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Arbitrator's report

VIEWS: 23 PAGES: 124

									 1   Arbitration between:
 2
 3   OAKLAND POLICE OFFICERS
 4   ASSOCIATION, RICARDO OROZCO AND
 5   CHRISTOPHER MUFARREH,
 6                                   Grievants,
 7          and
 8
 9   CITY OF OAKLAND, CALIFORNIA,
10                                   Employer/Respondent,
11
12   regarding the City of Oakland’s decision to demote
13   Grievants Ricardo Orozco and Christopher Mufarreh.

14
15   BEFORE:                   PAUL GREENBERG, Arbitrator
16
17   Appearances:
18   For Oakland Police Officers Association, Ricardo Orozco and Christopher Mufarreh:
19       Michael L. Rains, Esq., Rains Lucia Stern, P.C., Pleasant Hill, California
20
21   For City of Oakland:
22       Karen L. Snell, Esq., San Francisco, California; Rachel Wagner, Esq., Bertrand, Fox & Elliott, San
23       Francisco, California
24
25
26                                        DECISION AND ORDER
27
28
29   I.        OVERVIEW.1
30
31             On Saturday, March 21, 2009, four police officers employed by the Oakland Police

32   Department were shot and killed in the line of duty, all at the hands of a single individual.

33             Two of the police officers – Sgt. Mark Dunakin and Ofr. John Hege – were shot shortly



     1
        As is customary, the Decision in this matter is based exclusively on the extensive record presented by
     the parties at the arbitration hearing. Neither party has requested that the record be re-opened to consider
     any additional information.

        In this Decision, law enforcement officers generally are identified using the rank or position they held
     in March 2009.

          The text of relevant provisions of OPD policies can be found in the Appendix.
                                                    -2-

 1   after 1:00 PM following a traffic stop in the 7400 block of MacArthur Boulevard in Oakland.

 2   The shooter fled the scene, and a massive police response followed. Both Sgt. Dunakin and Ofr.

 3   Hege died from their wounds.

 4          The fatal shootings took place mid-day on a business urban street, so there were witnesses

 5   nearby who observed the shooter flee. Although not immediately known by the Department, the

 6   shooter was Lovelle Mixon. Mixon was a convicted felon with a substantial criminal record and

 7   a history of violence.

 8          As part of the effort to apprehend the shooter and secure the neighborhood surrounding

 9   the crime scene, soon after 3:00 PM (about 2 hours later) a Tactical Operations Team (or

10   “SWAT” team) was directed to enter an apartment unit in a building at 2755 74th Avenue, less

11   than two blocks from the location where Sgt. Dunakin and Ofr. Hege had been shot.

12   Neighborhood residents who had witnessed the shooting directed the police to the 74th Avenue

13   apartment, suggesting the apartment unit might be associated with the individual who had fled.

14          The police command leadership that sent the Tactical Team into the 74th Avenue

15   apartment believed it was unlikely the suspect would be in the unit; however, this turned out to

16   be an incorrect assessment. In fact, Mixon was present in the apartment. He was armed with

17   high-powered firearms, and apparently was waiting for the police. A firefight erupted

18   immediately after the Tactical Team entered the apartment. Two additional Oakland police

19   officers participating in the entry – Sgt. Erv Romans and Sgt. Dan Sakai – were shot by Mixon.

20   Both died within a short time.

21          Lt. Christopher Mufarreh and Capt. Ricardo Orozco, along with Deputy Chief Dave

22   Kozicki, were in the chain of command that made the decision directing the Tactical Team into
                                                     -3-

 1   the apartment unit at 2755 74th Avenue. Two internal investigations into the events of March 21

 2   were performed by OPD: an investigation by OPD’s Homicide Division, and an investigation

 3   conducted by the Police Department’s Internal Affairs Division (IAD). Joint Exhibit (JX) 2, JX

 4   1. The IAD investigation produced a 332 page report, and concluded Lt. Mufarreh, Capt. Orozco

 5   and Deputy Chief Kozicki each were “grossly derelict” in performing their duties.

 6          Acting Chief Howard Jordan subsequently convened an Independent Board of Inquiry to

 7   conduct a review. The Board of Inquiry (BoI), consisting of outside law enforcement experts,

 8   performed an analysis and provided findings regarding the performance of many of the Oakland

 9   Police Department (OPD) personnel involved with the March 21 incident. JX 3. The Board of

10   Inquiry also concluded Lt. Mufarreh, Capt. Orozco and Deputy Chief Kozicki were guilty of

11   “gross dereliction of duty” in their job performance, in large measure adopting the earlier IAD

12   findings.

13          Under OPD policy, the Chief of Police is responsible for recommending discipline in

14   these types of situations, with the actual decision to discipline being made by the Oakland City

15   Administrator. Chief Anthony Batts became Police Chief in October 2009. On the

16   recommendation of Chief Batts, in May 2010 Oakland City Administrator Dan Lindheim

17   demoted both Lt. Mufarreh and Capt. Orozco two ranks, with Lt. Mufarreh being demoted to

18   Officer and Capt. Orozco being demoted to Captain. JX 12, 13. Deputy Chief Kozicki retired,

19   and thus no discipline was imposed.

20          This grievance on behalf of Lt. Mufarreh and Capt. Orozco followed, filed by the

21   Oakland Police Officers Association (OPOA or Union). The grievance challenges the demotions

22   as unjustified and thus in violation of the Oakland/OPOA labor agreement.
                                                     -4-

 1   II.    PRELIMINARY COMMENTS.

 2          This Arbitrator presided over seven days of hearings in Oakland, and received testimony

 3   from 23 witnesses. The substantial grievance arbitration record expanded on the earlier

 4   substantial investigative work performed as part of the OPD Homicide investigation and the IAD

 5   internal investigation, as well as the work of the Independent Board of Inquiry. I identify here

 6   the witnesses who testified, and their role either during the events of March 21 or during the

 7   subsequent investigations and proceedings:

 8          OPD Senior Management
 9
10          Chief Anthony Batts. Chief Batts was appointed Chief in October 2009.
11
12          Asst. Chief Howard Jordan. Between February and October 2009, Asst. Chief Jordan
13                 served as Acting Chief of Police. He was Acting Chief on March 21, 2009.
14
15          Patrol Division
16
17          Capt. Richard Orozco. In March 2009, Capt. Orozco was the Area 2 (Central Oakland)
18                 commander.
19
20          Lt. Chris Mufarreh. In March 2009, Lt. Mufarreh was one of the Area 2 lieutenants,
21                 working under Capt. Orozco.
22
23          Lt. Ersie Joyner III.
24
25          Sgt. Richard Andreotti.
26
27          Sgt. Donald Covington. Area 3 Patrol Supervisor.
28
29
30          Criminal Investigation Division (CID)/Homicide
31
32          Lt. Brian Medeiros. CID Commander.
33
34          Sgt. Tony Jones.
35
36          Sgt. Rachel Van Sloten.
                                                             -5-

 1           Sgt. Louis Cruz. At the time of the arbitration hearing, Sgt. Cruz had left OPD and was
 2                  employed as an Inspector with Alameda County DA office.
 3
 4
 5           Tactical Operations2
 6
 7           Sgt. Patrick Gonzalez. Team Leader
 8
 9           Sgt. Michael Beaver. Team Leader
10
11           Sgt. Mike Reilly. Team Leader
12
13           Sgt. Sean Knight. Although assigned to the Tactical Operations Team, by March 2009
14                  Sgt. Knight no longer was performing tactical entry work. His primary area of
15                  responsibility involved electronic surveillance.
16
17           Dispatcher Nancy Parlette. Parlatte primarily works as a Communications Dispatcher,
18                  but also has responsibilities as a Tactical Operations Dispatcher and a “scribe”
19                  for the tactical operations unit.
20
21
22           Internal Affairs
23
24           Lt. Sean Whent. Lt. Whent was in charge of the Internal Affairs Division (IAD) from
25                  January 2009 thru October 2010, and returned to IAD in May 2011.
26
27           Other OPD witnesses
28
29           Capt. Benson Fairow. In March 2009, Capt. Farrow was in charge of the Youth and
30                  Family Services Division. At the direction of Acting Chief Jordan, Capt. Farrow
31                  chaired the Force Review Board inquiry into the events of March 21, 2009.
32
33           Ofr. Kevin Kaney. In March 2009, Ofr. Kaney was assigned to the Gang and Gun
34                  Investigation Task Force. At the request of his supervisor, Sgt. Sean Knight, on
35                  March 21, 2009, Kaney reported to the crime scene and assisted with researching
36                  crime records to try to identify the suspect.
37


     2
        Tactical operations is an auxiliary assignment, i.e., members of the tactical operations unit normally
     have regular, full-time positions in other divisions of the OPD. On a regular basis, they are pulled from
     their normal positions for training. As needed, they are called-out to conduct tactical operations. Team
     members are called out, typically, about once or twice each month. Within OPD, there are five team
     leaders and about 23 team members, referred to as “tactical operators.”
                                                          -6-

 1          Ofr. David Burke. Ofr. Burke works in the OPD’s Information Technology (IT) unit. He
 2                 has responsibility for multiple IT programs, including the “Field Based
 3                 Reporting” program.
 4
 5
 6          Witnesses not affiliated with the Oakland Police Department
 7
 8          Capt. Phillip Hansen. Capt. Hansen is employed by the Los Angeles Sheriff’s office. He
 9                 served on the Independent Board of Inquiry.
10
11          Asst. Sheriff Brett Keteles. Asst. Sheriff Keteles is employed by the Alameda County
12                 Sheriff’s Office. He served on the Independent Board of Inquiry.
13
14          Thomas Leary. Mr. Leary is an investigator working for the Rains Lucia Stern law firm,
15               which represents the Grievants and the Oakland Police Officers Association.
16

17          As can be seen, almost all the witnesses who testified at the arbitration hearing were

18   directly connected to law enforcement, and most worked for the Oakland Police Department or

19   had close ties to the Department. A high percentage of the witnesses, including the Grievants,

20   knew the four deceased OPD police officers as co-workers and friends. Throughout the

21   arbitration hearing, it was evident the terrible events of March 21 still were very present for all

22   these witnesses, and was a continuing source of personal anguish.

23          In addition to the witnesses who testified, I note particularly two members of the Oakland

24   police force who also figured prominently in the events of March 21 but who were not called to

25   testify by any of the parties: former Deputy Chief Dave Kozicki, and Lt. Drennon Lindsey. To

26   the extent this Decision refers to actions taken by Deputy Chief Kozicki or Lt. Lindsey, or

27   representations made by them, I rely on (1) reports of their actions made by other witnesses, or

28   (2) statements or representations made by Deputy Chief Kozicki or Lt. Lindsey to the various

29   investigators after the March 21 incident, or (3) characterizations of their actions or statements
                                                      -7-

 1   found in the OPD internal reports or the Board of Inquiry report.

 2          As discussed infra, the police officers who were present at the MacArthur Boulevard

 3   crime scene often had somewhat different recollections of what occurred. These differences in

 4   recollection are particularly significant as they relate to the information that was being funneled

 5   to Lt. Mufarreh about the possible identity and location of the suspect. It was Lt. Mufarreh who

 6   had taken charge of the search process within the multi-block perimeter established around the

 7   vicinity of the initial crime scene (i.e., the location where Sgt. Dunakin and Ofr. Hege had been

 8   shot), and it was Lt. Mufarreh who initially set in motion the process of sending in the Tactical

 9   Operations Team to enter and clear the apartment on 74th Avenue.

10          Some of the testimony and documentary evidence is flatly contradictory. For example,

11   there are statements from police officers indicating they provided Lt. Mufarreh with key pieces of

12   information that probably should have been given substantial weight before initiating the ill-fated

13   tactical operation that resulted in the deaths of Sgt. Romans and Sgt. Sakai, while Lt. Mufarreh

14   and Capt. Orozco testified they did not receive the reported information. Notwithstanding these

15   contradictory claims, however, I note at the outset that I found all the witnesses who testified at

16   the arbitration hearing – including Lt. Mufarreh and Capt. Orozco – generally to be credible.

17          Between the initial “officer down” reports advising of the shootings of Sgt. Dunakin and

18   Ofr. Hege, and the calamitous entry of the Tactical Operations Team into the 74th Avenue

19   apartment, only about two hours elapsed. It would be incorrect to suggest that this period was

20   chaotic; to the contrary, the evidence shows OPD staff at the scene organized themselves into

21   operational units to address an extraordinary situation, and made relatively rapid progress

22   investigating the crime scene and gathering information about the suspect, even if the leads
                                                      -8-

 1   regarding the suspect sometimes proved to be inaccurate or inconsistent. However, it also is true

 2   that the shooting of two police officers resulted in a tremendous response, with large numbers of

 3   law enforcement personnel from multiple law enforcement agencies arriving at the crime scene.

 4   The Board of Inquiry observed that the sheer number of units responding to the scene

 5   complicated and interfered with effective command. During the two hour period no formal,

 6   centralized command post was established and staffed, and – as discussed below – there even is

 7   debate whether or when anyone assumed the key role of “Incident Commander.” Under these

 8   circumstances, this Arbitrator does not find it surprising that the senior staff on the scene –

 9   particularly Lt. Mufarreh – may not recall having received information that other witnesses claim

10   to have provided. Stated differently, to the extent Witness A testified “I shared information

11   about the suspect with Lt. Mufarreh,” and Lt. Mufarreh testified he did not receive such

12   information, I do not necessarily infer that either Witness A or Lt. Mufarreh were being

13   untruthful. Instead, I view such inconsistencies more as emblematic of the problems inherent in

14   all communication, especially during a highly tense and confusing situation.

15

16   III.   THE EVENTS OF SATURDAY, MARCH 21, 2009.

17          A. The Oakland Police Department’s Patrol Division command structure in March
18             2009; Lt. Mufarreh’s voluntary agreement to work a March 21 shift.

19          For purposes of core police patrol service, in March 2009 the Oakland Police Department

20   had divided Oakland into three separate command areas, each led by a Captain. Area 1

21   (predominantly West Oakland) was commanded by Captain Anthony Toribio. Area 2 was

22   commanded by Capt. Orozco, and covered the central part of the city (Fruitvale, Laurel Districts).
                                                     -9-

 1   Area 3 predominantly consisted of East Oakland, and was commanded by Captain Anthony

 2   Rachal.

 3          On Saturday March 21, 2009, Lt. Drennon Lindsey was the lieutenant assigned to

 4   supervise Area 3. Area 3 includes the MacArthur Boulevard neighborhood where the events at

 5   issue in this grievance arose. Capt. Rachal was not on duty on March 21, so Lt. Lindsey was the

 6   most senior OPD officer assigned to Area 3; under OPD policies, Lt. Lindsey therefore was the

 7   person presumptively in charge for any incidents that occurred within Area 3.

 8          At the time of the March 2009 events, Lt. Lindsey had been elevated to the rank of

 9   lieutenant for only about six weeks, and she was newly-returned to general patrol responsibilities.

10   She had not performed patrol responsibilities for about six years, most recently having been

11   assigned to OPD’s Homicide Division.

12          Around January 2009, OPD Deputy Chief Dave Kozicki had implemented several

13   changes to the Department’s basic Patrol Division structure. One change was the implementa-

14   tion of a “patrol watch commander” calendar. Under this system, a “city-wide watch

15   commander” was assigned for specific days of the month. The city-wide watch commander had

16   the authority to re-allocate resources from one area of the city to another if there was an unusual

17   situation requiring additional personnel, beyond the staffing level normally assigned to patrol the

18   locale. The calendar for 2009 designated Lt. Lindsey from Area 3 as the city-wide watch

19   commander on March 21, 2009. Thus, in addition to having overall responsibility for incidents

20   arising within Area 3 (by virtue of being the most senior Area 3 commander on duty on the

21   afternoon of March 21), Lt. Lindsey also had overall city-wide command responsibilities on

22   March 21 because she was the designated city-wide watch commander.
                                                      -10-

 1           Also in early 2009, Deputy Chief Kozicki proposed a change to police department

 2   management staffing on the weekends in response to budgetary shortfalls that he characterized as

 3   “dire.” Prior to 2009, it had been OPD practice to be certain each Area was commanded by a

 4   lieutenant at all times. However, under the new scaled-back staffing plan, OPD had decided not

 5   to employ a full complement of lieutenants in all three Areas on the weekends (often at overtime

 6   rates). Under the new arrangement, it was likely the Oakland Police Department Patrol Division

 7   periodically would be commanded with only a single lieutenant in charge of all three Areas. This

 8   particularly would be true on weekends.

 9           Capt. Orozco testified he personally disagreed with Deputy Chief Kozicki’s approach,

10   and the record includes a series of emails in late February 2009 involving Deputy Chief Kozicki,

11   Capt. Orozco and other OPD personnel, found at JX 8 Tab E. Capt. Orozco believed it was

12   problematic to have “approximately 21 sergeants and potentially over 150 officers out on the

13   street at any given time” without a full contingent of senior-level leaders (i.e., lieutenants and

14   higher). In addition, because of the Department’s seniority system, experienced, veteran police

15   officers were less likely to be on duty on the weekends. Tr. VII:233, 235.3 Capt. Orozco

16   therefore took steps to be try to make sure the City had greater coverage with lieutenant-rank

17   leaders. The record shows Capt. Orozco on Friday, March 8, 2009, sent an email to Captains

18   Rachal and Toribio expressing the view that “I believe we have a serious issue with only staffing

19   the City with one lieutenant,” and expressed concern that Deputy Chief Kozicki was setting up

20   the lieutenants for failure. JX 8 Tab E. Capt. Rachal responded and agreed with Orozco.


     3
        The arbitration hearing spanned seven days. The hearing testimony was transcribed. References to
     the Transcript (Tr.) identify the “hearing day” or transcript volume using a Roman numeral, followed by
     the page number. Thus “Tr. III:199" refers to the transcript from the third hearing day, at page 199.
                                                     -11-

 1          Despite these concerns and discussions about management staffing with Deputy Chief

 2   Kozicki, no policy changes had been implemented as of March 21. On Friday night, March 20,

 3   at approximately 8:00 PM, Orozco sent an email to his Area 2 subordinates (Lieutenants

 4   Mufarreh, Green and Haupenaur) asking if they would be willing to work from 12:00 PM until

 5   midnight on Saturday and Sunday so that Area 2 had some management coverage. Capt. Orozco

 6   testified he did this because “I was concerned about the people that were working that day, the

 7   officers, the supervisors, that they wouldn’t have any direction.” Tr. VII:238. Mufarreh

 8   responded by volunteering to work Saturday, March 21, and Lt. Green offered to work Sunday,

 9   March 22.

10          Lt. Mufarreh had joined the Oakland Police Department in 1980, and was promoted to the

11   rank of lieutenant in 2005. Until the events at issue in this grievance, he had a clean disciplinary

12   record, and had received positive performance evaluations.

13          Lt. Mufarreh served as a tactical operator from 1995 to 2005, and therefore was familiar

14   with OPD tactical operations and procedures. Around February 2009, he had been designated to

15   serve as a Tactical Commander; however, as of March 21, 2009, he had not yet attended tactical

16   command school, and had not been “shadowed” by an experienced Tactical Commander for six

17   months, as required by OPD policies. Thus, while Lt. Mufarreh had substantial tactical

18   operations experience, he was not at the time qualified and certified to perform Tactical

19   Command functions.

20

21
                                                      -12-

 1          B. The traffic stop; the shooting of Sgt. Dunakin and Ofr. Hege; the police initial
 2             response..

 3          The facts surrounding the shooting of Sgt. Dunakin and Ofr. Hege are not disputed.

 4          On March 21, 2009, at approximately 1:08 PM, Sgt. Dunakin stopped a car at 74th

 5   Avenue and MacArthur Boulevard.4 This was within Area 3, which was the OPD division under

 6   the command of Lt. Lindsey. Sgt. Dunakin obtained a driver license from the driver of the

 7   vehicle. The name identified on the license (Jabbar R. Ali) was provided to the communications

 8   operator a few minutes after the initial stop.

 9          Sgt. Dunakin was joined at the location of the traffic stop by Officer Hege, who arrived to

10   cover Sgt. Dunakin. Like Sgt. Dunakin, Ofr. Hege also was on a police motorcycle. At

11   approximately 1:15 PM, both officers approached the driver’s side of the stopped car. Before

12   they reached the window, the driver leaned out and began firing. Sgt. Dunakin was shot twice in

13   his left neck area. Officer Hege was shot in the left back of his neck. Both officers fell to the

14   ground, face down. The driver subsequently exited the car and fired a additional round into each

15   officer’s back. The shooter left the scene of the shooting, abandoning his vehicle.

16          The firearm discharges simultaneously were detected on the City’s shot spotter system.

17   OPD Officers Factore and Smoak were working nearby on an unrelated crime report. They heard

18   the shots and ran to the scene. At 1:16 PM Ofr. Factore radioed, “940B, officer down, 7400

19   block of MacArthur!” Patrol supervisor Sgt. Donald Covington also arrived on the scene almost

20   immediately.

21          Although not highlighted in the incident reports, it appears a neighborhood resident,


     4
        A lengthy summary of the relevant OPD communications on March 21 between 1:04 PM and 3:13 PM
     is found at JX 7.
                                                          -13-

 1   Clarence Ellis, was walking nearby when the shots were fired. Ellis was known to several OPD

 2   officers in the area, and had served at various times as a confidential informant. Ellis’s account

 3   of what he observed soon would be reported to Lt. Ersie Joyner. According to Lt. Joyner, Ellis

 4   said he heard the gunshots and he ran toward the noise, presumably to see what had occurred. He

 5   spotted the boots of one of the fallen officers sticking out from under the stopped car. Ellis then

 6   ran to the car, and found one of the officers bleeding from the neck. He took off his (Ellis’s)

 7   jacket and attempted to stop the bleeding by applying pressure to the wound. As reported by

 8   Ellis to Lt. Joyner, a police officer quickly arrived at the scene but did not immediately respond

 9   to the situation. Because of his familiarity with police procedures, Ellis told the officer to “Call

10   940B.” When the officer had problems breaking into the radio traffic to announce the 940B

11   alert, Ellis told the officer to “hit the red button” on the transceiver. Ellis subsequently would

12   report to Lt. Joyner that he (Ellis) saw a male running away from the crime scene and down 74th

13   Avenue, but he (Ellis) did not see his face.5 JX 40 pp. 6-7.

14           Lt. Lindsey was heard on the radio at 1:17 PM asking for the location of the incident. At

15   1:19 PM, a police officer (Unit 3U29) broadcast that the suspect in the shooting was “a male

16   black, 5'-8", 150 lbs., all black clothing, light-skinned, wire rimmed glasses, direction of flight is

17   southbound on 74th, unknown which location, unknown whether on foot or in car.” One witness

18   told Sgt. Covington that he (the witness) had seen a man with a handgun run across the street and

19   run up 74th Avenue. A broadcast at 1:19 PM updated the suspect’s direction of flight as being

20   “southbound on 74th.”


     5
       Neither Ellis nor the unnamed officer testified at the arbitration hearing. In this Arbitrator’s view, it is
     unlikely a member of the OPD would need this kind of communications assistance from a citizen.
     However, Ellis’s report to Lt. Joyner suggests Ellis had become familiar with OPD procedures.
                                                        -14-

 1           In response to the 940B alert, a large number of police officers descended on the crime

 2   scene – so many that at 1:19 PM, an officer (unit 8L73) broadcast “we have enough units out

 3   here. I need units to fan out. Spread out and look for these people!” Ex. 3 p. 4. Lt. Lindsey

 4   radioed that an outer perimeter should be established “ASAP.” Acting Lt. Blair Alexander6 from

 5   Area 1 arrived on the scene and began to work on establishing the perimeter. He also radioed for

 6   assistance setting up a perimeter, and the dispatcher copied at 1:25 PM. According to the radio

 7   traffic, an OPD sergeant (4L74) was approaching the area (although still on the freeway) and

 8   volunteered to take the assignment.

 9           Sgt. Tony Jones was the first detective from the Homicide Division to arrive at the scene,

10   around 1:30 PM. Sgt. Jones testified he spoke with Sgt. Carman and then to Lt. Lindsey.

11   According to Sgt. Jones, Lt. Lindsey advised him that a woman she (Lt. Lindsey) knew had

12   reported that the suspect traveled toward a residential address on 74th Avenue. Lt. Lindsey

13   pointed out her contact to Sgt. Jones. The individual was wearing a blue jacket and a pink hat.7

14           Sgt. Dunakin and Ofr. Hege were transported for medical care, but both were mortally

15   wounded.

16

17           C. Lt. Mufarreh’s arrival at the crime scene, and the “triaging” of the police response.

18           According to Lt. Mufarreh, he had started his shift shortly before noon at the OPD

     6
       Alexander had the rank of sergeant in March 2009, but on March 21 he was serving as the Area
     Commander for Area 1 and therefore had the title “Acting Lieutenant.”
     7
        It is unclear whether Lt. Lindsey made clear to Sgt. Jones or others the full depth of her history with
     the witness, Elaine Walker. In her IAD interview, Lt. Lindsey indicated she had lived in a “four-plex”
     with Walker and Walker’s children for about 3 years, when she (Lt. Lindsey) was young. Walker’s
     children were among her playmates, and Walker had watched over Lindsey when Lindsey’s mother was
     not present. JX 44 p. 12.
                                                     -15-

 1   administration building downtown at 7th and Broadway. His initial routine concern was

 2   reviewing the location of the patrol officer staff under his command in Area 2.

 3          When Lt. Mufarreh first heard the 940B radio broadcast sometime after 1:15 PM, he was

 4   still in civilian clothes. He immediately changed into uniform, walked across the street to a

 5   police car and drove to the area of the incident. The radio broadcast log shows Lt. Mufarreh

 6   asked whether a command post had been set up, and Acting Lt. Alexander indicated he was

 7   unaware of a command post location. Lt. Mufarreh asked about Lt. Lindsey’s location, and

 8   Acting Lt. Alexander thought Lt. Lindsey was near the crime at 74th and MacArthur. Acting Lt.

 9   Alexander suggested a command post be established at 73rd and MacArthur, which formerly had

10   been the site of the Eastmont police station.

11          Lt. Mufarreh and Acting Lt. Alexander then met at Eastmont. Lt. Mufarreh testified his

12   meeting with Acting Lt. Alexander took place between 1:31 PM and 1:37 PM; this was only

13   about 10 or 15 minutes after Lt. Lindsey had asked for someone to assist with perimeter control,

14   and Acting Lt. Alexander had accepted that role. Acting Lt. Alexander briefed Lt. Mufarreh on

15   the limited information available to him (Alexander) at that point.

16          According to Lt. Mufarreh, he and Acting Lt. Alexander discussed a division of duties

17   associated with the crime investigation. The two men agreed it would make sense for Acting Lt.

18   Alexander to take charge of setting up the outer perimeter (continuing the function he already had

19   accepted), and Lt. Mufarreh would take responsibility for overseeing any searches within the

20   perimeter. They agreed it would make sense for Lt. Lindsey to have primary responsibility for
                                                          -16-

 1   overseeing the crime scene investigation.8

 2           There is conflicting testimony and evidence over how the allocation of duties discussed

 3   and agreed upon by Acting Lt. Alexander and Lt. Mufarreh related to the overall command

 4   structure, and particularly whether Lt. Mufarreh at some point took on the role of “Incident

 5   Commander.” Additionally, as discussed infra, there are questions whether Lt. Mufarreh at some

 6   point took on the role of “Tactical Commander.”

 7           Under OPD policy (General Order M-4, “Coordination of Criminal Investigations”), Lt.

 8   Lindsey should have been viewed as the person in overall command of the investigation (Incident

 9   Commander) at this stage, under multiple theories. First, she was the Patrol Area Commander

10   for Area 3 at the time, and the shooting of Sgt. Dunakin and Ofr. Hege had occurred within Area

11   3. Second, she also had been designated as the city-wide “patrol watch commander” under the

12   assignments issued by Deputy Chief Kozicki, and therefore Lt. Lindsey was de facto the

13   individual who had city-wide authority to make staff allocations on March 21. Third, I note that

14   OPD General Order M-4 provides a regimented structure for operational command at the scene

15   of a criminal investigation:

16

17           I.      COMMAND OF CRIME SCENE/RESPONSIBILITIES FOR
18                   PRELIMINARY INVESTIGATIONS
19
20                                              *     *          *   *
21
22           E.      Ranking Officer at the Scene of the Crime
23


     8
         In a subsequent statement to IAD, Lt. Mufarreh stated he told Lt. Alexander, “I’ll be in charge of
     following up on, you know, whatever leads that come in. You take care of the perimeter . . . We’ll have .
     . . [Lt. Lindsey] take care of the crime scene.” Exh. 27 (IAD Interview) p. 10; also, Tr. VI:136-37.
                                      -17-

 1   1. The ranking supervisor or command officer shall assume
 2      command at the scene of a crime and shall be briefed of the
 3      circumstances of the incident by the preliminary investigator.
 4      He/she shall be responsible for directing the activities and tasks of
 5      Departmental personnel at the crime scene.
 6
 7   2. Tactical decisions shall be made by the ranking Patrol Division
 8      member at the scene in accordance with the provisions of
 9      Departmental General Order K-5, TACTICAL OPERATIONS TEAM.
10      Once the incident is under control, the investigator shall advise the
11      ranking Patrol Division member regarding investigatory needs, to
12      ensure that the assigned officer(s) completes a thorough preliminary
13      investigation.
14
15   3. Investigators shall contact the ranking officer upon their arrival at the
16      scene. The investigator shall be briefed of the circumstances of the
17      incident.
18
19      a. If superior in rank to the ranking Patrol Division member at the
20         scene, the investigator shall clearly communicate that he/she is
21         assuming command and shall supervise the preliminary
22         investigation.
23
24      b. If subordinate in rank to the ranking member at the scene, the
25         investigator shall advise the ranking officer regarding investigatory
26         needs and shall supervise the preliminary investigation. The
27         subordinate investigator shall comply with the orders of the
28         ranking Patrol Division member; however, the ranking Patrol
29         Division member shall cooperate with all requests made by the
30         investigator in order to ensure that the preliminary investigation is
31         thorough and complete.
32
33      c. If equal in rank to the ranking Patrol Division officer at the scene,
34         the investigator shall assume command and shall supervise the
35         preliminary investigation, proceed to expand the investigation and
36         provide consultation at the scene.
37
38   4. If more than one investigator responds to a crime scene, among
39      investigators of equal rank, the investigator whose unit will conduct
40      the follow up investigation of the offense shall be the primary
41      investigator.

