The BART police officer under investigation for the fatal New Year's Day shooting of an unarmed man quit his job Wednesday rather than speak with investigators, an official said.
Former officer Johannes Mehserle, 27, has given no comment to BART investigators since the incident in which cell phone videos appeared to capture Mehserle shooting Oscar Grant III as Grant lay facedown on the ground at the Fruitvale station, BART spokesman Linton Johnson said Wednesday.
"We had a meeting scheduled for him to talk, and his attorney and a union rep came in his place and dropped off a letter of resignation instead," Johnson said. "It's interesting, because he was supposed to be talking for the administrative part of our investigation, which is privileged information and couldn't have been used in any criminal investigation anyway."
While BART officials said they've been trying to get Mehserle to talk ever since the shooting, Mehserle's attorney said he hadn't received any requests for an interview from Alameda County District Attorney Tom Orloff's office as of Wednesday night.
"In general, a prosecutor would contact the attorney of anyone under investigation for a crime," said Christopher Miller, Mehserle's Sacramento-based union attorney. "So that would have come to me."
Orloff declined Wednesday to discuss any details of his office's investigation with the media, citing a standing policy his office has to allow police departments to act as the main public face of any officer-involved shooting investigation.
"We've confirmed the investigation, and that's about as much as we'll say," Orloff said. "The normal thing in a situation like this is to interview anyone who can shed light on it."
Mehserle's resignation takes away BART's ability to leverage a statement out of him, since he can no longer be fired for remaining silent, Orloff said. Orloff met with a group of about 50 clergy and community members in his office, after they held a rally outside the Oakland courthouse and packed the lobby outside his office with wall-to-wall demonstrators demanding he meet with them.
Among the demonstrators was Oakland Councilmember Desley Brooks (Eastmont-Seminary), who called the shooting an "execution" and demanded an explanation of the behavior of the other officers present during the shooting.
Brooks and the clergy spoke with a crowd of about 100 people outside the courthouse just after 9 a.m. and said they'd been denied a meeting with Orloff and demanded swift justice for Grant's killing.
"What shall we tell our sons?" said the Rev. Dr. J. Alfred Smith Sr. of Alan Temple Baptist Church. "Shall we tell them to fear the law? Is the law their enemy? If Oscar Grant is not safe, then I am not safe."
Minister Christopher Muhammad of the Nation of Islam said Mehserle should be arrested immediately.
"What is left to investigate? The whole world has seen this," Muhammad said, referring to widespread Internet videos taken from witnesses' cell phones. "We can discuss his mindset later. But right now he should be detained and held on criminal charges."
At a demonstration in protest of the shooting Wednesday afternoon at the Fruitvale station, Grant's younger sister, Audrena Gilbert, said Mehserle has not talked to the bereaved family.
"I want him to start. I want him to apologize for what he did," said Gilbert, 19, of Oakland. "I want him to tell the truth, why he shot him, what he shot him for. That's all I want."
The afternoon protest, which had a microphone open for anyone to speak but was led by speakers for the Coalition Against Police Executions, drew a crowd of 500 people, police estimated. The station was temporarily shut down, and trains let passengers off at stations on either side of the stop.
"It's not enough the officer resigned today," said Sean Dugar, president of the California National Association for the Advancement of Colored People Youth and College Division. "We demand he be prosecuted to the full extent of the law. "... We shut down one BART station this afternoon. Let's do another one next week."
Speakers at both the morning and afternoon protests led the crowd in a call-and-return chant, shouting, "I am Oscar Grant."
Several clergymen at the morning protest, speakers at the Fruitvale station protest and Oakland Mayor Ron Dellums all expressed an understanding for the community's anger but urged demonstrators to refrain from violence.
"As we handle ourselves in this moment, so shall our children," Dellums said. "I think that in a community that's trying to get its hands around violence, that it's important for us to maintain the integrity of a peaceful community going forward, even in this moment of great anger, great loss and great tragedy."
Despite this appeal, protesters shouted angrily at a representative from Dellums' office sent to the Fruitvale station, and when the crowd later moved toward Lake Merritt, it prompted the police shutdown of the BART station there Members of the crowd lit a Dumpster's contents on fire and rammed the container into a police car. Dellums said the city of Oakland and its Police Department should not become involved in the shooting investigation at this point.
"You deal with the appropriate agencies on the ground, and I think right now that's Bay Area Rapid Transit and that's the district attorney's office," he said. "At this point, I view my role as simply trying to articulate the pain and the sorrow and even the anger that people feel at the loss of human life."
Dave Rose, a retired Placer County sheriff's lieutenant who's now an expert witness on police use of force and the co-author of "Police Use-of-Force Case Law," said every bit of Mehserle's training and all circumstances of the situation on the BART platform that night must be taken into account. All the videos should be professionally enhanced and then reviewed frame by frame for every detail, every twitch, he said.
Based on Mehserle's experience and how officers react physiologically in high-stress situations, Rose said, it could well have been nothing more than a tragic, noncriminal accident.
But UC Berkeley Boalt Hall Law School professor Franklin Zimring, a criminal justice expert, said "absolutely conclusive" videos of the shooting have convinced him there's no possible justification for Mehserle's actions.
"Normally, what you get in a police deadly force interaction is a 'he said, she said' in which there's at least an accusation like, 'There was a flash of metal as he reached toward his pocket,'"‰" Zimring said. "But this guy was already down on the ground. "... He's not in a position to be threatening anybody."
Use of deadly force is considered "in terms of a threat to the physical safety of the officer or somebody else, and there's none there in this case," he added. "So it's accident versus intention, but justification is off the table."
Whether Mehserle meant to draw his Taser but accidentally drew his firearm, or whether he meant to draw his sidearm but didn't mean to fire it, it looks like involuntary manslaughter, Zimring said.
"My money is on that second horse: I think it was an accident, but I don't think the drawing of the gun was an accident," he said, noting it probably wouldn't have been appropriate to draw the Taser but "under no circumstance I could imagine" should Mehserle have drawn his firearm given what's seen on the videos.
Zimring said accidental shootings by officers are rarely charged.
"They don't even have to meet criminal juries most of the time, but most of the time there's a plausible officer vulnerability," he said. "That's what juries can identify with, and that's what's missing in action here. If I were a U.S. or prosecuting attorney, I would not be afraid of taking a criminal case here, certainly for involuntary manslaughter, before an Alameda County jury."
In the absence of a statement from Mehserle, the proper thing to do is to charge the case based on the evidence at hand and then hear his side of the story later, Zimring said: "Not giving a statement in this context may be motivated by an unwillingness to incriminate oneself, but it also deprives the officer of an opportunity to allege that the conduct was unintended.
"If there isn't a criminal investigation in this case, I think it will be an enduring scandal," he said, "and therefore I think that you're going to see an investigation, and you're going to see it in a matter of a very few days."