Last Thursday afternoon a jury in Contra Costa County returned a verdict in the case of Brian C (a minor) vs. Contra Costa County Health Services, a medical malpractice case concerning negligent management of a twin pregnancy which resulted in the death of one twin and severe brain injury of the other. The jury determined that the surviving twin would likely live another 74 years, would never be employable, and would need extensive future medical care for the rest of his life for a total future damage award of $111,700,000. [Read more...]
Rains Lucia Stern, PC trial attorney Eustace de Saint Phalle and his co-counsel Michael Gatto win a future damage award that exceeds $100,000,000 in a medical malpractice case
FEDERAL JURY IN SAN FRANCISCO CLEARS FORMER BART POLICE OFFICER JOHANNES MEHSERLE OF CONSTITUTIONAL RIGHTS VIOLATIONS IN THE FATAL SHOOTING OF OSCAR GRANT III
By Michael Rains, 7/28/14
Although I am still exhausted from what I call the “Trial from Hell,” I am writing to report a tremendous verdict by a federal jury in San Francisco on July 1st relating to the fatal shooting of Oscar Grant III by our client, former BART Police Officer Johannes Mehserle.
Background of the Incident
On January 1, 2009, Oscar Grant III (“Grant III”) and five of his friends were detained by BART Police Officer Tony Pirone on the platform of the Fruitvale BART station shortly after 2:00 a.m. as a result of their suspected involvement in a fight in the lead car of the BART train traveling from San Francisco to Fremont. Officer Mehserle and his partner, Officer Jon Woffinden, arrived on the Fruitvale BART platform at 2:08:35 a.m. to assist Officer Pirone and other officers in the detention of Grant III and his friends. At the time of Officer Mehserle’s arrival, Grant III and his friends were visibly angry, and a number of other passengers on the platform (fueled no doubt by some of Grant III’s friends who had not been detained) were yelling profanities and engaging in hostile behavior toward the police.
At Officer Pirone’s direction, Officer Mehserle watched Grant III and the other detainees who were seated near a wall while Pirone checked with the train operator to determine the extent of the fight and the condition of any victims. After checking with the train operator, Officer Pirone returned to Officer Mehserle’s location and placed Grant III and one of his friends, Jack Bryson Jr., under arrest for violating Penal Code section 148. Bryson immediately stood up and angrily confronted Officer Mehserle by making a back hand swing at Officer Mehserle with his left hand. In response, Officer Mehserle pushed Bryson to the platform floor and told him he needed to cooperate or he would get tased. Officer Mehserle then immediately handcuffed Bryson while he was on his knees.
After that, Officer Mehserle moved to his right to handcuff Grant III, who at the time was also on his knees. However, as soon as Officer Mehserle grabbed Grant III’s right hand, Grant III pulled his hand away and his body shot forward and down toward the platform floor. As Grant III was moving toward the platform floor, he rotated his body and made contact with the platform floor on his back with Officer Mehserle straddling him. Officer Mehserle and Officer Pirone were able to turn Grant III to his stomach to begin handcuffing him; however, Grant’s hands went underneath his body.
Officer Mehserle started to grab at Grant III’s right hand and arm and was yelling at him to give up his hand. At one point, Grant III’s hand started to come out from under his body as Officer Mehserle tugged on it. However, before Officer Mehserle could gain control of it, Grant III’s hand went into his right front pocket where Grant III appeared to be grasping for something. Officer Mehserle, concerned that Grant III might have a weapon in his pocket, promptly announced that he was going to tase Grant III. This announcement was overheard by both Officer Pirone and Grant III’s friend Jack Bryson Jr. Officer Mehserle then began drawing what he believed was his Taser, stood up (to create distance so that the probes would spread and create neuromuscular incapacitation), and fired.
Mehserle testified that when he did not see the probes imbedded in Grant III’s back he looked to his right hand to determine if the Taser had malfunctioned and saw his handgun. He testified he felt sick to his stomach and wanted to vomit. Some of Grant III’s friends and other passengers who looked directly at Officer Mehserle immediately after the shooting observed him say words to the effect of, “Oh shit, oh shit.” Grant III’s friends and other passengers observed Officer Mehserle quickly holstering his weapon (contrary to firearms training) and throwing his hands to his head. A number of people described Officer Mehserle as appearing to be in a state of shock.
