CA: New BART Police Auditor Aims to Bring Transparency to Agency

July 22, 2011
The man hired to police BART's police force was on the job just six days when he got his first case.

The man hired to police BART's police force was on the job just six days when he got his first case.

Transit officers had shot and killed a 45-year-old homeless man at the Civic Center station, inevitably raising comparisons to the 2009 fatal officer-involved shooting of Oscar Grant III.

The circumstances of the shootings are markedly different -- Charles Hill is accused of coming at officers with a bottle and a knife when BART police shot him to death July 3, while Grant was unarmed and lying on his stomach when an officer shot him in the back. Now, the Hill case is the first test of a new era of transparency in police matters that BART officials promised after public outcry over their response to the Grant shooting.

It's also the first task for Mark Smith, BART's first independent police auditor. Smith, who works with an 11-member citizens review board, is charged with reviewing BART's response to officer-involved shootings.

It's a position Smith has been in before. BART directors picked him for the $144,500-a-year auditor job in part because of his years of experience as a police watchdog in Los Angeles and Chicago.

"I am independent," Smith said in a recent interview at BART headquarters. "I don't draw my paycheck from the police department. I don't report to the police department. That is a fundamental change and what was missing from the system before."

The transit agency had no formal civilian review when then-BART Officer Johannes Mehserle shot Grant, a Hayward resident, to death at Oakland's Fruitvale station on Jan. 1, 2009.

The shooting was captured on passengers' cellphones and shared around the world. Mehserle, who was charged with murder in the case, testified he mistook his gun for his Taser, and ultimately was convicted of involuntary manslaughter; he was released in June after serving 11 months in prison.

The case brought a sea change at BART.

"We didn't need BART police to be policing itself anymore," said BART Director Lynette Sweet, of San Francisco, a member of the board's public safety committee.

With the recent changes, "we have a mechanism in place to ensure the transparency, the integrity and the honesty that all seemed to be lacking in 2009," Sweet said.

Even so, BART took some heat for its response to the Hill shooting. The public and media pressed the transit agency to release a security video of the incident sooner; officials released the video Thursday after saying it would not hamper the investigation -- a testament, they said, to their vow of openness.

Two weeks after the shooting, demonstrators staged rowdy protests at the Civic Center and other San Francisco stations, climbing on top of BART trains and disrupting service during the evening commute.

As Smith looks into the shooting, his own actions will have a review. Assemblyman Tom Ammiano, D-San Francisco, plans a public hearing next month for an update on BART's civilian review processes.

"We need to assure that BART police are properly trained and following procedures," Ammiano said in a statement.

And some critics charge that BART's civilian review process -- estimated to cost the agency some $800,000 a year -- is a hollow and expensive public relations gesture.

"It's for show," said Kristopf Lopaur, an Oakland resident who has been critical of transit police. "Neither the auditor nor review board have power to do anything but make recommendations. I think it's a tremendous waste of money."

BART board members and Smith said civilian review is an essential part of the checks and balances in watching over police officers who are authorized to use deadly force if necessary to protect the public and themselves.

Smith's experience was honed as a special investigator with the Los Angeles Police Commission Office of Inspector General, and later as first deputy chief administrator of the Chicago Independent Police Review Authority.

Those experiences and his interest in the law steered him toward the BART job.

"I wanted to be a lawyer since I was 9," said Smith, who declined to provide his age.

He said he was inspired in part by movies with legal themes, including "12 Angry Men," the 1957 drama with Henry Fonda as a juror who persuades other jurors not to rush to convict a murder defendant.

"There is no way to make an impartial judgment," Smith said, "if you don't have all the evidence."

At BART, Smith will investigate police shootings and complaints against officers, monitor police performance policies and trends, and make his recommendations to the police department, citizens review board, and the transit agency's elected board of directors.

If Smith and the BART police chief disagree about discipline for an officer, the case will be referred to the agency's general manager for a decision.

Smith refused to speculate whether the Hill shooting was justified. He was out of town for the holiday weekend and was unable to respond to the shooting scene. In the investigation, however, BART police internal affairs investigators update him regularly. He declined to discuss specifics, saying it could undermine the investigation, which the San Francisco Police Department is coordinating.

BART's internal affairs branch is also reviewing the case to determine if discipline of the officers is warranted.

Smith reviews police, medical and autopsy reports, and listens to recorded interviews. If he thinks more questions need to be asked, he can submit the suggestion to front-line investigators.

Some parts of his final reports may be withheld from the public because of legal protections for police officers, he said.

Still, his reports have teeth, Smith said.

"At the end of the day," he said, "I'll be making sure the right conclusions have been reached."

Contact Denis Cuff at 925-943-8267. Follow him at . Read the Capricious Commuter at .

MARK smith

Position: BART police auditor overseeing civilian monitoring of transit police Residence: Oakland Experience: First deputy chief administrator of the Chicago Independent Police Review Authority; special investigator with the Los Angeles Police Commission Office of Inspector General, which reviews complaints Education: Political science degree from UC Berkeley and law degree from UCLA

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