I hear a lot of irrelevant considerations in the discussion regarding the Oscar Grant shooting. Some of these reasons include “because I like police,” “because without police, there would be anarchy,” “because police are racist,” or “because Oscar Grant was a thug.”
None of these opinions are relevant. Liking police has no bearing on what Mehserle did. Neither does anarchy. Race, and Oscar Grant’s criminal history too are entirely inapposite when analyzing whether Mehserle committed the act of murder.
As for the people out there (and there are quite a few of you) who believe Mehserle should have received no penalty at all because it was an “accident,” I might point out to you that many people kill others completely by accident, yet they are punished. Among such accidental deaths are DUI killings, leaving a child in a car who overheats and dies, locking your fire escape exits and causing people to burn to death, not taking a very ill child to the doctor on time, etc. So unless you think police are above the law, you should believe that even “accidental” killings by police deserve some kind of punishment.
That being said, the disagreement most other people had over Mehserle’s conviction was whether he should have been convicted of second degree murder, versus involuntary manslaughter.
Murder is defined as the following, under California penal code 187:
(a)Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.
California jury instructions on malice state the following:
There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. The defendant acted with express malice if (he/she) unlawfully intended to kill.
The defendant acted with implied malice if:
1. (he/she) intentionally committed an act;
2. The natural consequences of the act were dangerous to human life;
3. At the time (he/she) acted, (he/she) knew (his/her) act was dangerous to human life;
AND
4. (he/she) deliberately acted with conscious disregard for (human/ [or] fetal) life.
Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.
The judge threw out the first degree murder charge because he did not feel there was enough evidence for it. As such, express malice (intent to kill) were not relevant to this jury’s inquiry. However, Officer Mehserle could have been found guilty of second degree murder under an implied malice theory.
One controversy with reaching the verdict was the issue of whether Mehserle knew he had a gun in his hand when he shot Mr. Grant. Although the idea that someone could mistake the two might be plausible (but I have heard even cops believe this would be a difficult mistake to make), the action of shooting Mr. Grant cannot be viewed in a vacuum.
The attending circumstances are relevant to the determination of whether there was in fact a mistake. For example, it might be believable that a particular defendant accidentally shot someone – until you hear testimony or see video of the defendant eating ice cream while watching the victim to die in a pool of blood.
Similarly here, Mehserle’s reaction to shooting Grant was hardly one of shock or surprise. Many people cite to Mehserle’s act of moving his head and touching his hair as sign of “shock,” but this is disingenuous. Turning your head a few times and briefly caressing your tresses cannot reasonably be understood as a sign of surprise, much less shock.
Arguably, a normal person who had “accidentally” shot someone in the back would administer resuscitation techniques if they knew how, would run or call for help or an ambulance, and would probably completely freak out. Police, who are trained in emergency situations, would similarly be expected to know how to yell for help or call an ambulance.
Mehserle did none of these. Instead, he looked to his fellow officer (who also did not seem surprised) and calmly handcuffed the deceased, as per police protocol. So, are we to believe this officer was so shocked and horrified…that he was able to remain relatively calm and composed enough to remember the correct police procedure for what to do after shooting someone?
Indeed, the other officer’s reaction is as telling as Mehserle’s. Put yourself in the same situation. If your friend or co-worker unexpectedly shot someone in the back, would your reaction be to panic, then yell for help? Or would it to be to flip the dead body over, drag it to the side and help handcuff the deceased?
Furthermore, three officers who testified at Mehserle’s trial said that Mehserle never once told them he had mistaken his gun for a taser, or that the shooting was an accident. Viewed in its entirety, this is precisely what occurred: Mehserle and his comrade yanked Mr. Grant off the wall where he was sitting, kneed him in the neck, forced him to lie face down on the ground, shot him in the back, and without much ado rolled his dead body over and handcuffed it.
These attending circumstances were such that it was clear, at least in my mind, that Mehserle made no mistake. In my opinion, these horrendous actions constituted enough action such that there was enough evidence to find Mehserle guilty of first degree murder. However, as this was thrown out by the judge, a second degree murder conviction would have been most appropriate.