42
                                                      -18-

 1   Emphasis added. Although Lt. Mufarreh had substantially more recent experience in patrol

 2   operations than Lt. Lindsey, they both held the same rank (lieutenant). Thus under General Order

 3   M-4, Lt. Mufarreh’s arguably greater experience would not have supplanted the lead position

 4   occupied by Lt. Lindsey by virtue of her designation as city-wide watch commander, as well as

 5   the lead position she held because the police shooting has occurred within Area 3, which was

 6   under her command.

 7           The question “who was in charge” (i.e., who was the Incident Commander) at the scene is

 8   one of the key issues in this matter, and is discussed further in the analysis section, infra. IAD

 9   and the BoI concluded Lt. Mufarreh de facto assumed the role of Incident Commander, and it is

10   clear at least one of his actions (attempting to activate a “blue alert” call-out of tactical operations

11   staff) normally was an authority reserved to the Incident Commander. However, Lt. Mufarreh

12   denies that he assumed the role of Incident Commander, claiming that overall command at the

13   scene at all times remained with Lt. Lindsey, until the arrival of Deputy Chief Kozicki around

14   2:45 PM.

15           At the grievance arbitration hearing, Lt. Mufarreh explained why he and Acting Lt.

16   Alexander concluded Lt. Lindsey should focus on the crime scene investigation, rather than

17   establishing the perimeter (a task taken by Alexander) or coordinating the search for the suspect

18   (Mufarreh’s assignment). In Lt. Mufarreh’s view, this was a way for Lt. Lindsey to continue to

19   stay focused on her responsibilities as the Incident Commander:

20               Well, [Lt. Lindsey] was incident commander. If you’re going to be the
21               incident commander, you want to have less duties. And the easiest thing
22               to do in my opinion was to handle the crime scene itself. That’s pretty
23               easy. All you need to do is put a sergeant in charge of the crime scene. It
24               takes 5 minutes, if that, just to coordinate a couple of things. Now, you’re
                                                         -19-

 1                 done. Now you can sit back and you can look at the whole thing. I guess
 2                 it was my impression that she would probably go back to 73rd. I don’t
 3                 know. I don’t know what she was thinking, what she wasn’t thinking. But
 4                 that was the reason why we came up with the division that way to give her
 5                 the easiest task that a sergeant can do.

 6   Tr. VI:205.

 7           It does not appear Lt. Lindsey was consulted by Mufarreh and Alexander when these

 8   respective duties were divvied up. At 1:37 PM Acting Lt. Alexander broadcast a general

 9   announcement that he (Alexander) was handling the perimeter, Lt. Mufarreh was handling the

10   search, and Lt. Lindsey was handling the crime scene. Lt. Mufarreh testified he thought Acting

11   Lt. Alexander’s broadcast was somewhat premature, because neither Alexander nor Mufarreh

12   had yet spoken directly with Lt. Lindsey about this arrangement. However, in statements she

13   provided later to OPD investigators, it appears Lt. Lindsey generally embraced this division of

14   duties and viewed the overall response as being a collaboration between herself, Lt. Mufarreh

15   and Acting Lt. Alexander. Stated differently, there is no indication Lt. Lindsey believed Lt.

16   Mufarreh and/or Acting Lt. Alexander improperly had usurped her authority, nor is there any

17   evidence from the radio transmissions or witness statements that Lt. Lindsey expressed any

18   objection to the arrangement.9


     9
        When Lt. Lindsey was interviewed by the Sgt. Cruz of the Homicide Division in early April about the
     events of March 21, she stated “So . . . basically I get on the radio and . . . I lock that scene down because
     now I’m treating it as a homicide scene, and we’re just trying to, you know, canvass, uh, grab witnesses
     for Homicide. . . . [W]e triage the scene at one point [be]cause . . . Blair Alexander was handling the
     outer perimeter. And . . . Lieutenant Mufarreh arrived on the scene and he was assisting with the search
     and entry team . . . to locate the suspect. So . . . gosh, it was a lot of things going on, you know, still
     coordinating a lot of resources, . . . and I didn’t want to be all over the place.” Later in the interview, in
     response to Sgt. Cruz’s question about her contact with Mufarreh, Lt. Lindsey said Lt. Mufarreh’s “role
     was going to be the search and entry into the apartment …because that’s what we discussed. That was
     his role. We talked about it. We triaged the scene. I was handling the inner perimeter. Blair had the
     outer perimeter, and he was gonna assist with the search and entry into the apartment.” JX 44, pp. 6-7,
     22.
                                                        -20-

 1           After the meeting with Acting Lt. Alexander, Lt. Mufarreh went to the intersection of

 2   74th and MacArthur, where he remained located for most of the period between 1:40 PM and

 3   3:04 PM, when the Tactical Operations Team entered the 74th Avenue apartment.

 4

 5           D. Command post.

 6           Although Lt. Mufarreh and Acting Lt. Alexander had discussed establishing a command

 7   post at the Eastmont site, and this location was identified to other OPD officers at various times

 8   as the site for an incident command post, the location never really developed into a command

 9   center. Both Lt. Mufarreh and Acting Lt. Alexander left the site after the discussion about

10   allocating duties amongst themselves and Lt. Lindsey, with Lt. Mufarreh heading toward the

11   scene of the traffic stop just a few blocks away.

12           According to Lt. Mufarreh, from the time of his initial arrival in the area of 74th and

13   MacArthur until Capt. Orozco arrived, Mufarreh remained in the same area about “95 percent of

14   the time of the entire incident.” He testified he was not thinking about whether or not the

15   location where he was standing had the “appearance of a traditional command post,” because he

16   believed a formal command post at some point would be set up at 73rd and MacArthur. In Lt.

17   Mufarreh’s mind, he was supervising a search for the suspects, and the area of 74th and


         Lt. Lindsey also was interviewed by Sgt. Floyd of IAD as part of the IAD investigation, and offered
     the following explanation for the assumption of roles: “I was the only – Well, I mean I handled the
     scene, you know, originally. I set up the parameter (sic), you know, people – all the information was
     originally, you know, coming through me … I’m the first one here, you know. I knew it (sic) was certain
     things I needed to do. I knew that we had a scene of a Homicide. I know I needed to delegate, but early
     on, you know, we triaged the scene. So I was in charge of the inner parameter (sic) and Blair Alexander
     took control of the outer parameter (sic) and Lt. Mufarreh was responsible for search and entry. And that
     was established very early.” Lindsey said the decision to triage the scene in that manner came about
     when “we talked . . . by phone and then you will hear Blair Alexander get on the radio . . . I don’t know if
     it was anybody’s decision. I just think that was what we came up with.” JX 44B pp. 42-45.
                                                     -21-

 1   MacArthur was a good position to coordinate the search. He acknowledged that while he had not

 2   intended this site to be a command post, it kind of “turned into a command post . . . when all of

 3   the commanders above me responded there.” Lt. Mufarreh did not find this surprising or

 4   unusual, noting that “99% of the command posts that I’d been associated with” had consisted

 5   simply of a group of tactical officers and command personnel without much support. In the first

 6   few hours of the incidents he had been involved in, a command post often consisted simply of a

 7   car with commanders above him, or maybe simply himself. Tr. VI:231-34.

 8          Capt. Orozco also testified to his experience of the manner in which a command post

 9   typically evolved. According to Orozco, when a “blue alert” is activated, the Tactical

10   Commander of the unit responds and is driving an SUV which contains maps, poster boards,

11   radios, and specialty equipment. Since that vehicle on March 21, 2009, was in the possession of

12   Capt. Tracey (who was not coming to the scene), none of the equipment which typically arrives

13   with the Tactical Commander was present. In any event, Capt. Orozco testified the command

14   post usually “evolved,” and didn’t appear instantaneously just because a “blue alert” was called.

15   Capt. Orozco testified that prior to the entry into the apartment by the Tactical Team members at

16   3:00 PM, he had not given conscious thought to the fact that whiteboards had not been set up and

17   tactical dispatchers weren’t present because:

18              At the time it was more important to me to ensure that we cleared that area
19              first. Again, it’s not uncommon that police action takes place without the
20              tactical dispatchers or with support staff because again, it’s an evolving
21              process to get that put together.

22   Tr. VII:284-86.

23          Members of the Tactical Operations Team initially met at the Eastmont site, where they
                                                        -22-

 1   were briefed by Sgt. Dan Sakai. Some of OPD’s tactical gear is stored at Eastmont. Eventually,

 2   the tactical operators assembled themselves down the street near 75th Avenue and MacArthur,

 3   awaiting direction.

 4             When Acting Police Chief Jordan traveled to the crime scene, he went to the Eastmont

 5   site, apparently expecting to see a functioning command post. However, command of the

 6   incident de facto was being conducted from a location on MacArthur Boulevard, near 74th

 7   Avenue. By 3:00 PM, senior staff at this 74th and MacArthur location included Deputy Chief

 8   Kozicki, Capt. Orozco, Capt. Rachal, Deputy Chief Breshears, Lt. Mufarreh and Lt. Lindsey. In

 9   addition, OPD resources like the Electronic Surveillance Unit (ESU) vehicle also had been

10   stationed near this area.

11

12             E. Eye-witness reports on the possible location of the suspect; the focus on the 2755
13                74th Avenue apartment; assessments of the information being received.

14             Soon after the shooting of Sgt. Dunakin and Ofr. Hege, eyewitness information began to

15   be supplied to the OPD regarding the possible location of the shooter. Not all the information

16   was consistent, and it seems likely that one report intentionally was false and was offered in an

17   attempt to distract the search.

18             At 1:40 PM, Karla Rush, a former OPD police officer, telephoned the OPD police

19   communications division and informed the radio room sergeant that an informant (Clarence

20   Ellis) was telling her he believed the suspect was in a ground floor apartment at 2755 74th

21   Avenue. This was a very short distance from the location where the shootings had occurred.10


     10
           A transcript of Rush’s phone conversation with Sgt. Pope in Communications is found at JX 7 pp. 14-
     15.
                                                     -23-

 1   Rush subsequently contacted Lt. Ersie Joyner and relayed this information to him. Rush and Lt.

 2   Joyner then had a three way call with the informant, Ellis.

 3          Within the Police Department, Lt. Joyner is known to have particularly close ties to the

 4   community, and OPD witnesses who testified at the hearing uniformly expressed admiration for

 5   Lt. Joyner as a capable and effective police leader. Lt. Joyner testified he had known Ellis as an

 6   informant for about fifteen years, and over time Ellis had proven himself to be reliable. Lt.

 7   Joyner testified at the arbitration hearing, and this Arbitrator found him to be an especially clear

 8   and credible witness.

 9          Around the same time Karla Rush and Lt. Joyner were conferring about the information

10   Rush had received from Ellis, Sgt. Richard Andreotti had arrived at the scene. According to Sgt.

11   Andreotti, he parked his vehicle near 75th and MacArthur, and then walked toward 74th and

12   MacArthur. He spotted Lt. Mufarreh there, and they spoke about the necessity for beginning a

13   yard search for the suspect in the vicinity of the crime scene.

14          Lt. Joyner soon met with Clarence Ellis in person at Hillside and 74th Avenue, at the far

15   end of the block where the apartment building was located. According to Lt. Joyner, Ellis said he

16   (Ellis) had been very close to the scene when Sgt. Dunakin and Officer Hege had been shot, he

17   had responded immediately, and he had tried to help one of the injured officers. According to Lt.

18   Joyner, Ellis reported seeing the suspect run westbound on MacArthur and then southbound on

19   74th Avenue. Although Ellis did not actually see the suspect enter the apartment building at

20   2755 74th Avenue, Ellis was somewhat adamant in his conversation with Lt. Joyner that this was

21   the location where the suspect was likely to be found. Ellis told Lt. Joyner the suspect’s sister

22   lived at the apartment building, and Ellis had seen the suspect’s car parked there several times.
                                                      -24-

 1          Lt. Joyner testified Ellis was somewhat frantic or agitated during their discussion at 74th

 2   and Hillside, because Ellis had been so close to Dunakin at the time of the shooting. Lt. Joyner

 3   and Ellis drove down 74th Avenue so Ellis could confirm the specific location of the apartment

 4   building that was being discussed. During this process, Lt. Joyner invited Ellis to get into the

 5   back seat of the car and lay down, so he would not be seen cooperating with the police.

 6   However, according to Lt. Joyner,

 7              [Ellis] said he didn’t have a concern. In fact, his words were, “I don’t give
 8              a fuck who sees me,” and he got into the front seat of the [police] car.

 9   Tr. IV: 194-195.

10          Lt. Joyner testified Ellis was emphatic in his belief the suspect was in the apartment on

11   74th Avenue apartment, but also was clear in acknowledging he (Ellis) had not actually seen the

12   suspect enter the unit after the shooting. Although Ellis could not identify the suspect by name,

13   he knew who the individual was, and even told Lt. Joyner that he (Lt. Joyner) at some point in

14   the past had arrested the individual’s grandfather.

15          According to Lt. Joyner, Ellis also indicated he (Ellis) had spoken to a second witness – a

16   lady named “Elaine” – who also was in the vicinity of the shooting and who also believed the

17   suspect had fled to the 74th Avenue building.11 Lt. Joyner testified that, based on his

18   conversation with Ellis, he (Lt. Joyner) believed the suspect was likely to be in the apartment. A

19   key element of Lt. Joyner’s confidence in Ellis’s report was Lt. Joyner’s prior history with Ellis,

20   which had demonstrated to Lt. Joyner Ellis’s reliability as an informant.



     11
        “Elaine” Walker was the woman in the pink hat who separately had spoken with Lt. Lindsey and Sgt.
     Jones (Homicide Division), and who had identified the 74th Avenue address as a likely location for the
     suspect.
                                                        -25-

 1           At 1:45 PM Lt. Joyner radioed “for the Watch Commander who’s running this, can they

 2   40 [meet] me at 74 and Hillside at their convenience?” JX 7 p. 24. Lt. Joyner testified he

 3   wanted personally to tell the commander what was going on and let the commander hear what

 4   Ellis had to say. Both Lt. Mufarreh and Lt. Lindsey tried to reach Lt. Joyner, but Lt. Mufarreh’s

 5   phone call got through first, so he (Lt. Mufarreh) had the initial conversation.12 In his hearing

 6   testimony, Lt. Mufarreh recalled that Lt. Joyner complained during the phone conversation about

 7   Ofr. Mitchell “blowing off” the informant, Ellis. Lt. Mufarreh’s “take away” from the phone

 8   conversation with Lt. Joyner was Lt. Joyner’s belief that the suspect

 9               . . . is in there [i.e., the 74th Avenue apartment] right now. I wrote it
10               down. I wrote it down on a piece of paper that I had and then I wrote it
11               again. So I wrote it twice. I wanted to be sure of it and I read it back to
12               him. I tore the piece of paper and I gave one of the addresses to Sgt.
13               Andreotti.

14   Lt. Mufarreh testified he did not know where the address was when the information first was

15   shared with him by Lt. Joyner, and he (Lt. Mufarreh) expected the possible suspect location to be

16   four or five, maybe ten blocks away. Lt. Mufarreh said he was surprised the apartment was just

17   steps away from the crime scene location. Tr. VI:216-17. Lt. Mufarreh was at 74th and

18   MacArthur, only about a block away from Lt. Joyner’s and Ellis’s location at 74th and Hillside.

19           Sgt. Andreotti had been standing near Lt. Mufarreh during his (Lt. Mufarreh’s) initial

20   conversation with Lt. Joyner. Sgt. Andreotti and some other officers gravitated toward the

21   apartment building on 74th Avenue, with Sgt. Andreotti ultimately taking responsibility for



     12
         Lt. Mufarreh testified that he called Lt. Joyner in response to Lt. Joyner’s radio request to speak with
     the “Watch Commander” in charge because Lt. Joyner had talked about having information concerning
     the location of the suspect. Lt. Mufarreh concluded he (Lt. Mufarreh ) was the right person to respond to
     Lt. Joyner because he (Lt. Mufarreh) was coordinating the search. Tr. VI:215.
                                                      -26-

 1   establishing an “inner perimeter” near that location. There is a radio broadcast from Lt.

 2   Mufarreh at 1:48 PM urging officers in front of the 2755 74th Avenue apartment building to

 3   “take cover,” recognizing that information had been received identifying this as a possible

 4   location for the suspect.

 5          In an unusual twist, Ellis reported to Lt. Joyner that he (Ellis) personally was familiar

 6   with the layout of the 74th Avenue apartment, because Ellis’s girlfriend once had lived in the

 7   unit. At 1:56 PM, Lt. Joyner broadcast a description of the layout of the building:

 8                 Alright, listen up. When you go inside that building there, there’s a short
 9                 hallway, there’s also supposed to be one unit downstairs that’s going to be
10                 to the right. Um, that’s where he, that’s where the suspect’s been staying,
11                 or at least was seen going in there.

12   JX 7 p. 23.

13          Separately, at approximately 2:00 PM, Homicide Sgt. Rachel Van Sloten arrived at Lt.

14   Joyner’s position. Sgt. Van Sloten testified she had parked her car on 73rd Avenue, and walked

15   on Hillside toward 74th Avenue. She was looking for her colleague, Homicide Sgt. Tony Jones,

16   who she knew had already arrived at the crime scene. Sgt. Van Sloten saw Lt. Joyner and asked

17   whether he knew the location of Sgt. Jones. Lt. Joyner provided this information. According to

18   Sgt. Van Sloten, Lt. Joyner also told her he had an informant in his car (i.e., Ellis) who had a

19   good idea where the suspect was hiding. Lt. Joyner pointed up the street to the lower right

20   apartment of 2755 74th Avenue. Sgt. Van Sloten testified she had known Lt. Joyner for a long

21   time, had found his information to be reliable, and trusted his information. After talking to Lt.

22   Joyner and the informant, Sgt. Van Sloten believed the suspect most likely was in the 74th

23   Avenue apartment.
                                                       -27-

 1           Sgt. Van Sloten testified she was still at Lt. Joyner’s position at 74th and Hillside when

 2   Lt. Mufarreh arrived, and she saw him talking with Lt. Joyner and the informant. Lt. Mufarreh

 3   places this meeting at approximately 2:00 PM. Lt. Mufarreh had walked from his MacArthur

 4   Avenue location to meet with Lt. Joyner and the informant. Lt. Joyner testified Lt. Mufarreh had

 5   walked up 74th Avenue between MacArthur and Hillside, and therefore had walked right in front

 6   of the apartment building where he (Lt. Joyner) believed the suspect was hiding. Lt. Joyner

 7   testified he was “pissed off” with Lt. Mufarreh that he (Lt. Mufarreh) had walked in front of the

 8   2755 74th Avenue location, because Lt. Joyner only recently had broadcast that the suspect was

 9   associated with the building.13 Slightly earlier, Lt. Joyner had heard Acting Lt. Alexander on the

10   radio initiating instructions to begin an aggressive canvas of the 74th Avenue area; Lt. Joyner had

11   contacted Acting Lt. Alexander and advised him (Alexander) not to take this action because of

12   the possibility the suspect would be present on the street.

13           Lt. Joyner gave Lt. Mufarreh a rundown of what Ellis had told him. Lt. Joyner testified

14   he told Lt. Mufarreh that he (Lt. Joyner) had a very strong hunch that the suspect was in the

15   apartment on 74th Avenue. Factors that led Lt. Joyner to this conclusion included (1) the

16   information he had received from Ellis, (2) the fact the suspect had abandoned his car, and (3) Lt.

17   Joyner’s understanding that the outer perimeter had been set up very quickly.

18           As Lt. Joyner recalls the next encounter, he (Lt. Joyner) then asked Ellis to tell Lt.

19   Mufarreh what he knew. Lt. Joyner recalls that Lt. Mufarreh asked Ellis pointedly whether he



     13
        Lt. Mufarreh disagreed with Lt. Joyner’s testimony. Lt. Mufarreh acknowledged walking down 74th
     Avenue to meet with Lt. Joyner, but he was careful to walk on the south side of the street and to “zig-
     zag” because he believed the suspect probably was at the 2755 74th Avenue building, based on Lt.
     Joyner’s report. Tr. VI:219.
                                                        -28-

 1   (Ellis) actually had seen the suspect enter the apartment building, and Ellis acknowledged he had

 2   not personally seen the suspect enter the building. However, according to Lt. Joyner, Ellis

 3   continued to express confidence that the suspect likely was in the apartment unit.

 4           According to Lt. Joyner, at that point, Lt. Mufarreh asked Lt. Joyner to get out of the car

 5   where they had been speaking with Ellis. Lt. Mufarreh told Lt. Joyner that he had other

 6   information that the suspect had possibly gotten into a red Jetta. Lt. Joyner testified that Ellis

 7   overheard this information through the open window of the car, and leaned out and said, “That’s

 8   a fucking lie, and if the bitch who told you that has blue hair, that’s the suspect’s girlfriend.” Tr.

 9   III:257. Lt. Joyner testified he asked Lt. Mufarreh if they had the person who had provided this

10   information, and was told that they had the witness down in Homicide. Lt. Joyner called down to

11   Homicide and confirmed it was a girl with blue hair who had provided the information about the

12   suspect fleeing the crime scene in a red Jetta. Lt. Joyner testified that after receiving this

13   information confirming the identity of the witness who had reported the suspect as having fled,

14   he (Lt. Joyner) told Lt. Mufarreh that he believed Ellis, and that Ellis’s report made sense. Lt.

15   Joyner testified he told Lt. Mufarreh that he (Lt. Joyner) had worked with Ellis before:

16                  I thought [Ellis] was telling the truth because of the fact that he wasn’t
17                  trying to put too much on it in regards to – he could have simply said, “I
18                  saw him go in there,” but he was honest and said, “I didn’t. But I think
19                  that he’s in there.”

20   Tr. III:294.

21           Lt. Joyner testified there was additional discussion between himself, Lt. Mufarreh, Sgt.

22   Sakai and possibly Sgt. Bassett. Sgt. Sakai mentioned that a tracking canine was on the way. In

23   Lt. Joyner’s view, there were three likely options “on the table” for the suspect’s location: the
                                                       -29-

 1   suspect might have fled by entering someone else’s car, or he might have run to the apartment on

 2   74th Avenue, or he might still be hiding elsewhere within the perimeter. In Lt. Joyner’s view,

 3   the tracking dog was a logical tool to use at that point, to determine which of the options might

 4   be valid. If the dog took them from the scene of the shooting in the direction of the 74th Avenue

 5   apartment, this would suggest the suspect was in the unit. If the dog tracked from the crime

 6   scene along MacArthur, this might suggest the suspect had left the area by entering someone

 7   else’s car.

 8           Because he saw the Tactical Operations Team’s large “Bearcat” vehicle was parked on

 9   74th Avenue near the apartment, with a rifle team, Lt. Joyner was under the impression his

10   warnings about the site and its association with the suspect were being taken seriously.

11           Lt. Mufarreh’s recollection of the session with Lt. Joyner and Ellis is different. Lt.

12   Mufarreh recalled that Lt. Joyner told him (Lt. Mufarreh) that the confidential informant (Ellis)

13   had not seen the suspect run down the street but, but that Ellis was getting information about that

14   from someone else. Lt. Mufarreh recalled that Lt. Joyner told him (Lt. Mufarreh) that the car the

15   suspect had been driving when stopped by Sgt. Dunakin had been in the neighborhood the last

16   two or three days, and the vehicle had been seen parked in front of 2755 74th Avenue. Lt.

17   Mufarreh explained that this information led him to discount somewhat the intelligence being

18   provided by Ellis:

19                 So it went from he’s in there, he’s in there, to now it’s third hand, and I
20                 don’t know who he’s getting this information from, and that he [Ellis]
21                 never saw or nobody ever saw the suspect go into that residence. That’s
22                 pretty much what I got out of that conversation.
23

24   Tr. VI:220.
                                                     -30-

 1          Even though Lt. Joyner testified with clarity at the arbitration hearing that Lt. Mufarreh

 2   talked directly with Ellis, Lt. Mufarreh testified he did not recall a substantive discussion with

 3   Ellis, other than perhaps asking Ellis a question or two.

 4          Lt. Mufarreh recalled thinking, following the meeting with Lt. Joyner, that

 5              . . . the guy [i.e., the suspect] is probably not there [at the 74th Avenue
 6              apartment] because [Lt.] Joyner . . . had a small sliver of the information
 7              and he wasn’t there from the beginning. But I still put weight on it. I
 8              know I said there’s a low probability that the guy was in there, and, at the
 9              time, that’s what I felt. But there was still a probability he could have
10              been in there, but it was pretty low.

11   Lt. Mufarreh did not perceive Lt. Joyner being emphatic in believing the suspect was inside the

12   74th Avenue apartment. Lt. Mufarreh understood Ellis’s information about the suspect’s links to

13   the apartment as coming from others, testifying “I do specifically remember . . . [Lt. Joyner]

14   saying that Ellis was getting the information third hand and when it was more about putting the

15   car in front of the location [at 2755 74th Avenue] than the suspect inside the location at that

16   moment.” Tr VI:222. Lt. Mufarreh did not remember Lt. Joyner expressly telling him that he

17   (Lt. Joyner) personally believed the suspect was in the apartment.

18          After his discussion with Lt. Joyner, Lt. Mufarreh returned to the area of 74th and

19   MacArthur. Lt. Mufarreh testified he contacted Sgt. Andreotti, and shared the information he

20   had received from Lt. Joyner, and also shared this information with Sergeants Sakai and Bassett.

21   According to Lt. Mufarreh, he directed Sgt. Andreotti to take a team of officers and “lock down

22   the possible suspect location” at 2755 74th Avenue. He directed Sgt. Bassett and Sgt. Sakai to

23   take other teams of officers and follow-up on information concerning the suspect’s identity or

24   location, and report back to him.
                                                    -31-

 1          After being briefed by Lt. Mufarreh about his (Lt. Mufarreh’s) conversation with Lt.

 2   Joyner and Ellis, Sgt. Andreotti called Lt. Joyner directly. Sgt. Andreotti was concerned about

 3   the allocation of resources to perform yard searches, which had not yet begun, and therefore he

 4   (Andreotti) wanted to form a personal opinion about the strength of the information Lt. Joyner

 5   was acquiring. At the time, Sgt. Andreotti was convinced the suspect was actively fleeing from

 6   the neighborhood of the earlier traffic stop and shooting.

 7          According to Sgt. Andreotti, his “take away” from his short phone conversation with Lt.

 8   Joyner was similar to what he (Andreotti) understood to be Lt. Mufarreh’s impression. Sgt.

 9   Andreotti expressed admiration for the quality of information Lt. Joyner typically received from

10   community residents, noting that Lt. Joyner grew up in Oakland and frequently was given

11   information by residents who might not report to other OPD officers. Andreotti understood that

12   the suspect had an association with the 74th Avenue apartment, but also understood that no

13   witness actually had claimed to see the suspect actually enter the 74th Avenue apartment on

14   March 21. Id. Thus, even after speaking with Lt. Joyner, Andreotti believed the suspect most

15   likely was not in the 74th Avenue apartment:

16          Q So you [Andreotti] get off the phone with Lieutenant Joyner. What was
17            your personal belief concerning the likelihood of the suspect being in the
18            apartment . . . ?
19
20          A Well, based off my experience, I believe[d] the guy was not there. I
21            figured this is something we had to do, we had to clear the apartment
22            before we continue[d] with the search. But in my mind, I was prepared to
23            do yard searches for several hours. As a matter of fact, I made some phone
24            calls down at the patrol desk and asked the desk officer to make sure that
25            the batteries were charged . . . [because] if we’re going to be out there for
26            four hours, we’re going to need a supply of fresh batteries.

