Update: African-American Who BART Police Stunned With Taser Freed From Jail

Update 5:10 p.m.

KQED's Isabell Angell reports: BART Police policy states Tasers should be used only when there is "immediate threat to bodily harm."

Robert Weisberg, who teaches criminal justice at Stanford Law School, reviewed the video. He says it's unclear if the man, identified as Robert Asberry, fits that description:

"The man was resisting persistently but not in any way that you would describe as aggressive, maybe not even in any way that you would describe as active. And no obvious reason you can tell from the tape, and again this is limited, that he was threatening any harm."

Update 4:40 p.m.

Steve Tuttle of Taser International reviewed the video for KQED News. He confirmed via email that the weapon that had struck Robert Asberry was manufactured by his company and is called an X26: "The first X26 deployment at 33 seconds appears quite effective and of note you will notice it’s 'quiet.' At the 3 minute mark the X26 is actuated but the unit is 'loud' appearing to have no effect.  This is usually indicative of a probe being pulled away from the body or a wire was broken.  (The probes have to be attached to skin or if attached to clothing they must be no less than an inch away from the skin.)  When you hear loud electrical pulses the energy is arcing in the air and the current is not received by the suspect.  A TASER weapon delivers these 19 pulses per second for a 5-second cycle but when it’s loud like this it has zero effect.  It’s all or nothing with a TASER device and is actually very quiet when the circuit is completed."

Update 12:40 p.m.

KQED’s Isabel Angell reports that Robert Asberry has been released from jail in Redwood City after serving 15 days of a 30-day sentence after not contesting charges of being drunk and disorderly on the night of Jan. 29, when BART police shot him with a stun gun during his arrest on a train in the San Bruno station. Authorities told KQED that all additional charges against Asberry -- resisting arrest, battery on a police officer and a felony parole violation -- were dropped.

Update 11 a.m.

KQED's Isabel Angell has obtained the official "event record" from BART of the Jan. 29 incident. At 10:05 that night, an anonymous caller reported that an African-American man was drunk and harassing customers on the platform at the 24th Street BART station. According to the report, the train was stopped at San Bruno Station, where a BART police officer boarded the train and confronted the suspect. The report identifies the man, who was subsequently arrested after being shot by an officer with a taser gun, as Pittsburg resident Robert James Asberry.

Original Post:

BART is investigating an incident from the night of Wednesday, Jan. 29, in which a transit police officer was videotaped using a taser to take an African-American man into custody. KQED's Isabel Angell reports that BART authorities expect their investigation to take six months, and that the officer involved in the incident has not been reprimanded or placed on leave.

The video, which is credited to Rahul Gondalia, runs just over 13 minutes, and shows a passenger who appears to be docile at first but grows increasingly agitated after BART officers use a stun gun on him. Six police officers can be seen in the video. The passenger, lying on the floor of the BART train close to a door, curses repeatedly and tells the officers that they wouldn't have done anything if he had been white. He mentions Rodney King at least three times and says, "I didn't do nothing … Everybody, put your cameras on."

According to the police log of the incident:

1/29/14 2205 hours
An officer responded to a report of a man who was drunk and harassing patrons on a Millbrae bound train. Upon detention, the suspect (became) resistive and a TASER had to be used to take him into custody. A warrant check on the suspect revealed an outstanding no-bail arrest warrant out of the California Department of Corrections for parole violation. The train was held for 18 minutes. A sergeant arrived at the scene to approve the arrest and conduct the use of force investigation. The suspect was taken to Peninsula Hospital for clearance prior to being booked for resisting arrest, the warrant, and public intoxication.1401-4266 L12

Also, per policy and protocol BART Police has initiated the proper investigation into this incident. The link to the video on the internet was also forwarded to BART's independent police auditor.

Angell reports that the person who called police to complain about the man they arrested was not on the train but rather standing on a platform in a BART station.

In a post published by AlterNet, Vidya Kaipa, a woman passenger on the train who was sitting next to the man arrested by police, says he was not harassing her. She says that police initiated the arrest even though she told them, "It’s fine. He’s not bothering me. It’s OK.”

Kaipa adds: “It went from being about me to being about the police officer."

Kaipa's full account of the incident appears on "Medium."

The latest incident between BART police and an African-American man is certain to reignite the controversy surrounding the Oscar Grant case, which is currently being litigated in the courts. That case, in which Grant was killed by a BART officer, formed the basis for the film "Fruitvale Station."

Here are excerpts from Kaipa’s written account of her 20-minute BART ride with Robert Asberry:

Tonight, I caught the 9:56 pm Millbrae-bound BART from Civic Center. I usually work late, but I rarely feel threatened — there are always plenty of riders at that time, plus I’m good at putting up defenses. I’m small, but (or maybe because of that) I’m street-smart.

