The BART cop has got to do time...

[catnhatnh]

...because only that can save him.

I've watched the video and what I see is a total fuck-up...this guy pulls the gun and shoots without conscious thought or perception of threat. As in I honestly believe it was a straight-up fuck-up....what he THOUGHT he was doing escapes me, whether he thought he was holding a taser or squeezed the trigger by mistake, everything I've seen convinces me he was appalled by his own actions...His resignation is also convincing-we will see no justification here.

That said he ended a life. And walking away would be no favor to him. We each live with our Karma and his is dark and he needs to expiate his act. I think that he better than most knows this. Not that he would embrace incarceration, but that deep down where the corn binds, he NEEDS punishment to live the rest of his life as a man...

I have an uncle who killed a friend in a "gun accident". He walked away "free" except it ruined his life. A prison term he could have survived but the lack of atonement was corrosive...

Put the guy in jail...make the term like that given for killing someone with a car drunk...it works out the same...murder without malice aforethought....make it minimum security and with protection from the population.

It is his only path to redemption.

[sasquatch]

1. Fuck that, throw his ass into the gas chamber

I can almost promise you that this will stop this shit right now with the police killing and abusing unarmed men.

[cboy4]

11. Nice. The death penalty.

:puke:

[no limit]

42. The death penalty is only good when it comes to palestinian civilians

amirite?

[Statistical]

22. Yeah and lets skip the trial while we are at it.

Hell he already is guilty of 1st degree murder right?

I mean anytime someone dies it is automatically and only 1st degree murder. No trial needed.
While we are at it lets execute every drunk driver who commits negligent homicide.
Hell why don't we just kill EVERY felon. By DOJ study most will become repeat felons anyways.

Yay! Progressive Killing for the win!

[sasquatch]

46. In NYC they're already prosecuting people who kills someone as a drunk driver w/murder

That aside if you can't see the guy is a cold blooded killer from the video alone you have a real problem with perception.

[melm00se]

53. but he has the 100% guaranteed

right to present a defense at trial.

[Subdivisions]

36. I am inclined to see this as having been done purposefully and with malice, but...

after viewing the scene from different angles, I believe the cop thought he had pulled his taser. Still, how for the life of me he didn't catch his mistake before pulling the trigger, I don't know.

[sasquatch]

44. So what, if you pull a gun out and then shoot someone without provacation you're still a murderer

[MadMaddie]

68. Then that tells me that there is something wrong with the

way the department requires the officers to carry their tasers. If the officer was confused between a taser and a gun either they were too close on his belt or he wasn't responding very well under pressure.

Either way he committed cold blooded murder and must be prosecuted.

[StudsT]

2. he needs to be taken off the streets primarily because he is a menace to society

i fear for my children knowing he is walking around free.

StudsT

[Cid_B]

59. Won't somebody think of the children!!!!!

*bursts into tears*

[Liberal_in_LA]

3. The people need to see justice also. We need 2 know that those in authority will b held accountable

[Fumesucker]

4. I want to know if a drug test was done..

Any other profession where people are responsible for lives and screwed up like this they would be drug tested so fast it would make your head spin.

I bet he wasn't tested.

[catnhatnh]

6. Yep...

...You're dead right about that. The last factory I worked in driving a fork truck any reportable incident, including product damage, required a piss test...so unless breaking drywall is worse than killing someone a test should have been performed.

[cboy4]

26. Yea, you're should go work for Faux News with you buddy

getting your facts incorrect as well.

They'd love you! As I pointed out, the SF Chronicle reports the dude was sent to chemical testing.

But just go ahead and make up shit, insinuating he didn't. :puke:

[High Plains]

51. The poster asked a question. He didn't "make up shit."

[cboy4]

12. Actually, according to the San Francisco Chonicle, he was

subjected to an alcohol and drug test, per department policy, and placed on administrative leave.

Doesn't justify his actions, but your false accusations help nobody.

Try doing some research instead of acting out and projecting false information. :eyes:

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/01/MNB9152I2Q.DTL


on edit......typo

[Fumesucker]

21. I asked a legitimate question..

And gave an *opinion* as to what I thought the answer might be.

