DoJ considering civil-rights prosecution of convicted Oakland cop

posted at 12:15 pm on July 9, 2010 by Ed Morrissey

The conviction of Johannes Mehserle yesterday in a Los Angeles courtroom for involuntary manslaughter won’t be the end of the court battle for the BART police officer who shot an unarmed man in a BART station.  The appeals will take years, of course, but Mehserle could have a second battle to fight.  The US Department of Justice is now weighing civil-rights charges against Mehserle, who is white, for the killing of the black victim while on duty:

The U.S. Department of Justice will conduct an independent review of the Johannes Mehserle case in order to determine whether or not the shooting merits federal prosecution, according the department.

“The Justice Department has been closely monitoring the state’s investigation and prosecution,” the department said in a statement.

“The Civil Rights Division, the U.S. Attorney’s Office, and the FBI have an open investigation into the fatal shooting and, at the conclusion of the state’s prosecution, will conduct an independent review of the facts and circumstances to determine whether the evidence warrants federal prosecution.”

A few readers have sent e-mail questioning whether this violates the Fifth Amendment bar on double jeopardy.  In terms of precedent, the answer would be no.  The federal government began using civil-rights laws decades ago to prosecute people who had escaped justice for murders and assaults against minorities, and the courts have supported those prosecutions.  The interpretation of the double-jeopardy clause has been that it applies to each sovereign individually but not in combination, meaning a state can try someone for a particular act and the feds can also try them, assuming the act also violates a particular federal law.  Civil rights laws were designed for that purpose, at a time when minorities couldn’t get justice in some state courts.

That doesn’t lessen the controversy over the use of such powers.  When George H. W. Bush pursued civil-rights prosecutions against the police officers in the Rodney King beating, many objected to it over the obvious attempt to reverse the acquittal given to the men in state courts.  That has given these prosecutions an aroma of revenge rather than justice, a way for the federal government to interfere in the sovereignty of states arbitrarily when the administration doesn’t like the outcomes.  Glenn Beck made that argument today, as The Right Scoop notes.

What makes this odd is that revenge isn’t really an issue.  The case resulted in a conviction — and one that will make it hard to argue for a civil-rights violation.  Involuntary manslaughter means that the police officer lacked the intent to commit murder (at least according to the jury that weighed the evidence).  While some may be unhappy that the jury didn’t find Mehserle guilty of murder, especially and understandably the family, Mesherle didn’t escape justice.  He will face prison time in this conviction, signaled by the fact that the judge who will sentence him didn’t let him out on bail pending that sentencing.  There doesn’t appear to be a good reason for the DoJ to intercede in this case.

And they probably won’t.  All they did was announce that they would review the case, but with Mehserle going to prison and the DoJ already fighting another political battle on civil-rights enforcement in the voter-intimidation case that blew up in their faces, it’s more likely that the announcement was intended to cool public ire in Oakland over the verdict.

Update: For the sake of accuracy, Mehserle did not belong to the Oakland police department, but to the transportation police.


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…So, if he’s convicted again, will the trash in Oakland riot again? Any excuse. ANY excuse.

HornetSting on July 9, 2010 at 2:13 PM

Well duh, I mean FREE SHOES.

Kenosha Kid on July 9, 2010 at 2:21 PM

…So, if he’s convicted again, will the trash in Oakland riot again? Any excuse. ANY excuse.

HornetSting on July 9, 2010 at 2:13 PM
Well duh, I mean FREE SHOES.

Kenosha Kid on July 9, 2010 at 2:21 PM

Yeah. Free liquor, video games, SHOES, I better just stop there.

HornetSting on July 9, 2010 at 2:24 PM

I’m shocked, I tell you. I’m shocked that’s what readers here focused in on. Shocked.

Narutoboy on July 9, 2010 at 1:58 PM

A racist in Oakland? Can’t be. All racists come from the South.