27   Tr. VII:168.
                                                     -32-

 1          Lt. Mufarreh assigned Sgt. Andreotti to lead the Designated Arrest Team and to establish

 2   an inner perimeter around the 2755 74th Avenue apartment. At some point, Sgt. Andreotti and

 3   two deputy sheriffs proposed to Lt. Mufarreh that they enter the 74th Avenue apartment with a

 4   couple of patrol riflemen, so the apartment could be cleared “real quick.” Lt. Mufarreh

 5   instructed Sgt. Andreotti not to make the entry, but instead to wait for the arrival of the Tactical

 6   Operations Team, so the professional tactical personnel could handle any entry.

 7          The different evaluations of Lt. Joyner and Lt. Mufarreh were reflected in radio

 8   broadcasts. Lt. Joyner broadcast the suspect’s suspected presence at the 74th Avenue apartment

 9   over the radio more than once. However, at 2:00 PM, Lt. Mufarreh broadcast, “Hold the

10   perimeter because he may not be in here.” Exh. 7 p. 24.

11          At 2:04 PM an officer broadcast, “just an update. Target location, southbound window

12   there’s people looking out. 1st level.” Exh. 7 p. 26. It is unclear whether this particular bit of

13   information registered with any of the key personnel; Lt. Mufarreh later would testify he did not

14   recall hearing it. However, the “people looking out” transmission immediately was

15   acknowledged by Sgt. Sakai (4L71). Id.

16          In addition to the conversations with Clarence Ellis, OPD officers had additional

17   conversations with Doris Elaine Walker (“the lady in the pink hat”), who earlier had shared her

18   information about the suspect and his relationship with the 74th Avenue apartment with Sgt.

19   Jones of the Homicide Division and with Lt. Lindsey. Walker lived with her daughter on 74th

20   Avenue, just a few doors from the apartment building at 2755 74th Avenue.

21          Sgt. Van Sloten testified that, after leaving Lt. Joyner’s position, she continued eastbound

22   on Hillside to 75th Avenue, then walked down 75th Avenue to MacArthur, where she met up
                                                     -33-

 1   with Sgt. Jones at the crime scene. Sgt. Jones had been briefed separately by Lt. Lindsey about

 2   Walker’s information on the suspect’s location. Sgt. Jones also asked Sgt. Van Sloten to speak

 3   with Walker, to collect more information.

 4          At approximately 2:30 PM, Sgt. Van Sloten introduced herself to Walker. Sgt. Van

 5   Sloten testified she and Walker then walked up MacArthur to the corner of 74th and then turned

 6   left for about 15 feet before coming back. Walker pointed to same lower floor apartment at 2755

 7   74th Avenue that had been identified by Ellis, and said she had seen the suspect’s car parked in

 8   front of 2755 74th Avenue for three or four days just prior to this incident. According to Sgt.

 9   Van Sloten, Walker also reported she had seen the female who resided in the apartment riding in

10   the vehicle with the suspect.

11          Lt. Lindsey also received information relating to the suspect’s possible location in the

12   74th Avenue apartment. In the Supplemental statement she later submitted in connection with

13   the Homicide Division investigation, Lt. Lindsey stated Walker expressed confidence the suspect

14   was in the apartment, and claimed to have seen the suspect in her (Walker’s) back yard soon after

15   the shooting. JX 57. In her interview with IAD, Lt. Lindsey reported hearing Walker claim to

16   have seen the suspect “go in there,” i.e., enter the apartment. JX 44 p. 17.

17          Lt. Lindsey later would report to IAD that she also observed a group of women in the

18   vicinity of the 74th Avenue apartment actively trying to discourage the police from approaching

19   the apartment building, expressing concern that the police would kill their brother. To Lt.

20   Lindsey, this lent additional confidence to the likelihood the suspect was in the apartment unit.

21   JX 44 p. 15.

22          Lt. Madeiros testified he was told by Lt. Lindsey later that afternoon that a witness
                                                     -34-

 1   actually had seen the suspect enter the 74th Avenue apartment. However, he acknowledged there

 2   is nothing in the OPD Communications transcript indicating Lt. Lindsey broadcast this

 3   information. Lt. Lindsey later would claim she shared with Lt. Mufarreh, Capt. Orozco and

 4   others this information about the suspect’s likely presence in the 74th Avenue apartment.

 5          Lt. Lindsey and Lt. Joyner stayed in touch by phone during the period between the traffic

 6   stop shootings and the Tactical Operations Team’s entry into the apartment immediately after

 7   3:00 PM. The OPD Communications transcript (JX 7) shows Lt. Lindsey and Lt. Joyner

 8   repeatedly spoke with each other by cell phone on about 5 occasions as the incident was

 9   developing, prior to the entry into the 74th Avenue apartment (at 1:45-1:47 PM, 2:06-2:09 PM,

10   2:36 - 2:39 PM, 2:51 - 2:53 PM, 2:56 - 2:57 PM). According to Lt. Joyner, one of his early calls

11   with Lt. Lindsey took place right after his (Lt. Joyner’s) first phone conversation with Lt.

12   Mufarreh; Lt. Joyner knew Lt. Lindsey was the watch commander for Area 2, and he understood

13   Lt. Lindsey was calling him in her watch commander capacity. During this phone conversation,

14   Lt. Joyner provided Lt. Lindsey with the same information he had provided to Lt. Mufarreh. The

15   transcript also identifies one call between Lt. Lindsey and Lt. Joyner at 3:11 PM, after the entry

16   had been made into the 74th Avenue apartment and the resulting firefight. JX 7.

17
18          F. Efforts to mobilize the full array of tactical support elements by activating a “blue
19             alert.”

20          At 1:49 PM Lt. Mufarreh attempted to activate a “blue alert” by making a broadcast over

21   the radio. Exh. 7, p. 19. According to General Order K-5, only the Watch Commander or
                                                          -35-

 1   Incident Commander has direct authority to issue a blue alert.14 There was conflicting testimony,

 2   however, concerning the mechanism for activating a blue alert. Several witness testified a “blue

 3   alert” only can be initiated by making a phone call to the communications dispatch office, but Lt.

 4   Mufarreh testified on several prior occasions he had initiated a “blue alert” using radio

 5   communications, and without calling the communications supervisor directly by phone. He

 6   testified he was not aware that a phone call was required. Tr. VI:227-28.

 7            Capt. Orozco’s testimony was similar. According to Capt. Orozco, prior to March 21,

 8   2009, he had requested a blue alert “probably less than 10 times,” and he had requested the blue

 9   alert in two ways:

10                I had either put it out on the radio and requested the blue alert and
11                provided them with information, or I had put it out on the radio and then
12                called the communications section.



     14
          General Order K-5, Section III-B, provides (in relevant part):

              B. Activation of the Tactical Operations Team in the City of Oakland

                       1. The Tactical Operations Team may be activated at the discretion of the Patrol
                       Division Watch Commander, or an Area Commander who is on the scene and assumes
                       Incident Command.

                       2. The Watch Commander/Incident Commander activates the Team for critical incidents
                       by notifying a Communications Division supervisor, who initiates the call-out procedure.
                       Unit Commanders may request activation of the Team for planned operations, such as
                       high-risk warrant service, by notifying the SOS Commander, or if he/she is unavailable,
                       an Assistant Tactical Commander.

     Emphasis added.

        Witnesses testified there can be significant personnel costs associated with activating the tactical
     operations unit, depending on the scope of the call-out. Some Tactical Operations Team members may
     be summoned to work at overtime rates. No witness suggested OPD has placed restrictions on issuing a
     “blue alert” when tactical support is needed; however, the cost and disruption associated with a “blue
     alert” merits restricting the authority for initiating the call-out to the senior staff leading an incident
     response.
                                                        -36-

 1   Tr. VII:283.

 2           According to Capt. Orozco, there had been times when he simply had requested the blue

 3   alert over the radio and not called the communications section. Capt. Orozco testified he had

 4   never been told that simply requesting a blue alert over the radio was inadequate.

 5           Sgt. Pat Gonzales testified the Tactical Operations Team typically was activated when a

 6   supervisor “gets on the air” and indicates a “blue alert” was needed. Sgt. Mike Reilly also

 7   testified a “blue alert” typically was activated by the Incident Commander announcing the need

 8   for the alert over the radio.

 9           Dispatcher Parlette testified the initial blue alert request might be made by a commander

10   making an announcement over the radio, but the broadcast request then should be followed-up

11   with a phone call to the radio room.

12           The OPD Communications transcript indicates Lt. Lindsey also activated a “blue alert”

13   and requested additional patrol officers by making a cell phone call to Communications at 2:25

14   PM.15 JX 7 p. 34. At 2:30 PM, Lt. Mufarreh also contacted Communications by phone –

15   presumably for the same purpose. Id. p. 36. The “blue alert” automated calling began at 2:33

16   PM, about 40 minutes after Lt. Mufarreh initially had made his request via radio.

17           In connection with events of March 21, 2009, Lt. Mufarreh acknowledged he did not

18   follow-up his radio broadcast by making a call directly to the communications supervisor. As a

19   result, Tactical Team members did not receive the “blue alert” page until 2:33 PM.

20
21


     15
        The Board of Inquiry later criticized Lt. Lindsey’s request for additional officers, concluding the
     addition of more officers at the crime scene created additional command problems.
                                                     -37-

 1          G. Assembling the Tactical Operations Team, and the plan to conduct a canine
 2             tracking search to find the suspect.

 3          Lt. Mufarreh had issued a radio broadcast advising the Tactical Operations Team to

 4   assemble at the former Eastmont Station location, which also happens to be the site where much

 5   of the gear used by the Tactical Operations Team is stored. Members of the team met at the

 6   Eastmont Station, where the SWAT van (with gear) also had arrived. While at the Eastmont

 7   location, they were briefed by Sgt. Sakai and were advised that a canine track was being planned.

 8   Under this approach, a canine would be brought to the site of the crime scene at 74th and

 9   MacArthur, and attempt to track the suspect, starting from the suspect’s vehicle. According to

10   Sgt. Gonzales, it was Sgt. Sakai who directed the Tactical Team members to depart from the

11   Eastmont Station site and reassemble at 75th and MacArthur.

12          After this briefing, the Team members traveled to 75th and MacArthur and awaited the

13   arrival of the tracking canine. OPD had not previously used a canine track under the particular

14   circumstances confronting the Department on March 21; the Tactical Operations Team therefore

15   had no experience with a track in such a situation, and had not previously trained for it. Two

16   OPD canine units had arrived at the scene, and the officers in charge of the units expressed some

17   confidence in the ability of the OPD canines to perform the search. However, a call also had

18   been made to the Alameda County Sheriff’s Office, which was believed to have a dog

19   specifically trained and certified to conduct a tracking search. It was decided to delay the

20   initiation of the search until the ACSO canine could arrive, so the “best dog possible” could be

21   used. According to Sgt. Gonzales, Sgt. Sakai spent time developing a tracking plan, to be used in

22   connection with the tracking canine.
                                                     -38-

 1          The officers on the Tactical Operations Team uniformly testified that, during the period

 2   when they were assembled at the 75th and MacArthur location, they all believed “the plan” was

 3   to wait for the arrival of the ACSO tracking canine and then use a canine track as the first

 4   element in the perimeter search.

 5

 6          H. Capt. Tracey’s request that Capt. Orozco assume tactical command duties; Capt.
 7             Orozco’s arrival at the crime scene.

 8          Capt. Orozco was off-duty on March 21. He testified he was at home when he received

 9   voicemail messages from Ofr. Mike Morris asking if he (Capt. Orozco) could get word to Capt.

10   Tracey that two of his motor officers had been shot. At that point, no one had been able to reach

11   Capt. Tracey. Capt. Tracey was the sole credentialed Tactical Commander available on March

12   21, and he was viewed by the Department as one of OPD’s tactical experts. Capt. Orozco served

13   as a Tactical Commander between 2005 and 2009, but he recently had given up his involvement

14   with tactical operations to make way for Lt. Mufarreh to become a Tactical Commander. As

15   noted, as of March 21, 2009, Mufarreh had not yet completed the Department’s training and

16   credentialing process to serve as a Tactical Commander.

17          Capt. Orozco initially called and spoke with Acting Chief Jordan, and he then attempted

18   to reach Capt. Tracey by phone. Capt. Tracey did not answer the phone call and Capt. Orozco

19   left voice messages. According to Capt. Orozco, he then donned his uniform and began the drive

20   to Oakland. At this point, Capt. Orozco was expecting to go to the hospital where Sgt. Dunakin

21   and Ofr. Hege had been taken.

22          Capt. Orozco and Lt. Mufarreh communicated by phone around 2:22 PM, for about three
                                                      -39-

 1   minutes. According to Orozco, Mufarreh shared the information that had been developed thus

 2   far about the suspect, and that information had been received associating the suspect with the

 3   74th Avenue location. Capt. Orozco also called Lt. Joyner and spoke with him about the

 4   information Joyner had gathered. There is some disagreement over the content of this phone

 5   conversation, with Lt. Joyner testifying the information being gathered suggested the suspect

 6   “might be at 2755 74th Avenue,” while Capt. Orozco testified Lt. Joyner did not report the

 7   suspect “was” at the 74th Avenue location. Tr. III:275; Tr. VII:259-60.

 8           Capt. Orozco received a return call from Capt. Tracey; Orozco believed this occurred

 9   around 2:25 PM, although cell phone records suggest this occurred at 2:28 PM. According to

10   Capt. Orozco, Capt. Tracey was “very emotional” at this point, and told Capt. Orozco “I need

11   you to go out to the scene to take over tactical command. I can’t.” Tr. VII:251. Capt. Orozco

12   also talked briefly to Deputy Chief Kozicki, who also was en route to the crime scene. Capt.

13   Orozco and Lt. Mufarreh spoke by phone, with Lt. Mufarreh advising Capt. Orozco that the

14   command post location was 73rd Avenue and MacArthur Boulevard. Based on his cell phone

15   records, Capt. Orozco believes he arrived at the scene at about 2:36 PM.16

16           Capt. Orozco joined with Lt. Mufarreh and had a brief walk-through of the crime scene

17   and vicinity. Lt. Mufarreh briefed Capt. Orozco in person on the information that had been

18   developed. They surveyed the location of the traffic stop shootings, where the Homicide division

19   staff were performing their crime scene work. According to Capt. Orozco, they met up with Lt.



     16
         The BoI would conclude Capt. Orozco had been at the crime scene for only about 10 minutes before
     the entry into the 74th Avenue apartment, around 3:02 PM. Based on Capt. Orozco’s testimony, it
     appears he was present at the scene for closer to 25 minutes before the entry was made. I credit Capt.
     Orozco’s estimate of his arrival time.
                                                       -40-

 1   Lindsey and the three continued the walk-through together. The inspection concluded with Lt.

 2   Lindsey and Lt. Mufarreh bringing Capt. Orozco to the vicinity of the 74th Avenue apartment.

 3   Per Capt. Orozco, the three then returned to the de facto command location at 74th and

 4   MacArthur, where they remained together.

 5

 6          I. The arrival of Deputy Chief Kozicki; abandonment of the “canine track” plan;
 7             discussion and approval of the decision to enter the 74th Avenue apartment;
 8             briefing of the entry team.

 9          According to both Lt. Mufarreh and Capt. Orozco, Deputy Chief Kozicki arrived at their

10   MacArthur Boulevard location soon after they had completed their walk-through with Lt.

11   Lindsey. Based on prior interactions with Deputy Chief Kozicki, Lt. Mufarreh testified it was

12   self-evident to him that Kozicki would assume the Incident Commander role, because it was not

13   Deputy Chief Kozicki’s practice simply to be an observer. Lt. Mufarreh noted Deputy Chief

14   Kozicki also had tactical expertise; Kozicki had been his Tactical Commander during the years

15   he (Lt. Mufarreh) had been a tactical operator.

16          Although Deputy Chief Kozicki did not broadcast his arrival at the crime scene over the

17   radio and announce he was assuming Incident Command functions, it is apparent his arrival

18   altered somewhat the command dynamic.

19          Capt. Orozco testified an initial briefing took place beginning around 2:44 PM, attended

20   by Deputy Chief Kozicki, Capt. Orozco, Lt. Mufarreh and Lt. Lindsey. This essentially was a

21   “huddle” on the street. Capt. Orozco recalled that Sgt. Erv Romans (one of the Tactical Team

22   Leaders) joined the meeting and participated at some point, and it was possible Sgt. Sakai (also a

23   Team Leader) also joined the discussion. Capt. Orozco recollected that Deputy Chief Breshears
                                                     -41-

 1   and Capt. Rachal were in the area, but they were not active participants in the discussion.

 2          Lt. Mufarreh briefed the group. Capt. Orozco testified Mufarreh reported the outer

 3   perimeter had not been set up for 20-30 minutes after the initial incident. He also stated that

 4   there was some information that the suspect may have “ties” to the apartment unit at 2755 74th

 5   Avenue. According to Capt. Orozco, the group then discussed ways the apartment might be

 6   entered. The use of gas to clear the unit was considered, but Capt. Orozco testified “the concerns

 7   about using gas were that we would have to evacuate this unit. There were concerns that we

 8   would have to take people from this location, not knowing where the suspect was, and where we

 9   would place these people. We were concerned that if the suspect were to come out of a yard,

10   come out of another location and start shooting or there was something, we would still have all

11   these people coming out of the building.” Tr. VII:262-63.

12          Capt. Orozco testified there was also a discussion concerning the use of a throw phone

13   but that was ruled out. There was also discussion concerning the use of a bull horn but “. . . one

14   of the concerns were that if we start to bull horn, we don’t know where the suspect is at, no

15   pictures had been sent around the location, we wouldn’t be able to identify the person if we were

16   to leave from a location. He could simply just walk out from a location so that was a concern as

17   well.” Tr. VII:263.

18          Lt. Mufarreh was called away for a conversation with Deputy Chief Breshears, who had

19   concerns about who was in police command for the rest of the City, given that the senior Patrol

20   Division staff all had gathered at MacArthur Boulevard to address the critical incident involving

21   the shootings of Sgt. Dunakin and Ofr. Hege. Mufarreh and Breshears met across the street from

22   the main huddle, while Deputy Chief Kozicki, Capt. Orozco, Lt. Lindsey, Capt. Rachal and Sgt.
                                                         -42-

 1   Romans remained at their original location. It was decided Sgt. Cronin would be asked to

 2   assume city-wide watch duties, and Lt. Mufarreh telephone Capt. Orozco (from across the street)

 3   at 2:52 PM to discuss this.

 4           As Capt. Orozco describes it, a second briefing began around 2:52 PM, attended by

 5   himself, Deputy Chief Kozicki, Lt. Lindsey, Sgt. Romans, Sgt. Sakai and probably Sgt.

 6   Gonzales. Orozco did not recall Mufarreh being at this second briefing: “It was mostly with

 7   tactical team leaders at the time. I remember Lt. Lindsey, Deputy Chief Kozicki, Sgt. Romans,

 8   Sgt. Sakai. My memory tells me that Sgt. Gonzales and Sgt. Beaver were also there as well.” 17

 9   Tr. VII:265-66. According to Capt. Orozco, the subject of the second briefing/discussion

10   centered around using the tracking dogs:

11               and the deputy chief [Kozicki] was very concerned about the canine track
12               because we’ve never done a canine track with the tactical team. So he was
13               concerned that we would be using a tactic that we have never used before
14               on the tactical team. This was probably not the right setting to do
15               something without doing the proper training. So he ruled that out. Then
16               we talked about the regular canines, to do searches, but that would be after
17               searching 2755 74th Avenue.




     17
        There is reason to question whether Capt. Orozco’s recollection about the number of briefings, and
     who attended, is fully accurate. The City notes in its brief that Capt. Orozco had not previously
     identified a second briefing. Further, from their testimony, it appears Sgt. Gonzalez and Beaver were not
     present when the decision was made not to use the canine track approach. Their interaction with Lt.
     Mufarreh and Capt. Orozco was very limited, consisting of the final briefing conducted immediately
     before the entry was made. In light of the fact that these “briefings” took placed in a very compressed
     period of time, it is quite possible that what Orozco remembered at the arbitration hearing as “Briefing
     #2” may have been viewed by Orozco earlier as a continuation of “Briefing #1.”

        I credit fully the testimony of Sgts. Gonzalez and Beaver that they did not participate in the discussion
     that led to the decision not to use the canine track. I therefore infer that Capt. Orozco’s memory of “who
     was where, and when” was mistaken on this point, but I do not view this error as material or a deliberate
     falsification.
                                                        -43-

 1   Tr. VII:266-67.18 Capt. Orozco also testified the group also revisited the use of gas, the use of a

 2   throw phone, and issues concerning the bull horn. According to Capt. Orozco, Sgt. Sakai had a

 3   drawing of the apartment building and expressed the view it would be too difficult to evacuate

 4   the apartment building, and unsafe to do so. Sgt. Sakai also held the opinion that evacuations

 5   from the rear of the apartment would be problematic because the fire escape did not go all the

 6   way to the ground and the fire escape stairway was unworkable; thus if the building needed to be

 7   evacuated, residents of other apartments would have to be walked out through the front of the

 8   building, which was very close to the suspect apartment.

 9           Capt. Orozco testified that the briefing broke up, and the Tactical Team Leaders walked

10   away, heading Eastbound toward the location where the tactical operators were waiting.

11   According to Capt. Orozco, he then asked Deputy Chief Kozicki if he was “okay” with the plan

12   to have the Tactical Team enter the apartment on 74th Avenue, because in Capt. Orozco’s view

13   Deputy Chief Kozicki was functioning as the Incident Commander “and we don’t move forward

14   without his approval.” According to Capt. Orozco, Kozicki expressed agreement with the plan.

15           After Lt. Mufarreh’s discussion with Deputy Chief Breshears about the city-wide watch

16   commander issue, Lt. Mufarreh rejoined Capt. Orozco and was advised Deputy Chief Kozicki

17   had decided not use the canine track. They moved forward with the plan to send the Tactical

18   Operations Team to enter and clear the apartment. Lt. Mufarreh summoned the Team, who

19   assembled around 2:58 PM.19


     18
        Sgts. Beaver and Gonzales confirmed they had been performing tactical work for many years, but
     they had no experience using a canine track as part of a tactical operation.
     19
         Although Lt. Lindsey had been present during earlier discussions, she was not present for the final
     briefing of the entry team because she had stepped away briefly to use the restroom.
                                                          -44-

 1           At Capt. Orozco’s direction, Lt. Mufarreh briefed the entry team, which ultimately

 2   consisted of Sgt. Sakai, Sgt. Romans, Sgt. Gonzales, Sgt. Beaver, Officer Leite, Officer Jones,

 3   and Sgt. Reilly.20 Lt. Mufarreh explained the canine track was not going to occur, because it was

 4   viewed as too dangerous. Although none of the entry team members registered complaints, it

 5   appears a number of routine tactical concerns were not addressed during the briefing, including

 6   information about the apartment layout that might normally have been gathered by a “scout,” or a

 7   discussion of evacuation logistics in the event of problems. The surviving entry team members

 8   testified they understood from Lt. Mufarreh and Capt. Orozco that there was no real intelligence

 9   suggesting the suspect would be present in the apartment. None recalled being told that Lt.

10   Joyner had an informant who believed the suspect was at the apartment unit; because of Lt.

11   Joyner’s reputation, they expressed the view such information would have made a difference in

12   how they approached the assignment. Nor was information shared relating to the information

13   gathered by Lt. Lindsey or Sgt. Van Sloten about the suspect’s location (i.e., the Walker

14   information). They were not advised that a photograph of the suspect had just been generated,

15   infra. As recounted by the tactical operator witnesses, they essentially just were advised to

16   gather their equipment and go clear the unit. However, there also is no indication Sgt. Sakai

17   passed along information relating to the 2:04 PM radio transmission that “people” had been

18   observed looking out the window of the apartment – information plainly suggesting the

19   apartment was occupied.

20           Multiple witnesses involved with tactical operations testified that Tactical Team members



     20
        Sgt. Reilly was the last to arrive at the location, arriving only after the final briefing already was in
     progress.
                                                       -45-

 1   are fully entitled to raise questions or objections when they are concerned a proposed tactical

 2   action is unwise or unsafe, or a violation of policies or protocols. None of the Tactical Team

 3   members tasked with entering the 74th Avenue apartment raised any such objections or concerns.

 4          Shortly before the entry began at 3:02 PM, Deputy Chief Kozicki asked whether an

 5   ambulance had been summoned to the vicinity for medical backup. When he learned that

 6   medical backup had not been arranged, he directed that this be taken care of. A request for

 7   backup was made, but the ambulance had not yet arrived when the entry into the 74th Avenue

 8   apartment was initiated and shooting began.

 9

10          J. The successful effort to identify the shooter, Lovelle Mixon.

11          As noted previously, at the time of the initial traffic stop the shooter provided Sgt.

12   Dunakin with a driver license (apparently fake) identifying him as Jabar Rashid. Neither the

13   driver license number nor the name Jabar Rashid were in the state database. So while the police

14   officers who arrived after the initial shootings had the driver license information, this was not

15   immediately helpful in identifying the suspect.

16          During their inspection of the suspect’s car, OPD investigators found a photo album,

17   which was examined. Within the album, they noticed a California Department of Corrections

18   (CDC) parole number, which suggested the suspect previously might have been incarcerated.

19   The name “Mixon” also was written in the photo album.

20          The CDC number proved to be instrumental in identifying the suspect. The CDC number

21   had been assigned to Lovelle Mixon, and Mixon’s image in the database matched the photograph

22   on the fake driver license. Officer Covington coordinated with several others (Ofr. Kevin Kaney,
                                                    -46-

 1   Ofr. Omega Crum, Sgt. Knight) to retrieve Mixon’s image from the database and print copies for

 2   distribution.

 3           Ofr. Kaney testified he was working in the area of the main crime scene and command

 4   huddle on MacArthur Boulevard. Kaney was handed a very limited number of copies (fewer

 5   than 5) by Sgt. Knight to distribute. This was occurring within 15 minutes prior to the entry into

 6   the apartment, so most likely around 2:50 PM. Ofr. Kaney recalled specifically giving a copy to

 7   Lt. Lindsey. He believes he provided a copy – or at least showed a copy – to other senior officers

 8   in the command huddle, but he was uncertain precisely who among them might have seen the

 9   photo. Sgt. Cruz of Homicide, who was at the crime scene, recalled seeing a photograph of

10   Mixon about 10 or 15 minutes before the entry into the apartment.

11           In his testimony, Sgt. Knight noted that during the time the photograph of Mixon first was

12   being circulated, the Tactical Operations Support Team (TOST) had not arrived, the SWAT van

13   was not there, and the sniper van was not there.

14           Both Capt. Orozco and Lt. Mufarreh later denied seeing the photo of Mixon before the

15   entry in the 74th Avenue apartment was made.

16

17           K. Entry into the apartment, and the fatal shootings of Sgt. Romans and Sgt. Sakai.

18           At 3:02 PM, Capt. Orozco announced on the radio that the entry team would be entering

19   the 74th Avenue apartment, and therefore he was directing a “Code 33” – i.e., an order that all

20   units stop communicating on the radios, freeing-up the communications link in the event of

21   problems. Capt. Orozco also advised that the entry team most likely would be using “less than

22   lethal” equipment, i.e., flash-bangs.
                                                    -47-

 1            Although medical backup had been summoned, it still was not on the scene.

 2            Multiple witnesses who had been engaged with the informants (notably Lt. Joyner and

 3   Sgt. Van Sloten) testified they were somewhat shocked, surprised and dismayed to hear the

 4   announcement that a Tactical Team was being sent into the apartment unit. Based on their

 5   interactions with Walker or Ellis, and their conversations with each other, they believed the

 6   suspect was likely to be in the apartment. Of course, the suspect already had gunned-down two

 7   OPD police officers just a short time earlier, suggesting this likely was a dangerous individual

 8   willing to engage in extreme violence.

 9            The entry team forced its way into the 74th Avenue apartment, tossing in “flash-bangs”

10   intended to distract and disorient anyone who might be in the unit. A firefight ensued, and Sgt.

11   Erv Romans was fatally shot by Mixon. Rather than trying to extract Sgt. Romans from the

12   apartment and retreat, the entry team moved forward further into the unit. During this forward

13   movement, Sgt. Sakai also was shot, fatally. During the fighting, a female who was present in

14   the apartment ran past the entry team members and fled the building. Eventually, members of the

15   entry team reached the shooting suspect (Mixon) and shot him multiple times, resulting in his

16   death.

17

18
                                                     -48-

 1   IV.    INVESTIGATIONS AND REPORTS INTO THE MARCH 21 EVENTS: INITIAL
 2          CRIME REPORT; CRIMINAL INVESTIGATION DIVISION (CID/HOMICIDE);
 3          INTERNAL AFFAIRS; INDEPENDENT BOARD OF INQUIRY.

 4          Multiple investigations were launched following March 21, largely following standard

 5   OPD practice.

 6

 7          A. Initial Crime Report

 8          An initial Crime Report was compiled by Ofr. Steve Toribio. The narrative portion of the

 9   CID Crime Report (Union Exhibit (UX) 1 pp. 29-32) describes in general terms the events of

10   March 21. The Report also identifies a large number of witnesses who were interviewed at the

11   crime scene. In addition, the Crime Report indicates Supplemental reports were received from

12   over 125 OPD officers. Id. pp. 34-37. However, the Crime Report indicates Supplemental

13   reports had not yet been submitted Lt. Lindsey, as well as two other officers (A. Tedesco and M.