Are we not allowed to have opinions now?

[cboy4]

24. Sure, you can continue to be a lazy as you want, lashing out

with leading questions and answers.

Why would you say you bet he wasn't tested?

That was lazy, biased crap.

You need to learn the difference between an opinion (example: "I'm not so sure he was tested") and a reckless accusation (example: "Oh, I bet he wasn't tested.) :wtf:

What kind of bullshit is that Fumesucker, except lazy, accusatory, I have an agenda shit?

I don't defend the officer, but at least I'm fair with my facts.

[jgraz]

37. You're being an ass

This is a discussion board, not the fucking Journal of Criminal Law. People should be able to ask questions without being subjected to pompous bullshit.

Are you this much of a dick to your family or coworkers when they don't know something?

[Ignis]

48. No, to everyone.

If you're not posting a pro-police hagiography, don't bother expecting anything else.

[anigbrowl]

58. Asking a question wasn't the problem

Doing so in order to make up a snarky answer which created a false impression is the problem.

[EOTE]

64. Dude, take some codeine. Or maybe go beat something.

You certainly have a lot of bullshit anger that you need to get out somehow. I'd rather be lazy and biased than to be mouth frothing and nostril flaring angry for no damn reason.

[anigbrowl]

57. Your *opinion* is worthless

The question was legitimate, but you de-legitimized it by pre-empting the answer. If you're not prepared to do your own research (which is easy, as cboy just proved), then you should ask the question and wait for the answer instead of trying to pre-empt it. Please, spare us your drama show: an opinion based on a lack of information isn't worth having.

http://www.theonion.com/content/news_briefs/study_38_percent_of_people

[Marrah_G]

28. I would be surprised if he wasn't

[no limit]

43. I wanna feel bad for the guy. But you realize that this only happens to black victims right?

I think we all know that the only reason that gun was ever pulled was because the victim was black.

[MrSlayer]

5. Gross negligence and manslaughter.

It seems that the cop was going to use his gun to threaten the perp and it went off accidentally. I agree that he must do some hard time for this. He had no reason to even threaten with his gun.

[Howzit]

7. "went off accidentally"

The cop was pointing the gun at the deceased; his finger was on the trigger - that is no accident.

[MrSlayer]

9. I cannot claim to know his mind.

But watching it over and over, the way his face looks tells me he did not mean to shoot the guy. He's shocked and confused. His body language isn't that of a cold executioner or a raging maniac it is of a person who just fucked up big time. I'm sorry but I'm just not seeing this guy as the jackbooted Nazi murderer so many are portraying him as. Compared to the many videos I've seen of true police brutality I'm not seeing the deliberate action. I'm calling very unfortunate, completely avoidable, accident. Gross negligence and second degree manslaughter.

[blendermax]

10. That's quite a load indeed

"It seems that the cop was going to use his gun to threaten the perp and it went off accidentally. "


is it standard procedure for an officer of the law to pull out a gun on someone who is unarmed, on the ground, with his back toward you? as a police officer, how or why would you even think to point a gun and 'threaten' to shoot at someone in that position??

[MrSlayer]

19. I agree, that is the gross negligence.

He never should have drawn the weapon at all.

[blendermax]

35. 'Gross negligence'

that would set quite a precedent.

so now you can point a gun at any unarmed citizen, pull the trigger and shoot them in the back, then simply state that you didn't mean to do it? oh, boy.

[MrSlayer]

67. Whatever dude.

You want it to be a premeditated murder so that's the way you'll look at it. You're entitled to that, I see it differently. Ultimately it doesn't matter what either of us think.

[acmavm]

14. WOW! "...it is of a person who just fucked up big time."

Tell that to the kid's parents.

[MrSlayer]

18. It is, the dude looks shocked and horrified that the gun went off. That's how I see it.

There is nothing you can tell the parents and family that would make them feel better, nothing. That doesn't change the fact that I see this as the rent-a-cop making a tremendous, unintentional, mistake. It's horrible and tragic but it isn't a cold blooded execution. There is going to be a lawsuit and huge settlement.

