OAKLAND — The BART police officer who shot and killed an unarmed man early New Year's Day in Oakland could have done it intentionally or by dire mistake, and a key factor is whether the officer was armed with a Taser that day, an attorney representing the dead man's family said Tuesday.

The officer, identified as Johannes Mehserle in a wrongful death claim, is seen on several recently released cell phone videos of the Fruitvale station incident standing over Oscar Grant III, at which point the officer appears to draw his gun from its holster on his right hip and point it at Grant, who is facedown on the station floor. Within moments a gunshot is heard and, in a video released Monday night, the officer looks up and down twice, then briefly touches his face with his hand.

Many online viewers of the video have posted comments speculating the officer may have thought he was reaching for a Taser when he grabbed his gun, suggesting he meant only to stun Grant, a 22-year-old Hayward man.

"In the case I'm involved in, it doesn't matter if he was reaching for a Taser or not," said civil rights attorney John Burris, who is representing Grant's family in a $25 million wrongful death claim filed Tuesday against BART and Mehserle. "At the end of the day, it's what he did that counts."

Burris has publicly asked Alameda County District Attorney Tom Orloff to consider filing criminal charges against Mehserle, however, and said the Taser question could have bearing on that issue.


Advertisement

"If he thought he was reaching for a Taser and pulled a gun, that's negligent. That would be involuntary manslaughter, a negligent homicide," Burris said. "If he didn't have any Taser on him ... that's an intentional killing: second-degree murder."

Burris and BART police Chief Gary Gee have said the facts remain unclear whether Mehserle had been carrying a Taser that day.

BART police began training to use Tasers about three months ago, BART spokesman Linton Johnson said.

The department does not have enough of the stun guns to equip every officer with one, Gee said. When officers do carry Tasers, he added, they are kept on a separate part of their belts from their service pistols.

"They keep those Tasers on the opposite side of their gun hand, or in the middle, pointed the opposite direction so you have to turn your hand to get it," Burris said. "No movement (on the videos) suggests (the officer) was reaching for anything other than the location where the gun was."

Burris said he has not requested any information from BART police but plans to submit a request in the next day or two.

Standard-issue pistols for BART police are Sig-Sauer .40-caliber semi-automatic pistols, Gee said, and the department uses the X26 model Taser.

A loaded Sig-Sauer weighs nearly three times as much as the X26 Taser and is taller by about 2 inches, according to specifications on a gun dealer and official Taser Web sites.

When five officers responded to reports of a fight on a BART train by stopping the train at the Fruitvale station about 2 a.m. Jan. 1, they ordered several passengers to get off that train and detained some of them, officials said. Grant was among those passengers, though officials have yet to confirm whether he was suspected of being involved in the fight.

BART officials have not confirmed the exact time of the shooting. The Oakland Fire Department responded to a call for medical help at 2:13 a.m., and Grant was still breathing at 2:22 a.m. when an American Medical Response ambulance arrived to take him to Highland Hospital, where he died.

BART police and the district attorney's office are continuing to investigate the shooting. Anyone with information is asked to call BART investigators at 877-679-7000, ext. 7040, or the district attorney's office at 510-272-6222.

Organizers have written on Facebook that a protest of the shooting is planned to begin at 3 p.m. today at the Fruitvale station, 3401 East 12th St.