously viewing video clips that Schott had spliced and magnified on the screen, Schott’s footage disproved Pirone’s testimony that the platform was chaotic and that close to 100 people were advancing towards him. Schott was shortly called off the stand.

Finally, prosecuting attorney Stein called BART Officer Foreman to the stand. Foreman spent five and a half hours with Mehserle, right after Mehserle shot Grant. Foreman testified that at no time during those hours or in the subsequent days did Mehserle say that he had mistaken his gun for his taser. Foreman received a phone call at 3:30am from a supervising BART officer. Mehserle had requested Foreman to come down to the Lake Merritt BART station because Mehserle was involved in an officer-related shooting. Foreman was given no details about the shooting. He stated that he called Mehserle from his car to see if he was okay, but Mehserle gave him no details either. Foreman had known Mehserle for 22 months; he had worked with Mehserle and they were friends. Foreman stated that he went to the Lake Merritt BART station to offer support to Mehserle. During the five and a half hours he was with Mehserle, Foreman stated that Mehserle said, “It was different,” and “he thought the person had a gun.” When questioned about the mistaken use of a gun for a taser, Foreman repeated that Mehserle did not say anything about meaning to pull out his taser. Foreman continued contact with Mehserle in the subsequent days, and Mehserle did not talk about mistaking his gun for a taser. During the time Foreman spent with Mehserle, he did not want Mehserle to go into the details of the event. It was clear from Foreman’s testimony that the “blue wall of silence” is a pervasive culture of silence enforced within policing, a culture that allowed time for attorneys and officers on the platform to craft a contrived defense to prove that Mehserle acted with no malice.

[The following statements made by the prosecution, the defense, and by the court judge have been paraphrased. Some lines are verbatim.]

Prosecuting attorney Stein’s statement

The first two days of the preliminary hearing had to do with reviewing video footage to consider whether there was enough probable cause to hold Mehserle for the criminal charge of murder. The elements of murder that establish probable cause entail: 1) that there was in fact the killing of one person by another, and 2) that there was malice. The video footage clearly shows the first element—that Johannes Mehserle shot Oscar Grant. Does the evidence establish reasonable grounds to determine a mental state of malice? The ‘malice’ that Stein discussed moved beyond the typical definition of malice as ill-will or hatred; in a court of law the definition of malice is the intent to kill. How do we determine intent? Stein stated that the act of the shooting itself most clearly determines that there was intent to kill. Michael Schott established on the stand that video is helpful in determining crime. According to Stein, witnesses may see the same event but may witness it differently according to the stress they are under. However, video is not subjected to stress. And the video footage that is available to the court shows Mehserle pulling a gun and shooting Oscar Grant III in the back. Frames from the footage show Mehserle looking at exactly what he is doing, looking at the holster of the gun. An officer looking at his or her weapon before using it, strongly demonstrates the intent to kill. Mehserle knows that you don’t pull your gun unless you intend to destroy someone and he did just that when he fired that gun into the center of Grant’s back.

Even though every effort was made by the defense to make the platform seem chaotic enough to elicit an exaggerated level of fear from the officers on the platform, we are still left with the videos that still show intent to kill. Furthermore, the record is silent about what Mehserle said moments after he shot Grant and days afterwards. Mehserle never said he made a mistake, or that he shot Grant with the wrong weapon. It is human nature to admit a mistake right away. Officer Foreman would have been that person to whom Mehserle would have admitted that mistake. The court is familiar with murder cases and with human nature. What was said on record is inconsistent with the human nature of someone who had just taken a human life. Stein asked the court to consider that Grant could have been placed on his knees as Jackie Bryson was instead of being thrown onto the floor; and Stein asked the court to consider that in fact Grant is seen holding back Bryson when Michael Greer was thrown against a wall. Grant was not a deathly threat as portrayed by Pirone and other officers. He was cooperative, he had restraint, and he made a conscious effort to make a statement about his daughter.

Defense attorney Rains’ statement

This is not a murder case. We are not determining innocence or guilt; we are determining probable cause. The issue is whether evidence indicates that Mehserle acted with malice—in a way that was dangerous where there was a conscious disregard for life. The available evidence indicates that Mehserle intended to tase the victim and not act with a conscious disregard for life. Mehserle was in control up until the fatal shot; he was in control of his mouth and his actions until he thought Oscar Grant was going for a gun. He stands up, as though he was deploying his taser, and it took him a long time to pull it out because he thought he was pulling out a taser. The officer announced his intention to tase, he made the motion, and a gun goes off. Not a single witness who testified said that they saw anything but horror on Mehserle’s face. There’s no malice because all of his actions were consistent with a man who was using a non-lethal weapon towards someone who was resisting. Rains stated that autopsy and forensic reports state that Grant was resisting because his right shoulder was off the ground. Rains’ account does not consider how Grant may have reacted to the forceful impact and penetration of the bullet. Nor does Rains’ account consider Pirone’s testimony that after being shot, Grant attempted to move, which was when Pirone stated that he attempted to calm Grant down and to keep him conscious. Albeit, given Pirone’s consistent contradictions, we ultimately must rely on video evidence that clearly demonstrates that Grant was not resistant.

