Updated 2:30 p.m. Friday
KQED is suing BART for recordsof the agency’s internal investigations of several police killings, including the January 2009 homicide of Oscar Grant at the hands of a BART police officer.
The lawsuit, filed Friday in Alameda County Superior Court, comes after a two-year effort and scores of emails from KQED seeking to get BART to fully comply with California's landmark police transparency law.
“BART has produced only a modest subset of the records” KQED has requested, the suit says. “It also has wholly failed to produce any of its own responsive audio or video records, and to date has never said when the agency intends to comply with the law and complete its release.”
BART spokesperson Alicia Trost said in a written statement Friday afternoon that although the agency had not seen the lawsuit, "BART has in good faith turned over documents responsive to SB 1421 and communicated that process with stakeholders throughout."
KQED filed the public records requests as part of the California Reporting Project, a coalition of 40 news organizations working collaboratively to obtain similar files throughout the state.
More than 12 years after Grant’s death, his family still wonders what details of the shooting have still not been released by BART.
“It’s a lingering heartache,” Grant’s uncle, Cephus Johnson, said in a recent interview. Johnson was instrumental in pushing for passage of Senate Bill 1421, the state’s “Right to Know Act,” which went into effect on Jan. 1, 2019.
Responding to news organization requests in April 2019, BART released a decade-old report on the Grant case produced by a law firm hired to investigate the shooting. The document disclosed new details in a case that had rocked the Bay Area, led to a criminal homicide conviction of a BART officer and triggered widespread protests against police violence that were a forerunner of the Black Lives Matter movement.
The report cast doubt on former BART Police Officer Johannes Mehserle’s account of the shooting at his murder trial in Los Angeles: that he had intended to draw his Taser, not his service firearm, before shooting Grant in the back as he lay face down on a Fruitvale BART Station platform on Jan. 1, 2009.
The report also found that the “willful and reckless conduct” of another former officer, Anthony Pirone, “started a cascade of events that ultimately led to the shooting.” Among other findings, the document said Pirone lied repeatedly to investigators, that he punched Grant and kneed him in the face without provocation and that he used a racial epithet during the confrontation with Grant and other men he had detained.
“They [BART] knew this all that time,” Johnson said. “If they knew this for the past 11 years, then all the other details of what we don't know ... they will not tell us unless they're forced to.”
The report released in 2019 references many more files related to the Grant shooting that have never been made public, including audio files of dozens of interviews with witnesses and responding officers, including Pirone.
“The videotaped killing of Oscar Grant shocked our society and forced us to confront police violence in a new way,” said Ethan Toven-Lindsey, KQED’s executive editor of news. “And yet, law enforcement agencies including BART’s police force continue to block access to documents that are of critical public interest.”
Alameda County District Attorney Nancy O'Malley announced in October that her office was reopening the criminal investigation into Grant’s death, prompted by his family’s requests that prosecutors reinvestigate charges against Pirone. She closed the investigation three months later, citing a staff finding that there were insufficient legal grounds to charge Pirone as an accomplice to the killing.
Grant’s family has vowed to keep pushing for charges. A DA’s spokesperson recently declined interview requests, citing ongoing discussions about the case.
Earlier this month, BART released 26 more documents related to the case. Those included an analysis of Pirone’s shifting testimony about the incident, which formed the basis for a dishonesty finding against him.
The analysis said Pirone’s accounts called into question “his justification for deciding to arrest Grant for a 148 PC (resisting arrest) charge, a decision that led directly to the failed effort to arrest Grant and thence to the shooting.”
BART spokesperson Trost said Friday that the only files related to the Oscar Grant case yet to be released are audio files, which have yet to be prepared. However, analysis of the documents already provided indicates the existence of additional written records, including transcripts and disciplinary documents.
To date, no audio files from the Grant investigation or multimedia from any of seven additional serious use-of-force and misconduct cases have been disclosed.
In fact, attorneys for the agency informed KQED on Jan. 22 that BART was only then seeking a contractor to redact audio and video files.
"Since SB 1421 was enacted we have been seeking an acceptable and affordable way to accomplish extensive, legally required, redaction of very large amounts of audio and visual files," Trost said, noting that work can be labor intensive. "However, we are committed to finding a solution and hope to report progress on this front soon."
BART has produced almost no information on two other fatal police shootings in recent years, and provided dubious grounds for withholding those records.
The agency said recently that it had only a few police reports on the 2014 shooting death of BART Police Sgt. Thomas Smith, who was killed when fellow Detective Michael Maes mistook him for an armed suspect during a search of a home in Dublin. BART’s own investigation into the shooting remained paused — for six years — due to “pending litigation,” according to the agency’s Jan. 22 response.
But BART had previously indicated that it completed an internal investigation in early 2015. Former BART Police Chief Kenton Rainey said publicly in mid-2014 that BART would “move forward with concluding its internal investigation of the tragedy.” And the agency settled a lawsuit brought by Smith’s family in 2018.
BART did not respond to requests for clarification on these points, but simply repeated that “no findings or conclusions are available for that investigation.”
The agency has similarly argued that it has no internal investigative records related to Officer Joseph Mateu’s fatal shooting of Sahleem Tindle in 2018 because “the investigation remains tolled due to ongoing litigation.”
“This is the most excruciating pain and heartache that any family can go through,” Johnson said. “The idea of just knowing what happened becomes so critical in your understanding of how to begin to heal from such devastation.”
This report was updated to include comments from BART spokesperson Alicia Trost.
KQED's Sandhya Dirks contributed to this report.