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“Nobody can dispute the fact that the law is established that you can’t go blowing [away] a police officer making an arrest.” That’s what our federal court judge said when she denied the defense of qualified immunity to the rookie officers who shot and killed our client, Oakland Police Officer William Wilkins, in 2001.  Officer Wilkins was a veteran undercover officer arresting a suspect using standard police tactics when poorly trained rookie officers recklessly assumed he was a bad guy.  Sadly, Officer Wilkins’ death was preventable, as I think we are likely to find with BART Police Sergeant Tom Smith, shot and killed by a fellow officer yesterday. 

The San Francisco Chronicle reports that BART Sgt. Smith was shot by a fellow officer after they broke into an empty apartment to search for evidence of thefts.  The suspect had already been arrested.  “It was either accidental or target misidentification,” according to an investigator. An “accident” was the same explanation that BART Officer Johannes Mehserle gave for shooting Oscar Grant beside the BART tracks on New Years Day, 2009.

It is well-established now that police officers, like everyone else, have the right to be free from deadly force or unreasonable seizures “even from a fellow officer in the course of police work.”  The issue for the BART Police Department and Sgt. Smith’s family will be whether or not the officer who shot Sgt. Smith could have been reasonably mistaken — which ultimately only a jury can decide.  

This sort of ‘friendly fire’ incident should have been preventable with generally accepted training and procedures. Before deadly force is permissible, officers must be facing the immediate threat of death or serious injury. It goes without saying that reasonably trained officers should not mistake a fellow officer searching a house as a deadly force threat.  One thing we know for sure is that the officer who shot Sgt. Smith had his gun in his hand. It will be interesting to see whether that officer was reasonably concerned with any immediate threat to justify pointing his gun above the “low ready” position.

Winning that hard-fought case for Officer Wilkins’ family brought financial security for his wife and son, and spurred needed reforms in the Oakland Police Department around training and procedures for encounters with plain clothes officers.

Our hearts go out to Sgt. Smith’s family.  We also hope that the investigation of this shooting is fearless and transparent, and that the BART Police Department makes the reforms necessary to prevent another tragedy.

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