quantum of force and force appliedmistakenly during a period of acutehypervigilance that causes death.

What is hypervigilance? This is one

Murder or Stress-InducedHypervigilance?Officer Johannes Mehserle and the Infamous"BART Shooting"

RON MARTINELLI,Ph.D., BCFT,CFA,CLS

On November 5, 2010, Superior CourtJudge Hon. Robert Perry sentencedformer BART Police Officer JohannesMehserle to two years in state prison forthe January 1,2009, accidental shootingdeath of 22-year-old Oscar Grant atthe Fruitdale BART station. At thetime, BART officers, including OfficerMehserle, confronted and engaged Grantfollowing a disturbance where Grantwas identified as a suspect. During theconfrontation, Grant physically resistedOfficer Mehserle, who subsequentlyshot the prone Grant with his handgun.Officer Mehserle stated that he thoughthe initially shot Grant with his Taser,only to immediately discover that heactually shot Grant with his sidearm.

Judge Perry's decision will foreverchange the lives of Mehserle and thesurviving members of Grant's family,and will collaterally impact Mehserle'sparents, his young wife and infantson. The judge's decision may alsoaffect the minority community whohas sought "justice" against what someactivists have historically claimed isthe "oppression of people of color bywhite police officers." Certainly thecircumstances of this incident, OfficerMehserle's indictment, prosecutionand conviction and his sentencing willhave a profound impact among certainsegments of the law enforcement andforce training communities.

As many recall, Officer Mehserlewas tried in a change-of-venue trialin Southern California for shootingand killing Grant, an unarmed BARTrider. Following deliberations, ajury subsequently convicted OfficerMehserle of involuntary manslaughterafter failing to convict him on charges

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of murder and voluntary manslaughter.While the jury did not find that Mehserleintended to kill Grant, they did decidethat the officer intended to shoot him.

There's the forensic rub. Exactly withwhat weapon then did Officer Mehserleintend to shoot Grant: a gun or a Taser?

As a 31-year law enforcementtraining consultant and a CSI forensiccriminologist specializing in forceanalysis, officer-involved shootings andthe psychophysiology of stress-inducedencounters, I have researched andwritten extensively on the psychologicaland physiological effects of acute stressupon officers and subjects. I have alsofound a clear nexus between a lackof appropriate force training, officermaturity and situational awarenesswith the occasional tragic consequencesof accidental and excessively appliedforce. In this case, I find a big differencebetween an intentional and excessive

of five psychophysiological states thata person may experience immediatelyfollowing an acute phobic scale response(fear/threatened) to a threat, such as asubject resisting or violently attackingthem. When threatened, humanswill only react in one or more of fiveseparate states: (1) assume a defenseposture (fight); (2) disengage from thethreat (flee); (3) posture-raise a voice,puff up their chest, aggressive gestures;(4) hypervigilance-defined as panic,confusion, freezing and/or performingan irrational act; and (5) submit-surrender.

Analysis of the recorded evidence inthis case shows that Officer Mehserlerepeatedly fumbled with his holsterwhile trying to use thumb movements

to remove his Taser. He then stood up tocreate distance; presented and pointedthe weapon at Grant about four secondsafter he announced his intention to Tasehim. Officer Mehserle then fired hisgun into Grant's back and immediatelyexclaimed in obvious surprise once herealized that he had actually shot Grantwith his handgun. How was this physicalpresentation in any way intentional,especially when there were recordedbehavioral cues that Mehserle's firingof his handgun rather than his Taserwas accidental? To Judge Perry's creditin sentencing former Officer Mehserle,he ultimately decided to dismiss the12022.5 PC gun enhancement after

metabolic rate (BMR) rises above 200beats per minute, the human thoughtprocess can almost instantaneouslytransition from forebrain to mid-brain,or "subconscious mind." If an officerlacks sufficient training or has beenimproperly trained in critical forceand weapon skill sets, there will be nocorrect force or weapon deploymentmemory for the brain to access. Insuch occasions, the officer may easilypresent with hypervigilance and reactwith confusion and irrational acts-likepulling a gun, yelling, "Taser!" and thenshooting an unarmed and previouslyresisting but now prone suspect inthe back. That's not murder and that's

finding that there was insufficientevidence to support the charge.