Del Dolemonte on July 9, 2010 at 2:24 PM

Holder: Gotta go after that white cracker cop, and show em who’s boss around here. Gotta get revenge against all those whities now, whether they’re racists or not. Just being white makes em guilty!!!

capejasmine on July 9, 2010 at 2:19 PM

Word.

HornetSting on July 9, 2010 at 2:25 PM

You are coming about this from a racist tea party point of view and not an enlightened hope and change point of view. Allow me to reorient you: Minorities can not be racist by virtue of being a minority, and therefore can not violate civil rights. White people on the other hand, are by nature racists, and therefore must always be presumed to have violated the other party’s civil rights.

paulsur on July 9, 2010 at 2:29 PM

paulsur on July 9, 2010 at 2:29 PM

What if a blind and deaf white man kills a NBPP memeber in self defense who is overheard calling the blind and deaf white guy a cracker baby that must die.

NotCoach on July 9, 2010 at 2:39 PM

Can’t blame the people for rioting. Remember how those white folks rioted when the O.J. Simpson murder verdict was announced?

Actually they did. It was quiet and delayed but it was real nonetheless. Welfare Reform.

Mason on July 9, 2010 at 2:50 PM

Justice was not served. What they do now is largely irrelevant, given that the system already failed. That cop earned himself a trip to the gallows, and will instead get a maximum 4 years. I couldn’t care less what the hell anyone does about it; justice was not served.

ernesto on July 9, 2010 at 3:10 PM

ernesto on July 9, 2010 at 3:10 PM

You are advocating unequal justice.

Holger on July 9, 2010 at 3:37 PM

Justice was not served. What they do now is largely irrelevant, given that the system already failed. That cop earned himself a trip to the gallows, and will instead get a maximum 4 years. I couldn’t care less what the hell anyone does about it; justice was not served.

ernesto on July 9, 2010 at 3:10 PM

So when are you and crr6 opening your law firm?

Look, “justice would not have been served” if the jury found him not guilty. See “OJ Simpson”.

The cop was also charged with murder. The jury could not conclude that he was guilty of that charge after hearing and seeing the evidence.

The jury took 6 1/2 hours over two days to decide that Mehserle was guilty of a crime, but not guilty of the other options it had been given – second-degree murder and voluntary manslaughter.

Their verdict suggests they believed Mehserle when he testified that he had mistaken his pistol for his Taser as he sought to subdue the 22-year-old Grant at Fruitvale Station in Oakland following a fight on a BART train, a shooting that was captured on video by five other riders as well as a platform camera.

BTW you are incorrect about his sentence. He might be sent up the river for as much as 14 years. That would be for using a gun during the crime.

Del Dolemonte on July 9, 2010 at 3:39 PM

We’ll see just how racist Holder is after this. Can’t make any mistakes if you’re white can you, just if you’re black. Then you can make as many as you like. I was looking at this very differerently until I heard the mother ranting on a video this AM about how God would set things right and God(apparently)supports the black man and the black people in this country needed justice etc etc. She lost any shred of sympathy from me right there.

jeanie on July 9, 2010 at 3:52 PM

Holder is just trying to the base riled up for the fall elections.

Same reason as for filing the suit in AZ.

Wethal on July 9, 2010 at 3:55 PM

This guy is a disgrace to the uniform. He should have been convicted of murder. Only a complete idiot could believe his case that he reached for a taser and “accidentally” pulled out his gun. Either he is the DUMBEST cop alive, a LIAR, or his department does not do proper training.

RightXBrigade on July 9, 2010 at 1:04 PM

It strikes me as about right.. Seriously, a trained officer wouldn’t mistake a taser for a gun. I’m thinking that the officer got out the gun to scare the suspect a bit and the thing escalated. I would have gone for voluntary manslaughter given the choices.

And I don’t think that this is racially motivated. The cop would have gotten the same verdict regardless of the case, except the media attention surrounding the case might have ensured that he got some jail time. I think that juries are too willing to give cops the benefit of the doubt even when there’s a clear abuse of power.