Mehserle intended to use his gun, the natural consequences of which are dangerous to human life. His actions before and after the shooting do not indicate surprise or mistake. At the time he shot Mr. Grant, he knew his action was dangerous to human life, and he acted with conscious disregard for Mr. Grant’s life by shooting him in the back.
Now let’s say you totally buy the taser story. Let’s say it was a complete accident, and Mehserle and his police comrade really were both incredibly distraught, shocked and horrified internally, even as they calmly handcuffed the dead body and coldly tossed it aside. Then what?
I would argue that even then, a second degree murder conviction would be reasonable. Based on the plain text of penal code 187, it would seem that this would still satisfy the elements of second degree murder (although, certainly, case law, judges and juries frequently ignore the plain language).
First, there was no call to use a taser on an unarmed man lying face down on the ground. Second, Mehserle knew at all times he was carrying a taser and a gun. He must know, as a police officer who always carries both a taser and a gun, that when he grabs something out of a holster, points and shoots, that there is a 50 percent chance that he could be shooting a gun. The act of drawing a random weapon without checking what the weapon is, and firing at someone’s back without any hesitation, is a knowingly intentional act, the consequences of which are dangerous to human life.
A defendant need not have intended to kill someone to be convicted of second degree murder (that would be first degree); they merely must have intended to do that dangerous act. The failure to adequately assess the situation, and failure to ensure that he in fact was deploying a taser, was an intentional and dangerous act which exhibited conscious disregard for human life.
Perhaps penal code 187 simply doesn’t apply to someone with a badge and a gun. Indeed, no officer has been convicted of murder in Los Angeles in the last 30 years or so. The last murder “conviction” in 1983, involved an officer who called a sheriff’s station and falsely reported a disturbance at the home. He waited to be assigned to deal with the report. The officer pounded on the door at the home and pretended to be a stranger evading police. Delois Young, who was eight months pregnant, opened the door carrying an unloaded rifle. The officer fired three shots, killing her fetus and wounding her. The judge overruled the conviction and reduced it to an involuntary manslaughter conviction with a one-year sentence. The appeals court reinstated the murder conviction, but allowed the sentencing to stand. As such, this was really merely a murder conviction in name.
Unless you believe that police are naturally better human beings than the rest of us, it is pretty hard to justify why such heinous crimes would be punished as involuntary manslaughter, when these officers certainly would have been convicted of murder if they were ordinary citizens.
Ok, but how is punishing him going to help the family of Grant, who are the only remaining victims in this situation?
1. Oscar Grant was murdered.
2. Mehserle murdered him (no matter how some law written on paper defines it).
The system is corrupt and favors cops. Intelligent people understand this. So how does convicting Mehserle of 1st or 2nd degree murder change this? The victim and his family aren’t any better off. Regardless of whether Grant was murdered on purpose or accidentally, shouldn’t he be forced to pay compensation to the family for his actions. If Mehserle killed Grant accidentally, he should pay Grant’s family for their loss. If Mehserle killed Grant on purpose, he should still pay the same amount to Grant’s family.
Now, I’m not talking about Mehserle hiding behind the badge and the government, forcing the tax payers to pay Grant’s family (which means Grant’s family will have to pay part of their own compensation). I’m talking about Mehserle being forced to pay Grant’s family out of his own pocket (and future earnings) until he has fulfilled his compensation to Grant’s family. That’s the only way to make things whole between both parties.
But we all know this system will never exist in the USA, especially not in California. The only way that will happen is if the government of a small state collapses or secedes (come on, NH!).
Jacob – I agree with you almost completely. However, the only point I would dispute is that intelligent people understand the system is corrupt and favors cops. I feel a lot of people, even intelligent ones, have a idealized, biased and elevated perception of cops as people. They either believe that the system does not favor cops, or they believe that it should favor cops.
From what I have read in various news sources, and from the bitter criticism I received on an earlier article I wrote on the same subject, many, if not most people think a murder conviction of any sort would have been unfair and cruel to Mehserle.
