The Mehserle Decisions

It's been several days since the Johannes Mehserle sentencing decision has been made. As many from both sides hoped, cooler heads did not prevail, with 152 arrests that night in Oakland. Car windows were destroyed, fences knocked down and private property torn up. After a protester ripped a holstered gun from an officer and another officer was hit by a car, suffering "non-life threatening injuries," the protest was declared an unlawful assembly. Some of those arrested were reportedly found with mace and gasoline in their backpacks. We can only imagine their intent, but most are likely thankful these "peaceful protesters," with the exception of the man who ran down an officer with a vehicle, were apprehended.

Because the man who a judge and a jury declared had accidently shot and killed a man who had been involved in a fight and was resisting arrest will only serve two years.

But let's look at the reality here before we turn another criminal into a martyr for the cause of civil liberties yet again. Grant had been convicted himself of "various felonies" and had in his short life already served two sentences in prison. Grant had been arrested and in possession of a gun in 2007 and was tasered while resisting arrest. Some feel this was irrelevant in the case against Mehserle , as he would not have known this information at that time, and we could argue the validity of this point endlessly. However, there is no debate as to what an officer knows, only the relevancy, and perhaps in a direct sense, that does make it irrelevant. But officers, like any human make assumptions and act upon them every day. In a situation where you have a man who was high, involved in a fight with possible weapons reported via 911 and now resisting arrest, do you assume you're dealing with your average citizen or someone who poses a potential danger to you? Does it go through your mind that this person acting out in front of you may have a history that puts you at increased risk.

Does a man who is "doing better" by family accounts really get high on Fentanyl, a highly addictive, narcotic pain reliever, and alcohol and hang out until 2 AM, then, according to witnesses, get in fights on the subway started by his friends calling a young boy names?

Nothing Grant did or didn't do will change the way a parent feels at the loss of a child. Nothing Grant did or didn't do will bring him back now. But neither will punishing a man unfairly for doing a job for which he is reliant on affective training for provided by his employer. Mehserle is not the first officer to accidentally pull a gun instead of a taser, and if agencies like BART are allowed to continue to cut away at critical training, he likely will not be the last one either. It's happened in Madera, CA and Somerset County, MD and in Kitsap County, WA, to name a few. Mehserle is the first officer who is being punished for this accident. Instead of pushing on our elected officials, Law Enforcement leadership to ensure that officers don't carry weapons they aren't thoroughly and completely trained to use, we've take the easy path of blaming one of the victims in the circumstances.

But all the above, is now lost in the noise of yet a 3^rd riot in this case; A riot where an officer's gun was ripped from his belt, another run over, and rioters creating a situation where police and civilians were endangered unnecessary in residential communities by yet more "peaceful protesters." Those of us in every community seeking to have each of our citizens treated equally have faced yet another step back today, and are burdened with another failed civil rights "saint" who can rightfully be argued as a contributing part of the problem rather than the solution.

We all must be accountable for our actions, including the Oscar Grants in this world. Did Mr. Grant deserve to die in this tragic manner? Probably not. But he is accountable for his actions and his behaviors that night, too. He is responsible for understanding the potential outcome of his actions and accepting responsibility for them. You can be certain in the vast majority of instances, an officer is less worried about your skin color and far more worried about the actions you are taking as you interact with him or her. White, black, latino, asian, all of us have been taught to think carefully about actions like reaching into your coat pockets, or areas of your vehicle not readily visible to an officer. Most of us realize an officers job places them in serious risk and they are not mind readers, cannot tell the future and cannot know the intent behind any action unless you tell them. This is not a phenomenon strictly given to the black community as we hear claimed more and more; it's a fact of dealing with police. And the more police who die in a hail of bullets because they stopped the "wrong" person like happened in March 2009 in Oakland, when Lovelle Mixon, also "doing better" after his latest stint in prison according to his family, shot and killed 2 officers execution style and later killed two more in a SWAT operation trying to subdue him before being killed himself