Illinidiva on July 9, 2010 at 3:57 PM

Holger on July 9, 2010 at 3:37 PM

The teenager who killed his sister with a wrestling move got life in prison…as a juvenile! A police officer with no business so much as taking out a tazer shoots a subdued man in the head from point blank range…and gets 4 years max!? How am I advocated unequal justice?

ernesto on July 9, 2010 at 3:59 PM

Ed, I can’t take nearly as calm a view about this as you. When you compare it to the handling of the New Black Panther party case in Philly, it looks a lot more like the selective enforcement of the Civil Rights Act that’s been revealed in the last few days than just an attempt to calm Oakland. And then with the revelation that the Holder Justice Department refuses to enforce sections of the CRA dealing with the integrity of voter rolls, it’s clear there’s something rotten in the Obama-Holder DoJ.

irishspy on July 9, 2010 at 4:02 PM

What nonsense. Why would he have made this so-called deliberate action just because he determined the guy was black? It was a stupid mistake, but just that, a mistakewith terrible consequences. Why on earth are y’all wishing such dire treatment.

jeanie on July 9, 2010 at 4:09 PM

There doesn’t appear to be a good reason for the DoJ to intercede in this case.
And they probably won’t. All they did was announce that they would review the case, but with Mehserle going to prison and the DoJ already fighting another political battle on civil-rights enforcement in the voter-intimidation case that blew up in their faces, it’s more likely that the announcement was intended to cool public ire in Oakland over the verdict.

Let’s see. Black victim…check. White cracker defendant…check. It’s okay to proceed with further prosecution.

Disturb the Universe on July 9, 2010 at 4:10 PM

A question: When one races riots and focuses on destroying the property of another race/races, are these not civil rights violations?

NotCoach on July 9, 2010 at 2:20 PM

The worst rioters were white anarchists. Most of those arrested were white. Black owned businesses in Oakland were trashed. So what is your point?

lexhamfox on July 9, 2010 at 4:15 PM

The teenager who killed his sister with a wrestling move got life in prison…as a juvenile! A police officer with no business so much as taking out a tazer shoots a subdued man in the head from point blank range…and gets 4 years max!? How am I advocated unequal justice?

ernesto on July 9, 2010 at 3:59 PM

Your ignorance is showing, grandly. Oscar Grant was still resisting arrest, including reaching for his waistband and was not shot in the head. He was shot in the torso.

There are ample eyewitness accounts of surprise on the officers account as well as intent to use the Taser to subdue a still resisting suspect. From multiple eyewitnesses.

Moreover, the taser was rigged to be drawn from the officer’s belt by the same hand that would draw his service pistol. And the other officer’s testimony indicated fear in the voice of the officer doing the shooting. Anyone in that instance can make the exact same tragic accident.

If the Kid was white, and the verdict the same, would you be okay? If yes, you are advocating unequal justice.

Holger on July 9, 2010 at 4:21 PM

Not there, so do not know who got trashed or who did the trashing. Doesn’t matter anyway, the guy will pay a price. Which of us here would consider four years in jail a walk in the park. Justice was served and those that would make it a contest between black and white(read tha Eric Holder)are the guilty parties and the real trouble makers.

jeanie on July 9, 2010 at 4:22 PM

Black owned businesses in Oakland were trashed. So what is your point?

lexhamfox on July 9, 2010 at 4:15 PM

If you don’t think blacks are capable of trashing black owned businesses, you didn’t follow the LA riots very closely.

Disturb the Universe on July 9, 2010 at 4:26 PM

Black owned businesses in Oakland were trashed. So what is your point?

lexhamfox on July 9, 2010 at 4:15 PM

A boutique called Spoiled was spared. It had a sign outside and pictures of Oscar Grant with the words, “Do not destroy. Black owned. Black owned.”