The Criminal Case
Mehserle was charged initially by the Alameda County District Attorney’s Office with murder and I substituted into the criminal cases as his attorney after charges had been filed. Due to the amount of pre-trial publicity the case generated, as well as physical threats on the lives of Mehserle, my family, our staff, and me, the trial of his criminal case was ultimately moved to Los Angeles. Although Mehserle was tried only on the single charge of murder, after four weeks of trial, the District Attorney’s Office requested that the jury be instructed on the lesser-included offenses of voluntary and involuntary manslaughter over my objection. The judge agreed to do so and, on July 7, 2010, the jury acquitted Mehserle of murder and voluntary manslaughter, but convicted him of involuntary manslaughter.
The Federal Civil Rights Actions
In the aftermath of the incident, Grant III’s mother filed a civil suit against BART and Mehserle on behalf of Grant III’s daughter and herself. At a later date, Grant III’s father (Oscar Grant Jr.), whom his mother had divorced in 1996 and who was incarcerated in California State Prison at Solano for a 1985 murder, filed a separate action for the loss of companionship and society with his son. In addition, one of Grant III’s friends on the platform, Johntue Caldwell, filed a separate action against BART Police Officer Marysol Domenici, alleging that Officer Domenici used excessive force against him and unreasonably detained him by forcing him onto a BART train car shortly after the shooting just before the train doors closed, thereby preventing him from remaining on the platform so that he could be by the side of his dying friend. His lawsuit sought damages for the emotional distress of that experience.
Although BART had paid to settle the lawsuits brought by Grant III’s mother and daughter, it had not been willing to offer much money to settle the lawsuits brought by Grant Jr. against Mehserle or Caldwell against Officer Domenici. BART hired me to represent Mehserle in Grant Jr.’s action
The civil case brought by Grant Jr. was consolidated with the civil case brought by Caldwell (who had been killed in an unrelated incident before the trial began and whose interests were represented by his mother at trial).
In order to prevail and collect damages, Grant Jr. had to prove two different facts to the jury: (1) that Mehserle intended to harm Grant III by acting maliciously, sadistically and intending to punish him or teach him a lesson when he shot and killed him; and (2) that Grant Jr. and his son, Grant III, had a “familial relationship” at the time of the shooting which involved deep attachments and commitments to one another and which resulted in the sharing of a special community of thoughts, experiences and beliefs and the distinctively personal aspects of each other’s lives.
The RLS team consisted of attorney Steven Betz, veteran investigator Bob McFarlane and me. Steven’s excellent writing and research skills were invaluable in pre-trial motion work. The investigation, analytical and computer work done by Bob was exceptional and unparalleled.
The trial lasted a little over three weeks. We were able to select an excellent jury, due to a selection system that we had developed during the federal prosecution of eight correctional officers at Corcoran State Prison, and used successfully in the Oakland Riders trials, Mehserle’s criminal trial, my partner Harry Stern’s defense of Richmond Police Officer Dedrick Riley, our colleague Michael Schwartz’s recent defense of Fullerton Police Officer Jay Cicinelli, as well as the majority of our firms other jury trial matters (many of which have been chronicled in these pages). The jury was comprised of individuals who were smart, well-educated, analytical, and who demanded evidence and proof of the two different facts which Grant Jr. had to prove in order to prevail.
At the commencement of the trial, Judge Edward Chen gave both sides a combined total of 25 hours during which they would have to complete opening statements, direct and cross-examination of witnesses, and closing arguments. Judge Chen repeatedly warned Grant Jr.’s attorney that he needed to focus on issues as they related to Mehserle, and not to issues relating to Officer Pirone, who was not a defendant in this action, but whom Plaintiff’s counsel wanted to portray as an overly aggressive and vile police officer who illegally detained Grant III and his friends and used excessive force on Grant III during the course of that detention. Because Grant Jr.’s lawyer wanted to focus the jury on Officer Pirone’s behavior, he wasted many hours calling witnesses whose testimony was irrelevant to proving the case against Mehserle.
The evidence presented on the two issues Grant Jr. had to prove came down to the following over the course of the three-week trial.
