Monday, November 08, 2010

More Trouble with Tasers: The BART Shooter Sentenced

Johannes Mehserle was sentenced Friday for shooting young Oscar Grant in the back as he lay face down on the ground -- to the minimum sentence. When time served taken off, he could be out in seven months.

Of course we knew there would be riots. I don't approve of people rioting when a trial does not come out their way, but in this case I agree with the rioters that the sentence was probably not just. I have one very specific reason for saying that.

The judge and the jury found reasonable doubt that Mehserle intentionally shot Grant, that his own story -- that he mistakenly drew his gun thinking it was his Taser -- may well have been true. This makes sense to me. As I have said before, the intentional homicide version of events makes no sense and does not fit the above video of the tragic event. So far, I am with the judge and not with the rioters, who think Mehserle shot Grant for no reason other than that he was black.

Where the judge goes wrong is in holding that this is the only culpable mistake that Mehserle made. As it says in the above story, the judge maintains that "Mehserle would have been justified in using the Taser because Grant was resisting the attempts to handcuff him."

I cannot think of a scenario that is consistent with the images in the above video that would justify tasering. What appears to be happening is that Grant is extending an uncuffed arm straight behind him, while lying face down, and not moving that arm close enough to the other to permit its being cuffed. Look, whatever is going on there, would it justify punching Grant? Kicking him? Hitting him with a board? Of course not. Then why on Earth would it justify administering a sever electric shock?

Tasering someone is a violent act. One reason we have rules about when use of violence is reasonable and when it is not is that it has bad unforeseen consequences. People have died of heart attacks induced by tasers, or been injured by the fall tasering typically causes. One of the many bad things that can happen when a cop reaches for his/her taser is that they might mistakenly draw their gun and shoot someone.

I think Mehserle was wrong to reach for his taser in the first place. This is another reason, in addition to the one recognized by the judge, why he was criminally responsible for Grant's death, and I think it would have justified a heavier sentence than he got.


Steve said...

As a former police officer, having been in many similar situations (that all ended much differently), I would suggest that there's not nearly enough detail in the video to see what exactly Grant was doing, although he doesn’t appear to have been actively or aggressively resisting.

My comments must be prefaced with my stating that the Taser did not come along as a law-enforcement tool until after I left the profession, so I don’t have first-hand experience with the devices. That said, a couple of things do come to mind:

First, when the police have determined that an individual is under arrest (this is a legal condition, not a physical condition), having told him that he is under arrest, and having told him to place his hands behind his back to be cuffed, if the suspect refuses it is not required that the arresting officer(s) engage in a wrestling match with the arrestee. This is not Popeye and Bluto engaging in an arm-wrestling contest to see who is the strongest and who will win. The arrestee will be taken into custody so that he may be brought before a judge -- he can go the easy way or the hard way, but he is going. If the arrestee refuses to obey and passively resists, in most jurisdictions the officers are allowed to use "pain compliance" or "soft empty hand techniques" (application of pressure points) that don't cause permanent injury, but that hopefully get the attention of the arrestee and encourage his cooperation. Typically the "use of force continuum" proscribes that an officer may use one level of force higher than what the suspect is using; again, this is not about playing fair or going mano-a-mano. If the resistance by the suspect becomes more active and aggressive then the officers may escalate to "hard empty hand techniques", which include strikes to nerve bundles in an effort to stun, or to pepper spray or the baton. My understanding is that the Taser is considered at the same level of force that pepper spray is. I don’t know this department’s use of force policy, but it seems that the Taser wouldn’t have been called for in Grant’s case unless there were other elements involved that aren’t obvious from watching the video.

Second, I think there may be a problem with the fact that some models of Tasers used by police departments look, and more importantly probably feel, too much like a service pistol. In a high-stress situation, one where “muscle memory” comes into play, I could certainly see an officer making a mistake and brandishing his service pistol thinking that it was his Taser.


Lester Hunt said...

So you are saying that if I am holding one hand too far from the other to be cuffed w/o the officer shoving my hands together, the officer may, instead of doing so, whack me on the head with a night stick? That doesn't sound right to me. As a former hippie, I recall that this can cause scalp wounds and copious bleeding.

Anonymous said...

Never been a cop or a hippie but I know that the use of a taser would be categorized as excessive force. The suspects was under control even if he was verbally not co-operating. Why the cuffs were not placed on this man when he had one hand behind his back, neck restrained, and an officer straddling his body has never been fully explained. The conversation caught on the cel video is equally interesting. I wondered if the sound was ever cleaned for a transcript. A witness is either shouting "he's not resisting" or "stop resisting".

I thought the body language of the the back to the camera cop was telling too. IIRC, the rocking on feet side to side indicates a self-stimulating comforting gesture. He was just as shocked as the other witnesses.

Steve said...

Nope, I'm not saying that at all. Whacking someone on the head with a night stick just because they haven't put their hands close enough together would obviously be excessive. In fact, my department forbade striking the head with any impact weapon (baton, flashlight, etc) except in deadly force situations. Heck, I arrested guys that couldn't get their hands all the way behind their back because they were so large... it required two or three sets of cuffs linked together to restrain them.

What I am saying is if the suspect is passively resisting (e.g., arms clenched tightly to the front) and you aren't muscular enough, or don't have enough help, to force his arms behind his back to be cuffed, you aren't required to continue struggling in a futile and potentially dangerous situation that can turn from passive resistance to an attack in an instant. You typically make a split-second decision to escalate your tactics to the next level in order to get the guy into custody quickly with the least chance of injury to anyone. The longer the struggle continues the more likely someone is going to get hurt. These situations are very fluid and can go from passive resistance, to active/aggressive resistance, back to passive in the span of a few seconds.

Obviously in the Grant incident there was a catastrophic failure in this process. Whether it was a problem with training, a problem with their policy on use of force escalation, confusion between Taser and pistol, a character flaw with the officer, a freak accident, or a combination of these, I don't know.

I will bet this incident is going to be scrutinized, analyzed, and any lessons learned will be taught in police academies all over the country.

Lester Hunt said...

That makes perfect sense to me, but the sort of standard you describe here does not seem to justify use of a taser in circumstances of the BART shooting incident. (Actually, I just viewed the above video and did not previously realize that this is not the same video of the incident that I saw before -- the earlier one makes it clear that Grant is on his stomach and has his arms fully extended, straight, behind him -- not a position that enables formidable force on his part.) I'm hoping to post on this general issue again today some time.