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Arbitration between:

OAKLAND POLICE OFFICERS


ASSOCIATION, RICARDO OROZCO AND
CHRISTOPHER MUFARREH,
Grievants,
and

CITY OF OAKLAND, CALIFORNIA,


Employer/Respondent,
regarding the City of Oaklands decision to demote
Grievants Ricardo Orozco and Christopher Mufarreh.

BEFORE:

PAUL GREENBERG, Arbitrator

Appearances:
For Oakland Police Officers Association, Ricardo Orozco and Christopher Mufarreh:
Michael L. Rains, Esq., Rains Lucia Stern, P.C., Pleasant Hill, California
For City of Oakland:
Karen L. Snell, Esq., San Francisco, California; Rachel Wagner, Esq., Bertrand, Fox & Elliott, San
Francisco, California

DECISION AND ORDER


I.

OVERVIEW.1

On Saturday, March 21, 2009, four police officers employed by the Oakland Police
Department were shot and killed in the line of duty, all at the hands of a single individual.

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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.

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

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

Hege died from their wounds.

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

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

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

a history of violence.

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As part of the effort to apprehend the shooter and secure the neighborhood surrounding
the crime scene, soon after 3:00 PM (about 2 hours later) a Tactical Operations Team (or

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

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

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

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

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

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

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

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

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

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

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Both died within a short time.

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Lt. Christopher Mufarreh and Capt. Ricardo Orozco, along with Deputy Chief Dave
Kozicki, were in the chain of command that made the decision directing the Tactical Team into

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

were performed by OPD: an investigation by OPDs Homicide Division, and an investigation

conducted by the Police Departments Internal Affairs Division (IAD). Joint Exhibit (JX) 2, JX

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

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

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

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

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

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

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

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

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findings.

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

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

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

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

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

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

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and thus no discipline was imposed.

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

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

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

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II.

PRELIMINARY COMMENTS.
This Arbitrator presided over seven days of hearings in Oakland, and received testimony

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

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

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

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

subsequent investigations and proceedings:

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OPD Senior Management


Chief Anthony Batts. Chief Batts was appointed Chief in October 2009.
Asst. Chief Howard Jordan. Between February and October 2009, Asst. Chief Jordan
served as Acting Chief of Police. He was Acting Chief on March 21, 2009.
Patrol Division
Capt. Richard Orozco. In March 2009, Capt. Orozco was the Area 2 (Central Oakland)
commander.
Lt. Chris Mufarreh. In March 2009, Lt. Mufarreh was one of the Area 2 lieutenants,
working under Capt. Orozco.
Lt. Ersie Joyner III.
Sgt. Richard Andreotti.
Sgt. Donald Covington. Area 3 Patrol Supervisor.

Criminal Investigation Division (CID)/Homicide


Lt. Brian Medeiros. CID Commander.
Sgt. Tony Jones.
Sgt. Rachel Van Sloten.

-5Sgt. Louis Cruz. At the time of the arbitration hearing, Sgt. Cruz had left OPD and was
employed as an Inspector with Alameda County DA office.

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Tactical Operations2
Sgt. Patrick Gonzalez. Team Leader
Sgt. Michael Beaver. Team Leader
Sgt. Mike Reilly. Team Leader
Sgt. Sean Knight. Although assigned to the Tactical Operations Team, by March 2009
Sgt. Knight no longer was performing tactical entry work. His primary area of
responsibility involved electronic surveillance.
Dispatcher Nancy Parlette. Parlatte primarily works as a Communications Dispatcher,
but also has responsibilities as a Tactical Operations Dispatcher and a scribe
for the tactical operations unit.

Internal Affairs
Lt. Sean Whent. Lt. Whent was in charge of the Internal Affairs Division (IAD) from
January 2009 thru October 2010, and returned to IAD in May 2011.
Other OPD witnesses
Capt. Benson Fairow. In March 2009, Capt. Farrow was in charge of the Youth and
Family Services Division. At the direction of Acting Chief Jordan, Capt. Farrow
chaired the Force Review Board inquiry into the events of March 21, 2009.
Ofr. Kevin Kaney. In March 2009, Ofr. Kaney was assigned to the Gang and Gun
Investigation Task Force. At the request of his supervisor, Sgt. Sean Knight, on
March 21, 2009, Kaney reported to the crime scene and assisted with researching
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.

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Ofr. David Burke. Ofr. Burke works in the OPDs Information Technology (IT) unit. He
has responsibility for multiple IT programs, including the Field Based
Reporting program.

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

Witnesses not affiliated with the Oakland Police Department


Capt. Phillip Hansen. Capt. Hansen is employed by the Los Angeles Sheriffs office. He
served on the Independent Board of Inquiry.
Asst. Sheriff Brett Keteles. Asst. Sheriff Keteles is employed by the Alameda County
Sheriffs Office. He served on the Independent Board of Inquiry.
Thomas Leary. Mr. Leary is an investigator working for the Rains Lucia Stern law firm,
which represents the Grievants and the Oakland Police Officers Association.

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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III.

THE EVENTS OF SATURDAY, MARCH 21, 2009.

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A. The Oakland Police Departments Patrol Division command structure in March


2009; Lt. Mufarrehs voluntary agreement to work a March 21 shift.

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

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

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

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

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

Rachal.

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

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

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

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

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

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

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

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

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assigned to OPDs Homicide Division.

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

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changes to the Departments basic Patrol Division structure. One change was the implementa-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

particularly would be true on weekends.

Capt. Orozco testified he personally disagreed with Deputy Chief Kozickis approach,

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

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

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

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

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higher). In addition, because of the Departments seniority system, experienced, veteran police

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

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

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

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

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

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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.

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Despite these concerns and discussions about management staffing with Deputy Chief

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

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

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

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

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

officers, the supervisors, that they wouldnt have any direction. Tr. VII:238. Mufarreh

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

March 22.

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

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

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record, and had received positive performance evaluations.

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

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

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

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

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

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

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Command functions.

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

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

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

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

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

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

operator a few minutes after the initial stop.

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

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

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approximately 1:15 PM, both officers approached the drivers side of the stopped car. Before

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

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

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

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officers back. The shooter left the scene of the shooting, abandoning his vehicle.

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The firearm discharges simultaneously were detected on the Citys shot spotter system.

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

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

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

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immediately.

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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.

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

officers in the area, and had served at various times as a confidential informant. Elliss account

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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southbound on 74th.

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

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

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

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

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

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

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

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

volunteered to take the assignment.

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

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

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

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

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

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

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C. Lt. Mufarrehs arrival at the crime scene, and the triaging of the police response.

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According to Lt. Mufarreh, he had started his shift shortly before noon at the OPD
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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 Walkers children for about 3 years, when she (Lt. Lindsey) was young. Walkers
children were among her playmates, and Walker had watched over Lindsey when Lindseys mother was
not present. JX 44 p. 12.

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

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

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

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

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

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

unaware of a command post location. Lt. Mufarreh asked about Lt. Lindseys location, and

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

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

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been the site of the Eastmont police station.


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

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

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

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

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

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

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

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

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

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

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overseeing the crime scene investigation.8

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

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

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

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

point took on the role of Tactical Commander.

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

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

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

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

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

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

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

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

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of a criminal investigation:

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I.

COMMAND OF CRIME SCENE/RESPONSIBILITIES FOR


PRELIMINARY INVESTIGATIONS
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E.

Ranking Officer at the Scene of the Crime

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

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1. The ranking supervisor or command officer shall assume


command at the scene of a crime and shall be briefed of the
circumstances of the incident by the preliminary investigator.
He/she shall be responsible for directing the activities and tasks of
Departmental personnel at the crime scene.
2. Tactical decisions shall be made by the ranking Patrol Division
member at the scene in accordance with the provisions of
Departmental General Order K-5, TACTICAL OPERATIONS TEAM.
Once the incident is under control, the investigator shall advise the
ranking Patrol Division member regarding investigatory needs, to
ensure that the assigned officer(s) completes a thorough preliminary
investigation.
3. Investigators shall contact the ranking officer upon their arrival at the
scene. The investigator shall be briefed of the circumstances of the
incident.
a. If superior in rank to the ranking Patrol Division member at the
scene, the investigator shall clearly communicate that he/she is
assuming command and shall supervise the preliminary
investigation.
b. If subordinate in rank to the ranking member at the scene, the
investigator shall advise the ranking officer regarding investigatory
needs and shall supervise the preliminary investigation. The
subordinate investigator shall comply with the orders of the
ranking Patrol Division member; however, the ranking Patrol
Division member shall cooperate with all requests made by the
investigator in order to ensure that the preliminary investigation is
thorough and complete.
c. If equal in rank to the ranking Patrol Division officer at the scene,
the investigator shall assume command and shall supervise the
preliminary investigation, proceed to expand the investigation and
provide consultation at the scene.
4. If more than one investigator responds to a crime scene, among
investigators of equal rank, the investigator whose unit will conduct
the follow up investigation of the offense shall be the primary
investigator.

-181

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

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

M-4, Lt. Mufarrehs arguably greater experience would not have supplanted the lead position

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

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

under her command.

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

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

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

(Mufarrehs assignment). In Lt. Mufarrehs view, this was a way for Lt. Lindsey to continue to

19

stay focused on her responsibilities as the Incident Commander:

20
21
22
23
24

Well, [Lt. Lindsey] was incident commander. If youre going to be the


incident commander, you want to have less duties. And the easiest thing
to do in my opinion was to handle the crime scene itself. Thats pretty
easy. All you need to do is put a sergeant in charge of the crime scene. It
takes 5 minutes, if that, just to coordinate a couple of things. Now, youre

-191
2
3
4
5
6

done. Now you can sit back and you can look at the whole thing. I guess
it was my impression that she would probably go back to 73rd. I dont
know. I dont know what she was thinking, what she wasnt thinking. But
that was the reason why we came up with the division that way to give her
the easiest task that a sergeant can do.
Tr. VI:205.

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

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

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. Alexanders broadcast was somewhat premature, because neither Alexander nor Mufarreh

12

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

13

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

14

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

15

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

16

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

17

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

18

objection to the arrangement.9


9

When Lt. Lindsey was interviewed by the Sgt. Cruz of the Homicide Division in early April about the
events of March 21, she stated So . . . basically I get on the radio and . . . I lock that scene down because
now Im treating it as a homicide scene, and were 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 didnt want to be all over the place. Later in the interview, in
response to Sgt. Cruzs question about her contact with Mufarreh, Lt. Lindsey said Lt. Mufarrehs role
was going to be the search and entry into the apartment because thats what we discussed. That was
his role. We talked about it. We triaged the scene. I was handling the inner perimeter. Blair had the
outer perimeter, and he was gonna assist with the search and entry into the apartment. JX 44, pp. 6-7,
22.

-201

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

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

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

4
5

D. Command post.

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

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

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

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

Mufarrehs 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 Im 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 dont know if
it was anybodys decision. I just think that was what we came up with. JX 44B pp. 42-45.

-211

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

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

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

unusual, noting that 99% of the command posts that Id been associated with had consisted

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

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

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

8
9

Capt. Orozco also testified to his experience of the manner in which a command post
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 didnt 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 werent present because:

18
19
20
21
22
23

At the time it was more important to me to ensure that we cleared that area
first. Again, its not uncommon that police action takes place without the
tactical dispatchers or with support staff because again, its an evolving
process to get that put together.
Tr. VII:284-86.
Members of the Tactical Operations Team initially met at the Eastmont site, where they

-221

were briefed by Sgt. Dan Sakai. Some of OPDs tactical gear is stored at Eastmont. Eventually,

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

awaiting direction.

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

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

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

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

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

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

10

stationed near this area.

11
12
13

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

14

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

15

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

16

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

17

attempt to distract the search.

18

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

19

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

20

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

21

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

10

15.

A transcript of Rushs phone conversation with Sgt. Pope in Communications is found at JX 7 pp. 14-

-231

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

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

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

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

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

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

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

and credible witness.

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 suspects sister

22

lived at the apartment building, and Ellis had seen the suspects car parked there several times.

-241

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

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

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

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

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

However, according to Lt. Joyner,

7
8
9

[Ellis] said he didnt have a concern. In fact, his words were, I dont give
a fuck who sees me, and he got into the front seat of the [police] car.
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 individuals 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. Joyners confidence in Elliss report was Lt. Joyners prior history with Ellis,

20

which had demonstrated to Lt. Joyner Elliss reliability as an informant.

11

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

-251

At 1:45 PM Lt. Joyner radioed for the Watch Commander whos running this, can they

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

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

Ellis had to say. Both Lt. Mufarreh and Lt. Lindsey tried to reach Lt. Joyner, but Lt. Mufarrehs

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

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

Ofr. Mitchell blowing off the informant, Ellis. Lt. Mufarrehs take away from the phone

conversation with Lt. Joyner was Lt. Joyners belief that the suspect

9
10
11
12
13

. . . is in there [i.e., the 74th Avenue apartment] right now. I wrote it


down. I wrote it down on a piece of paper that I had and then I wrote it
again. So I wrote it twice. I wanted to be sure of it and I read it back to
him. I tore the piece of paper and I gave one of the addresses to Sgt.
Andreotti.

14

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

15

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

16

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

17

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

18

MacArthur, only about a block away from Lt. Joyners and Elliss location at 74th and Hillside.

19

Sgt. Andreotti had been standing near Lt. Mufarreh during his (Lt. Mufarrehs) initial

20

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

21

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

12

Lt. Mufarreh testified that he called Lt. Joyner in response to Lt. Joyners 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.

-261

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

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

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

location for the suspect.

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

with the layout of the 74th Avenue apartment, because Elliss girlfriend once had lived in the

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

8
9
10
11
12
13

Alright, listen up. When you go inside that building there, theres a short
hallway, theres also supposed to be one unit downstairs thats going to be
to the right. Um, thats where he, thats where the suspects been staying,
or at least was seen going in there.
JX 7 p. 23.
Separately, at approximately 2:00 PM, Homicide Sgt. Rachel Van Sloten arrived at Lt.

14

Joyners 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.

-271

Sgt. Van Sloten testified she was still at Lt. Joyners position at 74th and Hillside when

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

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

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

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

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

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

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

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

Joyners understanding that the outer perimeter had been set up very quickly.

18
19

As Lt. Joyner recalls the next encounter, he (Lt. Joyner) then asked Ellis to tell Lt.
Mufarreh what he knew. Lt. Joyner recalls that Lt. Mufarreh asked Ellis pointedly whether he

13

Lt. Mufarreh disagreed with Lt. Joyners 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 zigzag because he believed the suspect probably was at the 2755 74th Avenue building, based on Lt.
Joyners report. Tr. VI:219.

-281

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

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

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

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

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

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

overheard this information through the open window of the car, and leaned out and said, Thats

a fucking lie, and if the bitch who told you that has blue hair, thats the suspects girlfriend. Tr.

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 Elliss report made sense. Lt.

15

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

16
17
18
19
20
21

I thought [Ellis] was telling the truth because of the fact that he wasnt
trying to put too much on it in regards to he could have simply said, I
saw him go in there, but he was honest and said, I didnt. But I think
that hes in there.
Tr. III:294.
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. Joyners view, there were three likely options on the table for the suspects location: the

-291

suspect might have fled by entering someone elses car, or he might have run to the apartment on

74th Avenue, or he might still be hiding elsewhere within the perimeter. In Lt. Joyners view,

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

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

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

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

elses car.

8
9
10
11

Because he saw the Tactical Operations Teams large Bearcat vehicle was parked on
74th Avenue near the apartment, with a rifle team, Lt. Joyner was under the impression his
warnings about the site and its association with the suspect were being taken seriously.
Lt. Mufarrehs 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
20
21
22
23
24

So it went from hes in there, hes in there, to now its third hand, and I
dont know who hes getting this information from, and that he [Ellis]
never saw or nobody ever saw the suspect go into that residence. Thats
pretty much what I got out of that conversation.

Tr. VI:220.

-301

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

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

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

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

5
6
7
8
9
10

. . . the guy [i.e., the suspect] is probably not there [at the 74th Avenue
apartment] because [Lt.] Joyner . . . had a small sliver of the information
and he wasnt there from the beginning. But I still put weight on it. I
know I said theres a low probability that the guy was in there, and, at the
time, thats what I felt. But there was still a probability he could have
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 Elliss information about the suspects 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 suspects identity or

24

location, and report back to him.

-311

After being briefed by Lt. Mufarreh about his (Lt. Mufarrehs) conversation with Lt.

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

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

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

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

the neighborhood of the earlier traffic stop and shooting.