So it didn’t bother me when a few stops later, an extremely drunk black man — whose name I later overheard by the police cuffing him to be Robert — crashed onto the seat next to me. I was near the entrance, in a seating area where four seats faced one another, and the train was relatively packed, so I didn’t feel particularly isolated or targeted. He smelled of booze and his words were slurred, but he asked me about the book I was reading and I could tell that he was harmless. This is an opinion I have maintained and have repeated countless times to several police throughout the whole ordeal.

… I asked him where he was headed, and he told me he was from East Oakland but that he was going to Richmond, where his sister would pick him up. I suggested he get onto the opposite platform, since this train was headed to Millbrae. He politely asked if he was bothering me and said that he would leave me alone, but that he wanted to keep sitting next to me because I was a beautiful and good person. I assured him that he wasn’t a problem—I have a bizarrely high tolerance for friendly drunk/drugged out randos …

… I was never concerned about my safety. If I really felt worried, I would have moved, or I could have indicated my discomfort by at the very least moving my backpack and phone away from him. Not only did I do neither of these things, I continued to engage, smile, laugh, and generally go along with the conversation.

So I was just as surprised as Robert was when a BART policeman boarded the train at San Bruno and (in his defense) politely asked him to disembark so that he could ask a few questions. I didn’t realize until a few minutes later that someone had specifically called the police, reporting Robert for some unknown reason. Robert didn’t want to go, understandably, and asked why he should get up. I vouched for Robert — I told the cop that he wasn’t bothering me, and that it was totally okay with me if he wanted to continue on. The cop repeated (again, in his defense, in a friendly tone) that he just wanted to ask a few questions, that it wouldn’t take too long, and that Robert would be free to get onto the next train. Robert said no.

After a few relatively civil back-and-forths, the cop lightly touched his shoulder, saying “come on, let’s just talk on the platform.” Robert shook him off. This continued for a bit. Eventually, it escalated to the point where the cop was physically pulling him up from the seat with two hands, and Robert was pushing the cop off him. When both men were standing, Robert cornered by the door to the next carriage and the cop standing in the path to the main entrance, Robert asked again and again why the cop wanted him to get off the train, and that he hadn’t done anything.

…At one point, Robert got very aggravated and tried to sit down again, or maybe it was that he was just shouting and the cop got tired of trying to peacefully usher Robert out of the train. So he pulled out his taser and told Robert that if he didn’t disembark the train, he would tase him.

… He literally didn’t do anything, and on top of that, he was a genuinely nice guy. We were having an admittedly uncomfortable conversation, but only because I was tired and didn’t want to talk to anyone, not because I didn’t want to talk to him. So he was completely in the right to ask for what reason the cop wanted him off the train, and to not get off until that question was answered. Unfortunately for him, he ran.

To the cop’s credit, he didn’t pull the trigger right away. He gave ample warning, enough so that the man on the diagonal seating (next to where Robert was standing, backed against the doors to the next carriage) had bodily covered the woman next to him in anticipation of the scene that was seconds from occuring. Robert moved around the carriage, at one point sitting next to me again. At this point, I genuinely feared being accidentally tased myself; the taser points a red laser beam at its target, and I saw that target slip to me for a split-second.

Unfortunately, Robert didn’t “cooperate,” and the cop shot him. Watching someone get tased is one of the worst things I have ever seen—I can’t imagine actually being tased. Robert limply fell over onto the seats in front of me, crying and twitching, and the cop leaned over to lift him outside. Robert tried to get up again, and the cop threatened to tase him a second time. Finding that he was too heavy, the cop ended up dragging him to the entrance. (The soundtrack of this memory will always be the man diagonal incredulously breathing, “oh my god… oh my god.”) The cop called for backup, and a few others came in time for Robert to regain some control and start resisting again. As the cops cuffed him and held him down, Robert tearfully shouted that he hadn’t done anything wrong, that everyone on the train saw, that we take videos and pictures and prevent another Rodney King incident. Despite the two other officers physically restraining Robert, the initial officer tased him a second time, with a sickening five-second shock that was both excessive and unnecessary.

… To their credit, the cops that came afterwards were as compassionate as they could be in the situation. He was kicking around (understandably), but they were gentle and nicely told him they wanted him to stop kicking them so that he could sit up on a bench and drink some water. He wouldn’t, eventually breaking down crying uncontrollably and repeating that he hadn’t done anything. Watching him get strapped into a body-binding contraption so that they could move him, while he plaintively cried his innocence, might have broken the last intact piece of my heart. … An officer asked if I would give a statement, and I immediately stepped off the train in compliance

I’m hesitant to jump to the “police brutality” conclusion, because the aggression wasn’t totally unprovoked. Yes, the cop definitely shouldn’t have used the taser, but at the same time, Robert shouldn’t have resisted the cop for so long. That being said, Robert should have never been stopped in the first place, because he wasn’t posing a threat.

So really — what’s the best-case scenario? There is none, and that’s what makes this so awful and heartbreaking and outrageous. A man sits next to a woman on public transit, is asked to leave the train, doesn’t, then gets tased, dragged, cuffed, forcibly bound, and carried out. It’s really not more complicated than that …

BART Police Event Record for Robert James Asberry