I’m not saying that convicting Mehserle of second degree murder would help compensate the victims. I’m just saying that 1) it WAS murder, whether people want to believe this or not (and most people don’t believe this), and 2) there’s something seriously wrong with treating police as above the law, or deserving of special treatment.
That’s why I say intelligent people realize the system and cops are bad. How smart can someone truly be if they aren’t smart enough to have all the evidence in front of their faces and still believe the police are “heroes” that exist to protect the public.
You can lay out every possible reason why cops are dangerous and almost no one will chance their opinions on cops. The truth is, cop loving is a religion that most people blindly follow without knowing it. You’d have greater success getting devout Christians to convert to atheism than converting cop lovers to realists.
They can be smart, but ignorant, I think. Everyone has their own biases. Sure, stupid people are unable to absorb certain evidence, but for some smart people, it’s selective attention, apathy or selective ignorance that makes them unable to come to the conclusion we have.
I wouldn’t necessarily conclude that anyone who thinks cops are great, or even necessary is stupid… that probably would mean 90% of the population is stupid and beyond hope…eek.
From Wikipedia on “willful ignorance.”
a term used in law to describe a situation in which an individual seeks to avoid civil or criminal liability for a wrongful act by intentionally putting himself in a position where he will be unaware of facts which would render him liable.
I feel that most people do not want to know how bad the cops are because ignorance is bliss. Although, I still say most people are stupid when it comes to their love affair with cops and the legal system. They can be smart in general, but claiming cops are heroes and should be above the law falls into my definition of stupid. But that’s my take and I understand yours.
I live in the DC area and this place is always crawling with cops. The people fear them, they don’t respect them. That’s dangerous.
In the article, it was mentioned that murder was defined in California as this:
“(a)Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.”
Doesn’t that mean that they’re admitting that a fetus has equal rights as a human being when it comes to murder? And doesn’t the wording of this definition imply that fetuses AREN’T human beings (if fetuses were human beings, then why go to the trouble of saying “a human being, OR a fetus…”)?
The logical implications that I’m getting from this definition is that non-human beings deserve equal rights when it comes to murder as human beings. Doesn’t that mean, following the logic, we should change the definition of murder to this all-inclusive one?:
“(a)Murder is the unlawful killing of a human being, or a fetus, or an animal, or a plant, or a fungus, or a bacterium, or a rock, or a car, or any measurable quantity of matter or energy in the entire known universe, with malice aforethought.”
And how exactly can you kill a non-human being, anyway? I can understand for living beings, such as animals and plants, but a rock is also a non-human being. How do you kill a rock?
I’m sorry if no one here wants to talk about abortion, but the logical contradiction in California’s definition of murder seems to me to be a necessary thing to address.
Andy, you bring up a good point. There is also a provision in 187 that goes on to exempt abortion procedures performed by licensed doctors, or something to that effect. I didn’t want to include it in my article because I thought it would not be relevant, but i was thinking the same thing when I read penal code 187. It clearly creates fetus as a distinct category from human beings, but then also says that you can be punished for murder for killing a fetus. What gives?
Abortion really is a touchy issue. I can kind of understand why people support the rationale behind punishing someone for murder for killing a 8-9 months fetus… however, I am very liberal in my support of abortions. I don’t really think there should be legal limits on it (I trust doctors to make the correct medical decision, not politicians), and am in full support of intact D&E (partial birth abortions).
Honestly, it seems to come down to, what constitutes as a human being? And on this it seems there will never be any agreement. It could be argued that an 8-9 month old fetus is likely viable outside the womb, and is almost the same as a newborn infant. Thus, killing an 8-9 month fetus should be punished no differently than killing a newborn infant. On the other hand, you could argue that things that are inherently “human” qualities include a combination of self-awareness, ability to perceive future or time, empathy, and sympathy, none of which a newborn infant possesses. In many ways babies are about as “human” as dogs or cats. They have no inherently human qualities, but are considered “human” just because they popped through a vagina? So then, maybe killing babies should not be murder? But that would seem utterly absurd to most people.