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

Joyner was similar to what he (Andreotti) understood to be Lt. Mufarrehs impression. Sgt.

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
17
18
19
20
21
22
23
24
25
26
27

Q So you [Andreotti] get off the phone with Lieutenant Joyner. What was
your personal belief concerning the likelihood of the suspect being in the
apartment . . . ?
A Well, based off my experience, I believe[d] the guy was not there. I
figured this is something we had to do, we had to clear the apartment
before we continue[d] with the search. But in my mind, I was prepared to
do yard searches for several hours. As a matter of fact, I made some phone
calls down at the patrol desk and asked the desk officer to make sure that
the batteries were charged . . . [because] if were going to be out there for
four hours, were going to need a supply of fresh batteries.
Tr. VII:168.

-321

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

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

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

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

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

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

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

broadcasts. Lt. Joyner broadcast the suspects suspected presence at the 74th Avenue apartment

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

10
11

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


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

12

theres 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
22

Sgt. Van Sloten testified that, after leaving Lt. Joyners position, she continued eastbound
on Hillside to 75th Avenue, then walked down 75th Avenue to MacArthur, where she met up

-331

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

Walkers information on the suspects location. Sgt. Jones also asked Sgt. Van Sloten to speak

with Walker, to collect more information.

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

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

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

74th Avenue that had been identified by Ellis, and said she had seen the suspects car parked in

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

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

10
11

the vehicle with the suspect.


Lt. Lindsey also received information relating to the suspects 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 (Walkers) 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

-341

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

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

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

others this information about the suspects likely presence in the 74th Avenue apartment.

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

stop shootings and the Tactical Operations Teams entry into the apartment immediately after

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

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

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. Joyners) first phone conversation with Lt.

12

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

13

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

14

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

15

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

16

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

17
18
19

F. Efforts to mobilize the full array of tactical support elements by activating a blue
alert.

20

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

21

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

-351

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

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

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

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

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

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

Capt. Orozcos testimony was similar. According to Capt. Orozco, prior to March 21,

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

alert in two ways:

10
11
12

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

14

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


B. Activation of the Tactical Operations Team in the City of Oakland
1. The Tactical Operations Team may be activated at the discretion of the Patrol
Division Watch Commander, or an Area Commander who is on the scene and assumes
Incident Command.
2. The Watch Commander/Incident Commander activates the Team for critical incidents
by notifying a Communications Division supervisor, who initiates the call-out procedure.
Unit Commanders may request activation of the Team for planned operations, such as
high-risk warrant service, by notifying the SOS Commander, or if he/she is unavailable,
an Assistant Tactical Commander.

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

-361

Tr. VII:283.

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

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

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

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

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

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

for the alert over the radio.

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

10

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

11

with a phone call to the radio room.

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20
21

15

The Board of Inquiry later criticized Lt. Lindseys request for additional officers, concluding the
addition of more officers at the crime scene created additional command problems.

-371
2

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

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

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

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

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

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

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

MacArthur, and attempt to track the suspect, starting from the suspects 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 Sheriffs 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.

-381

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

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

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

element in the perimeter search.

5
6
7

H. Capt. Traceys request that Capt. Orozco assume tactical command duties; Capt.
Orozcos arrival at the crime scene.

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

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 OPDs 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 Departments 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

-391

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

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

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

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

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

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

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

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

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 cant. Tr. VII:251. Capt. Orozco

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

16

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

-401

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

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

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

MacArthur, where they remained together.

5
6
7
8

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

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 Kozickis 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

-411
2

and Capt. Rachal were in the area, but they were not active participants in the discussion.
Lt. Mufarreh briefed the group. Capt. Orozco testified Mufarreh reported the outer

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

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

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

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

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

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

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 dont know where the suspect is at, no

15

pictures had been sent around the location, we wouldnt 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.

-421

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

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

at 2:52 PM to discuss this.

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

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

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

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

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

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

10

centered around using the tracking dogs:

11
12
13
14
15
16
17

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

17

There is reason to question whether Capt. Orozcos 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. Orozcos memory of who
was where, and when was mistaken on this point, but I do not view this error as material or a deliberate
falsification.

-431

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

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

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

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

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

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

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

building, which was very close to the suspect apartment.

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. Orozcos view

13

Deputy Chief Kozicki was functioning as the Incident Commander and we dont move forward

14

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

15

After Lt. Mufarrehs discussion with Deputy Chief Breshears about the city-wide watch

16

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

17

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

18

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

19

assembled around 2:58 PM.19

18

Sgts. Beaver and Gonzales confirmed they had been performing tactical work for many years, but
they had no experience using a canine track as part of a tactical operation.

19

Although Lt. Lindsey had been present during earlier discussions, she was not present for the final
briefing of the entry team because she had stepped away briefly to use the restroom.

-441

At Capt. Orozcos direction, Lt. Mufarreh briefed the entry team, which ultimately

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

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

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

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

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

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

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

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

Joyners 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 suspects location (i.e., the Walker

14

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

15

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

16

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

17

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

18

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

19

apartment was occupied.

20

Multiple witnesses involved with tactical operations testified that Tactical Team members

20

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

-451

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

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

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

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

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

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

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

apartment was initiated and shooting began.

9
10

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

11

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

12

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

13

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

14

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

15

immediately helpful in identifying the suspect.

16

During their inspection of the suspects 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 Mixons image in the database matched the photograph

22

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

-461

Ofr. Omega Crum, Sgt. Knight) to retrieve Mixons image from the database and print copies for

distribution.

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

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

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

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

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

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

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

10
11

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


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
15

Both Capt. Orozco and Lt. Mufarreh later denied seeing the photo of Mixon before the
entry in the 74th Avenue apartment was made.

16
17

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

18

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

19

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

20

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

21

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

22

lethal equipment, i.e., flash-bangs.

-471

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

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

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

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

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

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

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

willing to engage in extreme violence.

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

10

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

11

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

12

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

13

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

14

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

15

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

16

death.

17
18

-481
2
3

IV.

4
5

INVESTIGATIONS AND REPORTS INTO THE MARCH 21 EVENTS: INITIAL


CRIME REPORT; CRIMINAL INVESTIGATION DIVISION (CID/HOMICIDE);
INTERNAL AFFAIRS; INDEPENDENT BOARD OF INQUIRY.
Multiple investigations were launched following March 21, largely following standard

OPD practice.

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A. Initial Crime Report

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

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

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

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

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

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

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Baddie). Id. at 32.21

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B. CID/Homicide Division report

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

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

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

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

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Lindsey also was interviewed by Sgt. Cruz. Many of the individuals were accompanied by legal

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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.

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counsel. Most of the Homicide Division interviews occurred between March 21 and mid-April

2009, although additional information-gathering activity continued until the end of August 2009.
As noted supra, Lt. Lindsey had not submitted her Supplemental report to Ofr. Toribio

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during the normal CID initial crime report process. Instead, Lt. Lindsey submitted her

Supplemental directly to Sgt. Cruz. Lt. Lindseys handling of the Supplemental report was

unusual, and bears noting.

According to Sgt. Cruz, he first received Lt. Lindseys Supplemental report soon after

March 21 perhaps as early as March 22. It came to him in a sealed envelope, and Sgt. Cruz did

not immediately open the envelope. Sgt. Cruz testified that several days later, Lt. Lindsey

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retrieved the sealed envelope containing her Supplemental, and gave Sgt. Cruz an updated

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Supplemental report. This second Supplemental is included in the hearing record as JX 57.

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There do not appear to be any copies of the original version of Lt. Lindseys Supplemental.22

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In her Supplemental report, Lt. Lindsey indicates she was in constant contact with

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Elaine Walker during the period on March 21 when she (Lt. Lindsey) was on the scene. Lt.

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Lindsey disclosed she and Walker once had been neighbors in Richmond, CA, when Lt. Lindsey

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was growing up. According to Lt. Lindseys Supplemental, Walker reported the suspect (Mixon)

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Documents such as Supplement reports are part of OPDs Field Based Reporting process. OPD
policy (General Order I-14, Section II.A.) states the Police Departments 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 OPDs practice since 2004. Although Lt. Lindseys 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.

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had been staying with a female at the apartment at 2755 74th Avenue. Walker was aware of this

because she (Walker) lived next door. Lt. Lindsey reports that

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Ms. Walker was sure that the suspect . . . was inside of the apartment
building. Ms. Walker stated that at some point after the shooting, she saw
the suspect . . . in her backyard.
JX 57. Later in her report, Lt. Lindsey states
I gave suspect information to Lt. E. Joyner, who advised me that he had
similar information that he had received from his CI. I advised Lt.
Mufarreh, Captain Orozco, Captain Rachal and Deputy Chief Kozicki of
the information I had gathered regarding the suspect and possible
location.
Id. (emphasis added).

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C. The Internal Affairs Division report

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Within OPD, the major assessment of the events of March 21, 2009, was compiled by the

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Internal Affairs Division. The task of investigating the incident and compiling the report was

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assigned to Sgts. Floyd and Shaver. The report was issued August 30, 2009.

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The IAD analysis is 331 pages in length, ending with six pages of Recommended

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Findings. As discussed infra, it is apparent to this Arbitrator that there is a direct line leading

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from the IAD Recommended Findings to the ultimate decision to demote Lt. Mufarreh and Capt.

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Orozco. The IAD Recommended Findings i.e., the conclusion of the report therefore are

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reproduced here en toto:

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Recommended Findings
MOR 234.12-1 Commanding Officers Gross Dereliction of Duty
234.12

COMMAND The inspection, direction, and control of personnel


under his/her command to assure the proper performance of duties

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and compliance with established rules, regulations, policies and


procedures. Providing for continuation of command and/or
supervision in his/her absence.

This investigation has revealed a preponderance of evidence which indicates


Lieutenant Mufarreh, Captain Orozco, and Deputy Chief Kozicki engaged in acts
and omissions during the course of this incident which, taken together, are
clearly constitutive of Gross Dereliction of Duty. This investigation disclosed a
preponderance of evidence which indicates SUSTAINED findings for MOR
234.00-1 for Lieutenant Mufarreh, Captain Orozco, and Deputy Chief Kozicki.
This investigation has revealed Lieutenant Mufarreh engaged in the following
acts or omissions which, taken together, are constitutive of Gross Dereliction of
Duty and indicate a finding of SUSTAINED:

Lieutenant Mufarreh was chiefly responsible for the break down of


command and control during the course of this incident. He tacitly took
over Incident Command from Lieutenant Lindsey which caused a lack of
clarity regarding who was in charge of the incident. Lieutenant Mufarreh
perpetuated this confusion when he inappropriately assumed the role of a
tactical commander although he admitted knowing he was unqualified.
Lieutenant Mufarreh admitted knowing the Departments policy governing
the Tactical Operations Team. It must be concluded therefore that he
knowingly violated the Departments policy by briefing and giving orders
to the members of the Entry Team who were eventually ordered in to
clear the suspects apartment.
Lieutenant Mufarrehs assertion he did not believe the suspect was inside
the residence is in contradiction to the actions which were taken. The
assertion is not reasonable considering the totality of the circumstances
and the information which was inarguably known at the time. Lieutenant
Mufarrehs actions and decisions (to establish an ad hoc command post
within the outer perimeter and to approve the use of flash bangs, et
cetera) indicate a belief the suspect was contained inside the apartment
however, Lieutenant Mufarreh failed to exercise due caution with regard
to the tactical plan.
Lieutenant Mufarreh originated the plan to have members of the Entry
Team clear the suspects residence.
Lieutenant Mufarreh was unable to articulate a lawful justification for entry
into the suspects apartment. Therefore, although entry was lawful under
the auspices of fresh pursuit because a reasonable officer would believe
the suspect to likely be inside the apartment, Lieutenant Mufarreh gave
an unlawful order if he did not truly believe the suspect to be inside the
residence.
Lieutenant Mufarreh did not provide clear leadership by reporting to the
established command post and once the Tactical Operations Team
members began to arrive at the scene, he failed to order them to respond
to the established command post. This investigation has shown this was

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a key element exacerbating the sense of false urgency and


consequentially, to accelerating the tempo of this operation.
Lieutenant Mufarreh was responsible, in part, for developing the plan to
form an ad hoc team from members of the Entry Team who had arrived
on the scene.
Lieutenant Mufarreh made an unreasonable analysis of the information
provided by Lieutenant Joyner and his confidential informant. This
unreasonable analysis resulted in the creation of an overriding feeling
the suspect was not inside the residence. It was chiefly this
unreasonable analysis which catastrophically resulted in the lack of use
of any options whatsoever to determine if the suspect was inside the
residence and the lack of the use of any tactical methods whatsoever to
gain a tactical advantage for the Entry Team members prior to sending
them inside the suspects apartment.
Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
team inside the suspects apartment without attempting to confirm
whether or not the suspect was inside the residence.
Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
team inside the suspects apartment without attempting to negotiate to
afford the suspect the opportunity to give himself up and to safely be
taken into custody by the designated arrest team.
Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
team inside the suspects apartment without evacuating the suspects
apartment building. According to Lieutenant Mufarreh, this prevented the
use of gas and created a situation in which public safety was significantly
threatened by the occurrence of a firefight within the building.
Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
team inside the suspects apartment without waiting for the rest of the
Tactical Operations Team to be in place.
Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
team inside the suspects apartment without the use of any tactical
options other than entry. This act had a direct causal effect upon the fact
the team made entry without having established any tactical advantage
over the suspect.

These facts, taken together, are clearly constitutive of gross dereliction of


duty given their seriousness and blatancy.
This investigation has revealed Captain Orozco engaged in the following acts or
omissions which, taken together, are constitutive of Gross Dereliction of Duty
and indicate a finding of SUSTAINED:

Captain Orozco allowed Lieutenant Mufarreh to place himself in the role


of a tactical commander knowing he was not qualified per the Tactical
Teams standard operating procedure. In so doing, Captain Orozco
created an environment in which there was confusion regarding who
really was the Tactical Commander.
Captain Orozco violated the Departments policy by allowing Lieutenant

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Mufarreh, who was not the Tactical Commander, to brief and give orders
to the members of the Entry Team who were eventually ordered in to
clear the suspects apartment.
Captain Orozcos assertion he did not believe the suspect was inside the
residence is in contradiction to some of the actions which were taken.
The assertion is not reasonable considering the information which as
inarguably known at the time. Captain Orozcos actions and decisions (to
establish an ad hoc command post within the perimeter (in which he
feared the suspect may be contained) and to approve the use of flash
bangs, et cetera) compel the conclusion the suspect was contained
inside the apartment however, Captain Orozco failed to exercise due
caution with regard to the tactical plan.
Captain Orozco approved Lt. Mufarrehs plan to have members of the
Entry Team clear the suspects residence.
Captain Orozco was unable to articulate a lawful justification for entry into
the suspects apartment. Therefore, although the entry was lawful under
the auspices of fresh pursuit because a reasonable police officer would
believe the suspect to likely be inside the apartment, Lieutenant Mufarreh
(sic) gave an unlawful order if he did not truly believe the suspect to be
inside the residence.
Captain Orozco did not provide clear leadership by reporting to the
established command post and once the Tactical Operations Team
members began to arrive on the scene, he failed to order them to
respond to the established command post. This investigation has shown
this was a key element exacerbating the sene of false urgency and
consequentially, to accelerating the tempo of this operation.
Captain Orozco was responsible, in part, for developing the plan to form
an ad hoc team from the members of the Entry Team who had arrived on
the scene. As the Tactical Commander, he is largely responsible for the
decision to implement the plan to make entry.
Captain Orozco made an unreasonable analysis of the information
provided by Lieutenant Joyner and his confidential informant. This
unreasonable analysis resulted in the creation of an overriding feeling
the suspect was not inside the residence. It was chiefly this
unreasonable analysis which catastrophically resulted in the lack of use
of any options whatsoever to determine if the suspect was inside the
residence and the lack of the use of any tactical methods whatsoever to
gain a tactical advantage for the Entry Team members prior to sending
them inside the suspects apartment.
Captain Orozco was an integral part of the plan to send the ad hoc team
inside the suspects apartment without attempting to negotiate to afford
the suspect the opportunity to give himself up and to safely be taken into
custody by the designated arrest team.
Captain Orozco was an integral part of the plan to send the ad hoc team
inside the suspects apartment without evacuating the suspects
apartment building. This prevented the use of gas and created a
situation in which public safety was significantly threatened by the
occurrence of a firefight within the building.

