Nicole Xu for NPR
Rev. Wanda Johnson sits down on a folding chair in her driveway on a hot afternoon in June. There’s no air conditioning inside, so she’s fashioned an outside office, and pulls her chair up to a small table where a computer is perched. She’s getting ready to listen to excerpts of nearly 60 hours of newly released tapes — recordings of a police investigation that have been secret for over a decade. On those tapes is a story that’s never been fully heard before: the story of what happened after a transit cop shot her son on a Bay Area Rapid Transit platform on New Year’s Day 2009.
One of the first police shootings to be captured on cell phone, millions saw BART police Officer Johannes Mehserle fire a single, fatal gunshot into Oscar Grant’s back as the 22-year-old lay face down on the train station platform. The event would later be depicted in the movie “Fruitvale Station,” in which Michael B. Jordan plays Grant on what would be the last day of his life.
But until now, no one outside the agency has actually heard what happened after the cell phone video ended. A lawsuit filed by NPR member station KQED earlier this year forced BART to comply with California’s “The Right to Know Act,” a 2019 police transparency law, and release the never-before-heard tapes. The subject of a new podcast by NPR and KQED, On Our Watch, the tapes allow listeners inside that investigation for the first time, and may provide lessons for larger failings about the system that promises to hold police accountable.
It has long been clear that BART made significant missteps in the investigation of Grant’s shooting, and in the aftermath of the incident the Police Chief and two commanders retired. Mehserle would be convicted of involuntary manslaughter and serve 11 months in jail. But the long-secret files focus new attention on former BART police officer Anthony “Tony” Pirone, who was fired for his actions on the platform but never criminally charged.
Pirone was the first officer to respond to a call about a fight on the train crowded with people celebrating New Year’s. When Pirone stopped a group of young men on the platform, Grant and his friend Michael Greer jumped back on the train. Pirone removed Greer from the train and threw him on the ground. After Grant tried to stand up to intervene, Pirone repeatedly hit Grant. The crowd began yelling at Pirone and his partner, objecting to their handling of the situation.
Five more BART officers, including Johannes Mehserle, responded to calls for backup. Mehserle attempted to handcuff Grant as Pirone held Grant down with his knee. When he could not get Grant’s hands, Mehserle pulled out his gun.
Within seven minutes of Pirone arriving on the platform, Oscar Grant was fatally shot.
“Nothing happened to him and that’s what’s so disheartening and so upsetting to me. This man (started) an event that spiraled out of control, (and) caused my son to lose his life,” Johnson says, as she listens to the tapes.
Neither Mehserle nor Pirone agreed to comment for this story.
‘Close personal relationship’
The internal documents and tapes show that BART’s criminal investigators and leaders repeatedly missed opportunities to question officers, limiting the scope and potentially the outcome of both the criminal and administrative investigations.
Just after the shot was fired, BART police officers put out a call for medical assistance and backup over the radio. What they didn’t broadcast was that an officer was the shooter.
“I had to basically put two and two together and figure out it was an officer-involved shooting on my own,” one Oakland police officer would later tell investigators.
The BART detective who responded to the initial call, Joel Enriquez, also had to wait for another officer to clarify that the incident was a police shooting. Enriquez can be heard in recordings from that night telling another officer that he wished he could review the policy manual so he could be better prepared to investigate the incident.
Enriquez was also close to two of the primary officers involved in the incident, Johannes Mehserle and Tony Pirone.
“I would like to put it on record that I have a close, personal and working relationship with you, Tony,” Enriquez, addressing Pirone, said on the Jan. 1, 2009, tape, recorded less than an hour after Grant died in an Oakland hospital. “And I want to make sure that you’re okay with me interviewing you.”
“Yeah, I’m fine with that,” Pirone replied.
In the initial interview with Pirone, Enriquez fails to ask key questions about the officer’s repeated use of force, and does not challenge or ask Pirone to explain his assertion that he was himself on the verge of using deadly force and in fear for his life.
