Lawyer: Cop who hit BART victim was provoked

Sunday, February 1, 2009

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The lawyer for a BART police officer who was videotaped striking passenger Oscar Grant, shortly before another officer shot Grant dead last month, defended his client Saturday, saying Grant provoked him.

Meanwhile, the president of the BART police officers' association released a letter criticizing leadership at the transit agency's police department and calling for more training for the force.

Bill Rapoport is representing Tony Pirone, the BART police officer who hit Grant in the head minutes before Officer Johannes Mehserle shot Grant in the back as he lay facedown on the Fruitvale Station platform early New Year's Day.

Rapoport said Saturday that Grant provoked the blow by trying to knee the officer in the groin - the first explanation offered on Pirone's behalf since his name surfaced a week ago. Mehserle, who has left the BART force, is charged with murder.

Pirone's blow was "the exercise of reasonable force to overcome resistance by someone who was not just resisting but striking at the officer," said Rapoport, who was retained by a statewide police organization to represent Pirone.

A cell-phone video that aired on KTVU-TV Jan. 23 showed an officer, later identified as Pirone, approaching Grant and hitting him as the 22-year-old Hayward man stood with two other passengers against a wall on the platform.

A lawyer for Grant's family has called for Pirone's prosecution. BART's general manager has ordered its police chief, Gary Gee, to conduct an internal affairs investigation.

On Saturday, the president of the transit agency's police officers association denounced Gee's handling of the shooting.

There has been a "vacuum of leadership from the chief," Jesse Sekhon wrote in a letter to union members.

BART should improve officer training with both guns and Tasers, Sekhon wrote. He also said he had recently reached out to NAACP leadership and is in the process of putting together a meeting "to come together to provide much-needed healing."

In an interview, Sekhon said BART waited two weeks before offering counseling to the officers, and Gee and other police managers have refused to attend daily briefings. He said police brass bungled the investigation, but officers are taking the brunt of the public criticism.

"We're disappointed that we're being held responsible for the decision making of others," he said. "As officers, we're not in control of the investigation. We feel like we're being thrown under the bus."

Gee said BART's investigation of Mehserle was strong and contributed to his quick charging.

While admitting that the agency made other mistakes in the aftermath of the shooting, Gee said that every aspect of the incident will be examined, and that "if there are any red flags, we will improve upon them. If need be, we will amend our policies and our training."

Gee said on-site counseling was made available to officers within two days of the shooting.

Asked about criticism from the officers' union, Gee said, "As police chief, I can't please everyone and do a good job at the same time."

Mehserle, meanwhile, remained in jail Saturday on $3 million bail. Defense lawyer Michael Rains had argued for a much lower bail Friday, saying Mehserle had apparently thought he was firing his Taser.

A Superior Court judge was openly skeptical, saying Rains was relying on contradictory statements from Pirone - that Mehserle first told him he was going to use his Taser on Grant, but later said he thought Grant had a gun.

Rapoport said Saturday he couldn't discuss Pirone's observations of Mehserle but believes Rains quoted Pirone accurately. The 36-year-old officer, who joined the BART force four years ago after two years as a police officer at Lawrence Livermore National Laboratory, has spoken to investigators from BART and the district attorney's office, Rapoport said. Pirone is on paid administrative leave.

Rapoport said Pirone, the first officer at the platform after a report of a fight on a train bound for Dublin/Pleasanton, stopped Grant and four other passengers who matched a police dispatcher's description and ordered them to the wall where his partner, a female police officer, was waiting for them. Grant and another man headed back into the car, so Pirone pointed his Taser at Grant through the open door, escorted him to the wall and returned to the car and pulled out the fifth man, Rapoport said.

As Pirone was handcuffing that man, the lawyer said, he heard shouting from the wall and saw three of the men, led by Grant, advancing toward the female police officer, who was trying to push them away. Pirone hurried over, grabbed Grant, who was yelling and cursing, and told him to sit down, Rapoport said.

He said a frame-by-frame examination of the video, conducted by a forensic analyst he hired, shows what happened next: As Pirone tried to push Grant down, Grant twice "takes his right knee and strikes at Pirone's groin." At that point, Rapoport said, Pirone swung his right forearm - not his fist, which officers are trained not to use unless lives are at stake - and hit Grant in either the shoulder, the neck or the head.

Mehserle and other officers arrived soon afterward, Rapoport said, and Pirone told them Grant and another man were under arrest for resisting and obstructing an officer. He said Grant, still "confrontational," stood up, and Pirone grabbed him again and pulled him down.

"There was nothing Pirone did that was criminal," Rapoport said, and he doubts the officer will be charged.

But attorney John Burris, who has filed a $25 million claim with BART on behalf of Grant's mother and 4-year-old daughter, said Saturday that he has reviewed the video and talked with witnesses and thinks Pirone "assaulted Mr. Grant without provocation" and should be prosecuted. He said he also plans to add Pirone as a defendant in his civil case.

About 50 protesters, nearly outnumbered by police, gathered in downtown Oakland on Saturday night. They said they want to see Mehserle and Pirone prosecuted, Gee fired and the BART police force disbanded.

Chronicle staff writer Demian Bulwa contributed to this report. E-mail the writers at and

This article appeared on page B - 1 of the San Francisco Chronicle



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