[acmavm]

20. Criminal negligence. Depraved Indifference. Whatever. There

are laws that cover this type of situation.

In this case, IGNORANCE IS NO EXCUSE.

[Uzybone]

39. Maybe he didn't mean to kill the guy (yeah right)

but he meant to pull the trigger. He un-holstered the weapon, stood up, extended his arm and fired. You don't do those things by accident.

[11 Bravo]

47. I have witnessed an accidental discharge, by trained infantrymen, on a firing range,

on more than one occasion. I'm not saying that's the case here, but it happens.

[TahitiNut]

50. As have I. But it begs the question of why a BART cop has a chambered round in his holstered handgun

I doubt I'd have a clip in mine, let alone a chambered round. And that's just the FIRST question I have. It's MY attitude that merely drawing a handgun implies an intention to use deadly force -- something I'd do ONLY in circumstances where I had reason to believe my life was under threat. You DON'T draw unless it's necessary. I see no procedural or circumstantial rationale for his actions. He's a loose cannon.

[Statistical]

54. All LEO have chambered round in their sidearm.

It is policy for every police department that duty weapon be loaded (as in round in chamber) when on duty. Period.

A firearm without a round in the chamber is a club, and a expensive infective club at that.

[anigbrowl]

63. He's a loose cannon, but police load their guns before they go out.

Do you seriously imagine that any police walk around without a clip in their sidearm? Be realistic. It's one thing to leave the gun empty if you keep it at home, but if you legally carry then it's because you want to have a weapon at hand, not a half a weapon which needs to be loaded first.

[11 Bravo]

66. I agree TN. There's no doubt the cop fucked up, and needs to pay. I'm just not prepared ...

to accuse of him of Murder One.

[blendermax]

8. Murder in the 1st degree

In CA, I believe the sentence for that is the death penalty.

[ellisonz]

13. I would hope 2nd degree...I think you'd have a hell of a time proving intent with this one.

[WeDidIt]

16. Intent exists even if one second prior to the act

and he clearly intended to shoot the man in the back while his hands were cuffed and he was subdued.

It's murder in the first.

[ellisonz]

17. Substitute pre-meditation for intent.

[Marrah_G]

29. No, it really isn't

[aint_no_life_nowhere]

65. Even a fraction of a second is enough - no planning necessary

Murder in California is divided between first and second degree. I don't see a case for first degree murder here under California law, but possibly second degree. First degree murder CAN lead to the death penality whereas second degree does not. First degree murder charges are reserved for certain particularly deplorable acts on society, such as murder by lying in wait, murder that occurs during the commission of another felony, during torture, through a weapon of mass destruction or other listed means. All others are second degree murders. Both first and second degree murder require proof of malice aforethought.

Malice aforethought can be either express (actual ill will or hatred) or implied (no evidence whatsoever of ill will). Implied malice exists if the defendant intentionally committed an act, the natural consequences of which were dangerous to life, that he/she knew was dangerous to life and nonetheless acted deliberately with conscious disregard. Ill will or hatred is not required (People v. Sedeno (1974) 10 Cal.3d 703, 722). Implied malice can be found when there appears to be no considerable provocation that led to the act. An example of second degree murder with implied malice aforethought would be a man suddenly punching another man in a bar with only the intention of hurting him but actually killing him instead (he knew the act could be dangerous to life and acted deliberately, consciously disregarding this knowledge). Provided there are no complete excuses (like self defense) or mitigating factors (like intoxication) the malice aforethought is implied, even if the man says he only wanted to teach the guy a lesson and didn't intend to kill him.

No specific amount of premeditation, planning, or prior deliberation is required. A decision to do the act that was arrived at in only a fraction of a second is enough. This is specifically made clear in the California Criminal jury instructions that are given to juries trying the facts in murder cases in California.

