Columns written for the Berkeley Daily Planet newspaper, Berkeley, CA
Berkeley Daily Planet




February 19, 2009

Late in last week’s chaotic BART meeting, BART Board Director Tom Radulovich made a point that almost certainly got overlooked by most of the meeting’s observers, especially since the boardroom had virtually cleared by then. Radulovich said that he wanted BART staff to make available to the public the “scope of work” which BART has given the law firm of Meyers Nave in its investigation of the New Years Day events on the Fruitvale BART platform. Those events included the shooting death of Hayward resident Oscar Grant by BART police officer Johannes Mehserle.

“Scope of work” is one of those business-speak/government-speak terms that generally gets overlooked by the general public, but in setting the direction that such an investigation is mandated to go, it makes all the difference in the world in the outcome. Determining the “scope” is at least as important as choosing the consultant firm itself, which most of the BART protesters concentrated on.

There are currently at least two parallel investigations now ongoing into the New Years Day Fruitvale BART Station events, with vastly different purposes.

The first is being conducted by the BART Police Department into possible criminal conduct by BART personnel—besides Mr. Mehserle, who has already been charged with murder—on the night Mr. Grant died. That is expected to be completed sometime next week, with any possible potential criminal conduct findings to then be turned over to the Alameda County District Attorney’s office. Presumably, that BART police investigation will include, in part, the striking of Oscar Grant by BART officer Tony Pirone just prior to Grant’s death.

The second investigation—by the Meyers Nave firm—is described by Vice Chair Joel Keller of the BART Board’s BART Police Department Review Committee in a BART release as “primarily focus[ing] on the time those officers were on the platform, however, it will also look into the events on the train that preceded the officers’ arrival as well investigate the tactics and actions of the command staff who directed the officers."
While that mandate might have been broad enough to satisfy public concerns, Mr. Keller somewhat narrowed the “scope” of the Meyers Nave investigation when he said, during last week’s board deliberations, that the firm would be charged with the investigation of “violations of BART procedures” by BART personnel during the Grant/New Years Day events.

But that, unfortunately, will not be nearly enough.

A BART-sanctioned investigation of possible “violations of BART procedures” by BART personnel might—or might not—lead to personnel action against Mr. Pirone, whom many Grant protest organizations have identified as the person who may have instigated the New Years Dav Fruitvale BART events, and whom these groups want fired and criminally charged.

But by focusing only on possible violations of BART policies and procedures, the proposed Meyers Nave investigation leaves out a review of instances on the Fruitvale BART platform where BART employees followed procedure, but where those procedures themselves may have led to an unnecessary escalation of the situation. In addition, a narrowed scope of investigation looking for possible BART employee wrongdoing leaves out the most important thing needed for both Oscar Grant protesters and supporters, supporters of Mr. Mehserle or Mr. Pirone, and the general public at large: an understanding of the events—all of the events—on the Fruitvale BART Platform in the early morning hours of New Years Day that surrounded the shooting death of Oscar Grant.

So I would suggest a broader approach, beginning with a review of how the BART police came to converge on the Fruitvale BART Station in the first place.

It is widely accepted that BART police were responding to a fight somewhere near the West Oakland BART Station aboard a Dublin BART train coming out of San Francisco. But published details surrounding that original fight have been all but nonexistent.

In its “Motion In Opposition To Defendant’s Release On Bail” filed in the People v. Mehserle case, the Alameda County District Attorney’s office writes as part of its “Statement of Facts” that the “BART train operator alerted central dispatch to a complaint of a fight that was taking place onboard the train’s leading car involving five African American males.” We know that the BART train was stopped at the Fruitvale Station, where BART officers planned to intercept it. The DA’s “Statement of Facts” goes on to say that “Officer Pirone walked upstairs to the Fruitvale station’s boarding platform and saw five African American males on the platform near the lead car of the train. Pirone approached this group of men and advised them that he wanted to speak with them about a report of a fight on the train.”

