BART police still under fire
For my Summer Fellowship at Bay News Rising, I pitched a long-form story analyzing BART police use of force data to determine what changes the department had made since the killing of Oscar Grant in 2009. I found that use of force incidents had doubled since that time, and tell the stories of the killings that have occurred since, and the tensions between the department and the communities it is meant to protect.
It was originally published here on Bay News Rising’s website.
It’s also posted below:
Sahleem Tindle was 28 years old when he was shot and killed by BART officer Joseph Mateu on Jan. 3, 2018. Although Tindle was apparently unarmed, the officer shot the young black man three times in the back with his service pistol. Bodycam footage of the shooting angered his family and members of Oakland’s African-American community, sparking months of protests and an investigation that the transit agency has yet to complete.
A month after his death, Tindle’s mother, Yolanda Banks Reed, sat with family members in BART’s Oakland boardroom as the agency’s directors conducted a regularly scheduled meeting. Reed and others in the room wore white prayer caps. She stood at the podium, holding a picture of her son wearing the same cap, and said, “I would not wish this pain on any mother.”
This boardroom has heard from people in pain before. The families of Oscar Grant III and James Nate Greer, both killed by BART officers while unarmed, have stood in this boardroom and were there to stand with the Tindle family as they demanded that Mateu be held accountable for killing somebody they love.
“This story’s been told over and over and over. How many times do you keep reiterating the story before you get it right? How many have to die?” Reed asked.
The drama of grieving, angry families confronting authorities over the slayings of young black men has played out across the country. Sacramento police killed unarmed Stephon Clark in his grandmother’s backyard. A Florida neighborhood watch volunteer, George Zimmerman, gunned down unarmed 17-year-old Trayvon Martin. A Minnesota police officer, Jeronimo Yanez, shot and killed Philando Castile during a traffic stop; the shooting was caught on Facebook Live and the video went viral nationwide.
“This community is desperate for police accountability.”
— Pamela Price
In the Bay Area, the killings of three men of color by members of BART’s 200-person police force have created a simmering furor around an agency that has historically worked in the shadow of the much larger, and often criticized, Oakland Police force.
“The major focus was always the Oakland Police Department, not BART,” said Paul Cobb, longtime Oakland activist and publisher of the Post News Group. “Oscar Grant changed everything.”
Grant was 22 years old when he was shot by police on the Fruitvale platform, in full view of passengers in a train car filled with revelers early on New Year’s Day 2009. Smartphone video of the incident was widely circulated on the news and on social media. Protests, some violent, quickly followed.
BART maintains that its police force has since changed significantly. It points to changes in leadership, clearer rules about the use of force and the installation of a civilian review board.
In 2014, then-BART Police Chief Kenton Rainey commented on the department’s progress since 2009 in a blog post titled “Six years of police reforms.”
“Not only did we adopt a strategic direction, we reorganized the department, implemented stronger community policing initiatives, updated our policies and procedures and enhanced training of our officers,” he wrote.
But there have been more killings of men of color by BART police, and incidents involving the use of force by officers have more than doubled since 2010 — evidence, say community activists, that the department has not changed nearly enough.
“How do you reform an unreformable system?” Noelle Audrey Rose, an East Oakland activist, said at a 2018 protest in memory of Sahleem Tindle.
Registered nurse Monica Ramos of West Oakland holds a sign at a rally on March 20, 2018 outside of the OPD calling for the arrest of BART officer Joseph Mateu for the killing of Sahleem Tindle in January.
“Oscar Grant Changed Everything”
In the early hours of New Year’s Day 2009, BART officers responded to reports of a fight on a train car. They intercepted the car at Fruitvale Station, and pulled out those suspected of fighting, including 22-year-old Oscar Grant.
What happened next was captured on devices by other passengers, many of whom began recording because they thought the officers were acting too aggressively. Some of the videos were later shown in court.
Footage shows Grant trying to stand, officers forcing him to the ground, one officer pinning him down with a knee on his back. Then Officer Johannes Mehserle grabs his pistol and shoots Grant in the back.
The shock is audible across the station platform.
Grant was pronounced dead at Highland Hospital seven hours later.
Mehserle later said in court that he meant to grab his Taser, not his pistol. He faced second-degree murder charges and up to 14 years in prison. He was found guilty of involuntary manslaughter and sentenced to two years at a Los Angeles County Jail. He was released after serving 11 months.
After Grant was killed, the BART PD agreed to make substantial changes.
BART Police Chief Gary Gee retired at the end of 2009. BART hired the National Organization of Black Law Enforcement Executives, or NOBLE, audit the department in response to the Grant shooting.
NOBLE’s consultants produced a 314-page report analyzing specific areas of the administration and operation of the department from June to September 2009, and comparing it to the only set of standards approved by the law enforcement profession. These standards are contained in the Commission on Accreditation for Law Enforcement Agencies Standard Manual.
The report recommended more than 100 improvements.
