5:21.33 3: 2:122; 32:. .58 n. I ?25:55 ribuck silver 8. wilson professional Iuw corporation MEMORANDUM CONFIDENTIAL COMMUNICATION DATE: July 31,2009 T0: . Matthew H. Burrows, General Counsel Dorothy Dugger, General Manager Gary Gee, Chief of Police FROM: Kimberly E. Colwell, Esq. Jayne W. Williams, Esq. RE: Final Report BART Internal Investigation re January 1, 2009 Fruitvale BART Station (Oscar Grant) Incident Attached is the Final Report of the Internal Affairs Investigation of the January 1, 2009 Fruitvale' BART Station (Oscar Grant) incident. Enclosed are the Final Report and Exhibit Volumes 1-3. I 55512th Street, Suite 1500 I Oakland, California 94507 I tel 510.808.2000 I fax 510.444.1108 I ?03 Blitit?llt?ii a SAERAi?u?lEi?iit?i 5? Ff?r?llifll?tl? ?9 Strait-ii ELISA FINAL REPORT BART INTERNAL INVESTIGATION JANUARY 1, 2009 FRUITVALE BART STATION OSCAR GRANT INCIDENT Submitted to: A TNT Prepared By: meyerrs suave i inn VII. TABLE OF CONTENTS Page DATE OF INCIDENT 1 TIME PERIOD OF INVESTIGATION 1 NATURE OF INVESTIGATION 1 EMPLOYEES INVOLVED AND I NVESTIGATED 1 INCIDENT SUMMARY 2 TIMELINE OF EVENTS AND ACTIONS BY BART PD AND DETAINEES 3 PURPOSE, SCOPE AND OBJECTIVE OF THIS INVESTIGATION AND REPORT 5 INVESTIGATION AND INTERVIEW TEAM 8 INTERVIEWS WITH CITIZEN WITNESSES 10 A. 10 1. ac ground 10 2. Impression 1O 3. Incident 10 B. 12 1. Background 12 C. 1-0- 12 1 . Background 1 2 o. 12 1. Background 12 2. Incident 13 E. T- 14 1. Background Background 15 K-- 15 1 . - Background 15 2. Impression 15 3. Incident 15 16 . 1 Background 16 2. Impression 16 3. Incident 17 4 Fruitvale Station 17 L- 18 1 Background 18 2. Impression 19 3. Incident 19 4 Fruitvale Station 19 01L. 21 1. ackground 21 -M- 21 1 . Background 21 B.0- 21 1 . Background 21 2. impression 21 3. Incident 22 .R- 24 1 . Background 24 2. Incident 25 3. Fruitvale Station 25 26 1 Background 26 2. Impression 26 3 Incident 26 4 Fruitvale Station 27 s- 28 . Background 28 1111!! 29 1. ac groun 29 2. ImpressiOn 29 3 Incident 30 4 Fruitvale Station 30 32 . Bac groun 32 R. 32 1. ackground 32 S. 32 1. Background 32 T. A 33 1. Background 33 2. Impression 33 3. Incident 33 4. Fruitvale Station 34 u. D-- 35 1. Background 35 2. Impression 35 3. Incident 35 4. Fruitvale Station 37 INTERVIEWS WITH DETAINEES 38 A. F- 38 1 . Background 38 2. Prior Incident 39 3. Fruitvale Station 39 4. Post Incident 40 B. 41 1. Background 41 2. Prior Incident 41 3. Fruitvale Station 41 4. Post Incident 43 c. N-R- B- 43 1. Background 43 2. Prior Incident 43 3. Fruitvale Station 44 4-. -- ?45Background 46 2. Prior Incident 46 3. Fruitvale Station 46 4. Post Incident 48 E. C-A-R- 48 1. Background 48 2. Prior Incident 49 3. Fruitvale Station 49 4. Post Incident 50 XI. INTERVIEW OF BART EMPLOYEES 51 A. 51 1. Background 51 2. Pre-Incident 51 3. Fruitvale Station -. 51 4. Post Incident 53 5. Impression 53 XII. INTERVIEWS WITH BART POLICE OFFICERS WHO ARE THE SUBJECT OF THIS INVESTIGATION - 54 B. BART POLICE OFFICER NOEL FLORES 60 1 . Background 60 2. Law Enforcement Experience/T raining 60 3. Other New Year?s Calls - 60 4. Fruitvale Station 61 5. Post Incident 62 6. Impressions/Conclusions -. 62 7. Recommendations 62 .63- C. BART POLICE OFFICER JONATHAN GUERRA 63 1 . Background 63 2. Law Enforcement Experience/T raining 63 3. Other New Year's Calls 63 4. Fruitvale Station 64 5. Post Incident 65 6. Impressions/Conclusions 66 7. Recommendation 66 8. Findings 66 XIV. XV. XVI. XVII. XIX. XX. D. BART POLICE OFFICER EMERY KNUDTSON 67 1 . Background 67 2. Law Enforcement Experience/T raining 67 3. ., Other New Year's Calls 67 4. Fruitvale Station 68 5. Post InCIdent 69 6. lmpressionleoncIusions 69 7. 70 8. Findings 70 E. BART POLICE OFFICER ANTHONY PIRONE 7O 1. Background 70 2. Law Enforcement Experience/Training 70 3. Other New Year?s Calls 71 4. Fruitvale Station 71 4. Post Incident 74 5. Impressions/Conclusions 75 6. Recommendation 79 7. FIndIngs 80 F. BART POLICE OFFICER JON WOFFINDEN 80 1. Background 80 2. Law Enforcement ExperiencefTraining 80 3. Other New Year?s Calls 81 4. Fruitvale Station - 81 5. Post Incident 83 6. Impressions/Conclusions 84 7. Recommendation 84 8. Findings 84 INSTITUTIONAL IMPROVEMENTS I 8 4 ORDERS 85 TRAIN TACTICS 85 TEAMVVORX SEPARATION AND WCONT-ACT 85 TACTICAL COMMUNICATION AND LEADERSHIP 86 TASER POLICY AND PROTOCOLS 87 INTEGRATION OF TACTICAL CONCEPTS . 8 7 COMMUNICATIONS AND SUPERVISORY RESPONSE 88 86 SNOILVGNEIWWOOEIH 96 NOILNEUEICI 86 SNOILVOINHWWOO SISIHO 86 CINV ZS L6 Oi 06 3080:! 88 3380i :10 330 I. DATE OF INCIDENT January 1, 2009 II. TIME PERIOD OF INVESTIGATION February 11, 2009 - July 31, 2009 NATURE OF INVESTIGATION This is the ?nal report of the lntemaI Affairs Investigation of the of?cer involved shooting and death of Oscar Grant, that occurred at approximately 2:00 am. on January 1, 2009 at the Fruitvale BART Station, Oakland, California. Wolations of the following polices were at issue: General Order No. General Duty Regulations (Exhibit 1) General Order No. V, Weapons and Use of Force (Exhibit 2) Operational Directive No. 27, Code of Professional Conduct and Responsibilities for Peace Of?cers (Exhibit 3) Operational Directive No.44, Processing and Handling Arrestees (Exhibit 4) Operational Directive No. 70, Delay of Revenue Trains (Exhibit 5) Operational Directive No.74, Lethal Force/Incidents Resulting in Death or Great Bodily Injury (Exhibit 6) Operational Directive No. 75, Use of Lethal Force (Exhibit 7) Bulletin No. 08-07, Taser Less-Lethal Weapon Policy (Exhibit 8) IV. EMPLOYEES INVOLVED AND INVESTIGATED The BART Police Officers Whose Conduct and Performance In This Incident Constitutes The Primary Focus of This Investigation Are: Officer Noel Flores, Badge 552 BART Police Department #508 - - - - - BART Police Department Officer Emery Knudtson, Badge 533 BART Police Department Of?cer Anthony Pirone, Badge 514 BART Police Department Of?cer Jon Woffinden, Badge 547 BART Police Department CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 2 V. INCIDENT SUMMARY On December 31, 2008, thousands of Bay Area residents, in a festive and celebratory mood, made their way into San Francisco to bring in the New Year. In anticipation of a heavy and enlarged demand for ridership on the Bay Area Rapid Transit (BART) System, BART management expanded its hours and frequency of operation of its trains and increased the frequency of access to trains into and out of San Francisco. In addition, and in readiness for expected crowd-control problems, a high volume of calls and likely security demands, the BART Police Department (BART PD) developed and implemented an operations plan that emphasized maximum deployment of personnel resources.1 At approximately 2:00 am. (January 1, 2009) BART train operator, reported to Central Dispatch that there was a disturbance in the lead car on the Dublin-Pleasanton Train. The operator reported that the ?ght involved one (1) Black male wearing all black, one (1) White male and one (1) Latin male and that there were no weapons. Subsequently, BART Central advised BART PD of a ?(l)arge group of Black males, all black clothing. No weapons, still ?ghting.?2 BART PD Of?cers Pirone and Domenici, working unit 1810, were the ?rst to respond to the call as they were already dealing with an unrelated incident at the Fruitvale Station where the train was stopped. Of?cer Pirone, followed later by Of?cer Domenici, proceeded to the Station platform. The train, crowded with passengers, was ordered to remain stopped at the Fruitvale Station. Within minutes, seven BART PD of?cers had responded to the Station platform, including former Of?cer Johannes Mehserle. From the moment BART PD of?cers congregated at the scene there was confusion, chaos and pandemonium on the platform for some thirteen (13) minutes; most of this was captured by several video camera devices belonging to passengers and security cameras installed at the Station by BART. Several videos ?lmed by the passengers have been turned over to authorities. These videos have been examined by the team contracted to conduct this investigation. In our effort to achieve maximum accuracy of the depiction of the critical scene captured on the videos, we retained the services of Stutchman Forensic Laboratory, a reputable video expert whose task was to enhance the video footage to produce a comprehensive reconstruction and depiction of the actions of the of?cers and detainees. This enhancement and timeline has been invaluable to the analysis and investigation of this incident. Over the next thirteen (13) minutes, BART PD detained at least six persons (the detainees) who were believed to be involved in the reported disturbance on the train, including Mr. Oscar J. Grant, Ill. During the course of the detention, a fracas and physical altercation involving Of?cer Pirone, Officer Mehserle, Of?cer Domenici,. Grant and other detainees, ensued. Thisfracasis shownoo the video. andstatements. madeby. witnesses also corroborate the event. Although there are con?icting statements as to the exact cause of the fracas and who initiated it, the evidence shows that Of?cer Pirone, in particular, by his conduct and inappropriate verbal statements, contributed substantially to the escalation of the volatile atmosphere on the platform. During the course of this fracas, and as chaotic as the scene was on the platform, at least three things are manifestly apparent: 1) At some point Grant was prone on the platform face down; (2) 1 BART Police Department Operations Order 08-15, Issued 12-17-08, Page 1 (Exhibit 9). 2 Transcription of Dispatch Tapes (p 1:22-23) (Exhibit 10). CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 3 Of?cer Mehserle is shown in the video standing over Grant; and (3) Of?cer Mehserle is shown reaching for his service revolver and ?ring one round into the basket Grant. Grant was transported to the Alameda County Medical Center where he died approximately nine hours later. As is mandated by BART PD procedure and protocol, an officer involved shooting investigation was immediately initiated. The Oakland Police Department, working in conjunction with the Alameda County District Attorney, assumed investigative responsibility for the criminal investigation of this incident, including any possible criminal misconduct by BART Police officers. Initially, the BART Police Department management assumed the administrative (Internal Affairs) investigation responsibility into this incident. There was community outrage following the shooting of Grant. The video footage that had been captured by some of the passengers was widely disseminated throughout the news media and on the intemet. There were protests and civil unrest, particularly in Oakland] Some were of the belief that race played a part in the Grant shooting. Grant was African American. Mehserle is white. Justi?ably or not, this incident has racial overtones. BART PD often conducts policing operations in minority communities. The incident tore at the fabric of understanding and cooperation between the BART PD and the community. Demands for an immediate independent investigation were made. VI. TIMELINE 0F EVENTSAND ACTIONS BY BART PD AND DETAINEES Source: Platform clock at Fruitvale BART Station; video footage enhancement by Gregg Stutchman, Stutchman Forensic Laboratory3 Train arrives at Fruitvale Station. 7 01:59:06 Passengers deboard train. 01 :59:20-02:01 :00 Train operator noti?es BART Central. Passenger reported ?ght on lead 02:01 :59 car. Train operator noti?es BART Central. Fight involved 1 black male 02:02:48 wearing black, 1 white male and 1 Latin male. No weapons. BART Central advises BART PD. ?Large group of black males, all black 02:03:04 Pirone arrives on platform walking through group of people. 02:04:03 Group Pirone walks past reenters train car number 4. 02:04:26 Domenici arrives on platform. 02:06:09 3 Photos of timeline events are attached as Exhibit 11. ons still h. -2 Dakx Page: July 31, 2009 4 - . Grant taken off train. 02:06:45 First four detainees seated on ground. Exact time unknown First physical confrontation with Grant by Pirone. 02:08:43 - Mehserle and Wof?nden arrive on scene. 02:08:54 Guerra arrives on platform. 02:09:23 Grant on cell phone, seated on platform. 02:10:09 Pirone returns from talking to the train operator. 02:10:12 Grant getting up from ground. 02:10:14 Knudtson and Flores arrive on platform. 02:10:51 Pirone? 3 second physical confrontation with Grant. Beginning of Grant?s 02:10:55 takedown Mehserle brie?y reaches for ?rearm but does not remove it. 02:10:59 Mehserle trying for Grant?s right arm. 02:11:14 Mehserle reaches for firearm and removes it from his holster. 02:11 :17 Pirone right hand on Grant?s right arm. 02:11:20:13 Pirone?s right hand still on Grant?s right arm. 02:11 :20253 First video frame showing Grant?s right arm. 02:11:20:73 Grant?s right forearm on back. Pirone beginning to rise. 02:11:21 :40 __Grar_It_?s_ right arm _still on .. Pirone? 3 hand off Grants head. First video frame showing Grant? 3 arms 02:11:21 :87 in air Both Grant?s hands touching at his rear waistband area. Both hands In 02:11:21:93 standard cutting position. Shot ?red. 02:11 :22:00 Gun muzzle can be seen on video between Pirone?s arm and body. 02:1 1:22:13 CONHDENDALCOMMUNBADON Date: July 31, 2009 Page: 5 Mehserle hands to head. 02:11:27 Pirone dispatches code 3 medical call for gunshot wound. . 02:11 :36-02:1 1 :50 Of?cers herd people onto train. 02:12:21 Train departs Fruitvale Station. 02:12:47 Guerra arrives with trauma kit. - 02:13:25. Knudtson and Mehserle talking on platform. 7 02:16:08 Knudtson and Mehserle talking on platform. 02:16:22 VII. PURPOSE, SCOPE AND OBJECTIVE OF THIS INVESTIGATION AND REPORT This is an internal Affairs Investigation that examines and analyzes the New Year's Day incident at the BART Fruitvale Station in which a BART PD shooting resulted in the death of Oscar J. Grant, This investigation examined and analyzed the conduct and performance of the BART PD of?cers who were present at the scene of the incident; it examined and analyzed as well the BART PD officers? response and conduct on the platform and the of?cers? actions immediately following the incident. The frame of reference for this examination and analysis of the BART PD conduct and performance in this incident is the accepted and recognized standard of review that is generally accepted within the law enforcement profession regarding police tactics; additionally, the BART PD conduct and performance was examined and analyzed against the BART PD policies and procedures, applicable California law regarding the use of force and police procedures. The primary focus and purpose of this investigation was to determine whether any of the BART PD officers violated any pertinent BART policies and procedures, and if violations did occur whether they warranted appropriate administrative discipline. if the investigation revealed that violations did occur, recommendations have been made for the appropriate discipline and administrative action. in addition, a review and analysis was made into the BART PD practices, policies and procedures pertaining to the use of force reporting, conducting internal investigations and overall best practices in police management. Where the review of these areas showed a need for improvement, appropriate recommendations have been made. This investigation was conducted consistent with applicable California laws, including the provisions of California Government Code 3303 et seq., commonly referred to as the ?Public Safety Officers ProCedural Bill of Rights Act In addition, findings and recommendations contained in this report were made consistent with BART "Positive Discipline Guidelines": Operational Directive No. 774 and Employee Relations Guideline No. 21. 4 Operational Directive No.77 is attached as Exhibit 12. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 6 As part of the review process, all documents, including the statements of witnesses, police reports, BART PD policies relative to use of force and personnel management, training records, internal affairs investigations, personnel documents, autopsy reports, and videos taken during this incident were reviewed and analyzed. Additionally, lesson plans and model policies from Taser International and the lntemational Association of Chiefs of Police were examined. The BART of?cers who were the focus of this Investigation were individually advised that they were being investigated regarding their conduct at the Fruitvale BART Station in the early morning hours of January 1, 2009 during the events surrounding the shooting death of Oscar Grant. Of?cer Pirone was informed that he was being investigated for all of his actions and omissions on the morning of the incident from the time he got the call to respond until he went off shift. Speci?cally, Of?cer Pirone's conduct and performance in the following areas was thoroughly and rigorously Investigated: (1) His response to the call; (2)The deployment and use of of?cer back up; (3) Whether proper considerations were made for of?cer safety in responding to the scene; (4) Whether there was appropriate command communicated regarding the use of the Taser; (5) The appropriateness and propriety of his interaction with the public, particulany and including, his swearing and use of improper and offensive language; (6) Whether his use of force with his hands on several of the detainees in the train and on the platform was necessary and appropriate; (7) Whether his arrest and detention techniques were proper and appropriate; and (8) Whether his overall demeanor and treatment of suspects and the public exacerbated a tense and chaotic atmosphere. Of?cers Flores, Guerra, Knudtson and Woffinden were informed that they were being investigated for all of their__a_ctiqn?_and omissions onthemon?ngoftbe incident from the timetheygotthecallto responduntit. they went off shift. Speci?cally, Officers Flores, Guerra, Knudtson and Wof?nden were each investigated regarding the following matters: (1) Their response to the call; (2) Their use of of?cer back up and coordination with their partner(s); (3) Considerations of of?cer safety in responding to the scene; (4) Command communications regarding the use of their Taser and/or their baton; (5) Their interaction with the public, including and particularly, their swearing and, or their use of improper language; (6) Their use of force against any individuals or detainees on the platform; (7) Their arrest and detention techniques; and (8) Their treatment of suspects and the public. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 7 Each of the of?cers whose conduct and performance is a focus of this investigation was interviewed by the Investigators (Of?cers Domenici, Flores, Guerra, Knudtson, Pirone and Wof?nden). The of?cers were represented by legal counsel who was present during the course of their interviews. Former Of?cer Johannes Mehserle was not interviewed.5 All of the witness detainees were interviewed by the Investigators as part of this investigation 00- J. B. N. ?ml R.- The kei BART employee was interviewed in connection with the investigation, the Train Operator, . Numerous other witnesses and individuals with information regarding the incident were interviewed during the course of the investigation. A complete summary of the witnesses who were interviewed accompanies this report as Exhibit 13. 5 Despite an early agreement with attorney Michael Rains to allow us to interview his client, Johannes Mehserle, Mr. Rains asked that we wait until after the criminal preliminary hearing to do so. The condition of his agreeing to the interview was that we limit our questions to those concerning the other of?cers? conduct and not about his own conduct. We so agreed. Following the Preliminary Hearing and the Court?s decision to go forward with a charge of murder against Mr. Mehserle, Mr. Rains has not returned our calls or emails to schedule his client's interview. It appears he has changed his mind. The communications to set the interview were as follows: 3/24/09 Gilbert called Mike Rains to request an interview with Johannes Mehserle 3/25/09 Gilbert called Mike Rains to discuss scope of interview 4/08/09 Colwell called prepared letter to Mike Rains to schedule interview 4/20/09 Colwell exchanged phone messages with Mike Rains regarding scope and timing of interview 5/04/09 Colwell prepared letter to Mike Rains to schedule interview . TMWOQ?ColwmiscussICJ?n?with Bill Rap?oport'r?egarding Mike Ra?srr??ssage that interview being considered 7/16/09 Colwell letter to Mike Rains to schedule interview Despite the inability to interview Of?cer Mehserle, the conclusion can be made from a close viewing of the enhanced video that he was intending to pull his ?rearm and not his Taser, as he can be seen trying to draw it at least two (2) times and on the ?nal occasion can be seen looking back at his hand on the gun/holster to watch the gun come out. At the time of the shooting the video clearly depicts Oscar Grant with two hands on his back in a handcuf?ng position. Deadly force was not justi?ed under the circumstances. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 8 INVESTIGATION AND INTERVIEW TEAM Although the BART PD began its Internal Affairs Investigation immediately following the incident on January 1, 2009 (such an investigation is traditionally performed internally), the BART management and Board shortly thereafter directed that an independent outside investigator be retained to conduct and complete the investigation. The BART management and Board are to be commended for responding proactively to the public?s concern that the investigation be conducted in an unbiased, independent and objective manner. After interviewing several consultants and teams of investigators, the Oakland-based law firm of Meyers Nave was selected to conduct the independent Internal Affairs Investigation of the six of?cers involved in the January 1, 2009 incident. A contract was entered into on February 11, 2009 between Meyers Nave and BART that generally described the anticipated scope of investigation, including the complete review of the actions of the subject of?cers on the platform that morning and whether or not each complied with all applicable laws, rules, regulations and procedures. The speci?c tasks necessary to conduct this review included: (1) Reviewing and analyzing documentary evidence; (2) Interviewing relevant witnesses; (3) Reviewing and analyzing relevant policies and procedures; and (4) Generating an internal affairs investigatory report with ?ndings, recommendations and conclusions. The investigation team was headed by Kimberly Colwell, a partner at Meyers Nave with over 20 years experience in police misconduct litigation. Jayne Williams, Managing Principal, and former city attorney of Oakland provided overall project management. A team of attorneys and technical experts assisted with the interviews and compiling the documentary evidence and exhibits, as well as assisting with the review and analysis.6 Richard Webb, an executive level ranking police officer with thirty years of police experience in a large urban department, was retained to provide advice and recommendations regarding the Internal Affairs Investigation process and best police practices. His speci?c expertise in the review and adjudication of police uses of force, particularly deadly force, and his expertise in police internal affairsinvestigations were instrumental in the formulation of the ?ndings and recommendations contained in this report. (His CV is attached as Exhibit 14.) - . plan for the investigation, the review and analysis of the factual and documentary evidence and assistance in key witness interviews. Dr. Armistead, a licensed investigator, has over thirty years of experience in criminology and investigations of major police incidents. (His CV is attached as Exhibit 15.) 6 Meyers Nave attorneys assisting with the investigation: Kimberly M. Drake, Kevin E. Gilbert, Jesse J. Lad, Camille Hamilton Pating and Samantha W. Zutler. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 9 Gregg M. Stutchman of Stutchman Forensic Laboratory was retained to provide the forensic analysis of the video and photographic evidence. Mr. Stutchman has worked in the criminal justice system since 1973 as a police of?cer, a State licensed investigator and since 1992 as a forensic analyst when he established Stutchman Forensic Laboratory. As part of this investigation, a video enhancement of the video footage was done to reconstruct a comprehensive depiction of the incident and timeline (Exhibit 16). At the commencement of this assignment, it was estimated that investigation, review and preparation of a report could be completed within approximately three months (May). However, when Meyers Nave received the initial batch of relevant ?les from the BART PD and began reviewing the contents, it was readily apparent that the volume of information and data that had to be analyzed was far greater than originally estimated, this also caused a commensurate enlargement of the breadth of the investigation. The number of witnesses essential to the quality and credibility 'of the investigation that had to be interviewed expanded substantially. The extensive documentary evidence, including voluminous recorded statements, was far in excess of the original estimate. The time and effort necessary to collate, transcribe and-enhance the videos also exceeded original estimates. in addition to the review of the relevant BART PD policies and general orders, BART management requested that Meyers Nave review and comment on the policies and general orders of the BART PD relevant to this incident as to their appropriateness and compliance with current law and standards of police practice. Thus, at its meeting of March 26, 2009, the BART Board of Directors authorized the expanded scope of services for the Internal Affairs Investigation with an estimated completion date of July. A number of external events, many of them occurring simultaneously, significantly impacted, and in some instances, actually impeded the progress of this investigation. in the early weeks of this investigation there 7 were numerous delays in Scheduling witnesses, ascertaining the availability of witnesses and negotiating with witnesses lawyers regarding the scope of their interviews and the nature of the questioning. The investigation was further complicated and hampered by the contemporaneous criminal investigations conducted by the BART PD and the Alameda County District Attorney involving the incident at the ruitvale Station; these criminal inquiries delayed access to certain documents and statements. Former BART PD Of?cer Mehserle was charged with murder in the shooting of Oscar Grant. This charge resulted in a Preliminary Hearing from May 18, 2009 to June 4, 2009 during which some of the BART of?cers who are the subject of this investigation were called to testify, as well as other witnesses. The lawyers for the witnesses did'not permit their clients to be interviewed in connection with this Internal Affairs . Investigation until the conclusion of the Preliminary Hearing and until they had an opportunity to review the transcripts of their testimony at the Preliminary Hearing. A civil wrongful death lawsuit has been filed in District .Qourt. bLattorney on._bel1alf_oitbe - filed civil lawsuits alleging civil rights violations arising out of the incident. Intense media coverage and public scrutiny has continued since the incident occurred. The BART Board has established a Police Department Review Committee and has retained a consultant to conduct a ?top to bottom? review of all of BART policies, general orders and policies for recommended best practices. CONFIDENTIAL COMMUNICATION Date: July 31,2009 Page: 10 From the period February 13, 2009 to date, Meyers Nave received over 7,000 pages of documents and media from BART through Lieutenant Frank Lucarelli and Sergeant David ChIebowski of the BART lntemal Affairs Department] We reviewed the documents for completeness and followed up with BART to obtain additional documents, as necessary. A table summarizing the documents received and date of receipt is attached as Exhibit 17. IX. INTERVIEWS WITH CITIZEN WITNESSES A. El:- 1. Background Pleas interviewed at her home by Kimberly Drake of Meyers Nave on May 26, 2009. She was also in ervnewed by BART Detective Smith on January 2, 2009. Her interview transcript is attached as Exhibit 18. 2. Impression Ms. C-s wary of the police officers and what she perceives to be a BART bias. She feels strongly that the police who interviewed her failed to accurately report her statements. She thinks the police officers acted like "thugs.? She is upset about what happened and mad that the news stories make it sound like the kids deserved it. and pleasant woman. On New Year?s Eve, she was travelin with Ms. is dl md WCio see a comedian perform at the Castro Theatre. Ms. drank no alcohol. 3. Incident Ms. 0- states that she was seated in the #2 car, 1-2 rows away from the handicap seats, next to the window. The Fmitvale platform was to her left. Her friend was sitting to her right. She states that she was sitting approximately ten (10) feet and ?two minutes past 12 o?clock? from the location where Oscar Grant was shot. She did not see any ?ghts or altercations from San Francisco to Fruitvale. She saw a kid with dreads come walk through. hangar, .Ibeyalld?sed the same big sweatshirt and baggy pants. 7 Throughout this investigation, BART personnel were extremely cooperative and provided invaluable assistance in the collection of the voluminous documents and records. Their assistance was greatly appreciated. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 11 At the Fruitvale Station, she ?rst noticed 3 kids walked over to the wall and were told to sit. The kids sat down against the wall like ?good soldiers.? She thinks a male officer other than Pirone walked the kids over to the wall before Pirone and Domenici arrived. Ms. describes the kid furthest from her as heavier and ?Mexican or black" and the kid closest to her as thinner. hey are there for approximately ten (10) minutes. Oscar Grant sits with the group for approximately 3-5 minutes. Ms. C-hinks the kids being detained were trying to talk based on their hand movements. She heard Pirone telling them, ?Shut the fuck up. Idon?t wanna hear a fuckin? thing you have to say." A female of?cer is left to watch the kids while Pirone, the ?crazy cop,? enters her train car screaming ?Get the fuck out of my car" and "Where the fuck are you?" and ?You either get the fuck out of my train or I'm gonna have to get, come in there and, and pull you out.? Pirone marched through the train and said words to the effect ?Now, you?re making me come in here, in front of all these nice Ms. lees Pirone grab the guy with dreads, pull him off the train, slam him against the wall, spin him around and slam him down on the ground. He was being dragged like a "rag doll." While Pirone has the guy with dreads on the ground, she sees him cuf?ng him. Oscar Grant is the fourth kid to be lined up with the others. She thinks Mehserle escorted Grant from the train to the location where the other kids are lined up and has him sit down. Grant is in the middle of two detainees; he is not on either end. She sees him seated against the wall with his arm extended out and his cell phone out. Ms. C-assumes Grant is filming his friend or the police brutality. Ms. remembers thinking to herself or telling her friend that Grant is crazy for ?lming the angry cop. When Pirone ?nishes handcuf?ng the guy with dreads, Pirone abruptly stands up and marches over to Grant and says, ?You fuckin' takin? a picture of me?? She sees Grant look up at him. If Grant responded, she did not hear it. Then Pirone?s back is to Ms. C-and there is an interval when she cannot see what is going on. Next thing Ms. C-sees is Pirone taking Grant down and pinning him down with his knee between Grant's neck and shoulder (but Pirone?s back is to her). Grant looked frozen and he wasn't moving. Of?cer Mehserle is facin her. straddling and standing over Grant. Grant is lying flat on the ground, his head toward Ms. Ms. C-ssumes Grant's hands are underneath him because she cannot see his hands.-.She.sees Mehserle use hisrighthand tojugon Grant?srightelbow. Ms. _C-comme_nted_to her friend, ?Man, that kid must be strong because the cop can't get his hands to handcuff him." Next thing Ms. C-sees is Of?cer Mehserle come up to his hip, pull a gun from his right-side, and point it. She hears a ?pop.? She sees what looks like gray smoke. She says, "Shit, [Mehserle] shot him." She sees Mehserle raise his hands to his head. She sees Pirone stand up, lift Grant up by his left shoulder, and then let go of him. Mehserle and Pirone start talking. No one renders medical attention. Ms. Cgsees the kid to the right of Oscar (toward the front of the train, south) react to the shooting. He looks rea ed out when the gun goes off. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 12 Ms. C-hears a lady?s voice. She thinks it is the train conductor. The voice tells everybody to get inside, they?re leaving. Ms. C-was shown a picture of a Taser. She states that she never saw any weapons out until Mehserle pulled out his gun. Ms. C-offered the following corrections to earlier statements in police report: . Ms. aw Officer Mehserle shoot Grant. 0 Ms. id not say Of?cer Mehserle had an expression like ?Why did my gun go off." 0 Ms. hinks she remembers the of?cers handcuf?ng Grant after he was shot. 8- 1 . Background C-Nas a witness to the incident. She took video of the incident and she gave this to the Alameda County District Attorney's of?ce. She was interviewed by Inspectors Brook and Connor on February 23, 2009 and provided them with the memory chip from her camera. We have a copy of the report by Inspectors of the interview. Ms. .3130 gave testimony at the Preliminary Hearing in the criminal case against Johannes Mehserle. Samantha Zutler of Meyers Nave contacted Ms. C-to arrange for an interview. Ms. .agreed to an interview on May 20,2009. Ms. Zutler arrived at the interview location and Ms. id not appear for the interview. Ms. Zutler called her after the attem ted interview and Ms. never returned her calls. Meyers Nave was not able to interview Ms. Ci C. 1 . Background was a witness to the incident. She was interviewed by BART Detective Mae 0 anuary 2, 2009 by telephone. Kimberly Drake of Meyers Nave was assigned to interview her. Ms. Hwas out of town until the end of June 2009. Since that time, Ms. Drake has been telephoning her to arrange interview-but Meyer-sNave-was?net able-t9 intervieW?Ms. CH 0. .. 1 . Background Z-CHwas interviewed by BART Detective Maes on January 11, 2009 by telephone. He was interviewe amantha Zutler of Meyers Nave on May 29, 2009. His interview transcript is attached as Exhibit 19. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 13 ZI-NBS interviewed in a Meyers Nave conference room in our Sacramento of?ce on May 29, 2009. He resides in Sacramento. The only other person Mr. C-iad talked to about the shooting was someone he believes was Of?cer Maes, who he believes was from BART PD. Mr. C-did not testify at the Preliminary Hearing, and has not talked to the press about the shooting. He has not been contacted by any other investigators. 2. Incident On the night of the shooting, Mr. C-and his thengirlfriend (now wife) were returning from a concert at the opera house in San Francisco. They boarded BART at the Civic Center Station. That night was Mr. C-lirst time riding BART. Mr. C-believes he saw the men who were pulled off the train at Fruitvale (the detainees) board at Civic Center. Mr. C-identi?ed the six detainees as the people he saw board at Civic Center and later walk through the train. Mr. his girlfriend were sitting in the ?rst or second car in the train, in the two seats closest to the door. The shooting occurred directly out of the window to which they were closest. The train was not crowded when they boarded; it started to crowd around Powell Street Station, more so at Montgomery Station. The detainees walked through Mr. C- car twice. The ?rst time he noticed them because they were being loud and talking back and forth to each other. They did not seem aggressive. The train stopped for a long time at the Fruitvale Station. Then, Mr. C-ioticed an of?cer (later identi?ed as Pirone) pulling three people from another car and putting them against the wall. Pirone then starting walking up and down the train yelling, angrily, to someone in the train to get off. Mr. described Pirone as an ?angry drill sergeant.? Then the female of?cer (Domenici) showed up and detained the gentlemen Pirone had pulled off the train. Pirone then entered Mr. _car and dragged G-off the car. Mr. C?aid Pirone was being really aggressive, dragging G-around and forcing him against the wall. Mr. C-thought Pirone was being overly aggressive. Because Pirone was being forceful, Mr. C-zould not tell if '33 resisting or not. The detainees sat along the wall; they did not stand until after Pirone kneed Grant in the face. He doesn?t rememberifllomenicthad aweapondrawn. .. - After stationing the detainees on the wall, Pirone returned to another car on the train and emerged with Grant. Pirone was also aggressive with Grant, dragging him around. It looked as if Grant might have been resisting, or telling Pirone not to shove him. Pirone pushed Grant to the wall with the other detainees. When Pirone was shoving Grant, Grant?s back was to Pirone. As Grant turned around, Pirone hit Grant with Pirone's elbow. Mr. C-believes it was Pirone?s right elbow. Mr. C-described the hit as aggressive and "a little over the top.? CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 14 As Pirone started to walk away, the detainees were yelling, but Mr. couldn?t hear what they were saying. He could not make out anything from Pirone directly. Mr. then saw Pirone turn back around and walk directly to Grant. Grant was sitting on the ?oor with his back against the wall. Pirone took a couple running ste and kneed Grant in the face, causing Grant?s head to bounce back against the wall. At that point, Mr. Chhought the passengers on the train were going to riot. The crowd looked very aggressive and began to come off the train to stand near and yell at theofficers. After Pirone kneed Grant, the detainees stood up. Mr. C-doesn't remember if Grant stood up voluntarily or if the officers pulled him up. . Grant then made (or received) a phone call. The officers began to handcuff the other detainees. The detainees looked shocked when they stood up, and angry because Pirone was being so forceful and brutal to their friend. They didn't seem resistant, and he never saw any of them try to leave. Mr. C-ooked away from the scene and, when he looked back, Grant was on the ground. He doesn't remember where the other detainees were at that point. He doesn?t remember where Grant?s hands were, but thinks they might have been out to the side; they were not behind his back. Pirone was at Grant?s head, with his arm on Grant, and maybe his knee on Grant's shoulder. Mehserle was not touching Grant. It looked as though the of?cers were having difficulty cutting Grant. Mr. (-1eard the gun go off, but did not see Mehserle draw or reach for his gun. When he looked over. the gun was smoking and Grant was laying ?at. When the actual gun went off, Mr. was looking at the crowd, which was yelling and getting closer to the scene. After the shot, Mr. C-saw Mehserle standing over Grant; Mehserle shook his head, had a look of utter shock, and mouthed the words ?oh. my God." Pirone then got up, shoved Mehserle away, and told him to "go, get out of here, go do something else.? At that point, the doors of the train shut, and the train exited the Station. Mr. C-does not remember if he ever saw Grant on the far right of all of the detainees. Mr. (-did not have any alcohol or drugs the night of shooting. 1. Background T-E-was a witness to the incident. He took video of the incident and gave his sandisk to Lieutenant Forte of BART right after the incident. This item was entered into evidence. Mr. C-rvas interviewed by BART Detective Carter on January 2, 2009 by telephone. He also gave testimony at the Preliminary Hearing in the criminal case against Johannes Mehserle. Camille Hamilton Pating of Meyers Nave reached him by phone on May 19, 2009. Mr. _was not sure if he was willing to be interviewed. He said that he did not want to make this decision until after the Preliminary Hearing was complete. Ms. Pating believed that Mr. '33 amenable to the idea of her contacting him again by phone. Ms. Pating CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 15 called him three more times after the end of the Preliminary Hearing and left messages, but Mr. never called her back to schedule an interview. Meyers Nave was not able to interview Mr. 1 . Background J-llwas a witness to the incident and took video of it. He was part of Oscar Grant's group on New Year?s Eve. He provided video to the Alameda County District Attorney's of?ce. On February 26, 2009, Detectives Enriquez and Fuen were shown Mr. Dewar?s video by Inspectors Brock and Connor. BART Police did not interview Mr. Mr. l-gave testimony at the Preliminary Hearing in the criminal case against Johannes Mehserle and testified that Mr. Grant was involved in a ?scuf?e? with someone he knew ri ht before the train reached the Fruitvale Station and that he assisted in ending the altercation. [his a minor and we were unable to locate contact information . We did, however, learn through our detainee interviews that he could be contacted through We attempted to set up an interview through Mr. but the deadline on submission of this report was too imminent. 6- l- 1. Background ll-was a witness to the incident. He was interviewed by BART Detective Power on January 7, 2009. Mr. was interviewed on June 10, 2009 over the phone by Kimberly Drake of Meyers Nave. Mr. is a student at UCLA and declined to meet in-person. His interview transcript is attached as Exhibit 20. 2. Impression Mr. -grew up in Oakland. His interview belied good instincts, some street smarts, and decent observational skills. He came across as very truthful throughout his interview. He showed concern that the reporting of the BART shooting left out details about the ?ght he witnessed in his car, or events preceding the shooting. 3. Incident Mr. .was at a Grateful Dead concert at the Bill Graham Auditorium on New Year's Eve. He admitted to smoking marijuana at 12 midnight. He boarded at the Civic Center Station with his friend He was seated in the middle of the train, in an aisle seat closest to the handicap seats, toward the front of the car (south) and opposite the BART platform. He was seated until the West Oakland Station, when he got up and got in line to off-board later at the Lake Merritt Station. While still on the San Francisco side, Mr. -observed a group of 6-8 African American guys enter his car. He described the whole car as ?rowdy" but he referred to this group of guys as "troublemakers.? He described them as wearing black hooded sweatshirts. One was wearing a giant, ??ashy" gold watch. Another had a grill in his teeth (he could not say whether it was gold, silver or diamonds but he found it CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 16 ?hilarious"). Another had braided hair which he wore to his shoulders, like the rapper Snoop-Dogg. Mr. aw ?the ringleader" of the group smoke a cigarette on the car; he saw a member of the group hang on the handrails; another one - the one wearing the gold watch - sat in his lap at one point. Mr. .33 an eyewitness to the shoving match on the BART car after the West Oakland Station and before the Fruitvale Station. Mr. J- was standing in line to off-board. He described the line as follows: Unidenti?ed male closest to the doors; An African American male in his 2 Mr. -and his friend A young couple in their 20's or 30?s, specifically, a ?gorgeous blonde girl" with her stocky boyfriend, who had brown hair and wore a Marine-like crew-cut; and The 6-8 African American guys whom Mr. fers to as ?the troublemakers." of average build, with a bald or shaved head; Mr. -hears ?the ringleader? shout, ?Push to the on.? Mr. -sees the ringleader push the blonde girl. Her boyfriend tums around and says, ?Hey man, like watch it." The?ringleader says: ?What'd you say to me?" There is no response. The ringleader pushes the boyfriend. The boyfriend looks like he may ?ght back. The ringleader says, exact quote: ?You really don't know how many of us niggas there are back here." Then he turns around and he counts all his friends, ?One, two, three, four, ?ve, six, you fucked now.? Accordini to Mr. J- friend Mr. G- the ringleader also said, ?You gonna get your [throat slit].? Mr. id not hear this part. Chaos ensuies. The blonde girl is punched. Her boyfriend is beat up by the ringleader and two other guys. Mr. and his friend cannot wait to get off the train. They off- board at the Lake Merritt Station. Mr. does not see any BART Police of?cers but he hears someone mention that BART Police have been called, or words to that effect. 1. Background was a witness to the incident. She was interviewed by BART Detective Power on January 3-and5,? 2009 was interviewedon June-9:2009by' Kimberly Drake ofMeyersNave. "Her?? interview transcript is attached as Exhibit 21. I 2. Impression Ms. l-Ieclined to be interviewed in-person. She is a reluctant witness and is trying to ?forget it'all.? She is easily ?ustered and perturbed. Her powers of observation are excellent and we did not ?nd any contradiction in her interviews. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 17 3. Incident On New Year?s Eve, Ms. K-rent to see a comedian at the Castro Theatre in San Francisco with three friends. She had one beer at a Japanese restatrrant in Hayward before taking BART from Hayward to San Francisco. After the show, Ms. I. returned home. She boarded at Powell Street Station. She and her friends were not in the ?rst car or the last car. She guesses they were in the #2 or 3 car. It was very crowded. She was standing. Ms. K-Iid not see any ?ghts or altercations on the train. While she was standing, somewhere between Powell and West Oakland, a group of young guys (maybe 3) walked through her car from the car behind her (south toward the front) and 2 returned and walked back into her car. They were loud but they were not harassing anyone. One of the guys had short dreadlocks. He was pulled off her car. There were a couple other guys that had shorter hair. One was black and the other looked Puerto Rican. They de?nitely were not short. Thisgroup made some loud comments about a guy with a burrito, like "that smells good.? By West Oakland, the car opened up more and Ms. K-found a seat in the aisle, 3-4 rows back from the rear (northernmost) door of the car. She was seated backwards facing the rear of the train, next to the guy with the burrito and across from her friends. At the Fruitvale Station, she was seated on the opposite side of the platform. 4. Fruitvale Station When the doors opened up at Fruitvale, Ms. K-reard some yelling on the platform. At that point, she saw two of?cers, one male (white, light-colored hair, buzz cut) and one female (dark hair and shorter). The male of?cer was elling but she couldn?t hear what he was yelling. The male officer came up to the door closest to Ms. hand started yelling at someone on the train. He came onto the car and started yelling ?Get the fuck off my train.? Ms. _stood up to see what was going on. The male of?cer kept screaming ?Get the fuck off my car,? and asked you nicely, now I'm gonna pull you off,? and ?I?m gonna remove you myself.? The male of?cer went to the back door of the car and pulled-the with short dreadlocks off Ms. _car. He slammed the guy against the concrete wall. Ms. never .seenanythingtikeit? board the car to her north. After the police of?cer slammed the guy against the wall, he threw him down on the ground. While the guy was laying on the ground, he tried to take his cell phone out like he was trying to take pictures. The of?cer took his cell phone. There was a lot of commotion, a lot of screaming and yelling. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 18 The male of?cer got at least 3 other 5 off the train and in custody (1?2 might have been black; one might have Hispanic). Ms. ?aw them sitting against the wall on her left, opposite the doors. Ms. ?ever noticed Oscar Grant seated In the southernmost position. She remembers the male of?cer going back and forth between the guy laying down and the guys sitting against the wall. When the male of?cer got near the guys sitting against the wall, they would throw their hands up. The male cop was like a drill sergeant in the military screaming and yelling in the detainees? faces. It was like he was putting on a show. The detainees were not doing anything other than sitting there with their hands up. They looked more scared than threatening. The female of?cer was not doing much. She looked more scared than anything else. Ms. K-does not recall seeing her with her Taser. After quite a few minutes, other of?cers showed up. Although Ms. l-cannot describe them, she states that two male of?cers were not letting anybody off the train. They were holding people back. They were screaming at people to put their cameras down. They did not want anyone taking videos or pictures of what was happenin . They tried to take away the cameras of two guys (one black; one white) who were standing in Ms. car taking pictures. Ms. K- also recalls Pirone trying to get the cameras away from the guys on the ground. Ms. .saw the male of?cer with his knee in Oscar Grant?s neck. At the time, Grant was laying on the ground, face down, with both arms undemeath him. There was another of?cer (white, tall 6?3? to 6?4" with short dark hair) trying to pull Oscar Grant's arms out from underneath him. Ms. _did not see the shooting because she sat back down in her seat while Grant was lying on his stomach. When she sat down she heard the pop. Then she stood back up. When she stood back up, she saw Mehserle put his hands up to his head and what she describes as his ?shocked reaction." I. 1 . Background C-L-was a witness to the incident. She was interviewed by BART Detective Carter on January 10, 2009. She was interviewed by Camille Hamilton Pating of Meyers Nave on May 26, 2009. Her interview transcript is attached as Exhibit 22. With respeCtto visual perspective, L-had an ekcellent view of the incident-enshe was ?standing in the second car doorway of the BART train, about 10-20 feet away from the detainees and officers. She had a detailed recollection of the incident. Ms. L-observed the following sequence of events, described below: . Verbal confrontation between groups of Latino and African American youths; . Two members of African American group enter Ms. L-train car. One was forcefully removed by Of?cer Pirone and thrown against the wall; 0 Of?cer Pirone's ?very agitated? behavior on the platform; CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 19 . Detainees? resistant behavior - talking back and refusing to follow Of?cer Domeni'ci?s instruction to sit down while against the wall; . Of?cer Pirone pointing at detainees who were "going to jail? then kneeing Oscar Grant; . Oscar Grant?s arms behind his back before he was shot; and . ?Shocked? reaction of Of?cer Mehserle after the shooting. Ms. L-agreed to be contacted again should additional be needed for this investigation. Ms. L-resides in Castro Valley. She is married to M- T- also a witness to the incident whose statement has been taken separately. She has previously given one statement to BART Police (TR. pp. 1- 2). 2. Impression C-l-nesented as a credible witness. Her demeanor was straightforward, cooperative and did not appear to be biased toward any party. . 3. Incident On December 31, 2008, Ms. .and her husband traveled via BART from their home in Castro Valley to meet a group of friends for dinner in San Francisco. They disembarked at Embarcadero Station and walked to meet their party of ten, and had dinner at about 8:00 pm. Ms. l-did not consume any alcohol that evening. At about 1 :00 am, they walked back to the Embarcadero BART Station with another couple to return home to Castro Valley. (TR. pp. 2-3.) Ms. Itated they boarded the train onto the second train car of the Dublin-Pleasanton train. Ms. L- identi?ed her exact location by marking the schematic and photograph of the inside of a BART car, which are attached as Exhibits (TR. p. 4). The train car was ?de?nitely packed," with the occupants standing shoulder to shoulder, and Ms. L- group of four was standing ?right at the doors.? She did not notice any arguments among passengers until they arrived at Fruitvale Station (TR. p. 5). 4. ruitvale Station When the train stopped, Ms. Ibserved "in the ?rst train car, a group were yelling at appeared to have been still on the BART train. looked like [they were yelling] into the car train." [sic] This group consisted of two women and the rest male, possibly seven persons in all. They were young, ?no more than 25" (TR. pp. 5, 6, 7). After about 10 or 20 seconds, the Latino group stopped yelling and started walking away to the north, down the platform to exit the Station. She then saw a group of African Americans get off the train and start walking, and two persons from this group entered her train car while the rest walked (TR. pp. 5, 7). The African American group consisted of ?ve to six persons, about the same age as the Latino group. One of the persons who entered her car wore jeans and a white T?shirt. The other wore a red and white hat (TR. p. 8). CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 20 An of?cer arrived who ?looked like a typical guy with the crew cut hair and and tall.? The ?crew cut" of?cer pulled over the African Americans who were walking north down the latform and then started yelling at the train car behind Ms. L- The of?cer then approached Ms. i car. "When he came to our car he was I now know was a was just cussing and very pissed off" (T R. pp. 9, 12). A female of?cer arrived at this point. She told the detainees against the wall to sit down. They complied but then stood back up. The female officer ?was telling them to sit down, sit down, and they were giving the of?cer lip.? Ms. lead the woman of?cer saying ?you still better respect me? and "I?m still an officer? while the detainees were ?talking back" to her (TR. p. 9). Ms. l-ieard the detainees say, "Well what?s going on? What?s this all about?? and ?We didn?t do anything? (TR. p. 14). They were talking to the woman of?cer, "saying something and like very angry, and then they would sit down, and then they?d stand up" R. pp. 15 16 . The person who was forcefully removed by Of?cer Pirone and thrown against a wall, who Ms. elieves was Oscar Grant, was one of the detainees who ?stood up and wouldn?t sit down again when the of?cers told them to all sit down? (TR. p. 17). Ms. L-did not observe the detainees use any physical force against the of?cers. The ew cut" of?cer was ?very agitated? on the platform looking for the persons who had entered Ms. train car.. He was saying "Motherfucker, get off the train. Don?t think I don?t see you. Get off the train; otherwise I?m gonna get on that fucking train.? Ms. L-stated that the of?cer ?just kept throwing the f-word and that's what I kept noticing.? He was telling the people on her train, "Get off. I saw you. Don?t think I?m stupid. Get off the train.? This was stated multiple times (TR. pp. 9, 12). The persons did not get off and the officer ?was pissed off and he pulled one guy off and threw him against this the other people that were pulled over.? The person who was taken off in this manner was African American with a short natural He wore baggy jeans and a large white T-shirt. Ms. believes this detainee was Oscar Grant, although she was not certain. The of?cer removed him from the train in a ?pretty aggressive" manner, holding the scruff of the neck of the detainee?s T-shirt in his fist and pushing at the detainee?s back with his forearm. The of?cer twisted the detainee as he was thrown against the wall so the detainee?s side and back struck the wall as he landed (TR. pp. 9-10, 12, 17-18). Ms. l-saw another person from the African American grou who had entered the third 'car get off voluntarily. That person was placed against the wall. Ms. did not see who detained the person (TR. pp. 12-13). At -th?tpqinl, Mg. L-Iomed another detainee who was ?fnot Oscar Grant". lyingon. the. ground. She marked the schematic to show the position of the detainee on the ground south of the group against the wall. Ms. L-did not see this person taken down or handcuffed (TR. p. 11). The ?crew cut? of?cer walked on the platform from south to north. He pointed to the ?rst detaineethat was standing against the wall and said, ?This guy?s going to jail (or getting arrested)." The of?cer pointed at ?the second or third" detainee as he repeated the statement (TR. p. 20). Then Ms. L-saw the ?crew cut guy? come up to Oscar Grant and ?knee? him. Grant hunched over and was pushed to the ground, with the crew cut officer on top of him. Ms. law the officer's knee on Grant?s body, at the upper back or neck. The crew cut of?cer's back was turned to L-and Of?cer Mehserle was facing her (TR. pp. 11, 14, 21). She saw Oscar Grant's arms behind his back ?his hands were de?nitely back.? She did not see his palms up, CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 21 but demonstrated how his shoulders were arched with his arms behind his back (TR. pp. 20-21). After Grant was ?knead? and taken down. L-ieard the detainees say "Why -wh are you doing that?? and ?He didn?t do anything" (TR. pp. 21-22). Other than the crew cut of?cer, Ms. did not see any BART Police of?cers use physical force against the detainees. Ms. Llhen heard what she now knows was a gunshot. She saw Officer Mehserle standing above Oscar Grant. His facial expression ?was like, ??Oh my God what 'ust happened?? Mehserle's expression was ?basically shock." She did not hear anything he said. Ms. bserved Oscar Grant lifting his face in pain, and saw blood on the platform (TR. pp. 11, 22). The BART train doors then closed and the train took off (TR. p. 23). gl- 1 . Background D-llwas a witness to the incident and took video. He gave this video to Alameda County District Attomey?s of?ce inspectors Brock and Connor on February 23, 2009 during an interview. We have a copy of the report by Inspectors of the interview. He also gave a copy of the video to a news channel in exchange for money. Mr. lave testimony at the Preliminary Hearing in he criminal case against Johannes Mehserle. We were unable to locate a phone number for Mr. only an address. Thus we were unable to interview him. K- 1 . Background R-M-was a witness to the incident. He was interviewed by BART Detective Smith on January 1, 2009 by telephone. Camille Hamilton Pating of Meyers Nave set an interview with him on May 18th. Before the date of the scheduled meetin Ms. Pating called him to reschedule or reset the place of the meeting and left messages for Mr. rv? She did not hear back from him. She continued to place more calls to him and left messages for him and never received a call back. Meyers Nave was unable to interview Mr. .. I- 1. Background ?C-was a witness to the incident. He was interviewed by BART Detective McNack on January 2. 9 by telephone. He was interviewed by Camille Hamilton Pating of Meyers Nave in person on May 20,2009. His interview transcript is attached as Exhibit 23. 2. Impression presented as a credible witness in some aspects of his statement - speci?cally his vivid account of a second altercation in another train car unrelated to the con?ict between Latino and African CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 22 American youths. However, Mr. O-placement of himself In the second8 train car, description of detainees being ?Tased' and ?zip-tied,? misidenti?cation of photographs of ?and Officer Knudson, and other opinions he developed about the case, impressed the interviewer as not reliable. His demeanor was cooperative, but appeared biased against the police. In addition, Mr. (-seems to relish his notoriety as a witness in this matter, has developed his own theories about how and why the incident could have occurred and has altered his testimony from his initial interview. He indicated that he has watched videos of the incident and discussed it with others whose views have in?uenced his current perspective as well. The interviewer also believes that alcohol affected Mr. O-ability to perceive he was drinking vodka shots before the incident. Mr. (-reported the following sequence of events, described below: 0 Physical ?ght between African American youths and a White couple; 0 Officers met the train at Fruitvale and pulled the detainees out of the ?rst train car; used Tasers to subdue detainees; 0 Take down and shooting of Oscar Grant; . Detainees ?screaming at the of?cers? as they were lined up on the wall; Mr. .esides in Tracy. He has previously given one statement to BART Police; he also contacted Channel 5 News and was interviewed by a reporter (TR. p. 2). 3. Incident On December 31, 2008, Mr. (H his girlfriend and two friends went to another friend's apartment near . Coit Tower in San Francisco to ca rate New Year's Eve. They left from his father?s home in Castro Valley, at about noon, and took the BART to San Francisco, arriving at about 1:00 pm. They stayed in San Francisco the entire day at his friend's home having a BBQ and a New Year's party. Mr. (-was drinking vodka shots, and estimates he had ?four or five shots through the whole day, you know what I mean?? His last shot was ten minutes before midnight (TR. pp. They boarded the Dublin/Pleasanton train at Embarcadero Station for the return trip to Castro Valley. Mr. C-stated, and indicated on the schematic (attached as an Exhibit), that he boarded onto the second BART train car (TR. p. 4). He stated that there was a physical ?ght on his car involving seven African American males, approximately 17 or 18 years old, and a white male and female. One member of .theAfricanAmerican train approached WesthkIand-Statiorr. _stated the youth told ?a guy standing up in the middle And, the guy was just like, ?No. I?m not gonna go.? His girlfriend's in front of The African American youth then pushed the other man and ?punches were thrown." When the other members of the group saw the ?ght between their friend 8 It appears that Mr. C-might have been in the third or fourth car based on his description of being ?50 to 100 feet away" from the events and of seeing detainees pulled from the car in front of him, as well as his description (TR. p. 12). CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 23 and the much larger man, they jumped into the fray. In the middle aisle, all seven of the youths were punching the man and his girlfriend (TR. p. 5). People were jumping over seats and passenger?s heads trying to throw punches on the packed train. The woman was grabbed by the hair and was screaming. The ?ght lasted 30 seconds to one minute (TR. p. 9). When the train stopped, the man and woman got off, but the seven youths remained on the train (TR. pp. After exiting the train, the man stood on the West Oakland platform, took off his shirt and threw his hands up. The woman was crying (TR. p. 7). Mr. (-iescribed the white man involved as about 20-25 years old approximately 200 lbs, wearing a white basketball jersey (TR. pp. 6, 7). The ?girlfriend? had a blonde ponytail Mr. 0-stated that, when the train pulled up to Fruitvale Station, the next stop after West Oakland, one or two of?cers were already there, and began ?pulling people out of the front train.? The youths involved in the ?ght in Mr. 0 car ?are sitting quietly, like nothing happened? (TR. pp. 7, 10). Mr. (-xpected that the of?cers were there to arrest the youths involved in the ?ght on his car, but that did not occur. "Everything was in the ?rst train? (TR. p. 19). As two detainees were pulled from the train, "they looked confused,? and were put against the wall. The police told them "stay down, stay down." Two more detainees were then brought out from the ?rst car with their hands up, saying, ?What are we doing?? (TR. p. 7). Mr. (-stated that one detainee started to walk away from an of?cer. The police of?cer pulled out his Taser, hit him in the back with the Taser. ?He goes down? (TR. p. 7). A second detainee is ?scared? and ?takes off, too.? The second detainee was Tasered. Two other detainees were at the wall watching. They stood up and another of?cer ?comes and puts them to the ground? (TR. p. 7). All four detainees were ?zip- tied" and seated at the wall (TR. pp. 8, 1 The two detainees who were ?Tasered? were white or Mexican, not African American (TR. p. 17). They were asking the of?cers "What did we do?" but were ?moved around? and ?thrown down" by the of?cers (TR. p. 18). Mr. C-stated that the actions of the of?cers was ?unnecessary to the fullest. I?d say this is brutality to me, you know what I mean?? (TR. p. 8). Mr. #stated that one of?cer, the ?rst of?cer on the scene, "put out a vibe" of brutality by "bringing a guy to ground that?s not really trying to resist or do anything? (TR. p. 20). Other of?cers were ?throwing? detainees on the ground (TR. p. 19, 20). At this point, Mr. 0-stated, Oscar Grant and two other detainees were removed from the first train 03!? However, MT-QZEDDE . -. .. they didn?t detain fem all, so the 're all circling around, making the of?cers kinda jumpy, you know what I mean?" (TR. p. 8). Mr. tated that more of?cers arrived and ?tackled those guys. They had their billy clubs was unnecessary. ..They were all being pulled out of the train" (TR. p. 8). Mr. (-did not observe any of the of?cers punch or kick any detainees, but felt the detainees were held inappropriately (TR. p. 27). CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 24 Mr. 0-stated that he saw Grant exit the train car, walk about 10 feet, and taken down immediately by three of?cers, one ?hanging over him, one of?cer on his front, one of?ce on his back? (TR. p. 23). An of?cer had a knee in Grant?s back. He was the same of?cer who was the irst guy on the scene.? Grant was face down for "a good few minutes before anything happened and was screaming, ?What? Why am I here?? . (TR. p. 24). Mr. (-Jelieved Grant was "zip tied? at this time, but did not see him being handcuffed. Mr. (-heard the shot and heard the ?rst officer say, ?take the handcuffs off him right now" to Mehserle (TR. pp. 25, 27). After Grant was taken down, Mr. (-heard the detainees ?screaming? on the wall. ?They were just yellin at, you know the of?cers that are holding down ?he's down, he?s down, he?s down. Leave him alone. He?s down?? (TR. p. 24). Up until that point, the detainees mostly looked confused against the wall. Mr. .did not observe any detainee attempting to hit or assault an of?cer (TR. pp. 26?27). Mr. O-reported that he was standing in an open doorway of his train car and ?lmed the incident on his cell phone. His video was given to BART Police (TR. p. 11). Mr. (Fidenti?ed a photo of a bystander at the scene wearing a ?puff jacket? who was ye ing at police to let Grant go, and was later apprehended himself (TR. pp. 13, 14, see Exhibits). Mr. C-tated that one of?cer who he identi?ed as the ??rst guy" on the scene was unnecessarily ?brutal? with the detainees. He identi?ed a photograph of Of?cer Knudsen as that of?cer (TR. p. 19, see Exhibits). He correctly identi?ed Officer Mehserle?s by his photograph attached as an Exhibit. . Mr. (-did not observe the shooting. He stated that he observed Oakland police officers at the scene patting the detainees down at the wall. He could tell they were OPD of?cers by their identi?cation on their arms (TR. p. 29). M. I- 1 . Background R-was a witness to the incident. She was interviewed by BART Detective Maes on January 2, 2009 by telephone. Ms. A-had spoken with Tom Leary, an investigator for Mike Rains. She also spoke Hearing. hadmt spgkeutothe. press, and no one else had tried to interview her. Samantha Zutler of Meyers Nave interviewed AIika Rogers on June 4, 2009, in a conference room of the Meyers Nave of?ces in Sacramento. Her interview transcript is attached as Exhibit 24. Ms. A-esides in Sacramento. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 25 2. Incident On the night of the shooting, Ms. A-was traveling with her then-boyfriend (now husband) 2-C- from San Francisco to Dublin. They boarded BART at the Civic Center Station at about 12:45 am. Ms. had not been drinking, or taken any drugs. When they boarded, the train was not crowded, but it was full after about three or four more stops. Ms. A-Nas on the second car near the front, near the door and next to the window. When the train moved, she was traveling backwards. Ms. A'loes not remember whether the detainees boarded the train at Civic Center. She saw them for the ?rst time, she thinks, between Powell and Embarcader when a few of them walked through her train car. The were talking to a woman behind Ms. A-complaining about the smell of the woman's burrito. Ms. identi?ed the gentlemen who walked through her train as -B- C. and Grant. 