In the early morning of New Year’s Day 2009, a group of police officers for the Bay Area Rapid Transit (BART) system stormed onto a subway train stopped at the Fruitvale stop in Oakland, California. Responding to a report by train operators that a “brawl” was taking place, the officers threw Oscar Grant, a 22-year-old black man and father from Oakland, and a group of his friends off the train. According to video footage and accounts from witnesses, the officers handcuffed Grant’s friends and lined them against the wall. Grant stood with his hands up, speaking to one of the officers, when another marched over and hit him in the face. The officer then forced Grant to the ground. The police surrounded the victim as an officer brought Grant’s hands behind his back to handcuff him, and pinned his head to the concrete with a knee. As a train full of bystanders looked on, a number of them videotaping the event and shouting at the police to stop treating the men roughly, white former-officer Johannes Mehserle stood up and shot Grant in the back. The victim died a few hours later at Highland Hospital in Oakland.
Mehserle fled to a friend’s home in the Lake Tahoe area of Nevada, where he was arrested on January 13 and pleaded not guilty to a murder charge. There was tremendous public outcry against the officers’ actions—“the execution of Oscar Grant” as described by Karen Saari of the Stolen Lives Project, an organization in the nation-wide October 22 Coalition that advocates against police brutality. Despite public support for keeping the trial in the East Bay area, on October 16 an Alameda County judge granted Mehserle’s attorney’s request for a change of venue for his client’s hearing. Mehserle’s trial will be moved to an as-of-yet undetermined location.
During the change of venue proceedings, Mehserle’s attorney Michael Rains argued that the opinions of the jury pool of Alameda County were already divided along racial lines, and that this would force Rains to question black jurors separately to ensure they would not be biased against his white client on the basis of race. Rains went on to argue that a history of systemic racism and police violence in the community, coupled with a history of community resistance to that violence, make it impossible to find an unbiased jury in Alameda County.
Morris Jacobson, the judge who granted the request, explained that the move was necessary because jurors might be fearful of violence and polarized by local media coverage. The judge’s ruling is a clear message that the actions of the court will not intend to provide the kind of justice called for by the Oakland residents that began waving signs at demonstrations that read "We Are All Oscar Grant." As Carlos Villarreal, Executive Director of the Bay Area chapter of the National Lawyers Guild who provide legal observing at demonstrations, said, “People of color who have experienced police abuse will likely be struck because the prosecutor will argue they can’t be fair. The broader context of police violence will likely be off limits as prejudicial and irrelevant.”
The courtroom is enthralled in a battle of how the events of that morning will be told and interpreted. A version of the incident that posits Grant as a danger to the officers involved is going to have to contend with a narrative more steeply grounded in Oakland and America writ large’s history of police violence against communities of color.
Lessons may be learned from other examples of racially charged police brutality in California. The conditions and questions that surround the jury selection process for Mehserle’s trial are reminiscent of another police brutality case that went to court in 1992, after a group of police officers took turns beating Rodney King with night sticks during a traffic stop as an onlooker shot a now-famous video. The trial of the officers involved in the King case was moved from Los Angeles County—where African Americans made up 14 percent of the jury pool—to Simi Valley. The move resulted in a jury of 11 self-identified whites, one Latino, and one Asian, and was drawn from a county where two percent of the population was black.
In deciding where to convene Mehserle’s trial, judges will be hard-pressed to find a demographic pool as ethnically diverse as Alameda’s, the county with the state’s highest proportion of black residents.
The police defense argument
Over the past decade and a half, a number of other white police officers have been acquitted after killing unarmed blacks by arguing that they thought the victims were carrying guns or posing other threats. Among the few incidents that received any media attention, in Chicago, police were acquitted after they mistook a woman carrying a spatula for having a gun. In Queens, in 1991, four plainclothes officers fired 41 shots at Amadou Diallo as he pulled his wallet from his back pocket in front of his home; they were acquitted after the trial was moved to Albany. On September 22, the Oakland City Council approved a $1.5 million settlement in the case of an Oakland police officer shooting Gary King, Jr., a 20-year-old resident who the officer had mistakenly identified as a suspect in a murder case, alleging in opposition to a variety of eye-witnesses that King, Jr., reached for a gun in his shorts.
