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BART turns over internal affairs probe to independent, third-party law firm

BART announced today that it has turned over its internal affairs investigation to the Oakland-based law firm of Meyers Nave. Meyers Nave is an independent, third party that will investigate the actions of all the officers present during the events leading up to the shooting death of Oscar Grant on January 1, 2009, on the Fruitvale Station platform. 

"Meyers Nave has strong ties to this community and extensive experience in conducting internal affairs investigations," BART Board Member Carole Ward Allen said. Ward Allen chairs the newly formed Board of Directors BART Police Department Review Committee.  "All of us on the Committee felt it was essential for the public to have complete confidence in the findings of this internal investigation – and that the best way to guarantee that confidence was to bring someone in from the outside with an impeccable record to conduct the investigation independently."

Video of the press conference where the announcement was made is available on BARTtv.

DIFFERENCE BETWEEN INTERNAL & CRIMINAL INVESTIGATIONS
There are two investigations taking place; the internal affairs investigation now being handled by Meyers Nave and the ongoing criminal investigation by the BART Police Department, which includes the investigation into the actions of the six officers who were with now-former officer Johannes Mehserle on the platform at the time of the shooting.

"The criminal investigation is examining any and all use of force by the officers that night," BART Board Member Joel Keller said.  Keller is Vice Chair of the BART Police Department Review Committee. "The results of the criminal investigation will be delivered to the District Attorney’s office, which will determine if any of the actions of the six other BART police officers rise to the level of prosecutable conduct. The internal affairs investigation will primarily focus on the time those officers were on the platform, however, it will also look into the events on the train that preceded the officers’ arrival as well investigate the tactics and actions of the command staff who directed the officers."

If anyone has any information about the case, please contact Meyers Nave at 510-808-2055 or email [email protected]  or contact the BART Police Department at 510-464-7040.

BOARD COMMITTEE’S NEXT STEPS
Now that the Board Committee has turned over the internal affairs investigation, it will also engage experts in law enforcement to conduct a top-to-bottom review of all BART Police policies and procedures. Keller said he anticipates that an expert or experts will be identified in the next couple of weeks.

The Committee also plans to host workshops and discussion forums as a way to involve the public while the Committee members:

  • Review the different approaches to citizen oversight of police.
  • Hear from members of established citizen oversight review boards.
  • Work to identify the best oversight model for BART police.
  • Conduct an in-depth review of the practices and policies of the BART Police Department.

BOARD COMMITTEE ENLISTS EXPERTISE OF REGINALD LYLES
Additionally, the Board Committee announced today that it has retained the services of Reginald Lyles to support the Committee in its work. Mr. Lyles is a long-time member of the Oakland faith community. He spent over 20 years with the Berkeley Police Department, and he retired from law enforcement as a Novato police captain in 2003.

Mr. Lyles will support the work of the Committee as it seeks significant community input and involvement in the establishment of citizen oversight of BART police and in the comprehensive review of the BART Police Department.

ABOUT MEYERS NAVE
Meyers Nave is known throughout the state for its expertise in a broad range of police work and public law.  The Oakland based law firm has a solid reputation built on the highest ethical standards. The firm has a 20 year history of producing independent, objective reports that have led to the discipline and termination of officers in other jurisdictions as well as changes in the policies and procedures of other law enforcement agencies.  The Meyers Nave team that will conduct the internal investigation includes:

Jayne Williams
Jayne Williams is the managing principal of Meyers Nave. She is a member of the firm's public law department and currently serves as the city attorney for the City of San Leandro. Jayne has extensive experience in strategic planning, managing and coordinating litigators and transactional attorneys in complex civil litigation and innovative public project initiatives.  She is an acknowledged expert in all aspects of representation of elected and appointed public officials and public agencies. 

Kim Colwell
Kim Colwell is the chair of Meyers Nave’s Tort/Civil Rights Litigation Practice Group and Litigation Manager for the entire Firm.  Kim has handled hundreds of police conduct cases have involved police civil rights litigation, from minor traffic stops through hostage situations, false arrest, taser cases and shootings.

David Cunningham
David Cunningham, a principal in Meyers Nave’s LA office, has extensive experience in police work, having presided over 250 use of force cases while serving on the Board of Police Commissioners, the civilian oversight body over the Los Angeles Police Department. David is also currently an appointed member of the Los Angeles Sheriff’s Equity Oversight Panel whose function is to make findings and recommend discipline following investigations of harassment and discrimination within the Los Angeles County Sheriff's Department. 

Art Hartinger
Art Hartinger is a principal at Meyers Nave and chairperson of the Labor and Employment Department. Art regularly handles administrative matters, including employee termination proceedings, grievances and wage and hour matters, where he advises and supervises internal investigations. 

FREQUENTLY ASKED QUESTIONS REGARDING HIRING OF OUTSIDE FIRM TO CONDUCT INTERNAL AFFAIRS INVESTIGATION

WHY HIRE AN INDEPENDENT FIRM TO DO AN INTERNAL AFFAIRS INVESTIGATION?
We are taking this unusual step of handing over our internal affairs investigation to an independent third party to assure ourselves and the public of the absolute objectivity of this investigation.  It is imperative that BART determine whether the actions of the officers on the platform violated any policy or procedures of the BART Police Department or state or federal law. While we have every confidence in the capabilities of our BART Police Department’s Internal Affairs office to investigate its own officers, we believe that handing off this investigation to an independent third party will assure the public that we take this investigation extremely seriously and the findings and recommendations that Meyers Nave presents will be credible. We believe we need to rebuild trust with the public and one way to do that is to ask a third party to have a reputable independent firm conduct the investigation.