1. Did Oscar Grant Jr. Have a “Close Familial Relationship” with His Son at the Time of His Son’s Death?
The jury found that Grant Jr. failed to establish that he had a sufficient familial relationship with his son at the time of Grant III’s death. The evidence indicated there was no close familial relationship whatsoever, and that Grant Jr. really knew nothing of a personal nature about his son prior to his death. This became clear when Grant Jr. testified. On direct examination, he claimed that he loved his son dearly and that his son’s mother used to bring him to see him in “contact visits” every other weekend until 1998. Thereafter, he would talk to his son frequently by making telephone calls to his Aunt, and having his Aunt “patch” the call to his son’s phone.
On cross-examination, it became evident that Grant Jr. had no familiarity with basic personal information about his son: the junior high he had attended, the high school he had attended, whether he had played baseball during high school, girlfriends he had dated, whether he had gone on vacations or to family reunions with his mother, what church he attended or whether the church was an important part of his life. He had claimed on direct examination that he had talked to his son three days before his death and that when his son told him he was going out with friends on New Year’s Eve, he told his son: “If you’re going to drink, don’t drive that car.” On cross-examination, when I asked him what the make and model was of his son’s car, he had no idea.
In order to support his claim that he and his son had a “close familial relationship,” he produced one undated letter allegedly written by his son (one and a quarter pages in length) and one undated Father’s Day card allegedly signed by his son. When I questioned him about the letters, Grant Jr. insisted that he had actually received many letters and many cards from his son, but had been forced by prison officials to get rid of them. I questioned him about the “numerous” letters he claimed to have written to his son and reminded him that apparently they had not meant enough for his son to save them, because they were never produced by him, his lawyer, or by Grant III’s mother following Grant III’s death. After Grant Jr. testified, and testified poorly at that, his lawyer made a questionable tactical decision to introduce the testimony of Grant III’s mother, Wanda Johnson. Because Ms. Johnson would not be able to testify at trial due to a trip out of town, we had to hastily take a videotaped deposition of her in Oakland during one of the days the jury was not hearing testimony. That turned out to be a disaster for Grant Jr.
During Johnson’s deposition, she supplied all of the personal information regarding her son that his father had no knowledge of: junior high and high schools he had attended, sports activities he had been involved in, girlfriends he had dated, the car he had owned during the last year of his life (a 1964 Buick), numerous family reunions he had attended with his mother, the vacations to Disneyland he had gone on, and all kinds of other activities which his father had absolutely no knowledge of during his testimony. Grant Jr. testified that his son’s career goal was to be a “baseball player.” Johnson said that her son’s goal was to be a “barber” or a “pastor.” Although Grant Jr. had no knowledge of his son’s church related activities, Johnson spent fifteen minutes detailing his devotion to the church, daily—if not weekly—church activities which included singing in the choir, being a junior deacon and attending church-related social activities which were at the center of his life. While Oscar Grant Jr. did not even know the correct name of the mother of his son’s daughter (he called her Sophia), Johnson told the jury that her name was Sophina. Grant Jr. did not know the name of his son’s best friends in the last five years of his life, but Johnson named them and talked about the fact that Grant III would see them almost every day.
Grant Jr. also admitted on cross-examination that he had not seen his son during the last seven years of his son’s life, partly because he conceded, his son had also been convicted of felony offenses and placed on parole shortly after he had turned 18, and was not eligible to visit his father in prison unless his parole officer gave him permission. Although he claimed his parole officer was trying to work on a visitation of his son with Grant Jr. during 2008 before his son’s death, there were no records that his son had in fact ever made an application after turning 18 to visit the prison.
If that were not enough, we called as a witness the public information officer at CSP Solano, who testified that Grant Jr. had a “personal space” of six cubic feet in which he could keep all cards and letters written by his relatives and that prison officials did not require or even request inmates to destroy personal cards and letters. In fact, it was recommended that the prisoners retain personal cards and letters from relatives to read and re-read for personal enjoyment.
The public information officer also noted that the prison records of visitations to Oscar Grant Jr., once they were automated in 1993, showed that Johnson (contrary to her sworn deposition testimony) did not visit the Plaintiff at all between 1993 and the end of 1997. She never entered prison grounds with a minor, meaning, of course, that Grant’s claim that she brought her son to see him every other weekend until 1998 was completely bogus.
