Demian Bulwa, Chronicle Staff Writer

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/05/MN0R153LGU.DTL

Monday, January 5, 2009

Oakland -- BART's police chief asked for patience from the public on Sunday after video footage surfaced showing one of his officers fatally shooting an unarmed man who was on the ground on a station platform on New Year's Day, and after an attorney for the dead man's family said he planned to sue the transit agency for $25 million.

Chief Gary Gee said he, too, had seen video images of the shooting of Oscar Grant, a 22-year-old supermarket worker from Hayward. But Gee said he found the footage to be inconclusive, and he said his investigators still needed to interview a key witness - the officer himself.

That officer, a two-year veteran, has not been publicly identified and has been placed on routine administrative leave. BART officials have said only that his handgun discharged at about 2:15 a.m. Thursday at the Fruitvale Station in Oakland and that the bullet struck the unarmed Grant, who had been detained with several others.

Officials have not said whether the officer intended to shoot Grant. One source familiar with the investigation said BART is looking into a number of issues, including whether the officer had meant to fire his Taser stun gun rather than his gun. Alameda County prosecutors are conducting their own investigation, as is standard in officer-involved shootings.

"We are taking this investigation very seriously," Gee said during a news conference at BART headquarters in Oakland on Sunday. "As frustrating as it is, I want to stress that we cannot and will not jeopardize this case by discussing details before the investigation is complete."

Gee spoke after attorney John Burris held his own news conference at his Oakland office, where he was surrounded by Grant's family members and friends and witnesses to the shooting.

Burris said he plans to file a $25 million claim this week against BART - a legal precursor to a civil lawsuit - because, he says, witness statements and video footage recorded by other passengers make clear that the shooting was unjustified.

"It is, without a doubt, the most unconscionable shooting I have ever seen," said Burris, who has won several damage awards against Bay Area police departments and worked on Rodney King's civil suit against the city of Los Angeles. "A price has to be paid. Accountability has to occur."

"It's pretty clear from the tape and from witnesses," Burris said, "that (Grant) wasn't doing anything of a threatening nature to the officer."

Burris said he has interviewed several young men who were with Grant when he was shot on the platform of the Fruitvale Station and has gone to the station with them to walk through a re-enactment. Burris said he has also viewed video from three different cameras.

Burris said he will file suit on behalf of Grant's mother, Wanda Johnson, and Grant's 4-year-old daughter, Tatiana.

David E. Mastagni, an attorney for the officer, declined to comment Sunday.

Grant was a butcher at Farmer Joe's Marketplace in Oakland's Dimond district, family members said. They said he loved to play basketball and video games and hang out with friends. He had been in some trouble, they said, but was doing better in recent months in an effort to be a good father.

According to sources, Grant had a prison record. Details were unavailable Sunday.

The officer

The officer who shot Grant has been with BART for about two years, is in his mid-20s, and has not been accused in the past of using excessive force, according to a source familiar with the investigation. The source described him as physically fit and respected by peers within the organization.

A source also revealed Sunday that BART police had been on edge before Grant's shooting because two guns had been recovered in separate incidents along the rail line in the hour before the shooting.

In one of the incidents, a teenage boy with a semiautomatic pistol had fled from police and jumped off the West Oakland Station platform, breaking several bones while landing. In another, the source said, a revolver was recovered after a fight at the Embarcadero Station in San Francisco.

Chief Gee said officers were called to the Fruitvale Station at 2 a.m. Thursday when police got a report that two groups of riders were fighting on a train that had just left the West Oakland Station and was headed for Dublin/Pleasanton. The officers then detained several people, the chief said.

Mario Pangelina Jr., a 23-year-old Hayward man whose sister, Sophina Mesa, was Grant's girlfriend and the mother of his child, said he saw some of what led to the shooting. He said officers had Grant against a wall on the platform. One officer briefly choked Grant, and someone pointed a Taser at him as well, Pangelina said.

Pangelina quoted Grant as saying, "Please don't tase me, please don't shoot me, I have a daughter."

Apparent struggle

Video footage taken by passengers, first shown by KTVU television, shows officers forcing Grant to the ground and trying to hold him down. The officer who shot Grant appears to try to put cuffs on him before drawing his weapon and firing. In the video, Grant appears to struggle with the officers, though it is unclear exactly what he was doing.

Burris said a single bullet went through Grant's lower back, hit the ground and ricocheted through his upper body. Grant died at Highland Hospital in Oakland several hours later.

Among other things, BART police are looking into the possibility that the officer who shot Grant thought he was pulling the trigger of a Taser stun gun, according to a person familiar with the investigation.

BART officials declined to say whether the officer was carrying a Taser - a device that sends out two electrical probes and can incapacitate its target - when he shot Grant. The agency uses Tasers but does not have enough of the expensive devices to give one to every officer.

Normally, officers who finish a shift give their Taser to an officer starting a shift. But with so many extra officers working on Wednesday and Thursday in expectation of holiday revelry, there were not enough Tasers to go around.

It is unusual for police officers to mistake their handgun for a Taser, but not unprecedented. Tasers are similar to many guns, with a trigger that must be pulled, a safety device that must be switched off, and laser sighting.

Many Bay Area police departments that use Tasers - including BART - force officers to take precautions, such as wearing them on the opposite side of their strong hand and facing backward. This requires officers to reach across their body to retrieve them.

Video of shooting

To view a videotape of the shooting obtained by KTVU, go to links.sfgate.com/ZFUR.

E-mail Demian Bulwa at dbulwa@sfchronicle.com.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/05/MN0R153LGU.DTL

This article appeared on page A - 1 of the San Francisco Chronicle