Oversight
Before NOBLE’s recommendations, the BART PD, unlike the Oakland and San Francisco police departments, did not have a civilian oversight board. Now, it has a two-tiered oversight model — more than many departments have — comprising the BART Police Citizen Review Board and the Office of the Independent Police Auditor.
The 11-member review board holds monthly public meetings, where members review allegations of misconduct by BART officers and discuss monthly reports from the auditor’s office. The board also may develop or review recommendations for procedures, practices and training.
The independent auditor has unfettered access to internal affairs information, and monitors internal investigations.
The original recommendation clearly stated that the members of the citizen board should not be appointed directly by BART directors, who are defined as politicians in the report. Instead, it suggested that the board be selected from a list developed by the National Association for Civilian Oversight of Law Enforcement, a non-profit organization that establishes standards for police oversight.
Use-of-force incidents have more than doubled within the department since 2010, according to BART’s internal affairs reports — from 136 incidents in 2010, to 305 last year.
Nevertheless, nine members are appointed by individual BART directors. One is a representative from the police union. The other is an at-large member appointed collectively by the directors.
George Perezvelez is the chair of the review board and has been a member since its inception.
Perezvelez said the BART directors appoint review board members with a majority vote, after a full vetting and public screening. He said this process “is valid and works well.”
This is not consistent with the NOBLE recommendation, yet a follow-up audit in 2013 not only considers the recommendation for a police advisory board met but also says BART’s implementation “exceeds the scope of the recommendation.”
He said the two oversight bodies have a significant impact on the policies and practices of the police department, although their recommendations are not mandatory. Instead, the police, auditor and review board forge a consensus, Perezvelez said.
“[BART PD] can’t say just no, and we can’t just say, ‘You’re gonna do it this way because we want it,’”he said in a phone interview. If the department doesn’t like a recommendation, it can appeal to the board of directors or the general manager, who has the final say.
Use of Force
The NOBLE report said the disparate policies concerning the use of force should be consolidated.
The report recommended that officers complete annual use-of-deadly-force training as well as biennial less-lethal-force training, and that there be a better system of ensuring that all officers receive the training regularly.
“Officers, sergeants and lieutenants repeatedly described the agency as having no accountability system when officers miss mandatory training or firearms qualification,” the report states. Officers were required to get a refresher course in use-of-force polices as they completed their annual firearms qualification training but the department did not do a good job tracking attendance, the report said.
BART now compiles more detailed reports on the use of force and publishes an annual summary which can be found here at https://www.bart.gov/about/police/reports
While the department has tightened its policies and paperwork, those improvements have reportedly not resulted in a decrease in the use of force. In fact, use-of-force incidents have more than doubled within the department since 2010, according to BART’s internal affairs reports — from 136 incidents in 2010, to 305 last year.
Only 4.5 percent of use-of-force complaints filed with BART’s independent auditor over the last six years were sustained. The rest were considered unfounded or undeterminable.
This year, the East Bay Times reported that when BART police used force in 2017, half of the people on the receiving end were black men. That statistic came from a report presented to the citizen review board June 11.
Community Response
Paul Cobb has lived in Oakland since long before BART was built. He was one of the community leaders consulted during the transit agency’s design process. He was invited to discuss the placement of West Oakland BART station and tracks, and the impact it could have on surrounding businesses and communities.
Cobb said he had thought of BART police as “glorified ushers” who were just “part of the furniture” until Mehserle killed Grant. Suddenly BART police became just as much of a source of concern as the Oakland cops for the black and brown communities, he said.
Jumping over a turnstile to avoid paying a fare isn’t legal, but it’s not a major crime. But when the evader is a young black man, it’s worrisome, said Cobb. “I would say something to them, like, ‘Man you oughta be cool, ’cause they got you on tape and you could end up getting shot,’” he said.
Grant’s killing sparked waves of protests. Initially, the protests were decrying police brutality, particularly against people of color. Thousands of people protested in huge, intense crowds.
When Mehserle was charged with involuntary manslaughter in July 2009, another wave of protests erupted from those who believed he should have been charged with second-degree murder. And a third wave followed when Mehserle was released after serving less than half of his original sentence.
The protests generally began peacefully, but small groups of protesters frequently broke off and vandalized local businesses and started fights with anyone who tried to stop them.
BART paid $2.8 million in settlements to Grant’s family — $1.3 million to his mother and $1.5 million to his daughter, just 4 years old at the time of his death.
Another Audit + Another Death
Five years later, BART was again embroiled in a controversy over the death of an unarmed man of color.
This time, the Alameda County District Attorney did not conduct an investigation, because no shots were fired. Only when a firearm is discharged does the DA investigate a death in police custody.
James Nate Greer, a 46-year-old Latino man, was pulled over by Hayward police for driving erratically on May 23, 2014. What started as a routine sobriety test turned into a deadly altercation.
Deana Abello is Greer’s ex-wife. They remained close after separating, sharing custody of their son.
“This is just a normal family, and they have to turn into activists.”