Enriquez did not respond to requests for comment.
Pirone’s partner, Officer Marysol Domenici, told investigators that she felt the crowd on the platform was so threatening after Mehserle shot Grant that she was ready to open fire herself.
“That’s when I knew, you know, it’s us or them — the crowd,” she said during a Jan. 7, 2009, interview. Because she only had two taser cartridges, she said, she thought she’d have to “start shooting people. … I started thinking, Jesus, I’m going to have to do this.”
The outside law firm BART hired to take over the internal affairs inquiry later concluded that both officers exaggerated or lied about their level of fear during the incident in an attempt to justify their actions. Both were fired, though Domenici won her job back after an appeal.
A strategic decision
Just a week into the shooting inquiry, BART investigators did start to raise questions about Pirone’s violent behavior, police reports show.
In one report, BART Police Commander Maria White noted that eight days after the killing, one of the department’s internal affairs investigators, Sgt. David Chlebowsky, alerted her to a witness video on a local TV website.
Sgt. Chlebowsky and several unnamed BART detectives, “voiced concern” over Pirone’s actions depicted in the tape, White wrote.
But she “told the detective unit members that their primary focus was the homicide investigation,” delaying a probe into Pirone’s actions, police records show.
She waited a month — until several days after BART obtained a copy of the video from the Alameda County District Attorney’s Office — before ordering BART Det. Alan Fueng to open a criminal investigation into Pirone’s use of force.
In subsequent police reports, Fueng described interviewing Pirone and his partner, Domenici, the night of the shooting.
The result of his inquiry was a “brief summary report.” On March 20, 2009, the report was submitted, “without recommendation,” to the D.A.’s Office “for their review and disposition.” Pirone was never charged.
Alameda County District Attorney Nancy O’Malley said in an interview with KQED and NPR that not charging Pirone was a strategic decision. Her office wanted to build the strongest possible case against Mehserhle, which meant using Pirone as a witness, she explained.
“He was a key witness in this because he started the whole thing,” she said.
In February 2009, under intense public pressure, BART hired an outside law firm called Meyers Nave to do an internal affairs investigation of the incident.
BART’s board decided to hire Meyers Nave “because it felt it was critical that the public would have confidence in an independent investigation conducted by a well-respected, experienced law firm,” according to a statement from a spokeswoman.
The Meyers Nave report, which was unsealed by “The Right to Know” Act or Senate Bill 1421 in 2019, found that Pirone’s aggressive behavior on the platform broke policy and escalated the situation, rather than taking control of the situation in a way that ensured public safety.
The tapes show that Meyers Nave investigators asked Pirone to explain why he used racial epithets in an exchange with Grant.
“I specifically remember him telling me about his four-year-old daughter and how he respects the police. I said, ‘Then why are you giving us a bad time?’,” Pirone said to Meyers Nave investigators. “That’s when he says, well, ‘You’re a bitch ass n*****.’ And I said, ‘You’re calling me a bitch ass n*****, you know, that type of thing. And he said, ‘yeah.’ And then I said, ‘Bitch ass, n***** huh?’ I think that’s when Mehserle comes over and pushes him down.”
“Pirone was, in large part, responsible for setting the events in motion that created a chaotic and tense situation on the platform, setting the stage, even if inadvertent, for the shooting of Oscar Grant,” the report found.
Bay Area Rapid Transit
Meyers Nave also found that Pirone’s statements about his grounds for detaining Grant, his own actions and uses of force shifted across multiple interviews and were contradicted by witness and video evidence.
Based on this report, Pirone was fired.
Pirone is currently serving the California Army National Guard. He’s a Special Forces Communications Sergeant.
“Pirone is a highly decorated soldier with many awards and has been in the military since 1997,” a spokesman for the National Guard wrote in an email. He declined to answer further questions.
