OAKLAND, Calif. (KTVU) - A BART internal investigation, released in response to a California Public Records request by 2 Investigates, is shedding more light on the deadly shooting of Oscar Grant on New Year's Day 2009, a "dark time" in the agency's history, BART's police chief acknowledged on Thursday.
Among the key new findings:
* The role BART Officer Anthony Pirone played in escalating events and his downplaying of his behavior to superiors.
* Officer Johannes Mehserle, who pulled the trigger, had an unusually high number of excessive use-of-force complaints before the deadly clash with Grant, an unarmed 22-year-old father from Hayward.
In addition to these specific findings, the report authors found that in the big picture, BART police tactics were "seriously deficient" throughout the deadly encounter. The outside investigators from the Meyers Nave law firm also found a lack of leadership and communication, including the failure to interview Mehserle, who they say embodied an employee who exhibited "ample warnings of an impending problem."
The authors noted that videos of the Fruitvale Station shooting in Oakland showed Mehserle may have known he was drawing his firearm, not his Taser, before shooting Grant. "Deadly force was not justified under the circumstances," the authors found.
Meanwhile, Grant's uncle, Cephus "Uncle Bobby" Johnson, told KTVU on Thursday that while he knew much of what had been in the report, some findings were new and painful to him.
Johnson said that he knew that Mehserle had four prior excessive use-of-force complaints against him, even though the judge in his criminal trial wouldn't let those allegations be made public. Mehserle was convicted of involuntary manslaughter and served 11 months of a 2-year prison term and was released in June 2011.
The newly released report actually unearthed the fact that there were six more similar complaints against Mehserle in 2008, which hadn't been made public before. That number "was more than any other officer on the platform and more than most other BART PD officers in that year," the authors noted.
"This is why the release of SB 1421 documents is so critical," Johnson told KTVU. "You can imagine what the jury would have done if they had known this at trial. Chances are, Oscar would probably be living today."
Johnson said that Mehserle has since changed his name, and he has no idea where the former BART officer is now employed.
What's also new in the report is that the investigators had taken aim at Pirone, who was found to have lied about his role before Grant's death, minimizing his aggressive behavior on the platform that day.
“Pirone appears to be changing, shifting and shading the facts to put his actions and conduct in a more favorable light,” the report's authors found. “Pirone was, in large part, responsible for setting the events in motion that created a chaotic and tense situation on the platform, setting the stage, even if inadvertent, for the shooting of Oscar Grant,” concluded Kimberly Colwell and Jayne Williams, the two attorneys who authored the report dated July 31, 2009.
The authors also cited Pirone’s “repeated, unreasonable and unnecessary use of force,” his “manifest lack of veracity” and his use of the word “n—” word while arguing with Grant on the BART platform in Oakland. Witnesses, the report authors found, also later described Pirone as the "crazy cop," “very agitated," "harsh and unprofessional," and "not calm, not once."
As for Pirone, Johnson said the newly released information about his aggressive behavior just confirms his belief that he should have been charged as an accessory to the death.
The heavily redacted report was released on Tuesday under the state's new police transparency law, SB 1421, which mandates that police make public sustained findings of excessive force, dishonesty and officers who have sex with civilians on the job. BART added that there are accompanying videos to go with the written documents, but it will cost between $25 to $40 a minute to pay a company to redact them.
Much of what is in the report has already been made public, both at Mehserle's criminal trial, in a civil lawsuit filed by Grant's family and in a movie, "Fruitvale Station." Pirone was fired but never prosecuted.
Cell phone video at the scene showed that Grant never tried to punch or kick Pirone, as he had claimed. Mehserle ultimately shot Grant while trying to obey Pirone’s commands to handcuff him. Mehserle had told investigators he meant to reach for his Taser, not his gun. But the report authors disagreed, writing that Mehserle “was intending to pull his firearm and not his Taser, as he can be seen trying to draw it at least two times and on the final occasion can be seen looking back at his hand on the gun/holster to watch the gun come out.”
The San Francisco Chronicle tried to reach Pirone on Wednesday to no avail. Efforts to contact Mehserle were also unsuccessful.
In an interview on Thursday, BART Chief of Police Carlos Rojas acknowledged Grant's death was a "dark time" in the agency's history, and is still a "sore point" in the community that he feels BART has "moved past."
The creation of BART's Independent Police Auditor came as a direct result of Grant's death, a civilian oversight body that Russell Bloom now heads.
Much has been learned from Grant's death, he said.
“What we’re learning is that there was a culture in the department at the time that wasn’t geared toward detecting problems in advance of the situation,” Bloom told KTVU on Thursday. “The important takeaway is that there was the inability to detect potential problems and that likely led to a serious problem like the death of Oscar Grant. What’s shifted since then is a top-down effort to shift the culture from a ’warrior mindset’ to a ‘guardian mindset.’ "
Bloom said that since 2009, there’s been a higher expectation of customer service from BART police, increased efforts to de-escalate use of force and a “much more robust process of reviewing use-of-force reports.”
He added that BART now also has implemented an early intervention system, which in place at the time, could “possibly have prevented Oscar Grant’s death.”
If an officer has met or crossed the threshold of receiving complaints or disciplinary issues, a red flag is then immediately sent to the officer’s supervisors and also to Bloom’s office, which is comprised of civilian investigators, not ones from the law enforcement side. Those bodies can then review the complaints and decide if an officer needs reassignment, retraining or something else, Bloom said.
The investigators chastised BART management to "overhaul nearly all its critical reporting mechanisms to include a more transparent examination" of events and officers to "ensure future problems are identified."
In Bloom's opinion, those mechanisms have indeed been put in place to be able to spot these type of "red flags" much earlier.
KTVU's Candice Nguyen contributed to this report.
EDITOR'S NOTE: This story was updated on May 2, 2019.