NBC Bay Area has learned that Johannes Mehserle has not yet been released from jail and must pay 10 percent of the $3 million bail amount in order to be released. As of Sunday morning, he was still in custody at the Santa Rita Jail.
Protestors took to the streets in frustration over the decision. Dozens of armed police officers and protesters clashed.
The incident has outraged residents and led to several protests. Another rally took place on Friday. People began showing up at the courthouse by mid-morning Friday. By early afternoon, dozens of protesters had gathered. They marched in the afternoon hours throughout downtown Oakland, shutting down the intersection at 14th and Broadway. The protesters were peaceful.
Aerial video showed police using canisters of tear gas at one point during one demonstration. At least 80 officers wearing riot gear were on the scene.
BART officials closed one of the stations due to one of the civil disturbances. The BART station at 12th Street near the Oakland City Center was eventually reopened.
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The transit officer who shot and killed an unarmed man may have also mistakenly pulled his service pistol instead of a stun gun, according to documents filed by his lawyer Friday that offer the first glimpse at his defense.
Attorney Michael Rains made the argument Friday in urging a judge to grant bail to 27-year-old Mehserle. Alameda County Superior Court Judge Morris Jacobson heard the motion in an afternoon hearing.
"He fired the taser, or so he thought," said Rains. "the taser he had been trained on three weeks earlier for six hours. That was the taser he fired."
Mehserle has pleaded not guilty to one count of murder in the death of 22-year-old Oscar Grant, who was killed early New Year's Day. Cell phone videos of the incident, widely viewed on the Internet, show the officer standing over Grant as he was lying facedown on a train platform and firing one shot into the man's back.
Grant died of the gunshot wound to his torso.
"(Mehserle) chose to use lethal force when it clearly was not called for," said Jacobson.
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But in a court filing Friday, Rains said witness accounts indicate that Mehserle meant to draw his Taser, but instead pulled his pistol. The lawyer blamed inexperience by the young officer, who passed his Taser user certification test on Dec. 3.
"The bulk of the discovery, including witness and officer statements, seem to indicate that this young officer, who carried a taser for only a few shifts prior to this event, may have mistakenly deployed his service pistol rather than his taser, thus negating any criminal intent," Rains wrote.
The court documents contain statements from and reports by several officers who were on the platform with Mehserle at the time of the shooting. The officers -- who had just pulled several men, including Grant, from a Bay Area Rapid Transit train after reports of fighting -- described the scene as chaotic and confusing.
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According to a statement from Officer Tony Pirone, Mehserle told Grant to stop resisting and put his hands behind his back. Then, according to Pirone's statement, Mehserle said: "I'm going to tase him, I'm going to tase him. I can't get his arms. He won't give me his arms. His hands are going for his waistband."
Mehserle then told Pirone to move, before firing the shot.
Pirone said he didn't know if Grant was armed, but said Mehserle told him he had believed Grant may have been armed.
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"Tony, I thought he was going for a gun," Mehserle said, according to Pirone's statement.
Tensions High in and out of Courtroom
Tensions were described as "high" in the courtroom and outside on Friday.
Family members of the man who died, Oscar Grant III, say they will be outraged if Mehserle is released. Here is a portion of the statement that the family released:
"We have received may letters, cards, flowers and contributions to Oscar Grant's daughter, Tatiana Grant. There were many letters from a wonderful range of supporters who have asked, "Where and how to donate to Tatiana's Trust Fund?". Again we say thank you for all the support and contributions. We believe Oscar Grant did not die in vain. This is the beginning of a new day in our communities."
The family asked that information regarding the trust fund be made public. Here it is:
Tatiana Grant Trust Fund
Acct # 3879027641
Wells Fargo Bank, 950 Southland Dr. Hayward 94545
Security had been heightened around the courthouse. Officials restricted access to the hearing to a handful of media and a few of Grant and Mehserle's family and friends. Only seven reporters were granted access to the courtroom.
On Thursday, BART officials announced the agency is turning over its internal affairs investigation of officers involved in the New Year's Day fatal shooting of Oscar Grant III to an independent third party.
"It's imperative that we determine whether the actions of those officers on the platform violated the policies and practices of the BART Police Department," BART board member Carole Ward Allen, who chairs the new BART police review committee, said in a statement.
Ward Allen said the board hoped "an independent, outside investigation" would reassure the public "that we are transparent and accountable."
The internal affairs investigation is separate from the criminal investigation being conducted by the Alameda County District Attorney's Office on the former BART officer.
In addition to the third-party internal affairs investigation, BART officials said today they were also turning over a "top-to-bottom" review of BART police policies and procedures to third-party experts in the law enforcement field.
BART has not yet determined which groups will conduct those investigations, officials said.