BART Attorney: Oscar Grant Shooting Was "Tragic Error"

"There was a reason for officers to use force, but the amount of force is in question."

Updated 2:00 PM PST, Fri, Apr 3, 2009

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An attorney for BART said in a legal filing today that the shooting death of Oscar Grant at the hands of BART police Officer Johannes Mehserle in Oakland on New Year's Day was "a tragic error" and Grant's own actions contributed to the tragedy.

BART attorney Dale Allen said the transit agency admits Grant was shot in the back but denies the officers were unprovoked when they tried to detain Grant.

Allen's comments come in response to a $50 million lawsuit filed against BART by attorney John Burris on March 2 on behalf of Grant's family in the wake of the man's death at the Fruitvale BART station.

In a phone interview, Allen said witness accounts indicate that Grant, a 22-year-old Hayward man who had a criminal record, was involved in a fight on a BART train that caused the transit agency to send Mehserle and other officers to the Fruitvale station to quell the disturbance.

Allen said officers were justified in pulling Grant from the train because witnesses had identified him as being involved in the fight and he also believes officers were justified in using force to detain Grant because he was resisting arrest.

"There was a reason for officers to use force, but the amount of force is in question," Allen said.

Allen said there was no reason for Mehserle to shoot Grant, but he said the officer "made a terrible mistake" in firing his gun instead of a Taser in his effort to subdue Grant.

Allen said more than six witnesses have said that after Mehserle shot Grant there was "surprise on Mehserle's face," indicating they think the officer didn't mean to shoot Grant.

Allen said he's hoping that the lawsuit can go to mediation so it can be resolved before it goes to trial.

Burris said there have been conversations about mediation but nothing has been determined.

Burris hasn't reviewed Allen's answer, but he said he firmly believes Grant's civil rights were violated in the incident.

Mehserle, 27, resigned from the BART police force the week after the incident and has been charged with murder. He will have a preliminary examination May 18.