— Monica Ramos
It took her over a year to bring herself to watch the bodycam footage of his death. After she did, she felt she had to share it. The bodycam used in court was worn by BART Police Sgt. Jon Tougas, who was heading to his police office in Hayward when he saw a traffic stop in progress in the K-Mart parking lot on Mission Boulevard. Tougas stopped and offered his assistance, according to court documents.
Hayward Police Lieutenant Lt. Jeff utzinger had called for backup before administering a sobriety test.
In the video, Greer begins to comply with the sobriety test. When more officers arrive o, Greer stops and asks the officers why they are “messing” with him. He begins to back away and an officer instructs him not to. In that moment, officers grab him and tell him to put his hands behind his back.
They wrestle Greer to the ground.
Although Greer refused to give up his hands for arrest, another Hayward officer stated in court documents that he had holstered his Taser because Greer “wasn’t fighting or throwing any punches.”
According to the video and court documents, several officers attempted to control Greer. After warning him to stop resisting, they tased him three times, applied pressure with their hands and a baton and wrapped him in a full body restraint. Tougas kept him pinned for several minutes before they rolled him onto his back and realized he was unconscious.
They then moved him to a seated position, which Fulvio Cajina, an attorney for Greer’s family, said was a fatal mistake.
Cajina told reporters for the Mercury News that the officers should have started cardiopulmonary resuscitation immediately. Instead, the officers — at this point there were over a dozen of them on the scene — allowed seven minutes to go by before administering first aid. Greer died in a hospital an hour later.
The medical examiner concluded that Greer’s cause of death was physical exertion while under the influence of the mind-altering drug PCP.
A year before Greer was killed, another audit was conducted to see how far BART had come since the original NOBLE report.
The agency’s policy on medical treatment for people who may be injured by the use of non-lethal force is consistent with accepted policing practices, the 2013 report said. According to the 2013 report,
But the officers did not provide medical assistance to Greer, despite the policy and the training they received.
Three Bullets to the Back
Sahleem Tindle was shot and killed outside of the West Oakland BART station January 3, 2018.
Bodycam footage shows that Tindle was shot three times in the back by a BART police officer during a fight with another civilian. Mateu repeatedly yelled for them to put their hands up and then fired his weapon. Though a gun was recovered at the scene, Tindle did not appear to have a gun in his hand when he was shot.
The investigation is ongoing, so many of the details surrounding his death, including the name of the man struggling with Tindle, have not been made public.
But the footage was leaked soon after the family viewed it. In response, BART Police Chief Carlos Rojas held a press conference during which he showed the footage, and annotated photo stills while explaining the video from Mateu’s perspective.
Rojas said Mateu was brave for approaching the altercation. He suggested that before firing, Mateu may have thought that Tindle had already shot the other man. But Rojas did not answer a crucial question: Why did the officer shoot an apparently unarmed man whose back was turned and was not moving toward him?
The Tindle family has been protesting and speaking out continuously since he was killed. “I haven’t even had time to grieve my son,” Reed said in March. Her phone call was played over loudspeakers in a pickup truck outside of Oakland Police Department headquarters, where a small rally was held on a rainy day to demand the arrest of Mateu.
Monica Ramos, a West Oakland registered nurse, held a sign at the rally asserting, “Mateu is a murderer.”
She said she was angry and grief-stricken because “this is just a normal family, and they have to turn into activists.”
The Anti Police-Terror Project has been assisting the Tindle family in protesting and organizing. Cat Brooks, co-founder of the project, and Pamela Price are running for mayor of Oakland on platforms of strong police accountability. Price challenged Alameda County District Attorney Nancy O’Malley in the June election. Although Price lost by 20 points, she earned the Oakland vote, particularly in the flatlands, where the majority of Oakland’s black and brown people live.
“This community is desperate for police accountability,” Price said at a forum at St. Columba’s Church in May.
A Skeptical Community
The BART Police Department has made some changes. What began as a 28-person security team in blue blazers in the 1970s is a 200-person police force with a SWAT team and K-9 unit that impacts lives all across the Bay.
The department has made numerous changes since the Grant killing. It now has police oversight, reports and data are now available online, and there is an updated, consolidated use of force policy.
Per the NOBLE recommendation, it updated the policy to accommodate “reasonable use of force” standards. Just this year, it updated the policy to a “minimal use of force” standard. When the use of force is necessary, officers are supposed to use the least force possible and escalate force only to prevent bodily harm to themselves or others.
But use-of-force incidents have not just risen — they have more than doubled since 2010, while ridership has increased by just 23 percent.
Rojas expects the new standard to make a difference. He pointed to a downward trend last year in the percentage of officer contacts that resulted in use of force. However, that trend isn’t related to the latest policy change because it didn’t pass until earlier this year.
At the same time, BART and its police department have been under fire for a series of disturbing incidents, including a grisly murder, the failure to adequately inform the public about serious crimes on the system, teen gangs assaulting passengers and its use (since abandoned) of fake observation cameras in trains.
Community advocates still return to the BART boardroom to demand change. “When does it end?” Reed asked the citizen review board in March.
“Does it end with my son?”