More significantly, we introduced signed applications to visit the prison by Johnson in 1986 and one in 1997, which were clearly distinctly different signatures. Although Grant Jr. himself had claimed that Johnson had not visited him in 1998 or thereafter “because we went through changes,” his visiting record starting in late 1997, 1998 and 1999, showed over 80 visits by his “ex-wife” (without a minor). When I showed Johnson the 1997 visiting application during her videotaped deposition, she appeared dumbfounded and was clearly unable to explain the distinctively different appearance of that signature to the early signatures which she readily identified as hers. All of this led to us pointing out to the jury in our closing argument that the 80 plus visits to Grant Jr. during 1998 and 1999 preceded his conviction for dealing narcotics inside the prison in April 1999. Although that issue may have been unrelated to the “familial relationship” with his son, it nevertheless provided the jury insight into the extent of dishonesty that both Grant Jr. and his ex-wife were willing to practice on the jury in order to convince them to award him money.
The jury saw through the Plaintiff’s feeble case, and found that Grant Jr. did not carry his burden in establishing his familial relationship with his son. With that finding, Grant Jr. could not succeed in his claim for damages; however, further establishing the weak nature of the Plaintiff’s case, the jury also returned a verdict for the defense on the second issue: whether Mehserle acted with intent to harm Grant III.
2. Did Johannes Mehserle “Intend to Harm” Oscar Grant III on January 1, 2009?
Once again, the jury found that there was absolutely no evidence presented by the Plaintiff to establish that Mehserle had acted “maliciously, sadistically, and with a purpose to harm or punish” Grant III when he shot him on January 1, 2009. The evidence that was introduced through a number of witnesses established that Mehserle had repeatedly trained to draw and fire his Sig Sauer P226 DAK model pistol from the Safariland ALS holster thousands of times to develop “muscle memory.” In contrast, just three weeks prior to this incident, Mehserle had been trained at BART to use the X26 Taser. That training had involved an eight-hour course (much of it academic and presented through a PowerPoint) and the drawing of the Taser from a holster in a classroom approximately ten times from several different holster configurations. After that, Mehserle, like other BART officers, was allowed to carry the Taser in several different holster configurations which were almost always different, because BART officers were not assigned a Taser but instead had to find whatever Taser and holster configuration was available at the beginning of their shifts.
We called Sergeant Paul Garcia, the BART firearms instructor, to testify about the purpose of repetitive training in the drawing of firearms. Sergeant Garcia demonstrated the way in which an officer draws a firearm from the Safariland ALS holster Mehserle wore on January 1, 2009 (thumb movements downward, forward, and directly back) versus the drawing of a Taser from its holster (thumb movements inward, and then forward). Through this testimony, we primed the jury for what the video showed in this case.
While Mehserle was on his knees, he announced his intention to tase Grant III, and reached with his right hand for the firearm in his ALS holster. However, Mehserle was unable to get the firearm out of its holster because the video showed him pushing inward with his right thumb, ostensibly to push the inside snap of a Taser holster. After increasing physical force to try to get the gun out of the holster, the gun actually came out from the right side of Mehserle’s leg due to the amount of force he exerted. The video showed him finally getting the gun out of its holster after pulling on it three times, and starting to stand in order to create distance. The BART firearms instructor testified that if Mehserle intended to shoot Grant III, there was no reason for him to stand up at the time.
Sergeant Garcia also testified that since the P226 DAK model pistol did not have a safety or de-cocker on the slide of the weapon, there was no reason for Mehserle’s thumb to move in an upward direction on the slide of the weapon just before firing it. Yet, from one of the six different videos taken of the incident, as soon as the weapon was removed from its holster, Mehserle’s right thumb moved forward on the slide of the weapon, identical to the demonstration provided to the jurors of the way an officer activates the selector switch on an X26 Taser.
Sergeant Garcia told the jury that Mehserle had been trained to fire multiple rounds to stop a threat if he intended to use his firearm, and that the firing of a single round from the firearm would be inconsistent with that training. He also testified that an officer who intended to shoot a subject was trained to keep the weapon pointed at the target after the shooting in order to scan and assess whether the suspect had been disabled. Clearly, as the video showed, Mehserle immediately holstered his weapon after the shooting, contrary to his training, and threw his hands to the side of his head.