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Captain Orozco was an integral part of the plan to send the ad hoc team
inside the suspects apartment without waiting for the rest of the Tactical
Operations Team to be in place.
Captain Orozco was an integral part of the plan to send the ad hoc team
inside the suspects apartment without the use of any tactical options
other than entry. This act had a direct causal effect upon the fact the
team made entry without having established any tactical advantage over
the suspect.
As the Tactical Commander, Captain Orozco was primarily responsible
for the tactical decisions which were made.

These acts, taken together, are clearly constitutive of gross dereliction of


duty given their seriousness and blatancy.
This investigation has revealed Deputy Chief Kozicki engaged in the following
acts or omissions which, taken together, are constitutive of Gross Dereliction of
Duty and indicated a finding of SUSTAINED:

Deputy Chief Kozicki perpetuated the confusion surrounding command


and control during the course of this incident by appearing on the scene,
engaging in dialogue regarding the tactical plan with Lieutenant Mufarreh
and Captain Orozco, but failing to advise the Communications Division he
had assumed Incident Command. Deputy Chief Kozicki could not have
reasonably believed he was not viewed as the Incident Commander by
Captain Orozco and Lieutenant Mufarreh.
Deputy Chief Kozicki did not provide clear leadership by reporting to the
established command post and once the Tactical Operations Team
members began to arrive on the scene, he failed to order them to
respond to the established command post. This investigation has shown
this was a key element exacerbating the sense of false urgency and
consequentially, to accelerating the tempo of this operation.
Deputy Chief Kozicki participated in or listened to the conversation in
which the plan to form an ad hoc team from the members of the Entry
Team who had arrived on the scene.
Deputy Chief Kozicki gave approval of the plan to send the ad hoc team
inside the suspects apartment without attempting to confirm whether or
not the suspect was inside the residence.
Deputy Chief Kozicki gave tacit approval of the plan to send the ad hoc
team inside the suspects apartment without attempting to negotiate to
afford the suspect the opportunity to give himself up and to safely be
taken into custody by the designated arrest team.
Deputy Chief Kozicki gave tacit approval of the plan to send the ad hoc
team inside the suspects apartment without evaluating the suspects
apartment building. This prevented the use of gas and created a
situation in which public safety was significantly threatened by the
occurrence of a firefight within the building.
Deputy Chief Kozicki gave tacit approval of the plan to send the team
inside the suspects apartment without waiting for the rest of the Tactical

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Operations Team to be in place, thereby creating an ad hoc team.


Unlike Lieutenant Mufarreh and Captain Orozco, Deputy Chief Kozicki
does not assert he did not believe the suspect was in the residence. His
statement regarding the existence of a likelihood the suspect was inside
the apartment and a likelihood he was not indicates he believed there
was a higher probability the suspect was inside the apartment than that
assigned by Lieutenant Mufarreh and Captain Orozco. Considering his
lengthy service with the Tactical Operations Team, Deputy Chief Kozicki
should have recognized the need, in terms of safety, to utilize other
tactical options in lieu of making an entry.
Deputy Chief Kozicki gave tacit approval of the plan to send the ad hoc
team inside the suspects apartment without the use of tactical options
other than entry. This act had a direct causal effect upon the fact the
team made entry without having established any tactical advantage over
the suspect.
As the Incident Commander, Deputy Chief Kozicki was ultimately
responsible for the decision to allow members of the Entry Team to make
entry into the suspects apartment. He acknowledges knowing what the
plan was and admits to failing to intervene in the initiation of the plan.

These acts, taken together, are clearly constitutive of gross dereliction of


duty given their seriousness and blatancy.
MOR 398.80-1 Truthfulness
398.80

TRUTHFULNESS - Members and employees are required to be


truthful at all times whether under oath or not, except when
necessary in the performance of official duties. Such exceptions
shall be documented on the appropriate police report(s).

MOR 370.45-1 Reports and Bookings


370.45

REPORTS AND BOOKINGS - No member or employee shall


knowingly:

Submit false/inaccurate/improper Department records with the intent


to assist prosecution or defense.
Falsify time records or financial records for fraudulent purposes.
Falsify official reports or records.
Falsify or alter evidence.

In her follow up interview with me [i.e., IAD investigator Sgt. Floyd], Lieutenant
Lindsey indicated if Lieutenant Mufarreh, Captain Orozco, or Deputy Chief
Kozicki denied she had told them about the information she had obtained from
her confidential informant they would be making an untruthful statement.

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It is reasonable to assume Lieutenant Lindsey did share this information with


Lieutenant Mufarreh, Captain Orozco and Deputy Chief Kozicki for the following
reasons:

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 suspects
residence.
Lieutenant Lindsey documented she told them this information when she
completed a Supplemental Narrative regarding this incident
" She had obvious knowledge the information contained in her
Supplement Report was sensitive and packaged it in a sealed
envelope for delivery to the Homicide Section investigator
That Lieutenant Lindsey shared this information with others is
corroborated by Lieutenant Joyner and Sergeant Carman
Lieutenant Lindsey had occasion to give this information to Lieutenant
Mufarreh, Captain Orozco, and Deputy Chief Kozicki and, by their own
accounts, was present with them prior to the entry
Lieutenant Lindsey reported having shared this information and having
been blown off to her immediate supervisor, Captain Rachal.

It is not reasonable to believe Lieutenant Lindsey constructed a plan to lie and


falsify a police report just hours after four police officers had been killed.
Lieutenant Lindsey stated she also told Captain Rachal this information. Captain
Rachal stated he did not recall being told this.
Lieutenant Mufarreh, Captain Orozco, and Deputy Chief Kozicki all denied being
told this information by Lieutenant Lindsey. Captain Orozco stated if Lieutenant
Lindsey wrote this information in a police report that it was a lie.
It is more likely Lieutenant Lindsey told Lieutenant Mufarreh, Captain Orozco,
and Deputy Chief Kozicki the information she obtained from Elaine Walker than
that she did not. It is also likely she was indeed blown off by these three
commanders, possibly due to her lack of experience.
For the reasons enumerated above, this investigation has disclosed a
preponderance of evidence to support a finding of UNFOUNDED with regard to
the allegation Lieutenant Lindsey lied when she completed her Supplemental
Narrative regarding this incident. This preponderance is based on the fact it is
more likely she told them than that she did not.
The assertion of Lieutenant Mufarreh and Captain Orozco they did not know the
suspect was inside the residence gives them motive to assert Lieutenant Lindsey
did not tell them Elaine Walker told her she saw the suspect go inside the
apartment. However, while it is likely she did tell them this information, there is a
privation of evidence they heard and acknowledged what she said. Lieutenant

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Lindseys own assertion she was blown off by the three commanders renders
reasonable the belief that although it is more likely than not she told them, it is
likely they blew off the information she gave and failed to hear or acknowledge
it. This probable failure to receive Lieutenant Lindseys information represents
another failure in command and control. The fact Lieutenant Lindsey had only
been a lieutenant for only approximately six weeks at the time of the incident
may also have been a contributing factor.
There is therefore, a lack of evidence indicating the three commanders heard or
acknowledged Lieutenant Lindseys statements regarding the suspects location.
There is also no evidence to indicate they did not hear Lieutenant Lindseys
statements. Although numerous witness statements were taken, this
investigation has failed to reveal a preponderance of evidence to support this
allegation. We must also allow for the fact the scene was, by all accounts,
chaotic and therefore it is possible they were told and amidst the chaos forgot
they were told. The allegation Lieutenant Mufarreh, Captain Orozco, and Deputy
Chief Kozicki were untruthful regarding this issue is recommended NOT
SUSTAINED.

JX 1 pp. 325-31 (emphasis supplied).

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D. Independent Board of Inquiry

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Under standard OPD policy, incidents involving Level 1 or Level 2 force, in-custody

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deaths, and vehicle pursuit-related deaths are reviewed by a Force Review Board or an Executive

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Force Review Board (EFRB). The events of March 21 would have been referred to the EFRB

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level. The actions of these Boards are governed by OPD General Order K-4, found as JX 18.

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Under Order K-4, Force Review Boards and EFRBs do not convene to begin their work until

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after IAD has completed its investigation.

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Because of the magnitude of the March 21 events, and because several senior OPD

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officers had been at the scene of the incident (and thus potentially implicated in any assessment

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of OPDs performance), Acting Chief Jordan decided it would be preferable for the incident to be

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reviewed by a team primarily composed of law enforcement experts from outside OPD. In his

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view, such an inquiry likely would be more transparent, and the resulting report more credible.

Ultimately, a 7-member Independent Board of Inquiry (BoI) was assembled. Only one member

of the BoI came from OPD, Inspector General Capt. Brian Fairow, and Capt. Fairow participated

as a non-voting member of the Board.

The BoIs report is found as Joint Exhibit 3. According to the report, the BoI reviewed

the OPD Homicide Division report and the IAD report. The Board convened multiple times via

teleconference, and also convened for three days in-person. Although the Board had access to

the raw materials underlying the Homicide Division and IAD reports, and received briefings

from the investigating staff and Homicide and IAD commanders, the BoI process did not include

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direct questioning by the Board of the persons whose performance was at issue in the inquiry

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(including Lt. Mufarreh and Capt. Orozco), nor did Lt. Mufarreh or Capt. Orozco participate in

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or observe the BoI deliberations.

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The resulting BoI report addressed a wide variety of concerns. Much of the report

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addressed concerns with general OPD practices and procedures. Other aspects of the report

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focused on the performance of individual members of the police force.

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Among its findings, the BoI criticized Lt. Lindseys city-wide call for all units as

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unnecessary, observing that the response (115 police units from OPD, plus additional units from

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surrounding jurisdictions) tended to erode unity of command and resulted in disorganization. In

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the Boards view, the correct procedure would have been to invoke the established Incident

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Command System (ICS) procedures. The Board observed that Lt. Lindsey became

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overwhelmed by the complexity of the situation, and retreated to performing crime-scene

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investigation work rather than establishing a control post. JX 3 pp. 21-22.

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Although the Board praised Lt. Joyner and Lt. Lindsey for effective work developing
information about the suspect from informants and community members, the Board observed:

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Unfortunately, such information was not transmitted, disregarded, or not


received by persons who had placed themselves in decision-making
command and control capacity. The initial command-and-control
personnel failed to grasp that this situation was a large-scale critical
incident and required a chain of command structure, an operations plan,
and the use of basic emergency incident management principles organized
to manage the responding assets to a successful resolution.
JX 3 p. 22.23

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The Board was critical of Lt. Mufarrehs leadership of the canvass-and-search process a

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role which even Lt. Mufarreh acknowledges he assumed. The Board faulted Lt. Mufarreh for not

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developing a systematic search plan informed by current data, and failing to identify an overall

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tactical plan, operational objectives or a field organization. In the Boards view, this resulted in

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officers self-initiating search activities, with some officers (e.g., Sgt. Andreotti and associates)

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being dangerously exposed to the apartment location on 74th Avenue. The Board observed the

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centrality of establishing a command post, and recommended additional training in basic

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emergency incident management principles and ICS protocols. In addition, the Board

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questioned the assumption found in OPD General Order M-4 that the senior ranking officer at the

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scene must be required to assume the Incident Commander role. JX 3 p. 23. The Board noted

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Neither in the initial response nor in the subsequent hours did any command individual

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announce himself/herself as the incident commander. The Board observed Lt. Lindsey failed to

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implement emergency incident management protocols, and the Board also directed similar

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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.

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criticism toward Lt. Mufarreh because he arrived at the scene and assumed the role of incident

commander (without formally announcing it). Id. p. 24.

The Board noted Lt. Mufarreh erred when he called for a blue alert over the radio, but

did not follow procedure by contacting the Communications Division supervisor directly,

resulting in a delay in SWAT team components arriving at the site. The Board urged review of

policies and additional training to insure that best practices are followed in connection with

SWAT callouts, including an effort to be certain that all needed elements are assembled before

implementing tactical action except in active shooter situations. Id. at 25.

With regard to the suspects location and the decision to enter the 74th Avenue

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apartment, the Board noted the suspects probable location had been identified by two sources

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and that this information was inadequately assessed by Lt. Mufarreh. Inter alia, the Board

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recommended enhanced search and seizure training to insure tactical operations staff were

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better-informed about legal requirements for search warrants and fresh pursuit situations.

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adequately if for no other reason than to insure that the suspect could not flee. The Board

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expressly was critical of the decision to enter the apartment unit, noting in the March 21st

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incident there was a clear preference for dynamic entry to the exclusion of every other

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alternative. This preference for an expedited dynamic entry does not appear to be limited to one

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Tactical Commander in training, but to all the senior command on the scene that approved the

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dynamic entry. JX 3 p. 26 (emphasis added).

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The Independent Board of Inquiry concluded its report with findings related to the
performance of several OPD officers who were central to the events of March 21. The findings

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include observations drafted by the Board itself, but also incorporated verbatim large portions of

the text crafted earlier as part of the IADs Recommended Findings. The Personnel section

of the BoI report is included here (less findings addressing the actions of Criminalist Bennet, Ofr.

Leite, Deputy Pope and Sgt. Gonzalez). I intentionally include the duplicative materials

quoted from the earlier IAD report, because Chief Batts testified he read the BoI report cover to

cover several times before reaching his decision to recommend demoting Lt. Mufarreh and

Capt. Orozco, but acknowledged he did not read the Homicide Division report or the IAD report

(although he was briefed by Sgt. Whent). Tr. IV:96-98; 142. Thus it appears the BoI report very

much was central in forming Chief Battss views about the events of March 21, and especially

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the culpability of individual staff. The BoI report Personnel section states:

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5. Personnel
The Bol carefully reviewed the actions taken by the personnel involved in the
March 21st incident in view of best practices, training procedures, and OPD
policies. The following is a summary of its findings for the aforementioned
personnel by functional/tactical assignment and individual actions.
BoI Finding: Lieutenant Drennon Lindsey: APPROPRIATE COMMAND
with qualification
Lieutenant Lindsey responded to the scene quickly and initially took some
appropriate preliminary command and control action. She viewed herself as the
Incident Commander, but did not identify herself as such or take any action in
furtherance of this role, including implementation of ICS. Lieutenant Lindsey did
not establish a command post and appropriately staff it to handle the complexity
of issues attendant to a city-wide response of all units and supervisors. There
was no staging area designated, no assignment protocols, and no overall plan to
integrate and manage the arriving resources. Lieutenant Lindsey did contact her
immediate superior officer via cell phone, Captain Rachal, during the earliest
phases of this escalating critical incident. But he did little to assist this new
lieutenant in trying to cope with a tragedy of enormous magnitude. The BoI
notes that Lieutenant Lindsey did develop critical information regarding the
suspect description and Mixon's probable location; that information was not
passed along, was not accepted, or was disregarded by the decision makers.