Mehserle’s defense has hinged on that same argument: that Grant posed a threat to officers. He also claims that he meant to shoot Grant with a taser, not his pistol. Proving that Grant posed a threat to the officers is going to take a delicate construction of Grant’s character as inherently dangerous. The Oakland Tribune reports the defense as arguing that Grant was the “type of person” that would be resistant to arrest, that his friends were rowdy and resistant, and that the on-looking crowd had stoked tensions.
Recent history has shown that proving a police brutality victim’s non-innocence may be a more surmountable task than one might think. During the initial trial of four police officers involved in the caning of Rodney King, jurors found King to exhibit violent intentions as he lay on his side, shielding his face from baton blows with an out-facing palm. One juror stated after the case that she believed King was in “total control” of the situation so famously broadcast around the world.
Where many viewers saw the video of King’s beating at the hands of police shouting racial slurs as an act of racist violence, the jury of King’s assailants unanimously saw it as self-defense against a dangerous criminal.
Race is already a factor in the judicial process surrounding the Oscar Grant killing. Craig New, a private jury behavior consultant who was hired by Rains to demonstrate that Alameda County-area jurors would be racially polarized, “apparently took a rehearsed cue from defense council Rains and rapidly spouted off several highly offensive racist comments attributed to survey respondents,” according to Judge Jacobson’s court report on change of trial venue.
Mehserle’s attorney has also started directly stoking fears of black violence. When questioning a friend of Grant’s who was on the train with him on New Year’s, Rains asked the young man if he and his friends were wearing gang colors.
Proving Mehserle meant to pull out his taser, however, will take more than convincing a jury of Grant’s dangerous character. But how exactly does one go about proving intention? PoliceOne.com, an officer-run blog that follows police practices and equipment, reads the videos of the incident as showing potential that after Mehserle reached for his taser, he experienced what James Reason calls in his book Human Error, a “double-capture slip,” wherein the intentionality of his motor functions was reduced by the interruption of a struggling Grant. A number of citizen blogs, however, have posted images of the seven ounce, X 26 taser striped with neon yellow, and equipped with a bright red LED display, issued to BART police, juxtaposed with the police standard, 30 ounce, black with a brown handle, Glock 36. The actions of police after the shooting also serve both sides as evidence of intent. Rains and other police officials claim the step back surrounding officers took when Mehserle pulled the trigger because they were afraid of secondary taser shock. But community members and activists argue that the officers’ failure to call an ambulance, radio in an officer-involved shooting, or even check Grant’s pulse, are markers of more than neglect.
A symbolic case
Police brutality is one of many forms of violence that the people of Oakland experience. The Oakland Police Department recently released a survey claiming that nine percent of seventh graders in Oakland public schools had brought a gun to school. And local authorities have addressed this issue with persistent violence. In 2007 alone, residents of Oakland filed nearly 1000 reports of police abuse. In their attempts to quell the uprisings surrounding Grant’s killing, the OPD deployed armored vehicles, their inheritance from the millions of surplus military equipment that the Cato Institute reports has been given to local police forces since the 1980s.
Some seeds of change have been planted, however. As Sarri of the Stolen Lives Project, a group which documents cases of police killings, says, “The demonstrations are giving the families of victims a face, a platform to speak and to educate people about the extent of this problem.” Citing local lawmaker’s responses to community exhortation, the Lawyer’s Guild’s Villarreal says, “hopefully we can start moving an agenda that provides real accountability for law enforcement and spends tax dollars on programs and services that do much more to prevent violence rather than wasting so much on police, prisons and prosecutors.” Once the courtroom smoke clears, there’s going to be a lot more justice to serve before Oakland will look back at the death of Oscar Grant as a piece of history.
JESSE STRECKER B’10 watched the fireworks with Oscar Grant.