Maybe the way to evaluate is from the parent’s perspective, based on how much grief the killing causes them, and they should be compensated accordingly.
From a police accountability perspective though, my point would just be that the law is what it is. A normal person under the circumstances of the Los Angeles officer (1983 incident) would have been convicted of murder, but this officer was given a one year sentence.
I’ve been doing a bit more reading on this case. One of the officers who was at the BART station with Mehserle is a pretty sick fuck. She basically blamed Grant for getting murdered because he didn’t “follow orders” and said that she thought she might “have to” kill some of the bystanders after they became angry in response to the shooting.
See here for details.
Oh god! What a heinous bitch. So she thinks the penalty for disobedience of police and yelling should be death? Fucking Nazi!
The United States is a fascist police state. Don’t be surprised when the government protects their own. It’s only natural for gangs to protect their own.
The answer to this problem is to abolish the government monopolies as they exist now and allow for new competing systems to spring up out of voluntary exchange.
Jenn, I find it hard to believe that a lawyer actually wrote the post you did; its as if you didn’t watch the available video footage or bother to familiarize yourself with the facts of the case; let me enumerate just a couple of your misconceptions:
a) it is obvious that Mehrserle was “surprised”. This is available from the video footage. His composure or demeanor following the shooting demonstrates in large part the fact that the police are trained to follow procedures and remain call, not to freak out and run around yelling for an ambulance (that isn’t there). There were so many cops on the scene that there is no shortage of officers available to take verbal instructions from ones who are otherwise occupied.
b) I have never seen any videos of police shootings in which the officers have initiated resuscitation. Besides, he was shot, not having a heart attack, what resuscitation measures do you suggest? Or are you also a doctor in addition to a lawyer?
c) The cops did not handcuff a lifeless body. Grant died at a hospital.
Furthermore, there is no evidence at all that Mehrserle intended to shoot Grant. Therefore the implied malice criteria would not apply, and thus your premise AND conclusion are both erroneous.
The only loophole I see that could save your theory involves changing horses : you could argue that the intentional use of a Taser meets all the conditions for implied malice. To me, that would be a much better argument. If a court would rule or at least acknowledge as evidence that a Taser has caused the loss of life, then presumably anyone who has received a Taser for use in official duties would have the burden to be aware of such important information about the lethality of the product.
However, the fact that you have conveniently ignored Grant’s behavior that landed him in this situation informs me that you have a bias. While I am horrified by the many clear instances of blatant police brutality and illegal and abusive behaviors available in video format, the shooting of Oscar Grant is clearly accidental. And lest anyone forget, it was an accident set in motion by Grant himself, due to his earlier behavior. I am not mentioning this as some kind of rationalization for his shooting; there is no need to do that – it was an accidental incident, not an intentional one. I am simply pointing out the causal chain leading up to the accident. While it doesn’t absolve the officer of responsibility for his error, which he has now been given, it explains HOW the incident occurred.
@ JQ Bart police has a history of violence and cover-ups, like when they charged this man with assaulting an officer. As seen in this video as the officer threw this persons head threw a window and there was no assault. How can you trust this police Dept?
http://www.liveleak.com/view?i=094_1258942496
I know in the video the person may seem drunk but he is actually mentally disabled. And where do you see him assault an officer? If not for the video the charges would have stuck. The Jury would believe the police and Us the innocent people would be locked in a cage for another police officer beating or killing a human being.
I don’t care that it is not police procedure to resuscitate shooting victims. If anything, this further supports my contention that police regularly commit murder and get away with it – it’s practically embedded into their policies. Just step away from police procedure, and what they are trained to do, and assess the video as a human being. Is it reasonable for a human being to knee a man in the neck, subdue him and shoot him in the back? And you argue that he looks “surprised,” but again, I would hardly think turning your head a couple of times and touching your hair is any sign of significant surprise or accident. If a normal human being did this, and then handcuffed the person they just shot and rolled them over, would this not lend support to a finding of depraved heart murder? It absolutely would. Yes, Mehserle maybe exhibited some “surprise,” as if maybe he had accidentally stepped on a large spider or had just seen something vaguely unexpected. He exhibited the surprise maybe of someone who had meant to shoot someone, but was just realizing what his actions entailed. He certainly did not exhibit the “surprise” one would expect of someone who accidentally shot a man. And again, he did not once tell any of his comrades that this was an accident or that he thought his gun was a taser.
