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Mehserle’s defense could provide ammunition for lawsuit against BART — but Grant family isn’t buying

(Photo courtesy of California Beat)

The defense for Johannes Mehserle, the former BART Police officer charged with second-degree murder for the shooting of BART passenger Oscar Grant on New Year’s Day 2009, is trying to introduce evidence that could potentially provide powerful ammunition for the plaintiffs in the separate civil suit against BART, court documents made public this week reveal — but the lawyer for Grant’s family isn’t buying it.

In a court filing dated May 3, defense attorney Michael Rains argues for the inclusion of expert testimony by retired police captain Greg Meyer that he claims will show, among other things, that “the TASER training Mehserle received was so utterly deficient in every important aspect — and in particular on the issue of deployment in stressful tactical situations — that an accidental shooting was bound to happen.”

Such testimony, if allowed, might help the defense establish its claim that Mehserle meant to use his Taser, not his gun, on Grant. But it could potentially be devastating to BART, which is still in litigation over a $50 million wrongful death lawsuit filed by Grant’s family.

The San Francisco Chronicle reported in February that BART Police’s policy of having officers share Taser holsters meant that officers might not always wear their Tasers on the same side of their belt, which could potentially lead to confusion when drawing a weapon.

The report quoted sources who told the newspaper that Mehserle was wearing the taser on the same right-hand side as his service pistol on the night of Grant’s shooting.

Combined with the proposed testimony on BART Police’s Taser training, this information could be used by attorneys for Grant’s family in the civil lawsuit to paint a picture of the agency’s deployment of Tasers as irresponsible and negligent.

But Grant family attorney John Burris isn’t buying Mehserle’s defense. “That’s nonsense,” he said when asked about the filing. Burris argues that Mehserle’s defense is throwing out a “red herring” to try to wriggle out of the second-degree murder charge.

BART spokesperson Jim Allison declined to comment on the filing, saying “we don’t comment on ongoing cases.”

The prosecution in the murder case against Mehserle is opposing the inclusion of Meyer’s testimony on his opinion of BART Police’s Taser training, arguing that “the adequacy of training has nothing to do with the question of defendant’s intention to use a firearm.”

Oral arguments on the issue, along with arguments on other pretrial motions, will be heard this Friday in Los Angeles, where the trial has been moved due to concerns about whether Mehserle could receive a fair trial in Alameda County.

The hearing starts at 8:30 a.m. at the Clara Shortridge Foltz Criminal Justice Center downtown.

Filings in this case are available from the Los Angeles County Superior Court’s website.

Contact Steven Luo at