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/07/09/MNFL1EBKII.DTL#ixzz0tDZvqApo

macncheez on July 9, 2010 at 4:27 PM

ernesto on July 9, 2010 at 3:59 PM

As for the Lionel Tate case. Eunick Tate, his sister whom he killed, had a lacerated liver, a fractured skull, a broken rib and a swollen brain. Injuries more akin to a violent beating or a 30 story fall, not simple playtime.

Holger on July 9, 2010 at 4:33 PM

Thank goodness Holder’s going to re-prosecute this white (transit) cop who’s already been prosecuted and criminally convicted once before, while doing nothing about these other two piles of refuse in Philadelphia.

I guess there’s not enough rioting going on in Philly to justify Holder’s interest. Or is it that other thing.

Who was it that said that blacks can’t be racist because they don’t have the power? (Jesse? Al?)

seanrobins on July 9, 2010 at 4:39 PM

>>>And they probably won’t. All they did was announce that they would review the case, but with Mehserle going to prison and the DoJ already fighting another political battle on civil-rights enforcement in the voter-intimidation case that blew up in their faces, it’s more likely that the announcement was intended to cool public ire in Oakland over the verdict.

ED:

What makes you such an eternal optimist?

You don’t really think that there is a shred of common sense going on in the upper-reaches of DOJ?

seanrobins on July 9, 2010 at 4:42 PM

The teenager who killed his sister with a wrestling move got life in prison…as a juvenile! A police officer with no business so much as taking out a tazer shoots a subdued man in the head from point blank range…and gets 4 years max!? How am I advocated unequal justice?

ernesto on July 9, 2010 at 3:59 PM

He was shot in the head? What Leftist “news source” did you hear that from?

From SFGate:

A jury found former BART police Officer Johannes Mehserle guilty Thursday of involuntary manslaughter, concluding that he did not intend to kill train rider Oscar Grant when he shot him in the back on New Year’s Day 2009 but acted so recklessly that he showed a disregard for Grant’s life

As for Lionel Tate, what Leftist “news source” told you he killed his sister? In fact, the kid he killed was someone his mother was baby sitting at the time.

Tate was convicted of killing Eunick by stomping on her so forcefully that her liver was lacerated. Her other injuries included a fractured skull, fractured rib and swollen brain.

And you conveniently left out another fact from the Tate case.

Tate’s mother, a Florida Highway Patrol trooper, had turned down a plea bargain arrangement which would have allowed Tate to serve a three-year term for second-degree murder and insisted on going to trial in hopes of an acquittal.

And you also forget to mention that Tate’s conviction for the murder of the kid was overturned. He is back in prison for life because he violated his probation.

You really need better “news sources”.

Del Dolemonte on July 9, 2010 at 5:19 PM

Del wow you destroyed Ernie. Nice work.

CWforFreedom on July 9, 2010 at 6:01 PM

It’s really “in your face” over at DOJ, isn’t it?

Let the Black Panthers off despite video evidence of a federal crime, but go after the white cop who “got off lightly” via jury verdict.

Despite the recent revelations by former DOJ’ers that crimes involving white victims and black perps garnered a disinterested audience over at Justice, here comes Malik Shabazz “Nation Of Cowards” Holder to set things straight when it’s White-on-Black and a jury has spoken.

David2.0 on July 9, 2010 at 6:42 PM

And you also forget to mention that Tate’s conviction for the murder of the kid was overturned. He is back in prison for life because he violated his probation.

Del Dolemonte on July 9, 2010 at 5:19 PM

Attempted armed robbery of a pizza delivery guy, if I remember correctly. Poor little innocent sociopath.

AZCoyote on July 9, 2010 at 6:47 PM

ernesto on July 9, 2010 at 3:10 PM

You hypocrite.

Anti-war huh? Don’t like killing huh? Hypocrite.

hawkdriver on July 9, 2010 at 6:48 PM

Lionel Tate.

