Courtesy PhotoMehserle claims he mistook his gun for his Taser when he fatally shot Grant on Jan. 1

Johannes Mehserle, the disgraced BART police officer who was found guilty of involuntary manslaughter for fatally shooting an unarmed Oscar Grant III in Oakland on New Year’s Day in 2009, is appealing the involuntary manslaughter conviction so that he might one day carry a gun and badge again.

Attorney Dylan Schaffer argued at a 45-minute hearing at the state 1st District Court of Appeals in San Francisco on Wednesday that while Mehserle made a “tragic and horrible error,” he didn’t act with the level of recklessness that legally defines involuntary manslaughter.

“All he did is make an error,” Schaffer told a three-judge panel of the Court of Appeal. “Police officers are fallible. We cannot put them at risk of prosecution for just making policing errors.”

However, independent BART police auditor Mark P. Smith said he was concerned about Mehserle’s attempt to become an officer again.

“As an oversight official, I was deeply concerned upon learning about the incident involving Mr. Mehserle and Oscar Grant,” Smith said. “I will always be concerned about that. As far as his challenge to overturn his conviction, I don’t think he, nor anyone else, should be above or below the law.”

Mehserle, 30, was convicted of involuntary manslaughter by a Los Angeles jury in 2010. He was sentenced to two years in prison and was released last year after receiving credits that reduced his time in custody to about a year.

Another defense attorney, Michael Rains, said that although Mehserle has completed his sentence, he is pursuing the appeal because he can’t return to a job in law enforcement with a felony conviction on his record.

Rains said Mehserle has been working in non-law-enforcement jobs, but declined to give details except to say that the former officer is a talented handyman.

Wearing a dark business suit, Mehserle attended the hearing but made no public comments.

Mehserle claimed after the shooting that he had accidentally used his revolver when he meant to use a Taser stun gun to subdue Grant during the incident at BART’s Fruitvale station.

Schaffer argued Wednesday that there was insufficient evidence to support a finding of recklessness and that there were errors in jury instructions at Mehserle’s trial.

Senior Assistant Attorney General Gerald Engler, representing prosecutors, argued that there was “ample evidence” that Mehserle acted recklessly.

Engler listed a series of differences between a revolver and a stun gun. Mehserle was convicted “not because he committed a mistake, but because this mistake was committed with gross negligence,” Engler argued.

The appeals court now has three months to issue a written decision. Schaffer said that if Mehserle loses the appeal, he will continue appeals to the California and U.S. supreme courts if necessary.

— Staff and wire report

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