'Crying Out for Justice': Oscar Grant's Family Vows to Keep Fighting After DA Declines to File New Charges

Alameda County District Attorney Nancy O'Malley announced Monday that her office will not file any charges against former BART Police Officer Anthony Pirone for his role in events leading up to the killing of Oscar Grant in 2009.

The DA's decision came three months after O'Malley's office announced the reopening of its investigation into the case.

"My heart hurts on today, because 12 years I've been crying out for justice for my son," said Rev. Wanda Johnson, Grant's mother, in a press conference Monday. "Let the district attorney do what is right and charge him for the acts that he committed that led up to my son's death."

The 22-year-old Grant was shot in the back as he lay face-down by former BART Police Officer Johannes Mehserle at Oakland's Fruitvale Station in the early morning hours of New Year's Day, 2009. Mehserle was convicted of involuntary manslaughter in 2010, after claiming he had meant to reach for a Taser instead of his firearm — a claim investigators disputed in a 94-page report released in May 2019 under terms of Senate Bill 1421, California's police transparency law.

That report, completed by independent investigators hired by BART in July 2009, also laid much of the responsibility for the shooting on Pirone, saying that his aggression and use of a racist slur "started a cascade of events that ultimately led to the shooting."

"I want to say to you that when you sleep on tonight and you think about why we're standing here — why I'm standing here — it's because my son laid on the cold concrete with that officer Pirone's knee in his neck," Johnson said. "And he continued to say he couldn't breathe. My son's head was smashed against the wall and he was kicked and he was punched. And the officer, Pirone, still walks around free today."

According to witnesses, Pirone was "very agitated" and "crazy" at the scene, shouting profanity-laced orders as he rushed onto the platform to respond to reports of a fight on a train. He used a racial epithet multiple times while pinning Grant on the ground, but later said he was only repeating what Grant said to him.

In the wake of the report, Grant's family is calling for a felony murder charge against Pirone

"It can't be hard to see that he was treated not human-ly. It couldn't be hard to hear that a racial epithet was used against him. And if you or I used those against someone, and a crime was committed, we would definitely be charged with the hate crime," Johnson said. "So I'm not asking anything different than what our United States Constitution says or what our laws say. I'm asking for him to be charged for his actions leading up to my son's death."

In a video released Monday, O'Malley said she reopened the case in October after Grant's family contacted her, asking her to reexamine Pirone's involvement.

While condemning Pirone's actions, O'Malley said that "while Pirone's overly aggressive conduct contributed to the chaotic nature of what transpired on the BART platform," he cannot be charged with aiding and abetting in the killing.

In the 16-page report on the decision Monday, investigators state that Pirone cannot be charged with murder because “There is no evidence that Pirone personally caused Mr. Grant’s death.”

O’Malley also said Pirone could not be charged with aiding and abetting a murder, because he did not know beforehand that Mehserle was going to shoot Grant. And murder is the only charge where the statute of limitations have not run out.

“Pirone did not kill Oscar Grant. He could not legally aid and abet in the crime of involuntary manslaughter of Oscar Grant. Even if the law recognized that theory, which it does not, Pirone could only be found guilty of involuntary manslaughter. The Statute of Limitations has long ago expired and charges could not now be filed,” the report said.

The decision also cites a recent California Supreme Court decision, saying in the report that “a non-killer participant in a crime cannot be held vicariously liable for any death that results from that crime” unless the participant knew beforehand that death would likely occur and “with a knowing and willful disregard of the likelihood that death would occur."

Grant’s family and their attorneys plan to keep meeting with O’Malley and pressing for criminal charges.

"We want you to know that the fight still goes on. We've been standing at these banks, as you know, for the last 12 years and we're not going anywhere," said Cephus "Uncle Bobby X" Johnson, Grant's uncle.

"Tony Pirone committed murder on that platform and he should be charged with felony murder," he said. "He violated Oscar Grant's civil rights. And we know he should be held accountable for those wrongful acts."

KQED reporter Alex Emslie contributed to this report. Bay City News contributed to this report.