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Justice for Johannes Mehserle

The involuntary manslaughter verdict for Oscar Grant's killer may not be popular, but it is appropriate.

Early in the morning of January 1, 2009, in a now infamous incident captured on video by dozens of cell phones and replayed across the globe, Bay Area Rapid Transit (BART) Officer Johannes Mehserle shot and killed 23-year-old Oscar Grant as Grant lay on his stomach on an Oakland BART platform. Last week, a Los Angeles jury found Mehserle guilty of involuntary manslaughter. Because the jury had the option to convict Mehserle of second-degree murder, and perhaps because the jury contained no blacks (Mehserle is white, Grant was black), the verdict has enraged civil rights groups and sparked protests and rioting in Oakland. The Department of Justice is now looking into the possibility of trying Mehserle a second time under federal civil rights law.

The jury got it right. There's ample evidence that Mesehrle was negligent—likely criminally negligent. There's evidence that Mehserle and his fellow officers may have used excessive force the night Grant was killed. There's also evidence that Mesehrle's fellow officers tried to cover up the shooting by confiscating the cell phones of BART passengers who recorded the incident (generally speaking, police can ask for your name and address to later obtain a court order for video of evidentiary value, but they aren't permitted to take your cell phone or camera at the scene). There's evidence that one of Mehserle's fellow officers used a racial slur just before Grant's death. But there simply isn't any evidence that Mehserle is a murderer.

Mehserle claims he mistakenly grabbed his gun while reaching for his Taser. This is not only plausible, it's the explanation most supported by the evidence. In the video, Mehserle's body language just after the shooting indicates surprise and shock. That's supported by witness statements that Mehserle exclaimed "Oh my God!" several times after he fired, and then put his hands to his head, a gesture that indicates disbelief. These aren't the actions of a man who intended to kill someone. There's simply no basis for the accusation that Mehserle intentionally executed a man in front of dozens of witnesses.

Under California law, a defendant must have acted with malice in order for a killing to be elevated to murder. To find malice, a jury must determine that the defendant committed the act that caused the death, that the "natural and probable consequences of the act were dangerous to human life," that "at the time (he/she) acted, (he/she) knew (his/her) act was dangerous to human life," and that "(he/she) deliberately acted with conscious disregard for (human/ [or] fetal) life."

Even by Mehserle's account, he used a Taser on a man who was lying on the floor and on his stomach. Early reports indicated Grant was handcuffed, though it now appears he wasn't. The state does say Grant was "restrained," though Mehserle and other officers at the scene (two of whom have also been fired) say he was also resisting. The entire incident arose after an early morning fight on the train. It's clear from the videos that the train station that night was a volatile scene. Mehserle's decision to use his Taser may not have been the correct one, but there doesn't seem to be any evidence that it was a mistake that rises to the level of reckless disregard for human life. (Whether the Taser itself is "dangerous to human life" is a continuing debate.) Mehserle's actions seem more like those of a young, poorly trained cop overwhelmed by what was going on around him.

Mehserle shouldn't ever work as a cop again. And he should be sending a portion of his paycheck to Oscar Grant's family for the rest of his life. Grant's family should also get money from the city of Oakland, which failed to train Mehserle properly. But involuntary manslaughter sounds about right. A mistake shouldn't send a man to prison for the rest of his life.

The anger at Mehserle's conviction on a charge short of murder stems from the perception that cops who allegedly commit crimes are held to a lower standard than regular citizens accused of the same crimes. The police certainly have more protections. Police officers accused of crimes, particularly while on duty, are typically first internally investigated by their colleagues before they face criminal charges. In many jurisdictions, those investigations are guided by rules negotiated by police unions that give cops extraordinary protections. (Some states, Louisiana for example, even have a codified "policeman's bill of rights.") The infamous "blue wall of silence" adds to the perception that cops can't be trusted to protect us from other cops.

There's also the appearance of a double standard. Mehserle's defense is that he made a mistake. In the heat of the moment, Mehserle inadvertently reached for the wrong weapon. But Mehserle had training. He had other cops there backing him up. If we're going to be sympathetic to him, we should also show some sympathy and understanding for people like Cory Maye and Ryan Frederick, both of whom were tried for murder for killing police officers who broke into their homes at night. Both Maye and Frederick say they mistook the raiding cops for criminal intruders. Maye was convicted of capital murder. Frederick's jury opted for voluntary manslaughter.

That said, Mehserle shouldn't be required to suffer the accumulated anger stemming from other problems in the criminal justice system. He should be convicted of—and punished for—the crime the evidence presented at his trial proves he committed, nothing more. His jury did the right thing.

Radley Balko is a senior editor at Reason magazine.

Coeus|7.12.10 @ 4:42PM|

How can you possibly equate being stormed in the night and reacting like a normal human to shooting a kneeling man in the back and trying to cover-up the crime? I was pretty much with you when you made the technicality in California law argument, but comparing this to Cory Maye and Ryan Frederick is going a bit too far.

Gummy Bears|7.12.10 @ 5:01PM|

i didnt view it as he was equating the two. Merely that if your going to give the cop the benefit that it wasnt intentional how can you not extend the same benefit to Maye and Frederick.

|7.14.10 @ 10:56AM|

If the perp would have just not fought none of this would have happened. I am not always on the side of the cops (i.e. not allowing video/audio taping in public), but if you fight a cop in uniform you have to expect the worse. If there is racial outrage it should be over the fact that blacks are 13% of the population but commit nearly 40% of the violent crimes while 90% of black victims' crimes are committed by blacks.

http://thugreport.com/

|7.12.10 @ 6:54PM|

Radley has done more to expose the stories of Maye and Frederick than anyone else out there. He wasn't equating the incidents, he was pointing out that some measure of forgiveness for deadly mistakes in the heat of the moment should be granted more consistently.

Which I think is a pretty damn good point.

Coeus|7.12.10 @ 7:19PM|

Ok, I read it too fast. My mistake. If you give the benefit of the doubt to the cop, then you should definitely give it to them. I was reading it as a defense of the cops actions (which, given the context of the article, still seems possible) and while the jury has an excuse (California law) the cop doesn't.

Jenn|7.12.10 @ 7:50PM|

Huge distinction - reasonable deadly mistakes versus unreasonable ones. Cory Maye's was not only reasonable, it was to be expected of a human being. Mehserle's was completely unreasonable. Even if he thought it was a taser, it was unreasonable to use a taser. Even if it HAD BEEN a taser that was used on Grant, it would have been unreasonable.

Let's pretend Mehserle did not have on a uniform for a minute. Let's say it was Joe Schmo, who saw an argument going on, went over, yanked Grant off the wall, subdued Grant, made him lie on the ground, kneed him in the neck, then "accidentally" shot him in the back. Would anyone by any stretch of the imagination say that this was a reasonable act that unfortunately led to an innocent death?

jacob|7.12.10 @ 9:41PM|

+1

|7.13.10 @ 3:43PM|

But we cannot pretend in such a manner with any intelligence. To my knowledge, Mr. Schmo is not a sworn peace officer, commissioned with powers of arrest and actually required to interdict the actions of citizens physically whenever his professional judgment so dictates. Beyond this, if Mr. Schmo would have come to the aid of an officer dealing with Grant's physical resistance, and in the course of offering his assistance inadvertently discharged a firearm into the victim, then Mr. Schmo may rightfully be convicted of nothing more than Involuntary Manslaughter. Radley is correct; the jury got this one precisely right.

Gummy Bears|7.12.10 @ 4:43PM|

" If we're going to be sympathetic to him, we should also show some sympathy and understanding for people like Cory Maye and Ryan Frederick, both of whom were tried for murder for killing police officers who broke into their homes at night."

This

Cannot be highlighted enough

|7.12.10 @ 4:47PM|

He should be convicted of—and punished for—the crime the evidence presented at his trial proves he committed, nothing more.

Agreed. However:

If I shot a man in the back while restraining him (say, for instance, he tried to mug me), would I get away with involuntary manslaughter?

|7.12.10 @ 4:49PM|

Depends on where you are. In Oklahoma they are trying a guy for murder after he shot a bleeding robber who had tried to hold up the guy's pharmacy. The defendant shot the guy and then walked over and double tapped him even though he was no longer a threat. I am laying at least even money that he gets acquitted.

|7.12.10 @ 4:54PM|

Yeah lethal force is not ok in defense of property, and a disabled assailant can't merit lethal force is reaction in any case. Good call.

|7.12.10 @ 4:58PM|

I am not saying he is not legally guilty. You miss the point. I said he would be "acquitted". That means the jury will listen to your argument and say "well that is nice but too fucking bad we don't care he double tapped the guy".

And Oklahoma has the castle doctrine meaning lethal force is allowed in your home no matter what. And the person who was shot was armed with a gun, so it wasn't in defense of property it was in defense of self. His first shot was totally legal. It was the second one that got him into trouble.