I remember him.

The “black community” came out in force for him when he was a “victim of racist justice.” They(black preachers and community leaders)held a press conference after his release ASSURING the public that this boy would NEVER be in trouble again! They were going to mentor this young man and prove what a positive member of society he could be!

Then the camera lights went out. The microphones were shut off. And Lionel Tate was left with a state trooper mother who couldn’t seem to control him despite the training and weaponry at her disposal.

Lionel Tate is doing hard time because of HIS people, not white people.

David2.0 on July 9, 2010 at 6:54 PM

I guess racial hate is the only thing getting Pookie off the couch come November.

Come to think of it, it’s the only thing that got him off the couch in November 08 as well.

David2.0 on July 9, 2010 at 7:15 PM

Attempted armed robbery of a pizza delivery guy, if I remember correctly. Poor little innocent sociopath.

AZCoyote on July 9, 2010 at 6:47 PM

On September 3, 2004, Tate was detained and held in prison for violating the terms of his house arrest when he was found out of his house and carrying a four-inch knife. On October 29, the Associated Press reported that Tate was placed on zero tolerance probation, for an additional five years.

On November 30, Tate was allowed to return to the home of his mother, Kathleen Grossett-Tate. The family he had been staying with asked that he be removed, because frequent visits by state probation officers were too stressful.

On May 23, 2005, Tate was charged with armed burglary with battery, armed robbery and violation of probation, the Broward County Sheriff’s Office said.

Tate threatened Domino’s Pizza deliveryman Walter Ernest Gallardo with a handgun outside a friend’s apartment after phoning in an order. Gallardo dropped the four pizzas and fled the scene. Tate then re-entered the apartment, assaulting the occupant who did not want Tate inside.

Gallardo called 9-1-1 upon reaching the Domino’s store and returned to identify Tate, the sheriff’s office said in a statement. No gun was recovered.

On March 1, 2006, Tate accepted a plea bargain and was to be sentenced to 10–30 years imprisonment in a sentencing hearing in April 2006. Tate admitted that he had violated probation by possessing a gun during the May 23 robbery that netted four pizzas worth $33.60, but he has refused to answer questions about where he got and later disposed of the gun. He was allowed to withdraw his guilty plea for robbery, but was finally sentenced to 30 years in prison on May 18, 2006 on the gun possession charge. On October 24, 2007, Florida’s 4th District Court of Appeal upheld that sentence.

On February 19, 2008, Tate plead no contest to the pizza robbery and was sentenced to 10 years. The sentence will run concurrently with his 30 year sentence for violating his probation

Poor guy. Obviously justice was not served in this case.

Del Dolemonte on July 9, 2010 at 7:34 PM

Del wow you destroyed Ernie. Nice work.

CWforFreedom on July 9, 2010 at 6:01 PM

Sadly it wasn’t “nice work”, just a few minutes of online research.

The problem with Leftists is that they arrogantly assume that they are smarter than everyone else, and thus everyone will stupidly and blindly believe everything they say without checking the facts out for themselves.

That’s how they attain and try to stay in power, by trying to ensure that their subjects are too stupid to know what they’re doing. Hence the “public education system” and the “objective mass media”.

Del Dolemonte on July 9, 2010 at 7:38 PM

I’m shocked, I tell you. I’m shocked that’s what readers here focused in on. Shocked.
Narutoboy on July 9, 2010 at 1:58 PM

Don’t know about shocked, but do you find it a little ironic that had Oscar Grant lived the cop would have been fired, nothing more and Oscar Grant would be spending the rest of his life in prison.

“Grant served two state prison terms for various felonies including a conviction for drug dealing. In 2007 he was sentenced to 16 months in state prison for fleeing “from a traffic stop while armed with a loaded pistol”.

That means this fight and run in with the law would have been his 3rd strike.

Strange but true.

