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BART Cops Defend Conduct Tied to Shooting

SAN FRANCISCO (CN) - Bay Area Rapid Transit officers urged the 9th Circuit to find that they have immunity from claims over the run-in that led to the death of unarmed Oscar Grant.

Several bystanders captured the New Year's Eve 2008 BART shooting with cellphones and digital video recorders. The videos, which caused an uproar on the Internet, show that Officer Anthony Pirone and Officer Johannes Mehserle had been pinning Grant on the train platform. At one point Mehserle jumped off Grant, drew his weapon and shot the 22-year-old once in the back. Mehserle then holstered his weapon and handcuffed the fatally wounded Grant.

The officer claimed that he meant to stun Grant with a Taser but accidentally fired his gun instead. Mehserle was ultimately sentenced to two years in prison, with time served, for voluntary manslaughter.

Five of Grant's friends who were also detained that night sued BART, its police chief, general manager, and six BART officers in 2009.

The men say they were unarmed and had committed no crime, but officers subjected them to "four painful hours in handcuffs" at BART headquarters where they sat "mourning the senseless shooting of their friend."

At a 9th Circuit hearing Monday, attorney Donald Ramsey told the three-judge panel that probable cause supported Pirone's split-second judgment to stop the men for questioning.

Pirone had been the first BART officer to arrive at the scene after a train operator reported that a large group of black men in black clothing were fighting on the train, Ramsey said.

"He arrives within seconds of the arrival of the train," Ramsey said. "He has a report of a recently committed violent crime. He is racing up to the platform. He is by himself. He is outnumbered. He does not have the opportunity - the chance that we all do here as lawyers and officers of the court - to weigh the circumstances in hours and days. He is forced to make a split-second decision, and his decision is, 'I think these are the guys, and I need to detain them because they are heading toward exits and getting back on the train.'"

Ramsey continued: "The question is not whether he has probable cause to arrest. The question is whether he had reasonable suspicion to ask a question. That's all he was trying to do. And that he emphatically had."

Judge Michael Daly Hawkins to interrupted with a warning as Ramsey revved up his argument.

"You're not in front of a jury, and you're not making any progress in your argument by yelling at us," Hawkins said. "Moderate your tone and make your point."

Ramsey apologized, and said: "I'm simply trying to emphasize that Officer Pirone had to make a split judgment, and that is one of the reasons for qualified immunity."

Grant's five companions - Jack Bryson Jr., Nigel Bryson, Michael Greer, Carlos Reyes and Fernando Anicete Jr. - were represented at the hearing by Dan Siegel.

The Oakland-based civil rights attorney said Pirone's decision was colored by prejudice.

"They were not a large group of black males, they were a large group of people of various races," Siegel said. "They were not wearing all black clothing. A lot were wearing blue jeans. In addition, Oscar grant was wearing a red t-shirt. Even based on the little information that Officer Pirone had, he was simply picking these people out of the crowd based upon his perception that they were dark skinned."

Bias also led Pirone to assume that the men were the attackers in the fight, not the victims, Siegel said. "No one ever said whether the group of black males were the victims or the aggressors," Siegel told the court. "He assumed because they were black males or dark skinned males that they were the aggressors and immediately took aggressive action."

Mehserle's attorney, Michael Rains, said his client should not be held accountable for the detention of Grant's friends.

"He had no fundamental involvement with them at all," Rains said.

In handcuffing Jack Bryson Jr., Mehserle either had probable cause to do so or did so by mistake, Rains argued.

"The evidence is very clear that at most it was a reasonable mistake," he added.

Rains also said Mehserle acted in good faith when he drew what he thought to be a Taser and shot Grant.

John Burris, who represents Grant's father, said Grant's friends would never have been arrested and detained had Mehserle held his fire.

"The conduct and continued detainment and subsequent arrest of all the other young men happened as a consequence of his conduct," Burris said.

Mehserle had no reason to use a Taser on a man who was sitting on the floor, handcuffed and helpless, other than to cause harm, the lawyer added.

Skeptical, Judge Wallace Tashima asked: "You can infer from that fact there was a purpose to harm? That's all you have?"

Burris set off rumblings of support in the audience as he replied, "That's all I need."

He later clarified: "I mean, you shoot someone in the back, you intended to harm them."

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