14   Baddie). Id. at 32.21

15

16          B. CID/Homicide Division report

17          Responsibility for compiling the Homicide Division report into the deaths of Ofr. Hege

18   and Sgts. Dunakin, Romans and Sakai was assigned to Sgt. Cruz. The Homicide Division report

19   is found at JX 2. In conducting his investigation, Sgt. Cruz interviewed a large number of

20   individuals – primarily from law enforcement – including Lt. Mufarreh and Capt. Orozco. Lt.

21   Lindsey also was interviewed by Sgt. Cruz. Many of the individuals were accompanied by legal


     21
        The Crime Report does not address the decision-making process that led to the entry into the
     apartment at 2755 74th Avenue. There is no indication Supplemental statements were submitted or
     expected from Lt. Mufarreh, Capt. Orozco or Deputy Chief Kozicki.
                                                       -49-

 1   counsel. Most of the Homicide Division interviews occurred between March 21 and mid-April

 2   2009, although additional information-gathering activity continued until the end of August 2009.

 3           As noted supra, Lt. Lindsey had not submitted her Supplemental report to Ofr. Toribio

 4   during the normal CID initial crime report process. Instead, Lt. Lindsey submitted her

 5   Supplemental directly to Sgt. Cruz. Lt. Lindsey’s handling of the Supplemental report was

 6   unusual, and bears noting.

 7           According to Sgt. Cruz, he first received Lt. Lindsey’s Supplemental report soon after

 8   March 21 – perhaps as early as March 22. It came to him in a sealed envelope, and Sgt. Cruz did

 9   not immediately open the envelope. Sgt. Cruz testified that several days later, Lt. Lindsey

10   retrieved the sealed envelope containing her Supplemental, and gave Sgt. Cruz an “updated”

11   Supplemental report. This second Supplemental is included in the hearing record as JX 57.

12   There do not appear to be any copies of the original version of Lt. Lindsey’s Supplemental.22

13           In her Supplemental report, Lt. Lindsey indicates she was in “constant contact” with

14   Elaine Walker during the period on March 21 when she (Lt. Lindsey) was on the scene. Lt.

15   Lindsey disclosed she and Walker once had been neighbors in Richmond, CA, when Lt. Lindsey

16   was growing up. According to Lt. Lindsey’s Supplemental, Walker reported the suspect (Mixon)



     22
         Documents such as Supplement reports are part of OPD’s “Field Based Reporting” process. OPD
     policy (General Order I-14, Section II.A.) states the Police Department’s “mobile data terminals”
     (MDTs) and other authorized OPD computers are to be used as the “primary method” for drafting
     electronic reports using the FBR software. UX 5. Other techniques – including the use of hard-copy
     forms – generally are to be used only if the MDTs and other OPD computers are not functioning.
     According to Ofr. Burke, this has been OPD’s practice since 2004. Although Lt. Lindsey’s Supplemental
     report was prepared on a computer, it was not generated using the FBR system. Although the hearing
     record includes examples of other Supplemental reports from police officers that were not prepared using
     the FBR system (see generally JX 69), these reports typically were hand-written by the reporting officer.
     Presumably, if Lt. Lindsey had drafted her Supplemental on an OPD computer, as preferred under the
     General Order, it might have been possible to retrieve a copy of the original version.
                                                      -50-

 1   had been staying with a female at the apartment at 2755 74th Avenue. Walker was aware of this

 2   because she (Walker) lived next door. Lt. Lindsey reports that

 3              Ms. Walker was sure that the suspect . . . was inside of the apartment
 4              building. Ms. Walker stated that at some point after the shooting, she saw
 5              the suspect . . . in her backyard.

 6   JX 57. Later in her report, Lt. Lindsey states

 7              I gave suspect information to Lt. E. Joyner, who advised me that he had
 8              similar information that he had received from his CI. I advised Lt.
 9              Mufarreh, Captain Orozco, Captain Rachal and Deputy Chief Kozicki of
10              the information I had gathered regarding the suspect and possible
11              location.

12   Id. (emphasis added).

13

14          C. The Internal Affairs Division report

15          Within OPD, the major assessment of the events of March 21, 2009, was compiled by the

16   Internal Affairs Division. The task of investigating the incident and compiling the report was

17   assigned to Sgts. Floyd and Shaver. The report was issued August 30, 2009.

18          The IAD analysis is 331 pages in length, ending with six pages of “Recommended

19   Findings.” As discussed infra, it is apparent to this Arbitrator that there is a direct line leading

20   from the IAD Recommended Findings to the ultimate decision to demote Lt. Mufarreh and Capt.

21   Orozco. The IAD Recommended Findings – i.e., the conclusion of the report – therefore are

22   reproduced here en toto:

23                                        Recommended Findings
24
25          MOR 234.12-1 Commanding Officers – Gross Dereliction of Duty
26
27          234.12      COMMAND – The inspection, direction, and control of personnel
28                      under his/her command to assure the proper performance of duties
                                            -51-

 1              and compliance with established rules, regulations, policies and
 2              procedures. Providing for continuation of command and/or
 3              supervision in his/her absence.
 4
 5
 6
 7   This investigation has revealed a preponderance of evidence which indicates
 8   Lieutenant Mufarreh, Captain Orozco, and Deputy Chief Kozicki engaged in acts
 9   and omissions during the course of this incident which, taken together, are
10   clearly constitutive of Gross Dereliction of Duty. This investigation disclosed a
11   preponderance of evidence which indicates SUSTAINED findings for MOR
12   234.00-1 for Lieutenant Mufarreh, Captain Orozco, and Deputy Chief Kozicki.
13
14   This investigation has revealed Lieutenant Mufarreh engaged in the following
15   acts or omissions which, taken together, are constitutive of Gross Dereliction of
16   Duty and indicate a finding of SUSTAINED:
17
18      •   Lieutenant Mufarreh was chiefly responsible for the break down of
19          command and control during the course of this incident. He tacitly took
20          over Incident Command from Lieutenant Lindsey which caused a lack of
21          clarity regarding who was in charge of the incident. Lieutenant Mufarreh
22          perpetuated this confusion when he inappropriately assumed the role of a
23          tactical commander although he admitted knowing he was unqualified.
24      •   Lieutenant Mufarreh admitted knowing the Department’s policy governing
25          the Tactical Operations Team. It must be concluded therefore that he
26          knowingly violated the Department’s policy by briefing and giving orders
27          to the members of the Entry Team who were eventually ordered in to
28          clear the suspect’s apartment.
29      •   Lieutenant Mufarreh’s assertion he did not believe the suspect was inside
30          the residence is in contradiction to the actions which were taken. The
31          assertion is not reasonable considering the totality of the circumstances
32          and the information which was inarguably known at the time. Lieutenant
33          Mufarreh’s actions and decisions (to establish an ad hoc command post
34          within the outer perimeter and to approve the use of flash bangs, et
35          cetera) indicate a belief the suspect was contained inside the apartment
36          however, Lieutenant Mufarreh failed to exercise due caution with regard
37          to the tactical plan.
38      •   Lieutenant Mufarreh originated the plan to have members of the Entry
39          Team clear the suspect’s residence.
40      •   Lieutenant Mufarreh was unable to articulate a lawful justification for entry
41          into the suspect’s apartment. Therefore, although entry was lawful under
42          the auspices of fresh pursuit because a reasonable officer would believe
43          the suspect to likely be inside the apartment, Lieutenant Mufarreh gave
44          an unlawful order if he did not truly believe the suspect to be inside the
45          residence.
46      •   Lieutenant Mufarreh did not provide clear leadership by reporting to the
47          established command post and once the Tactical Operations Team
48          members began to arrive at the scene, he failed to order them to respond
49          to the established command post. This investigation has shown this was
                                            -52-

 1          a key element exacerbating the sense of “false urgency” and
 2          consequentially, to accelerating the tempo of this operation.
 3      •   Lieutenant Mufarreh was responsible, in part, for developing the plan to
 4          form an ad hoc team from members of the Entry Team who had arrived
 5          on the scene.
 6      •   Lieutenant Mufarreh made an unreasonable analysis of the information
 7          provided by Lieutenant Joyner and his confidential informant. This
 8          unreasonable analysis resulted in the creation of an overriding “feeling”
 9          the suspect was not inside the residence. It was chiefly this
10          unreasonable analysis which catastrophically resulted in the lack of use
11          of any options whatsoever to determine if the suspect was inside the
12          residence and the lack of the use of any tactical methods whatsoever to
13          gain a tactical advantage for the Entry Team members prior to sending
14          them inside the suspect’s apartment.
15      •   Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
16          team inside the suspect’s apartment without attempting to confirm
17          whether or not the suspect was inside the residence.
18      •   Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
19          team inside the suspect’s apartment without attempting to negotiate to
20          afford the suspect the opportunity to give himself up and to safely be
21          taken into custody by the designated arrest team.
22      •   Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
23          team inside the suspect’s apartment without evacuating the suspect’s
24          apartment building. According to Lieutenant Mufarreh, this prevented the
25          use of gas and created a situation in which public safety was significantly
26          threatened by the occurrence of a firefight within the building.
27      •   Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
28          team inside the suspect’s apartment without waiting for the rest of the
29          Tactical Operations Team to be in place.
30      •   Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
31          team inside the suspect’s apartment without the use of any tactical
32          options other than entry. This act had a direct causal effect upon the fact
33          the team made entry without having established any tactical advantage
34          over the suspect.
35
36      These facts, taken together, are clearly constitutive of gross dereliction of
37      duty given their seriousness and blatancy.
38
39   This investigation has revealed Captain Orozco engaged in the following acts or
40   omissions which, taken together, are constitutive of Gross Dereliction of Duty
41   and indicate a finding of SUSTAINED:
42
43      •   Captain Orozco allowed Lieutenant Mufarreh to place himself in the role
44          of a tactical commander knowing he was not qualified per the Tactical
45          Team’s standard operating procedure. In so doing, Captain Orozco
46          created an environment in which there was confusion regarding who
47          really was the Tactical Commander.
48      •   Captain Orozco violated the Department’s policy by allowing Lieutenant
                                         -53-

 1       Mufarreh, who was not the Tactical Commander, to brief and give orders
 2       to the members of the Entry Team who were eventually ordered in to
 3       clear the suspect’s apartment.
 4   •   Captain Orozco’s assertion he did not believe the suspect was inside the
 5       residence is in contradiction to some of the actions which were taken.
 6       The assertion is not reasonable considering the information which as
 7       inarguably known at the time. Captain Orozco’s actions and decisions (to
 8       establish an ad hoc command post within the perimeter (in which he
 9       feared the suspect may be contained) and to approve the use of flash
10       bangs, et cetera) compel the conclusion the suspect was contained
11       inside the apartment however, Captain Orozco failed to exercise due
12       caution with regard to the tactical plan.
13   •   Captain Orozco approved Lt. Mufarreh’s plan to have members of the
14       Entry Team clear the suspect’s residence.
15   •   Captain Orozco was unable to articulate a lawful justification for entry into
16       the suspect’s apartment. Therefore, although the entry was lawful under
17       the auspices of fresh pursuit because a reasonable police officer would
18       believe the suspect to likely be inside the apartment, Lieutenant Mufarreh
19       (sic) gave an unlawful order if he did not truly believe the suspect to be
20       inside the residence.
21   •   Captain Orozco did not provide clear leadership by reporting to the
22       established command post and once the Tactical Operations Team
23       members began to arrive on the scene, he failed to order them to
24       respond to the established command post. This investigation has shown
25       this was a key element exacerbating the sene of “false urgency” and
26       consequentially, to accelerating the tempo of this operation.
27   •   Captain Orozco was responsible, in part, for developing the plan to form
28       an ad hoc team from the members of the Entry Team who had arrived on
29       the scene. As the Tactical Commander, he is largely responsible for the
30       decision to implement the plan to make entry.
31   •   Captain Orozco made an unreasonable analysis of the information
32       provided by Lieutenant Joyner and his confidential informant. This
33       unreasonable analysis resulted in the creation of an overriding “feeling”
34       the suspect was not inside the residence. It was chiefly this
35       unreasonable analysis which catastrophically resulted in the lack of use
36       of any options whatsoever to determine if the suspect was inside the
37       residence and the lack of the use of any tactical methods whatsoever to
38       gain a tactical advantage for the Entry Team members prior to sending
39       them inside the suspect’s apartment.
40   •   Captain Orozco was an integral part of the plan to send the ad hoc team
41       inside the suspect’s apartment without attempting to negotiate to afford
42       the suspect the opportunity to give himself up and to safely be taken into
43       custody by the designated arrest team.
44   •   Captain Orozco was an integral part of the plan to send the ad hoc team
45       inside the suspect’s apartment without evacuating the suspect’s
46       apartment building. This prevented the use of gas and created a
47       situation in which public safety was significantly threatened by the
48       occurrence of a firefight within the building.
                                            -54-

 1      •   Captain Orozco was an integral part of the plan to send the ad hoc team
 2          inside the suspect’s apartment without waiting for the rest of the Tactical
 3          Operations Team to be in place.
 4      •   Captain Orozco was an integral part of the plan to send the ad hoc team
 5          inside the suspect’s apartment without the use of any tactical options
 6          other than entry. This act had a direct causal effect upon the fact the
 7          team made entry without having established any tactical advantage over
 8          the suspect.
 9      •   As the Tactical Commander, Captain Orozco was primarily responsible
10          for the tactical decisions which were made.
11
12      These acts, taken together, are clearly constitutive of gross dereliction of
13      duty given their seriousness and blatancy.
14
15   This investigation has revealed Deputy Chief Kozicki engaged in the following
16   acts or omissions which, taken together, are constitutive of Gross Dereliction of
17   Duty and indicated a finding of SUSTAINED:
18
19      •   Deputy Chief Kozicki perpetuated the confusion surrounding command
20          and control during the course of this incident by appearing on the scene,
21          engaging in dialogue regarding the tactical plan with Lieutenant Mufarreh
22          and Captain Orozco, but failing to advise the Communications Division he
23          had assumed Incident Command. Deputy Chief Kozicki could not have
24          reasonably believed he was not viewed as the Incident Commander by
25          Captain Orozco and Lieutenant Mufarreh.
26      •   Deputy Chief Kozicki did not provide clear leadership by reporting to the
27          established command post and once the Tactical Operations Team
28          members began to arrive on the scene, he failed to order them to
29          respond to the established command post. This investigation has shown
30          this was a key element exacerbating the sense of “false urgency” and
31          consequentially, to accelerating the tempo of this operation.
32      •   Deputy Chief Kozicki participated in or listened to the conversation in
33          which the plan to form an ad hoc team from the members of the Entry
34          Team who had arrived on the scene.
35      •   Deputy Chief Kozicki gave approval of the plan to send the ad hoc team
36          inside the suspect’s apartment without attempting to confirm whether or
37          not the suspect was inside the residence.
38      •   Deputy Chief Kozicki gave tacit approval of the plan to send the ad hoc
39          team inside the suspect’s apartment without attempting to negotiate to
40          afford the suspect the opportunity to give himself up and to safely be
41          taken into custody by the designated arrest team.
42      •   Deputy Chief Kozicki gave tacit approval of the plan to send the ad hoc
43          team inside the suspect’s apartment without evaluating the suspect’s
44          apartment building. This prevented the use of gas and created a
45          situation in which public safety was significantly threatened by the
46          occurrence of a firefight within the building.
47      •   Deputy Chief Kozicki gave tacit approval of the plan to send the team
48          inside the suspect’s apartment without waiting for the rest of the Tactical
                                             -55-

 1            Operations Team to be in place, thereby creating an ad hoc team.
 2      •     Unlike Lieutenant Mufarreh and Captain Orozco, Deputy Chief Kozicki
 3            does not assert he did not believe the suspect was in the residence. His
 4            statement regarding the existence of a likelihood the suspect was inside
 5            the apartment and a likelihood he was not indicates he believed there
 6            was a higher probability the suspect was inside the apartment than that
 7            assigned by Lieutenant Mufarreh and Captain Orozco. Considering his
 8            lengthy service with the Tactical Operations Team, Deputy Chief Kozicki
 9            should have recognized the need, in terms of safety, to utilize other
10            tactical options in lieu of making an entry.
11      •     Deputy Chief Kozicki gave tacit approval of the plan to send the ad hoc
12            team inside the suspect’s apartment without the use of tactical options
13            other than entry. This act had a direct causal effect upon the fact the
14            team made entry without having established any tactical advantage over
15            the suspect.
16      •     As the Incident Commander, Deputy Chief Kozicki was ultimately
17            responsible for the decision to allow members of the Entry Team to make
18            entry into the suspect’s apartment. He acknowledges knowing what the
19            plan was and admits to failing to intervene in the initiation of the plan.
20
21      These acts, taken together, are clearly constitutive of gross dereliction of
22      duty given their seriousness and blatancy.
23
24   MOR 398.80-1 Truthfulness
25
26   398.80          TRUTHFULNESS - Members and employees are required to be
27                   truthful at all times whether under oath or not, except when
28                   necessary in the performance of official duties. Such exceptions
29                   shall be documented on the appropriate police report(s).
30
31
32
33   MOR 370.45-1 Reports and Bookings
34
35   370.45          REPORTS AND BOOKINGS - No member or employee shall
36                   knowingly:
37
38            •   Submit false/inaccurate/improper Department records with the intent
39                to assist prosecution or defense.
40            •   Falsify time records or financial records for fraudulent purposes.
41            •   Falsify official reports or records.
42            •   Falsify or alter evidence.
43
44
45
46   In her follow up interview with me [i.e., IAD investigator Sgt. Floyd], Lieutenant
47   Lindsey indicated if Lieutenant Mufarreh, Captain Orozco, or Deputy Chief
48   Kozicki denied she had told them about the information she had obtained from
49   her confidential informant they would be making an untruthful statement.
50
                                             -56-

 1   It is reasonable to assume Lieutenant Lindsey did share this information with
 2   Lieutenant Mufarreh, Captain Orozco and Deputy Chief Kozicki for the following
 3   reasons:
 4
 5      •   Lieutenant Lindsey has no fathomable motive to keep this information to
 6          herself and less of a reason than Lieutenant Mufarreh, Captain Orozco,
 7          and Deputy Chief Kozicki to lie about having shared the information since
 8          she had no role in the decision to send the team inside the suspect’s
 9          residence.
10      •   Lieutenant Lindsey documented she told them this information when she
11          completed a Supplemental Narrative regarding this incident
12              " She had obvious knowledge the information contained in her
13                  Supplement Report was sensitive and packaged it in a sealed
14                  envelope for delivery to the Homicide Section investigator
15      •   That Lieutenant Lindsey shared this information with others is
16          corroborated by Lieutenant Joyner and Sergeant Carman
17      •   Lieutenant Lindsey had occasion to give this information to Lieutenant
18          Mufarreh, Captain Orozco, and Deputy Chief Kozicki and, by their own
19          accounts, was present with them prior to the entry
20      •   Lieutenant Lindsey reported having shared this information and having
21          been “blown off” to her immediate supervisor, Captain Rachal.
22
23   It is not reasonable to believe Lieutenant Lindsey constructed a plan to lie and
24   falsify a police report just hours after four police officers had been killed.
25
26   Lieutenant Lindsey stated she also told Captain Rachal this information. Captain
27   Rachal stated he did not recall being told this.
28
29   Lieutenant Mufarreh, Captain Orozco, and Deputy Chief Kozicki all denied being
30   told this information by Lieutenant Lindsey. Captain Orozco stated if Lieutenant
31   Lindsey wrote this information in a police report that it was a lie.
32
33   It is more likely Lieutenant Lindsey told Lieutenant Mufarreh, Captain Orozco,
34   and Deputy Chief Kozicki the information she obtained from Elaine Walker than
35   that she did not. It is also likely she was indeed “blown off” by these three
36   commanders, possibly due to her lack of experience.
37
38   For the reasons enumerated above, this investigation has disclosed a
39   preponderance of evidence to support a finding of UNFOUNDED with regard to
40   the allegation Lieutenant Lindsey lied when she completed her Supplemental
41   Narrative regarding this incident. This preponderance is based on the fact it is
42   more likely she told them than that she did not.
43
44   The assertion of Lieutenant Mufarreh and Captain Orozco they did not know the
45   suspect was inside the residence gives them motive to assert Lieutenant Lindsey
46   did not tell them Elaine Walker told her she saw the suspect go inside the
47   apartment. However, while it is likely she did tell them this information, there is a
48   privation of evidence they heard and acknowledged what she said. Lieutenant
                                                    -57-

 1          Lindsey’s own assertion she was “blown off” by the three commanders renders
 2          reasonable the belief that although it is more likely than not she told them, it is
 3          likely they “blew off” the information she gave and failed to hear or acknowledge
 4          it. This probable failure to receive Lieutenant Lindsey’s information represents
 5          another failure in command and control. The fact Lieutenant Lindsey had only
 6          been a lieutenant for only approximately six weeks at the time of the incident
 7          may also have been a contributing factor.
 8
 9          There is therefore, a lack of evidence indicating the three commanders heard or
10          acknowledged Lieutenant Lindsey’s statements regarding the suspect’s location.
11          There is also no evidence to indicate they did not hear Lieutenant Lindsey’s
12          statements. Although numerous witness statements were taken, this
13          investigation has failed to reveal a preponderance of evidence to support this
14          allegation. We must also allow for the fact the scene was, by all accounts,
15          chaotic and therefore it is possible they were told and amidst the chaos forgot
16          they were told. The allegation Lieutenant Mufarreh, Captain Orozco, and Deputy
17          Chief Kozicki were untruthful regarding this issue is recommended NOT
18          SUSTAINED.

19   JX 1 pp. 325-31 (emphasis supplied).

20

21          D. Independent Board of Inquiry

22          Under standard OPD policy, incidents involving Level 1 or Level 2 force, in-custody

23   deaths, and vehicle pursuit-related deaths are reviewed by a Force Review Board or an Executive

24   Force Review Board (EFRB). The events of March 21 would have been referred to the EFRB

25   level. The actions of these Boards are governed by OPD General Order K-4, found as JX 18.

26   Under Order K-4, Force Review Boards and EFRBs do not convene to begin their work until

27   after IAD has completed its investigation.

28          Because of the magnitude of the March 21 events, and because several senior OPD

29   officers had been at the scene of the incident (and thus potentially implicated in any assessment

30   of OPD’s performance), Acting Chief Jordan decided it would be preferable for the incident to be

31   reviewed by a team primarily composed of law enforcement experts from outside OPD. In his
                                                    -58-

 1   view, such an inquiry likely would be more transparent, and the resulting report more credible.

 2   Ultimately, a 7-member Independent Board of Inquiry (BoI) was assembled. Only one member

 3   of the BoI came from OPD, Inspector General Capt. Brian Fairow, and Capt. Fairow participated

 4   as a non-voting member of the Board.

 5          The BoI’s report is found as Joint Exhibit 3. According to the report, the BoI reviewed

 6   the OPD Homicide Division report and the IAD report. The Board convened multiple times via

 7   teleconference, and also convened for three days in-person. Although the Board had access to

 8   the “raw materials” underlying the Homicide Division and IAD reports, and received briefings

 9   from the investigating staff and Homicide and IAD commanders, the BoI process did not include

10   direct questioning by the Board of the persons whose performance was at issue in the inquiry

11   (including Lt. Mufarreh and Capt. Orozco), nor did Lt. Mufarreh or Capt. Orozco participate in

12   or observe the BoI deliberations.

13          The resulting BoI report addressed a wide variety of concerns. Much of the report

14   addressed concerns with general OPD practices and procedures. Other aspects of the report

15   focused on the performance of individual members of the police force.

16          Among its findings, the BoI criticized Lt. Lindsey’s city-wide call for “all units” as

17   unnecessary, observing that the response (115 police units from OPD, plus additional units from

18   surrounding jurisdictions) tended to erode unity of command and resulted in disorganization. In

19   the Board’s view, the correct procedure would have been to invoke the established Incident

20   Command System (ICS) procedures. The Board observed that Lt. Lindsey became

21   “overwhelmed” by the complexity of the situation, and retreated to performing crime-scene

22   investigation work rather than establishing a control post. JX 3 pp. 21-22.
                                                       -59-

 1           Although the Board praised Lt. Joyner and Lt. Lindsey for effective work developing

 2   information about the suspect from informants and community members, the Board observed:

 3               Unfortunately, such information was not transmitted, disregarded, or not
 4               received by persons who had placed themselves in decision-making
 5               command and control capacity. The initial command-and-control
 6               personnel failed to grasp that this situation was a large-scale critical
 7               incident and required a chain of command structure, an operations plan,
 8               and the use of basic emergency incident management principles organized
 9               to manage the responding assets to a successful resolution.

10   JX 3 p. 22.23

11           The Board was critical of Lt. Mufarreh’s leadership of the canvass-and-search process – a

12   role which even Lt. Mufarreh acknowledges he assumed. The Board faulted Lt. Mufarreh for not

13   developing a “systematic search plan informed by current data,” and failing to identify an overall

14   tactical plan, operational objectives or a field organization. In the Board’s view, this resulted in

15   officers self-initiating search activities, with some officers (e.g., Sgt. Andreotti and associates)

16   being dangerously exposed to the apartment location on 74th Avenue. The Board observed the

17   centrality of establishing a command post, and recommended additional training in “basic

18   emergency incident management principles and ICS protocols.” In addition, the Board

19   questioned the assumption found in OPD General Order M-4 that the senior ranking officer at the

20   scene must be required to assume the Incident Commander role. JX 3 p. 23. The Board noted

21   “Neither in the initial response nor in the subsequent hours did any command individual

22   announce himself/herself as the incident commander.” The Board observed Lt. Lindsey failed to

23   implement emergency incident management protocols, and the Board also directed similar



     23
        The observation that information about the suspect “was not transmitted, not received, or not heeded
     by persons who had place themselves into a decision-making capacity” is repeated at p. 25 of the Report.
                                                     -60-

 1   criticism toward Lt. Mufarreh because he “arrived at the scene and assumed the role of incident

 2   commander (without formally announcing it).” Id. p. 24.

 3          The Board noted Lt. Mufarreh erred when he called for a “blue alert” over the radio, but

 4   did not follow procedure by contacting the Communications Division supervisor directly,

 5   resulting in a delay in SWAT team components arriving at the site. The Board urged review of

 6   policies and additional training to insure that “best practices” are followed in connection with

 7   SWAT callouts, including an effort to be certain that all needed elements are assembled before

 8   implementing tactical action – except in “active shooter” situations. Id. at 25.

 9          With regard to the suspect’s location and the decision to enter the 74th Avenue

10   apartment, the Board noted the suspect’s probable location had been identified by two sources

11   and that this information was “inadequately assessed” by Lt. Mufarreh. Inter alia, the Board

12   recommended enhanced “search and seizure training” to insure tactical operations staff were

13   better-informed about legal requirements for search warrants and “fresh pursuit” situations.

14   Additionally, the Board was critical of the failure to scout the 74th Avenue apartment location

15   adequately – if for no other reason than to insure that the suspect could not flee. The Board

16   expressly was critical of the decision to enter the apartment unit, noting “in the March 21st

17   incident there was a clear preference for dynamic entry to the exclusion of every other

18   alternative. This preference for an expedited dynamic entry does not appear to be limited to one

19   Tactical Commander in training, but to all the senior command on the scene that approved the

20   dynamic entry.” JX 3 p. 26 (emphasis added).

21          The Independent Board of Inquiry concluded its report with findings related to the

22   performance of several OPD officers who were central to the events of March 21. The findings
                                                     -61-

 1   include observations drafted by the Board itself, but also incorporated verbatim large portions of

 2   the text crafted earlier as part of the IAD’s “Recommended Findings.” The “Personnel” section

 3   of the BoI report is included here (less findings addressing the actions of Criminalist Bennet, Ofr.