Judge C. Don Clay’s statement

This was the first time Judge C. Don Clay experienced a case of an officer-involved shooting where the officer did not indicate what his state of mind was at the time of the murder. For Judge C. Don Clay, this case was not just about the videotape. This case boils down Mehserle’s state of mind. The only means of determining state of mind is from circumstances around the incident, and even that is truly speculative. There is no competent evidence to support the finding that the shot was an accident. The defendant stated that “I’m going to tase him,” then shoots him, then states that “I thought he had a gun/his hands were going for his waistband.” This is not sufficient evidence about Mehserle’s state of mind to excuse the act. What evidence supports that Mehserle acted in self-defense? If in fact he acted in self-defense then Mehserle would have to admit that the act was an act of intention. Oscar Grant was attempting to document the police misconduct when he pulled out his cell phone. Pirone responded with “can’t take pictures” and subsequently, Grant was aggressively pushed to the ground. Grant was portrayed as resistant—as “a deathly threat” to Pirone. The judge stated that he was uncertain that Grant posed a deathly threat enough to elicit the level of deadly force that it did from officers on the platform. These young men did nothing to warrant the use of deadly force. The judge discussed the elevated state of mind of the officers leaving gun related incidents in West Oakland and San Francisco. Adrenaline was rushing and there was a lot of uncertainty about what was happening on the platform. However, even though the officers described chaos and threats, they never pressed their emergency buttons. The judge referred to separate testimony from BART rider Daniel Liu and Pirone that described how Mehserle’s hands were positioned on his gun after he shot Grant. Their testimony cast doubt on Mehserle’s intention to use a taser, since one pulls out a taser with their weak hand, and since the positioning of Mehserle’s weak hand did not coincide with the positioning of his hands on his gun. According to Judge C. Don Clay, “There is no doubt that Mehserle intended to shoot Oscar Grant with a gun and not a taser.” The judge ruled that Mehserle would stand trial for murder. Consequently, Mehserle is be arraigned on June 18th, 2009 with a three million dollar bail.

Thinking and Acting Towards Justice

The People vs. Johannes Mehserle preliminary hearing rested on two arguments: (1) the lack of legitimacy of BART police officers’ perception of deathly threat, and (2) Johannes Mehserle’s (and the other BART police officers’) intentional malice towards Oscar Grant III. The issue of the taser was a contrived defense that was exposed and discredited by evidence, testimonies, and by the prosecution and judge’s statements. To suggest that Grant was responsible for his own death is unconscionable and inconsistent with the evidence presented. Mehserle’s actions were consistent with facts that support his intent to kill. The violent, unjust, and brutal misconduct of Anthony Pirone, Johannes Mehserle, and other officers on the platform, brings to light another crucial question: Should Mehserle be the only officer who stands trial for murder?

The lack of restraint in the aggression and violence perpetrated by Tony Pirone and other BART officers on the platform visually captured a premeditated culture of racial profiling and antiblack racism found within policing in Oakland, and in the United States. The creation of a BART civilian review board that lacks the power to independently investigate, charge, and expose the fatal violence of this premeditated culture of racial profiling and antiblack racism within policing does more for BART’s community relations PR, and very little for community-based, organizing efforts to impact residents who have lost faith in a system that too often rules in favor of police officers, and against poor people. At Oakland’s Citizens’ Police Review Board’s Policy Forum on Officer-Involved Shootings held on December 11, 2008, an estimated 45 reported officer-involved shootings occurred from 2004-2008 in Oakland. The ages ranged from 16-50 years old, and victim involved 36 were African American males, 7 were Hispanic males, and the remaining 2 involved an Asian male and African American female victim. None of the officers were criminally prosecuted and none received any disciplinary measures, yet the Oakland City Attorney’s Office has paid out $115,000 with four cases still open, and the shootings were “deemed to be in compliance with Departmental policy.” According to Amnesty International, patterns of human rights violations across the United States include “police beatings, unjustified shootings and the use of dangerous restraint techniques to subdue” targeted suspects of whom “racial and ethnic minorities were disproportionately the victims of police misconduct, including false arrest and harassment as well as verbal and physical abuse.” Too little has been done to check racist, police violence, or to “ensure that police tactics in certain common situations minimized the risk of unnecessary force and injury.”

While the issue of policing may appear to be a civil rights issue, unjust policing tactics towards people already subjected to discrimination within the criminal justice system, is a human rights issue. There are too many youths and adults who are on probation and/or on parole in our city. These young people are unjustly and unduly targeted and brutalized by law enforcement. By treating youths of color as though they are criminals first, racial profiling within policing is a legalized form of state-based racism and thus, has been a human rights matter. If we understand racism as ‘‘the state-sanctioned and/or extra-legal production and exploitation of group-differentiated vulnerabilities to premature death,” we can understand how a premeditated culture of racial profiling and antiblack racism functions to oppress and premature the deaths of young men, like Oscar Grant at the hands and guns of police. By failing to take adequate measures to prevent or punish human rights violations by police in our society, local, state, and federal authorities are in breach of international human rights obligations, and become implicated in sanctioning police violence and racism. “It is time Oakland Police know that they too can face murder charges.” Oakland must take a stand.

Rekia Mohammed-Jibrin
Human Rights Monitor
Alameda Superior Court House
June 6th, 2009
Oakland, CA

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