3. Fruitvale Station When they arrived at the Fruitvale Station, the doors opened and Ms. Al'ieard someone shouting. She later identi?ed the man as Pirone, who was shouting at someone to ?get off this fucking train.? She described him as angry and stem. She wondered if he realized how many people were watching him. Pirone entered the train via the door near Ms. A- He then went left, towards the rear of the train, and returned with some of the detainees, who he put on the platform. The detainees were mouthing off, but were not physically resisting. She believes the of?cers were having difficulty getting the detainees to line up against the wall. Pirone?s demeanor was aggressive and angry. The detainees were being dif?cult and talking back to the cops, but were not physically resisting. Ms. A-nemory of Pirone pulling Grant and (-3ff of the car is not clear. At some point, though, she knows all ?ve detainees were sitting against the wall. She saw Grant pull what she assumed was a cell phone out of his pocket. She recalls Pirone punching someone, but does not recall if it was Grant or G. Pirone was facing the other, and leaned in and threw either a ?st or elbow, and the detainee's head went back. Ms. A-was shocked. She did not hear the detainees make any threats, but did hear him be verbally resistant, saying bm~tality.~Theydidnet threaten the of?cers. After Pirone punched the detainee, Ms. A-Jvorried the crowd on the train would riot. People started to exit all of the cars in the train. Ms. A-irst memory of the detainees outside of the train is seeing them sitting; she does not recall how they got there. Grant was in the middle. The of?cers were standing in front of the detainees. She doesn?t actually remember Grant standing up (she saw it in the video in court), but remembers immediately after that Pirone turn around and grabbed Grant's head and ?shoved [Grant?s] face right into [Pirone's] knee." Pirone kneed Grant with his left leg, as he was standing over Grant. Grant?s head went back and hit the wall behind him. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 26 A couple seconds later, Pirone grabbed Grant and threw him on the ground, and kneeled down on Grant?s neck or shoulder. Mehserle was on the opposite side of Grant. Grant was struggling, not giving up his hands; she thought he had something in his hands (maybe a cell phone). Mehserle and Pirone struggled to get Grant handcuffed. Grant?s hands were out, not on top of his back behind him; he was not handcuffed. She then saw Mehserle aiming his weapon at Grant, who was facedown on the ground, hearing a pop, and seeing smoke coming from Mehserle?s ?rearm. She did not see Mehserle reach for his weapon. Ms. .?rst thought was that Mehserle could have shot Pirone. Mehserle then holstered his weapon and threw his hands up to his face and said ?Oh my God, oh my God.? Pirone then told Mehserle to get out of there. She does not think she saw Mehserle talk to Pirone after the shooting. The train doors then closed and the train left the Station. Ms. A-described Domenici as calmer than the rest, and professional; ?she never got rough or loud throughout the entire event. Pirone, she said, ?was not calm, not once.? She stated that she was surprised that Pirone was not on trial, and that she does not think he should still be a police officer. She felt that, if he had not been there, events would have happened differently, as he "got everyone ?red up.? She described Mehserle as ?the rookie? and said he looked scared the whole time, uncomfortable, and ?not quite sure what to do.? She believes the shooting looked like an accident. 1 . Background M- A. S-ras a witness to the incident. He was interviewed by BART Detective Power on January 6, 2009. He was interviewed on May 18, 2009 by Kimberly Drake of Meyers Nave. His interview transcript is attached'as Exhibit 25. 2. Impression Mr. S-omes off as a pleasant person. He has a pro-police bent. He has a very laid back demeanor, however. He interrupted a lot. His answers to questions were at times meandering and confusing. His powers of observation seemed off at times. i think he may be con?ating what he has watched on the news with his actual observations M-talks about a ?ght on the train between Lake Merritt and Fruitvale but he did not see or hear the ?ght). 3. Incident Mr. S- was reportedly completely sober at all material times. He called his BART car the party train full of drunk people making dumb or stupid comments. Mr. S- was seated in the 3 train car from the front until he off-boarded. On a diagram of the platform, he marked where he was seated and where the shooting occurred in relation to that location. Although he did not witness the shooting, he heard the shot and saw "a man down and mass confusion.? CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 27 4. Fruitvale Station When the train ?rst arrived at the Fruitvale Station, Mr. S-irst saw a female officer (Domenici) and a Hispanic male officer with a buzz cut (Pirone). They had at least two guys in custody, one of whom was Oscar Grant, and they were sittin them down against the wall. Pirone was ivin instructions to some people to the northeast of Mr. Shim a very authoritative voice. Mr. could not remember what Pirone was saying but thinks it was words to the effect "shut up and sit down.? According to Mr. 8- an African American having small or short dreads [whom Mr. lays is the guy who got shot, Grant] ran from custody back inside the BART train 2 car). Mr. aw Pirone get extremely mad and start screaming at [Grant], leaving the female officer to fend off the other people. Pirone followed [Grant] into the #2 car and into the #3 car. Pirone screamed ?get the off the train Pirone grabbed [Grant] and they exited through the doors of the #3 car. Pirone brings [Grant] back to the same spot (where another guy is sitting down and where Grant is eventually shot). Pirone reportedly screamed at [Grant] ?Sit down, sit down.? As Mr. S-lescribes it, Pirone was trying to embarrass [Grant] in front of an audience. Grant would not sit down. Mr. S-tates you could tell [Grant] was ?mouthin' off' to Pirone or said something that enraged Pirone because Pirone then ?dropped him.? Mr. -states Pirone kicked [Grant?s] legs out [from under him] and slammed him to the ground, face down, and put his knee in [Grant's] back. When asked for further description, Mr. S- said Pirone grabbed [Grant] by his left shoulder, used his right leg to kick his feet out and pulled his shoulders down to the ground in one motion. It did not look like it felt good. Then Pirone slammed him really hard to the ground and got on him and placed his right knee on his back. Mr. urther clari?ed that Grant had one hand behind his back for a split second, as if the BART Po ice ad started to cuff him. However, Mr. S-did not see cuffs go on. This encounter reportedly got everyone's attention in the train and everything snowballed and escalated from there. This is the around the same time the female officer looked like a ?deer caught in the headlights." After Pirone brought [Grant] to the ground, he was trying to handcuff him. While Grant was face down. his head was facing toward the concrete wall (away from this witnessWsays Grant had one hand behind his back but could not say which one or for how long. Mr. noticed a heavy-set white police officer join Pirone. It looked like he was trying to help Pirone cuff [Grant]. Mr. 8-stopped paying attentimatthb pointbeqause helliovghteverythingwasunder control. Mr. S-urned his attention to 4 male bystanders who were congregating in front of the bench where an Asian couple was sitting.9 These guys started in to swarm or engage or distract the officers from a safe distance and out of range of the Taser. Mr. thinks these bystanders were trying to free their 9 Mr. -stated that a well-dressed Asian couple, late 30?s/early 40's, was sitting on a bench inside the Fruitvale station, close to the detainees, and remained there, stone-faced. through the shooting. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 28 buddies. They went nuts when Pirone ?dropped? Grant. They started going into their jacket pockets and grabbing what turned out to be cell phones. They knew they had an audience and they were hamming it up. They were elling stuff at the police of?cers and the police of?cers were yellin stuff back at them. Then Mr. Siteard a shot ?red. Mr. S-thought it was a Taser. Mr. shard not see the shooting. But, the of?cers in his vision had expressions like ?Oh, crap,? and ?What the hell?? After the shooting, Mr. -saw one of these bystanders, a black guy or Filipino male with short hair, really tall, approximately 6? tall, throw a cell phone he was using to record in the direction of the police of?cers who were dealing with Oscar Grant. Domenici reportedly had her Taser drawn from the moment the train arrived at the Fruitvale Station and was using it for crowd control. Mr. -aw her point her Taser at the detainees against the wall. He also saw Pirone point his Taser at the detainees. Mr. S-describes Domenici as nervous and Pirone as "a ball of anger.? Mr. lescnbes an African American guy in custody with long hair and a ponytail Mr. aw Mr. on BART earlier in the evening. Mr. was traveling with a bunch of pe0ple in Mr. car 3) and the car south of him 2). Mr. appeared to be linked with at least two people. First, there was a light-skinned black guy, thin, approximately 6? tall, with interesting short, curly hair who was making ?smart comments" about someone stinking on the train car 2. He said words to the effect of: ?Oh, man, the motherfucker i ks in and said it loud enou to where whoever he was talking about heard him. Mr. S?calls this guy an ?asshole." Mr. Mates this guy got away and left the BART Station before the shooting. The second guy linked w: a shorter guy, medium build, about 5?6? or may be Filipino or Hispanic, with long black hair in a ponytail. After Mr. I was taken into custody, Mr. aw Mr. combing his hair and sitting down on the platform with his back to the wall. Mr. alls Mr. the barometer - his facial expressions went from playing it cool to looking nervous an or earful. After the shot was ?red, this guy looked like he was having or had ?a bowel movement.? As the train pulled out of the Fruitvale Station, Mr. S-laims he saw a police of?cer come up on an escalator and tackle one of the 4 bystanders from behind. 0- 1. Background -S-was a witness to the incident. Mr. (.esti?ed that Mr. -was with their group that night and may have videota ed the incident. However, N-Istated that D-was with them that night and not 8 Both men are described as being the same age and took videotape of the incident. BART Detectives nriquez and Fueng went to Mr. S-known residence on January 28, 2009 and they also called him. He was not at home and they left a business card. He never called ives Enriquez or Fueng. Samantha Zutler of Meyers Nave called the telephone number listed for Mr. and spoke with a woman who identi?ed herself as ?mother. Mrs. G- stated that CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 29 her son was injured and that Mr. Slivas not on the incident train but -D-was. She thought Mr. l-had video but would not give us his information. We were unable to locate him. P- 1 . Background "as a witness to the incident. He was traveling on New Year's Eve with his wife, C- L- He was interviewed by BART Detective Carter on January 3 and 10, 2009. He was also interviewed on January 12, 2009 by Alameda County District Attorney?s office Inspector Frank Moschetti. He was interviewed by Camille Hamilton Pating of Meyers Nave on June 23, 2009. His interview transcript is attached as Exhibit 26. 2. Impression Mr. T-is a 31-year old project manager for a San Francisco advertising ?rm, Mr. T- presented to this interviewer as an intelligent, articulate witness. His demeanor was straightforward, cooperative and did not appear to be biased toward any party. Mr. .omes across as interested in an accurate recounting of the incident - he came fomard as a witness after watching early media reports suggesting that the shooting was racially motivated, which he believed was untrue. Mr. T-had an excellent visual perspective - he was standing in the second car doorway of the BART train, about 10-15 feet away from the detainees and of?cers. He has a detailed recollection of the incident. Mr. T- observed the following sequence of events, described below: . Confrontation on the platform between groups of Latino and African American youths; . Detainment of members of the African American group, including three men - Oscar Grant among them - who entered Mr. car; . Of?cer Pirone's "harsh and unprofessional" behavior on the platform, including searching for detainees on the train and removing a detainee from the second car; Detainee J. -insulting and resistant behavior toward officers while against the wall; . Officer Pirone saying, ?That motherfucker's going to jail," indicating Grant, then kneeing Grant in the stomach: and "Shocked? reaction of Of?cer Mehserle after the shooting. Mr: T-agreed needed for-this investigation. Mr. T-resides in Castro Valley. He is married to C-L-also a witness to the incident whose statement has been taken separately. He has previously given two statements to BART Police, the District Attorney of Alameda County, and a local news station. Mr. lame forward as a witness after watching a media report which portrayed the shooting as racially motivated, which he felt was inaccurate (TR. p. 2). CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 30 3. Incident On December 31, 2008, at approximately 7:30 pm, Mr. T-and his wife traveled via BART from Castro Valley to a friend?s home near Pac Bell Park in San Francisco. They spent the evening playing video games and watching ?reworks on the Embarcadero. He had "a few drinks? at his friend?s home over a four hour period but did not feel his perceptions were affected. At approximately 1:45 am. the evening ended and he, his wife and two friends walked back to the Embarcadero Station to catch the Dublin?Pleasanton train to return home. Mr. -tated they boarded the train onto the second train car? initially he said he was on the third or fourth car but corrected himself after looking at the schematic. Mr. T-identi?ed his exact location by marking the schematic and photograph of the inside of a BART car, which are attached as Exhibits (TR. pp. 3-7). The train was crowded, and Mr. T-group of four was standing in the doorway. The ride from San Francisco was uneventful, and he did not notice any arguments among passengers, until they arrived at Fruitvale Station (TR. pp. 8-9). 4. Fruitvale Station The train stopped when it arrived at Fruitvale Station. Mr. T-observed ?something going on," in the car in front of him, and a group of people left that car and went out onto the platform. On the platform, there was ?a continued verbal argument? and two groups, one Latino and the other African American, were confronting each other. Mr. T-estimated eight to 12 people combined in the two groups. The Latino group had one or two women in it. One member wore ?a very large white or light t-shirt." There was no physical confrontation, but ?people standing up to each other.? The groups were facing one another and yelling. The face-off lasted ?several minutes? on the platform, until the BART Police showed up (TR. pp. 10, 11, 12). When an of?cer Mr. gdescnbed as having a "shaved head and kind of a crew cut on top? appeared, the Latino group disperse ahead of the African American group. The African American roup then started to walk down the platform as well, and three members of the group ducked in to Mr. train car. ?People were diving into cars to avoid the whole thing." These included Oscar Grant, 3 man with a red baseball cap who was taller than the other two and a third man. One of the three, who Mr. T-believes was the ?red baseball cap guy ?went through an internal door into the third caf' (TR. p. 12). The ?crew cut? of?cer detained three African Americans against the wall directly across from Mr. T- He pulled them over as they were walking north down the platform where the face-off had happened. Then a female of?cer came, and at least one other officer, to watch the three detainees on the wall (TR. pp. 12, 13). The "crew cut" of?cer then went to the train cars to pull off the men who had entered the train. The officer went to the third car and ?pulled that him off.? Mr. T?aid the of?cer?s tone was ?harsh or unprofessional." ?He was saying things like, fuckin' see you' I, you know, see you in the fucking train?, to that effect." The crew cut of?cer was ?very confrontational" from when he got up on the platform (TR. pp. 13, 15, 16). Mr. T-believes the person taken off of the third car was the ?red cap guy" (TR. pp. 28, 29). CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 31 Mr. T-said that the ?crew cut? of?cer then removed Oscar Grant from the second train car a roaching him from behind, ?He grabbed him and pulled him out," and walked out past Mr. Mr. TEdid not, at that point, believe the of?cer used physical force that was inappropriate to take Oscar Grant off the train. The of?cer took Grant to the concrete wall with the other eople being detained. The of?cer did not come back to take off the third person who was still in Mr. Ticar (TR. p. 14). One detainee was ?very compliant? and wasn?t saying anything to the of?cers, but the other two were more verbal (TR. p. 18). The woman of?cer was telling them ?you need there.? Mr. T-could not hear actual words (TR. pp. 18, 19). But two of the detainees were "much more confrontational.? He heard the detainees say ?something about not a real cop? and felt there were "?pig? comments, things like that, just random, you know, heckling lguess? (TR. p. 20). Two of the people on the wall were ?talking back? to the woman of?cer and the crew cut of?cer. He concluded this by how the detainees moved physically, with their upper bodies and heads going forward, and arms gesturing, they were getting in the of?cers? faces. Mr. law one detainee, who he described as ?the more heavy set probably had the biggest stature of the guys on the doing a lot of talking? (TR. p. 21). This detainee wore a white T- shirt (TR. p. 29). Mr. ?aw Oscar Grant ?having some sort of verbal dialogue with the of?cers? but did not see any belligerent behavior from Grant toward the of?cers. At this int Mr. T-did not have a clear view of Grant because he was blocked by an of?cer?s body. Mr. did not see any detainee use any physical force, or attempt to use physical force, against the of?cers (TR. p. 22). Throughout the incident, Mr. T-observed that Grant was always in the south facing position along the wall. He did not see Oscar Grant change his position or move from a southerly position to a northerly position (TR. p. 27). He believes he saw one of the detainees using a cell phone, but couldn?t say who it was (TR. p. 28). Mr. Ibserved one of the detainees sitting down "on his butt on the left side? (TR. p. 14). . The ?crew cut" of?cer walked up or towards the front of the train, and after looking through the windows, started to come back to the detainees at the wall. Mr. T-heard the of?cer say, ?that motherfucker's going to jailn then the of?cer ?hustled? or ?hurried" up to Oscar Grant and kneed him (TR. pp. 13, 15, 16). When Mr. law the of?cer knee Grant, and ?there was, from my perspective, no provocation for him? to do so. The of?cer lifted his left leg and struck Grant in the abdominal area. Grant was still standing but ?kind of knelt over" (TR. p. 24). After that, the of?cers started to put Oscar Grant onto the ?oor of the BART platform, stomach down, face forward. Grant was questioning why he was being handcuffed. "He didn't simply lay down on the ?oor and put his hands behind his back. At the same time, the officers didn?t instruct him to? (TR. p. 25). Mr. T- believed Oscar was the ?rst of the detainees to be handcuffed. After the crew cut of?cer "kneed? Grant, a commotion broke out on the train, as people objected to the of?cer's treatment of Grant. People were screaming, ?What the hell are you doing? and trying to take photographs. At this point a ?ght almost broke out in Mr. train car between a woman who was trying to ?lm the incident and another woman who was in her way (TR. p. 16). At the same time, the third person from Grant?s group who had ducked into their train car but not been detained suddenly left the car. He said, ?Get the hell out of the way? to Mr. T-and another man blocking the door (TR. p. 29). Mr. T-Nas concerned about what this person might do when he left the train and continued to watch him CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 32 (TR. p. 18). Later, that person was among the many in the crowd who was shouting at the of?cers, "Hey, what the hell are you doing? while ?lming the incident (TR. p. 29). In this tense atmosphere, Mr. _was concerned for their safety and concentrated on shielding his wife (TR. pp. 18, 29). Mr. _was not looking when the shooting happened. He was distracted by the escalating commotion in his train car and positioning himself to protect his wife. He heard the gunshot, looked up and saw the "crew cut? officer's back facing him. Mr. T-hought this of?cer ?red the shot (TR. p. 25). He observed ?shock" on the face of Johannes Mehserle and ?confusion? on the face of the woman of?cer (TR. pp. 25, 26). The reaction inside his train car was eventually crying? (TR. p. 26). Very quickly after the shooting, the doors closed and the train continued on. The third member of Grant's group who had entered Mr. T-train car, exited and returned with a video camera, did not get back into the car before the train left the Station (TR. 30). M-I- 1 . Background Q. as a witness to the incident. He was interviewed by BART Detective Power on January 9, 2009. Jesse Lad of Meyers Nave attempted to contact him using all the phone numbers that he rovided to BART on January 9, 2009. All of the phone numbers provided have been disconnec has changed jobs since the BART interview. Meyers Nave was unable to interview Mr. R. I- . 1. Background K-V-was a witness to the incident and videotaped the incident. BART Detectives Power and Smith interviewed her on January 11, 2009. This interview was videotaped. She (or perhaps Attorney John Burris) provided her video to a news channel. She gave her chip to Mr. Burns to make a copy and return to her. She told Detectives Smith and Power that she would provide them with a copy of the video. She testified at the Preliminary Hearing in the criminal case against Johannes Mehserle. Jesse Lad of Meyers Nave set up an interview with her. He arrived at the interview location at the agreed time and she did not appear for the interview. He noted that she seemed hesitant to be interviewed in all of their phone conversations. He left her a subsequent telephone message, but she did not return his call. Meyers Nave was unable to interview Ms. s. BIA- 1. Background "as a witness to the incident and me have videotaped the incident. BART Detective Carter 8 a ed in a report (BART IA 0630) that I nitially contacted her and told her that he had videotape of the incident. Detective Carter called him four times and asked him to provide the videotape. He did not CONFIDENTIAL COMMUNICATION Date: July 31. 2009 Page: 33 provide the videotape. Jesse Lad of Meyers Nave made ?ve telephone calls to Mr. W?nd left two messages for him. He did not return Mr. Lad's calls. Meyers Nave was unable to interview Mr. Vt- T- 1 . Background as a witness to the incident. She was interviewed by BART Detective Carter on January 3, 2009 by telephone. Jesse Lad of Meyers Nave interviewed heron June 8, 2009. ?was interviewed in Meyers Nave?s Oakland of?ce at approximately 2:55 pm. on June 8, 2009. Her interview transcript is attached as Exhibit 27. 2. Impression Ms. Z-appeared to be credible and candid during the interview, and her statements were fairly consistent with the statements her husband provided a few days earlier at their home in Castro Valley. Ms. -did not witness the Oscar Grant shooting on New Year?s Eve, and unlike her husband did not recognize Oscar Grant when shown a picture of Mr. Grant and various other individuals that may have been involved in what transpired at the Fruitvale Station on New Year?s Eve. Ms. Z-lso did not observe anything that took place on the BART platform at the Fruitvale Station. Rather, Ms. recollections from that evening primarly related to an altercation that took place on the BART train before the train arrived at the Fruitvale Station, as well as some general observations she made about BART operations that evening. 3. Incident Ms. Z-indicated that she wenl ii if Francisco to watch the ?reworks on New Year?s Eve with her husband, son and daughter. The a i ode BART to and from the Castro Valley BART Station to watch the ?reworks that evening. Ms. recalled takin either the 10:50 or 11:10 train and believes they arrived in San Francisco around 11:40. Ms. iindicated that she and her husband were not under the in?uence of any alcohol or mind-altering substances that evening. Ms. Z-ecalls that an African American male was rolling marijuana, counting pills and drinking vodka on their BART ride into the Cit . Ms. Z-believes that he boarded the train at the Coliseum or San Leandro Station. Ms. i was concerned about this behavior, so she reported it to a BART officer at the Embarcadero Station who she thinks was wearing a SWAT uniform. After watching ?reworks in the Ci Ms. Z-and her family boarded a BART train at the Embarcadero Station to return home. Ms. indicated that it took approximately an hour to get into the Embarcadero Station, and when they arrived in the Station she descirbed it as being very crowded, so much so that she was surprised that "someone didn?t fall on the tracks.? Eventually she and her family boarded a Pittsburg train and then transferred to a Castro Valley train at the West Oakland BART Station. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 34 Ms. -and her family boarded th ont car of the train that was headed to Castro Valley through the second doors from the front. Ms. initially stood in the middle of the car, which she described as being "like sardines." At the Lake Merritt Station about half the train emptied out, and Ms. -said she was able to sit down in the back of the train because a woman got up and allowed her to sit with her daughter. Once the train was in motion from Lake Merrit en route to the Fruitvale Station, Ms. Z- began to observe ?ghting on the train. ?What caught [her] was this one guy had one guy in a headlock and he?s just hammerin? at him . . After Ms. Z-observed this portion of the altercation, her husband called the train operator and told the operator that there was a big fight on the train. Ms. Z-then heard the train operator ask what train they were on, so she pushed the call button and said that they were on 381. After she informed the train operator what train they were on, the Z-tamily moved to the second car. Ms. -could not clearly see the black male that was in a headlock in the above-referenced altercation, but described the white male who had him in a headlock as follows: I couldn't see the?l couldn?t see the guy that was in the headlock, but the gentleman that was . . . And the reason I seen him so clearly and he stood out, because, number one, everybody was dressed in dark clothines that was up there. Number two, they were either African American of Hispanic. But the gentleman was . . . He was as fair as you are. He was short. He was stocky. He had not shaved, shaved, shiny head, but a, a real tight shaved head?you know, just a little bit of growth. And the reason that he stood out was because he had on?I have never seen?he must?ve had a white T-shirt on. He had a light denim pair of jeans and l, he probably had white tennis shoes on . . . Ms. Z-also indicated that he appeared to be 38-40 years old, or perhaps younger. She also described him as ?kinda rough around the edges,? and indicated that he was between 5?6? and While Ms. -did not see the face of the black male who was in a headlock, she did indicate that he was wearing dark clothing and had a black jacket on that reminded her of a derby jacket. Ms. llso described seeing a Mexican guy throwing punches into the crowd and mouthing off. She described him as between 5'10 and 6'0? tall. When I later showed her photographs of various individuals who were tentially involved in the incidents that evening, she indicated that she was 75% sure that J- ?was this Mexican male. 4. Fruitvale Station Ms. Z-estimated that there were approximately 8 people involved in the altercation. Eventually the train pulled into the Fruitvale Station and the doors opened. She said that at that time she saw three ?kids" in their 20?s get off the train from the ?rst car, but did not know whether they Were involved in the altercation. She recalled that one of these three males had "dreads.? CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 35 Ms. Z-could not see what was going on outside on the platform and does not remember seeing any Police Of?cers at the Fruitvale Station. She did say that she could hear commotion and loud noises, as well as ieople screaming ?Stop." She also observed people hanging outside of the door. When Ms. heard the gun shot, her husband called the BART driver and told her to shut the doors. Ms. was very concerned for her safety. Ms. 2- also indicated that while she was surprised that the BART train was not detained to question the passengers after the shooting, she was happy because she wanted to get her kids off the train ?so bad." u- 1 . Background ?as a witness to the incident. He was interviewed by BART Detective Carter on January 3, 2009 by telephone. He gave testimony at the Preliminary Hearing in the criminal case against Johannes Mehserle. Jesse Lad of Meyers Nave interviewed him On June 6, 2009. His interview transcript is attached as Exhibit 28. 2. lmpression D-Z-was interviewed at his home in Castro Valle on June 6, 2009. While Mr. .was generally credible, at times during the interview Mr. deemed to attribute some level of reliability to information that was brou ht to his attention through individuals af?liated with attorney Michael Rains. Nonetheless, Mr. idistingushed those limited circumstances and seemed to provide information from the standpoint of his own recollections. Accordingly, it is not our impression that Mr. -has materially altered his recollection of the events that transpired on New Year?s Eve based on any information that might have come to his attention through his communications with anyone associated with attorney Michael Rains. Mr. -did not witness the Oscar Grant shooting on New Year?s Eve, nor did he observe an of the actions of any BART Police of?cers on the platform of the Fruitvale Station. However, Mr. did indicate that he witnessed an altercation that took place on the BART train prior to the shooting. In addition, Mr. -aid that he alerted the BART driver about this altercation. Mr. Z- also brought forward numerous personal observations that he made about BART operations on New Year?s Eve. 3. Incident Mr. Z-indicated that he went to San Francisco to watch the ?reworks on New Years Eve with his wife, eleven-year-old son and six-year-old daughter. The _family rode BART to and from the Castro Valley BART Station to watch the fireworks that evening. Mr. Z-guessed that he and his family boarded a BART train on their way to watch ?rewoorks in San Francisco sometime between 10:45 and 11:00 pm. Mr. -indicated that he and his wife were not under the in?uence of any alcohol or other substances that evening. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 36 After watching ?reworks near me foot of the Embarcadero, Mr. Z-and his family boarded a BART train at the Embarcadero Station. The original train they boarded was not headed towards Castro Valley and was possibly headed towards Pittsburg/Bay Point so the 2- family transferred to a different train somewhere in the East Bay on their way back to Castro Valley from watching the ?reworks. Mr. -and his family boarded the front car of the train that Was headed back to Castro Valley through the rear doors of the car. Mr. 2-described the train as being very crowded and ?standing room only.? According to Mr. 2- he bacame aware of an altercation because he observed shouting, a lot of pushing and shoving, and punches being thrown. At that point Mr. -and his family relocated to the back of the ?rst car, and he believed that his wife and children were seated near or in the rear seats of the ?rst train. Mr. -stood in the aisle way near the back of the car to create'a barrier between his family and the altercation. Mr. -did not see the start of the altercation. but he informed me that he did see the altercation as it progressed. Mr. Z-indicated that quite a few le were involved in the altercation, and estimated that it involved 10 people, "plus or minus." Mr. ?bserved part of the altercation from the back of the front BART car, and part of the altercation from the front of the second BART car as he and his family moved yet again. In fact, Mr. - indicated that he viewed most of the altercation from the very front of the second car. Mr. _indicated that there seemed to be two groups of indiduals involved in the altercation. He described a larger group of all black males, but was unable to clearly distingush between them: ?they all looked similar, uh, they, similar clothing, uh, you know, the big baggy jeans, the big shirts, the big jackets. Everything was they looked similar; I, couldn't pick one particular.? Mr. _also described a smaller group of hispanic individuals being involved in the altercation, as well as one white male who seemed to be affiliated with the hispanic group. While Mr. -informed me that he could not really distinguish between the black males involved in the altercation, he was able to describe the white male that was involved in the altercation: ?He was shorter than me. I?m about 5'10? so he was shorter than me, had a very short, if not shaved head, with some minor growth. Um, Stocky build, was wearing a white T-shirt, very large, uh, had some tattoos on his forearms. I believe they were even green ink - uncolored, just green ink." He also estimated that the white male was around 30 years old. According to Mr. - he observed this white male tied up wrestling with and punching a black male. Mr. Z-further described this particular altercation as follows: ?