 4   Leite, Deputy Pope and Sgt. Gonzalez). I intentionally include the “duplicative” materials

 5   quoted from the earlier IAD report, because Chief Batts testified he read the BoI report “cover to

 6   cover” several times before reaching his decision to recommend demoting Lt. Mufarreh and

 7   Capt. Orozco, but acknowledged he did not read the Homicide Division report or the IAD report

 8   (although he was briefed by Sgt. Whent). Tr. IV:96-98; 142. Thus it appears the BoI report very

 9   much was central in forming Chief Batts’s views about the events of March 21, and especially

10   the culpability of individual staff. The BoI report “Personnel” section states:

11

12          5. Personnel
13
14          The Bol carefully reviewed the actions taken by the personnel involved in the
15          March 21st incident in view of best practices, training procedures, and OPD
16          policies. The following is a summary of its findings for the aforementioned
17          personnel by functional/tactical assignment and individual actions.
18
19          BoI Finding: Lieutenant Drennon Lindsey: APPROPRIATE COMMAND –
20          with qualification
21
22          Lieutenant Lindsey responded to the scene quickly and initially took some
23          appropriate preliminary command and control action. She viewed herself as the
24          Incident Commander, but did not identify herself as such or take any action in
25          furtherance of this role, including implementation of ICS. Lieutenant Lindsey did
26          not establish a command post and appropriately staff it to handle the complexity
27          of issues attendant to a city-wide response of all units and supervisors. There
28          was no staging area designated, no assignment protocols, and no overall plan to
29          integrate and manage the arriving resources. Lieutenant Lindsey did contact her
30          immediate superior officer via cell phone, Captain Rachal, during the earliest
31          phases of this escalating critical incident. But he did little to assist this new
32          lieutenant in trying to cope with a tragedy of enormous magnitude. The BoI
33          notes that Lieutenant Lindsey did develop critical information regarding the
34          suspect description and Mixon's probable location; that information was not
35          passed along, was not accepted, or was disregarded by the decision makers.
                                            -62-

 1   She deferred to others and permitted herself to be overridden by senior
 2   commanders with significantly less situational awareness and information than
 3   she possessed. Ultimately, Lieutenant Lindsey assumed a more limited role
 4   similar to a sergeant, directing preliminary crime scene management and an
 5   investigative role with regard to identification of witnesses and evidence.
 6
 7   In fact, Lieutenant Lindsey did locate and identify an eye-witness placing Mixon
 8   inside 2755 74th Avenue, and stated that she informed Lieutenant Mufarreh,
 9   Captain Orozco, and Deputy Chief Kozicki of this information before the decision
10   to order the ad hoc Entry Team to enter and clear the apartment. All three
11   commanders unequivocally denied that Lieutenant Lindsey provided this
12   important information. The discrepancy as to whether this key fact was provided
13   by Lieutenant Lindsey to Lieutenant Mufarreh, Captain Orozco, and Deputy Chief
14   Kozicki did result in an Internal Affairs Division (IAD) allegation of Truthfulness
15   against the other commanders and an allegation of Reports and Bookings
16   against Lieutenant Lindsey. The subsequent investigation recommended a
17   finding of Not Sustained for Lieutenant Mufarreh, Captain Orozco and Deputy
18   Chief Kozicki, and a finding of Unfounded for Lieutenant Lindsey.
19
20      BoI Recommendation:
21
22      The OPD Chief should ensure that newly promoted supervisors and
23      command officers are adequately trained in leadership responsibilities,
24      critical incident management, and basic emergency management protocols
25      prior to assignment to patrol operations. Consideration should also be given
26      to assigning a command training officer to ensure that patrol supervisors and
27      commanders are appropriately trained and well versed in OPD policies and
28      procedures. Senior officers such as captains should be accessible to newly
29      promoted lieutenants or lieutenants should be paired with another seasoned
30      lieutenant in the event exceptional circumstances occur requiring high-quality
31      command judgment and leadership. Lieutenant Lindsey and any newly
32      promoted lieutenant likely to be assigned to patrol before attending a
33      command school should be paired with a supervisor capable of providing
34      training and advice in the management of critical events from remote
35      locations. This did not occur on March 21st.
36
37   BoI Finding: Lieutenant Chris Mufarreh GROSS DERELICTION of DUTY
38
39   Lieutenant Mufarreh responded and, initially, made allocation of command
40   responsibilities among the on-scene lieutenants. He assumed the de facto role
41   of incident commander but failed to identify himself as the Incident Commander
42   and failed to perform all the necessary and required tasks. For example,
43   Lieutenant Mufarreh called for a “Blue Alert” over the police radio, but failed to
44   contact the Communication Division Supervisor to activate the One-Call System,
45   as required by departmental policy. This is a serious error and delayed the
46   SWAT Team callout for more than 45 minutes. Lieutenant Mufarreh
47   subsequently assumed the role of Tactical Commander in violation of both policy
48   and a direct order from Captain Ed Tracey. In that role, Lieutenant Mufarreh
                                             -63-

 1   performed inadequately: he failed to use the available credible information with
 2   respect to the suspect location, and he over-rode Sergeant Sakai’s practical plan
 3   for using tracking canines, approved by Lieutenant Lindsey and when the team
 4   was minutes from the crime scene.
 5
 6   The BoI found that Lieutenant Mufarreh did not adequately consider sound
 7   tactical options (e.g., evacuations, bullhorns/PA announcements, information
 8   developed relative to the target location, chemical agents, and establishing an
 9   appropriate tactical command post). He dismissed, with little or no discussion,
10   every alternative to dynamic entry. He formed an ad hoc Entry Team in direct
11   violation of policy. He failed to ensure that the team members had all available
12   information prior to making entry (e.g., the suspect’s photograph, apartment
13   layout). The Board noted that many of the team members were uncertain of
14   their mission, other than to force entry into Mixon’s apartment. Lieutenant
15   Mufarreh’s actions created a false sense of urgency and confused the situation
16   as to Mixon's likely presence. His actions were found by the Board of Inquiry to
17   be in violation of policy contained in DGO K-5 (Tactical Operations Team). His
18   statements with respect to the legal rationale for making forced entry into the
19   apartment were contradictory, confused at best and dishonest at worst. Either
20   there was a fresh pursuit situation that justified the entry or it was unlikely that
21   Mixon was inside, which negated the police legal authority to enter without a
22   search warrant. At no time during this investigation did Lieutenant Mufarreh ever
23   accept or acknowledge responsibility for his actions or the roles he assumed.
24
25   The Board reviewed and considered the following findings by the Internal Affairs
26   Division Use of Force Report in reaching its finding regarding Lieutenant
27   Mufarreh’s Gross Dereliction of Duty during this critical incident.
28
29   Lieutenant Chris Mufarreh – GROSS DERELICTION of DUTY
30
31      •   Lieutenant Mufarreh was chiefly responsible for the breakdown of
32          command and control during the course of this incident. He tacitly took
33          over incident command from Lieutenant Lindsey, which caused a lack of
34          clarity regarding who was in charge of the incident. Lieutenant Mufarreh
35          perpetuated this confusion when he inappropriately assumed the role of a
36          Tactical Commander although he admitted knowing he was unqualified.
37
38      •   Lieutenant Mufarreh admitted knowing the Department’s policy governing
39          the SWAT Team. It must be concluded therefore that he knowingly
40          violated the Department’s policy by briefing and giving orders to the
41          members of the ad hoc Entry Team who were eventually ordered to enter
42          and clear Mixon’s apartment.
43
44      •   Lieutenant Mufarreh’s assertion that he did not believe Mixon was inside
45          the residence is in contradiction to the actions that were taken. The
46          assertion is not reasonable considering the totality of the circumstances
47          and the information which was inarguably known at the time. Lieutenant
48          Mufarreh’s actions and decisions indicate a belief that the suspect was
                                         -64-

 1       contained inside the apartment, however, Lieutenant Mufarreh failed to
 2       exercise due caution with regard to the tactical plan.
 3
 4   •   Lieutenant Mufarreh originated the plan to have members of the ad hoc
 5       Entry Team enter and clear the suspect's residence.
 6
 7   •   Lieutenant Mufarreh was unable to articulate a lawful justification for entry
 8       into Mixon’s apartment. Therefore, although the entry was lawful under
 9       the auspices of fresh pursuit because a reasonable officer would believe
10       the suspect to likely be inside the apartment, Lieutenant Mufarreh gave
11       an unlawful order if he did not truly believe the suspect to be inside the
12       residence.
13
14   •   Lieutenant Mufarreh did not provide clear leadership by reporting to the
15       established, albeit inadequate and poorly placed, command post, and
16       once the SWAT Team members began to arrive on the scene, he failed
17       to order them to respond to the tactical command post. This investigation
18       has shown this to be a key element exacerbating the sense of “false
19       urgency” and consequentially, to accelerating the tempo of this operation.
20
21   •   Lieutenant Mufarreh was responsible, in part, for developing the plan to
22       form an ad hoc team from the members of the SWAT Team who had
23       arrived on the scene.
24
25   •   Lieutenant Mufarreh made an unreasonable analysis of the information
26       provided by Lieutenant Joyner and his confidential informant This
27       unreasonable analysis resulted in the creation of an overriding feeling
28       Mixon was not inside the residence. It was chiefly this unreasonable
29       analysis that catastrophically resulted in the lack of use of any options
30       whatsoever to determine whether the suspect was inside the residence
31       and the lack of the use of any tactical methods whatsoever to gain a
32       tactical advantage for the Entry Team members prior to sending them
33       inside the apartment.
34
35   •   Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
36       Entry Team inside the suspect’s apartment without attempting to confirm
37       whether or not Mixon was inside the residence.
38
39   •   Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
40       Entry Team inside the suspect’s apartment without attempting to
41       negotiate to afford Mixon the opportunity to give himself up and to safely
42       be taken into custody.
43
44   •   Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
45       Entry Team inside the suspect’s apartment without evacuating the other
46       occupants of the apartment building. According to Lieutenant Mufarreh,
47       this prevented the use of chemical agents and created a situation in
48       which public safety was significantly threatened by the occurrence of a
                                                        -65-

 1                   firefight within the building.
 2
 3               •   Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
 4                   Entry Team inside the suspect’s apartment without waiting for the rest of
 5                   the SWAT Team to be in place.
 6
 7               •   Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
 8                   Entry Team inside the suspect’s apartment without the use of any tactical
 9                   options other than entry. This act had a direct causal effect upon the fact
10                   that the team made entry without having established any tactical
11                   advantage over the suspect.
12
13           BoI Finding: Acting Lieutenant Blair Alexander: APPROPRIATE COMMAND
14           CONDUCT
15
16           Acting Lieutenant Alexander responded quickly, made appropriate assessments,
17           and did a good job of establishing the outer containment perimeter and
18           managing the traffic congestion. He seemed very clear as to his role and
19           responsibilities and adhered to them.
20
21           BoI Finding: Lieutenant Ersie Joyner: APPROPRIATE CONDUCT
22
23           Lieutenant Joyner was put in contact with a confidential informant, while just
24           stepping off a flight from off-duty travel. He utilized and validated the informant
25           and developed critical information with respect to Mixon’s location. He contacted
26           the Communications Division for the Watch Commander in charge and passed
27           the suspect’s location information along to Lieutenant Mufarreh. He further
28           arrived at the scene and worked with the informant to refine the information.
29           Lieutenant Joyner had no incident command role or responsibility.
30
31           BoI Finding: Captain Ricardo Orozco: GROSS DERELICTION of DUTY
32
33           Captain Orozco was en route to the hospital when he received a call from
34           Captain Tracey, requesting that he go directly to the scene and fulfill the role of
35           Tactical Commander if needed. This was appropriate since Captain Tracey was
36           staying at the hospital with the families of his two slain officers. Although he
37           accepted the role of Tactical Commander, Captain Orozco seems not to have
38           exercised the most minimal level of responsibility. He appears to have
39           completely deferred to Lieutenant Mufarreh’s plan to force entry without
40           necessary and sufficient consideration. The fact that the entry was made within
41           10 minutes of his apparent arrival on scene suggests that it is unlikely that any
42           meaningful review of the options was undertaken.[24] Apparently, Captain
43           Orozco, a recently transferred Tactical Commander, seems to have accepted the
44           unreasonable sense of urgency presented by Lieutenant Mufarreh. He did this


     24
         It appears the BoI is incorrect when it suggests Capt. Orozco was “on site” for only 10 minutes prior
     to the entry. It appears he was present for closer to 25 minutes
                                            -66-

 1   without question, rather than exercising the independent judgment expected
 2   from a competent command officer to slow the pace of the operation until all the
 3   information and support elements were in place.
 4
 5   The Board reviewed and considered the following findings by the Internal Affairs
 6   Division Use of Force Report in reaching its finding regarding Captain Orozco's
 7   Gross Dereliction of Duty during this critical incident.
 8
 9   Captain Ricardo Orozco — GROSS DERELICTION of DUTY
10
11      •   Captain Orozco allowed Lieutenant Mufarreh to place himself in the role
12          of a Tactical Commander knowing he was not qualified per the SWAT
13          Team's standard operating procedure. In so doing, Captain Orozco
14          created an environment in which there was confusion regarding who
15          really was the Tactical Commander.
16
17      •   Captain Orozco violated the Department's policy by allowing Lieutenant
18          Mufarreh, who was not the Tactical Commander, to brief and give orders
19          to the members of the Entry Team who were eventually ordered in to
20          enter and clear Mixon's apartment.
21
22      •   Captain Orozco’s assertion he did not believe the suspect was inside the
23          residence is in contradiction to some of the actions that were taken. The
24          assertion is not reasonable considering the information that was
25          inarguably known at the time. Captain Orozco’s actions and decisions
26          compel the conclusion that the suspect was contained inside the
27          apartment; however, Captain Orozco failed to exercise due caution with
28          regard to the tactical plan.
29
30      •   Captain Orozco approved Lieutenant Mufarreh’s plan to have members
31          of the ad hoc Entry Team enter and clear the Mixon's residence.
32
33      •   Captain Orozco was unable to articulate a lawful justification for entry into
34          Mixon’s apartment. Therefore, although the entry was lawful under the
35          auspices of fresh pursuit because a reasonable officer would believe the
36          suspect to likely be inside the apartment, Lieutenant Mufarreh gave an
37          unlawful order if he did not truly believe the suspect to be inside the
38          residence.
39
40      •   Captain Orozco did not provide clear leadership by reporting to the
41          established, albeit inadequate and poorly placed, command post, and
42          once the SWAT Team members began to arrive on the scene, he failed
43          to order them to respond to the Tactical Command Post. This
44          investigation has shown this to be a key element exacerbating the sense
45          of “false urgency” and, consequentially, to accelerating the tempo of this
46          operation.
47
48      •   Captain Orozco was responsible, in part, for developing the plan to form
                                           -67-

 1          an ad hoc Entry Team from the members of the SWAT Team who had
 2          arrived on the scene. As the Tactical Commander, he was largely
 3          responsible for the decision to implement the plan to make entry.
 4
 5      •   Captain Orozco was an integral part of the plan to send the ad hoc Entry
 6          Team inside the suspect’s apartment without attempting to confirm
 7          whether or not the suspect was inside.
 8
 9      •   Captain Orozco was an integral part of the plan to send the ad hoc Entry
10          Team inside the suspect’s apartment without attempting to negotiate to
11          afford Mixon the opportunity to give himself up and to safely be taken into
12          custody.
13
14      •   Captain Orozco was an integral part of the plan to send the ad hoc Entry
15          Team inside the Mixon’s apartment without evacuating the apartment
16          building. This prevented the use of chemical agents and created a
17          situation in which public safely was significantly threatened by the
18          occurrence of a firefight within the building.
19
20      •   Captain Orozco was an integral part of the plan to send the ad hoc Entry
21          Team inside Mixon’s apartment without waiting for the rest of the SWAT
22          Team to be in place.
23
24      •   Captain Orozco was an integral part of the plan to send the ad hoc Entry
25          Team inside Mixon’s apartment without the use of any tactical options
26          other than entry. This act had a direct causal effect upon the fact the
27          team made entry without having established any tactical advantage over
28          the suspect.
29
30      •   As the Tactical Commander, Captain Orozco was primarily responsible
31          for the tactical decisions that were made.
32
33   BoI Finding: Captain Anthony Rachal: MINIMALLY APPROPRIATE
34   Command Conduct – with Qualifications
35
36   Captain Rachal was the Area III Commander with overall responsibility for the
37   area where this incident occurred. The Board found that his performance that
38   day was deficient. He appears to have done nothing to further the mission or
39   control the critical incident or exercise his rank in an appropriate manner.
40   Specifically, he was Lieutenant Lindsey’s immediate supervisor, and she called
41   him from the initial officer down crime scene minutes after the shooting.
42   Lieutenant Lindsey was just promoted and newly assigned as an Area III Watch
43   Commander – although she had no recent patrol operational experience nor had
44   she been to command officer training. She was thrust into the middle of a tragic
45   murder of police officers and an active search for an armed and dangerous
46   suspect. She was unprepared for the responsibilities to command and control a
47   large-scale critical incident. Captain Rachal, upon notification, unreasonably
48   extended his response time to the scene in order to obtain his police vehicle,
                                            -68-

 1   which was in the opposite direction of the crime scene but even then he failed to
 2   acquire a hand-held radio or uniform. He did little to monitor the situation or
 3   advise Lieutenant Lindsey of the command and control steps necessary during a
 4   critical incident of this nature. After approximately 90 minutes, Captain Rachal
 5   arrived on scene. Captain Rachal took few steps to determine what precisely
 6   was occurring or to determine whether Lieutenant Lindsey required additional
 7   assistance or direction and did not perform as an Area Commander. He did not
 8   fulfill the role of providing support to an inexperienced commander who was
 9   being overwhelmed by the complexity of circumstances.
10
11      BoI Recommendation:
12      The OPD Chief of Police should identify remedial measures to ensure that
13      this commander’s minimal performance is corrected.
14
15   BoI Finding: Deputy Chief David Kozicki: GROSS DERELICTION of DUTY
16
17   By OPD policy, upon his arrival, Deputy Chief Kozicki became the Incident
18   Commander. As such, responsibility for command and management of the entire
19   critical incident rested upon him. It is worthy of note that he did not explicitly
20   indicate over the police radio that he was formally assuming the responsibility of
21   Incident Commander. The first step for the arriving senior staff is to make an
22   immediate overall situational assessment. There is no indication that any
23   detailed inquiry was undertaken as to the appropriateness of Lieutenant
24   Mufarreh’s decision to expedite entry into the location of interest, other than to
25   inquire as to whether a search warrant was required. In fact, after the briefing by
26   Lieutenant Mufarreh on the immediate plan to enter and clear the apartment, the
27   Deputy Chief was directly asked by Captain Orozco if he “was OK” with the plan,
28   and Deputy Chief Kozicki indicated he was. He said later, in his statement to
29   Homicide Investigators, that he had not seen anything that was “reckless or red
30   flags” involved or associated with the expedited dynamic entry plan. However,
31   he did order that medical personnel and equipment stage close to the location
32   prior to the ad hoc Entry Team moving forward. After the entry was made and
33   two SWAT Team officers were being medically evacuated, Deputy Chief Kozicki
34   assumed Incident Command and ordered that all non-SWAT personnel clear the
35   area of 2755 74th Avenue.
36
37   The Board reviewed and considered the following findings by the Internal Affairs
38   Division Use of Force Report in reaching its finding regarding Deputy Chief
39   Kozicki’s Gross Dereliction of Duty during this critical incident.
40
41   Deputy Chief David Kozicki - GROSS DERELICTION of DUTY
42
43      •   Deputy Chief Kozicki perpetuated the confusion surrounding command
44          and control during the course of this incident by appearing on the scene,
45          engaging in dialogue regarding the tactical plan with Lieutenant Mufarreh
46          and Captain Orozco, but failing to advise the Communications Division he
47          had assumed incident command. Deputy Chief Kozicki could not have
48          reasonably believed he was not viewed as the incident commander by
                                          -69-

 1       Captain Orozco and Lieutenant Mufarreh.
 2
 3   •   Deputy Chief Kozicki did not provide clear leadership by reporting to the
 4       established command post, and once the SWAT Team members began
 5       to arrive on the scene, he failed to order them to respond to the Tactical
 6       Command Post. This investigation has shown this to be a key element
 7       exacerbating the sense of “false urgency” and consequentially, to
 8       accelerating the tempo of this operation. Deputy Chief Kozicki
 9       participated in or listened to the conversation in which the plan to form an
10       ad hoc Entry Team from the members of the SWAT Team who had
11       arrived on the scene.
12
13   •   Deputy Chief Kozicki gave approval of the plan to send the ad hoc Entry
14       Team inside Mixon’s apartment without attempting to confirm whether or
15       not the suspect was inside.
16
17   •   Deputy Chief Kozicki gave tacit approval of the plan to send the ad hoc
18       Entry Team inside the suspect’s apartment without attempting to
19       negotiate or afford Mixon the opportunity to give himself up and to be
20       taken safely into custody.
21
22   •   Deputy Chief Kozicki gave tacit approval of the plan to send the ad hoc
23       Entry Team inside the suspect’s apartment without evacuating the
24       apartment building. This may have prevented the use of chemical agents
25       and created a situation in which public safety was significantly threatened
26       by the occurrence of a firefight within the building.
27
28   •   Deputy Chief Kozicki gave tacit approval of the plan to send the team
29       inside the suspect’s apartment without waiting for the rest of the SWAT
30       Team to be in place, thereby creating an ad hoc team.
31
32   •   Unlike Lieutenant Mufarreh and Captain Orozco, Deputy Chief Kozicki
33       does not assert he did not believe the suspect was inside the residence.
34       His statement regarding the existence of a likelihood Mixon was inside
35       the apartment and a likelihood he was not indicates he believed there
36       was a higher probability the suspect was inside the apartment than that
37       assigned by Lieutenant Mufarreh and Captain Orozco. Considering his
38       lengthy service with the SWAT Team, Deputy Chief Kozicki should have
39       recognized the need, in terms of safety, to utilize other tactical options in
40       lieu of making an entry.
41
42   •   Deputy Chief Kozicki gave tacit approval of the plan to send the ad hoc
43       Entry Team inside Mixon’s apartment without the use of any tactical
44       options other than entry. This act had a direct causal effect upon the fact
45       that the team made entry without having established any tactical
46       advantage over the suspect.
47
48   •   As the Incident Commander, Deputy Chief Kozicki was ultimately
                                                     -70-

 1                    responsible for the decision to allow the members of the ad hoc Entry
 2                    Team to make entry into the suspect’s apartment. He acknowledges
 3                    knowing what the plan was and admits to failing to intervene in the
 4                    initiation of the plan.
 5

 6   JX 3 pp. 34-41.

 7           Two of the outside experts who served on the Board of Inquiry testified at the arbitration

 8   hearing in this grievance: Captain Phillip Hansen (Los Angeles County Sheriff’s Department)

 9   and Assistant Sheriff Brett Keteles (Alameda County Sheriff’s office). Both Capt. Hanson and

10   Deputy Sheriff Keteles have extensive experience in tactical operations and are viewed as experts

11   in the field.

12           According to Captain Hansen, the Independent Board of Inquiry was asked to evaluate

13   performance of all the “command staff” involved with the March 21 incident, including Lt.

14   Mufarreh, Capt. Orozco and Deputy Chief Kozicki. The Board was provided with extensive

15   documentation, photographs and video footage. Capt. Hansen also listened to audio tapes of the

16   interviews with some of the witnesses, including Capt. Orozco and Lt. Mufarreh. Capt. Hansen

17   also attended the BoI’s three-day hearing when the Board heard from a number of witnesses.

18   Captain Hansen testified the first two days were primarily spent in receiving presentations from

19   members of the OPD including Internal Affairs and Homicide. The third day was spent in

20   deliberations.

21           In their testimony, Capt. Hansen and Sheriff Keteles provided very useful insights into

22   “best practices” for SWAT units. They identified possible weaknesses in the OPD tactical

23   operations approach, and critiqued the performance of the OPD officers involved in the March 21

24   entry into the 74th Avenue apartment – including Lt. Mufarreh, Capt. Orozco and Deputy Chief
                                                       -71-

 1   Kozicki, but also expressing concerns with actions of the Tactical Team members and the actions

 2   and views of Capt. Tracey, OPD’s designated tactical leader on March 21 and someone viewed

 3   by the Department as OPD’s leading in-house tactical expert. The views and concerns of Capt.

 4   Hansen and Sheriff Keteles are addressed in the Discussion section, infra.

 5

 6   V.      THE DECISION TO IMPOSE DISCIPLINE (DEMOTION), AND SUBSEQUENT
 7           APPEALS.

 8           In January 2010, Chief Batts notified Lt. Mufarreh and Capt. Orozco that he intended to

 9   discipline them by demoting them two ranks, i.e., from lieutenant to officer (in Mufarreh’s case)

10   and from captain to sergeant (in Orozco’s case).

11           A pre-disciplinary Skelly hearing was held March 17, 2010, before Joseph Brann, an

12   outside professional designated by OPD to serve as the hearing officer. A single hearing was

13   held to address the actions being proposed with regard to both Lt. Mufarreh and Capt. Orozco.

14   Mufarreh and Orozco were represented by counsel (Mr. Rains), who submitted an extensive

15   written pre-hearing statement (JX 8) and also presented oral argument before the hearing officer.

16   The City also was represented by counsel, who argued the City’s position orally and submitted a

17   written post-hearing statement (JX 9).

18           Hearing Officer Brann submitted his reports25 on May 7, 2010, concluding the proposed

19   discipline (demotion) was supported. The reports were very brief, each being about 1-1/2 pages

20   in length.

21           The materials relating to the proposed demotions then were forwarded to City


     25
         Although a single, joint hearing was held, Brann opted to submit two reports, addressing separately
     the proposed actions against Lt. Mufarreh and Capt. Orozco.
                                                      -72-

 1   Administrator Dan Lindheim. In separate letters to Lt. Mufarreh and Capt. Orozco dated May

 2   14, 2010, Administrator Lindheim expressed his concurrence with the finding that the two

 3   officers had been “grossly derelict” in their duties, in violation of the OPD Manual of Rules,26

 4   and therefore the demotions would be implemented. JX 11, 12.

 5

 6   VI.     A SEPARATE MATTER: THE FEBRUARY 2008 SHOOTING OF OFR. KEVIN
 7           McDONALD, THE DYE CASE, AND THE SUBSEQUENT GRIEVANCE OF
 8           SGT. RANDY WINGATE.

 9           At the arbitration hearing in this case, Grievants introduced into evidence an arbitration

10   award issued March 17, 2010, by Arbitration Harris. UX 3. The award involves a dispute

11   between the City of Oakland and the Oakland Police Officers Association over the termination of

12   Sgt. Randy Wingate. Arbitrator Harris sustained the grievance and reinstated Sgt. Wingate. In

13   Grievants’s view, some of the issues raised in the Wingate grievance were similar to issues

14   present in the instant grievance. In addition, Grievants introduced an Oakland Police Department

15   Executive Force Review Board Memorandum (dated February 18, 2008, UX 2) relating to some

16   of the events that gave rise to the decision to discharge Sgt. Wingate.

17           The following description is based upon the facts and analysis provided by Arbitrator

18   Harris in her Decision.

19           As litigated before Arbitrator Harris, the City based it decision to discharge Sgt. Wingate

20   on two incidents, referred to as “the Porter case” and “the Dye case.” Although the City’s initial



     26
         Administrator Lindheim’s letters indicate Lt. Mufarreh and Capt. Orozco violated MOR “234.00-1
     Command - Gross Dereliction of Duty.” The version of the MOR provided to this Arbitrator (JX 13)
     does not include a section with this caption, or even this precise section number. The MOR text supplied
     in this proceeding is reproduced in the Appendix.
                                                    -73-

 1   rationale for discharging Sgt. Wingate also involved a third incident (“the Gay case”), the City

 2   abandoned its allegations against Sgt. Wingate regarding the Gay case at the beginning of the

 3   hearing.

 4          The Porter case is of less relevance to the dispute before me involving Capt. Orozco and

 5   Lt. Mufarreh. In April 2007, Sgt. Wingate attempted to stop several known gang members

 6   believed to be associated with a homicide. Porter was participating in the group. Porter was

 7   restrained, taken to the ground and handcuffed, and then placed in a patrol vehicle assigned to

 8   Ofr. Omega Crum. Porter subsequently was questioned while in the patrol car, but after the

 9   handcuffs had been removed.

10          Later, Ofr. Crum noticed that his (Ofr. Crum’s) cell phone was missing. Efforts were

11   made through the cell phone company to have calls from the lost cell phone redirected to Ofr.

12   Crum’s work phone. It was determined Porter had taken the phone. Several days later, Sgt.

13   Wingate and other police officers learned Porter’s location through a confidential informant.

14   They attempted to apprehend Porter, but he refused voluntarily to come out of the apartment

15   where he was located. Eventually, the officers made a forced entry into the apartment. They

16   found some marijuana, apparently in plain sight. They were advised the cell phone had been

17   destroyed, and it was not recovered. Porter alleged the officers (including Sgt. Wingate) used

18   excessive force, and an investigation was begun.

19          While the Porter matter was being investigated, Sgt. Wingate was involved in a second

20   incident, the Dye case.

21          On May 19, 2007, at approximately 12:19 AM, OPD Ofr. Kevin McDonald was shot

22   twice following a traffic stop. Ofr. McDonald was wounded, but he was able to withdraw from
                                                        -74-

 1   the situation and broadcast a description of the vehicle and the suspects. The vehicle was found

 2   abandoned a few blocks away from the scene of the shooting.

 3           As is typical in situations where a police officer is shot, a large number of other officers

 4   responded. A command post was established at the Eastmont substation site, 73rd Avenue and

 5   MacArthur Boulevard. Among the officers who responded to the Eastmont location were the

 6   Watch Commander, Lt. Lawrence Green, and Deputy Chief Jeff Israel.

 7               At some point, an informant appeared, claiming that the shooter was hiding in a crawl

 8   space under a house; however, the informant demanded payment of money in exchange for

 9   providing the address. Sgt. Wingate, along with two other police sergeants, deemed the

10   informant credible and obtained authorization from Deputy Chief Israel to make the payment.

11           At the time, all the officers who were in contact with the informant believed the

12   information being provided about the location of the suspect related to the person who shot Ofr.

13   McDonald. This turned out to be incorrect. The individual hiding under the house was not the

14   shooter, but instead simply had been in the same car with the individual who shot Ofr.

15   McDonald.

16           According to Arbitrator Harris, the senior staff at the Eastmont command post (Lt. Green,

17   Deputy Chief Israel and then-Captain Kozicki) decided it was not necessary to issue a “blue

18   alert” and call out a full Tactical Team.27 An action plan was developed. According to

19   Arbitrator Harris, the tactical approach to the situation was developed collaboratively, but under

20   the leadership of Sgt. Wingate and Sgt. Romans.



