I was the use-of-force expert for former BART Officer Johannes Mehserle, who was charged with first-degree murder, then convicted of involuntary manslaughter. Since his conviction 30 hours ago (as I write this), Johannes Mehserle sits in the Los Angeles County Jail, awaiting sentencing in a few weeks. We are left to wonder why. I’ll try to provide some answers.
My mission in working with the Mehserle defense was to explain to the jury the policy, training, equipment, and tactical issues that affected Johannes Mehserle’s actions on the BART platform during the early-morning hours of January 1, 2009. It was obvious from the beginning that this incident grew out of yet another case of weapons confusion involving a TASER and a handgun.
Certainly there are a number of lessons to be learned. My article is directed at police trainers and policy makers, and any of the rest of you in law enforcement that wonder how such a tragic mistake could happen, and what can be done to prevent future similar situations.
So what happened out there? I will give you the facts as I know them.
There was a fight on a BART train in Oakland involving New Year’s Eve celebrants. The train engineer called for police assistance. Police pulled people believed to be the fighters off the train. Several were detained who cooperated, and they were handcuffed without any use of force. Oscar Grant was at times cooperative, and at times he resisted. When it was his turn to be handcuffed, he physically resisted. He was taken to the ground, face down. One officer controlled his head and shoulders. Officer Mehserle’s job was to handcuff Grant. Grant “turtled” his right arm underneath his body. Mehserle (who is pretty big and strong) tried mightily for several seconds to get Grant’s arm out.
Mehserle was unable to gain control of the right hand and arm, despite strenuous efforts, clearly established on the video. Earlier that night Mehserle was present when other officers recovered a gun from a suspect's right-front pocket. Three prior documented times in his short career, he and his partner had removed guns from suspects' right-front pockets.
Mehserle observed Oscar Grant's hand going into the right-front pocket. Mehserle worried that Grant may be going for a gun. Mehserle decided to stop the action with a TASER. Mehserle never considered using his handgun. He himself had taken a 5-second ride with a TASER back-shot during his first TASER training less than four weeks earlier, and experienced neuromuscular incapacitation.
One of the wild myths out there in the public about this case is the assertion that an officer would never pull a TASER if he or she thought they might be facing a deadly force scenario. This is false. Officers frequently use TASERs in imminent deadly force situations (sometimes wisely, sometimes not, but that’s for another article). I introduced a multi-page exhibit that documented many, many such cases from court records around the country.
Mehserle loudly announced to the other officer, "Tony, get back, I'm going to tase him. I'm going to tase him." Multiple witnesses (including at least one of Oscar Grant's nearby handcuffed buddies) heard Mehserle's "I'm going to tase him" announcement, and so testified.
At the time, BART did not issue TASERs and holsters individually to officers. They are rotated, shift to shift. Sometimes you get one, sometimes you don't. When you get one, there are three different holster configurations at BART. Weak-side/weak-hand; strong-side/weak-hand crossdraw; and (the one Mehserle happened to have that particular night) strong-hand/cross-draw. They also informally allowed weak-side drop holsters, although that was not written in their policy. (I know that some of you prefer “dominant” and “nondominant” and other labels for the strong-hand, weak-hand concept. No offense, I get it, but for my whole career it was strong-hand, weak-hand, so permit me at this advanced age to use that terminology.)
Mehserle's (strong) right hand moved to his right side (instead of to his left-front, where his TASER was located in a cross-draw holster), and he partially gripped his handgun with his fingers. His right thumb moved back and forth in the air, in and out toward his own ribcage, inches above where the handgun holster safety was, consistent with the motion needed to undo the TASER holster safety strap if a TASER holster were there (which it was not); and totally inconsistent with undoing the Level-3 handgun holster — these motions are clearly seen on video.
For about four seconds, Mehserle unsuccessfully tugged at his handgun, then it came out. Dr. Lewinski testified that Mehserle subconsciously performed an “automatic program” (one that he was very practiced at) when his decision-making degraded under stress. We know from research that under stress, performance is negatively affected, and we react with movements that are most familiar to us.
Mehserle raised himself up to a level consistent with firing a TASER to achieve a minimally good dart spread. (Weeks earlier he had learned that two feet of distance gets you a four-inch dart spread, which is the minimum spread needed to achieve NMI.) Mehserle aimed at Grant's back and fired ONCE (i.e., not the two or three times that officers are trained to shoot a handgun in rapid succession when facing an immediate deadly force threat.)
Witnesses stated (and multiple videos confirmed) that a moment after the shot, Mehserle looked stunned, in shock; he immediately returned his handgun to its holster, contrary to training to scan and assess when you shoot somebody; then he immediately placed his hands on his forehead, exhibited a bewildered look on his face and uttered panicked expletives.
Mehserle bent down, handcuffed Oscar Grant as per standard post-shooting practice, located the bullet hole and applied direct pressure, tried to keep Grant talking, and watched him fade away.
