1 Arbitration between:
3 OAKLAND POLICE OFFICERS
4 ASSOCIATION, RICARDO OROZCO AND
5 CHRISTOPHER MUFARREH,
9 CITY OF OAKLAND, CALIFORNIA,
12 regarding the City of Oakland’s decision to demote
13 Grievants Ricardo Orozco and Christopher Mufarreh.
15 BEFORE: PAUL GREENBERG, Arbitrator
18 For Oakland Police Officers Association, Ricardo Orozco and Christopher Mufarreh:
19 Michael L. Rains, Esq., Rains Lucia Stern, P.C., Pleasant Hill, California
21 For City of Oakland:
22 Karen L. Snell, Esq., San Francisco, California; Rachel Wagner, Esq., Bertrand, Fox & Elliott, San
23 Francisco, California
26 DECISION AND ORDER
29 I. OVERVIEW.1
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
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.
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
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
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.
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
10 Chief Anthony Batts. Chief Batts was appointed Chief in October 2009.
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.
15 Patrol Division
17 Capt. Richard Orozco. In March 2009, Capt. Orozco was the Area 2 (Central Oakland)
20 Lt. Chris Mufarreh. In March 2009, Lt. Mufarreh was one of the Area 2 lieutenants,
21 working under Capt. Orozco.
23 Lt. Ersie Joyner III.
25 Sgt. Richard Andreotti.
27 Sgt. Donald Covington. Area 3 Patrol Supervisor.
30 Criminal Investigation Division (CID)/Homicide
32 Lt. Brian Medeiros. CID Commander.
34 Sgt. Tony Jones.
36 Sgt. Rachel Van Sloten.
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.
5 Tactical Operations2
7 Sgt. Patrick Gonzalez. Team Leader
9 Sgt. Michael Beaver. Team Leader
11 Sgt. Mike Reilly. Team Leader
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.
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.
22 Internal Affairs
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.
27 Other OPD witnesses
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.
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.
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.”
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.
6 Witnesses not affiliated with the Oakland Police Department
8 Capt. Phillip Hansen. Capt. Hansen is employed by the Los Angeles Sheriff’s office. He
9 served on the Independent Board of Inquiry.
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.
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.
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
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
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.
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).
1 Area 3 predominantly consisted of East Oakland, and was commanded by Captain Anthony
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.
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.
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.
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.
1 B. The traffic stop; the shooting of Sgt. Dunakin and Ofr. Hege; the police initial
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
21 Although not highlighted in the incident reports, it appears a neighborhood resident,
A lengthy summary of the relevant OPD communications on March 21 between 1:04 PM and 3:13 PM
is found at JX 7.
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.”
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.
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
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
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.”
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.
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
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:
17 I. COMMAND OF CRIME SCENE/RESPONSIBILITIES FOR
18 PRELIMINARY INVESTIGATIONS
20 * * * *
22 E. Ranking Officer at the Scene of the Crime
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.
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.
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
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
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
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.
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.
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
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
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
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,
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.
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.
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
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.
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
A transcript of Rush’s phone conversation with Sgt. Pope in Communications is found at JX 7 pp. 14-
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.
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.
“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
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.
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
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.
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.
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
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.
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
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.
24 Tr. VI:220.
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.
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 . . . ?
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.
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
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
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.
18 F. Efforts to mobilize the full array of tactical support elements by activating a “blue
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
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.
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
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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
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
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.
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.
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
Sgt. Reilly was the last to arrive at the location, arriving only after the final briefing already was in
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.
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,
1 Ofr. Omega Crum, Sgt. Knight) to retrieve Mixon’s image from the database and print copies for
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.
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.
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
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.
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
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
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.
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)
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.
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
12 Id. (emphasis added).
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
25 MOR 234.12-1 Commanding Officers – Gross Dereliction of Duty
27 234.12 COMMAND – The inspection, direction, and control of personnel
28 under his/her command to assure the proper performance of duties
1 and compliance with established rules, regulations, policies and
2 procedures. Providing for continuation of command and/or
3 supervision in his/her absence.
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.
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:
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
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
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.
36 These facts, taken together, are clearly constitutive of gross dereliction of
37 duty given their seriousness and blatancy.
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:
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
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.
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.
12 These acts, taken together, are clearly constitutive of gross dereliction of
13 duty given their seriousness and blatancy.
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:
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
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.
21 These acts, taken together, are clearly constitutive of gross dereliction of
22 duty given their seriousness and blatancy.
24 MOR 398.80-1 Truthfulness
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).