     27
        Several of the persons principally involved with developing the plan of action had substantial tactical
     operations experience, including Kozicki and Sgt. Romans.
                                                     -75-

 1          It was decided to send a canine into the crawl space, presumably to confirm the suspect

 2   was present and also in the hope the canine would be able to “flush” the suspect from the crawl

 3   space. At the later arbitration hearing, Sgt. Romans explained the police unit decided they would

 4   not make an announcement or call out the suspect before sending the canine into the crawl space,

 5   because the police officers were afraid the suspect (who they believed already had shot twice at a

 6   retreating police officer) would kill the dog. Lt. Green had deemed an announcement too risky

 7   because they had not actually confirmed the location of the suspect.

 8          Sgt. Romans was tasked with securing the perimeter around the house, and Sgt. Wingate

 9   was assigned to contain, isolate and contact the suspect, consistent with the plan developed

10   earlier at the command post. Around 3:00 AM, an entry team approached the house. The team

11   was led by Sgt. Wingate, accompanied by two rifle officers and Ofr. Dan Sakai, who was then a

12   canine officer and in charge of handling the dog.

13          Per the plan, one of the officers (Sgt. Wingate) opened the top-hinged hatch leading to the

14   crawl space. The interior of the crawl space was illuminated, and the suspect was observed about

15   6 or 7 feet inside the space, lying on his side. According to the testimony in the arbitration case,

16   the suspect’s face was covered and the officers were unable to see his hands. The officers

17   commanded the suspect to show his hands, but he did not comply, nor did the suspect respond

18   verbally. Sgt. Wingate directed then-Ofr. Sakai to deploy the canine. The dog entered the space

19   and immediately began biting the suspect on the shoulder. In response to the dog’s action, the

20   suspect moved his hands down toward his waistband. One of the rifle officers (Ofr. Roche)

21   perceived the suspect was seeking a weapon. The police officer opened fire, shooting the suspect

22   in the head and killing him.
                                                     -76-

 1          It later was determined the deceased person, Jeremiah Dye, was unarmed, and there were

 2   no weapons under the house. Further, Dye was not the person who had shot Ofr. McDonald,

 3   although Dye had been in the car with the shooter, who was Dye’s cousin.

 4          In December 2007, the then-Oakland Chief of Police, Wayne Tucker, issued a Medal of

 5   Merit to Sgt. Wingate for “exceptional performance of duty in removing a violent and dangerous

 6   felon from the streets of Oakland.” UX 3 p. 12. Deputy Chief Israel had played a role in

 7   recommending the award of the medal. At the time the medal was issued, however, OPD’s

 8   internal investigation into the use of force in the Dye matter still was pending. Later, after a

 9   lawsuit was filed, Chief Tucker asked that the medal be withdrawn.

10          According to Arbitrator Harris, when Sgt. Wingate originally was interviewed by

11   Homicide investigators concerning the fatal shooting of Dye by Ofr. Roche, Sgt. Wingate stated

12   he did not want to announce the officers’ presence outside of a crawl space because it was

13   believed the suspect had just shot an officer (McDonald), and Sgt. Wingate did not want the

14   suspect to just start shooting. Also, although there had been some discussion of using gas to help

15   subdue the suspect, this had been ruled out because the police officers planning the action did not

16   want to risk affecting the dog they intended to send into the crawl space.

17          Subsequent to the Dye shooting, Sgt. Danielle Bowman of OPD’s Internal Affairs Unit

18   conducted an investigation and prepared a Report, issued February 18, 2008. According to

19   Arbitrator Harris:

20              In her report . . . [Sgt. Bowman] reached the following conclusions:
21
22                  Based on all the evidence, testimony and facts, it is reasonable to
23                  believe that at the moment Roche made the decision to shoot, he
24                  believed that he was facing an imminent threat of serious bodily injury
                                                    -77-

 1                 or death. Roche’s actions were reasonable and within Departmental
 2                 policy.
 3
 4                 Based on all of the evidence, testimony and facts, [Sgt. Wingate’s] and
 5                 Roman’s decision not to announce their presence outside of the hatch
 6                 because of the potential danger to officers on the scene was reasonable
 7                 and within Department policy.
 8
 9              Sgt. Bowman further noted some issues with regard to the command and
10              control structure, i.e., while Lt. Green considered himself to be the tactical
11              commander and Deputy Chief Israel to be the incident commander, Deputy
12              Chief Israel (the highest ranking officer at the scene) did not consider
13              himself to be the incident commander. She further concluded that an ad
14              hoc entry team was not formed because 1) looking under the house was
15              not an entry; and 2) an entry team call-out would have been initiated, time
16              allowing, once the suspect’s location under the house had been validated.
17              In her report, Sgt. Bowman also stated:
18
19                 Realizing that hindsight is 20/20, securing the perimeter of the house
20                 and waiting for the Tactical Team and its resources may have allowed
21                 OPD to exhaust all available means, and possibly allow the suspect to
22                 surrender, prior to opening the hatch to the crawlspace, and therefore
23                 eliminating the potential of encountering a chance contact. It is also
24                 likely that after exhausting these means, that the officers would have
25                 had to open the crawl space anyway. The disadvantage of waiting for
26                 the Tactical Team would have been not knowing for sure whether the
27                 suspect was, in fact, beneath the house immediately after the
28                 information was received.

29   UX 3 pp. 23-24.

30          Following the completion of an Internal Affairs Division Investigation Report, the Police

31   Department convened an Executive Force Review Board which was chaired by then-Captain Eric

32   Breshears. The EFRB found Sgt. Wingate had failed to follow established policies in

33   supervising the incident and Lt. Green had failed to follow established policies in commanding

34   the incident (a lesser infraction). While acknowledging Deputy Chief Israel was, by OPD policy,
                                                      -78-

 1   the Incident Commander, the EFRB28 exonerated him from culpability.29

 2            At the subsequent arbitration hearing, Lt. Green testified he was “astonished” that Sgt.

 3   Wingate was being charged with a serious violation, while he (Lt. Green) was being charged with

 4   a less serious violation and Deputy Chief Israel was not being charged at all:

 5                . . . the reality is that everything that happened was the responsibility of
 6                Wingate, me, Israel, and I would also say Kozicki. That – the only part
 7                that was really open for [the Grievant] where he had to completely act on
 8                his own was once the hatch was opened. And once the hatch was opened,
 9                then he just had to deal with what he had. And some people were
10                speculating, oh, why didn’t you close the hatch or something like that, but
11                once you have your gun on a suspect, there’s no point – it would be idiotic
12                to lose the position of advantage. So all the way up to the point where he
13                engages the suspect, with opening the hatch, that was authorized by me,
14                Israel, and I would also say Kozicki.

15            In her Award, Arbitrator Harris discusses “the battle of experts on Dye.” An expert called

16   by the City, Cdr. Johnny Jurado (retired from the L.A. County Sheriff’s Office) argued Sgt.

17   Wingate improperly had used an ad hoc team to make an entry into the crawl space, rather than

18   calling in a Tactical Operations Team. Cdr. Jurado suggested Sgt. Wingate violated standard

19   practice by failing to “call out” the suspect before opening the hatch into the crawl space. In Cdr.

20   Jurado’s view, Sgt. Wingate had created a “false sense of urgency” by choosing to move forward

21   with opening the hatch (rather than calling out a Tactical Team) because, in his view, time was

22   on the side of the officers.

23            Sgt. Blair Alexander testified on behalf of Sgt. Wingate with regard to possible violations



     28
          Asst. Chief Jordan was a voting member of the EFRB.
     29
        In Arbitrator Harris’s words, “The Board, while acknowledging that Deputy Chief Israel was, by
     policy the Incident Commander (no matter what he believed), voted unanimously that there was no
     evidence to show that Israel was in violation of Department Policy.” UX 3 p. 22.
                                                        -79-

 1   o policy. In Sgt. Alexander’s view, the “time gap” between the receipt of information from the

 2   informant and the arrival at the house would have given officers reason to question whether or

 3   not the suspect would still be in the crawl space. Alexander opined that announcing the officers’

 4   presence and calling out the suspect would not have provided any tactical advantage

 5               if the suspect knew that the officers were outside the hatch he could have
 6               fired his weapon shooting through the hatch. Even if the suspect knew the
 7               officers were in the area, he still did not know that the officers were about
 8               to seize the initiative, i.e., an advantage which would have been forfeited
 9               had they announced their presence with bullhorn and requested that the
10               suspect come out with his hands up.”

11   UX 3 p. 30.30

12           In her Opinion and Award, Arbitrator Harris rejected the City’s arguments suggesting

13   wrongdoing by Sgt. Wingate. She discredited the testimony of Deputy Chief Israel as “self

14   serving” because Israel essentially absolved himself from any responsibility for the officer-

15   involved shooting of Dye. Arbitrator Harris pointed to other aspects of Deputy Chief Israel’s

16   testimony as inconsistent and ultimately “not deserving of credence.” UX 3 p. 41.

17           Inter alia, Arbitrator Harris concluded that the grievant had not assembled an ad hoc

18   Entry Team, largely because the author of the IAD report (Sgt. Bowman) had concluded that

19   peering into a crawl space did not constitute an entry.

20           Arbitrator Harris criticized the OPD for inconsistent discipline, observing Capt. Breshears

21   had concluded Deputy Chief Israel and Lt. Green should have activated a SWAT callout, but



     30
         According to Arbitrator Harris, Sgt. Alexander also testified that OPD policy required the presence of
     a suspect at a location to be verified before officers could call-out a Tactical Team. UX 3 p. 30. The
     shooting of Ofr. MacDonald, and the killing of Dye, took place in May 2007, whereas the events at issue
     in the matter before this Arbitrator took place in March 2009. No one has suggested such a “verify first”
     policy was applicable in the instant case.
                                                     -80-

 1   neither was disciplined for their purported error in judgment – even while Sgt. Wingate was

 2   disciplined for not recommending that a SWAT callout be activated. UX 3 p. 42, n. 73. She

 3   concluded that “[n]otwithstanding the extensive ‘Monday morning quarterbacking’ provided by

 4   Capt. Breshears and Cdr. Jurado [the City’s outside use of force expert], the Arbitrator is not

 5   convinced that the grievant committed any wrongdoing.” UX 3 p. 43.

 6          Arbitrator Harris also was sharp in her criticism of IAD and Sgt. Whent:

 7              Lt. Whent, who was in charge of both the Porter and Dye investigations,
 8              was reformulating his conclusions at the arbitration hearing, i.e., upgrading
 9              the violation to a more serious intentional illegal entry. These examples of
10              unfairness highlight the unrelenting manner in which evidence was
11              gathered to support the charges without sufficient consideration of all the
12              relevant facts and circumstances, e.g., . . . the participation of superior
13              officers in formulating the plan in the Dye matter . . .

14   UX 3 p. 44 (emphasis supplied).

15

16                                             DISCUSSION

17          Given the magnitude of what transpired on March 21, 2009, and in light of the multiple

18   inquiries that have been conducted (Homicide, IAD, BoI, Skelly hearing, and this arbitration), the

19   record in this case is large, and the arguments advanced by the parties are extensive. For

20   example, the Union’s brief includes fully 22 different sections of detailed argument spanning

21   more than 90 pages in length.

22          I have reviewed all arguments thoroughly, as well as the record. As discussed below, I

23   find the City did not have just cause to discipline Lt. Mufarreh and Capt. Orozco.

24          Necessarily, my analysis focuses primarily on the City’s arguments “in support” of the

25   disciplinary action. In this Arbitrator’s view, the City’s position fails for several reasons. With
                                                     -81-

 1   regard to some points, I find the City’s factual assessments simply are incorrect. In other

 2   respects, I conclude the course of action taken apparently was consistent with OPD practice and

 3   training, even if not fully compatible with notions of “best practice.” Additionally, I find the

 4   Department acted improperly in singling out Lt. Mufarreh and Capt. Orozco for discipline, when

 5   others within OPD (including others senior in rank to Lt. Mufarreh and Capt. Orozco) also were

 6   present and participating in decision making (or, per OPD policies should have been participating

 7   in decision making), but were not similarly held accountable.

 8

 9   I.     THIS ARBITRATION AWARD, IN CONTRAST TO PRIOR OPD AND CITY
10          REVIEWS OF THE MARCH 29 INCIDENT AND THE ACTIONS OF LT.
11          MUFARREH AND CAPT. OROZCO.

12          At the outset of the City’s post-hearing brief, the City notes that IAD conducted a

13   comprehensive investigation and concluded Lt. Mufarreh and Capt. Orozco were guilty of gross

14   dereliction of duty. The City follows by noting the events of March 21, 2009, also were

15   reviewed by the Independent Board of Inquiry, Chief Batts and Skelly Officer Brann, all of whom

16   concurred in the view that Lt. Mufarreh’s and Capt. Orozco’s actions on March 21 were deficient

17   and constituted “gross dereliction.” The City then observes:

18              Grievants now ask the arbitrator to review the facts yet again, come to a
19              different conclusion than that reached by IAD, the Board of Inquiry, Chief
20              Batts and the Skelly Officer, and reinstate them to their former position.
21              They argue that it is “impossible to tell tactical commanders how to
22              exercise their discretion because they have to make the best judgment they
23              can under the circumstances of the moment.” [citing Tr. II:45.] The City
24              strongly disagrees. The fact that a commander may exercise discretion
25              does not mean that he can ignore policy and exercise poor judgment
26              without facing discipline. The evidence presented to the arbitrator during
27              the seven day hearing, including 23 witnesses and more than 80 exhibits,
28              established that there was just cause for the discipline imposed. The
                                                       -82-

 1              grievances should be denied.

 2   City Post-Hearing brief at 2.

 3          As discussed below, this Arbitrator finds the City has not demonstrated it had just cause

 4   to demote Lt. Mufarreh and Capt. Orozco. At the outset, it merits addressing why this Arbitrator

 5   might reach a conclusion at this stage that is contrary to the conclusions reached earlier by others

 6   who have reviewed these events.

 7          The first observation to make is that this grievance arbitration represents the first time the

 8   events of March 21, 2009, have been considered in a formal, adversarial proceeding, with the

 9   Grievants having an opportunity to cross-examine witnesses. The significance of this cross-

10   examination element cannot be overstated. Although I do not question the good faith of all the

11   persons involved in the earlier steps of the disciplinary steps of the investigative and disciplinary

12   process, it is clear to this Arbitrator that the picture of what happened on March 21 that was

13   developed at the arbitration hearing was richer and more complex compared with the earlier

14   analyses, with additional significant facts. With a more-complete record, it is not surprising an

15   adjudicator might reach a different conclusion.

16          Second, although it is true the events of March 21 have been reviewed multiple times, to

17   a considerable extent the “record” that has been reviewed – and the conclusions that have been

18   evaluated – all relate back to the IAD report. In this Arbitrator’s view, the IAD report is flawed

19   in several important respects, as discussed below.

20          Third, although both sides at various times during the arbitration hearing raised the

21   possibility of calling Lt. Lindsey to testify, ultimately neither party called Lt. Lindsey. On the

22   afternoon of March 21, Lt. Lindsey was both the area commander for Area 3, and also the city-
                                                    -83-

 1   wide watch commander. In terms of the OPD structure, she therefore was the person expected to

 2   take charge of commanding the incident, until relieved by a higher-ranking officer. Lt. Lindsey’s

 3   testimony might have been relevant to multiple questions that have been raised in this

 4   proceeding, including questions about the command structure on March 21, as well as questions

 5   about the information being provided to Lt. Mufarreh and others relating to the suspect’s location

 6   – specifically, the likelihood the suspect was present at the 74th Avenue apartment. Without Lt.

 7   Lindsey’s in-person testimony, and the opportunity for her to be cross-examined on the record,

 8   the information she provided in her earlier reports and interviews is given diminished weight.

 9

10   II.    THE ALLEGATION LT. MUFARREH DE FACTO TOOK OVER INCIDENT
11          COMMAND FROM LT. LINDSEY, AND THEN PERFORMED
12          INADEQUATELY AND IN VIOLATION OF OPD GUIDELINES.

13          Among the key findings of the IAD Report and the BoI Report were determinations that

14   Lt. Mufarreh took over as Incident Commander on March 21, and then failed to perform

15   adequately and comply with OPD policies. Although there plainly were serious problems with

16   OPD’s response on March 21, I am not persuaded these problems uniquely can be placed on Lt.

17   Mufarreh’s shoulders. Further, the unfairness of blaming Lt. Mufarreh (primarily) for these

18   failures is especially stark when juxtaposed against the BoI’s conclusion that Lt. Lindsey

19   demonstrated “Appropriate Command - with qualification.”

20

21          A. Assumption of the Incident Commander role.

22          In this Arbitrator’s view, it is somewhat ironic when the BoI begins its criticism of Lt.

23   Mufarreh by stating he “assumed the de facto role of incident commander but failed to identify
                                                       -84-

 1   himself as the Incident Commander and failed to perform all the necessary and required tasks.”

 2   Under OPD General Order M-4, Sections I.E.1. and 3.a., the “ranking supervisor or command

 3   officer shall assume command at the scene of a crime . . . [and] shall be responsible for directing

 4   the activities and tasks of Departmental personnel at the crime scene.” Additionally,

 5   “Investigators shall contact the ranking officer upon their arrival at the scene . . .” and “[i]f

 6   superior in rank to the ranking Patrol Division member at the scene, the investigator shall clearly

 7   communicate that he/she is assuming command and shall supervise the preliminary

 8   investigation.”

 9           Both as the patrol commander in charge of Area 3 where the traffic stop shootings

10   occurred, and also as the designated city-wide watch commander on March 21, there really is no

11   doubt that Lt. Lindsey, per OPD protocols, was responsible for commanding the scene as the

12   Incident Commander until relieved by a higher-ranking officer. Of course, Lt. Lindsey and Lt.

13   Mufarreh shared the same rank, and there was no testimony from any witness suggesting any

14   commonly-understood mechanism for Lt. Mufarreh to relieve Lt. Lindsey of her duties as

15   Incident Commander, or for Lt. Lindsey to cede her duties to Lt. Mufarreh. In this context, it

16   strikes this Arbitrator as highly unusual to criticize Lt. Mufarreh for failing to announce that he

17   had taken over as Incident Commander, when he had no apparent authority to do so.31 By

18   extension, it strikes this Arbitrator as highly unfair to fault Lt. Mufarreh for failing to perform

19   certain duties of the Incident Commander (e.g., setting up a proper command post), when OPD’s




     31
        One could argue Lt. Mufarreh would have been guilty of insubordination and violating OPD General
     Order M-4 if he had announced that he was taking charge as Incident Commander.
                                                       -85-

 1   own policies indicate this duty should have been performed under the direction of Lt. Lindsey.32

 2           From the record in this case, it is abundantly clear there were multiple command and

 3   control shortcomings on March 21 while OPD grappled with the aftermath of the shootings of

 4   Ofr. Hege and Sgt. Dunakin. To their credit, it appears Lt. Mufarreh and Acting Lt. Alexander

 5   were concerned that Incident Command responsibilities fell to Lt. Lindsey, who only recently had

 6   been elevated to the lieutenant rank and had been returned to patrol division duties. Lt. Mufarreh

 7   and Acting Lt. Alexander took the initiative to devise an allocation of command functions.

 8   While this “triaging” approach was not developed with Lt. Lindsey’s initial participation, the

 9   record shows she quickly concurred with it.

10           Unfortunately, when dividing major responsibilities (crime scene, perimeter, search), it is

11   unclear whether Lt. Mufarreh, Lt. Lindsey and Acting Lt. Alexander ever really discussed who

12   ultimately was in charge as Incident Commander. Both Lt. Mufarreh and Lt. Lindsey engaged in

13   actions that suggested each held incident command function. Thus at different times, both Lt.


     32
           In its report, the BoI states Lt. Lindsey “initially . . . acted as an Incident Commander until the
     response complexity began to overwhelm her,” at which point she “assumed a more limited role similar
     to a sergeant, directing preliminary crime scene management and an investigative role.” JX 3 pp. 22, 34.
     In this Arbitrator’s view, Lt. Mufarreh displayed professionalism by taking on added leadership
     responsibilities when he concluded his colleague might not have been fully “up to the task” of directing
     this kind of major criminal event.

       This Arbitrator recognizes that Lt. Lindsey’s performance is not squarely joined in this grievance, and
     she was not called as a witness and therefore not given an opportunity to describe and defend her actions.
     Still, this Arbitrator is perplexed by the degree to which IAD and the BoI essentially exonerated Lt.
     Lindsey for the missteps of March 21 and directed their criticism primarily at Lt. Mufarreh. The BoI
     found Lt. Lindsey to have demonstrated “Appropriate Command – with qualification,” even while
     recommending that “Lieutenant Lindsey and any newly promoted lieutenant likely to be assigned to
     patrol before attending a command school should be paired with a supervisor capable of providing
     training and advice in the management of critical events from remote locations.” JX 3 p. 34-35. In this
     Arbitrator’s view, it is inconsistent and illogical to find that the person responsible for exercising
     Incident Command demonstrated “Appropriate Command” while at the same concluding she retreated to
     performing sergeant-level work and needed to be paired with someone with greater expertise.
                                                         -86-

 1   Mufarreh and Lt. Lindsey contacted Communications to activate a “blue alert,” a function

 2   normally reserved to the Incident Commander. Additionally, when Lt. Joyner broadcast a request

 3   to speak with the watch commander “in charge” about the possible location of a suspect, both Lt.

 4   Mufarreh and Lt. Lindsey responded.33 In terms of the early phases of the response, I believe

 5   Capt. Hansen sized things up about right when he observed that Lt. Mufarreh – as the senior

 6   lieutenant present at the beginning of the response – took the “lead” in helping divide duties, but

 7   “What was really lacking . . . was the identification of somebody being in clear command of the

 8   whole situation.” Tr. II:123.

 9           But the question of claiming and announcing “Incident Commander” status does not

10   involve merely Lt. Mufarreh and Lt. Lindsey, but extends further up the chain of command. As

11   the events of March 21 developed, several higher-ranking OPD officials arrived at the crime

12   scene, including Capt. Orozco, Deputy Chief Kozicki, Deputy Chief Breshears, and Acting Chief

13   Jordan. Under the letter of General Order M-4, it would appear several of these higher-ranking

14   officers may have had a duty to announce their arrival and assume the status of Incident

15   Commander, yet none did – apart from Deputy Chief Kozicki, who announced he was taking

16   charge only after the shootings at the 74th Avenue apartment.

17           As the BoI noted (JX 3 p. 23), it may be worthwhile for the Oakland Police Department

18   to revisit the assumption that the most senior-ranking officer at a crime scene automatically must

19   assume responsibility for commanding the event. The BoI suggested this policy may not be

20   consistent with “best practices” under the Incident Management System guidelines. Intuitively, it


     33
        Lt. Joyner testified he did not find it surprising that Lt. Mufarreh responded to his radio broadcast,
     because Lt. Mufarreh had taken charge of the search function and Lt. Joyner was seeking to convey
     information about the possible suspect location.
                                                     -87-

 1   would appear in many circumstances that the skills or expertise of the highest ranking officer at

 2   the scene might not always be the best match for taking charge of the overall incident command

 3   function, and the events of March 21 plainly point in this direction. For example, although

 4   Acting Chief Jordan was present near the scene, it appears his primary focus was interfacing with

 5   the senior political leadership of the City, monitoring community relations concerns and the

 6   press, and monitoring the medical situation with Ofr. Hege and Sgt. Dunakin and notifications to

 7   family. In their own way, these kinds of issues are just as essential as the crime scene

 8   investigation function, and I do not suggest here that the Acting Chief’s focus on these other

 9   concerns was misplaced. However, if OPD is going to hold Lt. Mufarreh to a strict interpret

10   interpretation of the General Orders when justifying its decision to demote him, then it is

11   reasonable to question why other OPD personnel are not held to a similarly strict reading of the

12   General Orders.

13

14          B. Responsibility for establishing and staffing a proper command post.

15          One element of the criticism of Lt. Mufarreh’s performance on March 21 relates to his

16   alleged failure to establish a proper command post. Of course, this charge is premised on the

17   assumption that Lt. Mufarreh was functioning as the Incident Commander; under General Order

18   K-5 (applicable to the Tactical Operations Team), one of the duties of the Incident Commander is

19   to “[e]stablish an Incident Command Post in a strategic location . . . as soon as practical. He/she

20   shall manage the command post operations and normally conduct operations from that location.”

21   Ex. 16 p. 10.

22          With hindsight, it is clear the response to the initial shootings of Ofr. Hege and Sgt.
                                                     -88-

 1   Dunakin was not handled well, and should have been slowed down and organized fully with

 2   additional support staff. This is discussed in the BoI report, and also in the testimony of Capt.

 3   Hansen, Ass’t Chief Keteles, Chief Batts and others. As Capt. Hansen noted, a “command post”

 4   properly can be viewed as having two components: physical and functional. As appropriate to

 5   the incident, there needs to be a place for the command staff to assemble, and also a place

 6   appropriate to the full range of command functions that will be exercised.

 7          Although the BoI focused much of its criticism specifically on Lt. Mufarreh’s

 8   performance, the Board’s report also suggests by implication that OPD had not invested

 9   sufficient time training staff on the circumstances when the Incident Command System should be

10   initiated. Specifically, the BoI observed “The large-scale multi-jurisdictional response required

11   the rapid transition and implementation into ICS structure. ICS provides an established plan for

12   rapid setup and control process that would have been extremely helpful to the commanders on-

13   scene.” The BoI recommended remedial action, stating “Training in basic emergency incident

14   management principles and ICS protocols, tabletop exercises, and full-field exercises should be

15   implemented.” JX 3 pp. 22-23.

16          Although the BoI report suggested the Incident Command System (ICS) procedures

17   should have been implemented in response to the initial traffic stop shootings, Capt. Hansen

18   offered that the ICS procedure per se may not have been essential. He explained the ICS is a

19   federal- and state-level model designed primarily for multi-jurisdictional emergency response,

20   which might include natural disasters. Not all police personnel are trained in ICS procedures.

21   Although the shootings of Sgt. Dunakin and Ofr. Hege elicited a response from law enforcement

22   in surrounding jurisdictions, the Oakland Police Department is a large organization, and the
                                                      -89-

 1   response to the shootings largely was an OPD affair. In this context, it was Capt. Hansen’s view

 2   that activation of the ICS protocols may not have been essential; however, Capt. Hansen offered

 3   that when responding to a major event like the shooting of a police officer, where a massive

 4   response is predictable, a proper command post certainly is essential and needs to be somewhat

 5   removed from the immediate crime scene, and located in a secure location. He observed that, in

 6   practice, if the senior command staff is located on the front lines of the incident, their attention

 7   inevitably will be drawn toward front-line details, when proper command management requires

 8   the Incident Commander to maintain a more-global view of the crime investigation and all its

 9   component parts, and the ability of the Incident Commander to maintain proper perspective

10   actually is enhanced by being slightly removed – physically – from the thick of the action.

11          Further, Capt. Hansen noted a command post for a major event like an “officer down”

12   incident predictably would need substantial space for all the response resources to convene –

13   incoming officers, investigators, specialists, tactical staff, communications personnel, scribes,

14   etc. In Capt. Hansen’s view, the street location at 74th and MacArthur where all the senior staff

15   clustered (Lt. Lindsey, Lt. Mufarreh, Capt. Orozco, Deputy Chief Kozicki, Deputy Chief

16   Breshears, Capt. Rachal, etc.) – essentially in the center of all the investigation activity – would

17   be an inappropriate place for a command post for large incident. Ironically, it was Capt.

18   Hansen’s view that the nearby Eastmont station probably would have worked fine.

19          As described by Technical Operations Dispatcher Parlette, OPD has substantial

20   experience establishing and staffing a formal command post, and the absence of a formal

21   command post in this instance led to multiple problems. Lt. Joyner and Lt. Lindsey, of course,

22   were developing important leads relating to the likelihood the suspect was present at the 74th
                                                      -90-

 1   Avenue apartment; a central command post could have helped assemble these leads, and contrast

 2   them with contrary information (ultimately unreliable or even intentionally misleading) that was

 3   being received from other sources suggesting the suspect had fled the area. Instead, Lt. Mufarreh

 4   and others assembled on MacArthur Boulevard likely received only part of this information.

 5   Similarly, shortly before the 74th Avenue apartment was entered, the likely identity of the

 6   suspect was established and a small number of copies of his photograph printed and distributed;

 7   although this distribution was taking place in the immediate vicinity of Lt. Mufarreh and Capt.

 8   Orozco, it is unclear whether Lt. Mufarreh, Capt. Orozco or Deputy Chief Kozicki actually

 9   viewed copies, and certainly no copies were shared with the Tactical Team that was being

10   assembled. Apart from Sgt. Sakai, everyone seemed to miss the broadcast report that “someone”

11   had been observed peering out of the window of the 74th Avenue apartment; even if the

12   individual had turned out not to be the suspect, information confirming the apartment was

13   occupied should have been assessed and incorporated into the tactical plan.

14          But while OPD plainly had the resources and experience to establish a formal command

15   post, the record developed in this case is unclear regarding precisely when such a formal

16   command post is established, particularly in connection with an unplanned or unexpected crime

17   incident. General Order K-5 indicates a command post should be established “as soon as

18   practical,” which is a loose standard that leaves much to the discretion of staff in the field.