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She deferred to others and permitted herself to be overridden by senior


commanders with significantly less situational awareness and information than
she possessed. Ultimately, Lieutenant Lindsey assumed a more limited role
similar to a sergeant, directing preliminary crime scene management and an
investigative role with regard to identification of witnesses and evidence.
In fact, Lieutenant Lindsey did locate and identify an eye-witness placing Mixon
inside 2755 74th Avenue, and stated that she informed Lieutenant Mufarreh,
Captain Orozco, and Deputy Chief Kozicki of this information before the decision
to order the ad hoc Entry Team to enter and clear the apartment. All three
commanders unequivocally denied that Lieutenant Lindsey provided this
important information. The discrepancy as to whether this key fact was provided
by Lieutenant Lindsey to Lieutenant Mufarreh, Captain Orozco, and Deputy Chief
Kozicki did result in an Internal Affairs Division (IAD) allegation of Truthfulness
against the other commanders and an allegation of Reports and Bookings
against Lieutenant Lindsey. The subsequent investigation recommended a
finding of Not Sustained for Lieutenant Mufarreh, Captain Orozco and Deputy
Chief Kozicki, and a finding of Unfounded for Lieutenant Lindsey.
BoI Recommendation:
The OPD Chief should ensure that newly promoted supervisors and
command officers are adequately trained in leadership responsibilities,
critical incident management, and basic emergency management protocols
prior to assignment to patrol operations. Consideration should also be given
to assigning a command training officer to ensure that patrol supervisors and
commanders are appropriately trained and well versed in OPD policies and
procedures. Senior officers such as captains should be accessible to newly
promoted lieutenants or lieutenants should be paired with another seasoned
lieutenant in the event exceptional circumstances occur requiring high-quality
command judgment and leadership. 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. This did not occur on March 21st.
BoI Finding: Lieutenant Chris Mufarreh GROSS DERELICTION of DUTY
Lieutenant Mufarreh responded and, initially, made allocation of command
responsibilities among the on-scene lieutenants. He assumed the de facto role
of incident commander but failed to identify himself as the Incident Commander
and failed to perform all the necessary and required tasks. For example,
Lieutenant Mufarreh called for a Blue Alert over the police radio, but failed to
contact the Communication Division Supervisor to activate the One-Call System,
as required by departmental policy. This is a serious error and delayed the
SWAT Team callout for more than 45 minutes. Lieutenant Mufarreh
subsequently assumed the role of Tactical Commander in violation of both policy
and a direct order from Captain Ed Tracey. In that role, Lieutenant Mufarreh

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performed inadequately: he failed to use the available credible information with


respect to the suspect location, and he over-rode Sergeant Sakais practical plan
for using tracking canines, approved by Lieutenant Lindsey and when the team
was minutes from the crime scene.
The BoI found that Lieutenant Mufarreh did not adequately consider sound
tactical options (e.g., evacuations, bullhorns/PA announcements, information
developed relative to the target location, chemical agents, and establishing an
appropriate tactical command post). He dismissed, with little or no discussion,
every alternative to dynamic entry. He formed an ad hoc Entry Team in direct
violation of policy. He failed to ensure that the team members had all available
information prior to making entry (e.g., the suspects photograph, apartment
layout). The Board noted that many of the team members were uncertain of
their mission, other than to force entry into Mixons apartment. Lieutenant
Mufarrehs actions created a false sense of urgency and confused the situation
as to Mixon's likely presence. His actions were found by the Board of Inquiry to
be in violation of policy contained in DGO K-5 (Tactical Operations Team). His
statements with respect to the legal rationale for making forced entry into the
apartment were contradictory, confused at best and dishonest at worst. Either
there was a fresh pursuit situation that justified the entry or it was unlikely that
Mixon was inside, which negated the police legal authority to enter without a
search warrant. At no time during this investigation did Lieutenant Mufarreh ever
accept or acknowledge responsibility for his actions or the roles he assumed.
The Board reviewed and considered the following findings by the Internal Affairs
Division Use of Force Report in reaching its finding regarding Lieutenant
Mufarrehs Gross Dereliction of Duty during this critical incident.
Lieutenant Chris Mufarreh GROSS DERELICTION of DUTY

Lieutenant Mufarreh was chiefly responsible for the breakdown of


command and control during the course of this incident. He tacitly took
over incident command from Lieutenant Lindsey, which caused a lack of
clarity regarding who was in charge of the incident. Lieutenant Mufarreh
perpetuated this confusion when he inappropriately assumed the role of a
Tactical Commander although he admitted knowing he was unqualified.

Lieutenant Mufarreh admitted knowing the Departments policy governing


the SWAT Team. It must be concluded therefore that he knowingly
violated the Departments policy by briefing and giving orders to the
members of the ad hoc Entry Team who were eventually ordered to enter
and clear Mixons apartment.

Lieutenant Mufarrehs assertion that he did not believe Mixon was inside
the residence is in contradiction to the actions that were taken. The
assertion is not reasonable considering the totality of the circumstances
and the information which was inarguably known at the time. Lieutenant
Mufarrehs actions and decisions indicate a belief that the suspect was

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contained inside the apartment, however, Lieutenant Mufarreh failed to


exercise due caution with regard to the tactical plan.

Lieutenant Mufarreh originated the plan to have members of the ad hoc


Entry Team enter and clear the suspect's residence.

Lieutenant Mufarreh was unable to articulate a lawful justification for entry


into Mixons apartment. Therefore, although the entry was lawful under
the auspices of fresh pursuit because a reasonable officer would believe
the suspect to likely be inside the apartment, Lieutenant Mufarreh gave
an unlawful order if he did not truly believe the suspect to be inside the
residence.

Lieutenant Mufarreh did not provide clear leadership by reporting to the


established, albeit inadequate and poorly placed, command post, and
once the SWAT Team members began to arrive on the scene, he failed
to order them to respond to the tactical command post. This investigation
has shown this to be a key element exacerbating the sense of false
urgency and consequentially, to accelerating the tempo of this operation.

Lieutenant Mufarreh was responsible, in part, for developing the plan to


form an ad hoc team from the members of the SWAT Team who had
arrived on the scene.

Lieutenant Mufarreh made an unreasonable analysis of the information


provided by Lieutenant Joyner and his confidential informant This
unreasonable analysis resulted in the creation of an overriding feeling
Mixon was not inside the residence. It was chiefly this unreasonable
analysis that catastrophically resulted in the lack of use of any options
whatsoever to determine whether the suspect was inside the residence
and the lack of the use of any tactical methods whatsoever to gain a
tactical advantage for the Entry Team members prior to sending them
inside the apartment.

Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
Entry Team inside the suspects apartment without attempting to confirm
whether or not Mixon was inside the residence.

Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
Entry Team inside the suspects apartment without attempting to
negotiate to afford Mixon the opportunity to give himself up and to safely
be taken into custody.

Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
Entry Team inside the suspects apartment without evacuating the other
occupants of the apartment building. According to Lieutenant Mufarreh,
this prevented the use of chemical agents and created a situation in
which public safety was significantly threatened by the occurrence of a

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firefight within the building.

Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
Entry Team inside the suspects apartment without waiting for the rest of
the SWAT Team to be in place.

Lieutenant Mufarreh was an integral part of the plan to send the ad hoc
Entry Team inside the suspects apartment without the use of any tactical
options other than entry. This act had a direct causal effect upon the fact
that the team made entry without having established any tactical
advantage over the suspect.

BoI Finding: Acting Lieutenant Blair Alexander: APPROPRIATE COMMAND


CONDUCT
Acting Lieutenant Alexander responded quickly, made appropriate assessments,
and did a good job of establishing the outer containment perimeter and
managing the traffic congestion. He seemed very clear as to his role and
responsibilities and adhered to them.
BoI Finding: Lieutenant Ersie Joyner: APPROPRIATE CONDUCT
Lieutenant Joyner was put in contact with a confidential informant, while just
stepping off a flight from off-duty travel. He utilized and validated the informant
and developed critical information with respect to Mixons location. He contacted
the Communications Division for the Watch Commander in charge and passed
the suspects location information along to Lieutenant Mufarreh. He further
arrived at the scene and worked with the informant to refine the information.
Lieutenant Joyner had no incident command role or responsibility.
BoI Finding: Captain Ricardo Orozco: GROSS DERELICTION of DUTY
Captain Orozco was en route to the hospital when he received a call from
Captain Tracey, requesting that he go directly to the scene and fulfill the role of
Tactical Commander if needed. This was appropriate since Captain Tracey was
staying at the hospital with the families of his two slain officers. Although he
accepted the role of Tactical Commander, Captain Orozco seems not to have
exercised the most minimal level of responsibility. He appears to have
completely deferred to Lieutenant Mufarrehs plan to force entry without
necessary and sufficient consideration. The fact that the entry was made within
10 minutes of his apparent arrival on scene suggests that it is unlikely that any
meaningful review of the options was undertaken.[24] Apparently, Captain
Orozco, a recently transferred Tactical Commander, seems to have accepted the
unreasonable sense of urgency presented by Lieutenant Mufarreh. He did this

24

It appears the BoI is incorrect when it suggests Capt. Orozco was on site for only 10 minutes prior
to the entry. It appears he was present for closer to 25 minutes

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without question, rather than exercising the independent judgment expected


from a competent command officer to slow the pace of the operation until all the
information and support elements were in place.
The Board reviewed and considered the following findings by the Internal Affairs
Division Use of Force Report in reaching its finding regarding Captain Orozco's
Gross Dereliction of Duty during this critical incident.
Captain Ricardo Orozco GROSS DERELICTION of DUTY

Captain Orozco allowed Lieutenant Mufarreh to place himself in the role


of a Tactical Commander knowing he was not qualified per the SWAT
Team's standard operating procedure. In so doing, Captain Orozco
created an environment in which there was confusion regarding who
really was the Tactical Commander.

Captain Orozco violated the Department's policy by allowing Lieutenant


Mufarreh, who was not the Tactical Commander, to brief and give orders
to the members of the Entry Team who were eventually ordered in to
enter and clear Mixon's apartment.

Captain Orozcos assertion he did not believe the suspect was inside the
residence is in contradiction to some of the actions that were taken. The
assertion is not reasonable considering the information that was
inarguably known at the time. Captain Orozcos actions and decisions
compel the conclusion that the suspect was contained inside the
apartment; however, Captain Orozco failed to exercise due caution with
regard to the tactical plan.

Captain Orozco approved Lieutenant Mufarrehs plan to have members


of the ad hoc Entry Team enter and clear the Mixon's residence.

Captain Orozco was unable to articulate a lawful justification for entry into
Mixons apartment. Therefore, although the entry was lawful under the
auspices of fresh pursuit because a reasonable officer would believe the
suspect to likely be inside the apartment, Lieutenant Mufarreh gave an
unlawful order if he did not truly believe the suspect to be inside the
residence.

Captain Orozco did not provide clear leadership by reporting to the


established, albeit inadequate and poorly placed, command post, and
once the SWAT Team members began to arrive on the scene, he failed
to order them to respond to the Tactical Command Post. This
investigation has shown this to be a key element exacerbating the sense
of false urgency and, consequentially, to accelerating the tempo of this
operation.

Captain Orozco was responsible, in part, for developing the plan to form

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an ad hoc Entry Team from the members of the SWAT Team who had
arrived on the scene. As the Tactical Commander, he was largely
responsible for the decision to implement the plan to make entry.

Captain Orozco was an integral part of the plan to send the ad hoc Entry
Team inside the suspects apartment without attempting to confirm
whether or not the suspect was inside.

Captain Orozco was an integral part of the plan to send the ad hoc Entry
Team inside the suspects apartment without attempting to negotiate to
afford Mixon the opportunity to give himself up and to safely be taken into
custody.

Captain Orozco was an integral part of the plan to send the ad hoc Entry
Team inside the Mixons apartment without evacuating the apartment
building. This prevented the use of chemical agents and created a
situation in which public safely was significantly threatened by the
occurrence of a firefight within the building.

Captain Orozco was an integral part of the plan to send the ad hoc Entry
Team inside Mixons apartment without waiting for the rest of the SWAT
Team to be in place.

Captain Orozco was an integral part of the plan to send the ad hoc Entry
Team inside Mixons apartment without the use of any tactical options
other than entry. This act had a direct causal effect upon the fact the
team made entry without having established any tactical advantage over
the suspect.

As the Tactical Commander, Captain Orozco was primarily responsible


for the tactical decisions that were made.

BoI Finding: Captain Anthony Rachal: MINIMALLY APPROPRIATE


Command Conduct with Qualifications
Captain Rachal was the Area III Commander with overall responsibility for the
area where this incident occurred. The Board found that his performance that
day was deficient. He appears to have done nothing to further the mission or
control the critical incident or exercise his rank in an appropriate manner.
Specifically, he was Lieutenant Lindseys immediate supervisor, and she called
him from the initial officer down crime scene minutes after the shooting.
Lieutenant Lindsey was just promoted and newly assigned as an Area III Watch
Commander although she had no recent patrol operational experience nor had
she been to command officer training. She was thrust into the middle of a tragic
murder of police officers and an active search for an armed and dangerous
suspect. She was unprepared for the responsibilities to command and control a
large-scale critical incident. Captain Rachal, upon notification, unreasonably
extended his response time to the scene in order to obtain his police vehicle,

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which was in the opposite direction of the crime scene but even then he failed to
acquire a hand-held radio or uniform. He did little to monitor the situation or
advise Lieutenant Lindsey of the command and control steps necessary during a
critical incident of this nature. After approximately 90 minutes, Captain Rachal
arrived on scene. Captain Rachal took few steps to determine what precisely
was occurring or to determine whether Lieutenant Lindsey required additional
assistance or direction and did not perform as an Area Commander. He did not
fulfill the role of providing support to an inexperienced commander who was
being overwhelmed by the complexity of circumstances.
BoI Recommendation:
The OPD Chief of Police should identify remedial measures to ensure that
this commanders minimal performance is corrected.
BoI Finding: Deputy Chief David Kozicki: GROSS DERELICTION of DUTY
By OPD policy, upon his arrival, Deputy Chief Kozicki became the Incident
Commander. As such, responsibility for command and management of the entire
critical incident rested upon him. It is worthy of note that he did not explicitly
indicate over the police radio that he was formally assuming the responsibility of
Incident Commander. The first step for the arriving senior staff is to make an
immediate overall situational assessment. There is no indication that any
detailed inquiry was undertaken as to the appropriateness of Lieutenant
Mufarrehs decision to expedite entry into the location of interest, other than to
inquire as to whether a search warrant was required. In fact, after the briefing by
Lieutenant Mufarreh on the immediate plan to enter and clear the apartment, the
Deputy Chief was directly asked by Captain Orozco if he was OK with the plan,
and Deputy Chief Kozicki indicated he was. He said later, in his statement to
Homicide Investigators, that he had not seen anything that was reckless or red
flags involved or associated with the expedited dynamic entry plan. However,
he did order that medical personnel and equipment stage close to the location
prior to the ad hoc Entry Team moving forward. After the entry was made and
two SWAT Team officers were being medically evacuated, Deputy Chief Kozicki
assumed Incident Command and ordered that all non-SWAT personnel clear the
area of 2755 74th Avenue.
The Board reviewed and considered the following findings by the Internal Affairs
Division Use of Force Report in reaching its finding regarding Deputy Chief
Kozickis Gross Dereliction of Duty during this critical incident.
Deputy Chief David Kozicki - GROSS DERELICTION of DUTY

Deputy Chief Kozicki perpetuated the confusion surrounding command


and control during the course of this incident by appearing on the scene,
engaging in dialogue regarding the tactical plan with Lieutenant Mufarreh
and Captain Orozco, but failing to advise the Communications Division he
had assumed incident command. Deputy Chief Kozicki could not have
reasonably believed he was not viewed as the incident commander by

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Captain Orozco and Lieutenant Mufarreh.

Deputy Chief Kozicki did not provide clear leadership by reporting to the
established command post, and once the SWAT Team members began
to arrive on the scene, he failed to order them to respond to the Tactical
Command Post. This investigation has shown this to be a key element
exacerbating the sense of false urgency and consequentially, to
accelerating the tempo of this operation. Deputy Chief Kozicki
participated in or listened to the conversation in which the plan to form an
ad hoc Entry Team from the members of the SWAT Team who had
arrived on the scene.

Deputy Chief Kozicki gave approval of the plan to send the ad hoc Entry
Team inside Mixons apartment without attempting to confirm whether or
not the suspect was inside.

Deputy Chief Kozicki gave tacit approval of the plan to send the ad hoc
Entry Team inside the suspects apartment without attempting to
negotiate or afford Mixon the opportunity to give himself up and to be
taken safely into custody.

Deputy Chief Kozicki gave tacit approval of the plan to send the ad hoc
Entry Team inside the suspects apartment without evacuating the
apartment building. This may have prevented the use of chemical agents
and created a situation in which public safety was significantly threatened
by the occurrence of a firefight within the building.

Deputy Chief Kozicki gave tacit approval of the plan to send the team
inside the suspects apartment without waiting for the rest of the SWAT
Team to be in place, thereby creating an ad hoc team.

Unlike Lieutenant Mufarreh and Captain Orozco, Deputy Chief Kozicki


does not assert he did not believe the suspect was inside the residence.
His statement regarding the existence of a likelihood Mixon was inside
the apartment and a likelihood he was not indicates he believed there
was a higher probability the suspect was inside the apartment than that
assigned by Lieutenant Mufarreh and Captain Orozco. Considering his
lengthy service with the SWAT Team, Deputy Chief Kozicki should have
recognized the need, in terms of safety, to utilize other tactical options in
lieu of making an entry.

Deputy Chief Kozicki gave tacit approval of the plan to send the ad hoc
Entry Team inside Mixons apartment without the use of any tactical
options other than entry. This act had a direct causal effect upon the fact
that the team made entry without having established any tactical
advantage over the suspect.

As the Incident Commander, Deputy Chief Kozicki was ultimately

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responsible for the decision to allow the members of the ad hoc Entry
Team to make entry into the suspects apartment. He acknowledges
knowing what the plan was and admits to failing to intervene in the
initiation of the plan.

JX 3 pp. 34-41.
Two of the outside experts who served on the Board of Inquiry testified at the arbitration

hearing in this grievance: Captain Phillip Hansen (Los Angeles County Sheriffs Department)

and Assistant Sheriff Brett Keteles (Alameda County Sheriffs office). Both Capt. Hanson and

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Deputy Sheriff Keteles have extensive experience in tactical operations and are viewed as experts

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in the field.