33 MOR 370.45-1 Reports and Bookings
35 370.45 REPORTS AND BOOKINGS - No member or employee shall
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.
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.
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
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
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.
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.
26 Lieutenant Lindsey stated she also told Captain Rachal this information. Captain
27 Rachal stated he did not recall being told this.
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.
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.
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.
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
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.
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
19 JX 1 pp. 325-31 (emphasis supplied).
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
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.
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
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.
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
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:
12 5. Personnel
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.
19 BoI Finding: Lieutenant Drennon Lindsey: APPROPRIATE COMMAND –
20 with qualification
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.
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.
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.
20 BoI Recommendation:
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.
37 BoI Finding: Lieutenant Chris Mufarreh GROSS DERELICTION of DUTY
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
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.
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.
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.
29 Lieutenant Chris Mufarreh – GROSS DERELICTION of DUTY
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.
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.
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
1 contained inside the apartment, however, Lieutenant Mufarreh failed to
2 exercise due caution with regard to the tactical plan.
4 • Lieutenant Mufarreh originated the plan to have members of the ad hoc
5 Entry Team enter and clear the suspect's residence.
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
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.
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.
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.
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.
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.
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
1 firefight within the building.
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.
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.
13 BoI Finding: Acting Lieutenant Blair Alexander: APPROPRIATE COMMAND
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.
21 BoI Finding: Lieutenant Ersie Joyner: APPROPRIATE CONDUCT
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.
31 BoI Finding: Captain Ricardo Orozco: GROSS DERELICTION of DUTY
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. 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
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
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.
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.
9 Captain Ricardo Orozco — GROSS DERELICTION of DUTY
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.
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.
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.
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.
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
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
48 • Captain Orozco was responsible, in part, for developing the plan to form
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.
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.
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
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.
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.
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.
30 • As the Tactical Commander, Captain Orozco was primarily responsible
31 for the tactical decisions that were made.
33 BoI Finding: Captain Anthony Rachal: MINIMALLY APPROPRIATE
34 Command Conduct – with Qualifications
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,
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.
11 BoI Recommendation:
12 The OPD Chief of Police should identify remedial measures to ensure that
13 this commander’s minimal performance is corrected.
15 BoI Finding: Deputy Chief David Kozicki: GROSS DERELICTION of DUTY
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.
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.
41 Deputy Chief David Kozicki - GROSS DERELICTION of DUTY
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
1 Captain Orozco and Lieutenant Mufarreh.
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.
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.
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.
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.
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.
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.
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.
48 • As the Incident Commander, Deputy Chief Kozicki was ultimately
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.
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
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
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.
6 V. THE DECISION TO IMPOSE DISCIPLINE (DEMOTION), AND SUBSEQUENT
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
Although a single, joint hearing was held, Brann opted to submit two reports, addressing separately
the proposed actions against Lt. Mufarreh and Capt. Orozco.
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.
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
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.
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
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
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.
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.
Several of the persons principally involved with developing the plan of action had substantial tactical
operations experience, including Kozicki and Sgt. Romans.
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.
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:
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
1 or death. Roche’s actions were reasonable and within Departmental
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.
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:
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,
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
Asst. Chief Jordan was a voting member of the EFRB.
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.
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
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.
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).
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
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.
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
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-
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.
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.”
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
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
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
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.
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.
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.
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
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.
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.
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.
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
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
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
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
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.
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
24 The evidence plainly shows there were two distinct “camps” among the OPD officers in
25 their evaluation of the 74th Avenue apartment.
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
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:
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
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
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.
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
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,
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.
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.
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.
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:
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
1 apartment following that conversation with Lieutenant Joyner?
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
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.
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
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.”
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
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?”
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
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.
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
6 IV. ISSUES RELATING TO THE DECISION TO USE “DYNAMIC ENTRY,”
7 SENDING THE TACTICAL TEAM INTO THE 74TH AVENUE APARTMENT.
9 A. Testimony relating to “best practices” and possible weaknesses in OPD’s tactical
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
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
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
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
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.
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
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
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?
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
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 . . .
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
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.
17 I remember reading 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.
More likely, “thinking.”
1 This Arbitrator posed the following question:40
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
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
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
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
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:
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.
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.
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
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
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
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.
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
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
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.
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
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).
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
Capt. Tracey suggested it was not unusual for senior staff to work “out of role” when needed. See JX
65 pp. 56-58
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.
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
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
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.
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.
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
1 a home without first obtaining a warrant, in situations where they do not believe a suspect to be
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.
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
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.
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.
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.
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
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.
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
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.
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.
12 Washington, D.C.
13 May 16, 2013