Oscar Grant Mural at Fruitvale BART station

The family of Oscar Grant was disappointed with the decision by the Alameda County District Attorney’s Office to decline to press charges against the former transit police officer whose conduct led to Grant’s shooting death on New Year’s Day in 2009.

Nancy O’Malley, who had agreed to review the conduct of officer Anthony Pirone in October and perhaps file charges against him, made the announcement on Tuesday morning in response to pressure brought by the Grant family last month.

According to the New York Times, O’Malley released a report saying that Pirone, who was removed from the BART police force in 2010, will not be charged because he neither killed Grant nor aided and abetted Johannes Mehserle, who was convicted of manslaughter in a Southern California court in 2010.

“Although Pirone’s conduct was aggressive, utterly unprofessional, and disgraceful, it did not rise to the mental state required for murder,” O’Malley said in a statement.

It was Pirone who responded to a fight on a BART train carrying passengers from New Year’s Eve celebrations. Bystanders recorded the encounter using their cell phones and witnesses also described Pirone’s encounter with Grant. Pirone pulled Grant from the train violently, struck him for no reason and was heard using racial epithets while kneeling on Grant’s neck as Grant lay face down.

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Once Grant was able to place his hands behind his back, Mehserle shot him and claimed the shooting was an accident having intended to use his Taser to restrain an already cooperating Grant who died a few hours later. His death set off mass protests in Oakland.

“In view of everything we have considered — and reconsidered — we conclude that we cannot prove Pirone guilty beyond a reasonable doubt,” O’Malley said. “We condemn Pirone’s conduct but we cannot charge him with murder or any other crime.”

The family of Oscar Grant had hoped for justice because the report about Pirone had recently been released after nearly 10 years.

That report placed much of the blame for Grant’s death on the “actions of Officer Pirone,” which “started a cascade of events that ultimately led to the shooting of Grant.”

“In view of everything we have considered — and reconsidered — we conclude that we cannot prove Pirone guilty beyond a reasonable doubt,” O’Malley said. “We condemn Pirone’s conduct but we cannot charge him with murder or any other crime.”

A misdemeanor charge of assault under the color of authority was also ruled out now because the statute of limitations had expired.

Oscar Grant’s mother, Rev. Wanda Johnson, and other family members had hoped for a different outcome, given the revelations of the report. “My son laid on the cold concrete with that Officer Pirone’s knee on his neck,” she said. “My son’s head was smashed against the wall and he was kicked and he was pushed. Pirone still walks around free today.”

BART board members and Oakland City Council members also did not take the news well, condemning O’Malley’s decision and calling upon her to reconsider.

“I want to be clear that Nancy O’Malley has failed, yet again, to do her job,” Simon said at a Tuesday morning news conference. “And that job was to ensure equal justice under the law.”

Simon, Bevan Dufty, Janice Li and Rebecca Saltzman planned to urge the full BART board to file a resolution urging O’Malley to charge Pirone.

“The D.A. could have a change of mind and the BART board should go on record that there cannot be justice until Mr. Pirone is held accountable for his violence and creating the chaos that led to Oscar Grant’s murder,” Dufty said.

District 6 Councilmember Loren Taylor planned to introduce a resolution calling on O’Malley to charge Pirone. It was co-sponsored by City Council President Nikki Fortunato Bas, and councilmembers Carroll Fife and Treva Reid.

Grant’s family will also continue to pressure O’Malley who did agree to a meeting next week.

“We will leave no stone unturned,” said Grant family attorney Charles Bonner. “We will go to the state Attorney General and we will also go to the federal justice department to seek federal criminal prosecution for civil rights violations, and we ultimately will go to the voters if Nancy O’Malley does not do the right thing.”

The Root, New York Times, Bay Area News, Bay City News, Associated Press, KTVU-News and Miami Herald were sources for this report.

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