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According to Captain Hansen, the Independent Board of Inquiry was asked to evaluate

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performance of all the command staff involved with the March 21 incident, including Lt.

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Mufarreh, Capt. Orozco and Deputy Chief Kozicki. The Board was provided with extensive

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documentation, photographs and video footage. Capt. Hansen also listened to audio tapes of the

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interviews with some of the witnesses, including Capt. Orozco and Lt. Mufarreh. Capt. Hansen

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also attended the BoIs three-day hearing when the Board heard from a number of witnesses.

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Captain Hansen testified the first two days were primarily spent in receiving presentations from

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members of the OPD including Internal Affairs and Homicide. The third day was spent in

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deliberations.

21

In their testimony, Capt. Hansen and Sheriff Keteles provided very useful insights into

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best practices for SWAT units. They identified possible weaknesses in the OPD tactical

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operations approach, and critiqued the performance of the OPD officers involved in the March 21

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entry into the 74th Avenue apartment including Lt. Mufarreh, Capt. Orozco and Deputy Chief

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Kozicki, but also expressing concerns with actions of the Tactical Team members and the actions

and views of Capt. Tracey, OPDs designated tactical leader on March 21 and someone viewed

by the Department as OPDs leading in-house tactical expert. The views and concerns of Capt.

Hansen and Sheriff Keteles are addressed in the Discussion section, infra.

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V.

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THE DECISION TO IMPOSE DISCIPLINE (DEMOTION), AND SUBSEQUENT


APPEALS.
In January 2010, Chief Batts notified Lt. Mufarreh and Capt. Orozco that he intended to

discipline them by demoting them two ranks, i.e., from lieutenant to officer (in Mufarrehs case)
and from captain to sergeant (in Orozcos case).
A pre-disciplinary Skelly hearing was held March 17, 2010, before Joseph Brann, an

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outside professional designated by OPD to serve as the hearing officer. A single hearing was

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held to address the actions being proposed with regard to both Lt. Mufarreh and Capt. Orozco.

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Mufarreh and Orozco were represented by counsel (Mr. Rains), who submitted an extensive

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written pre-hearing statement (JX 8) and also presented oral argument before the hearing officer.

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The City also was represented by counsel, who argued the Citys position orally and submitted a

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written post-hearing statement (JX 9).


Hearing Officer Brann submitted his reports25 on May 7, 2010, concluding the proposed

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discipline (demotion) was supported. The reports were very brief, each being about 1-1/2 pages

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in length.

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The materials relating to the proposed demotions then were forwarded to City

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Although a single, joint hearing was held, Brann opted to submit two reports, addressing separately
the proposed actions against Lt. Mufarreh and Capt. Orozco.

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Administrator Dan Lindheim. In separate letters to Lt. Mufarreh and Capt. Orozco dated May

14, 2010, Administrator Lindheim expressed his concurrence with the finding that the two

officers had been grossly derelict in their duties, in violation of the OPD Manual of Rules,26

and therefore the demotions would be implemented. JX 11, 12.

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VI.

A SEPARATE MATTER: THE FEBRUARY 2008 SHOOTING OF OFR. KEVIN


McDONALD, THE DYE CASE, AND THE SUBSEQUENT GRIEVANCE OF
SGT. RANDY WINGATE.
At the arbitration hearing in this case, Grievants introduced into evidence an arbitration

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award issued March 17, 2010, by Arbitration Harris. UX 3. The award involves a dispute

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between the City of Oakland and the Oakland Police Officers Association over the termination of

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Sgt. Randy Wingate. Arbitrator Harris sustained the grievance and reinstated Sgt. Wingate. In

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Grievantss view, some of the issues raised in the Wingate grievance were similar to issues

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present in the instant grievance. In addition, Grievants introduced an Oakland Police Department

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Executive Force Review Board Memorandum (dated February 18, 2008, UX 2) relating to some

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of the events that gave rise to the decision to discharge Sgt. Wingate.

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The following description is based upon the facts and analysis provided by Arbitrator
Harris in her Decision.

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As litigated before Arbitrator Harris, the City based it decision to discharge Sgt. Wingate

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on two incidents, referred to as the Porter case and the Dye case. Although the Citys initial

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Administrator Lindheims 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.

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rationale for discharging Sgt. Wingate also involved a third incident (the Gay case), the City

abandoned its allegations against Sgt. Wingate regarding the Gay case at the beginning of the

hearing.

The Porter case is of less relevance to the dispute before me involving Capt. Orozco and

Lt. Mufarreh. In April 2007, Sgt. Wingate attempted to stop several known gang members

believed to be associated with a homicide. Porter was participating in the group. Porter was

restrained, taken to the ground and handcuffed, and then placed in a patrol vehicle assigned to

Ofr. Omega Crum. Porter subsequently was questioned while in the patrol car, but after the

handcuffs had been removed.

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Later, Ofr. Crum noticed that his (Ofr. Crums) cell phone was missing. Efforts were

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made through the cell phone company to have calls from the lost cell phone redirected to Ofr.

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Crums work phone. It was determined Porter had taken the phone. Several days later, Sgt.

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Wingate and other police officers learned Porters location through a confidential informant.

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They attempted to apprehend Porter, but he refused voluntarily to come out of the apartment

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where he was located. Eventually, the officers made a forced entry into the apartment. They

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found some marijuana, apparently in plain sight. They were advised the cell phone had been

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destroyed, and it was not recovered. Porter alleged the officers (including Sgt. Wingate) used

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excessive force, and an investigation was begun.

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While the Porter matter was being investigated, Sgt. Wingate was involved in a second
incident, the Dye case.
On May 19, 2007, at approximately 12:19 AM, OPD Ofr. Kevin McDonald was shot
twice following a traffic stop. Ofr. McDonald was wounded, but he was able to withdraw from

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the situation and broadcast a description of the vehicle and the suspects. The vehicle was found

abandoned a few blocks away from the scene of the shooting.

As is typical in situations where a police officer is shot, a large number of other officers

responded. A command post was established at the Eastmont substation site, 73rd Avenue and

MacArthur Boulevard. Among the officers who responded to the Eastmont location were the

Watch Commander, Lt. Lawrence Green, and Deputy Chief Jeff Israel.

At some point, an informant appeared, claiming that the shooter was hiding in a crawl

space under a house; however, the informant demanded payment of money in exchange for

providing the address. Sgt. Wingate, along with two other police sergeants, deemed the

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informant credible and obtained authorization from Deputy Chief Israel to make the payment.

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At the time, all the officers who were in contact with the informant believed the

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information being provided about the location of the suspect related to the person who shot Ofr.

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McDonald. This turned out to be incorrect. The individual hiding under the house was not the

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shooter, but instead simply had been in the same car with the individual who shot Ofr.

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McDonald.

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According to Arbitrator Harris, the senior staff at the Eastmont command post (Lt. Green,

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Deputy Chief Israel and then-Captain Kozicki) decided it was not necessary to issue a blue

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alert and call out a full Tactical Team.27 An action plan was developed. According to

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Arbitrator Harris, the tactical approach to the situation was developed collaboratively, but under

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the leadership of Sgt. Wingate and Sgt. Romans.

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Several of the persons principally involved with developing the plan of action had substantial tactical
operations experience, including Kozicki and Sgt. Romans.

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It was decided to send a canine into the crawl space, presumably to confirm the suspect

was present and also in the hope the canine would be able to flush the suspect from the crawl

space. At the later arbitration hearing, Sgt. Romans explained the police unit decided they would

not make an announcement or call out the suspect before sending the canine into the crawl space,

because the police officers were afraid the suspect (who they believed already had shot twice at a

retreating police officer) would kill the dog. Lt. Green had deemed an announcement too risky

because they had not actually confirmed the location of the suspect.

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Sgt. Romans was tasked with securing the perimeter around the house, and Sgt. Wingate
was assigned to contain, isolate and contact the suspect, consistent with the plan developed

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earlier at the command post. Around 3:00 AM, an entry team approached the house. The team

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was led by Sgt. Wingate, accompanied by two rifle officers and Ofr. Dan Sakai, who was then a

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canine officer and in charge of handling the dog.

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Per the plan, one of the officers (Sgt. Wingate) opened the top-hinged hatch leading to the

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crawl space. The interior of the crawl space was illuminated, and the suspect was observed about

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6 or 7 feet inside the space, lying on his side. According to the testimony in the arbitration case,

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the suspects face was covered and the officers were unable to see his hands. The officers

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commanded the suspect to show his hands, but he did not comply, nor did the suspect respond

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verbally. Sgt. Wingate directed then-Ofr. Sakai to deploy the canine. The dog entered the space

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and immediately began biting the suspect on the shoulder. In response to the dogs action, the

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suspect moved his hands down toward his waistband. One of the rifle officers (Ofr. Roche)

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perceived the suspect was seeking a weapon. The police officer opened fire, shooting the suspect

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in the head and killing him.

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It later was determined the deceased person, Jeremiah Dye, was unarmed, and there were

no weapons under the house. Further, Dye was not the person who had shot Ofr. McDonald,

although Dye had been in the car with the shooter, who was Dyes cousin.

In December 2007, the then-Oakland Chief of Police, Wayne Tucker, issued a Medal of

Merit to Sgt. Wingate for exceptional performance of duty in removing a violent and dangerous

felon from the streets of Oakland. UX 3 p. 12. Deputy Chief Israel had played a role in

recommending the award of the medal. At the time the medal was issued, however, OPDs

internal investigation into the use of force in the Dye matter still was pending. Later, after a

lawsuit was filed, Chief Tucker asked that the medal be withdrawn.

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According to Arbitrator Harris, when Sgt. Wingate originally was interviewed by

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Homicide investigators concerning the fatal shooting of Dye by Ofr. Roche, Sgt. Wingate stated

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he did not want to announce the officers presence outside of a crawl space because it was

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believed the suspect had just shot an officer (McDonald), and Sgt. Wingate did not want the

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suspect to just start shooting. Also, although there had been some discussion of using gas to help

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subdue the suspect, this had been ruled out because the police officers planning the action did not

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want to risk affecting the dog they intended to send into the crawl space.

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Subsequent to the Dye shooting, Sgt. Danielle Bowman of OPDs Internal Affairs Unit

18

conducted an investigation and prepared a Report, issued February 18, 2008. According to

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Arbitrator Harris:

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In her report . . . [Sgt. Bowman] reached the following conclusions:


Based on all the evidence, testimony and facts, it is reasonable to
believe that at the moment Roche made the decision to shoot, he
believed that he was facing an imminent threat of serious bodily injury

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or death. Roches actions were reasonable and within Departmental


policy.
Based on all of the evidence, testimony and facts, [Sgt. Wingates] and
Romans decision not to announce their presence outside of the hatch
because of the potential danger to officers on the scene was reasonable
and within Department policy.
Sgt. Bowman further noted some issues with regard to the command and
control structure, i.e., while Lt. Green considered himself to be the tactical
commander and Deputy Chief Israel to be the incident commander, Deputy
Chief Israel (the highest ranking officer at the scene) did not consider
himself to be the incident commander. She further concluded that an ad
hoc entry team was not formed because 1) looking under the house was
not an entry; and 2) an entry team call-out would have been initiated, time
allowing, once the suspects location under the house had been validated.
In her report, Sgt. Bowman also stated:
Realizing that hindsight is 20/20, securing the perimeter of the house
and waiting for the Tactical Team and its resources may have allowed
OPD to exhaust all available means, and possibly allow the suspect to
surrender, prior to opening the hatch to the crawlspace, and therefore
eliminating the potential of encountering a chance contact. It is also
likely that after exhausting these means, that the officers would have
had to open the crawl space anyway. The disadvantage of waiting for
the Tactical Team would have been not knowing for sure whether the
suspect was, in fact, beneath the house immediately after the
information was received.
UX 3 pp. 23-24.
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,

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the Incident Commander, the EFRB28 exonerated him from culpability.29

At the subsequent arbitration hearing, Lt. Green testified he was astonished that Sgt.

Wingate was being charged with a serious violation, while he (Lt. Green) was being charged with

a less serious violation and Deputy Chief Israel was not being charged at all:

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. . . the reality is that everything that happened was the responsibility of


Wingate, me, Israel, and I would also say Kozicki. That the only part
that was really open for [the Grievant] where he had to completely act on
his own was once the hatch was opened. And once the hatch was opened,
then he just had to deal with what he had. And some people were
speculating, oh, why didnt you close the hatch or something like that, but
once you have your gun on a suspect, theres no point it would be idiotic
to lose the position of advantage. So all the way up to the point where he
engages the suspect, with opening the hatch, that was authorized by me,
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 Sheriffs Office) argued Sgt.

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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

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practice by failing to call out the suspect before opening the hatch into the crawl space. In Cdr.

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Jurados 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.

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Sgt. Blair Alexander testified on behalf of Sgt. Wingate with regard to possible violations

28

29

Asst. Chief Jordan was a voting member of the EFRB.

In Arbitrator Harriss 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.

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o policy. In Sgt. Alexanders view, the time gap between the receipt of information from the

informant and the arrival at the house would have given officers reason to question whether or

not the suspect would still be in the crawl space. Alexander opined that announcing the officers

presence and calling out the suspect would not have provided any tactical advantage

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if the suspect knew that the officers were outside the hatch he could have
fired his weapon shooting through the hatch. Even if the suspect knew the
officers were in the area, he still did not know that the officers were about
to seize the initiative, i.e., an advantage which would have been forfeited
had they announced their presence with bullhorn and requested that the
suspect come out with his hands up.
UX 3 p. 30.30

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In her Opinion and Award, Arbitrator Harris rejected the Citys 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-

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involved shooting of Dye. Arbitrator Harris pointed to other aspects of Deputy Chief Israels

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testimony as inconsistent and ultimately not deserving of credence. UX 3 p. 41.

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Inter alia, Arbitrator Harris concluded that the grievant had not assembled an ad hoc

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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.

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Arbitrator Harris criticized the OPD for inconsistent discipline, observing Capt. Breshears
had concluded Deputy Chief Israel and Lt. Green should have activated a SWAT callout, but

30

According to Arbitrator Harris, Sgt. Alexander also testified that OPD policy required the presence of
a suspect at a location to be verified before officers could call-out a Tactical Team. UX 3 p. 30. The
shooting of Ofr. MacDonald, and the killing of Dye, took place in May 2007, whereas the events at issue
in the matter before this Arbitrator took place in March 2009. No one has suggested such a verify first
policy was applicable in the instant case.

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neither was disciplined for their purported error in judgment even while Sgt. Wingate was

disciplined for not recommending that a SWAT callout be activated. UX 3 p. 42, n. 73. She

concluded that [n]otwithstanding the extensive Monday morning quarterbacking provided by

Capt. Breshears and Cdr. Jurado [the Citys outside use of force expert], the Arbitrator is not

convinced that the grievant committed any wrongdoing. UX 3 p. 43.

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Arbitrator Harris also was sharp in her criticism of IAD and Sgt. Whent:
Lt. Whent, who was in charge of both the Porter and Dye investigations,
was reformulating his conclusions at the arbitration hearing, i.e., upgrading
the violation to a more serious intentional illegal entry. These examples of
unfairness highlight the unrelenting manner in which evidence was
gathered to support the charges without sufficient consideration of all the
relevant facts and circumstances, e.g., . . . the participation of superior
officers in formulating the plan in the Dye matter . . .
UX 3 p. 44 (emphasis supplied).

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DISCUSSION

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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 Unions brief includes fully 22 different sections of detailed argument spanning

21

more than 90 pages in length.

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I have reviewed all arguments thoroughly, as well as the record. As discussed below, I
find the City did not have just cause to discipline Lt. Mufarreh and Capt. Orozco.
Necessarily, my analysis focuses primarily on the Citys arguments in support of the
disciplinary action. In this Arbitrators view, the Citys position fails for several reasons. With

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regard to some points, I find the Citys factual assessments simply are incorrect. In other

respects, I conclude the course of action taken apparently was consistent with OPD practice and

training, even if not fully compatible with notions of best practice. Additionally, I find the

Department acted improperly in singling out Lt. Mufarreh and Capt. Orozco for discipline, when

others within OPD (including others senior in rank to Lt. Mufarreh and Capt. Orozco) also were

present and participating in decision making (or, per OPD policies should have been participating

in decision making), but were not similarly held accountable.

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I.

THIS ARBITRATION AWARD, IN CONTRAST TO PRIOR OPD AND CITY


REVIEWS OF THE MARCH 29 INCIDENT AND THE ACTIONS OF LT.
MUFARREH AND CAPT. OROZCO.