WHAT’S THE DIFFERENCE BETWEEN BART’S INTERNAL AFFAIRS INVESTIGATION AND ITS CRIMINAL INVESTIGATION?
There are two investigations taking place. The internal affairs investigation, which BART has retained Meyers Nave to conduct, will investigate whether the actions of any officer on the platform violated BART Police policies and procedures.  The results of an internal affairs investigation can lead to changes in policies and procedures, retraining or disciplinary action, up to and including termination.

A separate criminal investigation was conducted to determine if any laws were violated.  District Attorney Tom Orloff used the investigation conducted by the BART Police Department, along with the parallel investigation by his office (with the assistance of the Oakland Police Department), to criminally charge former officer Mehserle.  BART’s role in the criminal investigation is ongoing and will include the review of the level of force used by the officers on the platform.  Now that the DA has released BART police investigators to resume interviews with witnesses and police officers and has provided critical video evidence, BART Police hope to complete its investigation and turn over the results to the District Attorney’s Office in the next two weeks.  The District Attorney’s Office will decide if any other officer’s action warrants criminal prosecution.  BART Police investigators anticipate presenting the investigation to the District Attorney in the coming weeks.  The District Attorney will determine if criminal charges are warranted. 

WHAT WILL MEYERS NAVE’S MISSION BE?
The firm will conduct an independent, objective and unbiased internal affairs investigation of all seven BART police officers who were present during in the New Year’s Day shooting. While the firm will primarily focus on the actions of those officers on the platform, it will also look into the events on the train that preceded the officers’ arrival as well as investigate the tactics and actions of the command staff who directed the officers. The firm’s assignment is to determine whether the officers and command staff acted within the policies, practices and procedures of the BART Police Department.  The firm will also look at whether the policies, practices and procedures used on New Year’s Day conform to both state and federal laws as well as align with the best practices of the policing profession. 

Here are some examples of what the firm will investigate:

  • Whether or not the level of force used was appropriate;
  • Whether or not the officers acted professionally and their contact with the public was appropriate;
  • Whether they had reasonable cause to detain;
  • Whether or not the officers acted reasonably.

HOW WILL THE FIRM ACCOMPLISH ITS MISSION?
Meyers Nave will begin by gathering and reviewing every piece of evidence that is available, including the 40 plus witness statements, platform camera video and mobile phone videos. The firm will also review relevant BART Police Department’s policies, including General Orders, Operational Directives and Standard Operating Procedures.  The firm will seek to interview all the officers on the platform to get a detailed understanding of what they were doing, when they did it and why. 

Meyers Nave will also re-interview all of the witnesses to gain a more comprehensive view of what they saw and heard, focusing on both the shooting and the actions of other officers on the platform.  If they identify additional witnesses, they will interview them as well.

The firm will analyze the actions of each officer separately and decide whether each officer’s actions were appropriate. If the firm finds that the officers acted outside of established policies and procedures, it will recommend appropriate actions BART should take. Additionally, the firm will:

  • Retain independent “Police Practices” experts to look at use of force issues – both physical use of force and verbal commands
  • Review and analyze the various citizen and BART videos of the scene
  • Reconstruct a timeline of events
  • Review BART’s investigation thus far – and comment on whether BART conducted it properly.


WHAT WILL THE FIRM DO WITH ITS FINDINGS?
Meyers Nave will turn over its findings and recommendations to BART.  Those recommendations could include:

  • A finding about each and every officer
  • Whether there should be discipline up to and including the termination of any officers if they acted outside of BART Police Department policies, or outside of state and/or federal laws
  • Training or retraining of officers and/or supervisors
  • Changes to policies and procedures

WILL THE PUBLIC BE ABLE TO REVIEW THE FIRM’S RECOMMENDATIONS?
The firm will prepare a public report that will give as much detail as possible about its recommendations to the extent legally permissible.  Because some of the findings and recommendations will involve personnel information and details that involve active litigation, not all information can be disclosed.

HOW CAN THE PUBLIC TRUST THIS WILL BE INDEPENDENT, UNBIASED ACCOUNT OF WHAT HAPPENED?
Meyers Nave is known throughout the state for its expertise in a broad range of police work and public law.  The firm has been around for 20 years and has a solid reputation built on the highest ethical standards. The firm has a history of producing independent, objective reports that have led to the discipline and termination of officers in other jurisdictions as well as changes in the policies and procedures of other law enforcement agencies.   Furthermore, the members of the team must abide by the strict code of ethics that the California State Bar has established to guide the profession.

HOW LONG WILL IT TAKE TO PRODUCE THE REPORT?
Meyers Nave’s goal is to produce the report in three months.  However, the timetable will largely depend on being able to schedule timely interviews with all of the people to be interviewed.


IF I HAVE INFORMATION ABOUT THE CASE, HOW DO I CONTACT BART POLICE OR MEYERS NAVE?
If anyone has any information about the case, please contact Meyers Nave at 510-808-2055 or email [email protected]  or contact the BART Police Department at 510-464-7040.