All of Mehserle’s movements except the mistake of drawing the handgun itself instead of the TASER, were consistent with drawing and activating and deploying darts from a TASER. One of the videos also clearly shows Mehserle's right thumb in an upward-sweeping motion along the left side frame of the gun as soon as he draws it, in a manner and place totally consistent with activating the TASER arming switch (safety). There is no decocking device on Mehserle’s Sig Sauer P226DAK handgun, so that thumb move was not at all consistent with preparing to shoot a handgun. We can also see on video that Mehserle’s left hand was placed near the frame of the handgun (not on the grip), and that his left hand reflexively flew upward and away from the handgun when the shot occurred.
I've tentatively concluded that the jury went with involuntary manslaughter on the basis that Mehserle was engaged in a lawful act—the arrest of Oscar Grant III — and that he accidentally drew his handgun while intending to draw his TASER. The jury found that he was criminally negligent in that he didn’t reasonably follow policy and training.
I presented an exhibit for the jury documenting the seven known weapons-confusion cases in the past nine years where an officer shot someone while intending to use his or her TASER. Here is a reprint of the text of that exhibit:
March 2001. Sacramento, CA police officer intends to fire a TASER at a resisting handcuffed suspect in backseat of police car. He instead draws and fires his handgun, shooting the suspect. (nonfatal, M26, strong-side leg holster, strong-hand draw)
September 2002. A Rochester, MN police officer intends to fire a TASER at a resisting suspect. He instead draws and fires his handgun, shooting the suspect. (nonfatal, M26, strong-side cargo pocket, strong-hand draw)
October 2002. A Madera, CA police officer intends to fire a TASER at a resisting handcuffed suspect in the back seat who was attempting to kick out the window of the police car. She instead draws and fires her handgun, shooting the suspect. (fatal; strong side leg holster, M26, strong-hand draw)
October 2003. A Somerset County, MD sheriff's deputy intends to fire a TASER at a fleeing warrant suspect. He instead draws and fires his handgun and shoots the suspect. (nonfatal; M26, strong-side leg holster, strong-hand draw)
September 2005. A Victoria (BC) constable intends to fire a TASER at a resisting suspect. He instead draws and fires his handgun, shooting the suspect. (nonfatal; X26, strong-side cargo pocket, strong-hand draw).
June 2006. A Kitsap County, WA sheriff's deputy intends to fire a TASER at a suspect. She instead draws and fires her handgun, shooting the suspect. (nonfatal; M26, strong-side holster, strong-hand draw)
January 2009. A BART police officer in Oakland, CA intends to fire a TASER at a resisting suspect who is prone and refusing to give up his arm for handcuffing. He instead draws and fires his handgun, shooting the suspect. (fatal; X26, strong-hand cross-draw)
Only Mehserle was criminally prosecuted.
Late in the game, a few days before my testimony, it occurred to me that all of the incidents involved a strong-hand TASER draw, regardless of holster type or placement. The lesson from that is to get the strong hand out of the game! Consider requiring an officer’s TASER to be in weak-side holsters requiring a weak-hand draw to reduce the possibility of another tragic case. Dr. Bill Lewinski (Force Science Research Center) and I have discussed this issue, and we believe that it would significantly reduce the risk (maybe not totally eliminate, but reduce the chance) of having a weapon-confusion incident. A few months ago, BART changed policy to require weak-side, weak-hand-draw TASER holsters only. We were precluded from mentioning that in front of the jury.
I also testified about BART’s training, which did not put trainees through stress-inducing scenarios. It is essential that trainers put officers through their paces with training that is dynamic, stress-inducing, and requires officers to make quick force-options decisions. The training must truly test the officer's ability to be ready for stressful encounters on the street.
As Dr. Lewinski told me, “You need rapid decision-making under stress with time pressure. You need to build the decision-making process under stress in order to condition the officer for the realities on the street.”
Do you do that at your agency?!
Several media outlets are reporting that the jury also found that the California law involving the use of a gun during the commission of a crime (the so-called "gun enhancement") applied in this case. This one is a head-scratcher, because according to my reading of the jury instructions on that issue he would have had to intentionally use the firearm. That seems contrary to the involuntary manslaughter verdict. Legal experts are weighing in on the applicability of that law (designed to discourage robbers and such from having guns) to this case. We’ll see what the judge does during sentencing.
It was an absolute pleasure working with defense attorney Mike Rains. He is right up there with the best that an officer could ever find, and I’ve worked with many. It is most unfortunate that Mike Rains was not brought in to defend Mehserle in the early hours and days after the incident, things might have turned out way different.
Lesson: make sure you are provided a very experienced police use-of-force attorney from the get-go if you are involved in a shooting or other major use-of-force incident.
As soon as I started examining the case, I recommended to attorney Mike Rains that he also retain Dr. Bill Lewinski of the Force Science Research Center as Mehserle’s expert on the biomechanics concerning the weapons-confusion issue. By now I would imagine that most if not all readers would know of Dr. Lewinski’s sterling credentials and reputation. It is always a pleasure to work with such a dedicated professional. See www.forcescience.org.
Needless to say, this was a very difficult, politically-charged, heart-wrenching case. From the beginning of my involvement in January 2009, it was clear that there would be no winners. If you’re interested in the political and racial aspects and questionable charging decision of the Alameda County (Oakland, Calif.) district attorney in this case, look elsewhere. Others have written about that, and still others will. Being an LAPD guy, I take the Jack Webb approach: just the facts! And that’s what I’ve tried to provide you.