Latest video-recorded BART police incident prompts use-of-force questions 

BART is investigating an incident on a train last month in which one of its police officers used a stun gun on a passenger, and the footage is calling into the question the use of force.

The incident involved Robert Asberry, a 43-year-old man on a Millbrae-bound BART train who was repeatedly shocked with a stun gun by a BART police officer without appearing to provoke the officer. The incident was captured on video by at least two other passengers, and another rider penned a lengthy blog about the experience.

The Jan. 29 nighttime incident in San Bruno prompted BART officials to open an investigation, and the transit agency’s police chief said the officer “had to use force to conclude the situation.”

Nonetheless, the incident has once again cast BART’s police force in a bad light and may raise questions about department reforms in the wake of the high-profile Jan. 1, 2009, shooting death of Oscar Grant III by then-Officer Johannes Mehserle.

The longer of the two videos, about 13 minutes, begins with a BART officer, who was responding to a report of an intoxicated passenger harassing other riders, repeatedly asking a tall black man to exit the train. Thirty-five seconds in, the officer yells, “Taser, Taser, Taser” then discharges his stun gun. The man falls.

“I didn’t do a thing,” moans the man.

Asberry was shocked a second time after more officers arrived and held him on the ground as riders watched, saying the man did nothing to provoke the officer.

The department’s stun-gun use guidelines -- which were born in the wake of the Grant shooting -- indicate possible excessive use of force.

“Objective facts must indicate the suspect poses an immediate threat to the officer or a member of the public,” the guidelines say about general use.

A stun gun, according to the guidelines, also can be used when “the subject has verbally or physically demonstrated an intention to resist.”

Stun guns should generally be avoided when a person is handcuffed, the guidelines say, and on any “subjects who are simply non-compliant” or “individuals suspected of being under the influence of drugs/alcohol.”

Guidelines aside, a lawyer involved in the Grant case said the video clearly showed that the stun gun use was questionable.

“It’s very clear that the officer who [shocked] this man was not under attack,” said attorney John Burris. The point could be argued, he said, but once the man was on the floor, the use of a stun gun was obviously not needed and “unlawful, excessive and gratuitous.”

click to enlarge BART officer
  • A video posted on YouTube shows a BART officer using a stun gun on a passenger.

It remains to be seen whether this is a sign of the police force’s lack of reform, said Burris, but the incident does not give him much confidence.

“The part that’s most distressing is that there were other officers standing around and they didn’t make any effort for this to stop,” he said.

BART Police Chief Kenton Rainey said Thursday that he would not comment on whether the stun-gun use was excessive, but he did say it appeared the officer “had to use force to conclude the situation.”

Rainey added that it’s “just wrong” to assume the officer must be assaulted before making a defensive action.

Referring to the video, he said that just “because the witnesses we see in the video said nothing was going on doesn’t mean the officer needs to disregard what is going on. More important, and I don’t want people to lose sight, oftentimes people engaged in this behavior -- a lot of times there is a lot more to just what we see when the officer shows up. This man had a felony no-bail arrest warrant.”

Asberry was arrested on suspicion of a parole violation, resisting arrest and intoxication, according to BART officials.

Asberry pleaded to a misdemeanor disorderly conduct and was sentenced to 30 days in San Mateo County Jail. All the other charges where dropped against the Pittsburg resident, according to the San Mateo County District Attorney’s Office.

About The Author

Jonah Owen Lamb

Jonah Owen Lamb

Born and raised on a houseboat in Sausalito, Lamb has written for newspapers in New York City, Utah and the San Joaquin Valley. He was most recently an editor at the San Luis Obispo Tribune for nearly three years. He has written for The S.F. Examiner since 2013 and covers criminal justice and planning.
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