Why Mehserle should have been convicted of murder

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.


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Georgia Sand

Georgia (George) Sand is an attorney located in sunny California. She enjoys beer, jogging, the beach, music, and chatting with her cats in her spare time.