There will be no immunity from civil liability for the former Bay Area Rapid Transit policeman, Johannes Mehserle, who shot and killed Oscar Grant III during New Year’s Day 2009 altercation on a BART platform.
The 9th U.S. Circuit Court of Appeals held Tuesday that Mehserle was not immune from civil liability in a suit filed by Grant’s father. Mehserle was separately convicted of a criminal charge for his role in the shooting. The incident also gave rise to civil suits against Mehserle and other BART officers involved in the allegedly unconstitutional detention of five of Grant’s friends.
The appeal stems from two civil suits brought by Grant’s friends, Nigel Bryson, Jack Bryson, Jr., Carlos Reyes, Michael Greet and Fernando Anicete, Jr., as well as by Grant’s father. The suits name Mehserle and two other BART officers, Anthony Pirone and Marysol Dimenici.
“Construing the facts in the plaintiffs’ favor, we agree largely with the district court that the officers should stand trial for the constitutional violations of which they are accused,” said Judge Mary Murguia. She was joined by Judges Michael Daly Hawkins and Wallace Tashima.
Grant’s father, Oscar Grant Jr., brought suit against Mehserle and two other officers for alleged deprivation of his father-son relationship.
Mehserle shot the unarmed Grant in the back as the youth was prone on the ground and had been straddled by another BART officer who had subdued him.
Mehserle argued he mistakenly shot Grant thinking he had his Taser in his hand. He was convicted of involuntary manslaughter and spent 11 months of a two-year sentence in prison.
The appeals court granted Mehserle qualified immunity from Anicete’s claim of unlawful arrest because there was no evidence Mehserle played a role in that arrest.
In addition, the panel sent back to the trial court claims of immunity in the extended detention of Anicete, Reyes and Nigel Bryson, to determine if Mehserle had any role in those detentions.
But Mehserle was not entitled to immunity from Jack Bryson’s unlawful arrest claim, the panel said.
The two other BART officers, Pirone and Domenici faced mixed decisions. Pirone was denied immunity from Reyes, Greer and both Bryson’s claims of unlawful detention or probable cause to draw his Taser, nor was he entitled to immunity for the arrest of Greer.
The panel said it lacked jurisdiction to review denial of immunity for Domenici and sent the case back to the trial court.
Currently, movie theaters around the U.S. are playing a film, Fruitvale Station, about the day Oscar Grant was shot.
Case: Johnson v. BART, No. 11-16481
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