If you are going to make snarky comments, at least try to get the facts right and understand the post you are responding to.

|7.12.10 @ 7:57PM|

The castle doctrine applies in a pharmacy?

Abdul|7.12.10 @ 11:13PM|

It had a moat.

WTF|7.12.10 @ 9:11PM|

Uh - you'd better check your understanding of how the Castle Doctrine works. Typically, it does NOT mean, you can use lethal force in your home "no matter what." Not quite that simple. Depends on the wording of state law, but most do require certain conditions to be present for you to be justified in using lethal force. What Castle Doctrine does is say you have no duty to retreat and in some states, shields you from civil liability from the perp or his family, provided you meet the conditions in the statute. But it does not give you license to shoot and kill people just because they're in your house.

|7.12.10 @ 6:34PM|

Shooting the disabled assailant, may have been wrong, it isn't possible to know with out more evidence.
But lethal force is damn well justified in defense of property. When you steal my property you take the hours, weeks, months or years it took me to earn the money to pay for that item. You are taking my time and labor, making me your slave.

qwerty|7.12.10 @ 11:28PM|

Agreed. What was the defendant supposed to do? Shoot him once and then politely ask the robber if he still intended to rob him? He was threatened and did was necessary to make sure the threat was neutralized.

robc|7.12.10 @ 7:48PM|

It is in some states.

|7.12.10 @ 5:29PM|

That's an interesting case. Would the guy likely have survived if the defendant stopped after the first shot? I would imagine that in OK jury nullification is a good possibility.

JB|7.13.10 @ 2:00AM|

"even though he was no longer a threat"

Who determines that? Someone who claims or is armed and tries to rob me is going to be pummeled, stabbed, or shot until they are unconscious or dead. I'm not taking the chance they have another weapon.

Any jury that finds me guilty for that is committing an immoral act and will be punished accordingly.

|7.14.10 @ 11:00AM|

If you do not want to get shot by a pharmacist then don't rob him. I have very little sympathy for criminals getting asymmetrical treatment.

WTF|7.12.10 @ 5:12PM|

It is a question of intent, and being able to prove his intent coupled with his actions. The fact that he pulled the gun and fired did not mean he intended either that act or the results. If the evidence supports his contention that his intent was to draw and fire his Tazer, to only shock the guy, then it supports the conclusion that he lacked the requisite intent to shoot and kill the guy.

Murder is a "specific intent" crime, which means you had to specifically intend to kill the person.

Erin|7.13.10 @ 12:17PM|

Not second degree. See definition of second degree murder. #2.
http://criminal.findlaw.com/cr.....egree.html

|7.13.10 @ 7:55PM|

Second degree murder is also a specific intent crime; there is nothing at the link you provide that contravenes that.

|7.13.10 @ 3:49PM|

If you could demonstrate to the same extent that Mehserle can that your action was the result of negligence instead of murderous intent, then yes, you should.

|7.12.10 @ 4:51PM|

I think I'm with Radley on this one. The difference being that there is plausible evidence that the cops used his gun by mistake, not intentionally. That's not something Epi could sayafter shooting a mugger in the back while his friend held him down (unless Epi was packing a Taser and a pistol at the time).

The really sad commentary is that prosecutors and juries now show the kind of discretion that we are all entitled to only to members of the Master Class. Even if Epi had a Taser and a pistol, there is no question in my mind that he would catch a murder conviction, just because he's not a cop.

|7.12.10 @ 4:55PM|

And that's my point. It's not whether I should or should not get involuntary manslaughter or murder; it's what I would get. The cop would get the manslaughter and I would get the murder, because he's a pig and I'm just a prole.

And frankly, the system should hold him more accountable for fuckups, seeing as he has legal permission to use lethal force.

WTF|7.12.10 @ 5:14PM|

OK, yeah, I see your point here - possibly. I think it depends on the community you're in and the jury you get, as well as all of the attendant facts and circumstances. I wouldn't conclude that in every case, the cop would get the lighter punishment than us mere "civilians," but I'm sure the fact that the guy was an on-duty uniformed cop and the decedent was brawling on the subway and fighting with the cops had to play into the final decision.

|7.12.10 @ 5:19PM|

Let's be honest: if I shot a dude in the back, the prosecutor would be all over me like Lindsay Lohan on Grey Goose. But not for a cop. So what we have is a dual justice system in this country, and we're the ones getting the shit end of the stick.

qwerty|7.12.10 @ 11:30PM|

nice analogy

Dirty Sanchez|7.13.10 @ 7:50AM|

I gave Lindsey Lohan the shit end of the stick one night after she was all over some Grey Goose. That's how I roll.

|7.13.10 @ 1:35PM|

I suspect if this had happened in northern Virginia, there would not have been a prosecution of a cop at all (what is it now - 45 years without 1 prosecution of a cop??/)

|7.13.10 @ 1:48PM|

Of course they would. You could not possibly shoot a person in the back under the same circumstances, therefore the outcome(verdict) would naturally be different.

|7.13.10 @ 2:53PM|

He was charged with Murder 2 so I think that qualifies as the prosecutor being "all over him." I was the jury that found for the lesser charge. How is that a "dual justice" system?

I agree with the general premise that LEO's often get held to a different standard that the "proles" but I'm not really seeing it in this case (as to the PA).

|7.13.10 @ 3:58PM|

In all likelihood you are correct, though your point seems a bit eccentric to the issue of Mehserle's conviction. The fact is that we have a patently corrupt and unjust judicial system, and misplaced prosecutorial zeal and deliberate misconduct are two of its gravest ills. Denying Mehserle the grace and justice due him under the law, however, would do nothing to rectify our situation. The solution to our "dual justice system" is not to over-prosecute negligent fools like Mehserle, but rather to hem in police and prosecutors whenever they seek to do injustice to the rest of us.

|7.13.10 @ 8:19PM|

bingo!

|7.12.10 @ 6:08PM|

I'm sure the fact that the guy was an on-duty uniformed cop and the decedent was brawling on the subway and fighting with the cops had to play into the final decision.

Indeed, and this is critical IMHO. I have complete sympathy for the totally innocent who get entangled with cops: the Cory Mayes of the world. But if you choose to get into a fight with one or more cops and then the cops go too far, accidentally or on purpose, then at least partial responsibility for the result rests with you. The Oscar Grants and Rodney Kings who are stupid and/or violent enough to get into a fight with cops in the first place don't get large amounts of sympathy from me. They're like a speeding drunk driver who wants to blame the accident on the design of the guardrail.

|7.13.10 @ 10:52AM|

The Oscar Grants and Rodney Kings who are stupid and/or violent enough to get into a fight with cops in the first place don't get large amounts of sympathy from me

Did Grant actually fight with the cops or did Grant get into a fight with others and was restrained for that?

I was under the impression that a fight broke out amongst train riders not between cops and train riders.

That's a big difference. Just becuase you got into a fight with someone else, and the cops come and break it up doesn't justify excessive force or killing you for getting into a fight with someone else.

But regardless, once he is on the ground and restrained, i dont give a fuck how stupid of violent they are, they don't deserve to be shot and they definately deserve sympathy when they are brutalized after being restrained.

|7.13.10 @ 1:59PM|

If a cop is responding to a call about someone shooting people and arrives on the scene to find that someone is, indeed, shooting people, the cop does not have to wait until he, personally, is being shot at before he can shoot the perpetrator.

Grant was taken down because he was in the process of committing a crime(assault). He did not aquiesce to being restrained. It appears that Mehserle was about to use his taser to get Grant to be still and allow himself to be cuffed.

Unfortunately, he grabbed his gun.

Grant's death, however, is Grant's fault. Had he not been assaulting people the police would not have had to do anything to stop him from doing so and he'd be alive today.

The police can screw up, horribly so, as this case shows--but we cannot lose sight of the fact that the cop made a mistake stopping a criminal act in progress.

|7.13.10 @ 3:41PM|

Grant was taken down because he was in the process of committing a crime(assault)

Was he?

Unfortunately, he grabbed his gun.

So unfortunately he mistook his gun for a Taser, even moments after holding his Taser?

http://www.bagnewsnotes.com/wp.....gtaser.jpg

Oh, but it's Grant's fault. Let's not be so rough on the police. They have a hard job.

|7.14.10 @ 8:04AM|

It is Grant's fault because, had he refrained from assaulting other people the cops would never have needed to be called.

Pip|7.12.10 @ 5:23PM|

I never bought into the "Oops, guess that weren't my taser" defense. I think he shot him intentionally, just like the MO pig that shot a chained-up, tail-wagging dog.

robc|7.12.10 @ 7:50PM|

I still favor treble penalties for any government employee committing I crime in the course of his job.

Thus, the guilty verdict is correct, but time served gets tripled.

|7.13.10 @ 9:35PM|

thankfully, the rule of law does not set such an absurd double standard.

see: teddy r.

|7.14.10 @ 11:24AM|

If that were the case, imagine then the incentive to maintain the "Blue Wall of Silence". The incentives in such a scenario militate against compliance so I fail to see how such a system helps.

