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OAKLAND — At least two BART police officers accused of contributing to the death of Oscar Grant on New Year's Day were simply trying to defend themselves against an unruly passenger, an attorney representing BART said in court filings Friday.

Responding to a $50 million wrongful death lawsuit filed against BART, attorneys for the transportation agency said that Officers Anthony Pirone and Marysol Domenici acted appropriately when they restrained Grant at the Fruitvale BART station.

BART also admits, in the filings, that Grant's death was a "tragic accident," but refuses to determine liability because all the facts of the case have not been presented.

Grant was killed by former BART police officer Johannes Mehserle, 27, during the early morning hours on New Years Day at the Fruitvale BART station. Mehserle, who is charged with murder in Grant's death, shot the 22-year-old as he lay prone on the platform with both hands behind his back.

Mehserle's criminal defense attorneys have argued in court filings that Mehserle intended to use his Taser on Grant but grabbed, and used, his handgun by mistake. They also said that Mehserle was responding to a violent Grant who had already attacked a fellow officer and was resisting arrest.

In the lawsuit response filed in U.S. District Court, BART also claims that the BART officers were acting in self-defense. Had they not responded with force against Grant, the former grocery store worker would have beaten them, the lawsuit states.


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"Oscar Grant willfully, wrongfully, unlawfully made an assault upon defendants and would have beaten, bruised and ill-treated them if defendants had not immediately defended themselves," the lawsuit states. "Defendants necessarily and unavoidably came in contact with decedent Oscar Grant and threatened him but no more than necessary for said defense."

BART does not take a position on Mehserle and instead wants to reach a settlement with the Grant family before the case goes to trial.

"The actions involving Mr. Mehserle and Mr. Grant resulted in a tragedy," said Dale Allen, the attorney representing BART. "It was a tragic shooting and at this time, I don't have any information whatsoever as to what Mr. Mehserle is going to say in his defense."

But others, including Alameda County District Attorney Tom Orloff, do not believe Mehserle had justification for shooting. Orloff filed the criminal charges against Mehserle, saying the former officer killed Grant with malice.

John Burris, who filed the $50 million lawsuit against BART on behalf of Grant's family, said he was not surprised by BART's response.

"It does not alter my thinking or assessment of the case. I have witnesses and a number of videos that support the position that Oscar Grant was wrongfully killed," Burris said. "No jury is going to find that (Grant) is responsible for this officer"... shooting him."

Reach Paul T. Rosynsky at prosynsky@bayareanewsgroup.com or 510-208-6455.