[T]hey were upright; they weren?t wrestling on the floor. They were shoulder to should[er], hunched over, gripping each other, trying to sneak in whatever punches. They were pushing each other against the poles, the seats, the doors."10 10 Mr. _informed me that through his interaction with Mr. Rains? of?ce he has come to learn that the white male?s name is CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 37 Mr. -desribed the black male involved in the altercation with this white male as being dressed similarly to the others in his group, with big baggy pants. Mr. -also believes he had a jacket on, but could not describe the jacket in any specific detail. Later in the interview Mr. _indicated that he came to learn through someone from Michael Rains' of?ce that this black male involved in the altercation with the white male was Oscar Grant, but he does not have an independent recollection of the individual being Oscar Grant. Furthermore, Mr. Z-indicated that while he vaguely remembers seeing Oscar Grant on the train sometime that evening, he could not place Mr. Grant as the individual in the ?ght with the white male. Mr. Z-also informed me that he did not have any independent recollections of Mr. Grant other than getting a glimpse of him on the train. Mr. Z-indicated that he was reasonably con?dent that CIR-Junior was involved in the altercation. ked to place a percentage on how con?dent he was, he replied "75% maybe.? He picked Mr. out of a photo lineup provided to him, which he marked and which is attached as an Exhibit. Mr. also marked an individual picture provided to him of Mr. I. as 8-2, attached as an Exhibit. According throwing punches on the train, and recalled him being in rained in the altercation, at one point stepping in for another Hispanic male "kinda tag-team style.? Mr. Zhescibed Mr. .8 having big baggy dark jeans and a ?louder? colored jacket. He remembered 3 His anic male on the train wearing a red jacket with gold trim or writing on it, and was pretty sure it was Mr. Rhthat was wearing that jacket. According to the altercation continued right up until the train doors opened at the Fruitvale Station. Mr. uld not accurately estimate how long the altercation took place, but his best guess was several minutes. Mr. .indicated that he felt extremely unsafe during the altercation. Overall, Mr. -described the altercation as being ?kinda like a barroom ?ght, but obviously not in a barroom. Starts off fairly small, got to this level where multiple people were involved, and then it seemed to where they had kinda backed off and let who I guess the focus, the originators maybe, I don?t know of the ?ght finish it out. And I didn?t see anybody of either of these groups attempting to break it up.? 4. Fruitvale Station Mr. Z-stated that when the train stopped at the Fruitvale Station, most of the black males that he believed were involved in the ?ght exited the train. Mr. -soon heard a lot of shouting and described the scene as chaotic, but could not see an hin from where he was positioned in the front of the second car near the pass-through doors. Mr. did not hear an thin that members of the public were yelling, but he formed the opinion that it was anti-police. Mr. stimated that he heard a gun shot a couple of minutes after he arrived at the Fruitvale BART Station. r. initially did not think he heard a gun shot, but rather thought that it might have been a Taser. Mr. .indicated that he called the BART driver to report the ?ght on the front train after the ?ght escalated to a pretty good level. Mr. -inforrned me that he ?rst called her from the back of the first BART car, and told her that there was a ?y large ?ght on the car. The BART driver supposedly asked him which car he was on, and Mr. ?seemed to recall his wife providing the car number to the BART driver, which he believes was 381. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 38 Mr. Z-indicated that the BART driver then called back after some time passed and inquired whether the ?ght was still going on. Mr. -indicated that it was still going on. After some more time assed the BART driver came back on the intercom and as hether he saw any weapons, and Mr. indicated the he did not see any wea ons. Mr. also indicated that at some point he had asked the driver to close the train doors. Mr. Zhelieved that all of his interactions with the BART train operator were handled appropriately. Mr. llso described a number of observations he made about BART Police generally that evening. Mr. remembers seeing BART SWAT of?cers wearing Tasers on their bellies. He could not remember the identity of the Station where he made this observation, but indicated he has friend at Alameda County SWAT and believes that is not recommended for an of?cer to wear a Taser on the belly. He also believed that too many BART of?cers were paying attention to whether people were paying their fares that evening versus being focused on crowd Control. Mr. Z-Iso indicated that he thought it was a mistake to keep the train moving after the shooting, versus stopping the camer Station to take wintess statements. He considered that decision to be a ?major mess up." Mr. Iso indicated that not all of the people involved in the ?ght that evening had left the train when it started moving again after the shootin and indicated that a number of those individual got off at the Bay Fair Station. On the whole Mr. deemed extremely dissatis?ed with his experiences on BART that evening. X. INTERVIEWS WITH DETAINEES A. 1 . Background .- was one of the people detained during the incident. He was interviewed on January 1, 2009 by BART Detectives Smith and Carter. He was also interviewed on January 12, 2009 by the Alameda County District Attomey?s Office. He was interviewed by Kevin Gilbert of Meyers Nave on July 16, 2009. Also present at the interview was his attorney, John Burris. His interview transcript is attached as Exhibit 29. Mr. A-indicated that he was with a group of friends on New Year?s Eve who traveled to San Francisco to view the ?reworks. During their travels, he admits to having consumed at least a glass of Hennessy, although he doubts that he was intoxicated or whether his judgment his impaired in any way (IA pg 4). Following the groups' visit to San Francisco, they boarded a return train at an unknown time, possibl around 12:30 am. on New Year's morning and began theirjourney back to the East Bay. Mr. suggested that they boarded the BART train somewhere towards the front of the train, possibly two or three cars back from the lead train but does not recall speci?cally (IA pg 5). All he was able to recall is that the train was very full and that Mr. A-and his group were all standing in the vicinity of the train doors. . The trip between San Francisco and West Oakland Station was uneventful. However, Mr. indicated that when the group arrived at West Oakland, at least he and one other individual in the roup off boarded the train and stood on the platform brie?y before re-boarding that same train. Mr. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 39 indicated that they believed they needed to transfer trains as they were not sure that the train that they were on was travelling through Hayward where they were planning on travelling to (IA pg 10). 2. Prior Incident After re-boarding the train, Mr. .indicated that Oscar Grant and an unidenti?ed male were involved in a "tussle," with the two yelling at each other and possibly a few punches being thrown (IA pg 10). Mr. was unable to indicate that the other individual confronting Mr. Grant was either a white or Hispanic male, approximatel 6?5? IA pg 9). He does not recall any other characteristics including hair or the like. According to Mr. ?he scuffle lasted only a few moments and was quickly ended without incident. He did not recall hearing any announcements on the BART speakers nor did he recall anybody calling for assistance from a train operator or anyone else. 3. Fruitvale Station Once the train reached the Fruitvale Station, Mr. -?-boarded and was waiting for the remainder of his group. Apparently one of the members of their group (M- lives within the close proximity to the Fruitvale Station. The group had not decided whether they were goung to travel to M- house or whether they were going to continue on to Hayward. Mr. _indicated that the train was stopped for a prolonged period of time. While it was stopped, he indicated that he waited outside the train with at least one other individual while the majority of their group remained on the train (IA pg 13). Ultimately Mr. proceeded to walk over to a bench against the concrete wall where he sat down while waiting his group. Once he sat on the bench he was able to observe approximately four to ?ve officers running up the stairs to the BART train that he had just exited (IA pg 19). Mr. A-positively identi?ed Of?cer Tony Pirone as one of the of?cers involved with Officer Pirone allegedly reaching in and grabbing Oscar Grant off of the train. Although Mr. l-does not recall seeing Officer Pirone touching Oscar Grant, he observed what he believed to be the after effects of Oscar Grant being thrown up against the concrete wall. At this same time Mr. umped from ch and attempted to approach the of?cers who were then confronting his frien s. owever, Mr. was confronted by a female of?cer (later identi?ed as Of?cer Domenici) who was standing with her ac to Of?cer Pirone and the others but facing Mr. Officer Domenici had her Taser drawn and was pointing it at Grant and others in the area while telling Mr. A- to "get back or I?ll Tase you? (IA pg 21-22). During this same time period, Grant had extended his arms in front of the other detainees and was advising them to ?calm down? (IA pg 19-21). Mr. A-indicated that he would walk/run up towards Domenici and then back off as she would wave her Taser in his direction and that he continued to do this until being tackled from behind (IA pg 22). Mr. A-positively identi?ed Officer Knudtson as the officer who tackled and handcuffed him. During his arrest, the officer proceeded to place a knee on _head and told him to ?Shut the fuck up? (IA pg 40- 41). He also testi?ed that at no time did he ever take an aggressive stance or position towards the female of?cer (Domenici) (IA pg 30). While Mr. being handcuffed, he indicated that he had his head turned away from Oscar Grant and Pirone. However he heard a loud ?pop" and immediately turned back to observed Oscar Grant lying on the ground face down with at least one of?cer standing above him. At this CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 40 point, Mr. A-heard numerous people yelling about Grant being shot, with the of?cers immediately telling people to get back (lA pg 38-39). Also signi?cant is Mr. A-testimony regarding his cell phone. He indicated that at no time did he ever throw his cell phone at any of?cer. Instead he indicated that he was holding a silver Motorola Razor cell phone which ?ew out of his hand when he was tackled from behind by Of?cer Knudtson. He further indicated that that cell phone was retrieved by one of the of?cers and returned to Mr. pocket in the front of his jeans following his being cuffed and that he continues to have that cell phone, which was provided to us following the interview for inspection (IA pg 31-32). Mr. also indicated that his cell phone continued to be functional; including him using it to make a phone call to "following Mr. A- being released from the BART Police custody on New Year?s morning (IA pg 67). (The phone records should be obtained in any follow up investigation to con?rm this.) 4. Post Incident Following the shooting, Mr. _was lifted by the handcuffs by Of?cer Knudtson and carried over to the concrete wall on the platform at the Fruitvale BART Station (lA pg 43). He remained at that location until being taken downstairs and placed on a bench immediately adjacent to the Station agent's booth at the Fruitvale Station (lA pg 47). Mr. A-emained on the bench downstairs for what he estimated to be approximately twenty minutes during which time he observed the paramedics remove Oscar Grant on a gumey. Shortly thereafter, Mr. _was placed in the rear of a BART patrol car where he remained for approximately ?fteen minutes while still in handcuffs. At that point an unidenti?ed of?cer drove Mr. to the BART Police Station believed to be at Lake Merritt (lA pg 49-50). On arriving at the police station Mr. A-was advised by the BART of?cer that there were nocells available as everything was ?lled up already. At that point, the of?cer exited the vehicle and left Mr. A in the police car unattended, with the police car parked on the cit street in front of the BART Police Station for approximately thirty to forty-?ve minutes (lA pg 50-51). Mr. hwas ultimately taken downstairs and placed in a hallway where he was watched over by an officer whom he was unable to identify where he remained for an estimated four to ?ve hours (IA pg 55-56). Mr. A-indicated that he had attempted to ask fora drink of water and to go to the bathroom on numerous occasions, but Was denied those requests for the majority of the time (lA pg 58). An Asian officer dressed in a suit (possibly an investigator in his opinion) removed the handcuffs and allowed him to use the bathroom. Shortly thereafter, Mr. _was taken into another room for interview where he was advised that he was not under arrest and was free to leave (IA pg 59, 62-63). According to Mr. he was extremely tired and dizzy and continued to tell the of?cers that he blacked out because he was scared and did not want to speak with the of?cers (IA pg 60, 63). He further admitted to having remembered a signi?cant amount of information from the incident on the BART platform but being desirous of not talking to the police of?cer based upon his friend having just been shot as well his having satin a police car for an extended period of time, followed by sitting on the hallway ?oor in handcuffs for over four hours (lA pg 63?64). CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 41 Following completion of the interview Mr. A-was released where upon he walked outside and proceeded to call ?n cell phone to ?nd out where his friends were and possibly join them at the hospital where Oscar Grant was being treated. According to Mr. A- the cell hone number of his cell phone on the night of the incident was either? and was a Motorola Razor on a T-Mobile account. He believes that name on the account was F-A- I his father (IA pg 68-69). 1 . Background was one of the people detained during the incident. He was interviewed on January 1, 2009 by BART Detectives Smith and Carter. He was interviewed by Kevin Gilbert of Meyers Nave on July 17, 2009. Also present at the interview was his attorney, John Burris. His interview transcript is attached as Exhibit 30. Mr. Iii/as with the group of individuals accompanying Oscar Grant who travelled to San Francisco to watch the ?reworks before returning to the East Bay. On the night in question, Mr. -admits to having consumed approximately a pint of Hennessey between himself and his friends. He had approximately two glasses worth (IA pg 4-5). Following returning from San Francisco, he believes that they boarded the train car towards the front of the train, possibly within the ?rst three but is doubtful that it was the ?rst train (IA pg 5-6). 2. Prior Incident While riding the train back to the East Bay, a confrontation arose somewhere in the Lake Merritt area between Oscar Grant and an unidenti?ed Hispanic individual with the confrontation lasting approximately two minutes (IA pg 7-9). The incident involving Oscar Grant and unidenti?ed Hispanic gentleman was uneventful and appeared to be fully resolved before the train car arrived at the Fruitvale Station. 3. Fruitvale Station Once the train arrived at Fruitvale, the group of individuals departed from the train in possibly two separate groups. While Mr. -and his group were walkin off of the train car they observed a couple of BART of?cers coming towards them. At this point Mr. Gi and Oscar Grant hopped back on the train to avoid dealing with the of?cers (IA pg 14). A male of?cer whom Mr. B-identi?ed as Of?cer Pirone approached the group and while pointing his Taser at them advised them to, ?go sit down, go sit the fuck down" (IA pg 14). At this point Pirone was accompanied by a female officer identi?ed as Domenici. Once the group walked over and sat down by the wall, Of?cer Domenici proceeded to watch them while holding her Taser in her hand and pointing it at them. While Domenici was watching over the group, Pirone proceeded back on to the train to retrieve Oscar Grant and pg 15-16). First, Pirone retrieved Grant and was holding him by the t-shirt and kind of dragging him along until walking Grant up to the wall and slamming Grant backwards into the concrete barrier (IA pg 16, IA pg 22). While Pirone was attempting to retrieve Grant he was heard yelling, ?If there is somebody else on this train, get the fuck off. Get the fuck off? (IA pg 21). At the time that Mr. B-observed these comments he was sitting on the CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 42 platform against the concrete wall directly opposite the Open door where Pirone was retrieving Grant (IA pg 20). After retrieving Grant, Officer Pirone then proceeded back onto the train car to retrieve When Pirone exited the car with G-he had one hand on G-back with another on his nec and proceeded to walk G-)ff the train car before attempting to trip him and throw him onto the ground (IA pg 16, lApg 30-31). Upon seeing G-hrown to the ground, Mr. B- and the other individuals he was sitting with stood up and began yelling at Pirone. They were yelling something to the effect of, ?what the fuck y'all doing him like that for? (lA pg 16). In response the female of?cer started cussing at Mr. Ind his group saying, ?sit the fuck down? and ?punk, sit the fuck down? (lA pg 28). At approximately the same time Oscar Grant was saying to the other gentlemen to, ?just be cool? and ?be quiet we're going to go home tonight" (IA pg 27-28). In response to Grant?s comments Pirone roached Grant and, ?slammed him back down again? (IA pg 28). During the same discussion, Mr. ?dmitted to calling the female of?cer a bitch to which she responded she was going to tase him and that ?I?ll fucking shoot you right now" (IA pg 28-29). Following Pirone?s completion of handcuf?ng Ia came over and engaged Grant a second time (IA pg 33). Mr. I did not recall any speci?cs other than possibly Pirone striking Grant with his elbow. After this exchange Grant removed his cell phone from his pocket and called his ?anc?. At the time of making this call the of?cers were approximately ?ve feet away and did not say anything or advise Grant to stop using his cell phone (lA pg 37-39). Immediately after the phone call Pirone again engaged Grant and punched him with his elbow (IA pg 39-40; IA pg 48). In response Mr. I began yelling at the female of?cer again, including he and Domenici calling each other, ?a bitch,? which resulted in Mr. ?being brought to his knees and handcuffed (IA pg 40). While Mr. .Nas getting handcuffed, Oscar Grant was being engaged by Pirone including being put down to the ground on his back at ?rst. During the time that Grant was being put to the ground by Pirone, Pirone was telling him that he was going to tase him. In response Grant was saying, ?no don?t do that, don't do that" (IA pg 41). About the same time Of?cer Mehserle approached Grant and began assisting Pirone in attempting to handcuff Grant. During this exchange Grant was continually yelling that he could not breath and to get them off of him (IA pg 41_ Following wrestling Grant to the ground, Pirone was on Grant?s neck while Mehserle was on the lower body (IA pg 52). At this time the two of?cers were proceedin to wrestle'with Grant and appeared to be trying to retrieve his hands and place them in handcuffs. Mr. believed he saw Mehserle grabbed Grant?s left arm bring it back to Grant?s waist where a handcuff was put on that arm (IA pg 54). During this time he believed that Officer Pirone remained over Grant?s head and was continually looking down on Grant?s back (IA pg 55). To the best of Mr. B-recollection he never observed Mehserle reach for Oscar?s right arm (IA pg 56). He describes Pirone as attempting to restrain Grant?s head while Mehserle squats over Grant's lower body. During the efforts to cuff Grant, Mehserle stood up, drew his weapon and ?red a single shot into Oscar Grant?s back (IA pg 42). CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 43 4. Post Incident Following the shot Mr. was yelling, ?call the ambulance." The only response he recalls was one of the officers (unidenti?ed ye mg, ?when you shut the fuck up, we'll call the ambulance? (IA pg 44). Mr. 'as then removed from the platform and taken downstairs and put in the back of the police car where he remained for about thirty minutes before being taken to the BART Police Of?ces (IA pg 45). Once arriving at police station, he was taken in and placed in a small cage where he remained handcuffed until being questioned. While in the cage, he was approached by Of?cer Pirone who came up to the cage and put a chair directly in front of it and proceeded to kic up and, sitting in front of the cage, laugh (IA pg 46). No words were exchanged between Mr. nd Of?cer Pirone other than Pirone?s laughing and staring at Mr. Bryson. Mr. B- remained in the cell for an unidenti?ed period until being brought in for questioning somewhere between seven and eight o'clock in the morning. At this point the handcuffs were removed and he was advised that he was not under arrest but was read his Miranda Rights (IA pg 65). Mr. -indicated that he was fearful of telling the BART of?cers everything since he was afraid that they were going to attempt to pin the murder on him (IA pg 65-66). c- 1 . Background tx-Iwas one of the people detained during the incident. He was interviewed on January 1-2009 by BART Detectives Smith and Carter. He was also interviewed on January 12, 2009 by the Alameda County District Attomey?s Office. He was interviewed by Kevin Gilbert of Meyers Nave on July 16,2009. Also present at the interview was his attorney, John Burris. His interview transcript is attached as Exhibit 31. Mr. _is a nineteen year old male who was present during the New Year?s Day incident occurring at the Fruitvale BART Station. His testimony regarding the events leading up to the arrival at Fruitvale is unremarkable. Mr. -does not recall exactly which train car he boarded, but believed it was somewhere in the middle of the train (IA pg 5). 2. Prior Incident He con?rmed that he was accompanying a group of other individuals who, following their trip to San Francisco, were returning to the East Bay when an altercation ensued between Oscar Grant and an unidenti?ed individual. Mr. B-was unable to provide any information or description of the individual whom Grant was scuf?ing with, but indicated that he was in very close proximity and could hear the two arguing although he does not recall the substance of those arguments (IA pg CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 44 3. Fruitvale Station Once arriving at the Fruitvale Station, Mr. -stepped outside of the BART train where he proceeded to wait for the remainder of his group. At that point he was confronted by a male of?cer who had his Taser drawn and was pointing it at Mr. B?nd others (IA pg 14, 15). The of?cer approached Mr. -and the others and told them to ?Get the fuck on the wall" (IA pg 16) and "I?ll shoot? (IA pg 14, 15). At that time, there was only a single of?cer confrontirWnd his friends (IA pg 14, 15) who Mr. identi?ed as Pirone (IA pg 16). According to Mr. testimony, the of?cer directed Mr. we friends to go sit against the wall, which they complied with (IA pg 18). At that point, a female of?cer identi?ed as Domenici a roached the group to assist Pirone, with the female of?cer then drawing her Taser and ointing it at Mr. ?and his friends and stating ?If you move, I?ll fucking shoot" (IA pg 18). Mr. then observed Of?cer Pirone approach the train car and remove Oscar Grant followed by ut of the car by physically grabbing those individuals and throwing them up against the concrete wall, wr Oscar Grant ?rst followed by (- To his recollection, Oscar Grant stumbled backwards and hit the concrete wall with his back up against the wall after being thrown by Pirone (IA pg 19-20, 22, 23). These actions caused Mr. -to believe that Of?cer Pirone had thrown Grant. Mr. recalls Pirone telling Grant to ?Get your bitch ass on the wall" (IA pg 28). Immediately thereafter, Of?cer Pirone returned to the train car where he grabbed with one of hands behind his back in what appeared to be a wristlock and Of?cer Pirone?s other hand on the ac of neck, either holding on to M-G- hair or the back of his neck (IA pg 25). Mr. was sitting almost directly across from the train car while Pirone removed Grant (IA pg 21). Shortly thereafter, Pirone came up to the group and started yelling to them to, ?Shut the fuck up? While Domenici stood with her Taser pulled out; waiving the Taser between Mr. ?nd his friends who were standing against the wall as well as the other individuals standing around in ose proximity (IA pg 24, 26). At this same time, Mr. ?was telling Domenici to ?Get that fucking Taser out of my face, bitch? (IA pg 27). As matters progressed, Mr. was able to observe an interaction between Pirone and Grant wherein Pirone either punched or pushed Grant either with his elbow or ?st (IA pg 29, 33-34, 70). Following Pirone punching or pushing Grant, Mr. bserved Grant step fonivard and put his hands out in between his friends and the f?cer, saying some mg to the effect of "Be cool? or ?Calm down? (IA pg 70, 71). At this point Mr. irecalls Pirone approach Grant and shoving him, pushing Grant to the ground (IA pg 37), with Grant saying ?Don?t Tase me. I got a daughter. Please don?t tase me" (IA pg 73). Mr. -hen turned his attention towards .7!th was then being confronted by an unidenti?ed of?cer (IA pg 34). The unidenti?ed of?cer apparen came up from behind and tackled A- and was kneeling on top of A- and applying handcuffs (IA pg 31). Mr. I was unable to hear any speci?c comments but did hear a gunshot (IA pg 31, 38). At that point he turned back towards Oscar Grant who he observed laying on the ground face down approximately ?ve to seven feet away from him. Oscar Grant raised his head and said, ?You shot me.? N-was able to observe smoke coming out of Grant's back but did not hear any comments from any of?cers at that time other than the various of?cers telling people to stay back (IA pg 38-39) and Pirone responding to the individual requests to call an ambulance by stating "I?m not calling nothing until you all shut the fuck up? (IA pg 40). CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 45 Sometime prior to the shooting, Mr. observed an unidenti?ed male voice talking to the members of his group and calling them, ?bitch ass nigger? (IA pg 55), but he is unable to con?rmif it was an of?cer or some other individual. Mr. .rvas only able to indicate the phrase was uttered from a male voice that he was unfamiliar with somewhere off to his right in the area was Mehserle and Pirone were confronting Grant (IA pg 54-55). 4. Post Incident After the incident, Mr. -remained sitting on the platform for a prolonged period of time, but not yet handcuffed (IA pg 40). Originally he was sitting on the ground with his back against the concrete wall. He was there long enough to observe the paramedics arrive on site, load and remove Grant from the platform. At some point during the paramedics working on Grant, Mr. B-nttempted to stand up but became woozy, potentially as a result of all of what he classi?ed as ?all of the blood," then he sat down on a bench (IA pg 40?41). During this time, he was accompanied by at least one of?cer and believed it was Of?cer Domenici. Shortly thereafter, he was handcuffed and taken downstairs where he was placed in a police car. While waiting in the car at the Fruitvale Station, he was approached by Pirone. Once Pirone opened the door to the police car, Mr. Bryson asked him why he shot Grant, to which Pirone started laughing and said ?so, you think I'm the one that shot him? and laughed again (IA pg 45). According to Mr. B-testimony, he turned to Domenici and asked her to "save me," immediately after he observed Grant being shot (IA pg. 73-74). Mr. ndicated that he was fearful of his life and did not know what to expect and was hoping that the of?cer wou help him and save him from any further violence. During this testimony Mr. 'ppeared visibly distraught and uncomfortable and was unwilling to elaborate on any of the comments beyond simple short answers. he was having trouble breathing and did not feel well (IA 'pg 48). Mr. ndicated that of?cers called for a medical team who evaluated him, including his breathing and hea an advised him that he was, ?taking it." Mr. B-ecalls the of?cers giving him a choice of either being taken to the hospital for treatment or being taken to the police station, but that the of?cers told him he would be in custody longer if he chose to go to the hospital (IA pg 48). Based upon his desire'to be released as soon as possible, Mr. Ideclined any medical treatment and refused to sign any paperwork from either police or medics until he was able to have an attorney. Following being removed from the platform and taken downstairs, Mriindicated to the of?cers that Following being placed in the BART Police car, Mr. -was driven to the BART Station which he believed was at the corner of 8th and Oak (IA pg 50). Once arriving at the Station he was advised that it was too crowed and that he needed to remain in the olice car for a while (IA pg 51). At that point the of?cer allegedly departed the vehicle and left Mr. B?in the vehicle unattended for an unidenti?ed period of time, ossibly somewhere in the neighborhood of twenty minutes before an of?cer returned and delivered Mr. downstairs (IA pg 51). Mr. .was placed in a small room with an open doonNay which contained a number of printers. He indicated that he was accompanied by another of?cer who sat with him during his stay in that room, with Mr. _altemating between sitting on the ?oor and sitting ?in a chair (IA pg 53). He remained in handcuffs until approximately 6:00 am. when the handcuffs were removed and he was taken in for an CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 46 interview. While waiting to be interviewed, Pirone kept waking past the room where Mr. B-was being held, smirking and giving ."mean faces" (IA pg 57-58). Once taken into the interview room at approximately 6:00 am, Mr. B-told the of?cers that he, ?blacked out,? and did not want to talk with them (IA pg 59-60, 63). He indicated that he did not wish to discuss any matters with the of?cers because he did not have an attorney and was also fearful of the of?cers. Mr. did indicate that he had a recollection of the incident but that he did not want to discuss the matters with anyone from BART. At that point Mr. las released and he proceeded to the hospital where Grant was being treated. Once at the hos ital he charged his cell phone in the waiting room lobby before. receiving a call from rom Femando?s cell phone. He was unsure of the time but indicated that the sun had just came up and it was possibly somewhere in the range of 7:30 am. to 8:00 am. (IA pg 65-66). 1 . Background was one of the people detained during the incident. He was interviewed on January 1, 2009 by BART Detectives Smith and Carter. He was interviewed by Kevin Gilbert of Meyers Nave on July 16,2009. Also present at the interview was his attorney, John Burris. His interview transcript is attached as Exhibit 32. one of the individuals accompanying Oscar Grant?s group to San Francisco on New Year's Eve and was also present at the Fruitvale BART Station at the time of the incident giving rise to this investigation. Mr. (-admits to having consumed some Hennessy prior to the incident, but was unable to identify the amount. He indicated that he consumed that drink some time around ten or eleven o?clock in the evening (IA pg 4-5). 2. Prior Incident Once returning from San Francisco, Mr. C-believed that his group had boarded the train somewhere towards the front, believing that he was in the back of the second car (IA pg 8). During the ride from San Francisco to Fruitvale, he recalls an argument and brief pushing match between Oscar Grant and an unidenti?ed White male. He believed that the incident lasted only a few seconds and was uneventful (IA pg 6-7). 3. Fruitvale Station Once arriving at the Fruitvale Station, the group of individuals began having a discussion as to whether they were going to exit the train at that point or continue to ride the train until it arrived at the Hayward BART Station where everybody?s cars were parked (IA pg 10). Ultimately, the group exited the train and proceeded to walk down the Iatform, although the group was divided into groups for no apparent reason. After exiting the train Mr. Giencountered a BART of?cer coming up the platform or possibly coming up the escalator. To the best of his recollection there may have been three or four officers at that point, CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 47 including at least one male and one female but Mr. C-was not sure either as to the number or the make up of the officers (IA pg 12-13). The group of of?cers began stopping certain individuals, including J-B-, C- R- and N- nd told those individuals to go sit on the wall. At that time Oscar Grant and Mr. G-rad just exited the train and were back behind everyone else (IA pg 14). Upon seeing this Mr. G-and Grant re- boarded the train in order to attempt to avoid the of?cers. Once Grant and Mr. G-e-boarded the train, they split up with Grant who was walking through to another train car (IA pg 15, 16). At that time Of?cer Pirone walked up to the train car with his Taser out and yelled into the car something to the effect of, ?whoever else was involved or whoever else that was on the train that was with this group of people need to get off the train? (IA pg 17). Pirone was also saying for the people to, ?get the fuck off the train? (IA pg 18). the exit doors for the train. Mr. as able to observe this interaction from his position across the train car (IA pg 18). At that point, Pirone was touchin Grant from the back and proceeded to escort Grant to the wall where Grant sat down next to -iand l._lA pg 19). Of signi?cance is that Mr. (-did not testify that Pirone had thrown Grant to the wall as testified by some of the others in this group. As Pirone walked up and down the ilatform outside the train, he ultimately met Oscar Grant outside one of Pirone then returned to the train car and came and grabbed Mr. G-from the back, grabbing the back of Mr. G- hair and/or neck. Prior to grabbing Mr. Pirone did not say anythin to Mr. (-that he heard (IA pg 20). While Pirone was pulling Mr. ff the train car he told Mr. told you to get the off the train? or ?get the fuck off the train" (lA pg 20). Pirone-then escorted Mr. across the platform until he swept Mr. _feet out from underneath him and threw him to the ground. At that point Pirone kneed Mr. G-n the back and he laced him in handcuffs (IA pg 21). About the same time, the other individuals with R-including - llB-and Oscar Grant started yelling at I Pirone, ?What the fuck is y'all doing? (IA pg 21 . In response to the group standing up and yelling at the officer, Pirone ran back to Oscar and shoved Oscar Grant against the wall (IA pg 22, 24). While Pirone was engaging Grant, Mr. C-was able to hear people calling each other, "bitch? although he was unable to identify who specifically was saying the words. He believes that term was being uttered by at least one male voice and believed it was both his friends as well as the officers that were using the phrase (IA pg 26). During this time the female officer (later identi?ed as Domenici) was standing next to the rou and had her Taser pointed at pg 27). During the same period of time AH- was standing off to the left of the group walking back and forth talking on his cell phone. Mr. observed A-get tackled from behind. Immediately prior to him being tackled he recalls that was on his cell phone talking to someone but did not see what happened to the cell phone after he was tackled (IA pg 28-29). During the same time period Oscar Grant was somehow brought to the ground. Mr. (-only recalls seeing Pirone and Mehserle wrestling with Grant and tying to put handcuffs on Grant (IA pg 30-31). To the best of Mr. G- recollection he recalls seeing Mehserle trying to put handcuffs on Mr. Greer and having placed a handcuff on at least one hand. After seeing a handcuff being placed on one hand Mr. G- attention was diverted toward -who was then being tackled further down the platform (IA pg 31). CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 48 Mr. G-ecalls seeing Pirone on Grant's back, with Pirone?s knee on either Grant?s head or neck and Pirone's hands towards Oscar Grant?s neck (IA pg 32). Further Of?cer Pirone?s attention appeared to be focused downward looking at Oscar Grant (IA pg 32-33). Mehserle had positioned himself towards Grant's feet and was kneeling at ?rst and then stood up. Mr. G->riginally observed Grant on his side followed by the of?cers attempting to role him over onto his stomach and then trying to handcuff him (IA pg 33). After being rolled over onto his stomach Grant's arms were somewhere out to his sides. Mr. (.did not see the actually shot but recalls hearing it and looking over and observing the of?cers ?nish handcuf?ng Grant after being shot (IA pg 38). He also believes he heard someone say, ?Get the handcuffs off of him before the press gets here," followed by the of?cers removing the handcuffs from Grant (IA pg 38). Following the shooting Pirone walked off and went to talk to Mehserle. To the best of Mr. G- recollection Mehserle and Pirone walked on the platform where they proceeded to talk for a while. Following that, Mr. C-loes not recall ever seeing Mehserle again (IA pg 39). 