BART rider belly-down when shot, lawyer says Oakland Citing witnesses, attorney for mother of dead man's child says he was waiting to be cuffed

The 22-year-old man killed by a BART police officer early New Year's Day was lying face-down on the train platform, his hands behind him waiting to be cuffed, when he was shot in the back, a lawyer newly hired by the man's family said Saturday.

Attorney John Burris said in an interview that a number of witnesses to the shooting at the Fruitvale Station in Oakland have told him Oscar Grant was posing no threat to the officer or anyone else when he was fatally wounded. The shooting occurred around 2:15 a.m. after police responded to a report of a fight on a train bound for Dublin/Pleasanton.

"If it happened the way the (witnesses) said it happened, he's on his stomach, his hands pulled up behind his back, he's compliant, the officer is standing over him and all of a sudden he shoots," Burris said. "The bullet went through his lower back, hit the ground and ricocheted through the upper part of his body."

The witnesses told him police handcuffed Grant after he was shot, but removed the cuffs just before news reporters arrived, Burris said. No weapons were found on Grant or anyone else involved in the altercation on the train.

Grant, of Hayward, died at Highland Hospital in Oakland several hours later. BART officials say the officer who shot him, a BART police officer for almost two years, has been placed on administrative leave during an investigation. He has not been publicly identified.

Burris, who has filed numerous suits against police, said he has been hired by the mother of Grant's 4-year-old daughter and would discuss their plans at a news conference today.

BART spokesman Jim Allison said the transit system has not yet received the results of an autopsy performed Friday by the Alameda County coroner's office. He said investigators have not reached any conclusions yet on questions surrounding the incident, including why the officer drew his gun and whether the shooting was deliberate or accidental.

"Officers are trained to unholster that weapon only when there is a perceived possibility that there is a need for deadly force," Allison said. "They're also trained to keep their finger off the trigger until the very moment they would be required to shoot for their own or another's safety."

Burris said he doesn't see how the shooting could be considered accidental.

"He had the gun out, had the finger on the trigger," Burris said. "In order for the gun to go off, he had to pull the trigger. It looks like an intentional act. The gun was not defective, as far as I know."

The incident "has all the earmarks of manslaughter or a second-degree murder case," the lawyer said. BART officials said earlier that the case is already under investigation by the Alameda County district attorney's office.

Burris also said witnesses told him that the fight on the train was apparently between Grant and an older man he hadn't previously met. For unknown reasons, he said, the two men shouted at each other, then grabbed and wrestled with one another, and continued grappling when the train reached Fruitvale.

Burris said BART police stopped the fight and took Grant and several others into custody. Officers were armed with stun guns as well as pistols, Burris said, and a witness said Grant cried out, as he lay on the platform, "Please don't Tase me, I have a 4-year-old daughter."

BART spokesmen have said several people were detained for questioning but no one was arrested. But Burris said five people who were with Grant have told him they were held in handcuffs for five hours before being released without charges.

"That's a long time to be detained" and should be considered an arrest, he said.