4:11 PM: A federal jury in San Francisco today rejected an Oakland man’s civil rights claims of police brutality against former BART police officer Johannes Mehserle and four current officers.
Kenneth Carrethers, 43, claimed in a civil lawsuit that Mehserle and the other officers used excessive force and retaliated against him for criticizing them when they arrested and restrained him at BART’s Coliseum/Oakland Airport station on Nov. 15, 2008.
The incident occurred six and a half weeks before Mehserle, 29, fatally shot Oscar Grant of Hayward at BART’s Fruitvale station on New Year’s Day in 2009. He was convicted of involuntary manslaughter and served about a year of a two-year sentence.
Carrethers was arrested after he passed by the officers at 10:30 p.m. and used profane language to berate them for having failed to prevent two previous break-ins to his car in the station parking lot.
He said he never physically threatened the officers and alleged they kicked, punched and hog-tied him while arresting him.
The officers maintained they used reasonable force–including handcuffing and hobbling Carrethers–because he appeared to be about to strike first Officer Fred Guanzon and then Mehserle, and allegedly resisted arrest. They denied kicking, punching or hog-tying him.
The seven-member civil jury in Carrethers’ case reached its unanimous verdict in the court of U.S. District Judge Edward Chen after five days of trial and about five hours of deliberation.
Carrethers’ attorney, Chris Dolan, said, “We’re considering an appeal.”
At the trial, Dolan had urged jurors to “protect the right of people to speak their mind and not get beat up” by ordering a financial award of more than $1 million for Carrethers.
BART attorney Dale Allen said, “We are very pleased with the verdict. We have always believed the officers performed their duties properly and appropriately.”
The jurors cleared all five officers of claims that they violated Carrethers’ constitutional rights by using excessive force and by retaliating against him for exercising his First Amendment free-speech right to criticize them.
The jury also exonerated Mehserle of two additional claims that he beat Carrethers and maliciously prosecuted him by filing charges of threatening an officer and resisting arrest.
The charges were eventually dropped by a judge and by the Alameda County district attorney.
Carrethers, who suffered facial bruises and an injured shoulder, was treated and released at a hospital after the arrest and spent two nights in jail before posting bail.
Carrethers was on his way home from his job as a San Francisco hotel engineer when he encountered the officers at the station.
Both sides agreed he uttered several profane tirades, which the officers testified they initially tried to ignore after determining that Carrethers did not appear to be intoxicated.
Mehserle testified that Carrethers then raised his clenched fists to waist level while following Guanzon. He said he believed Carrethers was about to hit Guanzon on the head and said that after he tried to grab Carrethers’ wrist, Carrethers pivoted and took a “fighting stance” against Mehserle.
Mehserle then brought Carrethers to the ground with a foot sweep and the other officers joined in restraining him and carrying him to a police car.
Carrethers denied threatening the officers, testifying, “I never put my hands on anybody nor did I intend to put my hands on anybody.”
During the trial, Dolan criticized BART and the offers for failing to preserve surveillance videos recording the incident.
The only eyewitnesses to testify were the five officers and two BART station agents on one side, and Carrethers on the other.
In contrast to the Carrethers case, cellphone videos made by civilian witnesses to the Oscar Grant shooting were widely publicized and were used as evidence in Mehserle’s criminal trial.
BART also agreed to a $1.5 million settlement of a civil lawsuit filed on behalf of Grant’s now 7-year-old daughter, Tatiana Grant.
Dolan said after today’s verdict, “It just shows the importance of video. When BART hid the video, BART won.
“When people came forward with the video, BART lost,” Dolan said.
Allen said, “It has been clear to BART that record-keeping and documentation had to be improved.
“Great efforts have now been made to ensure that videos are obtained or protected and that documentation of use of force is clearly prepared,” he said.
“BART has learned from this case and as well as other incidents that they have to improve documentation and retention of records,” Allen said.
In addition to Mehserle and Guanzon, the other officers named in the lawsuit were Douglas Horner, Robert Haney and supervising Sgt. Keith Smith, who is now a lieutenant. Most of the officers were at the station on special overtime assignments because of a concert at the Coliseum that evening.
11:49 AM: A federal jury in San Francisco today rejected an Oakland man’s claim that former BART police officer Johannes Mehserle and four other officers used excessive force when they arrested and restrained him at a BART station in 2008.
The seven-member civil jury unanimously ruled that Mehserle and the other officers were not liable for use of excessive force or for alleged retaliation against Kenneth Carrethers, 43, for exercising his constitutional free-speech rights.
The jurors also turned down claims that Mehserle had beaten Carrethers and maliciously alleged that he had threatened an officer and resisted arrest. The charges against Carrethers were later dropped.
11:16 AM: The federal jury in the trial on a civil rights lawsuit against former BART police officer Johannes Mehserle and four other officers has announced it has reached a verdict.
The lawsuit was filed by Oakland resident Kenneth Carrethers, who claims the officers beat him up at the Coliseum/Oakland Airport station after hearing him criticizing BART officers on Nov. 15, 2008.
The verdict will be read shortly in the courtroom of U.S. District Judge Edward Chen on the 17th floor of the Federal Building at 450 Golden Gate Ave. in San Francisco.
Julia Cheever, Bay City News