12

At the outset of the Citys 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. Mufarrehs and Capt. Orozcos actions on March 21 were deficient

17

and constituted gross dereliction. The City then observes:

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Grievants now ask the arbitrator to review the facts yet again, come to a
different conclusion than that reached by IAD, the Board of Inquiry, Chief
Batts and the Skelly Officer, and reinstate them to their former position.
They argue that it is impossible to tell tactical commanders how to
exercise their discretion because they have to make the best judgment they
can under the circumstances of the moment. [citing Tr. II:45.] The City
strongly disagrees. The fact that a commander may exercise discretion
does not mean that he can ignore policy and exercise poor judgment
without facing discipline. The evidence presented to the arbitrator during
the seven day hearing, including 23 witnesses and more than 80 exhibits,
established that there was just cause for the discipline imposed. The

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grievances should be denied.


City Post-Hearing brief at 2.
As discussed below, this Arbitrator finds the City has not demonstrated it had just cause

to demote Lt. Mufarreh and Capt. Orozco. At the outset, it merits addressing why this Arbitrator

might reach a conclusion at this stage that is contrary to the conclusions reached earlier by others

who have reviewed these events.

The first observation to make is that this grievance arbitration represents the first time the

events of March 21, 2009, have been considered in a formal, adversarial proceeding, with the

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

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process, it is clear to this Arbitrator that the picture of what happened on March 21 that was

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developed at the arbitration hearing was richer and more complex compared with the earlier

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analyses, with additional significant facts. With a more-complete record, it is not surprising an

15

adjudicator might reach a different conclusion.

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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 Arbitrators 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

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afternoon of March 21, Lt. Lindsey was both the area commander for Area 3, and also the city-

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wide watch commander. In terms of the OPD structure, she therefore was the person expected to

take charge of commanding the incident, until relieved by a higher-ranking officer. Lt. Lindseys

testimony might have been relevant to multiple questions that have been raised in this

proceeding, including questions about the command structure on March 21, as well as questions

about the information being provided to Lt. Mufarreh and others relating to the suspects location

specifically, the likelihood the suspect was present at the 74th Avenue apartment. Without Lt.

Lindseys in-person testimony, and the opportunity for her to be cross-examined on the record,

the information she provided in her earlier reports and interviews is given diminished weight.

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II.

THE ALLEGATION LT. MUFARREH DE FACTO TOOK OVER INCIDENT


COMMAND FROM LT. LINDSEY, AND THEN PERFORMED
INADEQUATELY AND IN VIOLATION OF OPD GUIDELINES.
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

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OPDs response on March 21, I am not persuaded these problems uniquely can be placed on Lt.

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Mufarrehs shoulders. Further, the unfairness of blaming Lt. Mufarreh (primarily) for these

18

failures is especially stark when juxtaposed against the BoIs conclusion that Lt. Lindsey

19

demonstrated Appropriate Command - with qualification.

20
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A. Assumption of the Incident Commander role.

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In this Arbitrators 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

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himself as the Incident Commander and failed to perform all the necessary and required tasks.

Under OPD General Order M-4, Sections I.E.1. and 3.a., the ranking supervisor or command

officer shall assume command at the scene of a crime . . . [and] shall be responsible for directing

the activities and tasks of Departmental personnel at the crime scene. Additionally,

Investigators shall contact the ranking officer upon their arrival at the scene . . . and [i]f

superior in rank to the ranking Patrol Division member at the scene, the investigator shall clearly

communicate that he/she is assuming command and shall supervise the preliminary

investigation.

Both as the patrol commander in charge of Area 3 where the traffic stop shootings

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occurred, and also as the designated city-wide watch commander on March 21, there really is no

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doubt that Lt. Lindsey, per OPD protocols, was responsible for commanding the scene as the

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Incident Commander until relieved by a higher-ranking officer. Of course, Lt. Lindsey and Lt.

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Mufarreh shared the same rank, and there was no testimony from any witness suggesting any

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commonly-understood mechanism for Lt. Mufarreh to relieve Lt. Lindsey of her duties as

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Incident Commander, or for Lt. Lindsey to cede her duties to Lt. Mufarreh. In this context, it

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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

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extension, it strikes this Arbitrator as highly unfair to fault Lt. Mufarreh for failing to perform

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certain duties of the Incident Commander (e.g., setting up a proper command post), when OPDs

31

One could argue Lt. Mufarreh would have been guilty of insubordination and violating OPD General
Order M-4 if he had announced that he was taking charge as Incident Commander.

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own policies indicate this duty should have been performed under the direction of Lt. Lindsey.32

From the record in this case, it is abundantly clear there were multiple command and

control shortcomings on March 21 while OPD grappled with the aftermath of the shootings of

Ofr. Hege and Sgt. Dunakin. To their credit, it appears Lt. Mufarreh and Acting Lt. Alexander

were concerned that Incident Command responsibilities fell to Lt. Lindsey, who only recently had

been elevated to the lieutenant rank and had been returned to patrol division duties. Lt. Mufarreh

and Acting Lt. Alexander took the initiative to devise an allocation of command functions.

While this triaging approach was not developed with Lt. Lindseys initial participation, the

record shows she quickly concurred with it.

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Unfortunately, when dividing major responsibilities (crime scene, perimeter, search), it is

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unclear whether Lt. Mufarreh, Lt. Lindsey and Acting Lt. Alexander ever really discussed who

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ultimately was in charge as Incident Commander. Both Lt. Mufarreh and Lt. Lindsey engaged in

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actions that suggested each held incident command function. Thus at different times, both Lt.

32

In its report, the BoI states Lt. Lindsey initially . . . acted as an Incident Commander until the
response complexity began to overwhelm her, at which point she assumed a more limited role similar
to a sergeant, directing preliminary crime scene management and an investigative role. JX 3 pp. 22, 34.
In this Arbitrators 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. Lindseys 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
Arbitrators 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.

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Mufarreh and Lt. Lindsey contacted Communications to activate a blue alert, a function

normally reserved to the Incident Commander. Additionally, when Lt. Joyner broadcast a request

to speak with the watch commander in charge about the possible location of a suspect, both Lt.

Mufarreh and Lt. Lindsey responded.33 In terms of the early phases of the response, I believe

Capt. Hansen sized things up about right when he observed that Lt. Mufarreh as the senior

lieutenant present at the beginning of the response took the lead in helping divide duties, but

What was really lacking . . . was the identification of somebody being in clear command of the

whole situation. Tr. II:123.

But the question of claiming and announcing Incident Commander status does not

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involve merely Lt. Mufarreh and Lt. Lindsey, but extends further up the chain of command. As

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the events of March 21 developed, several higher-ranking OPD officials arrived at the crime

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scene, including Capt. Orozco, Deputy Chief Kozicki, Deputy Chief Breshears, and Acting Chief

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Jordan. Under the letter of General Order M-4, it would appear several of these higher-ranking

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officers may have had a duty to announce their arrival and assume the status of Incident

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Commander, yet none did apart from Deputy Chief Kozicki, who announced he was taking

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charge only after the shootings at the 74th Avenue apartment.

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As the BoI noted (JX 3 p. 23), it may be worthwhile for the Oakland Police Department

18

to revisit the assumption that the most senior-ranking officer at a crime scene automatically must

19

assume responsibility for commanding the event. The BoI suggested this policy may not be

20

consistent with best practices under the Incident Management System guidelines. Intuitively, it

33

Lt. Joyner testified he did not find it surprising that Lt. Mufarreh responded to his radio broadcast,
because Lt. Mufarreh had taken charge of the search function and Lt. Joyner was seeking to convey
information about the possible suspect location.

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would appear in many circumstances that the skills or expertise of the highest ranking officer at

the scene might not always be the best match for taking charge of the overall incident command

function, and the events of March 21 plainly point in this direction. For example, although

Acting Chief Jordan was present near the scene, it appears his primary focus was interfacing with

the senior political leadership of the City, monitoring community relations concerns and the

press, and monitoring the medical situation with Ofr. Hege and Sgt. Dunakin and notifications to

family. In their own way, these kinds of issues are just as essential as the crime scene

investigation function, and I do not suggest here that the Acting Chiefs focus on these other

concerns was misplaced. However, if OPD is going to hold Lt. Mufarreh to a strict interpret

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interpretation of the General Orders when justifying its decision to demote him, then it is

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reasonable to question why other OPD personnel are not held to a similarly strict reading of the

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General Orders.

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B. Responsibility for establishing and staffing a proper command post.

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One element of the criticism of Lt. Mufarrehs performance on March 21 relates to his

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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

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K-5 (applicable to the Tactical Operations Team), one of the duties of the Incident Commander is

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to [e]stablish an Incident Command Post in a strategic location . . . as soon as practical. He/she

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shall manage the command post operations and normally conduct operations from that location.

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Ex. 16 p. 10.

22

With hindsight, it is clear the response to the initial shootings of Ofr. Hege and Sgt.

-881

Dunakin was not handled well, and should have been slowed down and organized fully with

additional support staff. This is discussed in the BoI report, and also in the testimony of Capt.

Hansen, Asst Chief Keteles, Chief Batts and others. As Capt. Hansen noted, a command post

properly can be viewed as having two components: physical and functional. As appropriate to

the incident, there needs to be a place for the command staff to assemble, and also a place

appropriate to the full range of command functions that will be exercised.

Although the BoI focused much of its criticism specifically on Lt. Mufarrehs

performance, the Boards report also suggests by implication that OPD had not invested

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

-891

response to the shootings largely was an OPD affair. In this context, it was Capt. Hansens view

that activation of the ICS protocols may not have been essential; however, Capt. Hansen offered

that when responding to a major event like the shooting of a police officer, where a massive

response is predictable, a proper command post certainly is essential and needs to be somewhat

removed from the immediate crime scene, and located in a secure location. He observed that, in

practice, if the senior command staff is located on the front lines of the incident, their attention

inevitably will be drawn toward front-line details, when proper command management requires

the Incident Commander to maintain a more-global view of the crime investigation and all its

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. Hansens 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

Hansens 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

-901

Avenue apartment; a central command post could have helped assemble these leads, and contrast

them with contrary information (ultimately unreliable or even intentionally misleading) that was

being received from other sources suggesting the suspect had fled the area. Instead, Lt. Mufarreh

and others assembled on MacArthur Boulevard likely received only part of this information.

Similarly, shortly before the 74th Avenue apartment was entered, the likely identity of the

suspect was established and a small number of copies of his photograph printed and distributed;

although this distribution was taking place in the immediate vicinity of Lt. Mufarreh and Capt.

Orozco, it is unclear whether Lt. Mufarreh, Capt. Orozco or Deputy Chief Kozicki actually

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

-911

appeared there, expecting to find a command post being developed. However, Lt. Mufarreh did

not remain at the Eastmont site, nor did Lt. Lindsey ever make it to the Eastmont site. During the

relevant period, Lt. Lindsey and Lt. Mufarreh (and later, Capt. Orozco and Deputy Chief

Kozicki) essentially led the investigation and search operation from a stretch of MacArthur

Boulevard adjacent to the initial traffic stop shooting locale.

Multiple witnesses testified to being present at major crime incidents in Oakland where a

formal, staff command center had not been established at a location some distance from the

crime scene. Although a few officers testified they found it unsettling on March 21 that a formal

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 Arbitrators 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

-921

returned to patrol responsibilities. The BoI report suggests OPD did not provide Lt. Lindsey with

adequate support, and she was unable to deal successfully with an event of this complexity. In

this Arbitrators view, Lt. Mufarreh stepped up to the plate to assist Lt. Lindsey and assume

responsibility for the search component of the crime investigation, and she concurred with Lt.

Mufarrehs proposal that he take on this role. Although Lt. Mufarreh at times exercised some of

the authorities normally reserved to the Incident Commander, he did so in connection with the

search function. At no point did Lt. Mufarreh indicate to Lt. Lindsey or others that he was taking

control as Incident Commander, nor did Lt. Lindsey at any point announce she no longer was

responsible for the initial incident command.

10

Given the size of the event, it appears the ICS system or a comparable response should

11

have been initiated, and a formal command post should have been established with the Incident

12

Commander (whoever he or she might have been) directing activities primarily from the

13

command post. Although OPD plainly had the resources and experience to implement this

14

approach, it was not done. However, this Arbitrator finds the responsibility for failing to

15

implement this approach is diffuse and somewhat systemic, and not solely attributable to Lt.

16

Mufarreh. Further, OPD policies regarding the timing and circumstances for setting up a

17

command post are not absolute or definitive, but instead take a practical approach and rely on

18

staff judgment.

19
20

-931
2
3

III.

THE UNDERSTANDING OF LT. MUFARREH AND OTHERS REGARDING


THE SUSPECTS LIKELY PRESENCE IN THE 74TH AVENUE APARTMENT.
Although the crux of this case deals with broad command and control issues, and

compliance with OPD policies and procedures, arguably the most troubling and inflammatory

issues relate to Lt. Mufarrehs approach to the 74th Avenue apartment search, and specifically

the suggestion in the IAD report that Lt. Mufarrehs actions indicate he knew the suspect was

present in the apartment, yet failed to plan properly and advise the Tactical Team members:

8
9
10
11
12
13
14
15
16

Lieutenant Mufarrehs assertion that he did not believe Mixon was inside
the residence is in contradiction to the actions that were taken. The
assertion is not reasonable considering the totality of the circumstances
and the information which was inarguably known at the time. Lieutenant
Mufarrehs actions and decisions indicate a belief that the suspect was
contained inside the apartment, however, Lieutenant Mufarreh failed to
exercise due caution with regard to the tactical plan.
JX 1 p. 325.
As discussed further, below, there are a host of serious problems associated with the

17

decision to send the Tactical Operations Team into the 74th Avenue apartment. However, this

18

Arbitrator is convinced absolutely convinced that Lt. Mufarreh in good faith believed the

19

suspect was not present in the apartment unit, and therefore was mistaken in his assessment of

20

the risk associated with the operation. Further, while with hindsight we can say actionable

21

information was inarguably known to some, I am not at all persuaded this information was

22

inarguably known to Lt. Mufarreh, Capt. Orozco, Deputy Chief Kozicki and others in leadership

23

positions.

24
25

The evidence plainly shows there were two distinct camps among the OPD officers in
their evaluation of the 74th Avenue apartment.

-941

On the one hand, Lt. Joyner was convinced that the suspect likely was in the 74th Avenue

apartment, and he testified to this effect. From her statements, it also is plain that Lt. Lindsey,

too, felt there was a likelihood the suspect was present in the apartment. In terms of their

appreciation of the intelligence that was being provided, Lt. Joyner and Lt. Lindsey plainly were

better positioned than Lt. Mufarreh and others to have high confidence in this data because of

their ties to the community and their unique relationships with the informants.

Keeping in mind that CI Ellis initiated contact with OPD by calling Karla Rush to report

that he had some knowledge of the shooters identity and ties to the neighborhood, and the

suspects 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. Lindseys assessment of the reliability of Walkers 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 Elliss call to Karla Rush was made from Walkers 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

-951

conversations with both Lt. Joyner and Lt. Lindsey, and also Walker, plainly also came away

with the belief the suspect was likely to be present in the apartment, nearby

3
4
5

The degree of certainty over the suspects location, however, and the extent to which that
certainty was conveyed effectively to others in the command structure, is mixed.
For example, in her delayed and revised Supplemental statement submitted to Sgt. Cruz

as part of the Homicide investigation, Lt. Lindsey reports on her conversations with Walker.

According to Lt. Lindsey, Walker indicated she repeatedly had seen the suspect (Mixon) in the

neighborhood during the days before the shooting, and Walker linked Mixon with the woman

residing in the 74th Avenue apartment. According to Lt. Lindseys report,

10
11
12

Ms. Walker stated that she was sure that the suspect Mixon was inside of
the apartment building. Ms. Walker stated that at some point after the
shooting, she saw suspect Mixon in her backyard.

13

JX 57. In her IAD interview, Lt. Lindsey stated Walker claimed to have seen the suspect go in

14

there. JX 44 p. 17.