Lucy|7.13.10 @ 9:08PM|

YES.

Cops are somehow special and noble, yet only human when the screw up. Nothing like holding people doing an important, dangerous job to incredibly low standards.

|7.13.10 @ 9:38PM|

what "low standards". the average cop is not (god knows as a firearms instructor i am keenly aware of this) an expert in the use of firearms, or force. in fact, as i opined in another post, the training in this area, in general, is staggeringly poor.

i can't speak specifically to BART PD's training, but if they are similar to the average agency, then their firearms training is weak.

if you are going to hold them to a higher COMPETENCY standard, then you need to train thusly.

significantly more training would be required. to put it mildly.

most cops are, fwiw, not "firearms enthusiast". most ONLY shoot during required assessments. for my agency, that means 100 rds. PER YEAR.

dim light shooting?
nope

shoot/don't shoot drills?
nope

etc

|7.12.10 @ 5:35PM|

I think Radley got it right too. When Taser changed the shape of their product a few years ago I remember thinking how much more it looked like a pistol, and how easy it would be to mistake one for the other if you were carrying both.

Same thing applies to these flashlights that are attached to guns, especially those with a finger-activated on-switch. With this setup the cop has to point his gun at anything he points the light at. If they get their left and right index fingers confused (which is all too easy to do under stress) they will shoot a target they merely intended to illuminate (or vice versa). Very bad idea, like making a Taser that looks and feels like a pistol.

robc|7.12.10 @ 7:53PM|

Considering a taser should only be used in a situation where deadly force is called for (but to be slightly less deadly than a pistol), I dont see the justification for tasering him in the back.

|7.13.10 @ 6:53AM|

that of course is your opinion, and a strange one at that.

a taser is not "slightly less deadly than a pistol". literally tens of thousands of cops, journalists , etc. have volunteered to be tased (me, twice fwiw).

we all did that with somehting that is "slightly less dangerous than a pistol?"

really?

the illogic is stunning

|7.13.10 @ 4:03PM|

Even if we grant your position, we are still entitled to demurrer. If the intended use of the Taser was unjustified, then perforce of legal definition its attempted use was negligent. Any pursuant death is therefore a negligent homicide, and the conviction for Involuntary Manslaughter is correct.

|7.13.10 @ 6:54PM|

negligent homicide IS involuntary manslaughter under this statute.

did you even READ the article. you just conceded balko's (and my) point. if it was NEGLIGENT, then the proper charge was involuntary manslaughter.

thank you for conceding our point.

|7.13.10 @ 8:07PM|

Dunphy, you need to check your reactionary hubris at the door. I *meant* to confirm your point; in fact, that was the whole object of my response to robc. My whole point is that, even if we grant robc's position, we still find Mehserle guilty of nothing more than negligent homicide. Your are correct that negligent homicide is charged as Involuntary Manslaughter under the statute. Yes, I did read the article. No, I do not understand how you were able to your panties in such a knot. And you're welcome, although I advocated your point, rather than conceding it.

|7.13.10 @ 8:21PM|

my bad. i was wrong. see, somebody CAN admit they are wrong on the internet.

it was a good point, and i missed it, because i was so used to responding to idiocy, i misconstrued a word.

my bad

|7.12.10 @ 4:56PM|

I don't like playing the we have to read the perpetrators mind to decide if he's guilty. I'm more inclined to look at his actions. In this case, the man drew his weapon and fired a round into the victim lying face down on the floor. That's murder.

The "I thought I was holding my taser" defense doesn't impress me much. Mistaking a pistol for a taser, is so egregious, it aggravates away whatever your intentions mitigate.

|7.12.10 @ 5:00PM|

But you have to find someone guilty beyond a reasonable doubt. That means that there can be no other reasonable explanation for the facts in evidence other than the accused's guilt. The accused explanation doesn't have to be likely just "reasonable" in the sense that it is reasonably possible that the events happened that way.

In this case, it is reasonable to believe that the cop under stressed fired the wrong weapon. That makes him grossly negligent not a murderer.

robc|7.12.10 @ 7:53PM|

The only question I have is Why was he firing a taser in that situation?

People Power Hour|7.12.10 @ 9:52PM|

+100

|7.13.10 @ 9:40AM|

Yep. Lack of intent won't help in the wrongful death civil suit that will follow. He won't be able to justify trying to employ a taser in that situation.

|7.13.10 @ 2:03PM|

Because Grant didn't want to be cuffed.

|7.14.10 @ 11:05AM|

Bingo.

|7.13.10 @ 4:07PM|

Because he was dealing with a felony battery suspect who was physically resisting arrest for a prolonged period of time. Cops cannot be reasonably expected to wrestle with a violent suspect indefinitely, subject only to the limits of the suspect's willful resolve to resist.

WTF|7.12.10 @ 5:15PM|

You might not like the "we have to read the perp's mind" rule, but it's been the rule of law here and in England (from where we got our entire common law system) for hundreds of years. Take it up with Blackstone.

JB|7.13.10 @ 2:03AM|

Yup. Something so incompetent rises to the level of more punishment.

|7.13.10 @ 2:27PM|

Exactly! I'm not going to play armchair svenghali to determine what was going on in the dude's head. I don't need to. Not when there are multiple videos of what happened. All you have to do is look. The man pulled his weapon, took aim, and fired into the back of an unarmed man.

The "I thought it was a taser" defense is so facially absurd it doesn't even warrant comment. I'm actually stunned you're buying this, Radley.

|7.13.10 @ 4:02PM|

There is a bizarre drive to lower the standards to which police officers are held. Never in this whole story has anybody detailed that a police officer is trained, TRAINED to know the difference, but in all of this the only sense that commentators have brought up is that some typical citizen would have made the same mistake. Too bad that's irrelevant when you're dealing with someone who is a trained expert.

|7.13.10 @ 8:40PM|

have you reviewed BART PD's and this officer's training records, such that you know how he was trained? as a LEO firearms instructor myself, i can state assuredly that my agency has pretty weak-as-fuck training in many areas (for a # of reasons, budgeting being one of them), and that i have done my part to at least ensure that i could offer additional training (i do this during our roll calls with my sgt.'s approval for my squad, but that's about the best i can do)

the idea that a police officer is a "trained expert' in firearms is LAUGHABLE. as an instructor, i am FAR better trained than the average officer, but even in many of the most progressive (vis a vis training ) departments i know of, few line patrol officers are anything close to a trained expert.

most assess once (or twice) a year for one or attempts at shooting 50 or 60 rds in a static course.

shoot/don't shoot drills? escalation-deescalation drills (including taser, etc.) - slim to nonexistent.

to give you an example of how bad police firearms training is consider the newhall incident. or consider that 2/3+ iirc of police shootings happen in "dim light". what %age of firearms training do we conduct in dim light? your answer: ZERO.

again, the idea that an average patrol officer is a trained expert in firearms is ABSURD.

maybe BART pd is the exception, but unless you have evidence for your claim, i cry ... in the words of teller... BULLSHIT

|7.13.10 @ 8:24PM|

you don't have to play that if you don't want to play that, but the law necessarily DOES have to play that, since INTENT is part of the elements of the crime.

balko, unlike you, does take the law into account when commenting on... wait for it... THE LAW.

you may argue the law needs to be changed so that it doesn't play "armchair svengali" but as a nation ruled by laws, not men, the law in this case takes precedence to what CTD WANTS to do.

hth

|7.13.10 @ 4:09PM|

I believe that, if you think about the issue soberly and comprehensively for a moment, you will be very glad that we have not dispensed with the mens rea requirement for the proof of a crime.

Geotpf|7.12.10 @ 4:57PM|

Tasering somebody unneccessarily could possibly qualify for the higher charge (tasers do sometimes kill), but that's a judgement call that would probably usually go the other way, especially since the jury was given the option of the lesser charge.

¢|7.12.10 @ 4:59PM|

There's simply no basis for the accusation that Mehserle intentionally executed a man in front of dozens of witnesses.

He futzes at his holster, pulls his gun, stands up, looks at the gun in his hands, then shoots the guy.

In the video, Mehserle's body language just after the shooting indicates surprise and shock.

No it doesn't. His first move is to make a "You got my back" face at another cop.

|7.13.10 @ 2:29PM|

"Upperclasswomen also live in Wood Hall, which has fully furnished one- and two-bedroom suites."

That's exactly what I thought when I saw it the very first time.

|7.13.10 @ 2:29PM|

"No it doesn't. His first move is to make a "You got my back" face at another cop."

Stupid clip board.

|7.13.10 @ 3:49PM|

No, I don't think he pulled his gun out and in cold blood shot that man on the platform in all the rationality and forethought that some have mentioned.