According to California Criminal Jury Instructions (CALCRIM 520):

____________________
".......CALCRIM 520. Murder With Malice Aforethought (new instruction)
The defendant is charged with murder.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant committed an act that caused the death of (another person/ a fetus);



2. When the defendant acted, (he/she) had a state of mind called malice aforethought(;/.)

<Give element 3 when instructing on justifiable or excusable homicide>

3. (He/She) killed without lawful excuse or justification.]

There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.

The defendant acted with express malice if (he/she) unlawfully intended to kill.

The defendant acted with implied malice if:

1. (He/She) intentionally committed an act;

2. The natural consequences of the act were dangerous to human life;

3. At the time (he/she) acted, (he/she) knew (his/her) act was dangerous to human life;

AND

4. (He/She) deliberately acted with conscious disregard for (human/ fetal) life.

Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time. ......."
______________________________

[anigbrowl]

61. Facts...

As a matter of fact, his hands were not cuffed. Cuffs were put on after the shooting occurred. California law requires premeditation for first-degree murder; unless the officer was heard earlier in the evening expressing a desire to shoot someone, such premeditation would be impossible to prove and I think its most unlikely a DA would bring such charges.

Do NOT interpret this as me offering support for the cop or his actions.

[anigbrowl]

60. Somehow, I'm guessing you're not a lawyer.

I most definitely think this cop should go to jail. But based on the facts as we know them, it's more likely he'll be charged with 2nd degree murder.

[WeDidIt]

15. IF Justice exists in California

He'll be treated as any other capital murderer and the DA will seek the Death Penalty.

[Statistical]

23. Thank god laws exists to protect society from "progressives"

Anyone happen to take a couple seconds from dreaming of ending this mans life to look up the law

All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.

As used in this section, "destructive device" means any destructive device as defined in Section 12301, and "explosive" means
any explosive as defined in Section 12000 of the Health and Safety Code.

As used in this section, "weapon of mass destruction" means any item defined in Section 11417.

To prove the killing was "deliberate and premeditated," it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.

So to kill this guy for some kind of sick "eye for an eye" satisfaction as some in this thread wish for the DA will need to prove beyond reasonable doubt that the cop shot with deliberate and premeditated intent to murder.

Not an accidental shooting. Not a excessive reaction. Not a mistake. Not a tragedy from a poorly trained cop who didn't follow police procedure. For it to be 1st degree murder the cop in cold calculated manner would have had to decide before drawing the gun: "I am going to murder this guy today. No matter what happens he won't live beyond tonight".

EVERYTHING in the video says exactly the opposite. His own immediate reaction indicates that wasn't the case.

I am not saying a crime wasn't committed but not every time someone dies is it murder. That is why in CA (and every other state) there are varying degrees of homicide. Negligent Homicide, manslaughter, 2nd degree murder, 1st degree murder, etc.

The idea that someone dies and the immediate and only possible recourse is an execution is sad.

Progressive Killing. Maybe that can be a new plank for the Democratic Party. Expansion of death penalty in "eye for an eye" statute. Anytime someone dies and you are responsible negligent or not you die.

I know, I know.... we could nickname it the "kill em all and let God sort them out" law. :wtf

[PVnRT]

27. So, if he wasn't a cop, would you say the same thing?

Or are they priviliged somehow?

He shot an unarmed, subdued suspect. The guy was on the ground with a knee in his back. Why would you even pull a gun at that point? How is he a threat? I seem to remember that one of the big rules of handgun safety is to not point it at someone unless you plan on shooting them.

[Statistical]

30. If you add one more strawman to that pile you could start a forest fire

I didn't say it wasn't a crime.
I didn't say he shouldn't be punished.
I didn't say he isn't going to jail.

All I said is by the law it isn't 1st degree murder unless it was his INTENTION to murder. Period. That is the law.
I copied the exact text from CA penal code in the above post.

There is no evidence to support that allegation.
There actually is some reasonable doubt to create an affirmative defense.

To demand a punishment now allowed by the LAW isn't JUSTICE it is simple REVENGE. Not a very progressive idea.