15

Although not mentioned in her Homicide Supplemental report, it appears Lt. Lindsey had

16

other information that lent added credibility and urgency to the belief that the suspect was present

17

in the 74th Avenue apartment. Thus, in her IAD interview, Lt. Lindsey reported:

18
19
20
21
22
23
24
25
26
27

And so we it was a group of us officers that walked over to the 2700


block of 74th Ave [during the period after the shooting of Ofr. Hege and
Sgt. Dunakin, but before the entry into the 74th Avenue apartment]. And
so we made contact with these group of women, because they were all
female and they started acting crazy, Dont go in there. I dont want yall
to kill my brother, you know, just acting a fool. And thats when we
knew something, this dude may be in this apartment. They did not want us
to go near there. So we started, you know, putting the information
together and then I went back and followed up with Ms. Walker to, you

-961
2
3

know, confirm why is everybody, you know, tripping off of this apartment
right here. And shes like, Cause thats where hes at.
JX 44 p. 15.

Lt. Lindsey told IAD she expressed a strong conviction about the suspects location to Lt.

Mufarreh and Capt. Orozco and others in the huddle during the period before the entry, even

while acknowledging her certainty was not 100% because she personally had not observed the

suspect enter the apartment. If Mixons presence in the apartment was a near certainty to Lt.

Lindsey (even if not 100%), it appears she was not communicating this additional information

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
13
14
15
16

Absolutely not. She never told me that she had any other information
about 2755 74th Ave ever, nor did I ever hear her say anything about that
on the radio. If I had, I would have felt a lot better about the information I
had from Clarence Ellis.
Tr. III:269.34

17

On his part, Lt. Joyners testimony carefully acknowledged what he knew, and what he

18

did not know, about Elliss report. Lt. Joyner acknowledged that Ellis, when asked, freely

19

admitted that he (Ellis) knew only that the suspect was associated with the 74th Avenue

20

apartment, but Ellis did not claim to have seen the suspect enter the unit after the initial traffic

34

According to Lt. Joyner, he continued to have extensive conversations with Lt. Lindsey after the illfated 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.

-971

stop shootings.35 In Lt. Joyners view, this actually enhanced Elliss credibility in his (Lt.

Joyners) estimation, because it demonstrated Ellis was being careful to be accurate and was not

embellishing his account. See Tr. III:256. Of course, Lt. Joyners appreciation for Elliss

credibility was not momentary, but was grounded in a somewhat extended history of

collaboration.36

Still, during his hearing testimony, Lt. Joyner also acknowledged there were reasons why

his (Lt. Joyners) personal belief in the accuracy of Elliss account might not have been shared by

others. First, Lt. Joyner acknowledged he (Lt. Joyner) was focused on a small piece of the

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. Joyners) 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 Elliss physical appearance,

35

Of course, Ellis also had seen the suspect flee in the direction of the 74th Avenue apartment after the
shooting of Ofr. Hege and Sgt. Dunakin.

36

It is evident Ellis was passionate in his support for the police on March 21. As noted supra, it appears
Ellis had rushed to the aid of Sgt. Dunakin after Dunakin was shot. Ellis then initiated the contact with
OPD via Karla Rush, to report the direction of the suspects flight and his possible association with the
74th Avenue apartment.

-981

demeanor and speech, Lt. Joyner commented he would not have been surprised if a stranger (e.g.,

Lt. Mufarreh) would have discounted Elliss report if you go based on appearance, absolutely.

Tr. III:248-49, 257.

It also merits noting that Lt. Mufarreh was not the only OPD officer to speak with Lt.

Joyner and/or Ellis, and apparently leave the discussion unconvinced the suspect had fled to the

74th Avenue apartment and was hiding there. Sgt. Andreotti, who was assisting Lt. Mufarreh

with the search component, and who was stationed on 74th Avenue, spoke with Lt. Mufarreh

about the possible location of the suspect and was advised by Lt. Mufarreh of the reports that the

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
15
16
17
18
19
20
21
22
23

I wanted to hear from [Lt. Joyner] the quality of the information that we
had or that he had that he passed on to us. My biggest concern was that in
my mind, this suspect was fleeing. He was actively fleeing. He was
getting out of the area. I base that off my experience.

24

Tr. VII:165. The information Sgt. Andreotti received directly from Lt. Joyner did not change the

25
26
27
28

opinion he had developed based on the initial conversation with Lt. Mufarreh:

If we were going to use essentially all our resources to contain this scene
[i.e., the 74th Avenue apartment], I wanted to hear from [Lt. Joyner] how
good the information was because we were using all our resources for this
right now. So there were no other searches going on, there were no yard
searches . . . going on.

Q. So you get off the phone with Lieutenant Joyner. What was your
personal belief concerning the likelihood of the suspect being in the

-991
2
3
4
5
6
7
8
9

apartment following that conversation with Lieutenant Joyner?


A. Well, based off my experience, I believe that the guy was not there. I
figured this was something we had to do, we had to clear the apartment
before we continue with the search. But in my mind, I was prepared to
do yard searches for several more hours.
Tr. VII:168.
Although it apparently was Lt. Mufarreh (with Lt. Joyner) who spoke directly with Ellis
while at Lt. Joyners 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. Joyners 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. Joyners testimony does not address what level of detail

15

was shared with Sgt. Sakai concerning Elliss information, and the extent to which Lt. Joyner

16

may have believed Elliss 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

-1001

apartment.

Finally, I note again the BoI report is equivocal whether all the relevant information

actually was transmitted to Lt. Mufarreh and others. Although praising Lt. Joyner and Lt.

Lindsey for doing a good job developing information from informants and community

members, the BoI report observes Unfortunately, such information was not transmitted,

disregarded, or not received by persons who had place themselves in decision-making command

and control capacity. JX 3 p. 22 (emphasis added).37

In sum, although Lt. Mufarrehs assessment of the likelihood the suspect would be

present in the 74th Avenue obviously was wrong, and tragically so, his conclusion and his

10

analytical approach was not as unreasonable as the IAD report would seem to suggest:

11

Both Lt. Joyner and Lt. Lindsey seem to have believed with some certainty that the

12

intelligence placing the suspect in the apartment was correct. However, their

13

conviction in part was informed by the fact that they each had long histories with their

14

informants (Ellis and Walker) that gave their reports enhanced credibility, and it is

15

unclear the extent to which their personal history with the informants and confidence

16

in them was relayed to others.

17
18

19

Although Lt. Lindsey later would report to the Homicide Division that Elaine Walker
was sure the suspect was in the 74th Avenue apartment, and that Walker actually

37

The BoI makes this observation in support of its criticism that the March 21 incident probably would
have been better managed if a true command post had been established, which presumably would have
made it more possible for the Incident Commander and staff to receive all such reports in a central
location and assemble the parts into a more-coherent whole.

-1011

had seen the suspect in a yard almost adjacent to the 74th Avenue apartment during

the moments after the initial traffic stop shooting, it is unclear how much of this

information was transmitted to Lt. Mufarreh and others, and in what form. Further,

Lt. Lindseys account of the efforts by women near 74th Avenue to deflect police

officers away from the apartment further supported the likelihood the suspect was

inside the apartment, but it is unclear that Lt. Lindsey reported the excited women

encounter to anyone. Lt. Mufarreh and Capt. Orozco repeatedly have stated they did

not receive this information from Lt. Lindsey, and they testified to this effect while

under oath. This Arbitrator found them credible. On the other hand, Lt. Lindsey was

10

not called to testify, and her representations have not been subject to challenge or

11

clarification by cross-examination under oath. Further, I find it significant this

12

information was not even shared fully with Lt. Joyner, either before the entry into the

13

apartment or after. Therefore this Arbitrator has serious reservations whether this

14

information was communicated by Lt. Lindsey to Lt. Mufarreh, Capt. Orozco and

15

Deputy Chief Kozicki, as claimed; at the very least, it does not appear to have been

16

communicated effectively.38
38

The IAD Report credited Lt. Lindseys 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. Lindseys 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 suspects 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?

-1021

From his testimony, Lt. Joyners conviction that Elliss report was probably right

was tempered by his (Lt. Joyners) recognition that no one had reported actually

seeing the suspect enter the 74th Avenue apartment after the initial traffic stop

shootings, and also the recognition that Lt. Mufarreh and others presumably were

receiving different leads from other sources.

Others at the scene (Sgt. Andreotti, Sgt. Sakai) who spoke with Lt. Joyner and were

near Ellis while these events were unfolding apparently also came to the conclusion

the suspect was unlikely to be present at the 74th Avenue apartment.

Although the BoI report points to the possibility that Lt. Mufarreh received and

10

disregarded relevant information about the suspects 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. Lindseys claim that she shared her information
with her colleagues. However, if the information was shared, it does not appear to have been shared very
effectively.
With respect to the second element of the IAD finding, i.e., that Lt. Lindsey had less of a reason to
lie about sharing the information, the IAD conclusion makes no sense to this Arbitrator. Lt. Lindsey
had only recently been elevated to the lieutenant rank, and she was both the area commander and the citywide 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. Lindseys concerns for her position and reputation would be comparable to those of Lt.
Mufarreh and Capt. Orozco.

-1031

provided to them, particularly the information being provided by Lt. Joyner and Ellis, I do not

believe at all they disregarded it. Further, the record in this case leaves serious questions

whether the information that had been developed by Lt. Lindsey was shared effectively with her

colleagues.

5
6
7
8
9
10

IV.

ISSUES RELATING TO THE DECISION TO USE DYNAMIC ENTRY,


SENDING THE TACTICAL TEAM INTO THE 74TH AVENUE APARTMENT.
A. Testimony relating to best practices and possible weaknesses in OPDs tactical
operations.

11

Although Capt. Hansen primarily was called to testify about the BoIs 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 Departments in-house tactical expert.

16

Capt. Hansens career has been with the LA County Sheriffs 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. Hansens 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. Hansens testimony is especially worthwhile

22

reading.

23
24

In brief, Capt. Hansen expressed the view that the dynamic entry option used by OPD
at the 74th Avenue apartment on March 21, 2009, is a high-risk tactic that should be used as a

-1041

first option only in very limited circumstances, and it was inappropriate in this instance. As

this Arbitrator understands Capt. Hansens testimony, unannounced dynamic entry may be

appropriate in situations where there are hostages who are in danger, or where there is critical

evidence that needs to be preserved that might be destroyed if a normal call-out procedure was

used first. If dynamic entry is to be used, it is essential that it be successful, and the key element

to having a successful dynamic entry is for the Tactical Team to surprise the occupants of a home

entirely. As an example, Capt. Hansen pointed to unannounced entries that might occur at 4:00

or 5:00 AM, when people normally would be asleep and unprepared for a SWAT Team entering

their unit. Capt. Hansen testified it is NTOA policy that dynamic entry only should be

10

considered if there is a problem that justifies its use; stated differently, dynamic entry should be

11

viewed as an exceptional tool, not a routine tool.

12

Although Lt. Mufarreh and his colleagues seemed very focused on whether the suspect

13

(Mixon) might have been in the 74th Avenue apartment, Hansen viewed this as largely irrelevant

14

in determining what procedures should have been used. He acknowledged that the decision-

15

making environment on March 21 following the shooting deaths of two police officers was

16

especially difficult. He has worked before in cases involving the death of a police officer, and it

17

was his experience that situations are a mess to manage. However, in his view, these are

18

exactly the situations when it is most important to follow protocol and to avoid short-cutting

19

procedures.

20
21
22

From his work investigating the March 21 incident, and reviewing OPD records, Capt.
Hansen concluded there were a number of problems with OPD policies.
One notable issue involved training, which also implicates the culture of the tactical

-1051

force. Capt. Hansen noted that tactical training typically is provided by two distinctly different

types of individuals: instructors who learned tactical operations in the military, and instructors

who come from a civilian law enforcement background. The perspective of a military operator is

quite different from the perspective of civilian law enforcement. Capt. Hansen noted that in the

military context, where a location is being stormed and conquered, it is possible the force might

suffer a loss of life and still view the operation as a success. There may be a predisposition to the

use of force, and once it is decided to enter a location there may be an inclination to continue

moving forward to reach a final outcome even if the Tactical Team encounters opposition, such

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. Hansens 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 Hansens

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

Departments maintenance of after action packets documenting the tactical operations that had

18

been implemented generally were unavailable.

19
20
21
22

With regard to the decision to enter the 74th Avenue unit, and the dynamic entry strategy
used, Capt. Hansen saw many deficiencies in the analytical process:

The apartment building had not been adequately scouted, and evacuation plans had
not been formulated in the event problems were encountered during the entry.

-1061

The Bearcat had been parked outside the 74th Avenue apartment for a lengthy period

of time; if the suspect was in the unit, any hope for a surprise entry already had been

lost, anyway.

Inadequate consideration was given to the potential for harm to third parties,

including other residents of the apartment building (who might be caught in a firefight

because they had not been evacuated), as well as other persons who might have been

present in the apartment with the suspect (such as the female who ran out of the unit

during the firefight, fortunately without being injured).

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 suspects 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. Hansens 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

-1071

smoke might actually be more disorienting to the entry team than to the target.

Further, he noted flash-bangs can generate intense heat, and create a risk of fire.

Capt. Hansen noted that, in his experience, it is fairly common for a Tactical Team to

spend substantial time staking out a target location, scouting the location, planning

evacuations, using tools such as throw-phones and bull horns, etc., only to learn at the

end that the target location was empty. In his view, this was normal and to be

expected.

not attempting other tactical strategies other than entry (bullhorns, evacuation, gas,

10
11

In Capt. Hansens opinion, the reasons offered by Lt. Mufarreh and Capt. Orozco for

etc.) simply did not make much sense.


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
15
16
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18
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21
22
23
24
25
26
27
28
29
30

Floyd:

[T]here are a couple of things in this [IAD] investigation that are clear
and that are not subjects of debate by the commanders that were out on
the scene. The first is the suspect was known to be associated with the
apartment, everybody agrees on that. The second is that the suspect
was know to have been seen running in that direction after he killed
[Sgt. Dunakin and Ofr. Hege]. [T]he third is that the firearm was not
recovered and the fourth is that Lieutenant Joyner and his CI believe[d]
the suspect to be inside the apartment. So knowing what was known at
the time, and thats how we have to judge this . . . would you say that it
was a sound tactical decision on the part of Captain Orozco to send the
team into that apartment without doing anything to establish a tactical
advantage for them?

Tracey: The tactical advantage that we have is the Bearcat. . . We have


overwhelming amount of firepower. . . We have highly skilled
individuals. We have five of our best team leaders. . . I mean
the best Im talking about the A team, going through that

-1081
2

door. That was it. So those are the advantages . . .


JX 65 pp. 62-63.

Capt. Hansen recalled having read Capt. Traceys interview comments previously. When

asked about Traceys comments that the tactical advantages were the Bearcat, overwhelming

firepower, superior tactical operators and Team Leaders, Capt Hansen responded:

6
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14
15
16
17
18
19
20
21

I do remember reading it [Traceys comments.] And I remember


thinking to myself that that was wrong . . .

22

He was wrong. Basically, those are all tools. The Bearcat is a tool.
Its a good tool, [great] tool. Firepower is a tool. And, of course, you
have excellent people there that are in and of themselves highly trained
tools.
Thats not the same as tactics[. . . . T]heyre components of what can
be a tactical advantage. But misused, they dont do you any good at all.
I remember reading[39] I think thats all well and good, but if hes not
holding all the cards, that doesnt do any good. Bearcat is not doing any
good in the living room or in the bathroom or in the back bedroom. . . . I
remember reading it, now that you brought it to my attention, and I had
some issues with what it said.
Tr. II:192.

23

Toward the conclusion of his testimony, this Arbitrator engaged Capt. Hansen in a

24

colloquy. Capt. Hansen confirmed it was his view that the decisions made by Lt. Mufarreh (and

25

ratified by Capt. Orozco and Deputy Chief Kozicki) on March 21 were not consistent with best

26

practices. Capt. Hansen confirmed that, in his opinion, standard OPD practices in some respects

27

were biased in favor of certain types of responses.

39

More likely, thinking.

-109This Arbitrator posed the following question:40

1
2
3
4
5
6
7
8

If Lt. Mufarreh or Captain Orozco was to say Listen, we did it the way
that we do things in Oakland, would it fair under those circumstances to
find them uniquely culpable for dereliction of duty if they are doing what
everybody has been doing in Oakland, even if it is inconsistent with best
practices and in some respects somewhat illogical?
Tr. II:233.

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
13
14
15
16
17
18

[Y]eah, its hard to beat guys up when thats the only tool theyve been
given in their toolbox. Its the only thing if you have a hammer and a nail,
it appeared to me to some degree the dynamic entry was, if thats what
youre talking about if you want to get specific, was the preferred method
of entry and thats what people have been trained and really know a
different way, to be honest with you.
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

OPDs 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 employers standard policies, the training they have received, and the employers commonly

40

I note the City objected to the question, basically protesting the implication that Lt. Mufarrehs and
Capt. Orozcos decisions on March 21 might have been consistent with standard or common practice in
Oakland.

