Meet Mark Smith, BART's new police investigator

When Oscar Grant was shot and killed by BART policeman Johannes Mehserle two-and-a-half years ago, the BART police force was heavily scrutinized and audited. One-and-a-half years ago, the auditors recommended more than 120 changes, including arming BART police with tasers and providing crisis intervention training. But just a few months later, BART was involved in another shooting,againnear the Fruitvale station in East Oakland.

Then, earlier this month, a homeless man named Charles Blair Hill was shot and killed by a BART police officer on the platform of Civic Center station. So has anything changed in BART police protocol? After the Hill shooting, the BART board launched an investigation. It’s the first big challenge for the agency’s new independent police auditor, Mark Smith. Smith sat down with KALW’s transportation reporter Casey Miner to discuss how BART police conduct their business.

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CASEY MINER: So I wanted you to tell me a little bit about how you came into this position.

MARK SMITH: I first became involved in police oversight in Los Angeles working with the LAPD. It was a field that was new to me, but something that was tremendously interesting. Just the learning experience was something that I valued. I took it with me when I went to Chicago after the Los Angeles Police Department and expanded my role, as far as my responsibilities went. That's the experience I bring here to BART, a police department that I also believe is in need of oversight. I believe that my experience brings me here.

MINER: Could you tell us a little bit about what that experience actually entails, and what kind of work that involves as an overseer? Have you actually been involved with investigations, or is it more management?

SMITH: I think the real positive thing is that a lot of the experience is more directly related to experience that is required to be here at BART. With the Los Angeles Police Department I was directly involved with complaints and reviewing police complaint investigations to make sure they were done thoroughly and completely and reached the right outcome. In addition, I was responsible for looking into officer-involved shootings. There were higher numbers of those, both in Los Angeles and in Chicago, than there are on BART. But the higher number of those gave me the opportunity to look at what I consider a relatively high number of police shootings with different dynamics, different sets of facts, and different sets of evidence to be collected and weighed properly – and different conclusions to be reached. It was my job to make sure the right conclusions were reached.

MINER: And so what approach are you actually taking to this investigation with the way you're going into this and what you're actually doing on a day to day basis?

SMITH: BART has their own oversight system. I think they saw a valid need for it. It's been my opinion that only a valid police force can be served well by having an oversight committee. It's better for the community, it's better for the people, and it's better for the police department itself. My role right here is to monitor the BART police department’s investigation, to make sure it's being done properly. I have taken that role extremely seriously and began immediately after the incident occurred. I have reviewed evidence, which means reading police reports by those officers who are on the scene, looking at medical dispatch records, basically reviewing the evidence that's being collected in this case and making sure the right evidence has been collected and, at the end of the day, that the right conclusion has been reached.

MINER: Now, when you say you'll be making sure the right conclusion has been reached, what does that mean? Do you actually have the ability to affect or weigh on the conclusion the BART police will ultimately come to?

SMITH: My position has real teeth to it. That's the way it was designed in the model of oversight adopted by the BART Board of Directors. This is the first time, at least to my knowledge, that the BART police chief cannot simply impose discipline or reach a conclusion about whether an officer acted properly or improperly without having other input first. That's, in my mind, a fundamental structural change to what was here before. And that's a big part to what defines accountability. So, to answer your question, when I review an investigation to make sure it's done properly and reach a finding, it's one that can't be tossed aside or overruled by the chief. I don't report to him and he doesn't report to me.

MINER: So you had mentioned that you were reviewing all of the evidence that is available in the case. I'm wondering – are you also reviewing BART police policies?

SMITH: I'm glad you asked. One of the most crucial roles I have, which is an authority but also a responsibility, and one that I think is crucial and right at the center of making sure there's effective oversight of any police department, including this one, is to make policy and procedural changes where they are appropriate. It includes use of force policy or any policy involving the police department.

MINER: And so what is BART's use of force policy?

SMITH: Basically it’s that an officer who feels reasonably that his or her life is in danger, or that the life of another is in danger of serious bodily injury or death, that the officer is allowed to use deadly force to stop the threat.

MINER: One of the things I think people are curious about is the type of training the BART police officers receive that equips them to make the decisions they make in crisis situations. There has been some question in this particular case about whether maybe using a taser would have been more appropriate. When I spoke with Chief Rainey, he said that if it had been him on the platform, in that situation, he would not have used a taser, he would have used a gun. He felt a gun was an appropriate choice for that situation and a taser was not. Is that an assessment that you agree with, based on your experience?

SMITH: In my experience, what's important is to look at every aspect of a major instance, such as a police shooting. That includes the lead-up to the shooting, what the officers knew when they were arriving to a particular scene. Did the officers who were involved communicate with each other, what did they talk about? Have they been trained for a situation akin to the one that they're getting themselves into? What level of force they select when they chose to employ any force? How did they transition from one level of force to another, if such a transition was appropriate? What happened afterwards? If there was need for medical attention, did they probably make the calls that they were required to make? Basically A-Z, front-to-back, I think that the real value and oversight comes in when you look at all of those things. If you take just some of them, just the moment of force – the decision to pull the trigger or strike with a baton – and nothing else, I think you are missing a lot of the picture.

MINER: So in the public of the Bay Area, how do you see yourself, or what do you see your role as in doing that?

SMITH: One of the things that's crucial in this office is to be accessible to the public. That's a commitment in this office and will continue to be.

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