However, I do think that like some officers I've spoken with, he had gotten a little too complacent with pulling his service firearm and didn't think twice about pulling it out in a tense situation. He might not have fully realized it was in his hand, or thought fully about the destructive power. He thought he needed a tool to show he had the upper hand in the situation and he reached for the one that was most familiar to him. Something happened, and he thought the situation had changed into something it had not, and he pulled the trigger, killing the man. I do think at that point in time, he intended to shoot the guy and he fully intended to use deadly force. In the situation he was in, I don't think he thought about the subway platform, the people standing around, his career, or much apart from himself and the guy on the ground. When you're drilled that every encounter with a citizen is just two steps away from turning deadly and it happens all the time, you start seeing every encounter as something it really isn't.

I don't think for a moment he thought he was holding the taser. I just don't think he thought very hard about the situation and had a very blasé attitude towards brandishing a deadly weapon -- as one officer said to me, "I don't remember every time I've pulled my taser, and for that matter, I don't remember every time I've pulled my gun either."

Complacency breeds contempt, and rather than deescalating the situation, he pulled a very deadly weapon. And used it.

|7.13.10 @ 4:07PM|

Without commenting on the rest, "He thought he needed a tool to show he had the upper hand in the situation," is just one of the many ways people earn murder convictions. Brandishing a firearm, I think they call it.

|7.13.10 @ 4:10PM|

The videos I have seen bear no resemblance to the one you describe.

|7.12.10 @ 4:59PM|

This may be the correct verdict, but the precedent is a little disturbing. Shoot the guy, then say, "Oops, wrong weapon!"

Gummy Bears|7.12.10 @ 5:03PM|

so long as you throw your hands over your head and shout "oh my god"

Amakudari|7.13.10 @ 7:24AM|

"It's coming right for us!"

|7.12.10 @ 5:07PM|

"I totally thought I was reaching for my only sometimes lethal weapon, dudes. Acquit me, bro."

Brian E|7.12.10 @ 10:51PM|

Exactly the right point. The taser should always be treated as a lethal weapon. If you wouldn't fire a gun in that circumstance, you shouldn't use a taser. In that light, I think a murder charge is exactly what should be applied - the same as if he used a taser and the victim died as a result, which could very well have happened.

|7.13.10 @ 2:55AM|

ANY weapon, including a fist CAN be lethal. tasers are remarkably safe. i've volunteered to be tased twice, and i know guys who have taken more hits than that. note that reports often remark on tasers as a contributory factor. not surprising. merely wrestling with somebody can be a contributory factor to heart failure, etc.

Invisible Finger|7.13.10 @ 10:12AM|

Enough of your taser fetish.

The idea that a cop can now use the "OOPS, wrong weapon" defense is disturbing. We're now leaving the door open to cops intentionally killing someone with the worst of the punishment being losing one's job. Shit, people go through worse for victimless drunk driving.

|7.13.10 @ 6:57PM|

enough of your obfuscation. i have no "taser fetish". i've carried one for years, and haven't even discharged it at anyone. it's a tool, nothing more, nothing less... like a gun, or a pen, or a wrench.

we aren't opening the door to anything. there is this pesky standard in criminal law called "guilt beyond a reasonable doubt" and trial by jury. the jury believed the only charge that could be proved beyond a reasonable doubt was involuntary manslaughter.

as a firearms instructor myself, as part of the training i do, i engage in trainees in shoot/don't shoot scenarios with both tasers and firearms, and our dept. regs (correctly) mandate that tasers must be set up so they are always drawn opposite hand, etc. should tasers be unlike a gun in feel, shape, etc? yes, imo. taser should rectify this

|7.13.10 @ 4:09PM|

Oh yes, please educate us all on "excited delerium." LOL.

|7.13.10 @ 7:02PM|

i never mentioned "excited delirium". i did mention that (especially) chronically unhealthy/drug using (and yes, i am against the war on drugs, but let's not go down that tangent/fightorflight response having/long protracted struggle having etc. etc. (choose from one or more of above) sometimes experience heart failure... REGARDLESS of taser being part of the equation.

that's why when cops, journalists, etc. are tased, not once, not EVER has one died.

that strongly suggests (to anybody who believes in evidence) that the problem is NOT the taser.

people have ALWAYS died (in a small %age of cases) in such struggles and always WILL, because that's the nature of our body chemistry/structure.

the taser scare is much like the ephedrine scare, or the reefer madness scare. short on evidence, long on emotionalism and rhetoric

|7.13.10 @ 4:20PM|

Except that it is exactly wrong. Like a tonfa or baton, a Taser is an essentially non-lethal weapon that sometimes causes death. Prudence would dictate that the use of a Taser should be avoided just as the use of any other weapon should. That does not mean, however, that an officer is criminal for using a Taser, baton, or his fists under circumstances that fall short of justifying firearm use. Had the officer tasered this suspect and the suspect died, I would not support the officer being charged criminally.

|7.13.10 @ 9:42PM|

i have yet to read an autopsy report (not saying there has never been one) that concludes that a taser, in and of itself CAUSED a death. contrast with, for example, a bullet or bullet(s).

tasers have certainly been a contributory factor IN a death, but so have any # of other factors, to include ambient temperature, level of drugs ingested, exhaustion, adrenaline, etc.

Fist of Etiquette|7.12.10 @ 5:08PM|

Should the verdict take into account anything but the facts? I realize that's not what you're saying, but if prosecutors were able to remove all outside concerns and apply the law evenly to each individual case, the world would be a lovely place. We can't fault the times they get it right for the times the get it so wrong.

|7.12.10 @ 5:11PM|

I'm not questioning the verdict or suggesting it should be different due to policy concerns.

Fist of Etiquette|7.12.10 @ 5:16PM|

I acknowledge I used your comment as a springboard for my comment. To my knowledge the Twinkie defense was never successfully reused, and I would see the "wrong weapon" defense as something they wouldn't try too often. But then, what do I know?

WTF|7.12.10 @ 5:32PM|

I recall a case a couple years ago in which a female cop had a perp in the back seat of her patrol car and he was freaking out or something. There was video - she was standing outside the car, and the dude was in the back seat losing it. She opened the door, reached for her Taser, pulled her service weapon and shot him in the chest.

Same story - she thought she was pulling her Taser. I think she was cleared of any wrongdoing under "oopsie! My bad!" exception to cops shooting handcuffed suspects in the back of police cars.

I'd have to do some serious Googling to find that again, because that's all I recall - can't remember where it was, and it was several years ago.

WTF|7.12.10 @ 6:03PM|

Yeah, here it is.

It happened in 2003, in Madera, CA. The female cop was not charged, because it was ruled an accident - she meant to pull her Taser and pulled her Glock .40 instead, shot the guy in the chest and killed him.

|7.12.10 @ 6:11PM|

"He's coming right at me!" Blam!

Fiscal Meth|7.12.10 @ 9:24PM|

Yeah uncle Jimbo...

Felons For Franken|7.12.10 @ 5:16PM|

Felons Voting Illegally May Have Put Franken Over the Top in Minnesota, Study Finds:

The six-month election recount that turned former "Saturday Night Live" comedian Al Franken into a U.S. senator may have been decided by convicted felons who voted illegally in Minnesota's Twin Cities.

That's the finding of an 18-month study conducted by Minnesota Majority, a conservative watchdog group, which found that at least 341 convicted felons in largely Democratic Minneapolis-St. Paul voted illegally in the 2008 Senate race between Franken, a Democrat, and his Republican opponent, then-incumbent Sen. Norm Coleman.

The final recount vote in the race, determined six months after Election Day, showed Franken beat Coleman by 312 votes -- fewer votes than the number of felons whose illegal ballots were counted, according to Minnesota Majority's newly released study, which matched publicly available conviction lists with voting records.

Furthermore, the report charges that efforts to get state and federal authorities to act on its findings have been "stonewalled."

"We aren't trying to change the result of the last election. That legally can't be done," said Dan McGrath, Minnesota Majority's executive director. "We are just trying to make sure the integrity of the next election isn't compromised."

http://www.foxnews.com/politic.....udy-finds/

Geotpf|7.12.10 @ 5:33PM|

Of course, these felons may have voted for Franken. Or they may have voted for Coleman. Or they may have voted for Barkley. Or they may have voted for Lizard People.

|7.12.10 @ 5:42PM|

Lizard Music by Daniel Pinkwater is a great book, man.

robc|7.12.10 @ 7:55PM|

All I know is Lizard People won the election fair and square.

|7.13.10 @ 2:08PM|

Most likely, those felons didn't vote at all.....

Alice Bowie|7.12.10 @ 5:23PM|


That said, Mehserle shouldn't be required to suffer the accumulated anger stemming from other problems in the criminal justice system. He should be convicted of—and punished for—the crime the evidence presented at his trial proves he committed, nothing more. His jury did the right thing.

Every minority in this country suffers the accumulated anger stemming from other problems in the criminal justice system as viewed by the people in Law Enforcement.

