Attorney: Grant shooting was 'tragic error'

April 3, 2009 6:25:46 PM PDT
BART is defending itself over the fatal police shooting. In legal papers filed on Friday, BART offered its version of what happened in the moments before the gun was fired.

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Oscar Grant was shot in the back on New Year's Day by a former BART police officer who is now charged with murder.

The attorneys defending BART in a wrongful death civil suit say they relied on video and witnesses, including some of grant's friends, to support their claim that grant made the first aggressive move, and the BART police were just reacting to it. The legal document filed today does not take on the shooting itself.

John Burris has filed a civil rights and wrongful death lawsuit on behalf of Oscar Grant's family.

On Friday, BART's lawyers responded they deny Grant's civil rights were violated, saying he assaulted Officer Anthony Pirone first.

They said: "That decedent Oscar Grant willfully and wrongfully provoked the altercation in which he was involved, and said provocation of decedent Oscar Grant was a cause of the injuries and damages alleged."

The defense attorney says the officers acted in self-defense when detaining Grant.

But they say don't have enough information about officer Johannes Mehserle's motivation for pulling his gun and firing, killing Grant, to respond to the charge of wrongful death.

That's in part because Mehserle invoked the Fifth Amendment from the beginning, and in part because the case is not at the point where evidence is shared between both sides.

"There are a lot of facts that are not out there yet that are clearly in the possession of the DA's office or Mr. Mehserle's criminal defense attorney Michael Rains," said BART's attorney Dale Allen.

"I think the arrest was wrongful, the detention was wrongful. There was no basis to stop him, and it's intellectually dishonest to say he caused his own demise by his own conduct," said Burris.

Burris says Grant did not attack first.

"At the end of the day there was nothing Oscar Grant did that justified being slugged and or shot. That's our position," said Burris.

ABC7 Legal Analyst Dean Johnson says this stage of this legal process is just laying out theory, more than a case as it would be in court.

"The first thing to understand is that this is an answer. It doesn't lay out what the defense says is true, it lays out everything it thinks might be true," said Johnson.

Allen calls the shooting a tragic error. All officers remain on administrative leave. Their lawyers have yet to respond individually to the Burris suit, and the case heads to a courtroom in June.

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