4. Post Incident Following the shooting Mr. (-emained on the platform in handcuffs for approximately twenty to thirty minutes before being taken downstairs and removed from the Station by an of?cer he identi?ed as Knudtson (IA pg 43, 45). Knudtson escorted Mr. C-downstairs and also drove him to the BART Police Station. During the drive to the station Mr. G?sked Knudtson what happened and what caused the exchange between the of?cers and Mr. -roup. Knudtson is alleged to have responding by stating. ?Well basically they got a description of some males in black or something that was ?ghting" (IA pg 45). After being taken to the BART Station Mr. '33 placed in an of?ce room where he was watched over by another of?cer. While being walked into the room he was able to observe Pirone sitting in a small room which also contained a cage where -B-as being con?ned. Mr. C'uggested that Pirone was changing and he believed he saw Pirone In an under shirt or something in the same room as 8- (IA pg 46-47). Mr. (I remained in the conference room with handcuffs on until he was questioned sometime around 8:30 in the morning. During the time he was in the conference room, he was only supervised for approximately thirty minutes an unidentified of?cer before being left alone for the remainder of the time (IA pg 48). Ultimately Mr. Cinas brought in for questioning with the handcuffs removed; he was advised of his Miranda Rights as well as told that he was free to leave (IA pg 52). Mr. 'roceeded to disclose what he recalled to the investigating of?cer followed by being released and going to meet his friends. a 1 . Background C-_was one of the people detained during the incident. He was interviewed on January 1, 2009 by BART Detectives Smith and Carter. He was interviewed by Kevin Gilbert of Meyers Nave on July 20, 2009. Also present at the interview was his attorney, John Burris. His interview transcript is attached as Exhibit 33. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 49 Mr. R-was with a group of individuals who travelled to San Francisco on the evening in question to view the ?reworks. He admits to having consumed possibly two glasses of Hennessy in the evening, potentially an hour to an hour and a half before arriving at the Fruitvale BART Station (IA pg 5). 2. Prior Incident According to Mr. I-recollection, Mr. Oscar Grant was involved with an unidenti?ed individual on the BART train somewhere between the West Oakland Station and the Lake Merritt Station (IA pg 8). He indicated that that altercation lasted approximately two minute and consisted primarily of yelling and a small amount of pushing and shoving (IA pg 8). He indicated that no punches were thrown and that he was approximately three to four feet away from the altercation when it occurred. To the best of his recollection, nobody noti?ed the train operator nor did there appear to be any other person taking notice or exception to the altercation. 3. Fruitvale Station Mr. Flcannot recall whether his group left the train all at the same time or if they left individually. He suggested that he may have been approximately a minute or two behind the others in his group as they were debating whether to exit at the Fruitvale Station or to continue to Hayward where their cars were parked (IA pg 9). However, he recalls getting off the train and being approached immediately by two BART of?cers, including a male and a female (IA pg 10). He indicated that the male of?cer (identi?ed as Pirone) had his Taser out at that point and was holding it in his hands (lA pg 11). The of?cers immediately directed, Mr. IN the others In his group to get against the wall, referring to the concrete barrier wall immediately adjacent to the BART train (IA pg 11). According to Mr. R- the male of?cer's exact words were to "sit the fuck down? (IA pg 12). According to Mr. I he and his friends com lied with the exception of M-G- and Oscar Grant who had jumped back on the train. After Mr. friends approached the wall, the female of?cer then proceeded to supervise him and his friends while the male of?cer (identi?ed as Of?cer Pirone) then returned to the train to retrieve Grant ?rst, followed by (I Mr. i-indicated that he was able to watch Pirone the entire time as the train car in which Grant was located was located directly opposite from where Mr. Ias sitting. During this time, the female of?cer (later identi?ed as Domenici) was standing over the men holding her Taser out and pointed (IA pg 18) but does not recall any comments from her (IA pg 19). Contrary to some of the other testimony, Mr. indicated that Oscar Grant was escorted off by Pirone. Althou Pirone did have his hands physically on rant and was grabbing Grant by the arm or shoulder, Mr. did not testify to Grant being thrown against the wall as has been indicated by other witnesses (IA pg 13). According to Mr. i- Pirone then returned to the train car and retrieved with Pirone grabbing G-by the back of the head and possible having an arm around G-neck from behind (IA pg 14-15). Pirone escorted G-off of the train car in this position following by Pirone attempting to do 3, ?hi toss? of (-and throwing the ground. Following Mr. C-being taken to the ground, Mr. R?ndicated that Pirone procee to drop a knee on C'pproximatel three times, with the knee drop appearing to be done forcefull and intentionally according to Mr. Fi? Following the knee drops, Mr. F-indicated that Giwas handcuffed (IA pg 16-17). CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 50 Following handcuf?ng of GFPirone rushed over to Oscar Grant and proceeded to either push or hit Grant, although Mr. as unsure of the specifics of the hit (IA pg 19). Mr. R- only recollection was that he saw Grant be pushed hard up against the concrete and glass wall, with Grant?s head hitting the wall very hard and forcefully. During this exchange, Pirone was continually pushing and/or possibly elbowing Grant in the upper body. During the same time period the female of?cer was advising them to, ?sit the fuck down" (IA pg 19-20, 21). Grant?s response to the of?cers was ?Please, ok, okay, please don't. I have a daughtef (IA pg 20). Mr. Illso recalls Grant stepping in front of -B-and putting his hands out in front of him, saying ?Sit down, sit down, relax, calm down? (lA pg 38). Grant had held his arms out to the individuals beside him and was telling them to, ?calm down" and to relax so they could go home (IA pg 38). Mehserle and Pirone then roceeded to wrestle Grant to the ground, with Grant falling over sideways and landing on top of Mr. leg. Mr. wndicated that he was yelling to the of?cers to get him off his leg which resulted in the of?cers then ro Grant from his back over onto his stomach (lA pg 24, 26-27). Once Grant was rolled onto his stomach, Mr. liwas able to observe Of?cer Pirone at Grant?s head (IA pg 32), possibly with a knee either on Grant's shoulders or neck as well as Of?cer Mehserle around Grant?s waist and/or lower body (IA pg 29-30, 33). The of?cers continued to struggle with Mr. Grant for a few moments during which time Mr. l-indicated that one of Grant?s arms came free and was being moved downward by Of?cer Pirone (IA pg 31 32). Mr. l-was unable to see the other arm at that time. Mr. then observed Of?cer Mehserle stand up from a squatting position and reach for his weapon with his hand, drew his weapon and immediately ?red a single shot in Grant's back (IA pg 33). Immediately after the shot, Mehserle reholstered his weapon, followed by Pirone whispering something in Mehserle?s ear which lasted for only a brief moment (IA pg 34-35, 36). 4. Post Incident According to Mr. R- he was in shock at that time and does not recall any specifics until being approached by Pirone. Pirone then advised Mr. R-o calm down and escorted him over to a bench where he sat him down (IA pg 37). At that time, R-was not handcuffed and was sitting freely on his own (IA pg 37). According to Mr. I. he remained sitting on the bench until another officers (hesitantIy identified as Of?cer Knudtson) then ran up to him and started kneeing him in or about the neck and face and advising him to stop resisting arrest while telling Mr. R-to "Shut the fuck up. I got no problem beating your ass tonight? (IA pg 39). R-was immediately placed face down on the concrete platform and handcuffed until being picked up and taken down the escalators and seated (IA pg 42). Mr. R-was placed in the back of a BART Police car with They were taken to the police station (IA pg 42), where Mr. R- remained in the car unattended for approximately 30 minutes (IA pg 44) until being taken into a conference room where he remained for approximately four or ?ve hours in handcuffs (IA pg 45). The handcuffs were removed at approximately 6:00 or 6:30 am. when an unidentified female detective interviewed him. Despite being told that he was not under arrest and was free to leave, the detective advised Mr. I'f his Miranda rights. In response, Mr. llid not tell them anything- speaking to the detective for approximately ten to fifteen minutes (IA pg 49). Mr. F- claimed that he was scared and didn?t want to speak with anyone at that time (IA pg 49). CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 51 XI. INTERVIEW OF BART EMPLOYEES 1 . Background A. K- V- was the train operator of the incident train. She stated that she received two intercom calls that morning telling her that there was a ?ght on the lead car and provided her with a description of the people involved (BART IA 0774). She then reported this information to Central. She was interviewed by BART Detectives McNack and Carter on January 2, 2009. She was interviewed by Kim Colwell of Meyers Nave on July 14, 2009. Her interview transcript is attached as Exhibit 34. she became a train opera or. a wor ew Year?s past in her various positions with BART but this was her ?rst New Year?s as a train operator (IA pg 3). She started at 12:01 am. She had no special training to deal with the event (IA pg 3). Her general training was if she saw a problem to call Central and give them speci?cs (IA pg 4). 2. Pre-lncident Ms. Ill-waited at Daly City until her ?rst train assignment that she picked up at Colma at about 1:00 am. (IA pg 6). She was assigned a Dublin/Pleasanton train and she headed off from Colma towards San Francisco (IA pg 6). When she got to Embarcadero Station she slowed down and as the Station was very crowded she waited for clearance for a supervisor on the platform to clear the train for continued travel (lA pg 7). She did not hear about the incident with a man with a gun in the Embarcadero Station until weeks after the incident (IA pg 8). That incident did not occur on her train. She then proceeded through West Oakland without incident. Again, she did not learn of the individual jumping off the platform until weeks later (IA pg 8). That incident did not happen on her train. Ms. then went to Lake Merritt and as it is a transfer Station with people are getting that time 2 black males in the second set of doors in the lead car are in the doors confused about where to go. She explains out the window to them what they can do, but that they have the doors (IA pg 10). 3. Fruitvale Station As she is pulling the train into the Fruitvale Station she gets a call on her inter train intercom from a woman in the back of the ?rst car claiming "There?s a ?ght on the train? and hangs up (IA pg 10). By this time Ms. is pulling the train into the Fruitvale Station and opening the doors (IA pg 10-11). She then radios Central and says that there is a fight on the train (lA pg 11). CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 52 At that moment a second intercom call comes from a man in what she presumes is the same car. He says ?There?s a ?ght on the train? Ms. W-says ?What do they look Iike?", the man says ?Black males", Ms. says ?What are they wearing??, and he says ?All black.? She then asked if there were any weapons involved and he said ?Nothe BART interview she said that the man on the intercom described "two black males? (Bl pg She then relays this information to Central (IA pg 12). Central tells her to hold the train (IA pg 12). In the dispatch record she says ?rst call on lead (_communication #1 pg 156 .11 He next transmission says is a black male wearing all black, no weapons Communication #2 pg Her third communication coming off train looks like black male, Spanish male, white male- wearing all communication #3 pg She then goes to her window between the cab and the inside of her car and she cannot see anything because it?s packed. But people are saying and gesturing that there is a ?ght (IA pg 13). She can see people getting up on the seats (IA pg 13). She can not see any ?ghting herself (IA pg 13). The people on the seats are not the ones ?ghting (IA pg 14). Then she looks out her side window down the platform and sees about 4-5 black males and a Hispanic female acting agitated. The Hispanic female is ?mouthing off? to someone inside the train (IA pg 17) (Bl pg One member of the group, a light skinned mail with puffy hair that she had talked to at Lake Merritt asks ?Is 5-0 coming?? She replied in the af?rmative and he told his friends they had to 0 (IA pg pg She thinks there were 5-7 people in this group (BI pg Ms. Witid not know if these individuals were involved in the ?ght (IA pg 16). As they are walking off a BART Police of?cer (Pirone) is coming at them from the other direction (IA pg 15). He then detains them but in an area that she can only see their heads when they are standing (IA pg 15-16). She then saw two males one "Mexican? and one white get off the train and then get back on the train (lA pg 17). When Pirone approaches her window she believes there was a female of?cer with the detainees (lA pg 18). Pirone says ?What do we have here?? and she responded ?Some bullshit." She went on to say ?The Hispanic female in the red shirt, she was mouthing off to somebody, but that?s all I know? (IA pg 18). That was the end of the conversation. He never asks if they were the guys in the ?ght (IA pg 19). She denies saying ?Those were the guys who were in the fight" (lA pg 19) (BI pg 9:14-19 and BI pg 1017-10). When Pirone approached Ms. Vl-she described him as "assertive,? coming into her personal space such that she had to pull back and hold out her palms (lA pg 21-22). She also described his stance as "aggressive? (IA pg 36). 11 All Ms. Vldispatch communication records are attached as Exhibit 35. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 53 Ms. V_is then shown a photograph on the Fruitvale platform taken from the area of the train operator?s window and she indicates the area where the detainees were initially taken. She also indicates that if they sat down on the platform they are then gone from her field of vision, blocked by the small wall at the outside of the platform that curves in towards the train (IA pg 22-23 and Exhibits). She is waiting for the call to release the train and she can hear people on the train and the platform saying ?ohh, ohh, ohh.? She can not see anything because when she looks out her side window people on the platform are blocking her view (IA pg 24). She then hears a ?Boom" and she immediately calls into Central -?shots fired? (lA pg 24). She then gets an intercom call and a call from Central at the same time. The man on the intercom is saying ?Close the doors and get us the hell outta here!? (IA pg 24). The call from Central is con?rming her release of the train. She is trying to go, but can?t close the doors because people are standing in the way (IA pg 24-25). She announces repeatedly for the passengers to get back on the train, that the doors are closing (lA pg 24). She is finally able to close the doors and tells Central that she?s - on automatic (IA pg 25). 4. Post Incident She is then called by Central at Castro Valley and told to get off and take another train back to Daly City (IA pg 25). While she is on the platform at Castro Valley she sees the same male she had spoken to earlier at Fruitvale and asks him if it was a gunshot they heard to which he responds that it was and it was on the platform (lA pg 25). She then operated a train back to Daly City without incident. She waited in the break room for about two hours until she went off shift (IA pg 27). The next day when she was back at work she was contacted by Detectives McNack and Carter who wanted to interview her. She took a run on a train and when she got back to Daly City they were waiting to interview her (IA pg 28). They all met in a supervisor's of?ce and her Union Representative Mark Ambus was there as well (IA pg 2829). She was interviewed for about 3045 minutes and told them what she had observed (IA pg 29). 5. Impression Ms. IA-came off as extremely credible in her interview. Her statements from the beginning have been largely consistent as to what she said and as to what she didn?t say to Officer Pirone. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 60 B. BART POLICE OFFICER NOEL FLORES 1 . Background Of?cer Noel Flores was not interviewed by BART on the night of the incident, but asked to do a police report instead. He was thereafter interviewed by BART Detectives on January 5, 2009. He was not interviewed by the District Attorney and did not testify at the criminal Preliminary Hearing. On May 19, 2009 and June 23, 2009 Chief Gee sent letters to Of?cer Flores alerting him to his possible violations of policy, his potential role as a witness and ordering him to talk to investigator Kim Colwell. (He stated that he did not get the May 19th letter until it came as an enclosure with the June 23rd letter.) Thereafter he was interviewed by Kim Colwell of Meyers Nave on July 2, 2009 as part of the Internal Affairs investigation. He appeared at the offices of Meyers Nave, was given his Miranda rights and a Lybarger Admonition and then chose to speak freely. He was represented by his attorney Alison Berry Wilkinson. His letters from Chief Gee, Lybarger Admonishment and interview transcripts are attached as Exhibit 38. 2. Law Enforcement Experienceff raining Of?cer Flores had been with the BART Pelice for a little over two years at the time of this incident. He completed the academy and the BART Field Training program. He had worked a New Year's before. And at the time of this incident there may have been a BART New Year's Bulletin or training, but he doesn't recall (lA pg 6-7). Prior to the incident he had 2 hours class room training on the Taser and 4 hours hands on (IA pg 61) 3. Other New Year?s Calls He started work at 4:00 pm. that day alone and was partnered with Of?cer Knutdson at about 6:00 pm. He ended up on the platform of the West Oakland Station when a train pulled in. He saw a man come off the train who, once he saw Of?cer Flores, started running down the platform and jumped over the end. Of?cer Flores ran to the ground level to assist with the suspect who had jumped. He assisted in detaining the individual and recovering money, drugs and a gun from his pockets. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 61 He recalls that they were at the scene of the West Oakland incident or dropping evidence off at Lake Merritt for about half an hour before getting the call to MacArthur (IA pg 10-12). They were heading towards MacArthur to assist Of?cer Hawkins when they heard the Fruitvale call and they change direction. 4. Fruitvale Station He remembers the call to Fruitvale as saying ?ten subjects ?ghting? (IA pg 13). He then recalls dispatch saying that the platform cameras showed a suspect struggling with an of?cer (IA pg 13-14). (None of this was actually broadcast.) When they got to Fruitvale he asked the Station agent which platform and then ran up the stairs. He thinks Of?cer Knudtson was behind him. When he got near the top of the stairs he pulled out his Taser (lA pg 15). He uses a cross draw with his dominant right hand (IA pg 16). He saw a crowd approaching Of?cer Wof?nden and ran towards it (lA pg 15). When he started running he also pulled out his baton to make it easier to run (IA pg 21). He had the Taser for approximately two months and took it out when he did because the holster was new and because he didn't know what he would be facing once on the platform. He had pulled the Taser once before this night, but never had ?red it on the job (IA pg 16-17). He was about 60 feet from the other officers on the platform when he got to the top of the stairs. He describes them as having their backs to him and he didn?t know who they were (lA pg 18). He ran closer and saw Of?cers Pirone and Domenici dealing with at least three detainees (IA pg 19). He also saw Of?cer Wof?nden keeping the crowd back (IA pg 20). And he saw Of?cer Knudtson take someone to the ground in front of them (IA pg 30). Of?cer Flores then faced off to the crowd with Of?cer Wof?nden and had to use two hands to help him put the baton away because his belt is ?so crowded" now with the Taser holster (IA pg 21 (It should be noted that the video footage clearly shows Of?cer Flores struggling with his baton while holding an activated Taser.) The laser dot from the Taser can clearly be seen on the buttocks of Of?cer Knudtson who is on the ground in front of Flores handcuf?ng This is a dangerous situation that belies a lack of training with the Taser by Officer Flores. It is a so 0 early an unintentional act on his part, but one that must be corrected). His attention was focused on the crowd in front of him. He looked back at the detainees and the other of?cers occasionally and recalls seeing the detainees sitting (IA pg 23). He saw a ?big guy" advancing and he told him to ?get back, get the hell back or you are going to get Tasered? and the guy got back (IA 24). He also saw another individual on the platform who was seated and in handcuffs who was inching along the platform. Of?cer Flores also told him to back up and he did (IA pg 27). During this time it was so loud that he could not hear his radio despite wearing and earpiece (IA pg 32). He was looking down at Officer Knudtson with the subject he was handcuf?ng when he heard a pop, he looked back and saw but could not hear Of?cer Guerra on the radio and then Of?cer Guerra ran off down the platform (IA pg 34-35). He did not know there was a shooting until later, but he did see Guerra come back with a trauma kit and he saw blood on Mr. Grant (IA pg 35). CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 62 He then saw Of?cer Mehserle who looked ?out of it", but he did not talk to him (IA pg 40). Then he and Of?cer Woffinden escorted one of the handcuffed detainees down the stairs because he was yelling and carrying on (IA pg 40- -41). Once downstairs he saw Woffinden take the detainee to a police car and Flores began to use yellow tape to cordon off the area (IA pg 43). He never went back upstairs (IA pg 44). He stayed downstairs and started a crime scene log (IA pg 44). 5. Post Incident Of?cer Flores was then taken back to Lake Merritt Station, put in a room and after a time someone came to do a GSR test on him (IA pg 46-47). He thinks he may have processed the evidence from the West Oakland incident and then at approximately 1.was asked to write a statement (IA pg 48- 49). After completing the statement he gave it to Dot. Carter who asked for a few clarifications (IA pg 51). Then at approximately left the Station (IA pg 52). He next worked the following Friday and Saturday then he was given a few days off by one of the sergeants (IA pg 53). He heard from Officer Pirone that he could go to a counselor. Later he had the same offer from BART, but he had already made the appointment (IA pg 54). He only feund out he was on administrative leave through his counselor (IA pg 53). He later heard from Commander Gibson that he was on leave and to call if he needed anything. He hasn?t heard from anybody since then (IA pg 56). 6. Impressions/Conclusions Officer Flores responded to a chaotic scene on the night of the incident with the clear intention of helping his fellow officers. He appropriately used the Taser to keep the crowd under control and the other officers safe. As stated above, however, he does need further training on how to holster his baton while holding the Taser as he can clearly be seen on video pointing the activated Taser at the buttocks of another of?cer on scene. Had Flores been bumped from behind (a foreseeable event on the crowned platform) he could have deployed the Taser darts into the buttocks of Of?cer Knudtson which could have caused devastating consequences. Of?cer Flores exhibited an open and honest demeanor during the interview and he clearly had no involvement in'the shooting. Aside form the negligent use of the Taser, Of?cer Flores acted in an appropriate and reasonable manner in handling himself during this stressful incident. 7. Recommendations There Is no discipline recommended for Officer Flores. Officer Flores should, however, receive specific training and informal coaching on how to handle the Taser and baton simultaneously CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 63 8. Findings General Order No. General Duty Regulations - EXONERATED General Order No. V, Weapons and Use of Force - EXONERATED Operational Directive No 27, Code of Professional Conduct and Responsibilities for Peace Of?cers - EXONERATED Operational Directive No 44, Processing and Handling Arrestees - EXONERATED Operational Directive No 70, Delay of Revenue Trains - UNFOUNDED Operational Directive No 74, Lethal Force/Incidents Resulting in Death or Great Bodily Injury UNFOUNDED Operational Directive No 75, .Use of Lethal Force - UNFOUNDED Bulletin No 08-07, Taser Less-Lethal Weapon Policy C. BART POLICE OFFICER JONATHAN GUERRA 1. Background Officer Jonathan Guerra was not interviewed by BART on the night of the incident, but asked to do a police report instead. He was thereafter interviewed by BART Detectives on January 5, 2009. He was not interviewed by the District Attorney and did-not testify at the criminal Preliminary Hearing. On May 19, 2009 and June 23, 2009 Chief Gee sent letters to Officer Guerra alerting him to his possible violations of policy, his potential role as a witness and ordering him to talk to investigator Kim Colwell. Thereafter he was interviewed by Kim Colwell of Meyers Nave on July 2, 2009 as part of the Internal Affairs Investigation. He appeared at the offices of Meyers Nave, was given his Miranda rights and a Lybarger Admonition and then chose to speak freely. He was represented by his attorney Alison Berry Wilkinson. His letters from Chief Gee, Lybarger Admonishment and interview transcripts are attached as Exhibit 39. 2. Law Enforcement Experience/T raining Of?cer Guerra graduated from the police academy in March of 2005 and went to work for BART. He completed the Field Training program and worked as a solo of?cer starting in August of 2005. He does not recall if they got the briefing on the New Year?s plan by BART, but thinks it usually is discussed in brie?ng and that a bulletin may be posted a few days ahead. He recalls reading through such a bulletin before this New Year?s. 3. Other New Year's Calls He was partnered with Officer Guazon on the night of the incident. They were dispatched to the West Oakland Station to help with the suspect who had jumped off the platform. He was called as an evidence technician. He was asked at West Oakland how far it was from the platform to the ground so he had to return to Lake Merritt to get a tape measure. While at- Lake Merritt he heard the call for the Fruitvale situation. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 64 4. Fruitvale Station While at Lake Merritt Officer Guerra recalls hearing a call on the radio for a 242 Battery at Fruitvale with ?20 males? involved (IA pg 11). (The dispatch records do not corroborate this broadcast.) He then heard on the radio that Mehserle and Wof?nden were responding and that Domenici and Pirone were already there because he knew they were dealing with someone under the in?uence (IA pg 12). Of?cer Guerra drove directly to Fruitvale and parked in the bus zone. It took him about 5 minutes to get there (IA pg 13). He then went up the escalator to the platform where he observed Of?cer Pirone kneeling on the ground next to a subject (IA pg 14). He saw Of?cers Mehserle and Woffinden also standing near 4 subjects seated on the ground (IA pg 14). As he ran down the platform he could see Mehserle standing over the 4 seated subjects at the wall and one more handcuffed subject off to the side (IA pg 15). Of?cer Woffinden was near by but not standing over the subjects (IA pg 16). Of?cer Wof?nden had his baton out but under his arm/shoulder (IA pg 16). Of?cer Guerra then joined Mehserle to watch over the subjects seated on the ground (IA pg 17). As he was standing with Mehserle he recalls Of?cer Pirone coming up from behind him and to his left (IA pg 17). He knows Of?cer Domenici was there too, but does not recall her position (IA pg 17). He thinks maybe she and Wof?nden were watching the people behind them who were a ?slight threat? (IA pg 18). Of?cer Guerra does not remember what the detainees were saying speci?cally, but he does recall they were unhappy about the situation (IA pg 19). He does not recall Mehserle or Wof?nden saying anything at that time (lA pg 19). He describes the noise level at this point as ?above average? that he was having a hard time hearing his radio until he turned the volume all the way up (IA pg 20). He does not recall ever seeing Oscar Grant on a cell phone (IA pg 69~70). At this point he recalls Officer Pirone walking ?briskly up" and pointing out Oscar Grant am saying that they were under arrest (lA pg 21). Guerra and Mehserle begin to handcuffJ en the noise from behind them surged and Of?cer Guerra looked back around towards the train (IA pg 21). Pirone was to his left (IA pg 21). He does not recall what was said other than they were under arrest (IA pg 6869). At this point there were no threats coming from the area of the platform toward the front of the train car (IA pg 76). he looked away for a roximately 3 . When he looked back Mehserle had seated on the ground (lA pg 25). as yelling and Guerra leaned in towards Bryson?s ear an sat ?just put your hands behind your back and we?ll ?gure out what the issue is? (IA pg 25). ?got calm" and ut his hands behind his back and was cuffed (IA pg 25). He checked the cuffs an the rear of waistband before things got really loud and he became distracted and looked towards the crowd again (IA pg 25). Of?cer Mehserle was trying to sit Mr. ?down and Of?cer Guerra had his cuffs in hi 'ght hand when 9 CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 65 Of?cer Guerra then got on his radio and asked for dispatch to release the train as he felt having it there was a safety issue (IA pg 28). He could observe Of?cers Domenici and Wof?nden between them and the crowd (IA pg 29). Dispatch said they were releasing the train and he thinks he may have asked for more of?cers at that point, he?s not sure (IA pg 30). As Guerra stood up from .he recalls Mehserle moving to help Pirone with Grant. He says he cannot recall speci?cally what they were doing (lA pg 30-31). He generally recalls Mehserle pushing Grant "face forward,? but doesn't recall if Grant was saying anything (IA pg 31). He recalls Grant "probably? having his chest on the ground, but isn?t sure (IA pg 32-33). Then he sees Grant's face toward the front of the train and it appears Pirone and Mehserle are trying to ?restrain him" IA pg 33). At that moment he was . distracted by Of?cer Knudtson running up and tackling pg 33). Knudtson was approximately 20 steps away at this point (IA pg 34). Guerra watched Knutdson tackle A-to the ground about 20 30 feet away and about one second later he heard aloud pop (IA pg 36 and 73). His ?rst impression was that it was a gun shot. He was surprised (IA pg 37). He heard someone yell ?Oh shit? (IA pg 38). He turned to look and saw Of?cer Mehserle standing with his gun out over Oscar Grant. It was held in a two hand position (IA pg 37). He saw blood on Oscar Grant's back and he immediately radioed code 3 for an ambulance (IA pg 39). He then saw the train doors close and trauma kit (IA pg 41). When he got back he put on gloves and used a cotton pad to apply pressure to Oscar Grant?s back (IA pg 42). He thinks they waited 10 minutes for medical and he kept talking to Oscar Grant, telling him to ?hang in there", asking if he could hear him (lA pg 31). When emergency arrived he explained that Grant had been shot in the back and that he had been applying pressure (IA pg 54). When he observed lieutenants arrive on scene he ran down to his car to get his camera to begin processing the scene by taking photos (IA pg 47). Then he realized that since he was involved that it probably wasn?t best for him to be taking the photos (IA pg 48). Officer Guerra was then approached by Lt. Cagaanan who asked what had happened. He said that Mehserle ?red his weapon and that the subject was on the ground at the time (IA pg 49). Then he was directed to go downstairs and the involved of?cers were directed not to talk to one another (lA pg 50). He stood by until the ambulance came to help this person. He then noticed that had been put in the back of his patrol car. Bryson was turned around in his seat looking bac an Guerra could tell he was upset (IA pg 54-55). Guerra was then transported back to Lake Merritt by Commander White and with Of?cer Wof?nden (lA pg 55). He then went to watch over a subject in the" back of a patrol car who said he was having an asthma attack. 