Pip|7.12.10 @ 5:27PM|

I respectfully disagree, Mr. Broadbrush.

Alice Bowie|7.12.10 @ 5:39PM|

OK, Some minority in this country suffer the ccumulated anger stemming from other problems in the criminal justice system as viewed by the people in Law Enforcement.

This happens every time we are profiles and experience legal contact because we are coloured. But, I'm sure you'll respectfully disagree as we just simply ask for the legal contact.

|7.13.10 @ 2:59AM|

if profiling, according to "colouring" is so common in the US, then how come rates of officer stops (terry etc.) almost exactly match offender identification by race of crime VICTIMS (iow, not cops... but actual crime victims).

Leroy|7.12.10 @ 5:24PM|

The jury got this one right.

In order to convict for murder, you have to prove intent. This is a distinction made by the law, not by the jury.

I can not think of a how a civilian could possibly be in a similar situation, armed with a taser and a pistol, and within his rights to use the taser on an individual struggling with someone else.

I'm by no means excusing the actions of the cop. He was negligent in his duties, and it cost someone their life. However he deserves the involuntary manslaughter charge that he got, and not murder.

Alice Bowie|7.12.10 @ 5:40PM|

I Think the jury got it right.

However, in California, if one is in the commission of a felony, it can be upgraded to 2nd degree murder. One may argue that the felony is the "Violation of Civil Rights". However, that may be a stretch.

|7.13.10 @ 2:32PM|

"In order to convict for murder, you have to prove intent."

I'd say the multiple videos of this scumbag pulling his weapon, taking aim, and shooting an unarmed man in the back speak to "intent" quite well.

|7.13.10 @ 4:12PM|

You may not know this, but the single act of removing your gun from its holster is a form of intent.

|7.13.10 @ 4:28PM|

Actually, it is not. It is entirely possible to unintentionally remove a weapon from its holster, and most cases of unholstering a weapon do not demonstrate the necessary mens rea for murder. You need to report the incompetence of your Crim. Law professor to your institution, and if they take no action to remove him/her then you should refer the matter to your institution's accrediting organization.

|7.12.10 @ 5:33PM|

To summarize:

(1) The jury got it right.

(2) Only because he's a cop.

Coeus|7.12.10 @ 6:33PM|

Pretty much my take on this too. And it gives another good reason to take the tazers away from the jackasses. Especially seeing as how WTF found another example of this defense being used successfully up-thread.

|7.12.10 @ 11:10PM|

I find it hard to believe Meserhle premeditated the drawing of his gun instead of taser so he could kill the suspect instead of just tasing him. That logic suggests he was willing to take the chance he'd only go to jail for involuntary manslaughter instead of murder, when most cops are not very well received in prison for ANY crime. I find it extremely hard to believe he intended to have a dead suspect that night. In no way could that end well for the cop.

|7.13.10 @ 4:14PM|

when most cops are not very well received in prison for ANY crime

Ha ha, like he's going to get anything other than the Goodfellas treatment. You think law enforcement, prison guards and even wardens think Mehserle is actually guilty of anything?

|7.13.10 @ 4:28PM|

Surf n Turf on his birthday.

Coeus|7.13.10 @ 7:12PM|

I find it hard to believe that anyone would shoot someone in the back in front of witnesses. But they do... all the time. And when they do, they are sentenced for murder. I've met -one- cop above average intelligence, and a whole lot more at or below. I'm not really ready to give their thinking skills the benefit of the doubt. But the jury did, and that's their call.

|7.14.10 @ 1:26AM|

you must have MAD skillz at psychometrics to be able to glean their intelligence levels. did you administer a stanford binet, or have a brief conversation with them?

|7.13.10 @ 4:30PM|

Poor summary. If you had been assisting Mehserle's fellow officer in attempting to subdue this suspect, negligently inflicting a fatal gunshot wound in the process, the jury would get it right in convicting you of nothing more than Involuntary Manslaughter. I assume you are not a cop.

|7.12.10 @ 5:34PM|

I agree with Radley. The jury got this one mostly right (though I'm curious as to the distinction between voluntary and involuntary manslaughter, because I would be inclined to say voluntary manslaughter in this case).

In other news, the jury's completely fucked up the Maye trial. Murder was completely off base. At worst voluntary manslaughter, but he was black and killed a cop, ergo...

WTF|7.12.10 @ 5:59PM|

Very generally, the difference between voluntary and involuntary manslaughter:

Involuntary = you had no intent to kill or do grievous bodily harm. You intended to act in the way you did, but did not intend that act to result in severe injury or death to the person. But your action could have been so negligent as to rise to the level of criminal conduct. E.g., you drop a brick out a fourth-floor window and it kills a pedestrian below. That might constitute involuntary manslaughter - you had no intent to kill anybody; you were just being incredibly negligent, but your act did, in fact, kill someone.

Voluntary = you did have the requisite intent for it to be considered murder, but there are extenuating circumstances that allow the charge to be downgraded from murder.

Murder requires "premeditation", meaning you had sufficient time to form the thought and consider the action before going ahead with your intent to kill. In many jurisdictions, you can have "instantaneous premeditation", meaning you need only a moment's though to think, "ok, yeah, I'm gonna kill this guy" to qualify as murder.

To downgrade to voluntary manslaughter, it could be that you lacked sufficient time or capacity to premeditate - e.g., a so-called "heat of passion" murder. You walk into your house and find your wife screwing your best friend, you impulsively, without thinking, jump on him and kick him hard in the head, screaming, "I'm gonna kill you!" and you really mean it. But then you suddenly stop, because you realize you really have hurt him badly, but it's too late - he's dead.

Each state has its own law defining the various types of homicide, so this won't necessarily be the same in every jurisdiction.

Jenn|7.12.10 @ 7:45PM|

Here are some examples I think generally work:
1st degree murder: Deciding, and going through with, shooting someone in the head (express malice).
2nd degree: firing a gun into a crowd of people (no intent, but clearly so reckless that malice can be implied)
voluntary manslaughter: Got so angry seeing your wife cheat that you grabbed a gun off the nearby table and shot her.
Involuntary manslaughter: locking your fire escape exits at your business and people burn to death, or administering drugs negligently and causing death (Michael Jackson's doctor), or DUI deaths.

In my opinion, Mehserle's acts of subduing the unarmed victim, kneeing him in the neck, forcing him on the ground and shooting him in the back rises to the level of second degree murder. He's an officer. He knows what weapons he's got. He knows there's a 50% chance it could be a gun. It's very similar to firing a gun into a crowd, except this was into a person's back.

Attorney|7.13.10 @ 12:17AM|

Fortunately, your "opinion" does not law make.

Jenn|7.13.10 @ 12:10PM|

Well if you're an attorney, you should remember all those 1L crim law classes where they examine all the attending circumstances of the murder, including how the defendant was behaving before, and after the killing, to assess things like intent. You don't just view the act of killing in a vacuum. You examine their behavior before and after. And you should definitely recall the fire escape and ill child cases which were examples of involuntary manslaughter.

I'd say yanking someone off a wall, subduing them, forcing them on the ground, shooting them in the back, and then calmly rolling their dead body over, and handcuffing them is NOT involuntary or voluntary manslaughter - unless you're an irrational cop-lover. The attending circumstances do not indicate shock or surprise - they reasonably point to a malignant or abandoned heart, and a reckless indifference for human life.

|7.13.10 @ 4:18PM|

I sympathize with your opinion, but your understanding of the legal definitions of murder is lacking.

|7.13.10 @ 4:36PM|

You could neither charge nor convict for Voluntary Manlsaughter, because the mens rea for that crime requires express (but attenuated) malice. Since the factors of attenuation are not available to a police officer under these circumstances, then a finding of malice would require a conviction for second degree murder, not Voluntary Manslaughter.

Regarding Corey Maye, I don't understand how you could convict him of anything. He had every legal right to shoot that cop who kicked-in his door, and it is a scandalous outrage that he has spent even a single day behind bars.

WTF|7.12.10 @ 5:49PM|

The LEO's perspective on use of a Taser.

Coeus|7.12.10 @ 6:39PM|

Love this line:
Equally nonsensical is the erroneous presumption that the sample deaths were factually caused by the Taser technology as opposed to the documented lethal amounts of life-threatening drugs and/or documented case histories of self-destructive psychotic behavior.

So if they kill you with a Taser, its not because they electrocuted you for mouthing off, it's because you were crazy.

|7.13.10 @ 3:04AM|

deaths have always, and will always happen in struggles with people who are generally unhealthy, take and/or have taken large quantities of various drugs, many of which act symbiotically or erratically when taken together (the classic speedball being an old skool example of such), are in an extreme adrenaline dump fight or flight response mode, etc.

some people will die. it's not the fault of the taser. it's the nature of the struggle and person involved. i've been tased twice. no biggie.

i once wrestled with a suspect for about 5 minutes to get him into cuffs. he stopped breathing and his heart stopped. thank god there were medics at the same scene and he was revived. no taser involved. that's not unheard of. tasers are just a convenient excuse and people who have a lack of understanding of basic causality, logic, etc. say - he died, a taser was used, therefore the taser caused it.