19          In their initial meeting, Lt. Mufarreh and Acting Lt. Alexander identified the Eastmont

20   Station site as the location for a command post, and it is evident the Eastmont location was

21   shared with others because some members of the Tactical Operations Team initially reported to

22   Eastmont (which also was a site where team gear was stored), and Acting Chief Jordan also
                                                      -91-

 1   appeared there, expecting to find a command post being developed. However, Lt. Mufarreh did

 2   not remain at the Eastmont site, nor did Lt. Lindsey ever make it to the Eastmont site. During the

 3   relevant period, Lt. Lindsey and Lt. Mufarreh (and later, Capt. Orozco and Deputy Chief

 4   Kozicki) essentially led the investigation and search operation from a stretch of MacArthur

 5   Boulevard adjacent to the initial traffic stop shooting locale.

 6          Multiple witnesses testified to being present at major crime incidents in Oakland where a

 7   formal, staff command center had not been established at a location some distance from the

 8   crime scene. Although a few officers testified they found it unsettling on March 21 that a formal

 9   command post had not been established, most did not, and there is no evidence anyone at the

10   command level expressed any dissatisfaction with the early command of the investigation from

11   the MacArthur Boulevard location. Deputy Chief Kozicki – one of the most senior members of

12   the Department, and an individual with substantial tactical operations experience – arrived at

13   MacArthur Boulevard around 2:40 PM, and apparently was untroubled by the informality of the

14   command operation at that point and did not take steps to alter the command structure or

15   location. Capt. Hansen, who served on the BoI and who is an expert in tactical operations,

16   acknowledged OPD written policies did not expressly prescribe “what to do” for setting up a

17   command post, and therefore any knowledge for setting up command posts would depend on

18   staff training. TR. II:194.

19              Viewing these elements together, it is this Arbitrator’s conclusion the incident

20   command failures of March 21 are not so uniquely attributable to the actions of Lt. Mufarreh as

21   the Department seems to allege. OPD had put in place a structure where responsibility for

22   Incident Command fell to Lt. Lindsey, who was a new lieutenant and who had only recently
                                                     -92-

 1   returned to patrol responsibilities. The BoI report suggests OPD did not provide Lt. Lindsey with

 2   adequate support, and she was unable to deal successfully with an event of this complexity. In

 3   this Arbitrator’s view, Lt. Mufarreh “stepped up to the plate” to assist Lt. Lindsey and assume

 4   responsibility for the search component of the crime investigation, and she concurred with Lt.

 5   Mufarreh’s proposal that he take on this role. Although Lt. Mufarreh at times exercised some of

 6   the authorities normally reserved to the Incident Commander, he did so in connection with the

 7   search function. At no point did Lt. Mufarreh indicate to Lt. Lindsey or others that he was taking

 8   control as Incident Commander, nor did Lt. Lindsey at any point announce she no longer was

 9   responsible for the initial incident command.

10          Given the size of the event, it appears the ICS system or a comparable response should

11   have been initiated, and a formal command post should have been established with the Incident

12   Commander (whoever he or she might have been) directing activities primarily from the

13   command post. Although OPD plainly had the resources and experience to implement this

14   approach, it was not done. However, this Arbitrator finds the responsibility for failing to

15   implement this approach is diffuse and somewhat systemic, and not solely attributable to Lt.

16   Mufarreh. Further, OPD policies regarding the timing and circumstances for setting up a

17   command post are not absolute or definitive, but instead take a practical approach and rely on

18   staff judgment.

19

20
                                                      -93-

 1   III.   THE UNDERSTANDING OF LT. MUFARREH AND OTHERS REGARDING
 2          THE SUSPECT’S LIKELY PRESENCE IN THE 74TH AVENUE APARTMENT.

 3          Although the crux of this case deals with broad command and control issues, and

 4   compliance with OPD policies and procedures, arguably the most troubling and inflammatory

 5   issues relate to Lt. Mufarreh’s approach to the 74th Avenue apartment search, and specifically

 6   the suggestion in the IAD report that Lt. Mufarreh’s actions indicate he knew the suspect was

 7   present in the apartment, yet failed to plan properly and advise the Tactical Team members:

 8                Lieutenant Mufarreh’s assertion that he did not believe Mixon was inside
 9                the residence is in contradiction to the actions that were taken. The
10                assertion is not reasonable considering the totality of the circumstances
11                and the information which was inarguably known at the time. Lieutenant
12                Mufarreh’s actions and decisions indicate a belief that the suspect was
13                contained inside the apartment, however, Lieutenant Mufarreh failed to
14                exercise due caution with regard to the tactical plan.

15   JX 1 p. 325.

16          As discussed further, below, there are a host of serious problems associated with the

17   decision to send the Tactical Operations Team into the 74th Avenue apartment. However, this

18   Arbitrator is convinced – absolutely convinced – that Lt. Mufarreh in good faith believed the

19   suspect was not present in the apartment unit, and therefore was mistaken in his assessment of

20   the risk associated with the operation. Further, while with hindsight we can say actionable

21   information “was inarguably known” to some, I am not at all persuaded this information “was

22   inarguably known” to Lt. Mufarreh, Capt. Orozco, Deputy Chief Kozicki and others in leadership

23   positions.

24          The evidence plainly shows there were two distinct “camps” among the OPD officers in

25   their evaluation of the 74th Avenue apartment.
                                                      -94-

 1          On the one hand, Lt. Joyner was convinced that the suspect likely was in the 74th Avenue

 2   apartment, and he testified to this effect. From her statements, it also is plain that Lt. Lindsey,

 3   too, felt there was a likelihood the suspect was present in the apartment. In terms of their

 4   appreciation of the intelligence that was being provided, Lt. Joyner and Lt. Lindsey plainly were

 5   better positioned than Lt. Mufarreh and others to have high confidence in this data because of

 6   their ties to the community and their unique relationships with the informants.

 7          Keeping in mind that CI Ellis initiated contact with OPD by calling Karla Rush to report

 8   that he had some knowledge of the shooter’s identity and ties to the neighborhood, and the

 9   suspect’s possible location, this exceptional display of initiative by a neighborhood informant

10   probably resonated to some extent with Lt. Joyner. More important, of course, is that Lt. Joyner

11   had a relatively long history of interacting with CI Ellis, and Ellis had proven himself to be a

12   reliable reporter over time. It is unclear whether this history was effectively shared with Lt.

13   Mufarreh and others.

14          Similarly, Lt. Lindsey had a personal history with Elaine Walker, which likely would

15   have contributed to Lt. Lindsey’s assessment of the reliability of Walker’s information. Further,

16   the information being gathered from Ellis and Walker was complementary and reinforcing.

17   Although the precise ties between Ellis and Walker are not clear from the record, there is a

18   suggestion in the record that Ellis’s call to Karla Rush was made from Walker’s cell phone,

19   suggesting Walker and Ellis (1) both were near the scene of the initial shooting, and (2) may have

20   known each other already, since both lived in the neighborhood. Lt. Joyner and Lt. Lindsey had

21   conversations about the reports from Ellis and Walker, which likely added yet more support to

22   their belief the suspect likely was in the 74th Avenue apartment. Sgt. Van Sloten, who had
                                                    -95-

 1   conversations with both Lt. Joyner and Lt. Lindsey, and also Walker, plainly also came away

 2   with the belief the suspect was likely to be present in the apartment, nearby

 3          The degree of certainty over the suspect’s location, however, and the extent to which that

 4   certainty was conveyed effectively to others in the command structure, is mixed.

 5          For example, in her delayed and revised Supplemental statement submitted to Sgt. Cruz

 6   as part of the Homicide investigation, Lt. Lindsey reports on her conversations with Walker.

 7   According to Lt. Lindsey, Walker indicated she repeatedly had seen the suspect (Mixon) in the

 8   neighborhood during the days before the shooting, and Walker linked Mixon with the woman

 9   residing in the 74th Avenue apartment. According to Lt. Lindsey’s report,

10              Ms. Walker stated that she was sure that the suspect Mixon was inside of
11              the apartment building. Ms. Walker stated that at some point after the
12              shooting, she saw suspect Mixon in her backyard.

13   JX 57. In her IAD interview, Lt. Lindsey stated Walker claimed to have seen the suspect “go in

14   there.” JX 44 p. 17.

15          Although not mentioned in her Homicide Supplemental report, it appears Lt. Lindsey had

16   other information that lent added credibility and urgency to the belief that the suspect was present

17   in the 74th Avenue apartment. Thus, in her IAD interview, Lt. Lindsey reported:

18

19              And so we – it was a group of us officers that walked over to the 2700
20              block of 74th Ave [during the period after the shooting of Ofr. Hege and
21              Sgt. Dunakin, but before the entry into the 74th Avenue apartment]. And
22              so we made contact with these group of women, because they were all
23              female and they started acting crazy, “Don’t go in there. I don’t want y’all
24              to kill my brother,” you know, just acting a fool. And that’s when we
25              knew something, this dude may be in this apartment. They did not want us
26              to go near there. So we started, you know, putting the information
27              together and then I went back and followed up with Ms. Walker to, you
                                                        -96-

 1               know, confirm why is everybody, you know, tripping off of this apartment
 2               right here. And she’s like, “Cause that’s where he’s at.”

 3   JX 44 p. 15.

 4           Lt. Lindsey told IAD she expressed a strong conviction about the suspect’s location to Lt.

 5   Mufarreh and Capt. Orozco and others in the “huddle” during the period before the entry, even

 6   while acknowledging her certainty was “not 100%” because she personally had not observed the

 7   suspect enter the apartment. If Mixon’s presence in the apartment was a near certainty to Lt.

 8   Lindsey (even if “not 100%”), it appears she was not communicating this additional information

 9   very effectively to Lt. Joyner, either, even though the two were in contact several times and

10   comparing notes. When asked whether Lt. Lindsey was informing him (Lt. Joyner) that the

11   suspect had been admitted to the 74th Avenue apartment, Lt. Joyner testified:

12               Absolutely not. She never told me that she had any other information
13               about 2755 74th Ave ever, nor did I ever hear her say anything about that
14               on the radio. If I had, I would have felt a lot better about the information I
15               had from Clarence Ellis.

16   Tr. III:269.34

17           On his part, Lt. Joyner’s testimony carefully acknowledged what he knew, and what he

18   did not know, about Ellis’s report. Lt. Joyner acknowledged that Ellis, when asked, freely

19   admitted that he (Ellis) knew only that the suspect was associated with the 74th Avenue

20   apartment, but Ellis did not claim to have seen the suspect enter the unit after the initial traffic




     34
         According to Lt. Joyner, he continued to have “extensive” conversations with Lt. Lindsey after the ill-
     fated entry into the 74th Avenue apartment. Lt. Joyner was emphatic that, even during these subsequent
     conversations, Lt. Lindsey never indicated to him that she (Lt. Lindsey) had received reports from any
     witnesses who claimed to have seen the suspect enter the 74th Avenue apartment. Tr. III:284.
                                                        -97-

 1   stop shootings.35 In Lt. Joyner’s view, this actually enhanced Ellis’s credibility in his (Lt.

 2   Joyner’s) estimation, because it demonstrated Ellis was being careful to be accurate and was not

 3   embellishing his account. See Tr. III:256. Of course, Lt. Joyner’s appreciation for Ellis’s

 4   credibility was not momentary, but was grounded in a somewhat extended history of

 5   collaboration.36

 6           Still, during his hearing testimony, Lt. Joyner also acknowledged there were reasons why

 7   his (Lt. Joyner’s) personal belief in the accuracy of Ellis’s account might not have been shared by

 8   others. First, Lt. Joyner acknowledged he (Lt. Joyner) was focused on a “small piece” of the

 9   overall search for the suspect, and he assumed that Lt. Mufarreh was receiving and absorbing

10   additional information that was coming to him from other sources. Although he vouched

11   strongly for Ellis, Lt. Joyner did not recall going into detail with Lt. Mufarreh about the extent of

12   his (Lt. Joyner’s) history using Ellis as an informant; as a consequence, it is likely Lt. Mufarreh

13   would not fully have appreciated that Ellis was not merely a citizen volunteering to provide

14   information – and information that was somewhat speculative, in that Ellis expressly did not

15   claim to have seen the suspect enter the apartment after the initial shooting – but instead Ellis

16   was a citizen with an established track record of providing reliable information, with good

17   knowledge of the community and good instincts. Further, Lt. Joyner acknowledged that Ellis had

18   lived a somewhat rough life, with some history of drug use; based on Ellis’s physical appearance,


     35
        Of course, Ellis also had seen the suspect flee in the direction of the 74th Avenue apartment after the
     shooting of Ofr. Hege and Sgt. Dunakin.
     36
         It is evident Ellis was passionate in his support for the police on March 21. As noted supra, it appears
     Ellis had rushed to the aid of Sgt. Dunakin after Dunakin was shot. Ellis then initiated the contact with
     OPD via Karla Rush, to report the direction of the suspect’s flight and his possible association with the
     74th Avenue apartment.
                                                     -98-

 1   demeanor and speech, Lt. Joyner commented he would not have been surprised if a stranger (e.g.,

 2   Lt. Mufarreh) would have discounted Ellis’s report “if you go based on appearance, absolutely.”

 3   Tr. III:248-49, 257.

 4          It also merits noting that Lt. Mufarreh was not the only OPD officer to speak with Lt.

 5   Joyner and/or Ellis, and apparently leave the discussion unconvinced the suspect had fled to the

 6   74th Avenue apartment and was hiding there. Sgt. Andreotti, who was assisting Lt. Mufarreh

 7   with the search component, and who was stationed on 74th Avenue, spoke with Lt. Mufarreh

 8   about the possible location of the suspect and was advised by Lt. Mufarreh of the reports that the

 9   suspect was “associated” with the 74th Avenue apartment. Sgt. Andreotti, in turn, decided to call

10   Lt. Joyner directly and get a “first hand” account of the intelligence gathered to that point.

11   Andreotti testified he viewed Lt. Joyner as an “outstanding” police officer, who often receives

12   information from community members who might not otherwise confide with other police

13   officers. According to Sgt. Andreotti:

14              I wanted to hear from [Lt. Joyner] the quality of the information that we
15              had or that he had that he passed on to us. My biggest concern was that in
16              my mind, this suspect was fleeing. He was actively fleeing. He was
17              getting out of the area. I base that off my experience.
18
19              If we were going to use essentially all our resources to contain this scene
20              [i.e., the 74th Avenue apartment], I wanted to hear from [Lt. Joyner] how
21              good the information was because we were using all our resources for this
22              right now. So there were no other searches going on, there were no yard
23              searches . . . going on.

24   Tr. VII:165. The information Sgt. Andreotti received directly from Lt. Joyner did not change the

25   opinion he had developed based on the initial conversation with Lt. Mufarreh:
26
27              Q. So you get off the phone with Lieutenant Joyner. What was your
28                 personal belief concerning the likelihood of the suspect being in the
                                                     -99-

 1                  apartment following that conversation with Lieutenant Joyner?
 2
 3              A. Well, based off my experience, I believe that the guy was not there. I
 4                 figured this was something we had to do, we had to clear the apartment
 5                 before we continue with the search. But in my mind, I was prepared to
 6                 do yard searches for several more hours.

 7   Tr. VII:168.

 8          Although it apparently was Lt. Mufarreh (with Lt. Joyner) who spoke directly with Ellis

 9   while at Lt. Joyner’s location at 76th and Hillside, Lt. Mufarreh and Lt. Joyner were joined by

10   others, including Acting Lt. Alexander and Sgt. Sakai. According to Lt. Joyner, Acting Lt.

11   Alexander and Sgt. Sakai probably participated in the follow-up discussion conducted by the

12   police officers in the vicinity of Lt. Joyner’s police cruiser, comparing notes on the possible

13   location of the suspect, leads being developed, and search strategies (notably, the expected arrival

14   of the tracking canine). Although Lt. Joyner’s testimony does not address what level of detail

15   was shared with Sgt. Sakai concerning Ellis’s information, and the extent to which Lt. Joyner

16   may have believed Ellis’s information should be relied upon, Sgt. Sakai subsequently

17   participated in the entry of the 74th Avenue apartment that resulted in his death, and the death of

18   Sgt. Romans. Multiple witnesses testified concerning later conversations that were held in

19   connection with the plan to enter the 74th Avenue apartment, and none of the witnesses indicated

20   Sgt. Sakai expressed any reservations about this entry tactic. It therefore appears Sgt. Sakai, too,

21   evaluated the likelihood that the suspect was present in the 74th Avenue apartment to be remote.

22   This is true notwithstanding that Sgt. Sakai participated in the discussion with Lt. Joyner on

23   Hillside near Ellis, and also notwithstanding Sgt. Sakai being the only officer to acknowledge

24   hearing the broadcast report confirming that someone was observed in the 74th Avenue
                                                      -100-

 1   apartment.

 2           Finally, I note again the BoI report is equivocal whether all the relevant information

 3   actually was transmitted to Lt. Mufarreh and others. Although praising Lt. Joyner and Lt.

 4   Lindsey for doing a “good job developing information from informants and community

 5   members,” the BoI report observes “Unfortunately, such information was not transmitted,

 6   disregarded, or not received by persons who had place themselves in decision-making command

 7   and control capacity. JX 3 p. 22 (emphasis added).37

 8           In sum, although Lt. Mufarreh’s assessment of the likelihood the suspect would be

 9   present in the 74th Avenue obviously was wrong, and tragically so, his conclusion and his

10   analytical approach was not as unreasonable as the IAD report would seem to suggest:

11           •    Both Lt. Joyner and Lt. Lindsey seem to have believed with some certainty that the

12                intelligence placing the suspect in the apartment was correct. However, their

13                conviction in part was informed by the fact that they each had long histories with their

14                informants (Ellis and Walker) that gave their reports enhanced credibility, and it is

15                unclear the extent to which their personal history with the informants and confidence

16                in them was relayed to others.

17

18           •    Although Lt. Lindsey later would report to the Homicide Division that Elaine Walker

19                “was sure” the suspect was in the 74th Avenue apartment, and that Walker actually



     37
        The BoI makes this observation in support of its criticism that the March 21 incident probably would
     have been better managed if a true command post had been established, which presumably would have
     made it more possible for the Incident Commander and staff to receive all such reports in a central
     location and assemble “the parts” into a more-coherent “whole.”
                                                      -101-

 1               had seen the suspect in a yard almost adjacent to the 74th Avenue apartment during

 2               the moments after the initial traffic stop shooting, it is unclear how much of this

 3               information was transmitted to Lt. Mufarreh and others, and in what form. Further,

 4               Lt. Lindsey’s account of the efforts by women near 74th Avenue to deflect police

 5               officers away from the apartment further supported the likelihood the suspect was

 6               inside the apartment, but it is unclear that Lt. Lindsey reported the “excited women”

 7               encounter to anyone. Lt. Mufarreh and Capt. Orozco repeatedly have stated they did

 8               not receive this information from Lt. Lindsey, and they testified to this effect while

 9               under oath. This Arbitrator found them credible. On the other hand, Lt. Lindsey was

10               not called to testify, and her representations have not been subject to challenge or

11               clarification by cross-examination under oath. Further, I find it significant this

12               information was not even shared fully with Lt. Joyner, either before the entry into the

13               apartment or after. Therefore this Arbitrator has serious reservations whether this

14               information was communicated by Lt. Lindsey to Lt. Mufarreh, Capt. Orozco and

15               Deputy Chief Kozicki, as claimed; at the very least, it does not appear to have been

16               communicated effectively.38


     38
         The IAD Report credited Lt. Lindsey’s claim that she advised Lt. Mufarreh, Capt. Orozco and Deputy
     Chief Kozicki of information she had gathered suggesting the suspect was in the apartment. As part of
     its rationale for crediting Lt. Lindsey’s version, the IAD Report stated:

             Lieutenant Lindsey has no fathomable motive to keep this information to herself and less
             of a reason than Lieutenant Mufarreh, Captain Orozco, and Deputy Chief Kozicki to lie
             about having shared the information since she had no role in the decision to send the
             team inside the suspect’s residence.

     JX 3 p. 330. I agree Lt. Lindsey had “no fathomable motive” not to share relevant information that she
     possessed, but this begs the key question: “Did Lt. Lindsey, in fact, share the information?”
                                                        -102-

 1           •   From his testimony, Lt. Joyner’s conviction that Ellis’s report was “probably right”

 2               was tempered by his (Lt. Joyner’s) recognition that no one had reported actually

 3               seeing the suspect enter the 74th Avenue apartment after the initial traffic stop

 4               shootings, and also the recognition that Lt. Mufarreh and others presumably were

 5               receiving different leads from other sources.

 6           •   Others at the scene (Sgt. Andreotti, Sgt. Sakai) who spoke with Lt. Joyner and were

 7               near Ellis while these events were unfolding apparently also came to the conclusion

 8               the suspect was unlikely to be present at the 74th Avenue apartment.

 9           •   Although the BoI report points to the possibility that Lt. Mufarreh received and

10               “disregarded” relevant information about the suspect’s location, the BoI also

11               recognized the possibility that relevant information was not “transmitted” to Lt.

12               Mufarreh and others, or was not “received” by them.

13           Lt. Mufarreh and Capt. Orozco are highly experienced police officers who have been

14   promoted steadily into leadership positions by the Oakland Police Department. I found them to

15   be serious, committed police officers. Although they may have misjudged the information being



        I make no findings regarding the truthfulness of Lt. Lindsey’s claim that she shared her information
     with her colleagues. However, if the information was shared, it does not appear to have been shared very
     effectively.

         With respect to the second element of the IAD finding, i.e., that Lt. Lindsey had “less of a reason to
     lie” about sharing the information, the IAD conclusion makes no sense to this Arbitrator. Lt. Lindsey
     had only recently been elevated to the lieutenant rank, and she was both the area commander and the city-
     wide watch commander on March 21. Until formally relieved by higher-ranking OPD personnel, she was
     supposed to be the Incident Commander, i.e., the person in charge. I respectfully offer that if,
     hypothetically, Lt. Lindsey had failed to provide key information to Lt. Mufarreh et al, and if this failure
     had led others in command positions to make poor choices that resulted in the death of other members of
     the force, then Lt. Lindsey’s concerns for her position and reputation would be comparable to those of Lt.
     Mufarreh and Capt. Orozco.
                                                     -103-

 1   provided to them, particularly the information being provided by Lt. Joyner and Ellis, I do not

 2   believe at all they disregarded it. Further, the record in this case leaves serious questions

 3   whether the information that had been developed by Lt. Lindsey was shared effectively with her

 4   colleagues.

 5

 6   IV.    ISSUES RELATING TO THE DECISION TO USE “DYNAMIC ENTRY,”
 7          SENDING THE TACTICAL TEAM INTO THE 74TH AVENUE APARTMENT.
 8
 9          A. Testimony relating to “best practices” and possible weaknesses in OPD’s tactical
10             operations.

11          Although Capt. Hansen primarily was called to testify about the BoI’s deliberations and

12   findings, he provided substantial testimony relating to tactical procedures, including principles

13   and “best practices.” In several key respects, he expressed reservations concerning OPD

14   practices, as well as some of the views expressed by Capt. Tracey, who generally was viewed by

15   OPD police officers as the Department’s in-house tactical expert.

16          Capt. Hansen’s career has been with the LA County Sheriff’s Office. He has extensive

17   experience commanding tactical operations. He has served as a SWAT instructor in more than

18   30 states through the National Tactical Officers Association (NTOA), and he has served on the

19   NTOA board. This Arbitrator found Capt. Hansen’s testimony to be especially insightful; for

20   anyone interested in understanding possible systemic problems that contributed to the ill-advised

21   decision to enter the 74th Avenue apartment, Capt. Hansen’s testimony is especially worthwhile

22   reading.

23          In brief, Capt. Hansen expressed the view that the “dynamic entry” option used by OPD

24   at the 74th Avenue apartment on March 21, 2009, is a high-risk tactic that should be used as a
                                                     -104-

 1   “first option” only in very limited circumstances, and it was inappropriate in this instance. As

 2   this Arbitrator understands Capt. Hansen’s testimony, unannounced dynamic entry may be

 3   appropriate in situations where there are hostages who are in danger, or where there is critical

 4   evidence that needs to be preserved that might be destroyed if a normal call-out procedure was

 5   used first. If dynamic entry is to be used, it is essential that it be successful, and the key element

 6   to having a successful dynamic entry is for the Tactical Team to surprise the occupants of a home

 7   entirely. As an example, Capt. Hansen pointed to unannounced entries that might occur at 4:00

 8   or 5:00 AM, when people normally would be asleep and unprepared for a SWAT Team entering

 9   their unit. Capt. Hansen testified it is NTOA policy that dynamic entry only should be

10   considered if there is a problem that justifies its use; stated differently, dynamic entry should be

11   viewed as an exceptional tool, not a routine tool.

12          Although Lt. Mufarreh and his colleagues seemed very focused on whether the suspect

13   (Mixon) might have been in the 74th Avenue apartment, Hansen viewed this as largely irrelevant

14   in determining what procedures should have been used. He acknowledged that the decision-

15   making environment on March 21 – following the shooting deaths of two police officers – was

16   especially difficult. He has worked before in cases involving the death of a police officer, and it

17   was his experience that situations are a “mess” to manage. However, in his view, these are

18   exactly the situations when it is most important to follow protocol and to avoid short-cutting

19   procedures.

20          From his work investigating the March 21 incident, and reviewing OPD records, Capt.

21   Hansen concluded there were a number of problems with OPD policies.

22          One notable issue involved training, which also implicates the culture of the tactical
                                                    -105-

 1   force. Capt. Hansen noted that tactical training typically is provided by two distinctly different

 2   types of individuals: instructors who learned tactical operations in the military, and instructors

 3   who come from a civilian law enforcement background. The perspective of a military operator is

 4   quite different from the perspective of civilian law enforcement. Capt. Hansen noted that in the

 5   military context, where a location is being stormed and conquered, it is possible the force might

 6   suffer a loss of life and still view the operation as a success. There may be a predisposition to the

 7   use of force, and once it is decided to enter a location there may be an inclination to continue

 8   moving forward to reach a final outcome – even if the Tactical Team encounters opposition, such

 9   as gunfire. In contrast, instructors with civilian law enforcement background are likely to be far

10   more conservative in opting for force strategies, focusing on non-force, non-lethal alternatives.

11          It was Capt. Hansen’s understanding that the most recent tactical training contracted by

12   OPD had been with a former Air Force Delta Force team member. Generally, it was Hansen’s

13   impression that, once OPD tactical command leadership decided it was necessary to enter a

14   location, there was a tendency to revert to a dynamic entry approach, sometimes even in

15   situations where this was inappropriate. This plainly was the case on March 21. Capt. Hansen

16   testified he attempted to learn more about OPD tactical operations, but he found the

17   Department’s maintenance of “after action packets” documenting the tactical operations that had

18   been implemented generally were unavailable.

19          With regard to the decision to enter the 74th Avenue unit, and the dynamic entry strategy

20   used, Capt. Hansen saw many deficiencies in the analytical process:

21          •   The apartment building had not been adequately scouted, and evacuation plans had

22              not been formulated in the event problems were encountered during the entry.
                                             -106-

 1   •   The Bearcat had been parked outside the 74th Avenue apartment for a lengthy period

 2       of time; if the suspect was in the unit, any hope for a surprise entry already had been

 3       lost, anyway.

 4   •   Inadequate consideration was given to the potential for harm to third parties,

 5       including other residents of the apartment building (who might be caught in a firefight

 6       because they had not been evacuated), as well as other persons who might have been

 7       present in the apartment with the suspect (such as the female who ran out of the unit

 8       during the firefight, fortunately without being injured).

 9   •   As a general proposition, the goal of the tactical operation should be to force the

10       target to leave his/her location and move in the direction of the police. Generally, the

11       risk to law enforcement staff is greatest when they enter the suspect’s territory, rather

12       than having the target leave and move to a different, less secure location.

13   •   By not announcing their presence and using other tools (throw-phones, cameras,

14       robots, bull horns, etc.), the Tactical Team missed an opportunity to learn more about

15       the situation, e.g., who (if anyone) was present in the apartment, the mind set of the

16       person(s) in the apartment, etc.

17   •   By not attempting to communicate with the suspect in the apartment, the Tactical

18       Team diminished the chance the suspect voluntarily would surrender, thereby

19       avoiding the use of force entirely and the risk of damage to persons or property.

20   •   Although the use of flash-bangs can be an effective tool, it was Capt. Hansen’s sense

21       that OPD over-relied on them. He noted that if the suspect was in a rear room when

22       entry was made (i.e., outside the range of the flash-bangs), the resulting light and
                                                       -107-

 1                 smoke might actually be more disorienting to the entry team than to the target.

 2                 Further, he noted flash-bangs can generate intense heat, and create a risk of fire.

 3          •      Capt. Hansen noted that, in his experience, it is fairly common for a Tactical Team to

 4                 spend substantial time staking out a target location, scouting the location, planning

 5                 evacuations, using tools such as throw-phones and bull horns, etc., only to learn at the

 6                 end that the target location was empty. In his view, this was normal and to be

 7                 expected.

 8          •      In Capt. Hansen’s opinion, the reasons offered by Lt. Mufarreh and Capt. Orozco for

 9                 not attempting other tactical strategies other than entry (bullhorns, evacuation, gas,

10                 etc.) simply did not make much sense.