Grant’s behavior was that of a rowdy, noncompliant citizen. He was yelling? He was talking back to officers? That is irrelevant. The punishment for that is not assault, much less death. The officers could have easily walked away from the situation and nothing would have happened. I expect that is what normal citizens would have done, and I expect no different from police. You can tell by the attitudes of all the officers that were there, just what this was. One female officer said that she wanted to shoot people in the crowd because they were protesting. The other officer involved in subduing Grant similarly showed zero surprise when Grant was shot. If you really think that this was an accident, clearly you are the biased one. You are among the people who see procedure, training, badges and guns, and give a clearly different standard to police because of these meaningless symbols.
It is no answer to say that it was police procedure to handcuff the person, and not to seek help, and therefore he gets a different standard for murder. This makes no sense. Maybe you can’t think of any resuscitation measures that are appropriate here, but for god’s sake, at least call an ambulance instead of standing around like nothing bad happened. Are you seriously arguing that the officers here did the same thing any normal person would have? If that’s the case I have seriously lost faith in all humanity. I would be quite shocked if anyone I knew “accidentally” shot someone in the back, and their first reaction was to touch their hair briefly, handcuff the injured person, and roll his body over, rather than to call for help or seek medical attention.
The intentional use of a taser does not meet the conditions for implied malice. A taser does not kill people in the vast majority of instances, and I do not believe that use of a taser would be reckless disregard of a human life, although it might amount to some sort of negligence. It would be an unprecedented stretch to say that use of a taser, which does not usually kill people, is “reckless disregard for human life.”
Oh, and during trial, this came up:
Additional footage from a cell phone was presented in court showing Pirone (Mehserle’s equally unsurprised comrade) standing over the prone Grant before the shooting and yelling: “Bitch-ass nigger.”
Ultimately, if you judge the police as if they were normal human beings, they would clearly be murderers. You can only diminish their culpability if you subscribe to the theory that police should abide by, and are held to, different standards. If that is the case, then we fundamentally disagree.
JQ Jones – I don’t know if you are a lawyer or not, but the surprise would actually be irrelevant for a second degree murder charge. My main argument was that when one is a police officer, and at all times is carrying a taser and a gun, it is incredibly reckless to not assess the situation carefully, and to recklessly draw your gun instead of your taser. Drawing a random weapon when you know you have a 50% chance of fatally hooting someone is reckless indifference to human life. You don’t need to intend to shoot or kill for second degree murder. You need only have intended to do that dangerous act, whatever it may have been. Mehserle intended to draw some weapon (regardless of what he thought that weapon was) and that act of drawing a weapon when there was a 50% chance of killing someone, was an inherently dangerous act.
The classic law school example is that of firing a gun into a small crowd of people. You may not have intended to shoot anyone, much less kill anyone. You have have even aimed for the spaces in between people to avoid hitting anyone . You may have had ZERO intent to shoot anyone. However, if you do kill someone, your act of firing a gun recklessly would qualify as second degree murder because it was an inherently dangerous act, it was an intentional act, and it was reckless.
The situation here is quite similar. Except the dangerous act was recklessness in picking the correct weapon.
Fact of the matter is, Mehserle intentionally committed a dangerous act (the act of drawing a weapon, not necessarily the act of shooting someone), which caused someone’s death.
“The intentional use of a taser does not meet the conditions for implied malice.”
Based on the definition you listed, I would agree, but I still have to wonder why Mehserle would have been trying to tase Grant. At least one of the videos I watched clearly shows that Grant’s hand were behind his back when he was shot (incidentally, Pirone lied about this in his testimony, claiming that Grant didn’t put his hands behind his back), so it’s not really clear why Mehserle didn’t just handcuff him.
Yes I completely agree there was no need to taser him at all! Much less shoot him! Good god!