Jennifer|7.13.10 @ 1:16PM|

Yeah, I was really wasted and I got in my hummer and mowed over some kid. It's not unheard of. It was the hummer's fault though. Hummers are just a convenient excuse and people who have a lack of basic understanding of causality, logic, etc. say - the kid died, a hummer was used, therefore the hummer caused it.

Hey, I get in my hummer, and sometimes people die, it's not the hummer's fault or mine. It's the nature of idiot people standing in my way. How dare they. Deaths have always and will always happen when innocent people are walking around on the street, or maybe even taking drugs. And I will run them over. But it's the hummer's fault, and the fact they were on drugs, not mine.

|7.13.10 @ 4:39PM|

You could not have illustrated dunphy's point about "people who have a lack of understanding of basic causality, logic, etc." more perfectly.

|7.13.10 @ 7:05PM|

exactly.

would tens of thousands of cops, journalists, etc. VOLUNTEER to get run over by hummers?

nope.

have they VOLUNTEERED to get tased (yup. i did it... twice).

have ANY of these volunteers died?

none.

Coeus|7.13.10 @ 7:06PM|

If you're seriously defending that bolded statement then it's pretty obvious that you have a lack of understanding of basic causality, logic, etc. Someone dies immediatly after a jolt from a taser, and it was because they were crazy? I see elsewhere where you've posted that you've never used your taser, so apparently you understand that it's not a supposed to be a magical "respect my au-thori-tie" toy. Doesn't mean that all your brothers in blue are also that smart.
http://www.lexisnexis.com/Comm.....-city.aspx
But if you think that tazing an old lady in bed and on oxygen for talking shit is just part of the job, you're an idiot or a monster. Would they have used another any other tool then? You know any cops who would've hit her with their baton or flashlight? If you do, you should probably just come to terms with the cop hate, cause it's completely justified. If not, then maybe it's time to rethink giving a magical pain gun to a bunch of immature idiots and counting on their "new professionalism" to keep them from abusing it. Apparently this medical examiner also has no understanding of basic logic:
http://cbs11tv.com/local/taser.....48168.html
If your point is that people sometimes die when compliance techniques are used, then yes I agree. My point is that cops are much more likely to use compliance techniques when it doesn't leave a mark, and can be done in the push of a button.

|7.13.10 @ 9:52PM|

1) i have never DISCHARGED my taser at another individual (either fired the darts or did a drive stun). i HAVE used it to gain compliance by drawing it and threatening TO deploy it. in every case i have done that (several), it worked thusly. in a couple of cases, where i interrogated the suspect after the fact, he commented that he had been tased before, and that contributed to his decision not get tased again. in my agency ( i have read the stats, as a firearms/use of force instructor), there are far more cases of the taser being deployed but NOT discharged, then it being discharged. iow, the threat of its use gained compliance. that is, it is a very effective deterrent in many cases.

2) i am not defending any # of tasings that i think were either imprudent or even illegal, so I'm not sure why you are bringing them up (the old lady on oxygen case for example). just because i defend tasers as a valuable tool, and one that can help prevent suspect injuries/deaths, as well as cop injuries deaths, and bystander injury deaths, does NOT therefore mean that i believe it is always properly used. far from it. of course, that is true for ANY force technique, from firearms on down...

3) your comment about tasers not leaving a mark is false. i've personally NEVER seen a taser application (either by one of my coworkers in the field) or in training (myself or others) that did NOT leave a mark. you are simply wrong on this point (and some others). furthermore, a taser, unlike baton, fist, etc. has a computer in it that logs EVERY single trigger pull as to time etc. thus, it has more built in accountability.

4) i'm not convinced cops are MORe likely to use the taser as a compliance technique. that MAY be true, but i haven't seen it proven. regardless, it's tangential to the issue that it is bad when a taser is MISused, and GOOD when a taser is properly used.

Coeus|7.14.10 @ 12:27AM|

I like how you broke your reply up into points to hide the fact that you ignored a valid point and your response is nothing more than "I disagree". Since you went there, here goes:

1) Threats of all kinds are used by cops to gain compliance. Hell, sometimes they're even telling the truth. How is holding your taser up better than holding up your maglight?

2) You purposely ignored the point I was making with that article, which is that cops will use the taser when they wouldn't otherwise use pain compliance techniques at all. Here's another:
http://content.usatoday.com/co.....ies-game/1
and another:
http://www.huffingtonpost.com/.....28280.html

Coeus|7.14.10 @ 12:29AM|

(Broken up because the squirrel won't let me post more than 2 links per reply)

3) Two tiny red dots under clothing might as well be invisible. You know that pictures of a beaten person hold sway with a jury. Two tiny red dots do not. It's not the same as touching someone up with a baton and you know it. But yes, tasers do leave a small mark. This may be the only valid thing you said that's not purposefully missing the point. As for the computer records, police departments are notorious for not releasing anything taser related.
http://www.columbiamissourian......r-records/
http://www.post-gazette.com/pg/06026/644203-55.stm
And as to your "you are simply wrong on this point (and some others). Care to elaborate the others?

4) See #2.

Coeus|7.14.10 @ 12:30AM|

(Broken up because the squirrel won't let me post more than 2 links per reply)

And you completely ignored the last point, which is that tasers are considered a murder weapon in this case:
http://cbs11tv.com/local/taser.....48168.html
You'll take crazy as the cause of death before taser? If you recall, your original reply was in defense of crazy as a cause of death instead of the electrocution immediately proceeding it (another point you conveniently dropped). You're either being willfully obtuse or you have a severe reading disability.

|7.14.10 @ 1:04AM|

a taser CAN be a murder weapon, just like a shoe, water, a pen, etc. CAN be a murder weapon.

and the whole "take crazy as a cause of death" is a red herring you keep using. it's ridiculous.

tasers are not an electrocution by definition.

you have a severe misunderstanding of physics, to go along with your misunderstanding of science, and police use of force continuums, and reading comprehension, etc.

|7.14.10 @ 1:02AM|

a picture of a beaten up person SHOULD hold more sway, because they are injured far far far worse than a taser injures you, which is by leaving two little holes in your skin, or in the case of a drive stun (suboptimal), sometimes a red/burned area.

as for what points you were wrong with...

1) i never claimed people died after tasing because they were crazy. that's a gross misstatement.

2) i didn't post that i never used a taser. i stated i didn't DISCHARGE it. tasers are often used, very effectively to gain compliance WITHOUT discharging, merely by presenting them .

3) i never said anything validating the tasing the lady in bed case. you are simply full of crap. i could go on...

hth

|7.14.10 @ 12:58AM|

the reason why holding the taser up WORKED, AS THE SUSPECTS ADMITTED was because they had already BEEN tased, knew what it felt like, and didn't want to feel it again and/or they knew they would be unable to resist if tased.

hth

as for your second point, SOME cops have and will abuse tasers. that's not an indictment of the taser. ANY tool can be misused. many have misused tasers. far far far far more have been used responsibly.

JOR|7.14.10 @ 2:19AM|

Well, people don't die from gunshots, they die from being made out of meat and other squishy stuff that bullets do nasty stuff to. If they were made out of solid neutronium or something, they'd be fine!

normcash|7.12.10 @ 6:04PM|

Boo Radley

|7.12.10 @ 6:06PM|

Not money from the City of Oakland: Mehserle was BART PD, not Oakland PD. Thus, BART would be the deep pocket here. Which is the deep pocket of the tax payers of the joint powers board that is BART.

Mike M.|7.12.10 @ 6:19PM|

Unless this guy gets either a country club or solitary confinement, I don't like his prospects for living too much longer.

Alice Bowie|7.12.10 @ 6:23PM|

Oh he'll b ok....

This conviction will either be overturned or he'll get probation with NO JAIL time.

I'll bet anything.

Coeus|7.12.10 @ 6:48PM|

Just to be clear here, the tazer isn't the magical "oops" talisman. It has to be combined with a badge before it can be activated. This unfortunately means that it takes up two spots in inventory. But this is offset by never having to use up space for paper infractions, so its overall effect on your bag of holding is minimal. I always go with "Cop" or "dwarf" classes (i like axes).

|7.12.10 @ 7:29PM|

It's not fair for you to say that there were riots in protest of the verdict. In fact, the protest was totally peaceful until later in the evening when thugs decided to use the protest rally as an excuse to break store windows. 75% of those arrested that night were from outside of Oakland; and according to news reports, many of them were white. Yes you heard that right. A bunch of white thugs from out of town used the peaceful protest rally as an excuse to come to Oakland and break some windows. The fact is that both the Oakland PD and the citizens of Oakland had a very peaceful, and well-justified, protest rally the other night.