‘I thought he had a gun’
The recordings also refocus attention on Mehserle’s controversial explanation for the shooting and his ultimate defense at trial — that he meant to draw a taser, not his semiautomatic pistol, and that the shooting was unintentional. (Both Pirone and Carlos Reyes, one of the men detained on the platform, later said they heard Mehserle announce he was going to tase Grant.)
At Mehserle’s criminal trial, the jury believed his explanation and convicted him of involuntary manslaughter.
But the Meyers Nave report, released in 2019 after the passage of Senate Bill 1421, came to a different conclusion.
“He can be seen trying to draw (his gun) at least two times and on the final occasion can be seen looking back at his hand on the gun/holster to watch the gun come out,” it reads. When Mehserle fired, the report found, Oscar Grant had his hands behind his back.
Mehserle’s lawyer Michael Rains refuted this finding in an interview with NPR and KQED, calling the Meyers Nave analysis “flawed” and based on a single frame of video.
“That’s probably one one thousandth of a second,” Rains said. “He doesn’t process, ‘I’m looking at my gun.’ That’s ridiculous.”
But the newly-released records also include statements of BART officers whom Mehserle confided in after the shooting. They tell investigators Mehserle said he believed Grant was going for a gun and never mentioned his taser.
Terry Foreman, a senior BART police officer who served as emotional support for Mehserle in the hours after the shooting, told investigators that he spoke to Mehserle every day in the week after he shot Grant. “Every so often he’ll just say, ‘I thought he had a gun, you know, I thought he had a gun,'” Foreman said during a Jan. 9, 2009 interview. He added that Mehserle frequently broke down weeping during these conversations.
“I don’t have an answer for that,” Rains said when asked why Mehserle didn’t tell Foreman that he’d meant to use his taser. Rains said his client was in “horrible shape emotionally.”.
“It was both an embarrassing failure and a shameful failure on his part,” Rains said. “And that’s the way he felt for days, for weeks.”
Foreman and three other officers testified at trial that in the days after the shooting Mehserle did not mention anything about the taser or that it was a mistake.
‘I’d be in jail right now’
One of the reasons that Mehserle’s defense remains in question could come down to decisions made by BART Command staff in those early hours after the shooting.
Mehserle’s Legal Defense Fund lawyer David Mastagni asked to review the bystander video of the shooting before his client provided a statement to investigators on the morning of New Year’s Day, unsealed police records show.
Commander White conferred with investigators from the D.A.’s Office and they made the decision to let Mehserle and his attorney see the video, according to a report written by White.
After watching the video and learning that Oscar Grant had died at the hospital, Mehserle invoked his Fifth Amendment rights and refused to give a statement.
White did discuss ordering Mehserle — an employee — to give a statement, according to her report. A compelled statement would not be usable in a criminal investigation, but it could be used administratively to determine why Mehserle shot Grant.
But BART command staff did not compel Mehserle to give an interview that morning. Mehserle said he was too tired to talk, according to White’s report. They allowed him to go home, and he agreed he would make a statement the next day. He did not.
Six days later, Mehserle resigned from the police force rather than give that statement.
BART Command staff also did not require the other officers who were on the platform at the time of the shooting, Emory Knudtson, Jonathan Guerra, Noel Flores and Jon Woffinden, to give interviews. They were instead asked to type up a statement in Microsoft Word. (BART’s regular case management system was visible to other departments.)
The officers were not questioned about the actions of Mehserle or Pirone. They were also not questioned about their own actions: Knudtson tackled Fernando Anicete, a friend of Oscar Grant’s, who allegedly threw a phone toward Domenici. Flores pulled both his taser and baton. Woffinden was Mehserle’s partner that night and also drew his baton.
The officers were eventually questioned more thoroughly by BART detectives and later by Meyers Nave investigators.
The group of Oscar Grant’s friends who were with him on the platform, Fernando Anicete, Michael Greer, Jack Bryson, Nigel Bryon and Carlos Reyes were all taken to the BART police station that morning. Each was handcuffed and questioned by police.
They were read their Miranda Rights, according to the police records, but told they weren’t under arrest.