Law of unintended consequences also comes into play:
Are you are in CA that the trial judge can reject lesser charges. So if the DA is STUPID ENOUGH to bring up 1st degree murder in a case where the facts clearly don't support it the judge to prevent a miscarriage of justice can dismiss all the lesser charges. The Jury can't consider a lesser charge and in that situation must choose 1st degree murder (after the defense attorney spends hours explaining how the facts aren't even supporting that charge) or nothing. when pushed jury could choose nothing.

If you want the law in your state to support capital punishment regardless of the situation then change the law. Until then arguing for a punishment not defined by the law is barbaric.

[PVnRT]

31. I'm not arguing for the death penalty

You, on the other hand, are using the tried-and-true "Well, technically" kind of argument that I see used far too often by the other side to deflect attention from the central issue.

[Statistical]

33. Well maybe you should read the post I responded to....

Here I will save you the effort:

This the post that I responded too.
IF Justice exists in California

He'll be treated as any other capital murderer and the DA will seek the Death Penalty.

Everything about my post was that the crime doesn't meet the criteria for 1st degree murder and certainly doesn't meet the criteria for death peanlty.

Nowhere did I once say he was innocent. Nowhere did I once say he shouldn't be punished.

My only "crime" is that I advocated three crazy concepts
1) The man needs to have a trial if he chooses where all the facts can come out.
2) The man should be charged with the correct crime WHICH IS NOT 1st degree murder.
3) The man should be punished in accordance with the rule of law, not the rule of mob (which as I showed for CA statute would rule out death penalty)

At one time those concepts would be considered "progressive". They aren't anymore?

[no limit]

49. Dude, what the fuck?

Stop making so much sense, there's no room for that here.

[Bake]

55. It appears he DID deliberate to some extent, just not for very long.

1. He pulled the gun from the holster.

2. He pointed it at the subdued suspect.

3. He pulled the trigger.

Each of those is an intentional act, each one demonstrates his intent. His reaction may just indicate, "holy shit, I just fucked up big time."

The DA could very well make a case for 1st degree murder. Let the officer present whatever defense he can. Let the jury decide. I'm not saying execute the guy; lock him away for life without parole if he is convicted.

Bake

[Statistical]

56. And if he gets off with not guilty because he DA over reached?

Would you be happy with that.

If everything points towards negligent homicide and DA can easily win that case and/or guy is willing to take plea deal on negligent homicide....

The DA should still push for 1st degree and potentially lose and he walks?

[Bake]

62. I'd say that's the DA's call, not mine.

Although if the DA overreaches or the guy otherwise gets off, I wouldn't give $0.02 for his chances of surviving very long.

Bake

[Brewman_Jax]

25. Law enforcement has to be held to a higher standard

since the holder of a badge and gun literally holds someone's life in their hands. Just as crimes against law enforcement are punished more harshly, criminal acts by law enforcement must be punished more harshly also. He shouldn't get to walk away.

[backscatter712]

34. Damned straight.

Too often, acts that would get a regular guy 10+ years in maximum security result in a paid vacation suspension with pay and a sternly-worded letter when done by a cop.

Crimes that are punished harshly when performed by civilians should be punished twice as harshly if performed while wearing a badge. Society needs to show zero tolerance towards police abuses.

[sasquatch]

45. .

:thumbsup:

[dysfunctional press]

32. i didn't realize that being an unabashed hillary supporter was THAT bad...

:shrug:
give the guy a break already.

(are we talking about the same bartcop? http://www.bartcop.com

[AnotherDreamWeaver]

52. bartcop in Oklahoma is not the BART (bay area rapid transit) Cop

Who shot and killed an unarmed restrained man.
Just to make it clear.... (or were you goofin with us)

[HiFructosePronSyrup]

38. Murder for the cop, and the two cops standing nearby.

This never would have seen the light of day if somebody hadn't recorded it.

[Uzybone]

40. He needs to be tried for murder

thats what it looked like to me from every angle Ive seen. The man was subdued on his stomach. Officer Johannes pulled out his gun, stood up, aimed and fired. His reaction afterwards means nothing. If this wasn't on tape I guarantee you we would be hearing about how vigorously this guy was resisting arrest.

[WhiteTara]

41. they need to arrest him first. n/t