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It is important to distinguish between the mental states for involuntary manslaughter on the one hand, and implied-malice murder. Implied malice contemplates a subjective awareness of a higher degree of risk than does gross i.e., criminal negligence, and involves an element of wantonness which is absent in gross negligence. A finding of gross negligence is made by applying an objective test: if a reasonable person in the defendant's position would have been aware of the risk involved, then the defendant is presumed to have had such an awareness. However, a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.
In the early morning of New Year's Day 2009, victim Oscar Grant boarded a BART train in San Francisco with his fiancée, Sophina Mesa, and several other friends to Fruitvale. The train was very crowded with New Year's Eve celebrants, and people were standing in the aisles. As the train approached the Fruitvale BART station in Oakland, Grant began to argue with a fellow passenger and the two men started “tussling around.” They attempted to strike each other, but the train was so crowded they were reduced to pushing and shoving. The aggression spread into a large fistfight, involving at least 10 men. Passengers used the train intercom to report the fight to the operator, who in turn contacted BART central control. The train reached the Fruitvale station and stopped at the platform. The train doors opened, and the fight stopped. BART Police Officers Anthony Pirone approached the passengers, and Grant and one Michael Greer got back on the train. Pirone ordered Grant off the train, which he obeyed. Pirone took Grant over to the three detainees and shoved him against the wall. Pirone went back to the train for Greer and ordered him out, using profanity and violence to force him off the train. According to Pirone, Greer struggled to break free once the two were on the platform. Pirone, therefore, pushed Greer and knocked him off balance. Pirone said Greer spun around and raised his fists, so Pirone used a takedown maneuver and swept Greer's legs out from under him, knocking him to the ground. Pirone handcuffed Greer. Several passengers testified that in their opinion Pirone used excessive or unnecessary force, or that his behavior was excessive. Grant and the other detainees protested, but they were told to stay out of it. A cell phone video taken by a passenger shows Pirone striking Grant with his fist. There was testimony that Pirone shoved Grant against the wall. Pirone forced Grant to his knees. A passenger's video shows Pirone drawing his Taser and pointing it at the detainees. Grant pleaded with Pirone not to “Tase” him because “I have a daughter.” According to a BART surveillance video, defendant Mehserle and his partner, Officer Woffinden, arrived on the platform at 2:08:27 a.m. Defendant ordered the men who were approaching Domenici to “get back.” Defendant drew his Taser and pointed it at the detainees, including Grant. Referring to Grant, Pirone said, “that *** is going to jail” for “148,” a reference to section 148, resisting a police officer. Pirone testified he gave the order to arrest Grant and Greer. Defendant thought Pirone told him to arrest Grant and Jackie Bryson (one of the detainees). When he heard he was going to be arrested, Grant stood up and asked, “Who can we talk to?” A cell phone video shows Pirone grabbing Grant and forcing him back down. Mehserle admitted he put his hand on Grant's head to help force him back down. Grant was by then kneeling on the ground. Pirone was yelling in Grant's face, “***-ass ***, right. ***-ass ***, right. Yeah.” Mehserle stepped behind Grant and grabbed his hands. Grant fell forward onto the ground. Pirone and Mehserle placed Grant on his stomach. Pirone used his knees to pin Grant's neck to the ground. Grant protested, “I can't breathe. Just get off of me. I can't breathe. I quit. I surrender. I quit.” Mehserle ordered Grant to give up his arms, presumably so he could handcuff him. Grant responded that he could not move. Mehserle repeatedly pulled at Grant's right arm, which apparently was under Grant's body. Then, Mehserle was heard to exclaim, “*** this.” He told Pirone, “I can't get his hands, his hands are in his waistband, I'm going to tase him, … get back.” A cell phone video showed Mehserle tugging three separate times on his handgun, unsuccessfully trying to remove it from his holster. On the fourth try, he was able to remove his handgun. He stood up, held the weapon apparently with both hands, and fired a bullet into Grant's back. Several witnesses said that Mehserle appeared surprised and dumbfounded after the shooting, shocked that he shot Grant. Still, Mehserle handcuffed Grant and searched him for weapons. Grant was unarmed. Shortly after the shooting, Mehserle talked to Pirone on the platform and said, “I thought he was going for a gun.” In the minutes after the shooting he had several conversations on the platform with Pirone and three other officers, and said nothing about mistaking his handgun for his Taser. Later, at the station, he cried and told a support person, Officer Foreman, that he thought Grant was going for a gun. He did not say he mistook his handgun for his Taser. Grant was taken to Highland Hospital. He had a single gunshot wound that penetrated his right lung and caused excessive blood loss. He died about three or four hours after having surgery.