-1101

accepted practice.

In this regard, I note two other areas that are problematic.

First, there is a significant gap in OPDs published policies. OPD General Order K-5

(Tactical Operations Team) provides generally the Departments procedure for structuring its

tactical operations unit. Organizationally, the OPD Tactical Operations Teams are part of the

Departments Special Operations Section. The last substantive section of G.O. K-5 states:

7
8
9
10
11
12
13
14

XI. SPECIAL OPERATIONS SECTION RESPONSIBILITIES


The Special Operations Section Commander shall insure the preparation
and maintenance of a written Tactical Team Policy and Procedure Manual
containing the standard operating procedures for the Entry Team, Sniper
Team and Hostage Negotiation Team. A copy of all policies and
procedures shall be forwarded to the Bureau of Field Operations Deputy
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
23
24
25
26
27
28
29

X. INCIDENT RESOLUTION
A. Incident resolution will be accomplished through courses of action appropriate
for the circumstances. In any event, a resolution will be accomplished with
the utmost consideration given to the safety of citizens, police personnel and
all involved parties. Common causes of action, which may be used alone or in
combination, are as follows:

-1111
2
3
4
5
6
7
8
9
10
11
12

1.
2.
3.
4.

5.
6.
7.
8.
9.
10.

Containment
Evacuation
Wait the situation out
Establish control over environmental conditions, (e.g., alter telephone service,
cut off water/gas/electricity, add spotlights or sound at night to deprive subject
of sleep.
Negotiations
Order subject(s) to come out and surrender.
Use of chemical agents and/or other less than lethal weapons
Sniper employment
Breach and entry of objective site
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 Arbitrators view, it is somewhat

21

striking that OPDs governing policy for Tactical Teams fails to incorporate this concept.

22
23

B. Lt. Mufarrehs and Capt. Orozcos 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. Orozcos 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.

-1121

Orozco) had information clearly indicating the suspect had been associated with the 74th Avenue

apartment. This information certainly was received from Lt. Joyner and Ellis; it is less clear the

extent to which Lt. Lindsey had transmitted the corroborating evidence she had received from

Walker, or had reported her encounter with the group of excited women in the vicinity of the

apartment. But there was enough information that Lt. Mufarreh responded, setting up an inner

perimeter around the 74th Avenue building, stationing the Bearcat opposite the building, and

assigning Sgt. Andreotti to lead the designated arrest team in the event the suspect was

apprehended.

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. Mufarrehs message seemed to be, I dont 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. Mufarrehs (and Capt. Orozcos) decision making

22

extends to the decision to enter the 74th Avenue apartment, rather than pursue other, less radical

-1131

options (including, per G.O. K-5, Article X: containment, evacuation, ordering subjects to come

out and surrender, negotiations, chemical agents, etc.). During various interviews after the

March 21 events, and in their testimony, Lt. Mufarreh and Capt. Orozco provided a variety of

explanations why alternatives other than breach and entry of objective site allegedly were

considered and rejected. As a result, the apartment building on 74th Avenue never was

evacuated prior to the entry into the apartment unit, nor were basic steps taken to ascertain

whether the suspect (or anyone else) actually was present in the apartment.

This Arbitrator heard Lt. Mufarrehs and Capt. Orozcos testimony on these questions,

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 suspects

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 Arbitrators 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

-1141

a Tactical Operations Team employing a dynamic entry approach.41 In a way, Lt. Mufarreh may

even have felt he was being conservative using a trained, equipped and armed Tactical Team to

clear the apartment unit, rather than allowing patrol officers to perform the task. And as

discussed in the prior section, there is nothing in OPDs written policies barring the use of entry

as a first response when using Tactical Teams. Capt. Hansen expressed the opinion that OPD

was somewhat over-reliant on dynamic entry techniques (once entry was elected).

7
8

Although the entry action was poorly conceived and implemented in multiple respects, I
do not believe Lt. Mufarreh or Capt. Orozco were dishonest in their accounts of their actions.

9
10
11
12

V.

WHETHER LT. MUFARREH AND CAPT. OROZCO IMPROPERLY ASSUMED


TACTICAL CONTROL, WHEN NEITHER WAS CERTIFIED TO PERFORM
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. OPDs primary Tactical

16

Commander is the Special Operations Section Commander, although additional Tactical

17

Commanders may be designated by the Chief of Police to serve in the absence of the SOS

18

Commander. Additionally, Assistant Tactical Commanders can be designated to serve during

19

operations.

20
21

The Tactical Commander is subordinate to the Incident Commander, and under G.O. K-5
decisions to engage in tactical operations are made by the Incident Commander. However, per

41

Ironically, if Lt. Mufarreh had asked someone in patrol to check out the apartment, it is quite possible
many of the arguments relating to his possible assumption of tactical command duties might not have
been raised. However, it is almost certain a different set of questions would been posed.

-1151

Section I.D., once a Tactical Commander and Tactical Team Leader arrives at an incident scene,

Tactical Operations Team members are to receive orders only from the tactical operations chain

of command (Team Leader, Tactical Commander, Incident Commander).

Capt. Orozco previously had been credentialed to serve as a Tactical Commander, but he

had relinquished this position prior to March 21. Lt. Mufarreh had been designated to become a

Tactical Commander, but he had not yet been credentialed. The City argues both officers

improperly functioned as Tactical Commanders at various points, in violation of OPD rules.

8
9
10

From a purely technical standpoint, the Citys argument may have some merit. However,
in this Arbitrators view, the actions of Lt. Mufarreh and Capt. Orozco must be evaluated in the
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

-1161

authority and should stand down as Tactical Commander.42

Lt. Mufarreh was on site for much longer than Capt. Orozco and Deputy Chief Kozicki,

and he had been involved with the efforts to identify and locate the suspect. Lt. Mufarreh played

a major role in developing the decision to enter the unit, but Lt. Mufarreh personally did not

make the final decision to order entry into the 74th Avenue apartment. In fact, Lt. Mufarreh

waited until more-senior officials arrived, without initiating any tactical action in reference to the

apartment unit.

8
9

The final approval of the plan to enter the apartment was made by Capt. Orozco, with the
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. Mufarrehs role in briefing the Tactical Team did

14

not elicit any indication of concern from the Tactical Team members, or from others present at

15

the scene with substantial tactical experience (Capt. Orozco, Deputy Chief Kozicki, Deputy

16

Chief Breshears).

17
18
19

VI.

WHETHER LT. MUFARREH AND CAPT. OROZCO VIOLATED OPD POLICY


PROHIBITING THE USE OF AD HOC TACTICAL OPERATIONS TEAMS.

20

The officers who were directed to make entry into the 74th Avenue apartment were

21

qualified tactical operators. Indeed, most were sergeants who typically functioned as Team

42

Capt. Tracey suggested it was not unusual for senior staff to work out of role when needed. See JX
65 pp. 56-58

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Leaders, and therefore were among the most experienced tactical operations staff within OPD.

However, these particular individuals were members of several different Tactical Team groups,

and they did not have a history of training together as a team.


General Order K-5 Section I.C. expressly prohibits the use of ad hoc Tactical

4
5
6
7
8
9
10
11
12
13
14
15
16

Operations Teams:
Members of the Tactical Operations Team are specially trained and
equipped, but they are most effective when deployed in team elements
with proper support and command structure. Therefore, while it is
appropriate for Incident Commanders to utilize individual Tactical
Operations Team members for containment and/or response to exigent
circumstances pending the arrival of the Tactical Operations Team, they
shall not build ad hoc teams to handle critical incidents or use Team
specialized firearms or equipment in lieu of calling out the Tactical
Operations Team.
Emphasis supplied.

17

Because the group that conducted the entry had not trained together, and was not part of

18

an established team, the City argues Lt. Mufarreh and Capt. Orozco violated G.O. K-5 by

19

improperly creating an ad hoc team. Grievants and the Union counter that the crew was not an

20

improper ad hoc team, arguing that an ad hoc team would occur if a person in command

21

assembled a mixed entry team consisting of both trained tactical operators and others

22

presumably, patrol officers.43 In this case, the entry team members all were trained tactical

23

operators.

24
25

It is evident there is ambiguity in the terminology used in G.O. K-5. Either interpretation
is plausible. For purposes of this Decision, what is key is that the language at issue was drafted

43

Capt. Hansen was asked to review the language of G.O. K-5 barring the use of ad hoc teams, and his
interpretation was the same as the Unions. Tr. II:190.

-1181

by OPD, and therefore any ambiguity in the text properly is held against the Department.

Further, I note that OPDs Tactical Commander, Capt. Tracey (when interviewed by IAD) not

only did not express objection to using a Tactical Team consisting largely of Team Leaders (and

not an established team of leaders and operators who had practiced together), but lauded the

group that entered the apartment on March 21 as the A team. I therefore find Lt. Mufarreh and

Capt. Orozco did not violate the G.O. K-5 prohibition against creating and using ad hoc Tactical

Operations Teams.

8
9
10

VII.

THE WARRANTLESS SEARCH CONCERN.


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 Amendments 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

-1191

a home without first obtaining a warrant, in situations where they do not believe a suspect to be

present.

Lt. Mufarrehs and Capt. Orozcos belief that the suspect was unlikely to be in the

apartment appears to have been an essential premise for the loose manner in which the entry was

prepared and executed. As such, a warrantless entry and search probably would have improper.

Their plan of action, however, was sanctioned by Deputy Chief Kozicki,44 who de facto was

recognized as the Incident Commander at the time of the entry.

In this Arbitrators view, this inconsistency noted by the City primarily raises questions

about the type of training being provided to police officers, especially Tactical Team members

10

and Tactical Commanders. On the particular facts of this case, I am unpersuaded this specific

11

concern properly is the basis for a gross dereliction of duty finding.

12
13
14

VIII. CONCLUSION, AND OBSERVATIONS REGARDING THE WINGATE


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 Harriss

17

recently-issued award in the Wingate grievance. In the Unions view, awareness of Arbitrator

18

Harriss 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. Wingates case were identical or similar to

20

issues being raised again in this matter, thus suggesting broader problems with the Departments

44

Unlike Lt. Mufarreh and Capt. Orozco, who were somewhat firm in their conviction the suspect was
not likely to be in the apartment, Deputy Chief Kozicki (in statements to IAD) expressed some
ambivalence about whether the suspect was likely to be present.

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response to critical incidents.

I do not fault the Department for not providing the Board with a copy of Arbitrator

Harriss decision. After all, the charge to the Board of Inquiry was to examine the events of

March 21, 2009, and not to re-litigate a separate, earlier labor-management dispute. However,

for purposes of this Decision, I found Arbitrator Harriss award to be informative and instructive,

and I agree with the Union that there are meaningful parallels.

In the matter involving Sgt. Wingate, it is poignant that Sgt. Wingate rapidly went from

being a medal awardee one day removing a violent and dangerous felon from the streets of

Oakland to being discharged the next (figuratively) for allegedly failing to follow procedures.

10

In her Award, Arbitrator Harris honed-in on the Departments 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 Arbitrators view that the

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Departments decision to discipline Lt. Mufarreh and Capt. Orozco by demoting them is unfair

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and unbalanced, and therefore not supported by just cause.

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Looking back, it is easy to see where mistakes were made, and how things should have

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been done differently. And yes, Lt. Mufarreh and Capt. Orozco were at the center of some of the

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errors; from observing these officers at the arbitration hearing, this Arbitrator believes they are

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acutely aware of this.

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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.

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In this Arbitrators view, however, the Citys decision to single out Lt. Mufarreh and

Capt. Orozco for discipline does not adequately recognize the responsibility of others including

their organizational peers, and also some of the senior management of the Department. Like the

matter involving Sgt. Wingate, the decision to discipline Lt. Mufarreh and Capt. Orozco has the

appearance of the Department needing to hold someone individually accountable for the tragic

deaths of Sgt. Romans and Sgt. Sakai, but not considering the possibility that senior-level

management decisions also contributed to the chain of events.

As discussed above, this Arbitrator rejects the Citys conclusion that Lt. Mufarreh de

facto became the Incident Commander on March 21. The Departments designated Incident

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Commander (until the later arrival of Capt. Orozco and Deputy Chief Kozicki) was Lt. Lindsey.

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This Arbitrator has no reason to doubt Lt. Lindseys capability and devotion to the force, but at

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the time of the event she was inexperienced in this kind of command role and (as recognized by

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the BoI) overwhelmed. Further, OPD had not provided an effective back-up mechanism for her

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or for other similarly-situated new patrol lieutenants. Although the BoIs report plainly points to

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the Department leaderships responsibility for creating a command environment that had

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problems, this leadership failure is not recognized in the disciplinary action.46

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The IAD and BoI findings relating to Lt. Mufarrehs awareness of the suspects likely

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location at the 74th Avenue apartment are highly problematic and flawed. Although IAD and

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BoI posit that information about the likely location of the suspect was not transmitted,

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disregarded, or not received , the thrust of the reports presumes only the second of these

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With regard specifically to Lt. Lindseys situation, I also note the BoIs finding that she received little
effective support from her boss, Capt. Rachal.

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possibilities, i.e., that Lt. Mufarreh (and Capt. Orozco) disregarded key information. In this

Arbitrators view, the City at most has established that Lt. Mufarreh may have misjudged the

reliability of the information that he received from Lt. Joyner and his confidential informant;

even with regard to this information coming from Lt. Joyner, the extent to which Lt. Mufarreh

erred is uncertain, where Lt. Joyner acknowledged that the informant may not have impressed Lt.

Mufarreh as reliable (based merely on appearance), and where it is unclear that Lt. Joyner had a

full opportunity in the midst of the crime response to delve into his (Lt. Joyners) history with the

informant, and thereby bolster Lt. Mufarrehs appreciation of Elliss reliability. With regard to

Lt. Lindseys information both from her informant (Walker), as well as her impressions from

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the excited women gathered near the 74th Avenue apartment it is completely unclear, based

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on the evidence presented in this arbitration, that this information was shared adequately with Lt.

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Mufarreh, Capt. Orozco and Deputy Chief Kozicki.

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As Capt. Hansen described very effectively, the decision to enter the 74th Avenue

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apartment, using a Tactical Operations Team, was a poor decision that was inconsistent with

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best practices in the tactical operations field. Further, the analysis and methodology used to

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approach the 74th Avenue apartment typically should be the same, independent of whether OPD

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tactical command staff believed the suspect to be present in the home, or absent from the home.

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I note Hansens testimony that, in his view, the charge to the BoI was to evaluate the

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Departments performance, and the performance of individual personnel, against industry

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standards or best practices. Although an evaluation of the events in the context of best

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practices is a very helpful exercise from a management perspective, so policies and procedures

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and be reviewed and refined, it is this Arbitrators view this is not the proper measure for

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disciplinary purposes. Employees properly can be held accountable for complying with

Department policies (to the extent they are consistently applied), and also can be expected to

comply with standards developed through common agency practice and training. In these

respects, the degree of culpability uniquely attaching to Lt. Mufarreh and Capt. Orozco in this

case is considerably less clear.

With regard to published policies, General Order K-5 (Section IX) lists breach and entry

of objective site simply as one of ten common tactical options, that may be used together or

separately. Although this section also emphasizes the importance of considering safety (of the

public, police officers and others) when developing a plan of action, there is nothing in the

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General Order itself to suggest that entry should be a rare event, and should be particularly rare as

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a first option. Further, although G.O. K-5 (published in 2000) anticipated that the Special

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Operations Division would develop a Tactical Team Policy and Procedures Manual, as of

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March 2009 no such Manual had been developed.

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With regard to training, Capt. Hansen expressed concern that OPDs selection of tactical

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training instructors seemed to be weighted toward instructors with prior military backgrounds,

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which holds the potential for influencing tactical options toward a greater willingness to exercise

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force. In this Arbitrators view, this kind of training-based bias was manifested in the decision to

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breach and enter the 74th Avenue apartment, without first using a variety of tools to learn more

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about who might be in the apartment, and establish communication with them. Notably, not only

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did Lt. Mufarreh, Capt. Orozco and Deputy Chief Kozicki find this forceful entry tactic to be

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acceptable, but there is no evidence that any of the members of the Tactical Team raised

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questions about simply clearing the unit by using forced entry.

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For the above reasons, I find the Department did not have just cause to demote Lt.

Mufarreh and Capt. Orozco. The grievance is sustained. Grievants shall be restored to their

prior positions, with back pay, benefits and seniority.

SO ORDERED.

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Washington, D.C.
May 16, 2013