11          Capt. Hansen was asked on cross examination to respond to some views expressed by

12   Capt. Tracey during his interview with IAD, found as JX 65, in response to questions posed by

13   Sgt. Floyd:

14          Floyd:      [T]here are a couple of things in this [IAD] investigation that are clear
15                      and that are not subjects of debate by the commanders that were out on
16                      the scene. The first is the suspect was known to be associated with the
17                      apartment, everybody agrees on that. The second is that the suspect
18                      was know to have been seen running in that direction after he killed
19                      [Sgt. Dunakin and Ofr. Hege]. [T]he third is that the firearm was not
20                      recovered and the fourth is that Lieutenant Joyner and his CI believe[d]
21                      the suspect to be inside the apartment. So knowing what was known at
22                      the time, and that’s how we have to judge this . . . would you say that it
23                      was a sound tactical decision on the part of Captain Orozco to send the
24                      team into that apartment without doing anything to establish a tactical
25                      advantage for them?
26
27          Tracey: The tactical advantage that we have is the Bearcat. . . We have
28                  overwhelming amount of firepower. . . We have highly skilled
29                  individuals. We have five of our best team leaders. . . I mean
30                  the best – I’m talking about the A team, going through that
                                                       -108-

 1                      door. That was it. So those are the advantages . . .

 2   JX 65 pp. 62-63.

 3            Capt. Hansen recalled having read Capt. Tracey’s interview comments previously. When

 4   asked about Tracey’s comments that the tactical advantages were the Bearcat, overwhelming

 5   firepower, superior tactical operators and Team Leaders, Capt Hansen responded:

 6                       I do remember reading it [Tracey’s comments.] And I remember
 7                 thinking to myself that that was wrong . . .
 8
 9                        He was wrong. Basically, those are all tools. The Bearcat is a tool.
10                 It’s a good tool, [great] tool. Firepower is a tool. And, of course, you
11                 have excellent people there that are in and of themselves highly trained
12                 tools.
13
14                       That’s not the same as tactics[. . . . T]hey’re components of what can
15                 be a tactical advantage. But misused, they don’t do you any good at all.
16
17                      I remember reading[39] I think that’s all well and good, but if he’s not
18                 holding all the cards, that doesn’t do any good. Bearcat is not doing any
19                 good in the living room or in the bathroom or in the back bedroom. . . . I
20                 remember reading it, now that you brought it to my attention, and I had
21                 some issues with what it said.

22   Tr. II:192.

23            Toward the conclusion of his testimony, this Arbitrator engaged Capt. Hansen in a

24   colloquy. Capt. Hansen confirmed it was his view that the decisions made by Lt. Mufarreh (and

25   ratified by Capt. Orozco and Deputy Chief Kozicki) on March 21 were not consistent with “best

26   practices.” Capt. Hansen confirmed that, in his opinion, standard OPD practices in some respects

27   were biased in favor of certain types of responses.




     39
          More likely, “thinking.”
                                                       -109-

 1           This Arbitrator posed the following question:40
 2
 3                 If Lt. Mufarreh or Captain Orozco was to say “Listen, we did it the way
 4                 that we do things in Oakland,” would it fair under those circumstances to
 5                 find them uniquely culpable for dereliction of duty if they are doing what
 6                 everybody has been doing in Oakland, even if it is inconsistent with best
 7                 practices and in some respects somewhat illogical?

 8   Tr. II:233.

 9           Captain Hansen described this as “a heck of a good question,” and after being advised by

10   the Arbitrator that the question specifically was focused on the method of entry, Captain Hansen

11   gave this answer:

12                 [Y]eah, it’s hard to beat guys up when that’s the only tool they’ve been
13                 given in their toolbox. It’s the only thing if you have a hammer and a nail,
14                 it appeared to me to some degree the dynamic entry was, if that’s what
15                 you’re talking about if you want to get specific, was the preferred method
16                 of entry and that’s what people have been trained and really know a
17                 different way, to be honest with you.

18   Tr. II:236 (emphasis added).

19           Additionally, with regard to the entire BoI process and its review of the tactical

20   operations performance on March 21, Capt. Hansen testified his role (and the role of the other

21   experts) was to measure the actions of the OPD staff against general industry standards (i.e.,

22   “best practices”). Tr. II:234. Although this probably is the appropriate measure for evaluating

23   OPD’s overall response to the incident, this Arbitrator questions whether it is the appropriate

24   standard for evaluating the individual culpability of employees, who should be measured against

25   the employer’s standard policies, the training they have received, and the employer’s commonly



     40
        I note the City objected to the question, basically protesting the implication that Lt. Mufarreh’s and
     Capt. Orozco’s decisions on March 21 might have been consistent with standard or common practice in
     Oakland.
                                                     -110-

 1   accepted practice.

 2           In this regard, I note two other areas that are problematic.

 3           First, there is a significant “gap” in OPD’s published policies. OPD General Order K-5

 4   (Tactical Operations Team) provides generally the Department’s procedure for structuring its

 5   tactical operations unit. Organizationally, the OPD Tactical Operations Teams are part of the

 6   Department’s Special Operations Section. The last substantive section of G.O. K-5 states:

 7               XI. SPECIAL OPERATIONS SECTION RESPONSIBILITIES
 8
 9               The Special Operations Section Commander shall insure the preparation
10               and maintenance of a written Tactical Team Policy and Procedure Manual
11               containing the standard operating procedures for the Entry Team, Sniper
12               Team and Hostage Negotiation Team. A copy of all policies and
13               procedures shall be forwarded to the Bureau of Field Operations Deputy
14               Chief for inclusion in the BFO Policy Manual.

15   JX 16 p. 16. Even though the version of G.O. K-5 included in the record is dated February 25,

16   2000, no such Policy and Procedure Manual had been issued as of March 21, 2009. Without a

17   published written policy, it would appear the actions of Tactical Teams largely were being

18   informed by whatever formal training they had received, coupled with prior experience.

19           Second, although not highlighted by the advocates or witnesses, I note the following

20   provision of General Order K-5 listing the possible options that may be considered when engaged

21   in a tactical operation:

22           X. INCIDENT RESOLUTION
23
24           A. Incident resolution will be accomplished through courses of action appropriate
25              for the circumstances. In any event, a resolution will be accomplished with
26              the utmost consideration given to the safety of citizens, police personnel and
27              all involved parties. Common causes of action, which may be used alone or in
28              combination, are as follows:
29
                                                     -111-

 1              1.    Containment
 2              2.    Evacuation
 3              3.    Wait the situation out
 4              4.    Establish control over “environmental conditions,” (e.g., alter telephone service,
 5                    cut off water/gas/electricity, add spotlights or sound at night to deprive subject
 6                    of sleep.
 7              5.    Negotiations
 8              6.    Order subject(s) to come out and surrender.
 9              7.    Use of chemical agents and/or other less than lethal weapons
10              8.    Sniper employment
11              9.    Breach and entry of objective site
12              10.   Mobile operations

13   JX 16 p. 15. While all of the identified operations are qualified by the need to be “appropriate”

14   and considered in light of the safety of the public, police personnel and “all involved parties,” the

15   options on the “menu” are presented as if they were equally acceptable, without any suggestion

16   of a force continuum or escalation policy. As Capt. Hansen (who was engaged by OPD because

17   of his tactical expertise) described in some detail, “best practices” dictate that certain types of

18   tactical operations represent such substantial risks that their use should be severely restricted, and

19   in many instances it would be better simply to “walk away” from an opportunity to engage a

20   suspect in a tactical operation rather than incur the risk. In this Arbitrator’s view, it is somewhat

21   striking that OPD’s governing policy for Tactical Teams fails to incorporate this concept.

22

23          B. Lt. Mufarreh’s and Capt. Orozco’s credibility and truthfulness.

24          It is necessary to address squarely suggestions found in the IAD and BoI reports that Lt.

25   Mufarreh and/or Capt. Orozco’s explanations relating to the decision to order entry into the 74th

26   Avenue apartment were confused or dishonest.

27              As discussed in Section III, supra, it is evident Lt. Mufarreh (and presumably Capt.
                                                    -112-

 1   Orozco) had information clearly indicating the suspect had been associated with the 74th Avenue

 2   apartment. This information certainly was received from Lt. Joyner and Ellis; it is less clear the

 3   extent to which Lt. Lindsey had transmitted the corroborating evidence she had received from

 4   Walker, or had reported her encounter with the group of excited women in the vicinity of the

 5   apartment. But there was enough information that Lt. Mufarreh responded, setting up an inner

 6   perimeter around the 74th Avenue building, stationing the Bearcat opposite the building, and

 7   assigning Sgt. Andreotti to lead the designated arrest team in the event the suspect was

 8   apprehended.

 9          With the City, I agree there are multiple and troubling contradictions between what Lt.

10   Mufarreh, Capt. Orozco and Deputy Chief Kozicki knew, the decisions they made based on their

11   knowledge, and their explanations for their decisions.

12          According to Lt. Mufarreh, he (Lt. Mufarreh) came away from his meeting with Lt.

13   Joyner and Ellis convinced there was little chance the suspect was in the 74th Avenue apartment,

14   and this is consistent with his view that the apartment simply needed to be “cleared” (i.e., entered

15   and checked out, so it could be removed as a location of interest). However, when Sgt. Andreotti

16   offered personally to clear the unit with a second officer – presumably, just acting as patrol

17   officers – Lt. Mufarreh directed them to wait so this activity could be turned over to the Tactical

18   Operations Team. On the one hand, Lt. Mufarreh’s message seemed to be, “I don’t think the

19   suspect is there,” while on the other hand Lt. Mufarreh seemed to be acting with a level of

20   caution suggesting a real possibility the suspect was present.

21          This ambiguity or inconsistency in Lt. Mufarreh’s (and Capt. Orozco’s) decision making

22   extends to the decision to enter the 74th Avenue apartment, rather than pursue other, less radical
                                                    -113-

 1   options (including, per G.O. K-5, Article X: containment, evacuation, ordering subjects to come

 2   out and surrender, negotiations, chemical agents, etc.). During various interviews after the

 3   March 21 events, and in their testimony, Lt. Mufarreh and Capt. Orozco provided a variety of

 4   explanations why alternatives other than “breach and entry of objective site” allegedly were

 5   considered and rejected. As a result, the apartment building on 74th Avenue never was

 6   evacuated prior to the entry into the apartment unit, nor were basic steps taken to ascertain

 7   whether the suspect (or anyone else) actually was present in the apartment.

 8          This Arbitrator heard Lt. Mufarreh’s and Capt. Orozco’s testimony on these questions,

 9   and I have reviewed the record in the case. While I agree that much of the rationale for their

10   decisions was questionable, and I am not fully persuaded Lt. Mufarreh and Capt. Orozco and

11   Deputy Chief Kozicki really engaged in an appropriate deliberation before directing the entry into

12   the 74th Avenue apartment, I generally do not believe Lt. Mufarreh and Capt. Orozco have

13   engaged in conscious dishonesty, as suggested by the IAD and BoI reports. The basic truth, I

14   believe, is really much simpler: based on the information he had received about the suspect’s

15   “association” with the 74th Avenue apartment (which, as noted supra, may not have included a

16   full and effective airing of the information that had been gathered by Lt. Lindsey), Lt. Mufarreh

17   in particular was quite convinced it was extremely unlikely the suspect would be present in the

18   apartment. Therefore, the entry to the apartment simply was an exercise in “clearing” the

19   location so other aspects of the search for the suspect finally could begin. In other crime

20   situations, it is this Arbitrator’s understanding that such “clearing” might have been performed by

21   patrol units as part of a routine search; what was unusual in this instance was the decision to use
                                                       -114-

 1   a Tactical Operations Team employing a dynamic entry approach.41 In a way, Lt. Mufarreh may

 2   even have felt he was being conservative using a trained, equipped and armed Tactical Team to

 3   “clear” the apartment unit, rather than allowing patrol officers to perform the task. And as

 4   discussed in the prior section, there is nothing in OPD’s written policies barring the use of entry

 5   as a “first response” when using Tactical Teams. Capt. Hansen expressed the opinion that OPD

 6   was somewhat over-reliant on dynamic entry techniques (once entry was elected).

 7           Although the entry action was poorly conceived and implemented in multiple respects, I

 8   do not believe Lt. Mufarreh or Capt. Orozco were dishonest in their accounts of their actions.

 9

10   V.      WHETHER LT. MUFARREH AND CAPT. OROZCO IMPROPERLY ASSUMED
11           TACTICAL CONTROL, WHEN NEITHER WAS CERTIFIED TO PERFORM
12           TACTICAL COMMAND DUTIES ON MARCH 21, 2009.

13           The command structure for tactical operations is governed primarily by General Order K-

14   5. Section II.B. of this General Order indicates Tactical Operations Teams, when deployed, will

15   be under the command and control of a Tactical Commander. OPD’s primary Tactical

16   Commander is the Special Operations Section Commander, although additional Tactical

17   Commanders may be designated by the Chief of Police to serve in the absence of the SOS

18   Commander. Additionally, Assistant Tactical Commanders can be designated to serve during

19   operations.

20           The Tactical Commander is subordinate to the Incident Commander, and under G.O. K-5

21   decisions to engage in tactical operations are made by the Incident Commander. However, per


     41
        Ironically, if Lt. Mufarreh had asked someone in patrol to check out the apartment, it is quite possible
     many of the arguments relating to his possible assumption of tactical command duties might not have
     been raised. However, it is almost certain a different set of questions would been posed.
                                                    -115-

 1   Section I.D., once a Tactical Commander and Tactical Team Leader arrives at an incident scene,

 2   Tactical Operations Team members are to receive orders only from the tactical operations chain

 3   of command (Team Leader, Tactical Commander, Incident Commander).

 4          Capt. Orozco previously had been credentialed to serve as a Tactical Commander, but he

 5   had relinquished this position prior to March 21. Lt. Mufarreh had been designated to become a

 6   Tactical Commander, but he had not yet been credentialed. The City argues both officers

 7   improperly functioned as Tactical Commanders at various points, in violation of OPD rules.

 8          From a purely technical standpoint, the City’s argument may have some merit. However,

 9   in this Arbitrator’s view, the actions of Lt. Mufarreh and Capt. Orozco must be evaluated in the

10   full context of the extraordinary events of March 21.

11          With regard to Capt. Orozco, it must be noted that he had relatively recently served as a

12   Tactical Commander for the Department, so he had the appropriate skill level. On March 21, it

13   appears Capt. Tracey was the sole person potentially available within OPD who was properly

14   authorized to serve as Tactical Commander. Capt. Tracey went to the hospital following the

15   initial traffic stop shootings; knowing he (Tracey) would not be available “on the streets” in the

16   event a Tactical Team response was needed, Tracey asked Capt. Orozco to be present and to

17   function as Tactical Commander, if needed. Given the emergency nature of the situation

18   confronting the Department, this request by Capt. Tracey does not strike this Arbitrator as

19   fundamentally unreasonable. Specifically, it must be noted that Capt. Orozco soon was joined by

20   Deputy Chief Kozicki, who never suggested that Capt. Orozco he was acting without proper
                                                      -116-

 1   authority and should “stand down” as Tactical Commander.42

 2          Lt. Mufarreh was “on site” for much longer than Capt. Orozco and Deputy Chief Kozicki,

 3   and he had been involved with the efforts to identify and locate the suspect. Lt. Mufarreh played

 4   a major role in developing the decision to enter the unit, but Lt. Mufarreh personally did not

 5   make the final decision to order entry into the 74th Avenue apartment. In fact, Lt. Mufarreh

 6   waited until more-senior officials arrived, without initiating any tactical action in reference to the

 7   apartment unit.

 8          The final approval of the plan to enter the apartment was made by Capt. Orozco, with the

 9   concurrence of Deputy Chief Kozicki. While it is true Lt. Mufarreh briefed the Tactical Team

10   before the entry, and such briefing is a function that ordinarily should be performed by the

11   Tactical Commander, Lt. Mufarreh did so under the supervision of Capt. Orozco. While this

12   procedure is not fully consistent with the letter of OPD regulations, the question of “who did the

13   briefing” is an incidental matter. Notably, Lt. Mufarreh’s role in briefing the Tactical Team did

14   not elicit any indication of concern from the Tactical Team members, or from others present at

15   the scene with substantial tactical experience (Capt. Orozco, Deputy Chief Kozicki, Deputy

16   Chief Breshears).

17

18   VI.    WHETHER LT. MUFARREH AND CAPT. OROZCO VIOLATED OPD POLICY
19          PROHIBITING THE USE OF “AD HOC” TACTICAL OPERATIONS TEAMS.

20          The officers who were directed to make entry into the 74th Avenue apartment were

21   qualified tactical operators. Indeed, most were sergeants who typically functioned as Team


     42
        Capt. Tracey suggested it was not unusual for senior staff to work “out of role” when needed. See JX
     65 pp. 56-58
                                                      -117-

 1   Leaders, and therefore were among the most experienced tactical operations staff within OPD.

 2   However, these particular individuals were members of several different Tactical Team groups,

 3   and they did not have a history of training together as a team.

 4          General Order K-5 Section I.C. expressly prohibits the use of “ad hoc” Tactical

 5   Operations Teams:

 6                Members of the Tactical Operations Team are specially trained and
 7                equipped, but they are most effective when deployed in team elements
 8                with proper support and command structure. Therefore, while it is
 9                appropriate for Incident Commanders to utilize individual Tactical
10                Operations Team members for containment and/or response to exigent
11                circumstances pending the arrival of the Tactical Operations Team, they
12                shall not build ad hoc teams to handle critical incidents or use Team
13                specialized firearms or equipment in lieu of calling out the Tactical
14                Operations Team.
15
16   Emphasis supplied.

17          Because the group that conducted the entry had not trained together, and was not part of

18   an “established team,” the City argues Lt. Mufarreh and Capt. Orozco violated G.O. K-5 by

19   improperly creating an “ad hoc” team. Grievants and the Union counter that the crew was not an

20   improper ad hoc team, arguing that an ad hoc team would occur if a person in command

21   assembled a “mixed” entry team consisting of both trained tactical operators and “others” –

22   presumably, patrol officers.43 In this case, the entry team members all were trained tactical

23   operators.

24          It is evident there is ambiguity in the terminology used in G.O. K-5. Either interpretation

25   is plausible. For purposes of this Decision, what is “key” is that the language at issue was drafted



     43
         Capt. Hansen was asked to review the language of G.O. K-5 barring the use of ad hoc teams, and his
     interpretation was the same as the Union’s. Tr. II:190.
                                                    -118-

 1   by OPD, and therefore any ambiguity in the text properly is held against the Department.

 2   Further, I note that OPD’s Tactical Commander, Capt. Tracey (when interviewed by IAD) not

 3   only did not express objection to using a Tactical Team consisting largely of Team Leaders (and

 4   not an established team of leaders and operators who had practiced together), but lauded the

 5   group that entered the apartment on March 21 as the “A team.” I therefore find Lt. Mufarreh and

 6   Capt. Orozco did not violate the G.O. K-5 prohibition against creating and using ad hoc Tactical

 7   Operations Teams.

 8

 9   VII.   THE WARRANTLESS SEARCH CONCERN.

10          As the City correctly points out, there is a conundrum relating to the possible legality of

11   ordering a warrantless search into the 74th Avenue apartment. If Lt. Mufarreh and Capt. Orozco

12   genuinely believed the suspect was not present in the apartment, then it is likely any search that

13   was ordered without a warrant would be deemed to violate the Fourth Amendment’s “search and

14   seizure” provision and would be illegal, violating the rights of the apartment occupants and

15   potentially rendering any materials seized inadmissable at a later trial. However, if it was

16   believed that the suspect had fled to the apartment and was present, the warrantless search might

17   fall within the “fresh pursuit” exception to the Fourth Amendment and likely would pass

18   Constitutional muster.

19          Lt. Mufarreh and Capt. Orozco are police officers, and not lawyers. Nonetheless, they

20   have substantial seniority, and on March 21 occupied leadership positions. Although Fourth

21   Amendment issues and the need to obtain warrants sometimes can be complicated, one would

22   hope that senior, experienced police leaders would appreciate the legal problems tied to entering
                                                    -119-

 1   a home without first obtaining a warrant, in situations where they do not believe a suspect to be

 2   present.

 3          Lt. Mufarreh’s and Capt. Orozco’s belief that the suspect was unlikely to be in the

 4   apartment appears to have been an essential premise for the loose manner in which the entry was

 5   prepared and executed. As such, a warrantless entry and search probably would have improper.

 6   Their plan of action, however, was sanctioned by Deputy Chief Kozicki,44 who de facto was

 7   recognized as the Incident Commander at the time of the entry.

 8          In this Arbitrator’s view, this inconsistency noted by the City primarily raises questions

 9   about the type of training being provided to police officers, especially Tactical Team members

10   and Tactical Commanders. On the particular facts of this case, I am unpersuaded this specific

11   concern properly is the basis for a “gross dereliction of duty” finding.

12

13   VIII. CONCLUSION, AND OBSERVATIONS REGARDING THE WINGATE
14         ARBITRATION AWARD.

15          During the arbitration hearing and in its brief, the Union suggests the Department

16   somehow erred because it did not provide the Board of Inquiry with a copy of Arbitrator Harris’s

17   recently-issued award in the Wingate grievance. In the Union’s view, awareness of Arbitrator

18   Harris’s sharp criticism of the Department would have made it possible for the Board of Inquiry

19   to recognize that some of the issues raised in Sgt. Wingate’s case were identical or similar to

20   issues being raised again in this matter, thus suggesting broader problems with the Department’s



     44
        Unlike Lt. Mufarreh and Capt. Orozco, who were somewhat firm in their conviction the suspect was
     not likely to be in the apartment, Deputy Chief Kozicki (in statements to IAD) expressed some
     ambivalence about whether the suspect was likely to be present.
                                                      -120-

 1   response to critical incidents.

 2           I do not fault the Department for not providing the Board with a copy of Arbitrator

 3   Harris’s decision. After all, the charge to the Board of Inquiry was to examine the events of

 4   March 21, 2009, and not to re-litigate a separate, earlier labor-management dispute. However,

 5   for purposes of this Decision, I found Arbitrator Harris’s award to be informative and instructive,

 6   and I agree with the Union that there are meaningful parallels.

 7           In the matter involving Sgt. Wingate, it is poignant that Sgt. Wingate rapidly went from

 8   being a medal awardee one day “removing a violent and dangerous felon from the streets of

 9   Oakland” to being discharged the next (figuratively) for allegedly failing to follow procedures.

10   In her Award, Arbitrator Harris honed-in on the Department’s inconsistent imposition of

11   discipline, with the Department seeming to place all blame for possible violations of procedure

12   on Sgt. Wingate, while not holding more-senior level officers to account.45

13           Like Arbitrator Harris in the Wingate matter, it is this Arbitrator’s view that the

14   Department’s decision to discipline Lt. Mufarreh and Capt. Orozco by demoting them is unfair

15   and unbalanced, and therefore not supported by “just cause.”

16           Looking back, it is easy to see where mistakes were made, and how things should have

17   been done differently. And yes, Lt. Mufarreh and Capt. Orozco were at the center of some of the

18   errors; from observing these officers at the arbitration hearing, this Arbitrator believes they are

19   acutely aware of this.


     45
        The Wingate matter also involved allegations that Sgt. Wingate improperly had assembled an ad hoc
     entry team. Although the same issue is raised in this case, the context in Wingate was much different. In
     Wingate, the police staff “on the ground” never affirmatively activated a tactical call-out, so the
     applicability of G.O. K-5 in that instance was debatable. In the instant matter, tactical staff was
     summoned, and the entry into the 74th Avenue apartment was made by a tactical operations unit.
                                                         -121-

 1           In this Arbitrator’s view, however, the City’s decision to single out Lt. Mufarreh and

 2   Capt. Orozco for discipline does not adequately recognize the responsibility of others – including

 3   their organizational peers, and also some of the senior management of the Department. Like the

 4   matter involving Sgt. Wingate, the decision to discipline Lt. Mufarreh and Capt. Orozco has the

 5   appearance of the Department needing to hold someone individually accountable for the tragic

 6   deaths of Sgt. Romans and Sgt. Sakai, but not considering the possibility that senior-level

 7   management decisions also contributed to the chain of events.

 8           As discussed above, this Arbitrator rejects the City’s conclusion that Lt. Mufarreh de

 9   facto became the Incident Commander on March 21. The Department’s designated Incident

10   Commander (until the later arrival of Capt. Orozco and Deputy Chief Kozicki) was Lt. Lindsey.

11   This Arbitrator has no reason to doubt Lt. Lindsey’s capability and devotion to the force, but at

12   the time of the event she was inexperienced in this kind of command role and (as recognized by

13   the BoI) overwhelmed. Further, OPD had not provided an effective back-up mechanism for her

14   or for other similarly-situated new patrol lieutenants. Although the BoI’s report plainly points to

15   the Department leadership’s responsibility for creating a command environment that had

16   problems, this leadership failure is not recognized in the disciplinary action.46

17           The IAD and BoI findings relating to Lt. Mufarreh’s awareness of the suspect’s likely

18   location at the 74th Avenue apartment are highly problematic and flawed. Although IAD and

19   BoI posit that information about the likely location of the suspect was “not transmitted,

20   disregarded, or not received ,” the thrust of the reports presumes only the second of these



     46
         With regard specifically to Lt. Lindsey’s situation, I also note the BoI’s finding that she received little
     effective support from her boss, Capt. Rachal.
                                                    -122-

 1   possibilities, i.e., that Lt. Mufarreh (and Capt. Orozco) disregarded key information. In this

 2   Arbitrator’s view, the City at most has established that Lt. Mufarreh may have misjudged the

 3   reliability of the information that he received from Lt. Joyner and his confidential informant;

 4   even with regard to this information coming from Lt. Joyner, the extent to which Lt. Mufarreh

 5   erred is uncertain, where Lt. Joyner acknowledged that the informant may not have impressed Lt.

 6   Mufarreh as reliable (based merely on appearance), and where it is unclear that Lt. Joyner had a

 7   full opportunity in the midst of the crime response to delve into his (Lt. Joyner’s) history with the

 8   informant, and thereby bolster Lt. Mufarreh’s appreciation of Ellis’s reliability. With regard to

 9   Lt. Lindsey’s information – both from her informant (Walker), as well as her impressions from

10   the “excited women” gathered near the 74th Avenue apartment – it is completely unclear, based

11   on the evidence presented in this arbitration, that this information was shared adequately with Lt.

12   Mufarreh, Capt. Orozco and Deputy Chief Kozicki.

13          As Capt. Hansen described very effectively, the decision to enter the 74th Avenue

14   apartment, using a Tactical Operations Team, was a poor decision that was inconsistent with

15   “best practices” in the tactical operations field. Further, the analysis and methodology used to

16   approach the 74th Avenue apartment typically should be the same, independent of whether OPD

17   tactical command staff believed the suspect to be present in the home, or absent from the home.

18          I note Hansen’s testimony that, in his view, the charge to the BoI was to evaluate the

19   Department’s performance, and the performance of individual personnel, against “industry

20   standards” or “best practices.” Although an evaluation of the events in the context of “best

21   practices” is a very helpful exercise from a management perspective, so policies and procedures

22   and be reviewed and refined, it is this Arbitrator’s view this is not the proper measure for
                                                    -123-

 1   disciplinary purposes. Employees properly can be held accountable for complying with

 2   Department policies (to the extent they are consistently applied), and also can be expected to

 3   comply with standards developed through common agency practice and training. In these

 4   respects, the degree of culpability uniquely attaching to Lt. Mufarreh and Capt. Orozco in this

 5   case is considerably less clear.

 6          With regard to published policies, General Order K-5 (Section IX) lists “breach and entry

 7   of objective site” simply as one of ten common tactical options, that may be used together or

 8   separately. Although this section also emphasizes the importance of considering safety (of the

 9   public, police officers and others) when developing a plan of action, there is nothing in the

10   General Order itself to suggest that entry should be a rare event, and should be particularly rare as

11   a “first option.” Further, although G.O. K-5 (published in 2000) anticipated that the Special

12   Operations Division would develop a “Tactical Team Policy and Procedures Manual,” as of

13   March 2009 no such Manual had been developed.

14          With regard to training, Capt. Hansen expressed concern that OPD’s selection of tactical

15   training instructors seemed to be weighted toward instructors with prior military backgrounds,

16   which holds the potential for influencing tactical options toward a greater willingness to exercise

17   force. In this Arbitrator’s view, this kind of training-based bias was manifested in the decision to

18   breach and enter the 74th Avenue apartment, without first using a variety of tools to learn more

19   about who might be in the apartment, and establish communication with them. Notably, not only

20   did Lt. Mufarreh, Capt. Orozco and Deputy Chief Kozicki find this forceful entry tactic to be

21   acceptable, but there is no evidence that any of the members of the Tactical Team raised

22   questions about simply “clearing” the unit by using forced entry.
                                                    -124-

 1          For the above reasons, I find the Department did not have just cause to demote Lt.

 2   Mufarreh and Capt. Orozco. The grievance is sustained. Grievants shall be restored to their

 3   prior positions, with back pay, benefits and seniority.

 4   SO ORDERED.

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12   Washington, D.C.
13   May 16, 2013
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