Mehserle was charged with the murder of Grant, as well as three firearm enhancements: personally and intentionally discharging a firearm causing great bodily injury and death; personally and intentionally discharging a firearm; and personally using a firearm. In his defense, Mehserle alleged that did not intend to shoot Grant, but only to “Tase” him. He mistakenly drew and fired his handgun. He saw Grant's right hand go into his pocket as if he were grabbing for something. Although he did not see a weapon, he thought Grant might be reaching for one. He also denied losing his temper. The jury found him not guilty of murder or voluntary manslaughter, and convicted him of the lesser included offense of involuntary manslaughter and the personal use of firearm enhancement. The trial court dismissed the firearm enhancement and sentenced Mehserle to two years in prison.
Was there insufficient evidence to support the jury's finding of criminal negligence necessary for a conviction for involuntary manslaughter?
Mehserle’s conduct of mistakenly drawing and firing his handgun instead of his Taser constitutes criminal negligence under the second prong of manslaughter liability: that defendant committed a lawful act in an unlawful manner, or without due caution and circumspection—i.e., he believed he was “Tasing” an arrestee, but mistakenly, and criminally negligently, drew and fired his handgun with lethal results. The record demonstrated substantial evidence that defendant's conduct was criminally negligent due to the following evidence:
First, the jury could have reasonably found Mehserle did not need to use a Taser at all. Regardless of the question whether Grant initially resisted arrest, at the time Mehserle decided to use his Taser, the jury could have reasonably found that Grant was immobilized—being pinned by Pirone—and compliant. Grant said, “I can't breathe,” “I quit,” and “I surrender.” Although Mehserle was having difficulty obtaining control of Grant's hand, the jury could have found in view of Grant's position and demeanor that this did not present a proper situation for the use of a Taser.
Second, the jury could have reasonably found that when Mehserle did decide to use his Taser he was criminally negligent in mistaking his handgun for his Taser. Mehserle’s handgun was peculiarly distinguishable from his Taser for a number of reasons. Mehserle had drawn his Taser earlier. The handgun weighed more than three times as much as the Taser. The Taser was bright yellow, while he handgun was black. The Taser had an on/off safety switch, while the handgun did not. The Taser had a red laser sight, while the handgun did not. The handgun was holstered on Mehserle’s right, or dominant side, with a two-step release mechanism requiring Mehserle to push down and forward and then back on a separate safety switch. The Taser, in contrast, was holstered on Mehserle’s left, or nondominant side, for a cross-draw by Mehserle’s right hand and had only a safety strap and safety hood. After some of the handgun/Taser confusion incidents referred to in the decision, three police agencies changed their Taser policies to require nondominant-side holstering and the Taser's bright yellow color as measures to prevent handgun/Taser confusion. A reasonable jury could conclude that a reasonably prudent person could distinguish between the two weapons, and drawing the deadly weapon—heavier, of a different color, and on the dominant side of the body with a complicated release mechanism under the circumstances—amounted to criminal negligence. Thus, the jury could have reasonably found defendant's conduct rose to the level of conscious indifference to the consequences of his acts, and was not a mere mistake.
This conclusion was supported by two additional facts. First, Mehserle twice drew his Taser on the platform shortly before the shooting, strongly suggesting he was familiar with the weapon and its location on his body. Second, a cellphone video shows him struggling to remove his handgun from his holster three times immediately prior to freeing the weapon and shooting Grant. A reasonable jury could conclude a reasonably prudent person would have known he was holding his deadly handgun and not his nonlethal Taser.
Finally, the jury could reasonably have concluded the situation on the platform was not an extreme high-stress situation at the time of the shooting itself. There were seven officers on the platform, the detainees were under control, and the crowd from the train was being held back. Apparently, no other officer drew a firearm. The officers were shocked when Mehserle fired on Grant. Also, Mehserle’s use of the phrase “fuck this” just before he shot Grant could, in the minds of the jury, bespeak a tone of recklessness about subduing the suspect.
In conclusion, there was sufficient evidence from which the jury could legitimately have found that Mehserle acted with the requisite criminal negligence to support his conviction for involuntary manslaughter.