The video evidence clearly showed that Mehserle was using thumb movements consistent with an officer who thought he was drawing and firing a Taser. That evidence, coupled with testimony from a Taser expert about the eight other reported cases of firearms/Taser confusion was compelling to this jury. As the expert pointed out, one of the eight other cases mirrored identically the same ALS holster in the same location on the equipment belt and a yellow X26 Taser to be drawn in a cross-draw motion using the dominant hand as involved in this case. In addition, all eight other “mistaken firearms” cases involved two common characteristics with this case: (1) the officer used his/her dominant hand to draw both the firearm and the Taser, irrespective of where the Taser was located on the officer’s equipment belt; and (2) the officer, when firing the firearm, fired a single round, and not multiple rounds.
The jury told us after the trial that it was convinced that Mehserle accidentally used his firearm instead of his Taser based upon the expert testimony, the testimony from the BART firearms instructor, and watching the video evidence. However, they added that there was no other evidence showing that Mehserle had intent to “maliciously or sadistically” harm or punish Grant III. Indeed, Mehserle had arrived on the platform only two and one half minutes before he shot Grant III; during that time, he had been calm despite an agitated scene; he had not been heard yelling at anyone, he had not been heard uttering a profanity, and when he had seen Grant III, who was sitting against the wall pulling out and talking on his cell phone, he had simply instructed Grant III to “put it away.” Interestingly, while Grant III had the cell phone out of his pocket and was talking, he actually took a photograph of Mehserle standing in front of him, and the photograph showed Mehserle’s face not even looking in the direction of Grant III and without any look of anger at all.
When Mehserle was angrily confronted by Bryson about one and one half minutes before the shooting, Mehserle simply pushed Bryson to the ground, moved in behind him and hand-cuffed him matter-of-factly without a display of anger or over reaction. One eye witness, whom we called to testify, saw Mehserle trying to get Grant III’s hand out from under him and said that Mehserle did not appear to be angry but just appeared to be “doing what he needed to do.” The same witness stated that while Mehserle was wrestling with Grant III’s hands, she looked at Grant III’s face and observed him say, “Don’t tase me man.” This confirmed the fact that Mehserle had issued such a warning about his intention to use his Taser before he shot Grant III seconds later.
The jury in this case not only unanimously found in favor of Mehserle, but also found that Officer Domenici did not unreasonably detain Caldwell. In fact, Caldwell’s claims were bordering on the absurd and were refuted by the video evidence taken by the BART platform camera that morning. Thus, this trial was a resounding victory for Officer Domenici and her attorney, Alison Berry Wilkinson, as well as for Mehserle and me.
The finding of this jury is really not significantly different than the finding reached by the criminal jury in Los Angeles. That jury decided that Mehserle did not have any intention to shoot Grant III. There, the jury concluded merely that Mehserle’s actions were negligent and resulted in a death, hence the involuntary manslaughter conviction.
While BART paid for the defense of Mehserle and Domenici in this case, it could have refused to do so by claiming that both officers were “acting outside the course and scope of their employment” in connection with the allegations leveled against them in the two different complaints. We are heartened that BART stood by both officers throughout this ordeal, but we are also very much aware that, had BART not done so, LDF had consistently advised both Alison and me that it would retain us to provide our respective clients a defense in connection with these specious allegations.
From the beginning of this incredible saga on January 1, 2009, PORAC LDF has stood in the trenches with and for Johannes Mehserle, and the Trustees have continuously expressed their support and extended their hand of friendship to Mehserle in their approval of coverage for his defense and through other gestures of support.
When we met with the jurors following this trial, more than a few tears were shed in the San Francisco Federal Courthouse as they asked if they could hug my client. As that occurred, there were words of thanks from Mehserle and kind words of encouragement by the jurors. Officer Domenici was also the recipient of hugs and wishes of success in her continuing police career at BART.
Johannes Mehserle is 6’4″ and 250lbs, but he almost flew out of the San Francisco Federal Courthouse on July 1, 2014 like a feather, no longer having to bear the enormity of the weight of these allegations. He is done testifying about the events of January 1, 2009 at 2:11:03 a.m., even though the memories of that moment will never go away.