5. Post Incident Once back at Lake Merritt the involved of?cers were all separated and put in different of?ces. He received instructions from Detective Smith to call a union rep, call a lawyer and not to talk to anyone (lA pg 56). His gun was inspected, a GSR was done and then he sat for several hours (IA pg 58). He then slept on the couch in the of?ce he was in, someone brought him some food and then he was informed they would not CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 66 be taking a statement that he should write a summary statement (IA pg 59). He was told not to do it in the Alliance system so he did it in Word (IA pg 60). He thinks that he wrote the statement at about 8:00 am. and left for home around 9:00 am. (IA pg 62). He gave the statement to Bet. Carter who asked for a little clari?cation and then he left (IA pg 63). He reported back to work the following Wednesday to report to Sgt. Fueng in detectives (IA pg 65). He worked for 4 days and then was put on leave. No one asked him about the incident (IA pg 66). On the Saturday after the incident Lt. Lucarelli called him at home to inform him that counseling services were available, but that he had to schedule his?own session (IA pg 66-67). Impressions/Conclusions Of?cer Guerra responded alone to a chaotic scene. He acted cautiously and with the clear intention of helping his fellow officers. He consistently used his best judgment in watching over the detainees, cuf?ng Mr. Bryson and in continuing to watch the area for additional threats and to insure the safety of the detainees and the of?cers. He sprang into action immediately after the shot, calling for medical code three, the release of the train, and running for a trauma kit. He used his ?rst aid training to get immediate pressure on Mr. Grant?s wound, informed the paramedics of his actions and observations and made every effort to keep Grant?s attention by talking to him. He had no involvement in the shooting. Of?cer Guerra acted in an appropriate and reasonable manner in handling himself during this stressful incident. 7. Recommendation There is no discipline recommended for Officer Guerra. 8. Findings General Order No. General Duty Regulations - EXONERATED General Order No. V, Weapons and Use of Force - EXONERATED Operational Directive No 27, Code of Professional Conduct and Responsibilities for Peace Of?cers - EXONERATED Operational Directive No 44, Processing and Handling Arrestees - EXONERATED Operational Directive No 70, Delay of Revenue Trains EXONERATED Operational Directive No 74, Lethal Force/Incidents Resulting in Death or Great. Bodily Injury UNFOUNDED Operational Directive No 75, Use of Lethal Force - UNFOUNDED Bulletin No 08-07, Taser Less-Lethal Weapon Policy - UNFOUNDED CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 67 D. BART POLICE OFFICER EMERY KNUDTSON 1. Background Emery Knudtson was not interviewed by BART on the night of the incident, but asked to do a police report. instead. He was thereafter interviewed by BART Detectives on January 5, 2009. He was again interviewed by the Alameda County District Attorney?s Of?ce on January 26, 2009. He did not testify at the criminal Preliminary Hearing. On May 19, 2009 and June 23, 2009 Chief Gee sent letters to Of?cer Knudtson alerting him to his possible violations of policy, his potential role as a witness and ordering him to talk to investigator Kim Colwell. Thereafter he was interviewed by Kim Colwell of Meyers Nave on July 7, 2009 as part of the Internal Affairs Investigation. He appeared at the of?ces of Meyers Nave, was given his Miranda rights and a Lybarger Admonition and then chose to speak freely. He was represented by his attorney Alison Berry Wilkinson. His letters from Chief Gee, Lybarger Admonishment and interview transcripts are attached as Exhibit 40. - 2. Law Enforcement Experience/T raining Officer Knudtson has been a BART Police officer for over three years. He attended and completed the police Academy and the BART Field Training Program. . He had worked the New Year?s before this one and does not recall receiving any special training. All he recalls is that they were partnered up at brie?ng and told to "stick with your partner and spread out? throughout the system. He does not recall being given or seeing any BART Bulletin about the New Year's Day plan (IA pg 6-7). He was partnered with Of?cer Flores at approximately 6:00 pm. 3. Other New Year?s Calls After hearing a call of a man with a gun in San Francisco at the Embarcadero Station, they were dispatched to the West Oakland Station to meet the train. He was on the platform when the train pulled into West Oakland (IA pg 9). He observed a crush load and an individual came off the train who ran down the platform and jumped off the end. He immediately ran downstairs to assist with the suspect who jumped (IA p911). Within 1-2 minutes they were downstairs with the suspect who jumped. Officer Knudtson recalls their being a number of of?cers there near the suspect. He was not actively involved in detaining the Suspect so when a call to MacArthur came to assist Officers Hawkins and lshimuru, he and Officer Flores were told to go by a Sergeant on the scene and they responded to MacArthur. They were at West Oakland for a total time of 5-15 minutes (IA pg 12). In route to MacArthur they heard that there was another call to go to Fruitvale to help with officers struggling and needing more assistance (IA pg 14-15). They were told the situation was covered at MacArthur and so they changed directions and headed towards Fruitvale. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 68 4. Fruitvale Station He recalls hearing during the trip from West Oakland to Fruitvale that there was a ?batteryuses the word ?struggle? to describe the radio traffic in the 1/5/09 BART interview (Bl pg 1). He heard dispatch say they "need more of?cers? (DA pg 6). They parked at the Village side of the Station and went in. The Station agent pointed them to the appropriate platform. Of?cer Knudtson rode up the escalator to conserve energy. He does not recall the route Of?cer Flores took to the platform. When he got to the top he looked both ways and saw of?cers at one end of the platform. He is unable to estimate the distance they were from him at that time. He does remember they were near to the front end of the train (IA pg 18). He ran down the crowded platform towards the officers. He thinks there may have been 100 people on the platform (DA pg 8). His plan was to help the of?cers (IA pg 19). He was using his body as a "wedge? to get through people and yelling at them 20). He slowed a little as he got closer in order to better assess the situation. He observed Of?cers Wof?nden and Domenici trying to order people back who were not complying. He has a clear memory of Mr. in a gray pea coat, with a few other individuals being aggressive towards Wof?nden and Domenici pg 1). (He states that the aggression was towards Pirone and Domenici in the BART interview (BI pg He also saw the other of?cers and the detainees at the wall. He does not recall speci?cs about that as he saw a group of people all in dark clothing (lA pg 23). It should also be noted that in the District Attorney interview Of?cer Knudtson testi?ed that he has seen Officer Domenici in the past not get a lot of cooperation, as he observed that night (DA pg 9). In the IA interview he broadened this statement to be all female of?cers as opposed to this one female of?cer. He then observed Mr. Ingage in a throwing motion towards the of?cers. He did not see anything leave hi d, but assumed he threw something at Woffinden and Domenici (IA pg 22). He then tackled Mr. the ground (IA pg 25). His intent was to restore order because people in front of Wof?nden and Domenici were not listening to their commands. He used a blocking motion with his arms to take Mr. 0 the ground. It happened quickly (IA 27). Once on the ground be hand cuffed Mr. He does not remember him struggling and does not remember getting assistance from an other of?cer (IA pg 27). He then heard a cell phone land on the ground near him so he took Mr. the arm, told him to ?back peddle? and pulled him over the platform back to the safety of the wall-(IA pg 28-29). He does not recall being able to see much of what else was going on at this point (BI pg 16). When he got back to the wall he remembers Muf?- who was among the detainees at the back of the platform, getting up to leave the area. He and icer Wof?nden detained him again and Wof?nden placed him in handcuffs (IA pg 29). This happened mostly without a struggle and then as things calmed he looked over and saw Guerra applying pressure on some gauze to Mr. Grant's back. This is the ?rst time he realized there was a shooting (IA pg 33). Before that he had heard what he thought was a ?recracker and ignored it (IA pg 32). CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 69 Of?cer Knudtson walked over to Of?cer Guerra to ask what had happened and who shot him. Of?cer Guerra told him that it was Mehserle (IA pg 33). Knutdson then turned around and saw Of?cer Mehserle, who looked shocked, and Of?cer Knudtson said: ?leave your gun in your damn holster and are you (IA pg 34 and 36). He also told him "Talk to LDF and nobody else? (IA pg 34). He asked if Officer Mehserle understood and he said ?yes" (IA pg 34). Of?cer Knudtson then went downstairs and directed ?re and medical to the platform. He told them they had a possible GSW (IA pg 35). He then saw and R?nd he went over to them. Mr. R- told him he was sorry and just wanted to go home and be with his kid (IA pg 35). Knudtson was with them for 5-10 minutes and then he was ordered back to headquarters by Kyle Potter (IA pg 39). He got there at approximately 2:00-3:00 am. (IA pg 41). 5. Post Incident Once back at Lake Merritt he was put in a room. Someone brought him some food at about 9:00 am. He was never offered legal representation (IA pg 41). At some point Sgt. Ledford came in to do a gun residue check on his hands (IA pg 42). Other than that he sat there by himself until Jesse Sekhon came in close to 11:30 or 12:00 and told him to write a statement (IA pg 42). He was told to write it in Word. He gave it to Bet. Maes (IA pg 42?43). It took him about 45 minutes to an hour to write the statement (IA pg 43). He was not asked questions until a week later when he gave a statement (IA 44). He left the Station for home close to 1:00 pm. (IA pg 45). He worked the next day, but was sent home to get some rest by Lt. Lucarelli (IA pg 46-47). He has not worked since then. At the BART interview Of?cer Knudtson asked for legal representation and was told that he was told by Det. Maes and Sgt. Fueng that it would just make ?it worse for yourself so you probably just need to answer the questions? (IA pg 45 and 50). He believes he was told that he was on leave and actually had a legal representative by Of?cer Pirone or Of?cer Wof?nden (IA pg 48). This occurred a week or two after the incident and after the interview (IA pg 49-50 . He also states that he was never asked to do a report or follow up on his tackling and arrest of Mr. (IA pg 53-54). Of?cer Knudtson also relates that BART Lt. Langer called him to inform him of threats against him and the other of?cers as a result of this incident (IA pg 64). No offers to facilitate protection were ever made. Of?cer Knudtson went to his own home agency to do that (IA pg 67). 6. Impressions/Conclusions Of?cer Knudtson responded to a chaotic scene on the night of the incident with the clear intention of helping his fellow of?cers. He consistently used his bestjudgment when arriving on the scene and by tackling Mr. A- who he observed taking aggressive actions towards Of?cers Domenici and Wof?nden. He used an appropriate level of force in the take down of Mr. and in removing him to the wall for his own safety. His demeanor and the quality of his statements show consistency and honesty. He had no CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: ?0 involvement In the shooting. Officer Knudtson acted in an appropriate and reasonable manner in handling himself during this stressful incident. T. Recommendation There is no discipline recommended for Of?cer Knudtson. 8. Findings General Order No. General Duty Regulations EXONERATED General Order No. V, Weapons and Use of Force - EXONERATED Operational Directive No 27, Code of Profession at Conduct and Responsibilities for Peace Of?cers - EXONERATED Operational Directive No 44. Processing and Handling Arrestees - EXONERATED Operational Directive No f0, Delay of Revenue Trains - UNFOUNDED Operational Directive No 74, Lethal Forceflncidents Resulting in Death or Great Bodily Injury - UNFOUNDED Operational Directive No 75, Use of Lethal Force - UNFOUNDED Bulletin No 08-07, Taser Less-Lethal Weapon Policy - UNFOUNDED E. BART POLICE OFFICER ANTHONY PIRONE I. Background Of?cer Anthony Pirone was interviewed by BART on the day of the incident. He was thereafter interviewed by the Alameda County District Attorney?s Of?ce on January 26, 2009. He had a second BART interview . on March 2009 and testi?ed at the criminal Preliminary Hearing on May 27, June 3 and June 4, 2009. On May 19, 2009 and June 23, 2009'Chief Gee sent letters to Officer Pirone alerting him to his possible violations of policy, his potential role as a witness and ordering him to talk to BART's internal affairs investigator Kim Colweli of Meyers Nave. Thereafter, he was interviewed by Kim Colweli on July 10, 2009 as part of the Internal Affairs investigation. He appeared at the offices of Meyers Nave, was given his Miranda rights and a Lybarger Admonition and then chose to speak freely. He was represented by his attorney William Rapoport. His letters from Chief Gee, Lybarger Admonishment and interview transcripts are attached as Exhibit 41. Unlike all of the other of?cers who were interviewed except Officer Domenici, Officer Pirone appeared with his badge prominently displayed on his belt and wearing his firearm. 2. Law Enforcement ExperiencelT raining Officer Pirone has been employed with BART as a police of?cer for four and a half years. He went to the San Jose Evergreen Police Academy and successfully completed the BART Field Training Program. Prior to BART, Of?cer Pirone was in the military police for the US Marines off and on for eleven years. He also CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 71 went through the police academy for the Marines. He had use of force and laws of arrest training in the Marines. but no Taser training. He had Taser training at BART for a total of six hours. He was trained to use a cross draw with his weak hand (IA pg 11). He does not recall receiving any special instructions or training from BART to deal with the New Year?s shift other than to be with a partner. He had worked three prior New Year?s. He has learned about what to expect on New Year?s from talking to other of?cers. He indicated that BART has "very minimal? crowd control training (IA pg 16). 3. Other New Year's Calls Officer Pirone partnered up with Of?cer Domenici at 6:00 pm. on the evening of the incident. Their ?rst call of signi?cance that night was a 10:00 pm. call to stop a fight in the bus zone of the Coliseum Station (IA pg 19). They only had to use verbal presence to stop the dispute. The next call was around 12:15 am. for ?reworks fired at a BART train. They responded to the location and could not con?rm the problem. They returned to the Fruitvale Station (IA pg 2 It was after 1:00 am. and they were standing in the free area of the Fruitvale Station when debarking passengers told them that there was a ?ght up on the platform. They ?ran? up to the platform and there was no one there when they got up there (IA pg 24). Earlier that night they heard calls of people with guns at the Embarcadero and West Oakland Stations (IA pg 26). Of?cer Pirone states that he and Officer Domenici were coming back down from the phantom fight at Fruitvale when they observed a fight between several individuals in the Station. Of?cer Pirone ended up handcuf?ng one of the individuals and taking him to the back of their police car (IA pg 28-30). Pirone began writing up the report and Domenici went over to the Station agent?s booth. At that time he hears a call for ?Boy 10 we have a 242 on the train, ?ve black males wearing black. no weapons seen, lead car? (lA pg 31) (in fact such a dispatch was never made). He immediately tells the Station agent to watch the prisoner in his car and he heads up to the platform (IA pg 31-32). 4. Fruitvale Station Of?cer Pirone goes up the escalator and looks around. He is the only police of?cer on the platform, his partner (Domenici) is downstairs at the booth dealing with something else (BI #1 pg Once on the platform, Of?cer Pirone sees no one behind him and notices a group of individuals in front of him matching the description, plus a female outside the lead car (lA pg 34). In his first BART interview he says he saw males (Bi #1 pg There was nobody coming up or down past him (IA pg 34-35) (Bl #1 pg 5:20). The rest of the platform was empty (IA pg 36)(Bl #1 pg 5:20) (DA pg 5202-205). The platform video shows numerous people on the platform. It shows him walk past a group of African American males making his way towards the front of the train. Officer Pirone begins walking towards the group he sees at the front of the train and he takes out his Taser (IA pg 37). He thinks there is a high probability that someone in this group had a gun (PH V5 pg 73:19- 74:21). He does not call for backup at this time and he doesn?t recall why (DA pg 6262-7269). He sees two people (C-nd Grant) jump back on the train (IA pg 37-38). The three remaining males are walking towards Pirone as if to pass him by on the platform. He does not know what happened to the female (IA pg 40). He stopped the three males and asked them to get against the wall (lA pg 41). They are complaining CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 72 and swearing and he ordered them to sit. He pointed his Taser at them, and then calls for Domenici to come ?Code 98? (IA pg 44-45). Once he showed his Taser, all the individuals went to the wall and sat down (IA pg 45). They were all seated with their buttocks on the ground (IA pg 46~47). It took a minute or two for Domenici to get there after he called for her (IA pg 47). The detainees continued to curse at him but he did not respond (IA pg 48). Of?cer Domenici arrived and Pirone told her to "watch these guys" (IA pg 49). He then looks in the train and sees Oscar Grant walking between cars. He tells him to ?get off the train.? Pirone hit the glass of the train with his hand to get Grant?s attention (IA pg 52). When he didn?t comply he told him to ?get off the, fucking train" (lA pg 50). He then took Grant over to the wall and told him numerous times to ?sit down" and ?sit the fuck down.? He eventually went into a crouch position (IA pg 50-51). Of?cer Pirone then went back to the train to get Mr. He stood at the door of the train and announced himself as the police and ordered G-off. did not come so Pirone holstered his Taser and went into the train car. People parted for him and he ound tanding in the aisle not making contact (IA pg 53-54). When {-Non?t come off Pirone grabs rm and G-pulls away. Pirone then spins him around and grabs him to take him off the train. He marches him across the platform and pushes him towards the wall so that he gets off balance and falls against the wall with his hands out (IA pg 56~57). G-reacted by spinning around towards Pirone and Pirone, ex ecting a punch, takes to the ground (IA pg 59). He then begins the handcuf?ng process of but claims that he kep ooking up at the other detainees and Domenici wherein he observes Grant attacking Domenici pg 60-61). He sees Grant ?hit her arm away" (IA pg 75). (ln?the DA interview he says that Grant hit Domenici?s arm and he heard him say ?No bitch you need to fucking let me go, you ain't shit, you" aren?t- you ain't even a real fucking cop? (DA pg 171736-739). In the second BART interview he says he doesn?t know if Grant made contact with her (BI #2 pg None of this testimony is supported by the video which shows him only looking at f. It also shows that there was no attack or even touching of Domenici by Grant. Of?cer Pirone says he never sees Mr. Grant using his arm to push his friends back from Domenici (IA 78- 79). Again, the video clearly shows this move by Grant. Grant is not seen yelling at Domenici in this section either and she does not say Grant did or said this.) Officer Pirone claims that initially Grant was at the north end of the detainees on the platform and he shifts to the south end (IA pg 65). He then steps over to Grant and Grant attempts to punch him and to kick him in the groin. Pirone thinks ?I?ve got a ?ght now? (IA pg 67). Pirone is able to grab Grant?s arm as he takes a swing at Pirone and pushes Grant against the wall (IA pg 68-69). He then sees and feels Grant kicking at his groin twice and making contact once (IA pg pg He has never been kicked in the groin before while working for BART (PH V5 pg Pirone says he "feel like I?m ?ghting for my life at this (BART #2 pg (None of this appears to have happened during the video sequence of this event.) Officer Pirone then grabs Grant by the back of his head and bends him over at his waist. Pirone then lets go and deploys his Taser pointing towards Grant (lA pg 71). He told him to sit back down and he does (IA pg 71-72). Of?cer Domenici is somewhere behind him at this point (IA pg 72-73). Up to this point he has not radioed for back up (IA pg 74). (He does not put Grant in handcuffs despite the fact Grant just tried to punch him, kicked him in the groin and Pirone felt that he was "?ghting for his life.") CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 73 He then sees Domenici dealing with three other makes and he calls for more officers (IA pg 74-75). Of?cer Pirone sees more of?cers running towards him up the platform. He clearly recalls Mehserle, but isn?t sure about the others (IA pg 81). He then left Mehserle with the detainees and walked to the front of the train to speak to the driver (IA pg 82). He did not know the driver. Of?cer Pirone says he asks the train operator, ?What do you got?" And she says ?those five you?ve got over there were the ?ve causing the problem on my train" (IA pg 83). He then asked her it anyone needed medical attention and she says ally say, they were standing on the seats causing a problem" (lA pg 83). Of?cer Pirone says Ms. maid she saw the ?ve peo le being detained standing on the seats (IA pg 83-84). (In the initial BART interview he says Ms. ?held it was those ?ve that you have and they were just causing a ruckus, ?ghting with somebody on the traininterview he says she said don?t know but they were fighting, they were doing shit on this ah they were doing something on this car that was causing a problem" (DA pg Then in the second BART interview he says she said 'The ?ve that you off-boarded, those were the ones causing a problem on my train." He comments ?Those were her exact (Bl #2 pg In the Preliminary Hearing he testi?ed that he then said to her "What kind of a problem?" and she responded ?I?m not sure. I couldn?t see. Crush load" PH V5 pg 1414-5). He then starts walking back and called in to release the train (IA pg (Ms. categorically denies that this is what she said. She insists she did not know if the people being detained had anything to do with the ?ght. She directly contradicts Of?cer Pirone?s testimony.) Of?cer Pirone hurries back to the detainees, and Mehserle or Guerra asks what he has. Pirone points out G-and Grant and says ?he?s going for 148, he?s going for 148? (IA pg 85). Mehserle and Guerra then handcuff the individual kneeling next to Grant (IA pg 88). Of?cer Pirone then recalls having a conversation with Grant about Grant?s 4 year old daughter and Grant calls him a ?Bitch Ass Nigger." Pirone responds to Grant by stating: ?Bitch Ass Nigger huh?? and that?s when the handcuf?ng starts (then recalls pushing Grant down and trying to hold his right side with his body weight. He has both his knees on Grant?s back or head and Grant wriggles free (IA pg 93). He says he never saw Grant's hands (IA pg 94). In his ?rst BART statement Pirone says that the ?rst time Grant begins to violently resist is when they are attempting to handcuff him (BI #1 pg (Of?cer Pirone leaves out the attempted punch by Grant, the two knee strikes towards his groin the grabbing of Domenici and the rest of the details he comes up with much later after watching the videos of his actions.) Officer Pirone states that Of?cer Mehserle tugs at Grant?s arms and then Grant struggles free of Pirone so Pirone switches sides on Grant?s body (IA pg 94-95). He and Mehserle are both yelling at Grant to get his arms behind his back (IA pg 95-96). They each yelled it at least twice (IA pg 96). Grant started to squirm free so his ?right shoulder" came ?off the ground" (IA pg 96). When this happened Pirone spun his weight around to Grant's other side and forced the right shoulder back down on the ground (IA pg 97-98). Of?cer Pirone ?does not recall" if he's ever had training on how to use his knees and hands to hold someone down. He ?doesn?t know" if it?s improper to put your knee on someone's head to hold them down (IA pg 98-99). He also ?doesn?t know? if his body weight on Mr. Grant may have prevented him from getting CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 74 his hands out (IA pg 100). (Every police offer is trained and retrained in how to use control holds, including knees and hands to hold a struggling suspect down. Additionally, the video clearly shows that Grant?s arms are trapped under him due to the weight applied by Pirone and maybe even Mehserle. When Pirone takes his weight off Grant, Grant immediately puts both hands behind his back for cutting.) After switching position Pirone hears Mehserle yell ?I?m going to Tase him, I?m going to Tase him." Pirone is than waiting for the Taser (IA pg 101). In the DA interview he adds in that Mehserle said "His hands are in his waist band- his hands are in his waist band" (DA pg He then sees Mehserle disappear from his peripheral vision and hears Mehserle in a strange voice say "Tony,- Tony, get back? (IA pg 101). Pirone jumps up and the bang went off (IA pg 101-102). Pirone thought the Taser malfunctioned (IA pg 103). Of?cer Pirone then looked up and saw the gun in Mehserle's hands and an ?Oh shit" look on his face (IA pg 104). He saw Grant trying to get up and told him to lie back down, he then called for code three medical (IA pg 104). He was surprised that Mehserle had shot Grant (lA pg 105). Officer Pirone told Grant to ?relax? and told Mehserle to handcuff Grant because he was still unsearched (IA pg 107). One of the other detainees became very vocal in his protests at that point (IA pg 108). Guerra went for the trauma kit, Grant was unhandcuffed and Pirone held'his hand and talked to him (IA pg 109). Guerra came back and applied pressure and Pirone called for command staff response (IA pg 109). When Pirone was on the radio Mehserle came up to him. After he got off the radio Mehserle said ?Tony, I thought he was going for a gun? (IA pg 112). Pirone then gave the order to clear the platform (IA pg 113). Pirone told Alvarez what had happened and he went downstairs from the platform (IA pg 116-117). He - saw Commander White downstairs and when he went to tell her what had happened she ordered him to go stand by one of the vehicles in the free area (IA pg 117). He then heard from?the individual in the back of the car that he was having an asthma attack and he waited with him until AMR arrived. The individual refused medical treatment and Pirone tried to have him read the form to ?sign, but he said he could not read (IA pg 118). He was then ordered to return to Lake Merritt with Commander White and Officer Domenici (IA pg 120). 4. Post Incident Officer Pirone was placed in a conference room and waited a long time until Jesse Sekhon came in and gave him the LDF number (IA pg 121). He was moved to another office and giVen some food and then asked to write a report by Commander White and Sgt. Fueng (IA pg 122). He was told that he was to write the Crime Report but that they didn?t want him to write it in the system (IA pg 122). They brought him more food and he waited longer (IA pg 123). Hewas then taken into a room with Sgt. Fueng, Det. Enriquez, Det. McNack and his attorney David Mastagni Jr. and he gave a statement (IA pg 124?125). He recalls the interview going for approximately an hour and a half (IA pg 125). He was then allowed to leave. He recalls it was close to noon (lA pg 125). Officer Pirone has not worked since that time. He believes he found out he was on administrative leave from Commander Gibson (lA pg 126). He believes Com. Gibson also offered counseling and then Officer Pirone called the other officers and told them (IA pg 127-1 28). Corn. Gibson asked him to relay the CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 75 information to the other of?cers (IA pg 130). Officers Guerra, Domenici and Knutdson all expressed concern that they were hearing this from Of?cer Pirone and not management (IA pg 135). Officer Pirone told the Commander that the other of?cers should hear it from "someone in the department? too and Gibson said he would ?take care of that? (IA pg 133-134). In the beginning Com. Gibson would call once a week to let Officer Pirone know what was going on. Gibson told him of the accusations in the press and the leaked private information. Of?cer Pirone also asked about the video where he is alleged to have punched Grant because he ?didn?t think it was right that it?s all one sided here? (IA pg 131?132). Of?cer Pirone has also put in for training while on leave and been refused by Lt. Franklin (IA pg 134). 5. Impressions/Conclusions The actions of Officer Pirone started a cascade of events that ultimately led to the shooting of Grant. In this case, Pirone. and Domenici unnecessarily separated from each other minimizing their effectiveness and tactical options. In fact, they were separated from the outset of this incident. Pirone was dealing with a person under the infernce of alcohol while Domenici handled a disturbance at a ticket booth. Both were potentially dangerous situations. Compounding problems, Pirone left a drunken individual in the custody of a Station agent. Had that situation escalated, such as the detainee kicking out car windows or a medical emergency, the Station agent would not have been in a position to properly handle the situation. When the Incident disturbance call was broadcast, Of?cer Pirone abandoned his partner, Of?cer Domenici, rather than remaining with her to act as a cover of?cer and working together as a team. He also did not inform her of what he was doing in responding to the incident call until he was up on the platform. This was a disturbance call and did not warrant such a hurried solo response. Of?cer Pirone invoked concerns over the fact that there were two calls that night where firearms Were believed to have been involved. Yet, Pirone not only confronted a very large crowd by himself, he did so without?his partner. Had Pirone been threatened in anyway, Domenici was not in a position to assist him. Pirone?s false sense of urgency led him to wade into a crowd and confront multiple suspects with a Taser as his primary force option. Officer Pirone reported that he believed there was a possibility someone was armed with a ?rearm, yet opted to deploy the Taser. The adage of ?do not take a knife to a gun?ght" is applicable here. The Taser is not an appropriate force tool when dealing with a potentially lethal encounter. Had Pirone and Domenici responded together and worked as a team, their safety could have been enhanced by one of?cer deploying the Taser and one of?cer acting as lethal cover should a deadly force encounter take place. Officer Domenici reported that upon arriving at the platform, Pirone already had people lined up against a wall. Pirone informed DOmenici that he had to get another person off the train and left Domenici to guard the remaining people. According to Domenici, these detainees would not sit down, and there were people (not known if was the detainees) who were yelling expletives at Domenici. Domenici drew her Taser and pointed the red laser on the detainees. Three of the detainees sat down as directed by Domenici, however, CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 76 according to the Domenici, Oscar Grant did not sit down as directed, but crouched. Pirone left her alone with individuals that Pirone felt were uncooperative and possibly armed. This was not good team work. Although he had a heightened sense of peril through the potential presence of firearms, Pirone did not request additional officers or a backup at that time. When asked why he did not request backup, Pirone stated, do not recall.? When going after Oscar Grant, Of?cer Pirone'says he saw him trying to walk through the interior of the train. Pirone opined that Grant was involved in the disturbance and wanted to detain him. Pirone walked along the train with his Taser extended towards the windows in a very aggressive stance. He then knocked . on the window of the train and motioned for Grant to exit the train. According to Pirone, Grant ultimately complied but this was only after Pirone had to swear at him, using the ?f-word" frequently, in front of a number of passengers. Although it is acknowledged that use of foul language can be a tool at times, Of?cer Pirone was dealing with a large and unruly crowd and likely raised the level of hostility of that crowd by this repeated use of the ?f-word." Oscar Grant was reportedly challenging why he was taken off the train and using profanity towards Pirone. Pirone reported that he placed Grant against the same wall as the other detainees and told him to sit down. Grant partially compiled by squatting or crouching against the wall. Then, leaving Domenici to guard the four suspects, including one whom Pirone described as ?openly hostile,? Pirone off loaded an additional passenger whom he believed was involved in this incident. Again, Pirone admits and numerous witnesses confirm that he used the ?f-wor over and over again. Iv- G-and Pirone then became involved in an altercation which was not captured on video. According to Pirone, NEG-assumed a ?ghting stance. Before C-ould assault Pirone, Pirone threw him to the groun an placed him in handcuffs. Pirone reported at that time, one of the other passengers who was detained (Grant) started ?name-calling? and started to stand up. Pirone reported that he directed Grant to sit down. The videos provide insight as to what took place during that encounter. It appears that during or immediately after the encounter between Pirone and 6- Grant and the other detainees stood up. Domenici can been seen talking to the detainees and trying to control them. According to Pirone, he could see that his partner was ?overwhelmed because now Oscar I think started to, ah after he hit her I don't know if was starting to grab her or do something but his hands were up in the air and I walked over there and grabbed him and I told him, ?Hey, you need to sit down.? And I could tell he was the most aggressive out of the three.? The video, however, shows a completely different story, one of Grant pushing his friends back from Domenici and no touching of her ever taking place. After G-Ivas cuffed by Pirone, Pirone walked directly to Grant. According to Pirone, he ?grabbed him and I tried to control his arms by grabbing each one, pushed him against he wall and at that point he?s he started to, ah he tried to punch he started kneeing me, then he kicked me and that?s when I put up a forearm to, ah to the upper region of his body and I don?t know if I hit him." CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 77 Again the video reveals a different story. Pirone approached Grant, grabbed hold of him and pushed him against the wall. Grant did not appear to assault Domenici. After Pirone pushed Grant against the wall, he appears to have struck him one time in the head or facial area with a fist. Grant partially and then completely sat down. There is no indication that Grant kneed Pirone in the groin as he claims. The video shows Pirone pulling his Taser and pointing it at the remaining suspects and directing them to sit down. As this was occurring, Domenici turned away from her partner to face other persons who were approaching them from behind. Additional BART PD of?cers arrived on the scene. Domenici would never return to her partner?s side. Of?cer Pirone did not attempt to handcuff Grant at this time, despite the fact that he claims that Grant had assaulted him. Although Pirone claimed to have a heightened sense of danger, was outnumbered and was about to confront numerous persons involved in a dispute, Pirone did not request additional police resources to the scene. Pirone stated he ?did not recall? why he made this decision. While this may be true, it is indicative of an of?cer who did not have a heightened sense of danger that he claimed, which challenges his credibility when weighing the reasonableness of his application of force. Further, his actions displayed a lack of objective reasoning. Pirone admittedly off-loaded Grant whom he described as being openly hostile and cussing. Yet, Pirone left his partner alone to control not only Grant, but three other detainees. He unnecessarily placed Domenici in a very precarious position. In his statement, Pirone stated that he could see that his partner was overwhelmed and had been assaulted by Grant. Had that been the case, Pirone should have made an effort to restrain and handcuff Grant, not make him sit-down. Further, the video did not reveal the assault described by Pirone. The tape did not reveal the kicks or other assaults that Pirone alleged were directed at him. When given the opportunity, Pirone did not report that he had struck Grant in the face. Pirone?s statement is self-Serving in that it describes an assault by Grant and then in response, Pirone "may" have hit Grant. The facts are to the contrary. Current BART PD policy General Order? 