Oakland, California BART officer Johannes Mehserle was sentenced to 2 years of prison for the 2009 involuntary manslaughter of Oscar Grant, a young black man who was unarmed and face down in prone position beneath Officer Mehserle when the BART cop shot Mr. Grant at point blank range accidentally thinking he was reaching for his gun rather than a Taser. Police brutality issues and civil rights violations often accompany criminal defense matters in the cities of Oakland, San Francisco, and San Jose, California, and I offer aggressive attorney representation to individuals seeking justice in such criminal defense and related civil rights matters.

A few years ago, NFL player Michael Vick got a similar sentence for running a dog-fighting ring.  What does this say to the family of 22 year-old Oscar Grant, who was shot by a BART officer while Grant was lying face down in the concrete and unarmed after being arrested for fighting on the BART train platform in Oakland, CA?  The family was mortified, as is the community.  The question is:  Is the jail sentence as light as it was because the shooter here is a white cop and the victim is a "black urban youth"?  What if the situation were reversed?

When racism, elitism, conservativism, and discrimination is a part of the very fabric of our society, how can it also not be a part of the minds of our judges and juries?

The 28 year-old white BART officer, Johannes Mehserle, stated in his defense that he thought he was reaching for his Taser gun to Taser Oscar Grant, who was lying unarmed and in prone position face down in front of him.  Instead, Mr. Mehserle grabbed his powerful .40 caliber pistol and shot and killed Mr. Grant.

Mr. Mehserle, the BART cop, was convicted of involuntary manslaughter - basically, an accidental killing.  Mehserle has no criminal history nor recorded history of violence, so there is no reason to doubt his intentions.  The issue is that the sentence was minimal, since involuntary manslaughter carries a sentence of 2 to 4 years.  Sending a criminal to jail serves more purposes than merely to punish that criminal for what he did - it also serves to send a clear message to society.  The message here is questionable.

Even if we believe Mehserle's account - that he was reaching for his Taser to stun the unarmed and face down Oscar Grant - we must ask:  Why did Mehserle need to Taser Mr. Grant at all?  There are those that argue that this should have made a strong argument for second degree "felony murder", which is when a murder occurs during the perpetration of a serious underlying felony, even if the murder was unforseen or unintentional.  For example, if a person is simply threatening somebody with harm (assault) and thinks the gun they are using is unloaded, pulls the trigger, and kills the victim during the threat, that is second degree felony murder.

It is a felony for a police officer to use a Taser on a person unless it is in self-defense or to protect others.  In 1964, the California Supreme Court held in the case of People v. Ford, 60 Cal.2d 772, that a homicide that occurs during the commission of a felony that is inherently dangerous to human life is second degree murder, where the felony is not one of the underlying felonies that is listed in the first degree felony murder rule (CA Penal Code section 189), such as rape, arson, robbery, burglary.  So if an unintentional killing occurs during a rape, that is first degree felony murder.  If it occurs during an assault (a viable threat), that is second degree felony murder.

However, in the Johannes Meserle killing of Oscar Grant, there is no underlying crime of assault or battery here, as Mr. Mehserle never assaulted or battered Mr. Grant with the Taser - thus, there is no "underlying felony" of assault and battery.  Instead, Mr. Mehserle drew his gun, thinking he was reaching for the handle of his Taser, and shot Oscar Grant one time in the back, killing him.

It is arguable that the law should not tolerate such gross mistakes, but do we really want to jail people for several years who did not intend to kill while they are in the process of otherwise legal acts carried out in the interests of public safety?  Yes, for 2 to 4 years for involuntary manslaughter, and that is what Mr. Mehserle was convicted of.

Should a man with no criminal record or history of violence, with a record of preserving the public safety, be given a maximal sentence in a situation where he was trying to protect the public?  Well, it's not so simple as that, because there was no justifiable reason for Mr. Mehserle to want to Taser Mr. Grant, and his criminal mistake cost Mr. Grant his life.  The inherent violence of Mr. Mehserle's act is clarified by his decision to Taser Mr. Grant, as he thought he was doing.  It is a grossly unnecessary and aggressive level of violence to choose to Taser at close range a face down, unarmed youth who is arrested for fighting on a train platform.  It is the presence of such violence in the act, albeit an act that was ultimately a tragic and involuntary killing, that should have urged the judge in this matter to give Mr. Mehserle the maximal sentence of 4 years.  Mr. Mehserle was lucky that he did not threaten Mr. Grant before he reached for the weapon, as those few words may have been sufficient to convict him of second degree felony murder with an underlying felony of aggravated assault, leading to a possible life sentence.  More so, Mr. Mehserle was lucky that the judge used his wide discretion to give him the minimum sentence here.

Mr. Grant, his family, and the African-American community should be so lucky.