2009 Archive

Defense Attorney John Burris ’73 and the BART Shooting Case

By Andrew Cohen

Less than 24 hours after learning that a BART police officer had killed Oscar Grant III, John Burris ’73 was hired to represent Grant’s family. Less than 24 hours later, he was back at the scene of the shooting—with several witnesses who had been detained—conducting a thorough reenactment of what happened that night.

“I took them back to BART,” Burris said before a standing-room only crowd during his recent Ruth Chance Lecture Series presentation at Boalt Hall. “I put them on the same platform, placed them in their individual positions, and had them verbally go through what they saw and did.”

Sponsored by Berkeley Law’s Thelton E. Henderson Center for Social Justice, Burris’ talk included many candid revelations about his approach to the $25-million wrongful death case—and its broader implications.
The same day he had his reenactment videotaped, footage of the actual shooting began to surface from several witnesses. Burris, a prominent civil rights lawyer and an expert in police misconduct cases, knew it would affect more than just the legal arguments.

“Where there have been huge public outcries about police misconduct in California, there’s been a video camera,” Burris said. “The Rodney King case had a video camera, and that certainly galvanized the nation. The vast majority of people in the country, particularly the white community, had never seen that level of brutality.”

Burris, who also represented King, sensed a similar outrage percolating in the wake of Grant’s death. He credits that palpable frustration—and the fear of its potential effects—for prodding the Alameda County District Attorney’s office to file charges.

“I talked to the D.A. on a Monday morning and he said, ‘I’m going to need until Friday to do this,’” Burris recalled. “I said, ‘Friday’s a long time, there have already been some protests, and there’s a big protest planned for Wednesday night.’ He filed charges Wednesday morning. Is that a confidence or not? I think he felt the pressure of public discontent.”

Casing the case

Grant was riding BART home to Hayward with friends, after spending New Year’s Eve in San Francisco. Following reports of a fight on one of the trains, BART officers detained Grant and several other men of color at the Fruitvale station.

According to Burris, video footage shows officers threatening to use their Tasers to subdue the men. When Grant questioned why they were being stopped and said they’d done nothing wrong, an officer rushed over, struck Grant, and pinned him to the ground. Soon thereafter another officer who was trying to handcuff Grant stood up, pulled out his gun, and fatally shot Grant in the back. The officer was later identified as Johannes Mehserle.

“Many people are suffering as a consequence of that,” said Burris. “Not just the family members, but the witnesses, because this was like watching an execution… It’s pretty obvious excessive force was used. Grant was unarmed, on the floor, on his stomach, he’s not running, and not presenting a threat or danger of the kind that deadly force should’ve been used.”

Burris explained that lawyers must look beyond the shooting itself and examine what triggered the episode to see if other violations occurred. To his mind, the case truly started when BART officers rushed in and violated the 4th Amendment’s prohibition against unreasonable seizures by grabbing Grant and the others.

“At the time they did that, the only thing they knew is some African-Americans might have been involved in a fight,” Burris said. “But they didn’t know what had taken place, so they just grabbed the first African-Americans they saw, most of whom were not involved. To me, that’s an illegal detainment.”

And what about the possible defense argument that Mehserle was reaching for his Taser and inadvertently pulled out his gun instead? Burris said a Taser “is probably three-eighths the size of the gun BART officers carry and is maintained on the opposite side of your gun hand. And if you look at the tape, there’s no issue of reaching across his body for it.”

A push for reform

In criticizing how BART handled the shooting, Burris noted how Mehserle didn’t give a statement that night. BART didn’t try to make him speak to internal affairs until Jan. 7, which Burris points to as evidence of an “antiquated” system of investigating dangerous events.

Beyond seeking retribution for Grant’s family, Burris hopes to use the case for institutional reform. He described the recent national surge in citizens review boards, which monitor police activities, as an imperfect but important counter to the strength of U.S. police unions.

“Every tragedy presents an opportunity to make a situation better and to minimize the likelihood of it happening again,” said Burris. “The deed is done, but then the question is how did you respond to that deed? Did you have mechanisms in place to ensure that anyone who looks at the investigation can say it was done properly?”

To Burris, the answer in Grant’s case is a resounding no.

(Photo of John Burris by Associated Press)