“If I was to shoot somebody on BART in their chest while they’re already down I’d be in jail right now,” Jack Bryson can be heard telling investigators. “The cops just did the same thing. So why is it different? Because he’s a cop?”
On the tape detectives tell Bryson that there is “no cover up” and that there is “no favoritism” in how police investigate police shootings.
In October 2009 Enriquez recommended that all the detainees be charged with resisting arrest, police records show. The other lead investigator, Fueng, agreed. But the records show they were overruled by command staff who did not want the recommendation forwarded to the D.A.’s Office.
The five detainees went on to sue BART. The agency eventually settled with them for $175,000.
‘A force with bad apples’
When another video of a police killing went viral last summer and protests against police violence once again gripped the country, Wanda Johnson felt the echoes of what had happened with her son. George Floyd was not shot, but the way he was pinned made her think of the way Pirone had held down Oscar Grant. Witnesses to Grant’s shooting said he told officers, “I can’t breathe.”
In October of 2020, Johnson and her family held a press conference to ask that Grant’s case be reopened and that the District Attorney reconsider charges against Tony Pirone. Johnson says they felt the new information released with Senate Bill 1421, combined with the groundswell of protests, made it the right moment to take another look.
D.A. Nancy O’Malley agreed.
Then, in January 2021 she announced that while Pirone’s conduct was “aggressive, utterly unprofessional and disgraceful” her office could not charge him with anything.
“We looked at videos, we read every report,” she said. “We did everything to see if there was any legal theory that could hold Pirone accountable other than a 149.”
Penal Code 149 – assault under color of authority – is a misdemeanor. The statute of limitations on that charge ran out long ago. KQED’s review of hundreds of internal police records unsealed by the “Right to Know Act” reveal that officers are rarely criminally charged for potentially criminal misbehavior from perjury to sexual misconduct to improper use of force.
“Oscar Grant lost his life and we’re sorry for that,” said the current BART Police Chief Ed Alvarez.
Alvarez said that the agency learned a lot of hard lessons from the killing of Oscar Grant, and that it has improved significantly in the decade since the Grant shooting by implementing reforms including body cameras, better taser training and a civilian auditor.
Alvarez condemned Pirone’s actions and said they remain against policy. But, he said he personally believes that Mehserle did confuse his gun and his taser. At the same time, Alvarez credits the Meyers Nave report for many of the reforms the department has adopted.
“People who came in after the fact had time to, I think, process a lot more information and they look at things through different lenses,” Alvarez said of the outside investigation.
One thing has not changed: investigations into shootings or officer misconduct remain in house.
Alvarez said he doesn’t see any issue with this common practice.
“Friendships are going to always be there,” Alvarez said. “So you just have to deal with it on the professional level and understand that that is your job.”
Grant’s uncle Cephus Johnson, who fought for the passage of “The Right to Know Act,” said it is painful to hear the missteps made by investigators in the early hours and days after his nephew’s shooting.
“You know, everything that we knew is actually coming to light today through just listening to these conversations,” Johnson said.
To him, it is proof that police cannot police themselves.
“We’ve always said accountability and transparency we gotta have, and this is the reason why,” he added. “It’s very obvious if all investigations start in this way, we can never fix this system.”
Beyond this case, the files that have been released under the transparency law show that there is little standardization and less oversight of these internal investigations. Deadly force is overwhelmingly found to be justified and in compliance with policies, even in cases where investigators raised questions about the need for officers to shoot and kill. Investigations into sexual assault by officers do not address systemic issues that allowed those officers to abuse their power. And officers with a history of dishonesty have continued to testify in criminal cases.
“Oscar wasn’t the first. Definitely will not be the last,” says his mother Wanda Johnson.
“If you want to change the force, you would take action on those who commit the offenses. But because you don’t take action on those who commit those offenses, you have exactly what you want — a force with bad apples on it.”
NPR’s Austin Fast contributed to this story.