Use-of-force trainers andpsychophysiologists understand andteach that it takes approximately10,000 repetitions of any physicalskill to engrain that "memory" intothe subconscious "mid-brain." It isimportant to understand that humanbeings have a forebrain where allcognizant processing takes place,and a mid-brain where subconsciousmemories lie, but absolutely no thoughtprocessing takes place.

During an acute episode of extremestress when the body seeks to protectitself by involuntarily dumping "survivalchemicals" such as adrenalin, endorphinsand dopamine into itself, if the basal

certainly not the "intentional use of afirearm." That is just human nature andthe tragic result of the improper trainingof a young, immature, inexperienced,highly agitated and scared officer.

The scary thing is that we have agrowing number of Mehserle-likeofficers in our ranks these days. Use-of-force trainers and police administratorsknow it, but those administrators simplyput their heads in the sand and refuse totrain their officers properly.

In the immediate case, there appearsto be documented evidence that OfficerMehserle received insufficient trainingby the BART Police Department.The officer was a product of hisenvironment and, in a way, a hostage ofthe psychological panic and confusion

he experienced as a young and poorlytrained officer. The young Mehserle willhave to live with his fatal mistake for theremainder of his life.

While some minority actrvistsand Grant's family claim that OfficerMehserle's shooting of Grant was akin tothe Rodney King beating case, nothingcould be further from the truth. I knowbecause the Rodney King case was myfirst federal civil rights consultationcase as a police practices expert. Onthat occasion, I was one of a numberof experts who consulted with federalprosecutors. In the Rodney King case,the beating of Mr. King was intentionalexcessive force and the involved officersand their supervisor were eventuallyrightfully convicted for their crimes.Former Officer Mehserle's shooting ofOscar Grant was a tragic accident thatwas classless and colorblind in scope.

While I appreciate Hon. Judge Perry'spredicament in having to play KingSolomon to assuage Grant's familyand certain members of the East Baycommunity in sentencing Mehserleto prison, there is plenty of blame togo around for Grant's untimely andunfortunate death.

Today, in our superficial and indulgentsociety, people are more inclined toassess blame than accept responsibilityfor their actions. In this case, the issues ofcontribution to the death of Grant weredeflected and redirected toward formerOfficer Mehserle. This is not right.Grant should not have been involved inany type of disturbance that day, and hecertainly should have been compliantand cooperative when contacted byuniformed BART officers. If he hadcomported himself in this manner, hewould be alive today. Grant's associatesthat evening should have prevented,rather than initiating the disturbanceand enabling Grant's participation.The BART District commissionersshould have provided better oversightof its Police Department's use-of-forcetraining program, but did not. BARTPolice Department administratorsshould have ensured that their poorlydeveloped and executed force trainingprogram exemplified "best policepractices," but did not. Former OfficerMehserle should have continued to

Continued on page 38

DECEMBER 2010 37

MURDER OR STRESS-INDUCEDHYPERVIGILANCE?Continued from page 37

enhance his knowledge of best policepractices and his defensive force skill setsapart from the Department's influence,but did not. These are the human errorsthat created the "perfect storm" thatultimately resulted in Grant's death.

However, with all of the aboveconsidered, Mehserle should in noway be forced to solely bear the bruntof blame for Grant's death from theconfines of a prison cell. In this case,justice was neither coincidental norintentional. In my opinion, true justicedidn't occur.

About the AuthorDr. Ron Martinelli is a former police

officer and detective with over 22 years ofstreet experience primarily with the SanJose Police Department. Dr. Martinelliis a former director of a POST policeacademy and a multi-certified use-of-force instructor who also is a CSI forensiccriminologist and police practices expert

specializing in officer-involved shootingsand major uses of force. He is NCCMBoard Certified in Forensic Trauma, aDiplomate with the Academy of Expertsin Traumatic Stress, a Certified ForceAnalyst with the Force Science Center anda recognized member of the AmericanCollege of Forensic Experts Institute. Dr.Martinelli is nationally recognized for hisresearch on the subject of psychophysiology

and stress-induced responses. He canbe reached at (951) 719-1450 and atCode3Law@martinelliandassoc.com.

Go to: http://www.martinelliandassoc.com for more information on the author. 0:

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