What should be noted in this tragic event is that Officer Mehserle intended to use a "less lethal" option than deadly force in this incident. Officer Mehserle reverted to training and drew his side arm. Officer Mehserle made the required announcement that he was going to use his taser and then fired the fatal shot. Officer Mehserle then made a spontaneous utterance denoting his mistake in firing his department issued sidearm. What is not being considered is that Officer Mehserle acted within his training during this tragic incident, the minimal training on the taser did not impart a muscle memory that was ingrained in the use of a firearm when confronted with a deadly force option, in which Officer Mehserle reverted to when in the high stress incident. Had Officer Mehserle never made the announcement he was about to use the taser and fired the fatal shot he could have claimed he was fearful Grant was about to use deadly force by the fact that in Officer Mehserle's view Grant was arming himself. Officer Mehserle could have simply then claimed he was fearful for himself or those around him and he used justifiable deadly force, however Officer Mehserle took the high road and admitted to his mistake in firing his sidearm, which he thought to be his taser. Now Officer Mehserle is being sent to prison for a lack of training on the tools he was required by his agency to carry and now that same tool has been pulled by his agency after it was determined officers need more training. We must remember that the taser is a "less lethal" option and not what everyone wants to believe a "non lethal" alternative.

Given all the above in our determination of Johannes Mehserle's actions, we must consider what a Taser is in the eyes of Law Enforcement; a "less lethal" option to the use of deadly force and not a "must" alternative to the use of deadly force. It has to be understood that officers not seen in the video would have been covering Grant with weapons drawn should the Taser not stop the actions of Grant and should Grant have had a weapon himself and tried to use it. We now know that Grant did not have a weapon and officers were responding with the knowledge they were dispatched with. Courts have ruled in the past that if an officer is being tried, the court may only consider the information the officer had at the time of the incident and not the totality of collected information post incident. (US Supreme Court, Graham v. Connor (1989) and Lester v. City of Chicago, 830 F.2d 706 (7th Cir.1987)) We must remember that had Officer Mehserle not been armed with a taser and considered the actions of Grant to be threatening and he felt in danger for himself, other officers or the citizens on the train platform Officer Mehserle would have been justified in the use of deadly force.

There are many who feel that Mehserle should not have spent a single day in jail for his actions, who feel that the decision to send a man to jail, turn him into a convicted felon, take away his career and future, for a legally validated decision made during the course of his job is wrong. But worse, there are many who are concerned that this will affect the willingness of an officer to do their job. That each step backwards in favor of a proven violent criminal over an officer where a court and jury determines his actions to be "accidental" rather than "criminal" will lessen the effectiveness of every officer on the street that much more.

Perhaps it is time to help the police. Perhaps it is time to stop excusing the Oscar Grant's and Lovelle Mixon's of this world their lack of responsibility as citizens. Perhaps it's time to stop accepting "no snitch" communities as acceptable. It's time to stop blaming the police for not solving murders when we stand silently by, failing to impart information that would solve those cases. Perhaps it's time to stop putting on the blinders with our own family members and say they're "doing good" when they're committing crimes under our noses. Help them, where you can, or recognize the risks they pose to themselves and stop blaming it on others as painful as that can sometime be. Maybe, just maybe, the riots pouring into the streets that contained our homes rather than our businesses will drive this point home. Riots and violence against our own communities have helped nothing. Pretending crimes don't happen haven't provided opportunities, lifted poverty or made streets any safer.

We know now what doesn't work, how about trying things that work.

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Sources:

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/11/06/BAL91G8A33.DTL
http://conversations.blackvoices.com/entertainment/99435682aaea4564b24369ed6fc90973/oakland-residents-r .../b29a3d42fd634b138e4a85bf1801eb8f
http://www.ktvu.com/news/19523065/detail.html
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/07/MNHH154IV9.DTL
http://cdn.sfgate.com/chronicle/acrobat/2009/01/30/motion_for_bail.pdf
http://www.maderatribune.com/news/newsview.asp?c=56821
http://findarticles.com/p/articles/mi_qn4183/is_20101024/ai_n56159691/
http://www.kitsapgov.com/sheriff/mediareleases/2007/02-09 ag decision nat%27l ave shooting.pdf
http://www.ktvu.com/news/23164719/detail.html
http://www.ktvu.com/news/18983600/detail.html
http://supreme.justia.com/us/490/386/
http://openjurist.org/830/f2d/706