Jenn|7.12.10 @ 7:29PM|

I am pretty sure the jury got it wrong. How can kneeing someone in the neck, pinning them down, and shooting them in the back NOT be reckless indifference to human life?

The taser defense is ridiculous. I think even most police officers would admit a gun and a taser are not easily confused. In addition, a taser too, is a lethal weapon and there was no justification for use of the taser. Even if you believe he made this honest mistake, it was still reckless.

"Involuntary manslaughter" cases have involved people not taking their sick child to the doctor on time, or negligently locking your fire escape exits and causing people to burn to death. What Mehserle did was far more reckless.

Further, it does not at all appear to me he was shocked. Looking up then down at a dead body, rolling it over, and remembering to handcuff the dead body (as per police procedure) does not appear to be a sign of shock to me.

I am pretty sure the average "shocked" person would panic, attempt to run for help, attempt to resuscitate, or do something else to mitigate the situation, not calmly handcuff the dead body. Further, judging by the other officer's reaction, this was no surprise at all.

|7.12.10 @ 8:57PM|

We'll see how American justice works. Is he going to do any time?

smartass sob|7.13.10 @ 1:58AM|

Exactly!

Sidd Finch|7.12.10 @ 9:01PM|

"and shooting them in the back NOT be reckless indifference to human life?"

It is. That's why he was convicted of involuntary manslaughter.

|7.12.10 @ 11:51PM|

Reckless indifference to human life is second degree murder.

"Criminal negligence" would be voluntary manslaughter.

|7.12.10 @ 11:57PM|

I'm sorry i meant "criminal negligence" would be INvoluntary manslaughter.

|7.12.10 @ 11:56PM|

In California, murder is unlawful killing with malice aforethought. Malice aforethought is generally defined as the following:

"malice aforethought" is a complex one that does not necessarily mean premeditation. The following states of mind are recognized as constituting the various forms of "malice aforethought":

Intent to kill,
Intent to inflict grievous bodily harm short of death,
Reckless indifference to an unjustifiably high risk to human life (sometimes described as an "abandoned and malignant heart"), or
Intent to commit a dangerous felony (the "felony-murder" doctrine).

Malice aforethought is express when there is intent, and I think this is generally first degree murder. The other types of malice are implied, and are second degree murder. Thus, Mehserle's reckless indifference to human life should have rendered a second degree murder conviction.

Attorney|7.13.10 @ 12:18AM|

Please go to law school before posting again. TIA.

|7.13.10 @ 12:12PM|

I don't think you're an attorney. I think you're a cop.

|7.13.10 @ 8:54PM|

those aren't mutually exclusive fwiw. i work with several cops, who are also lawyers. 3 that i know of.

Erin|7.13.10 @ 12:19PM|

See part 2.
http://criminal.findlaw.com/cr.....egree.html

|7.13.10 @ 4:24PM|

The most important thing is the sentence. Does he do time or walk? Who gives a fuck what you call it!

|7.13.10 @ 8:56PM|

no, the MOST important thing is rule of law.

you are arguing purely a results based analysis. ... those are usually favored by types who seek "social justice" and others who put results over process.

|7.13.10 @ 4:52PM|

Jenn, you clearly misunderstand the notion of reckless indifference to human life. Recklessness must be demonstrated in the very nature of the intended act itself. An attempt to Taser a violent suspect in order to quell that suspect's physical resistance simply does not demonstrate a reckless indifference to human life. I agree with Attorney, you really should attend law school before composing such a post again.

CrackertyAssCracker|7.12.10 @ 10:11PM|

Mr Balko might be the only man on the whole planet who I'd believe in this scenario.

|7.12.10 @ 10:37PM|

I find the verdict unsatisfying, but I think it's the best verdict we could hope for given the circumstances (cop defender). And it's a shame that it was probably fear of rioting that got us even this.

But even this will (hopefully) put cops on notice that they are accountable, and hopefully the next time this happens we'll get a more just verdict.

Anonymous|7.12.10 @ 10:44PM|

For what it is worth, Mehserle's defense also seems to have claimed that he meant to use his taser because he believed Grant was reaching for a weapon.

Coeus|7.13.10 @ 12:46AM|

It's worth absolutely nothing. They always say that.

Anonymous|7.13.10 @ 10:55AM|

And sometimes it is true. If it is in Mehserle's case, it would certainly be relevant, especially given so many here have argued that his use of his taser was unjustified.

Coeus|7.13.10 @ 7:51PM|

Actually, you have no idea if it's ever been true.

|7.13.10 @ 2:47AM|

as a LEO myself, i have a lot of respect for balko. this article is just another example of why. he's willing to look at evidence, whether exculpatory or incriminating and call 'em as he see 'em, but more importantly - his vision is clear. most people's reaction to this case hasn't been, imo.

|7.13.10 @ 12:58PM|

That's because you are a jack-booted thug like all the rest of the Blue-Clad gangsters. Go fuck yourself with your service weapon and do the world a favor.

|7.13.10 @ 7:06PM|

troll-o-meter attempt: 2.5

(suckitude)... please try again

Chrispy|7.13.10 @ 4:36AM|

Under California law, a defendant must have acted with malice in order for a killing to be elevated to murder. To find malice, a jury must determine that the defendant committed the act that caused the death, that the "natural and probable consequences of the act were dangerous to human life," that "at the time (he/she) acted, (he/she) knew (his/her) act was dangerous to human life," and that "(he/she) deliberately acted with conscious disregard for (human/ [or] fetal) life."

I'm no expert on the laws in California, but by the criteria specified here, Mehserle is guilty of murder. According to this paragraph, it isn't even relevant whether or not he mistook a gun for a taser:
-There's no dispute that he committed the act that caused the death.
-The natural consequences of the act (shooting someone in the back) is dangerous to human life.
-He must have known at the time he acted that shooting someone is dangerous to human life.
-Whether he deliberately acted with conscious disregard for human life is the only requirement that's even debatable. I'd say shooting an unarmed man in the back easily qualifies.

And even if you believe the story that he mistook a gun for a taser, and you change the definition of "act" from what happened to what he believed was going to happen, he's still guilty. Tasers can and have killed people before, so the probable consequences of [shooting someone with a taser] is still dangerous to human life, and a cop must have known that beforehand.

Maybe that's not really all it takes for someone to be convicted for murder in California. But the evidence presented in this article supports the conclusion that Mehserle is guilty of murder.

|7.13.10 @ 5:17AM|

that's rubbish. tasers are NOT dangerous to human life. i've volunteered to be tased twice, as have scores of cops i know. thousands have done so, nationwide. nobody has died.

when people die AFTER (note i didn't say "because of") tasering, invariably a # of thse factors apply - extremely poor health, fight or fight situation, drug or even polydrug combo, etc. etc.

people have ALWAYS died in such situations. i had a guy (nearly) die in a (approx.) 5 minutes wrestling match to get him into handcuffs. subsequently was revealed he had cocaine AND meth on board ( nice!), and was generally in pretty poor health (inadequate nutrition, etc.). if i had tased him, people like you would say - oh, the taser caused it. rubbish.

the science is pretty clear on this. tasers are remarkably safe (considering that they jolt you with electricity).

almost any use of force can, in some rare circumstance result in a death - even a punch to the nose, or a baton shot to the leg (i read of one case where this happened).

but almost every incident i have read of where somebody died after being tasered, you had a # of the above factors present.

|7.13.10 @ 5:45AM|

Another one of the factors, "usually" present is that there was no reason to tase the victims at all. Anymore, cops go to the taser for everything. If you don't follow the commands of a cop the very first time he says it, more than likely you are getting tased. No matter what his "command" is. You cops need to learn that your not god. The only suprising thing in this whole incident is that there were any consequences at all for this cop. I suspect the only reason there were any in this case was because they couldn't cover it up. What i really want to know is why when he had backup right there and the dude on the ground, he felt the need to tase the guy anyways. Cops are always talking about how brave they are and how ready they are to die defending you but when it really come down to it 95% are cowards that only became a cop so they could have authority over people. Their life will always be more important than yours.

|7.13.10 @ 6:08AM|

that's nice tangential rhetoric and i appreciate your energy, but not responsive to the issue i was discussing.

oh btw, i am well aware i'm not god. i've also carried a taser for 4 yrs and never had to fire it at anybody. have used it half a dozen times to gain compliance WITHOUT firing it, which is one of the reasons why tasers are such an excellent part of the use of force continuum.

|7.13.10 @ 6:10AM|

oh, and btw (n= a lot), i don't buy that 95% cowards thang. i 've seen WAY too many incidents of bravery to believe that.

Anonymous|7.13.10 @ 11:04AM|

As noted in my comment just above, Mehserle seems to have believed he did have reason to use his taser, as he claimed he thought Grant was possibly reaching for a weapon.

|7.13.10 @ 4:26PM|

Oh well, a "number of factors" apply in Taser-related deaths. Factors such as "etc. etc."

