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Victim’s Family Files $25 Million Dollar Lawsuit After Fatal BART Shooting

5 January 2009 6 Comments

By Anna McCarthy/510 Report

“Happy New Year’s Eve, I love you, and may God Bless Your Family.”

That was the text that Cephus Johnson said he sent to his nephew, 22-year-old Oscar Grant III, at 12:49 a.m. on Thursday.  But Grant never responded, and a little more than an hour later he was shot in the back and killed on the Fruitvale BART station platform by a BART police officer, according to cell-phone videos and eye-witness accounts of the incident.

Attorney John Burris and witness Mario Pangelina talk with the press about the January 1 shooting at the Fruitvale BART station.

Attorney John Burris and witness Mario Pangelina talk with the press about the January 1 shooting at the Fruitvale BART station.

BART officials said there is no video footage of the incident available from BART surveillance cameras.  However, numerous witnesses and at least three video accounts of the incident taken from cell phones reveal that Grant was unarmed and lying face down on the platform at the time he was shot.

“The video tapes speak volumes,” said John Burris, the Oakland-based civil rights lawyer representing Grant’s family, at a recent press conference.  BART officials have declined to comment.

Both the BART Police and the Alameda County District Attorney’s Office are in the process of conducting investigations into the shooting.  In addition, Grant’s family announced today that they will file a $25 million dollar lawsuit claim with BART on Monday, and a civil rights lawsuit to follow.

“It is without a doubt the most unconscionable shooting I have seen, ever,” said Burris.  “In that Mr. Grant at the time he was shot and killed was in fact laying on his stomach with his back to two officers, with one officer kneeling down at his neck area and the other officer straddling over him and standing in a bent position with Mr. Grant’s back to him.  He did not have a weapon, he was not kicking, and he had been turned over.”

Burris believes that the facts involved in the shooting warrant consideration of criminal charges for murder against the officer, and plans to make this request of the Alameda County District Attorney this week.

 Sidewalk memorial for Oscar Grant at the Fruitvale station.

Sidewalk memorial for Oscar Grant at the Fruitvale station.

A statement released Sunday morning from BART Police Chief Gary Gee does not give any further details about the case that weren’t already released, and asks that the public “be patient, refrain from jumping to conclusions, and allow the investigators do their job.”  BART officials said that the officer involved has been placed on administrative leave.

Also according to the press release, five BART police officers pulled Grant and three others onto the platform in response to a report that two groups of riders were involved in a fight on a train coming from San Francisco and bound for Dublin-Pleasanton after leaving the West Oakland station around 2 a.m.  The train stopped for a longer time than usual at the Fruitvale station so that officers could pull offenders off the train and break up the fight.

But witnesses on the train sitting at the Fruitvale station at the time of the shooting said that Grant and others were pulled from the train without reason and treated with unnecessary force.

Sophina Mesa, the mother of Grant’s four-year-old daughter, was with Grant for New Year’s Eve and was present at the shooting, but was not a witness.  Mesa’s brother, 23-year-old Mario Pangelino, also did not witness the shooting but heard the gunshot because he was 15-feet away from Grant when the incident occurred.

At a recent press conference, Pangelino described the events on the platform prior to the incident.  His descriptions are corroborated by multiple videos accounts.

Pangelino was one of hundreds of partygoers who packed into a crowded late-night BART train on New Year’s Eve to return to his Hayward home after celebrating in San Francisco with his family.  He was riding two cars behind Grant when the train stopped at Fruitvale.  When he saw his sister walk by on the Fruitvale platform, Pangelino stepped out of the car to see why she had disembarked.

When he looked to his left, he saw Grant talking to police officers at a nearby wall on the platform.  Pangelino said he saw an officer grab Grant by the neck, and when Grant resisted, another officer approached him with a stun gun or “Taser.”

“I could see the red dots on his face and that’s when he slid down [the wall] and said ‘please please don’t shoot me, don’t tase me.  Please.  I have a daughter,'” said Pangelino, who added that more than one officer had their Tasers out and at-the-ready.

Pangelino said that Grant had his hands in the air when he sat down next to three other young men sitting at the wall, two of whom had been handcuffed by the cops earlier.  “That’s when one of them grabbed his wrists and pulled him off the wall,” said Pangelino.

As Burris recounted in the press conference, a recently released video account shot from a cell phone reveals the following events: an officer moved Grant from the wall to the ground so that he was lying face down, while another officer stood over, straddling him.  The officer straddling him, a two-year veteran of the force whose name has not been released, then reached for his holster and shot Grant once in the back.  So far BART officials have only said that the officer’s gun “discharged” once.

Witnesses say that directly after the shooting, the officer said: “Oh my God.”

“I didn’t even know he was shot,” said Pangelino.

He said that he thought it was a rubber bullet gun at first, and riders in the train-car near him assumed it was the sound of a taser being triggered.  Pangelino said he tried to hold the BART train door open, but a female cop made everyone get back on the train and it left before he could hold the train at the station.

Witnesses said that officers put handcuffs on Grant after the shooting occurred, and then removed them as the ambulance arrived.  He died soon after at Highland hospital.

“The intention of the officer is not significant.  It’s what he did that counts,” said Burris at the press conference.  “And what he did at the time was step back, pull his gun out of his holster, point it at the back, and fired it.”

BART police have the same training as city police officers, and have the same authority for arrest.   In 2001, 42-year-old Edward Seward was shot in the chest and killed by a BART police officer at the Hayward station, and roughly ten years prior to that in 1992, an unarmed 19-year old named Jerrold Hall was shot in the back and killed by BART police at the same station.  In both cases, the BART police involved in the shootings were eventually cleared of wrongdoing.

Over thirty of Grant’s friends and family members attended the press conference, and many have said that they will spend the next week holding vigil that the memorial that the BART officials have allowed them to erect outside of the Fruitvale station.

Grant was raised with his sister in Hayward by his mother, Wanda Johnson, who had just celebrated her birthday on December 31 when she received the news that her son had been shot.  He worked as a butcher at Hayward’s Farmer Joe’s store.  Family members say that Grant was a big sports fan, and Cephus Johnson, Grant’s uncle, said that they had plans to attend all of the Raiders games together before the shooting occurred.

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