3.321 requires that officers report force which results in ?considerable physical force.? Considerable physical force is that force which results in apparent physical injury to the person against whom force is directed. Considering the autopsy of Grant revealed that he had sustained "prominent periorbital edema? and a one half inch area of hemorrhage on the left parietal area of the brain, the evidence suggests the fact that Grant may have suffered considerable force at the hands of Pirone. Additionally, Pirone?s use of force did not appear to be an effort to overcome any resistance on the part of Grant. Grant was standing but had made no apparent efforts to strike either Domenici or Pirone. Pirone did not appear to make any professionally accepted effort to verbalize with Grant to cause him to sit down; nor does it appear that Pirone took any other professionally recognized steps to control the volatile and tense situation other than admitting that he told Grant "to sit the fuck down." The evidence presented on the video, as well as the actions of Pirone, compels the conclusion that Pirone used force against Grant as a ?rst resort and even then the use of force by Pirone was not for any of the purposes recognized by the California Penal Code. Consequently, the force did not appear reasonable, justifiable or excusable. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 78 Of?cer Pirone also completely misrepresents what __the train operator, told him. His story of what she said changes and shifts. Her version is more credible. Pirone appears to be changing, shifting and shading the facts to put his actions and conduct in a mere favorable light. Further, Of?cer Pirone admits to using the word ?nigger? while he was detaining Grant. When asked about this in the interview, Pirone admitted to uttering "nigger" in response to the use of the word directed to him by Grant. While there may perhaps be some limited circumstances where an of?cer?s use of a curse word may be understandable, and perhaps even excusable, but in a situation where the utterance of an expletive by a law enforcement person is likely to escalate tensions and exacerbate matters, the expletive must be viewed more critically. From the statements of the witnesses, listening to the audio, and observing the video, there can be no doubt that by the time Pirone directed the offensive word ?nigger? to Grant, the atmosphere on the platform of the Fruitvale Station was highly charged, and it is not unreasonable to characterize the scene as racially charged and very tense. For a white law enforcement of?cer to utter the word ?nigger? to an African American male while detaining him in the tense racial atmosphere at the Fruitvale Station undoubtedly contributed to the escalation of tensions. ?Today it [nigger] remains one of the most racially offensive words in the language.? [The New Oxford American Dictionary, Second Edition, p. 1149.] The use of such a word diminished Of?cer Pirone and the BART PD. Of?cer Pirone?s choice of the word ?nigger" in this instance cannot, and should not, be excused, justi?ed or go unpunished. As other of?cers, including Of?cer Guerra, stood guard over the detainees, Grant can be seen talking on his cell phone. When he concluded the conversation, he pointed in the direction of Pirone. Grant then stood up as Pirone approached Grant and forced him to sit back on the ground. Pirone then struck Grant in the face with his left knee. This action further incited the crowd. Pirone did not follow up or attempt to take Grant into custody at this time by handcuf?ng him. This use of force by Pirone appears to be unprovoked, without justi?cation and unnecessary to the detention of Grant it can be fairly viewed as a punitive action. Pirone did not report in his initial statement that he struck Grant in the face with his knee. Further, Pirone accomplished his apparent intended goal to have Grant sit down. Once down, Pirone kneed Grant in the face. if, as Pirone contends, Grant assaulted his partner and him, the appropriate measures for Pirone to have taken would have been to handcuff Grant, inform him that he is under arrest and prepare to take Grant into custody. Pirone did none of this. In fact, the guarding of?cers did not assist Pirone and instead, engaged in trying to control the actions of other detainees. Pirone disengaged with Grant. but continued an apparent dialog with Grant as he stood over him. The autopsy report revealed that Grant suffered from trauma to his facial area. The investigation leads to the possible conclusion that the injuries to Grant?s face were suffered at the hands of Pirone. Pirone did not report the knee strike during this investigation. Further, the verbal and physical interaction between Grant and Pirone and the lack of any effort by Pirone to take Grant into custody leads to the conclusion that again the use of force against Grant by Pirone was not intended to cause the arrest of Grant, overcome Grant's resistance or prevent Grant from escaping as required by California Penal Code Section 832. Absent those circumstances, it appears that Pirone's use of force was not reasonable and was without justi?cation. Ultimately, Pirone determined that Grant should be arrested for 148 PC. Of?cer Mehserle attempted to force Grant into a prone position. Pirone became involved in the altercation with Grant, ultimately placing his knee on Grant?s neck and head area. Grant turned onto his stomach. Pirone remained kneeling on CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: ?9 Grant?s head and neck area and can been seen on the video placing his full weight on Grant. Pirone remained upright and looked towards the south as Mehserle tussled with Grant?s lower extremities. As related above Pirone denies training on the use of his hands and knees in detaining an individual and denies knowing if his full weight on the head and back of Oscar Grant might have prevented him from extricating his arms. This assertion by Pirone lacks credibility.15 6. Recommendation Of?cer Pirone's overly aggressive and unreasonable actions and conduct in violation of policy and acceptable standards, contributed substantially to the escalation of the hostile and volatile atmosphere during the course of the incident. Pirone was, in large part, responsible for setting the events in motion that created a chaotic and tense situation on the platform, setting the stage, even if inadvertent, for the shooting of Oscar Grant. Pirone's repeated, unreasonable and unnecessary use of force; his willful and reckless conduct that endangered the safety of the public and his fellow officers; his failure to be forthcoming about the true events: his changing and shifting stories; his manifest lack of veracity; his professionally inappropriate demeanor; his use of a racially offensive word; and his excessive use of expletives, warrant a recommendation that Of?cer Pirone be terminated from his employment with BART. Many of Pirone's actions, each standing alone, separately and independently, are of such a serious nature that termination is warranted. Specifically: . Creating a chaotic and hostile atmosphere on the BART platform through his inappropriate language and demeanor; Repeated excessive and unwarranted use of force on Oscar Grant; Untruthfutness about Grant?s actions in allegedly assaulting him; Repeated use of inappropriate language, including use of the ?f-word? and the ?n?word?; Untruthfulness in describing his own actions; andlor Untruthfulness in describing the train operator?s statements. BART's "Positive Discipline Guideline? Operational Directive No. 77 provides that "termination may occur in those few instances where a single offense is so severe that the application of the Positive Discipline system is unwarranted or inappropriate." The severity of Plrone's conduct during the course of the incident and post incident demonstrate behavior and conduct that is unacceptable and contrary to the standards expected of a police officer. As such, termination is clearly warranted pursuant to Operational Directive No. 77 8, 10 and/or 15 (see also, Empioyee Relations Guideline As noted above, there are numerous separate and independent reasons that warrant a recommendation of termination, each standing alone. 15 A comprehensive analysis of Officer Pirone?s narratives and contradictions, prepared by Dr. Timothy Armistead, is attached as Exhibit 42. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 80 7. Findings General Order No. Ill, General Duty Regulations - SUSTAINED General Order No. V, Weapons and Use Of Force - SUSTAINED Operational Directive No 27, Code of Professional Conduct and Responsibilities for Peace Officers - SUSTAINED Operational Directive No 44, Processing and Handling Arrestees - SUSTAINED Operational Directive No 70, Delay of Revenue Trains - EXONERATED Operational Directive No 74, Lethal Force/Incidents Resulting in Death or Great Bodily Injury UNFOUNDED Operational Directive No 75, Use of Lethal Force- UNFOUNDED Bulletin No 08-07, Taser Less?Lethal Weapon Policy - SUSTAINED F. BART POLICE OFFICER JON WOFFINDEN 1. Background Jon Woffinden was not interviewed by BART on the night of the incident, but asked to do a police report instead. He was thereafter interviewed by the Alameda County District Attorneys Office on January 20, 2009 as part of the criminal investigation into the shooting. He testified at the criminal Preliminary Hearing on May 20 and May 26, 2009. On May 19, 2009 and June 23, 2009 Chief Gee sent letters to Officer Woffinden alerting him to his possible violations of policy, his potential role as a witness and ordering him to talk to investigator Kim Colwell. Thereafter he was interviewed by Kim Colwell of Meyers ?Nave on July 7, 2009 as part of the Internal Affairs Investigation. He appeared at the of?ces of Meyers Nave, was given his Miranda rights and a Lybarger Admonition and then chose to speak freely. He was represented by his attorney Alison Berry Wilkinson. His letters from Chief Gee, Lybarger Admonishment and interview transcripts are attached as Exhibit 43. 2. Law Enforcement Experience/T raining 7 Of?cer Wof?nden has been a BART Police officer for'two years. Before that he was a police officer with the City of Pleasanton for eight years and was with the City of Moraga for the eighteen months before that. He completed the police academy at Los Medanos College. After coming to BART Officer Woffinden was placed in a Field Training Program for approximately 12 weeks and then took up duties as a regular of?cer. He had worked the 2008 New Year's schedule on BART. He describes that event as ?chaotic? with people ?drunk and violent? (IA page 6). Other than increased staf?ng and partnering, Officer Woffinden describes an absence of training or planning by BART to prepare the officers for the New Year's 2009 event. He says the alerts were mostly from of?cers talking among themselves about what kinds of things happened at BART on New Year?s. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 81 3. Other New Year?s Calls Of?cer Woffinden was partnered with Of?cer Mehserle. They teamed up at 8:00 pm. at Lake Merritt headquarters. The ?rst call of signi?cance that they responded to was for an individual with a gun at the West Oakland Station. The suspect jumped off the platform and Of?cers Wof?nden and Mehserle arrived just after the suspect hit the ground. They and a few other of?cers responded to the location of the suspect. Of?cer Wof?nden helped hold the suspect down until they could search him and have a medical team look at him. Officer Wof?nden saw them recover a gun, drugs and cash from the suspect. Just after making that observation they had to leave to respond to the Fruitvale call. 4. Fruitvale Station Officer Wof?nden recalls the radio broadcast as saying there was a ?ght on the train or in the Station. He does not recall hearing any description and did not know what officers were already there (IA pg 13-14). When they responded Officer Wof?nden recalls that he was thinking about the gun recovered" at West Oakland and about an earlier call for a suspect with a gun at Embarcadero. He believed this was the same train running from Embarcadero to West Oakland and then Fruitvale. (We now know this is not the case, it was a different train.) Of?cer Wof?nden believes they were at West Oakland for 4-5 minutes and then it took them 5-6 minutes to get to Fruitvale. During the drive they heard calls coming from the of?cers with a ?lot of yelling and screaming in the background? (PH V2 pg 105). They parked in the bus zone and the Station agent pointed them to the platform where the incident was occurring. He and Of?cer Mehserle went up the steps one behind the other (IA pg 16-17). He was scared as he went up the stairs (DA pg 18). Prior to climbing the stairs he could hear yelling and screaming over the radio coming from Fruitvale. Once at the top of the stairs he observed Of?cer Domenici standing watch over 4-5 people sitting on the ground (DA pg 9). He also recalls Officer Pirone standing over the individuals with Domenici (DA pg 10). The detainees were all sitting at that time (PH V2 pg 139). He then looked back over his shoulder and saw another 4-5 black males, in their 20?s, yelling and screaming (IA pg 18). He did not know if they were yelling at the of?cers, the detainees or someone else (PH V2 pg 107). He assumed the group seated in front of Officer Domenici were involved. He didn?t know the relationship of the other individuals. He believed the group of 4-5 standing were slowly walking towards Officers Domenici and Pirone and so he pulled out his baton and placed himself between them, forming a ?scrimmage line" (IA pg 21). He held his baton under his arm at ?low ready? (IA pg 24). These individuals exhibited aggressive behavior towards Wof?nden, including ?stiff arms" and ?clenched ?sts? (IA pg 74). One of that group took a bladed stance, but he doesn?t recall which one, although it wasn?t Anicete (IA pg 75). Of?cer Woffinden stood with his back to the seated detainees who he estimates were about 010 feet away. The others in front of him went back and forth between 2-5 feet (IA pg 26). He told them to ?back up" and then to "back the fuck up.? Neither command worked (IA pg 26) (PH V2 pg 113). This scared him (DA pg 18). However none of the males in front of him ever advanced past him. Of?cer Wof?nden heard yelling and swearing coming from all around him during the incident. He could also hear Officers Pirone and Mehserle CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 82 behind him both shouting commands at the detainees (PH V2 pg 158) (PH V3 pg 29). They were shouting at the detainees to ?Get down and shut up29). While he established the perimeter Of?cer Wof?nden would look back over his shoulder to check on Pirone and Mehserle who were dealing with the detainees. Occasionally he would see a couple of the detainees trying to get up from the seated position on the ground (IA pg 27-28). Although he saw the detainees trying help Mehserle and Pirone because he was concerned about the people in front of him. At one point Of?cer Wof?nden described ?3-400? people on the platform in front of him ?yelling, screaming and taunting" (IA pg 28). When pressed, Of?cer Woffinden acknowledges he?s ?seen the videos" and knows there were probably not that many but more like "a hundred to two hundred maybe" (IA pg 29). (This is not accurate either when the video is compared to his testimony). Also at the Preliminary Hearing he acknowledged that the great number of people weren't threatening him, only the 4-5 in front of him (PH V2 pg 140). At some point during this and before the shot was ?red he radioed for more of?cers because he thought they were losing control (IA pg 30). He thought that they would need 20-30 more of?cers to keep control (PH V2 pg 162). In the DA interview he stated that he called for backup as soon as he established the perimeter (DA pg 10). It was too loud for him to hear any response on his radio (IA pg 31). Also during this time he recalls Of?cer Domenici going back and forth between Wof?nden and the Detainees (IA pg 31). She had her Taser out112). When she was near Wof?nden she was about 4-5 feet from his right side facing the train (IA pg 32). Of?cer Woffinden continued to maintain the perimeter, however, at that time people began to throw things at him including paper and a cell phone that smashed against a pillar. He had to duck out of the way of the cell phone (IA pg 37 . He thinks an individual in a gray coat threw the cell phone (IA pg 38). He appears to be describing At this time he moved his baton from a low ready into a striking position. He felt at that time that ?a baton strike was imminent142). Moving the baton to the high ready position seemed to stop the people in front of him from advancing (PH V2 pg 133). He then saw the person who he thought threw the phone get taken down by Of?cer Knudson (IA pg 39). This happened 3-4 feet in front of Woffinden (IA pg 41). Pirone and the detainees are 10-15 feet behind Wof?nden (IA pg 42). He holsters his baton to assist Knudson with the handcuf?ng. The cuf?ng took 1-2 seconds (IA pg 44). He also recalls looking back over his shoulder while holding the perimeter and seeing ?all" of the detainees trying to get up several times. He could see that they were told to sit or put back down by of?cers Pirone and Mehserle (PH V2 pg 163) (PH V3 pg 29). During the take down he hears a ?popping noise? that he thinks is a Taser going off behind him. And then he hears people yelling that ?They shot him, they fucking shot him? (IA pg 33). He looked back and saw Oscar Grant with blood coming from his mouth (IA pg 33). When he looked back after the shot he could see the back of Mehserle who appeared to be struggling with Grant?s hands (IA pg 34-35) (DA pg 12). CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 33 After the shot and the cutting that Wof?nden does simultaneously with Knudsen, Wof?nden goes to deal with aloud individual who was sitting on the bench just to the north of Oscar Grant. He had to tell him to be quite so that they could hear their radios to get aid for Mr. Grant (IA 45-46). At the bench dealing with the loud individual. Officer Mehserle walks up and he has "thousands of beads of sweat on his forehead. He face was flush and his eyes were as big as saucers" (lA pg 48). Of?cer Wof?nden told Mehserle to "take a walk" (lA pg 48). In the DA interview Of?cer Woffinden testi?ed that he also asked Of?cer Mehserle if he was to which Mehserle replied in the affirmative (DA pg 12). However. at the Preliminary Hearing he was asked if Mehserle said anything to him and he responded "No? (PH V2 pg 121). Mehserie then walked away. Wof?nden talked to him the next night to check on his new baby, but nothing beyond that (IA pg 50). It all ?was so fast" (DA pg 13). Officer Wof?nden saw Of?cer Guerra holding a gauze on Mr. Grant's back. Wof?nden then takes the person from the bench downstairs with Of?cer Flores (IA pg 52). The individual was then placed in the back of a patrol car (IA 53). He then went to tape off the Station and told Of?cer Flores to start a crime scene log (IA pg 53). 5. Post Incident Of?cer Woffinden was then taken back to Lake Merritt by a sergeant and rode with Officer Guerra. They did not discuss the incident (IA pg 55). He was seated in a conference room and Officer Tom Smith came to him to give him the number for LDF. He called them and was told they were already aware of the situation (lA pg 55). He was left mostly alone but at one point Officer Lori Bush came to give him some food from the dispatch centers New Year?s party (lA pg 57). At about Tz30-Eizi3tl am. the Chief stopped by to say "good night, good job" (IA pg At about 59:00 am. Tom Smith told him to write a statement "not a police report" about what had occurred in "word perfec and they would put it on a thumb drive which Sgt. Fueng said would be available to him. it was never made available (lA pg 58). Tom Smith proof read the statement. He was never asked to give an oral statement that night or at any time (IA pg 59). He was then allowed to leave at about 11-12200 pm. (lA pg 60). Officer Wof?nden was fist offered counseling by Of?cer Pirone in the week or two a?er the incident (IA pg 60-61). He thinks this and other things about the way he was treated were mishandled. He knows from his experience that after the incident he should have been sequestered. Should have been offered food and possibly a change of clothes. Offered to make calls to his wife. Offered counseling. Had a statement taken and been given a ride home (IA pg 61). None of this happened (IA pg 61). He went back to work for a few days after the incident. He then got a call from Commander Gibson telling him ?that for your own safety we?re putting you on administrative leave" (IA pg 63-64). Commander Gibson called him and left messages for two or three weeks then stopped. The only other contact he had was unof?cial calls from his friends at BART to see how he was doing (IA pg. 65). CONFIDENTIAL COMMUNICATION Date: July 31,2009 Page: 84 He also got a call after the incident from Sgt. Fueng who told him they were having a private conversation about Mehserle, but Of?cer Wof?nden could hear that they were on the speaker phone (lA pg 66?67). 6. Impressions/Conclusions Officer Wof?nden is a seasoned police of?cer who responded to a chaotic scene on the night of the incident. He consistently used good police tactics such as acting as a cover offer and establishing a perimeter for of?cer safety. He used his radio to call for backup and generally did his job well. If fault can be found with his conduct it is in the few inconstancies between his numerous statements, such as the varying testimony he gives on what, if anything Pirone and Mehserle said at times. These inconsistencies do not seem to belie a lack of truthfulness on his part, but they do suggest he may tailor his testimony to the best effect. This interviewer also felt he had a slight tendency towards exaggeration, such as indicating there were 300-400 people yelling and screaming and taunting him (he later admitted that he was threatened by only 4-5 people). That said, there is no doubt that Officer Wof?nden acted in an appropriate manner in handling himself during this stressful incident. Even his use of swear words, although not technically in policy were used in a manner consistent with law enforcement standards in situations where normal commands get no response. 7. Recommendation There is no discipline recommended for Officer Woffinden. 8. Findings General Order No. General Duty Regulations - EXONERATED General Order No. V, Weapons and Use of Force - EXONERATED Operational Directive No 27, Code of ProfessiOnal Conduct and Responsibilities for Peace Of?cers - EXONERATED Operational Directive No 44, Processing and Handling Arrestees - EXONERATED Operational Directive No 70, Delay of Revenue Trains - EXONERATED Operational Directive No 74, Lethal Force/Incidents Resulting in Death or Great Bodily injury UNFOUNDED Operational Directive No 75, Use of Lethal Force - UNFOUNDED Bulletin No 08-07, Taser Less-Lethal Weapon Policy - UNFOUNDED . IMPROVEMENTS The overall review of the of?cers? action on the platform and the follow up with both the officers and the detainees revealed a number of areas within the BART Police Department as a whole that can be improved. A summary of each of those areas and recommendations particular to each follows. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 85 XIV. POLICIESIGENERAL ORDERS In order to determine what, if any, polices may have been violated during the police response to this incident it became necessary to review the BART Policy Manual (which contained polices, general orders, standard operating procedures-and the ?re manual), Although we were not asked to comment on the policy manual in detail, we were asked to point out any problems we might perceive during our review. There are several problems with the policy manual. First, despite the fact that it says on its cover that it was updated in January of 2008, there are many . polices in the manual that are not updated.16 We located policies from the late 19705, 1980?s and 1990?s. Many of the policies have the signature of the Chief prior to Chief Gee displayed on the front, Chief H. E. Taylor. The manual as a whole needs a complete review and? all of the policies should be updated at least on an annual basis. It should be kept in mind that this is a document that the BART Police officers should be trained on, receive updates to and to use as a reference to guide them in their daily activities. XV. TRAIN TACTICS BART PD Operational Directive No. 67, dated April 18, 1986, outlines the basic tactics to be used when searching a train. The protocols, if followed, allow for a methodical, well thought out plan as to how to handle a hazardous situation on a train. The protocols outlined in the directive were not followed in this incident. The protocols delineate ?Hazardous Train Searches? from ?Non-Hazardous Train Searches." The subject incident can best be described as a hazardous situation: large crowds, multiple combatants, etc. BART PD protocols state: . Responding of?cers should be provided with ?all? available information about the call. 0 At least three of?cers should be dispatched to the scene when possible and outside agencies should be used if necessary. . Of?cers should use available cover or concealment whenever possible, work as a team to disembark patrons, maintain Station perimeter, etc. . Search the train using a ?leap frog" tactic from door to door working as a team. For unexplained reasons, these common sense protocols were ignored. These basic tactics should be reinforced with all BART PD of?cers and'practiced and re?ned routinely. XVI. TEAMWORK, SEPARATION AND CONTACT - COVER The tactical concepts of "work as a team,? ?stay together? and ?contact cover? are well known to law enforcement. Yet, there was minimal evidence of these concepts being applied during this scenario: Pirone and Domenici worked independently of each other, thus, reducing their potential effectiveness and increasing their risk of being assaulted. While the environment of an incident can well cause officers to want to ?rush" though the incident, police work is best done when working together as a team in a 15 The index to the Operational Directives with dates of update is attached as Exhibit 44. CONFIDENTIAL Date: July 31, 2009 Page: 86 methodical fashion. Pirone and Domenici should have confronted a limited number of suspects, worked as a team, with one officer covering while the other searched and/or handcuffed the individual. When other BART personnel arrived on scene, the methodical approach of contact/cover was still not used. There were at least four, possibly more, detained persons, none of whom were searched. A more effective tactic is to line up all detainees facing away from the officers. While one or more officers guard the detainees, one of?cer pulls one detainee to the rear of the other detainees and completes a thorough search. The searching of?cer then goes down the line searching each detainee in a slow, methodical manner. While this tactic takes more time, it ensures a high degree of coordination and slows the tactical event down to assert control. Further, during this incident, the actions of most BART PD of?cers on scene appeared to be undefended and not in keeping with best practices of working as a team or contact-cover. Officers separated from each other, multiple of?cers attempted to search or control suspects, etc. The more chaotic the situation, the more ?nely controlled police tactics have to be practiced. XVII. TACTICAL COMMUNICATION AND LEADERSHIP The video of this incident was most telling about the lack of leadership and communication within BART PD. No one appeared to be in charge of the incident. Pirone, who is a SWAT member and was the first senior officer on-scene engaged in altercations, verbal exchanges, and arrest situations when he should have been the incident commander. Instead of antagonizing the situation, he should have calmed it by asserting command and control. He should have directed the activities of responding officers. He should not have been engaged with any detainee once other officers arrived'on scene. We reviewed no BART PD documents that addressed command and control issues. In this case, on-scene command and control by a supervisor or senior of?cer at the scene would have slowed down the scenario, provided of?cers with direction, forced of?cers to work as a team and limited force used. Further, it would have communicated to the detainees and the witnessing passengers that the BART PD was well in charge of the incident. Instead, the lack of command and control communicated there was no control. BART PD should develop and publish a policy?level document that outlines department expectations that supervisors and senior of?cers assert command and control over a situation as a primary responsibility. Policy documents should be developed to institutionalize the four of tactical leadership. Once command is established and asserted, the leader must . Assess: Determine what is happening, tactical resources needed, potential threats, etc. . Announce: Request additional resources. Provide a mental image of what is occurring and also provide direction to responding personnel. . Assemble: Take command of the personnel on scene. Provide direction upon assemblage. . Act: Enact the plan. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 87 TASER POLICY AND PROTOCOLS It is noted that the BART PD policy and training, although POST approved, allows officers to carry the Taser on the strong side of the belt so long as the Taser is positioned for a cross draw with the off (weak) hand.17 Although POST allows this method of carrying the Taser, having two similar feeling weapons, the Taser and the ?rearm, in close proximity is the less favored method in nation-wide best practices. Given all the confusion by the of?cers In this case about how to handle the Taser (both Pirone and Demenici changed hands after drawing the Taser; Flores didn't know how to draw it or store it very well and Mehserle says he intended to use the Taser not his firearm), BART PD should consider requiring a cross draw with the strong hand or a weak hand/weak side carry only for deployment. Industry experts opine that this will help prevent inadvertent deployment of the Taser when deadly force is intended and vice versa. In examining some of the video, it was noted that the laser on the Taser was often pointed in unsafe directions, such as Officer Flores pointing the laser light of his Taser directly at Of?cer Knutdson. The safety rules for firearms also apply to Tasers and must be followed. It is further noted that there were several instances reported in other unrelated police reports examined where BART PD officers, including Of?cer Pirone, deployed the Taser when they believe suspects may potentially be in possession of deadly weapons. The Taser is not a substitute for deadly force. If deadly resistance is anticipated, then the ?rearm should be deployed. If less than deadly resistance is anticipated, then the Taser may be deployed. The BART PD policy should be updated to reflect this enhancement. Further, these actions were reported in prior arrest reports, yet apparently not caught or commented upon by BART PD management. Arrest reports, particularly when force or threatened force is used, are a very useful tool to adjust and enhance tactics and manage risk. That was not achieved in this case. In the future, arrest reports should be more closely scrutinized. We recommend that all BART of?cers receive additional training In the use of the Taser. Further, the training should include the concept of the ?combative suspect control team.? Under this tactical scheme, officers confronting a hostile person use a team approach when possible to handle that incident. Under the direction of a team leader, usually a sergeant, each of?cer deploys a different force option, such as a Taser, beanbag shotgun, deadly force and an arrest team. The officers then coordinate actions, using different force tools, to control the subject. XIX. INTEGRATION OF TACTICAL CONCEPTS The above tactical concepts are not stand alone recommendations. They must be integrated with each other to properly enhance the training of BART PD of?cers. For instance, officers should approach a scenario on a train by applying the four and not by becoming involved in separate incidents. If they 17 The policy itself appears to be copied directly from the Lexipol Service. No other policy appears to be In that format. It is unknown If BART PD has purchased the Lexipol policies, and if so, why other updates were not used. The policy itself is also a copy and thus does not appear to be tailored speci?cally to BART PD (see Exhibit 8). CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 88 confront multiple suspects, then additional resources should be immediately requested. While awaiting those resources, the of?cers should work as a team and remain in a position of advantage. When other resources arrive, one of?cer must assume the role of the incident commander, and direct the responding of?cers to take various actions such as search suspects, locate witnesses, etc. Additionally, the detention, search and ultimately the arrests of the suspects must be achieved in a methodical ways previously described. Furthermore the Taser is only a singular force option that should be integrated into the tactical mesh of the operation. It is not a stand alone force tool. It is part of the smorgasbord of force options that should be available to the officers confronting the suspects. BART PD should be trained in the combative suspect control team concept, again establishing on-scene command and control. This scenario will provide BART PD of?cers With tactical skills to deal with violent and aggressive subjects, and also to slow the tactical scenariodown to assert command and control over it. XX. COMMUNICATIONS AND SUPERVISORY RESPONSE Communications failures were prominent during this incident. The information provided by the train operator provided little insight to the responding of?cers. In effect, Pirone and Domenici responded to the call of a disturbance without having a firm picture of what was taking place. Based on the radio traf?c and the interviews it remains unclear if the right persons were detained, and in any event the officers had to determine that during very difficult circumstances. Further, BART PD dispatch should insist on obtaining additional information to provide responding of?cers With more information to better plan tactical responses. This incident was examined for not only what occurred but for what did not occur. It is noted that in spite of the rapidly escalating nature of this situation that was evident on the radio, there were no BART PD supervisors on scene. In this case, Central Dispatch learned that Oakland Police were needed as did other responding BART PD officers. The escalation of the incident should have prompted a response by supervision to assume command and control of this situation. BART PD provided no documentation that spoke to the expectations of supervision to establish on-scene command and control of such incidents. Plainly put, the expectation of supervision must be that they respond to tactical events, assume command of those events and assert ?eld level control. In this case, a competent supervisor would have proven invaluable in controlling the scene, managing resources, directing the force actions by officers, etc. Instead, the situation had no apparent leadership. Senior BART PD staff must communicate the expectation of ?eld level supervision asserting command and control of the tactical situation. XXI. USE OF FORCE REPORTING The institutional practices of reporting use of force incidents within BART PD are substandard. Current policy only requires officers to report to a supervisor when they use force only in those circumstances where signi?cant force was used. That policy allows for officers to immediately report the use of force or if necessary, report it before the end of watch. In practice, it allows officers to wait to report the force after the salient witnesses have left the scene. Further, there is no mandated commentary about the actions of field supervisors at the scene of a use of force incident. . CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 89 This presents many problems. First, the definition of use of force must be enhanced to include the type of force applied by the officer, not the expected outcome. Personnel complaints emanating from use of force incidents not related to this Incident were part of the materials reviewed. In two of those cases, the subject of the force suffered some sort of minor facial injuries, yet the complaints were not sustained and no further actions were taken by BART PD management. There was evidence in both cases to prove there was force used and not reported. These investigations were missed risk management opportunities. This use of force reporting protocol tacitly allows of?cers to use force and not report it. Pirone's actions on the night of this incident are most likely a direct outcropping of this policy failure. It appears from the record that Pirone did not intend to report the force he used on this evening and did not intend to arrest Grant for the so called ?assault? on Domenici. The reporting policies and protocols by BART PD laid the framework for this kind of policing. One of the use of force incidents examined involved the complainant being forcefully thrown to the ground by the officer. The suspect admitted to attempting to choke the officer and alleged that he too, was choked by the officer. The accused officer admitted to throwing the complainant to the ground, but ultimately only wrote the complainant a ticket. The personnel complaint adjudication made no ?nding about the lack of reporting of the force or even recognized the risk management implications. Further, a suspect attempted to choke a police of?cer, yet was not-arrested for this felony crime. Management appears to have read this report and not recognize any issues with it including unreported use of force, failure to arrest for a felony, etc. Uses of force must be investigated more thoroughly. When a use of force incident occurs, a supervisor should respond and conduct an immediate on-scene investigation. The scene should be canvaSsed for witnesses and evidence, such as video. Further, if a supervisor is there during a use of force incident, the actions of the supervisor should also be subject to review. The BART PD limits its use of force findings to justifiable and notjustifiable. It is not known when the last unjusti?able use of force occurred within BART PD, however, the force used is only part of the equation. The tactics leading up to, during and after the use of force incident are critical to the evolution of the incident itself. The tactics of the involved of?cer often have a direct impact on the outcome or even the decision to use force. Those tactics should be reviewed and commented upon in every use of force incident. FUrther, the quality of the police report of the use of force as well as the Constitutional implications should be addressed in each use of force. The evidence obtained during the use of force investigation then, becomes a biopsy and opportunity for improvement by the BART PD. Further, a more robust investigation and examination of the tactics, reporting and use of force will provide the community with a greater sense of comfort that BART PD is using reasonable force. In every case, the use of force incident should be debriefed with the involved officers. In cases where of?cers were deficient, the BART PD must make a decision to either remediate and retrain the officer or discharge the officer. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 90 Use of force incidents should be used as a biopsy of the operations of the BART PD and serve as a barometer to the Chief of Police on the condition of the agency. The limited reporting requirements of the BART PD provide the Chief of Police with very little information about what is happening in the field. The Chief of Police should review and approve all use of force incidents generated by BART PD. XXII. DEADLY FORCE INVESTIGATIONS It is understood that BART PD has had very few deadly force situations in its history. Because of that, there were some decisions made that could be improved upon in the future. Specifically, Of?cer Mehserle was not interviewed prior to ending his workday. In spite of the fact that he was tired and had worked all night, he should have been given the LybargerAdmonition, allowed access to counsel, and ordered to make a statement, however minimal, to define the parameters of the anticipated administrative investigation. Because he was not required to provide a statement, this investigation was unable to de?nitively determine if his shooting of Grant was an intentional discharge of his ?rearm in the belief that a deadly force situation was present or an unintentional pulling of the ?rearm when a Taser was the intended tool. Further, this investigation noted that Mehserle was allowed to view a video tape of this incident prior to being interviewed. This practice is not recommended. The intent of the use of force investigation is to determine the shooting? of?cer?s perception (state of mind) relative to use of deadly force. Once a video tape is introduced and viewed, it is not known if the officer will provide their perception of the incident or unintentionally ?ll in gaps in their memory using the video and a provide inaccurate accounting of the incident or fabricate a story to match the circumstances. Some other percipient witness of?cers were not interviewed on the night of the incident. Those of?cers too should have been given the Lybarger Admonition, afforded the right'to a legal representative and interviewed to define their roles in the events of the incident. The implications of being involved in a deadly force incident are profound. It is understood that of?cers involved in a deadly force situation will have a very fragmented and oftentimes very narrow memory of the incident. An effective investigation will make sense of that memory. Allowing involved of?cers to view video prior to an interview allows them to either subconsciously fill in the blanks where there are no memories of the incident or preplan for alibis for substandard conduct. Either way, allowing officers to view video of the event prior to the interview erodes the public's faith in the process and unnecessarily impacts the investigation. Many of the involved of?cers also indicated they were not informed of their right to counsel, or in one case strongly discouraged from getting an attorney as it "would make matters worse." BART PD officers should not be discouraged from consulting with counsel and command staff should never indicate that asserting the right to counsel will have detrimental effects for the of?cer. This is a practice that must change immediately. Also of note is the fact that Pirone did not report his use of force during the interview, nor. did other of?cers report that they observed force. Because current BART PD policy is only concerned with judging the use of force, specifically, substantial force, the other actions of the involved officers were. not adequately probed. Once tactics, supervisory actions, and lawfulness of the encounter are added to the adjudication scheme, these issues will become apparent. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 91 Further, the interviews of the involved officers were con?ned, by both BART PD as well as other interviewers, to the use of force. in many cases, interviewers interrupted the of?cer, asked leading questions, or otherwise did not probe the actions of the of?cers. The interviews were inadequate on the whole. The interviews of involved officers shouid probe their actions, from start to ?nish, and require the reporting of use of force or any misconduct they witness. Similarly the interviews of the witnesses, detainees, train Operator and the like were deficient. Again the interviews were too con?ned in their area of review. They also frequently used leading questions instead of letting the person ?tell their story" and then going back to clarify all the issues. A training of all investigating of?cers in investigations and critical incident investigation is strongly suggested. It was also noted that BART PD requested a peer support person to attend Mehserle only to have that support officer questioned by the Alameda County District Attorney's Of?ce. While the practice of questioning a peer member may be lawful, it is not recommended. in most cases, of?cers deploy deadly force under circumstances when they are in imminent danger of death themselves. Deadly force encounters are exceptionally emotional and dif?cult times for of?cers. Support of?cers as well as involved officers should be aware that their relationship is not one with legal communications priviiege. Their communications, even spontaneous utterances by the involved of?cer may be questioned later. if BART PD believes that peer support of?cers are absolutely necessary, those support of?cers should be minimally trained to advise the involved of?cer to not attempt to discuss the incident. Further, support of?cers should not be required to reveal conversations made during administrative investigations. If no agreements can be made relative to support of?cers, then the practice should be discontinued. Additionally, in instances where an officer uses deadly force against a suspect and the suspect dies or has a chance of dying, that of?cer should be mandatorily referred to a Mandatory referral with remove the stigma of ?going to the shrink? and become an accepted practice. All of the of?cers relate stories of offers of counseling being delayed, deferred to others to communicate, or just not happening. This is an unacceptable practice. BART PD should mandate that the involved officer as well as affected percipient witness of?cers be provided counseling within 48 hours of the incident. Finaliy, the selection to head the internal Affairs investigation was unsuitable, as the individual did not have the level of experience needed for this kind of review. Although the Lieutenant selected is an intelligent, dedicated and hard working individual, he was not quali?ed to take the helm of an lntemal Affairs Investigation of this magnitude on January 1, 2009. At the time of his assignment he was still a Patrol Watch Commander with an upcoming transfer to internal Affairs. Prior to January 2009 he had only done a few small internal Affairs investigations as part of BART's standard supervisor training. He had attended a POST certified IA school in 1998 or 1999, however, a decade had passed between then and the major incident in this case. Command staff should have selected a more experienced individual to head the Internal Affairs investigation in this case. DUTY TO REPORT it is noted that although Officer Pirone struck Mr. Grant more than once, those actions were not reported by Domenici, Guerra, Pirone or any other of?cer. While the confined de?nition of a reportable use of force may have contributed to this, the fact is that a punch or strike is signi?cant. These facts were not CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 92 disclosed during initial questioning or in statements by the of?cers. BART PD policy should be amended to specifically include a statement that of?cers have a duty to report all pertinent facts known to them, including potential uses of force by their peers. Further, failure to report misconduct should itself be viewed as serious misconduct by BART PD. XXIV. PERSONNEL COMPLAINT INVESTIGATIONS The personnel complaints that were examined were of concern. As previously mentioned, there were at least two separate incidents where complaints alleged of?cers unnecessarily used force on them. While this is not uncommon, it should be noted that in both instances,'the complainant had visible injuries to their faces. In both cases the officers admitted to using force, but because of the con?ned de?nition of . reportable use of force, no actions were taken. Hence, there were at least two incidents where members of the public were subjected to some sort of force by officers and little or no on-scene investigation took place, and the personnel complaint missed the opportunity to identify this as a possible problem. The conduct of use force investigations and personnel complaint investigations by BART PD may have contributed to the Grant Incident. Had officers on the scene of the Grant incident known that BART PD would relentlessly investigate use of'force incidents, including pulling of video and canvassing the scene, it is doubtful that people would have been punched or kicked when it did not appear reasonable to do so. There was no rigorous institutional reporting mechanism to require reporting and'of?cers were left to their own devices and reporting thresholds. And, there were no consequences for under-reporting the use of force incident. Personnel complaints should be used as a risk management tool to not only examine the actions of the officers, but the policies of the BART PD. The few complaints examined clearly exposed a system where a community member could be injured, reasonably or unreasonably, yet it appears that no supervisory intervention was taken and no analysis was done to determine how to prevent such recurrences. If this is true then this must be changed. Further, the pattern of conduct by police officers should be examined in the adjudication of the personnel complaint. Officers? conduct over a period of time will provide the BART PD with a very strong sense of training needs and possibly, the decision to retain an employee. XXV. TRANSPARENCY AND ACCOUNTABILITY The reporting requirements and quality of the reports by BART PD with respect to force and misconduct do not invite transparency. An independent evaluator would have noticed these de?ciencies and changes could have been made before this incident occurred. The lack of signi?cant reporting of use of force incidents, lack of critical analysis in personnel complaints, limited reporting requirements, no on-scene investigations, etc. contributed to the events on the morning of January 1, 2009. Best practices require other actions.? BART should consider retaining a reputable auditing or oversight ?rm, with experience in police matters, to conduct on?going meaningful audits and evaluations of BART PD. These audits and reports should be considered to be made available to the public. CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 93 The greater the degree of transparency by BART PD, the better the agency will become. External audits and the responses to those audits are the basis for steady improvement that all police agencies desire. While the process is often dif?cult and burdensome, the fruit of such efforts will be worth it. The public will have a greater sense of comfort in the BART PD and the agency will constantly evolve towards excellence. lf BART opts to develop a review committee to oversee BART PD policy, the committee must be highly versed in police issues and be as free from political interference as is reasonably possible. Such committees should be fully versed in use of force issues such as Graham v. Connor and understand that policing is a very inexact craft practiced under rapidly changing and often escalating and chaotic circumstances. XXVI. CRISIS COMMUNICATIONS Every law enforcement agency must be prepared for circumstances when the agency has a shooting or other critical incident that becomes the focus of public outrage. It isin the agency's best interests and the public's best interests that the subsequent investigation of that incident be as transparent as possible. Further, a highly re?ned investigative processes put in place, coupled with the comfort that there is outside monitoring of the investigation will provide the community with a 'sense that the agency will conduct an honest and forthright investigation and analysis of the incident. Further, the entire agency's investigative and adjudicative process should be described to the media and the community who should be provided as much information about the incident as reasonably possible. Frequent updates to the local politicians, clergy, community leaders and media will further provide the community with the sense that the investigation if going according to plan and is transparent in all aspects. In all cases, the communications of the adjudication protocols and transparency of the process, not necessarily all the facts, are what the public desires to know. That, followed up with responsible police management decision and improvements, will provide the much needed salve for the community concerns. XXVII. DETENTION METHODS The detainees all describe being held in police cars for extended periods of time and then some in offices and some in cells for even more time. They have as a group all opined that they were in handcuffs for between four and six hours. This is far too long to be handcuffed in even the most egregious situation. The detainees were all told when interviewed that they "were not under arrest" and were ?free to go.? This characterization of their detention status could not have been understood if they were held for hours and in handcuffs. BART PD should rework their detention policies (no written policy was located) to afford a more expedient turn around of detainees, better conditions for their physicaldetention and certainly not keep people handcuffed for between four to six hours. FINAL RECOMMENDATIONS It is important for BART PD, including of?cers, supervisors and managers to learn valuable lessons from the Oscar Grant situation. The tactics of BART PD at the field level were seriously deficient. It is recommend that all of?cers receive a tactical debrief of the incident emphasizing learning points during that CONFIDENTIAL COMMUNICATION Date: July 31, 2009 Page: 94 incident. The debrie?ng could use available video and PowerPoint presentations to paint a picture of the events as they emerged that night. In a non?punitiveenvironment of a debriefing, all officers should be encouraged to identify the tactical of the situation and areas where improvement was needed. Speci?c tactical decisions made during the incident should be analyzed along the continuum of those decisions. At each'decision point, alternatives should be explored with the of?cers so that future decisions are better made. . Properly done, a tactical debriefing will teach officers to identify their own mistakes and improve future performance. Further, it is recommended that BART PD institutionalize a tactical debrie?ng in all possible scenarios to enhance future-performance. One recommended method is known as the Tactical Operations Loop of Continual Improvement. Using this simple exercise, future performance may be enhanced. The ?loop consists of preplanning for an event, rehearsing for an event, performing at the eyent and then debrie?ng to enhance future performance. Under this scheme, of?cers or trainers imagine potential dangerous scenarios that of?cers may face. Of?cers then pre-plan their tactics by using ?what if" scenarios. Once the preplanning is then rehearse by? going through the motions of the event, either physically or mentally, in a formal or informal setting, to test their preplanning assumptions and preparations; When an incident occurs, of?cers will have pre-loaded their tactical actions allowing them to perform at a higher level than if they had to develop a tactical response in the middle of a critical event. Once an event has come to a conclusion, of?cers then debrief the incident, examining the incident in retrospect with the mindset of doing better the next time around. BART PD should consider adopting this or another method of continuous improvement. By institutionalizing review and evaluation of use of force incidents as well as personnel complaints, it institutionalizes the continuous loop of improvement. There were ample warning signs of an impending problem within BART PD. For example, Officer Mehserle reported 6 use of force incidents in 2008 which was more than any other of?cer on the platform and more than most other BART PD officers in-that year. Management must overhaul nearly all its critical reporting mechanisms to include a more transparent examination of the events to ensure future problems are identified. The use of force reporting policy as well as surface level examination of complaints contributed to the Grant situation. Policies should be developed, using best practices from other agencies and professional organizations, which will dramatically enhance the risk management practices of BART PD. Further, high risk reports, such as uses of force and personnel complaints should have chief-level review. Considering the low number of complaints and uses of force per year by BART PD, it is not too much to expect that the Chief be briefed on all occurrences. Finally, the BART PD Policy Manual needs substantial revision. While it largely meets POST standards and addresses the many ?how" questions, it does not address the ?why" questions. The policy manual Should not only address technical competence, but also explicitly communicate the values of the organization. The policies should be framed in such a way as to institutionalize these values (thought debriefs, continual improvement, management review of critical incidents, etc). a ribuck silver wilson Kimberly acme? professional low corporation AttorneyatLaw MEMORANDUM CONFIDENTIAL COMMUNICATION DATE: August 4, 2009 TO: Matthew - Andrea Ravas, Associate General Counsel Dorothy Dugger, General Manager Gary Gee, Chief of Police FROM: Kimberly E. Colwell, Esq. RE: Follow-Up to BART Internal Investigation re January 1,2009 Fruitvale BART Station (Oscar Grant) Incident Following my conversation with Andrea Ravas earlier today, and my conference call with Ms. Ravas, Commander White and Comma entify specific sections of General Order which our lntemal Affairs Report found Of?cer Pirone to have violated. (See IA Report 7/31/09 pages 59-60 and 79-80; an it to eport.) Those subsections of General Order are as follows: Officer Pirone 3.000 3.001 3.030 3.150 3.270 3.271 3.300 3.320 3.321 3.358 I hope this gives you the clari?cation you need. Please do not hesitate to contact me if you have any additional questions. KECzedl c: Jayne W. Williams, Esq. 12752281 55512th Street, Suite 1500 I Oakland, California 94607 I tel 510.808.2000 I fax 510.444.1108 I [08 ANGELES fiftitiAi?i? SIlCiiAil?Eilli? 0 SAN fiiAlliCiSCf} SANTA RBSA an riburk silver wilson KimberlyE Colwe" professional low corporation I AttorneyatLaw MEMORANDUM CONFIDENTIAL COMMUNICATION DATE: August 5, 2009 Andrea Ravas, Associate General Counsel Dorothy Dugger, General Manager Gary Gee, Chief of Police FROM: Kimberly E. Colwell, Esq. 15?? RE: Second Follow-up to BART Internal Investigation re January 1,2009 Fruitvale BART Station (Oscar Grant) Incident Following the phone message from Andrea Ravas of late yesterday, and her communicating to me the - request of Commander White, I herein identify specific sections of General Order and Operational Directives 27 and 44 which our Internal Affairs Report found Of?cer Pirone to have violated. (See IA Report7/31/09 pages 79-80; and Exhibits 2, 3 and 4 to IA Report.) The applicable subsections of those policies are as follows: Of?cer Pirone General Order - 5.000 Operational Directive 27 Purpose and Canons Operational Directive 44 and II I hope this gives you the additional clarification you need. Please do not hesitate to contact me if you have any questions. c: Jayne W. Williams, Esq. 55512th Street, Suite 1500 I Oakland, Catitornia 94607 I tel 510.808.2000 I fax 510.444.1108 I L03 AMEELES 6 BAKLANS SAQRAMENW 9 FEMEEISCQ SANTA 003A in we riback silver 8. Wilson KimberIyE.ConeII professional Iuw corporation AttorneyatLaw MEMORANDUM CONFIDENTIAL COMMUNICATION DATE: August 5, 2009 Andrea Ravas, Associate General Counsel Dorothy Dugger, General Manager Gary Gee, Chief of Police FROM: Kimberly E. Colwell, Esqw/ RE: Third Follow-Up to BART Internal Investigation re January 1, 2009 Fruitvale BART Station (Oscar Grant) Incident Following a telephone discussion with Andrea Ravas of this morning, and her communicating to me the request of Commander White, I herein identify speci?c sections of Bulletin No. 08?70, Taser Policy of BART PD, which our Internal Affairs Report found Officer Pirone to have violated. (See IA Report 7/31/09 pages 79-80; and Exhibit 8 to lA Report.) The applicable subsections of the policy are as follows: Officer Pirone Bulletin No. 08-70 309.3 and 309.4 Please do not hesitate to contact me if you have any questions. KEC:edl c: Jayne W. Williams, Esq. 12762601 55512th Street, Suite 1500 I Oakland. California 94601 I tel 510.808.2000 I fax 510.444.1108 I Lil?S ANGELES 6' SANTA 903.29": WILLIAM E. RI KER, Arbitrator IN ARBITRATION PROCEEDINGS BEFORE ARBITRATOR WILLIAM E. RI KER In the Matter of the Arbitration Hearing Bdween DECISION AND AWARD THE BAY AREA RAPID TRANSIT DISTRICT, CSM CS Case No. and THE BART POLICE ASSOCIATION (Termination of Domenici) Grievant. This matter came on regularly for hearing before Arbitrator Willian E. Riker, pursuant to the disciplinary appeals procedure contai ned in the Memorandum of Understanding between the Bay Area Rapid Transit District and the BART Police Officers Association. The issue was whether just cause for the termination of Officer MarySoI Dcmenici existed; if not, what shall be the remedy. The events giving rise to this disciplinary appeal all occurred on the Fruitvale Platform in the early morning hours of January 1, 2009. Over the fourteen (14) days of hearing both sides presented volumes of documentary evidence, a significant amount of video combined with extensive analysis, and presented live testimony from numerous witnesses The Arbitrator also participated in two site visits with the parties After carefully ccnsideri ng all the facts, testimony, and evidence presented, theArbitrator issues the following Decision and Award. DECISION AND AWARD . . . 1 NN?x-?A-A-x?t?A?x-k?x DECISION The Arbitrator finds thatjust cause for the termi nation of Officer MarySol Domenici did not exist, and that the proper remedy is reinstatement with full back pay and benefits, asde as the removal of all findings inconsistent with this Decision from her personnel record. The evidence submitted did not support the proffered allegations, and the District's rel i anoe on the Administrative nvestigati on Report prepared by its outside consultants was misplaced. The Report did not contain a full vetting of the evidence as it related to the allegations agai Officer Domenici, the investigaors did not ask witnms certain key and critical questions about the actions of Officer Domenici ,and the analysis of the multitude of videos related to the allegations about Officer Dormnici's conduct mpears fl arrived. The Arbitrator finds, as a result, that the Report prepared by the outside consultants was not a full and complete investigation of Officer Domenici's actions, and that critical information to the eVal uati on of whether Officer Domenici acted anpropriately during the events of January 1, 2009 was not made available to the District by the investigators. The most serious of the charges against Officer Domenici concerned whether she wa truthful in her account of the events, and whether she accurately reported what she observed both when interviewed by investigators as well as during the testimony she provided at the Preliminary Hearing. The Arbitrator finds no basisfor the ooncl usi on that Officer Domenici was untruthful in her statements and tedi mony, and therefore holds that just cause dose not exist for the finding that she violated General Order 3.358 - Cooperation in 'l nvestigation. The Arbitrator finds on the specific allegations of untruthful ness, as follows a. The Noise Level on the Platform: Officer Domenici was truthful when she described the noise level on the platform when she first arrived. Noise level is a subjective perception. Her perception that it was "very loud" is consistent with the fact that she arrived on the platform from the comparatively quiet area of the station agent's booth, and is consistent with the fact that 'when she arrived at the top of the escalators she encountered an eight-car trai with its doors open oontai ni ng a "crush lead" of festive DECISION AND AWARD 2 CD so CD 01 4800 A people on their way home from celebrating the New Year. During the hearing, the Arbitrator, accompanied by the parties, conducted two site visits to the Fruitvale Station during non-commute week-day hours During those visits, the noise level on the platform when pmgers Were disembarking the trai was loud, even though the number of people present was considerably fewer than wereat the Fruitvale Station on January 1, 2009. Based on these facts, the Arbitrator finds that the District did not sustai its burden of proof on this charge, and that just cause to find Officer Domenici untruthful did not exist. b. The Catcher?sStance?: Officer Domenici was mistaken, but not untruthful, when she stated that Oscar Grant never got lower than a "catcher's stance" before the handcuffi ng of Michael Greer. During the arbitration hearing, one of the outside censultant's investigators testified that Officer Domenici was correct in stating I that Oscar Grant lowered himself to a "catcher's stance", but was wrong about when it occurred. That also testified that it is common for witnm in a rapidly unfolding and highly intense ci rcumstance to remember events out Of sequence. The Arbitrator agrees Many of the witnesses that gave statements during the investigation, as well as others who testified at this hearing, suffered from the same affliction. The Arbitrator thus finds that Officer Domenici was truthful about her rwollecticn, even if it was mistd