By Steven Betz, 7/7/14
An issue that continues to cause concern, confusion, and anxiety for law enforcement officers, the general public, attorneys, and jurists is to what extent the government can intrude into the data that we all store on our cellular telephones. Since “smart phones” began to see common use in the general public in 2007, the average American carries with him or her voluminous private data in a small device that rarely is beyond arm’s reach. [Read more...]
Verdict: No Monetary Damages for Oscar Grant’s Father
San Francisco Federal Court – Today a jury, presided over by the Honorable Edward Chen in San Francisco’s Federal District Court, found that Oscar Grant, Jr., the father of Oscar Grant III, is not entitled to monetary damages from former BART police officer Johannes Mehserle for “loss of familial relationship” after the unintentional shooting of Grant at BART’s Fruitvale Station in 2009.
“Five years later, the wounds are still there – I’m relieved that we can finally put this tragedy behind us, not just for Johannes and his family, but for the entire community,” said Mike Rains of Rains Lucia Stern, Mehserle’s defense counsel. Rains also defended Mehserle in the 2010 criminal trial. [Read more...]
Particular Danger Required for Maintaining the Confidentiality of Peace Officers’ Names in On-Duty Shooting
By Zachery Lopes, 6/6/14
In an opinion issued on May 29, 2014, the California Supreme Court has declared that, absent particular facts demonstrating a specific danger, the names of officers involved in on-duty shootings are a disclosable public record. The Court’s decision in Long Beach Police Officers’ Association v. City of Long Beach, et al., also creates a concern that the definition of “personnel records” may be read more narrowly in various contexts in the future. [Read more...]
By Zachery Lopes, 6/4/14
In a ruling which strongly affirms Graham v. Connor’s guidance on analyzing use of force under the Fourth Amendment, the U.S. Supreme Court has unanimously found that Arkansas police officers did not use excessive force in violation of the Fourth Amendment when they shot and killed a fleeing motorist, ending a high-speed car chase which risked the lives of both the officers and numerous innocent bystanders. [Read more...]
By Rocky Lucia 5/2014
The Comprehensive Outline: Rocky Lucia’s Negotiating Body Worn Camera Policies Outline
COURT OF APPEAL DISMISSES CIVIL SUIT FILED BY L.A.P.D. OFFICERS FOR NUMEROUS VIOLATIONS COMMITTED BY INTERNAL AFFAIRS INVESTIGATORS
By Michael L. Rains and Jonathan Murphy 4/28/14
A recent decision entitled Quezada v. City of Los Angeles by the Court of Appeal for the Second District reminds us about the collision course created between off-duty cops and Internal Affairs Investigators where shots are fired, the “suspects” are cops who have just left a bar, and the Investigators think they are lying.
In Quezada, the Court affirmed a lower court ruling dismissing the civil suit filed by three Los Angeles Police officers alleging that the Department deprived them of interrogation rights under POBRA during the investigation of an incident involving the off-duty discharge of a firearm. Quezada et al., v. City of Los Angeles, (January 8, 2014, Los Angeles County Super. Ct. No. BC464380), 14 C.D.O.S. 234. [Read more...]
By Michael P. Neufeld 4/8/14
San Bernardino, CA – Over 400 crime victims, surviving families of homicide victims and those involved in assisting crime victims gathered at the San Bernardino County Government Center for a Victims’ Rights Week Memorial Ceremony. The event — hosted by the San Bernardino County District Attorney’s office — started at high noon with an invocation by Bishop Gerald Barnes of the Roman Catholic Diocese of San Bernardino.
San Bernardino County Sheriff-Coroner John McMahon led the flag salute after the presentation of the color by the Sheriff’s Honor Guard.
On March 6, 2014, Rains Lucia Stern, in conjunction with the Buena Park Police Association, hosted a symposium on “The Kelly Thomas Trial, Not Guilty Verdict: The Effect on Orange County and You”.
For those who were unable to attend please below an attached overview of the salient points from Rocky Lucia’s presentation regarding the labor perspective on body worn camera policies.
Click to view: Rocky Lucia’s Negotiating Body Worn Camera Policies Outline