That sure narrows it down. As long as the Taser itself isn't implicated, right? You know where your bread is buttered.

|7.13.10 @ 7:11PM|

i know what the AUTOPSY reports say, etc.

a taser is a useful tool, and one that is REMARKABLY safe, far safer than (for example) a baton strike.

if i was a suspect who was offering resistance such that it would justify that level of force in the continuum, would i rather be tased, pepper sprayed, or struck with a baton? tased.

i should note that i have volunteered to be tased twice. tens of thousands have similarly volunteered (at least once, ) to include cops, and journalists.

deaths? ZERO

hth

Jenn|7.13.10 @ 12:51PM|

100% agree. I have read on penal code 187 and 188, and involuntary manslaughter and voluntary manslaughter over and over. I have read the code and the jury instructions and you are totally correct on this, which is why the involuntary manslaughter conviction was a compromise verdict.

Some Guy|7.13.10 @ 10:47AM|

Felony murder. The death was a result of a crime on the part of the officers.

Jenn|7.13.10 @ 12:13PM|

Agree.

|7.13.10 @ 4:57PM|

What would be the underlying felony? (Please remember the Merger doctrine when composing your reply).

|7.13.10 @ 7:12PM|

i am waiting either for (scrupulous) silence, or some obfuscation on the part of the claimant, although some wacked out legal theory would be more fun...

|7.13.10 @ 12:32PM|

Why did Mehserle use the taser? His defense claims that he thought Grant was reaching for a weapon. Is this likely? Grant was not handcuffed at the time he was shot and had not been searched for weapons. So Mehserle certainly didn't know that Grant was unarmed.

In addition, Grant's previous behavior makes it pretty easy to imagine how an officer might think that he was reaching for a weapon. He was a twice convicted felon who had previously been incarcerated for fleeing from police while carrying a loaded gun. On previous occasions, he had continued resisting arrested even after being subdued with a Taser.

It doesn't matter that Mehserle had no prior knowledge of Grant's history. The fact that Grant had previously continued to be violent during arrest gives one reason to believe Mehserle's claim that he thought Grant was reaching for a gun. It provides reasonable doubt about Mehserle's intentions. And reasonable doubt is exactly what this case was about. The jury was correct in this decision.

|7.13.10 @ 12:36PM|

I'm having a very hard time believing Mehserle could actually hold and fire a handgun, all the while thinking it was a taser. Handguns have a very distinct and recognizable shape. I would like to know the exact make/model of the taser and the handgun so I could find pictures, but from what I've seen the two are completely different shapes. So different one would know the difference immediately upon having the object in hand. It's like saying a guy went to grab his electric razor and instead grabbed a gun and shot himself in the face. It's just not reasonable. As a juror, I would have a very very hard time believing that argument. I'm supposed to believe the officer was either carrying his gun with the safety off, very bad move on his part, or that he was able to operate the thumb safety, put his index finger through the trigger loop and squeeze off a round, all while the the gun was in his line of sight, and all the while believing it was a taser. Sorry, that's bollocks.

jacob|7.13.10 @ 1:20PM|

Furthermore, the handgun that Mehserle had issued was a Sig Sauer. If it was the p226, that's a fairly heavy handgun, and it seems odd one would confuse it and a taser.

HOWEVER, let me say that I agre with Balko's premise about the jury's verdict.

|7.13.10 @ 7:17PM|

have you ever been in a shooting? i have. i can tell you that in both cases (shooting and holding a taser (i have never deployed it at a suspect, though), the weight was not even noticed by me.

there are all sorts of physiological quirks that happen in fight or flight response (diminishment of fine motor control, "tunnel vision" etc.) that are well documented by scientists, not cops.

my taser is signficiantly lighter than my firearm, however, the feel is actually remarkalby similar. imo, that's a design flaw and should be changed... by taser (the company).

it's really not that odd, that he would confuse the two, given the factors mentioned. certainly, it at least presents a reasonable doubt, which is why the correct charge is involuntary manslaughter. was he negligent? yes.

|7.13.10 @ 2:38PM|

Absolutely agreed. The "I thought it was a taser" defense is hogwash. The notion that you can easily mistake a taser for a loaded handgun is just insane.

|7.13.10 @ 4:26PM|

Your point is very inconvenient for Taser Corp. employees such as Dunphy.

|7.13.10 @ 7:21PM|

i have posted here NUMEROUS times before, in non-taser related threads. the idea that i am a taser employee who came here for this post is thus countered by what seems to be kryptonite to you -evidence.

tasers should not, imo (as a police firearms instructor) , be shaped like or similar to in general - firearms.

as an instructor, i have done shoot/no-shoot drills, and other such drills to differentiate them from guns, but given sufficient "n", it is not surprising that officers have mistaken one for the other, under fight or flight circumstances (massive adrenaline dump, etc.).

i've been involved in shoot/don't shoot scenario, have had a gun pulled on me, etc. etc. and the idea that the weight differential necessarily negates the officer's defense is absurd.

should taser change their design, since law enforcement officers routinely CARRY handguns AND tasers and the two should feel DIFFERENT? yes.

so as a CRITIC of taser, it's a bit hard to swallow your ad hominem.

but then for those that have no fact based argument, ad hominems are all ya got.

|7.13.10 @ 10:55PM|

I was surprised to find taser models that were shaped just like handguns. This immediately struck me as a real problem. There should be no ambiguity when an officer is reaching for a gun or taser. They should be remarkably different, in shape and probably texture, anything that would keep the user from grabbing the wrong one.

|7.14.10 @ 12:00AM|

i totally agree. neither my pepper spray nor baton is at all able to be confused with my gun. tasers should be similarly dissimilar.

the model i carry is actually very similar. on more than a few occasions, i have had people ask why i was carrying "two guns" on my hips.

|7.13.10 @ 10:55PM|

I was surprised to find taser models that were shaped just like handguns. This immediately struck me as a real problem. There should be no ambiguity when an officer is reaching for a gun or taser. They should be remarkably different, in shape and probably texture, anything that would keep the user from grabbing the wrong one.

|7.13.10 @ 5:12PM|

I'm having a very easy time believing that Mehserle could have unholstered and fired a handgun without elevating and aiming it, under the mistaken impression that he was actuating a Taser. I have held both handguns and Tasers, and would not find the confusion completely unlikely unless Mehserle had actually raised and aimed along the sighting plain of the weapon. And remember, the prospect has to be so unlikely that it negates any reasonable doubt or speculation as to Mehserle's motive.

|7.13.10 @ 5:14PM|

LOL..,make that "sighting plane!"

|7.13.10 @ 5:48PM|

I have found some pictures of tasers. Some are in fact, very much like a semi-auto handgun, see: http://www.google.com/images?h.....;gs;_rfai=

and others are not. Given that I don't know the specific unit used by officer Mehserle, I have to reserve judgement. Even so, this guy is supposed to be a trained professional with a high degree of familiarity with the tools at his disposal. One would think he would at least know where on his belt to reach for one or the other.

|7.13.10 @ 9:57PM|

in this regards, i'd be curious to look at his training records in BART PD and BART PD's training IN GENERAL.

as a police firearms instructor, i know many agencies are inadequate (i would argue the vast majority that i have reviewed) and many are shockingly bad. and how well officers are trained in using their "tools" in these types of scenarios, imo (and based on my specific training as an instructor and my experience) is in general inadequate.

i would suspect his training and training records specifically came up in the trial.

i am not privy to them, though, thus i reserve judgment

|7.13.10 @ 4:34PM|

Didn't the guy jump bail, leaving for Mexico or something?

Bart Pair|7.14.10 @ 9:05AM|

Radley,

this article shows why your opinion and expertise on police/public interactions is head and shoulders above the rest.

I had not considered that if Mehserle had been convicted of murder it would lend justification to Corey Maye's ridiculous conviction, but you are exactly right.

Prejudice against police/citizens and preferential treatment for police/citizens impacting convictions is wrong. Period.

Thanks for making that obvious.

ExPat ExLawyer|7.14.10 @ 10:46AM|

Radley, there is plenty of evidence that this German is a murderer. Circumstancial evidence inferred by conduct. He pulled a gun and shot somebody. That action in and of itself is evidence. If the jury wanted to believe an ludicrous story of error, they could do that. They could also go with the best evidence - the act itself.

Think of it this way. If the defendant were not of the porcine species, and untrained about left vs. right, Taser vs. Glock, he of course would have been convicted.

Whatever, judgie at least needs to go for the mid-term on the sentencing. All that time in solitary will feel like 20 years.

|7.14.10 @ 11:19AM|

Here's where I would have hung the jury on sec. 188. Such malice may be express or implied. It is express when
there is manifested a deliberate intention unlawfully to take away
the life of a fellow creature. It is implied, when no considerable
provocation appears, or when the circumstances attending the killing
show an abandoned and malignant heart.

Implied malice as it the victim's actions did not rise to considerable provocation.

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