DSchoen on July 9, 2010 at 9:29 PM

When I was growing up anytime something like this would happen I would get this as a “lesson”. “Son, none of that would have happened if you would have been doing right. If you would have been acting right there would have been no reason for the Police to be there in the first place and none of this would have taken place”.

the Coondawg on July 10, 2010 at 12:26 AM

Justice was not served. What they do now is largely irrelevant, given that the system already failed. That cop earned himself a trip to the gallows, and will instead get a maximum 4 years. I couldn’t care less what the hell anyone does about it; justice was not served.

ernesto on July 9, 2010 at 3:10 PM

ha! maybe Holder should go after OJ Simpson and re-prosecute that case too, who knows, maybe they find him not guilty yet again :-)

jimver on July 10, 2010 at 5:55 AM

Precisely what happened that got Grant into the circumstances that got him eliminated? I suspect poor little Oscar was up to no good when apprehended. Oakland is not a nice town – bad things happen there all the time. Then, there is poor old Rodney King, repeat felon and drug addicted fool, who only got a whooping for resisting but did manage to get a large portion of L.A. destroyed. California prisons are not full of innocent people. But the point of the post is Federal intervention – simply a subversion of the already shaky judicial system and extension of Obamarrhoid racist(pro black, anti white) policy.

LarryG on July 10, 2010 at 11:15 AM

the police officer lacked the intent to commit murder (at least according to the jury that weighed the evidence).
.
Like the Arizona case, the Holder ‘Justice’ department would here be overriding the due process and democratically-established acts of state citizens. Arizona lawfully legislated its S.B. 1070 – but Lord Holder arbitrarily wishes to cancel those incorrect citizen actions. The LA jury agreed, after examining the evidence, that Mehserle’s act was ‘involuntary manslaughter’. Lord Holder is apparently considering overriding that jury decision too.
.
He’s the guy whose ‘Justice Department’ has adopted the policy that voter intimidation is fine, as long as people of color do the intimidating.
.
What’s not to like about an agenda-driven, antidemocratic Federal agency with unlimited resources to veto democratic processes and impose its own racial agenda?

Insufficiently Sensitive on July 10, 2010 at 11:57 AM

This is the Obama administration’s DOJ; Don’t like the conviction in Black Panther voting intimidation case, just throw it out. Don’t like Arizona’s immigration laws that they have a right to pass as a sovereign State, have them overturned. Don’t like the way a white cop in Oakland was convicted of a lesser charge for shooting and killing a black man, just retry the case.

This DOJ, acting under the instructions of Eric Holder, will never be happy with anything that says a black or hispanic “minority” is wrong, regardless of the fact that they are. The “white” citizens and everyone else who are not black or hispanic in this Country might as well get it into their heads that we are now racist, second class citizens, and whatever we do, we are wrong. This is the message that is being sent to the Country from the Obama administration: You people have had your chance, now it’s your turn to face the discrimination the you forced upon others all these years. May God help us all.

Susanboo on July 10, 2010 at 5:19 PM

1. anyone that thinks he should be charged with murder is uneducated and incomptent. murder requires forethought and intent. neither of these things are possible. it was an accident.

2. the only thing that should be held accountable is the police department. they should have had a policy in place requiring the taser to be in the off-hand side of the waist. tactically its smart to have the tazer on the firing hand side so you dont have to transistion the weapon from one hand to the other. however, police officers shooting people with guns when they thought it was a tazer has happened a lot and therefore for the sake of safety the tazer should never be on the weapon side. when you get high on adrenaline you dont look down, and you can quickly mistake the pistol for the tazor. the feel the same and look similiar.

LordJack on July 10, 2010 at 10:09 PM

I am NOT trying to stir something up by asking this, but ask it I will:

Why was it necessary for Grant to be tazed when the cop had him face down and a knee holding him down?

I serious: why?

friendlygrizzly on July 11, 2010 at 12:12 PM

Free Mehserle!

BVM on July 12, 2010 at 3:30 AM

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