BART Cleared in Police Shooting of Passenger

(CN) - The Bay Area Rapid Transit District is off the hook in a $50 million civil suit filed against BART police officers who fatally shot an unarmed passenger, a federal judge in San Francisco has ruled.

Though U.S. District Court Judge Marilyn Patel tossed the municipal liability claims, the officers involved in the New Year's Day 2009 shooting will have to face a jury over allegations that their detention and treatment of Oscar Grant III and his friends on a BART platform was unconstitutional.

The incident was captured by multiple cell phone and digital video recordings, which were posted to the Internet, showing Officer Anthony Pirone holding Grant down when Officer Johannes Mehserle jumped off Grant, drew his weapon and shot him once in the back. After shooting Grant, Mehserle holstered his weapon and handcuffed the fatally wounded 22-year-old.

Mehserle was charged with murder but was convicted of voluntary manslaughter after he claimed he meant to stun Grant with his Taser but accidentally fired his gun instead. Mehserle, who was sentenced to two years in prison and with time served, could be eligible for parole at the end of this year.

The consolidated suit, brought by Grant's family and the other young men who the police detained after Grant was killed, had sought to hold BART liable for the actions of its officers because it allegedly failed to properly train them. Judge Patel rejected that argument and said that the suit offered "no evidence suggesting that the extant BART training policy was in fact deficient and motivated the alleged use of excessive force."

The officers on the scene, including Pirone who used the laser beam on his Taser to intimidate Grant off of a BART train, asked Judge Patel to dismiss the suit because they used appropriate force and were immune from civil suits in their capacity as police officers.

Patel denied the motion to dismiss saying that video showing Grant face down with his hands behind his back, apparently not trying to resist handcuffing, in the seconds before he was shot. This evidence creates a "genuine issue of material fact" as to whether the officers used excessive force, according to the ruling.

Based on the video evidence, Patel also decided that the officers were not entitled to qualified immunity because it was clear that their actions, if found excessive by a jury, were clearly beyond those allowed by BART policy.

"The law was clearly established that the measure of force ... used against Grant would be unreasonable accepting plaintiffs' version of the facts that Grant was not resisting being handcuffed, but rather was first imploring Pirone to show mercy and subsequently pleading for the ability to breathe," Patel wrote Tuesday.

The plaintiffs can also pursue state-law claims that race had partly motivate Pirone's conduct toward Grant, who was black.

"Pirone does not deny that he screamed 'bitch-ass nigger' twice in Grant's face, even as Grant was on his knees before Pirone," Patel wrote. "Pirone argues, however, that he only repeated, with sarcasm, what Grant had said to him seconds early in order to highlight that Grant did not have any respect for the police."

Since video documentation documents only that Pirone used the obscene language, and the other plaintiffs testified that Grant never said those words, Patel refused to dismiss the claim.

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