The “Statement of Facts” was taken from witness statements given in the various police and DA’s office investigations of the Grant shooting, but the DA’s moving papers does not say specifically who gave the information contained in this statement. In their Motion To Set Bail filed for the same hearing, Mehserle attorneys Rains Lucia Stern, PC write that according to Mr. Pirone’s statement to investigators, presumably following his detention of the five African-American men on the platform “Pirone went to the train operator to inquire if he had detained the persons in the fight. The train operator said the males he had detained were the ones involved in the fight.”

There is an elegant symmetry to this collection of “facts” in the District Attorney’s and defense attorney’s moving papers, leading to an all-but-inevitable conclusion for the unwary or the unthinking. Five African-American men were reported by the train operator to be fighting on the lead car of the BART train. Mr. Pirone saw five African-American man shortly thereafter standing on the platform by the lead car of the BART train, one of them being Oscar Grant. Mr. Pirone states that the train operator then identified the five African-American men as the ones who were involved in the fight. Oscar Grant, therefore, was one of the five African-American men fighting on the train.

But the symmetry begins to break down as one takes a second look.

We learn from relatives of one of the men taken from the BART train that a total of seven men were detained on the Fruitvale platform that night. Oscar Grant was shot dead. Five men were arrested, taken from the scene in police cars, and then released without charges. One man was not arrested, and was presumably released at the Fruitvale station. Assuming that the seventh man was a case of mistaken identity by the police and was not involved in the fighting, that leaves six men either arrested or shot dead after accused of being involved in a fight that was supposed to have involved only five men.

There are other puzzlements in the “facts” presented in the moving papers. We know from persons present on the BART train that night that the cars were crowded with people returning from San Francisco from New Years Eve celebrations. If we believe the statements in the attorneys’ papers, the train operator is supposed to have seen a fight in a crowded car—either through the surveillance cameras or by turning around and looking through the operator’s glass door into the first car—and have stopped to count the number of people fighting. I don’t know. I’ve seen a lot of fights in crowded places before, but it has never occurred to me to take an exact count of the participants. Further, Mr. Pirone’s statement in the defense attorney’s moving papers says that the officer “went to the train operator” to ask for an identification of the fighters once Mr. Grant and several others had been detained, with no further clarification as to the details or circumstances of that identification. The train operator’s statement itself, which was presumably taken by at least one of the agencies investigating the Oscar Grant events, is not quoted in the bail papers at all, so we are only left with questions.

The other puzzlement comes if you accept the premise that Mr. Grant and the four other African-American men on the platform were the ones involved in the earlier fight on the train. If it was true that these were the five men fighting, why did they go out on the platform, and what were they doing there?

The District Attorney’s “Statement Of Facts,” one remembers, said that when Mr. Pirone walked upstairs on the platform, the officer “saw five African American males on the platform” and “advised them he wanted to speak with them about a report of a fight on the train.” One can fairly presume that the five men were neither fighting nor arguing amongst themselves when Mr. Pirone first observed them on the platform, since if he did, he probably would have included that in a statement that makes some effort at justifying the detention of these men.

But if the five African-American men on the platform—including Mr. Grant—were neither arguing nor fighting, why were they on the platform at all? It is possible that five men fighting inside a moving BART train decided to get off the train at the first available spot to renew their fighting in a place with more room than the crowded car. Possible, yes, but somewhat unlikely. Were the five intending to get off at the Fruitvale stop—far from Mr. Grant’s home in Hayward—or had the train operator announced that the train was not going further because of the reported disturbance, and the five had gotten off until the announcement was made to reboard because the train was continuing on? What actions were the five men taking that led Mr. Pirone to single them out and question them first about the fight on the train?

The questions are important because they go to one of the key concerns of many of the individuals and organizations involved in the Oscar Grant protests, that BART police officers may have been involved in racial profiling that night on the platform, singling out Mr. Grant and the other six men who were initially detained not because there was direct evidence that they were involved in a fight on the train, but because they were either African-American or of mixed Latino/African-American heritage.

There are many other questions that need to be answered in the Oscar Grant investigations that might not lead to further criminal charges or to citations of employee misconduct, but are important both to understand the events of New Years Day on the Fruitvale BART Station platform as well as to move towards possible necessary reforms of BART policies and procedures. We’ll bring more of those up, as the issue of the BART investigations moves forward.

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