newlen videotaped deposition

8/11/2019 Newlen videotaped deposition

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1 UNITED STATES DISTRICT COURT

2 CENTRAL DISTRICT OF CALIFORNIA

3

4 KENNETH MCDADE, et al., ) )

5 Plaintiffs, ) )

6 vs. ) NO. 2:12CV02892DMGJCG )

7 CITY OF PASADENA, et al., ) )

8 Defendants. )_______________________________)

9

1011 VIDEOTAPED DEPOSITION OF

12 OFFICER JEFFREY NEWLEN

13 WOODLAND HILLS, CALIFORNIA

14 JULY 17, 2013

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21ATKINSON-BAKER, INC.

22 COURT REPORTERS(800) 288-3376

23 www.depo.com

24 REPORTED BY: KIMBERLY A. THORNTON, CSR NO. 11994

25 FILE NO.: A7074B4


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1 UNITED STATES DISTRICT COURT

2 CENTRAL DISTRICT OF CALIFORNIA

3

4 KENNETH MCDADE, et al., ) )

5 Plaintiffs, ) )

6 vs. ) NO. 2:12CV02892DMGJCG )

7 CITY OF PASADENA, et al., ) )

8 Defendants. )_______________________________)

9

1011

12 VIDEOTAPED DEPOSITION OF OFFICER JEFFREY NEWLEN,

13 taken on behalf of Plaintiffs, at 21800 Burbank Boulevard,

14 Suite 310, Woodland Hills, California, commencing at 11:17

15 A.M., on Wednesday, July 17, 2013, before Kimberly A.

16 Thornton, CSR No. 11994.

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1 A P P E A R A N C E S

2 FOR PLAINTIFF ANYA SLAUGHTER:

3 LAW OFFICES OF DALE K. GALIPO

4 BY: DALE K. GALIPO, ESQ. and

5 BY: THOMAS C. SEABAUGH, ESQ. 21800 BURBANK BOULEVARD

6 Suite 310 Woodland Hills, California 91367

7 (818) 347-3333

8

9 FOR PLAINTIFF KENNETH MCDADE:

10 LAW OFFICES OF CAREE HARPER BY: CAREE HARPER, ESQ.11 3435 Wilshire Boulevard

Suite 291012 Los Angeles, California 90010

(213) 386-507813

14 FOR DEFENDANTS:

15 MEYERS NAVE BY: KEVIN E. GILBERT, ESQ.

16 555 12th Street Suite 150017 Oakland, California 94607

(508) 808-200018

19 ALSO PRESENT:

20 JOE HYMAN, VIDEOGRAPHER

21 ANYA SLAUGHTER

22 OFFICER MATTHEW GRIFFIN

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1 I N D E X

2 WITNESS: OFFICER JEFFREY NEWLEN

3 EXAMINATION PAGE

4 MR. GALIPO 6, 170

5 MS. HARPER 172

6

7

8 EXHIBITS

9 PLAINTIFFS' DESCRIPTION PAGE

10 6 Hand-drawn diagram 7511 ATTACHMENTS

12 Collection of colored photocopies of photographs

13

14 QUESTIONS WITNESS INSTRUCTED NOT TO ANSWER:

15 NONE

16

17 INFORMATION REQUESTED:

18 NONE

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1 THE VIDEOGRAPHER: Good morning. My name is Joe 11:15

2 Hyman, your videographer. I represent Atkinson-Baker in

3 Glendale, California. I'm not financially interested in

4 this action, nor am I a relative or employee of any of the

5 parties. Today's date is July 17, 2013. The time is 11:17

6 11:17. This deposition is taking place at 21800

7 Burbank Boulevard, Suite 310, in Woodland Hills,

8 California, case No. 212-CV-02892-DMG-JCG, entitled McDade

9 versus City of Pasadena.

10 The deponent is Jeffrey Newlen. Deposition is 11:1711 being taken on behalf of the plaintiff. The court reporter

12 is Kim Thornton from Atkinson-Baker.

13 Counsel, please introduce themselves. The

14 witness will be sworn in by the court reporter. This is

15 THE beginning of DVD No. 1, Volume 1. We're on the record. 11:17

16 MR. GALIPO: Dale Galipo on behalf of Plaintiff Anya

17 Slaughter.

18 MS. HARPER: Caree Harper for Kenneth McDade.

19 MR. SEABAUGH: Thomas Seabaugh for Plaintiff

20 Anya Slaughter. 11:18

21 MR. GILBERT: Kevin Gilbert for the defendants also

22 joined by Officer Jeffrey Newlen and Officer Matt Griffin.

23 THE VIDEOGRAPHER: Would you like to swear in the

24 witness, please.

25 11:18


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1 OFFICER JEFFREY NEWLEN, 11:18

2 having first been duly sworn, was examined and

3 testified as follows:

4

5 EXAMINATION 11:18

6 BY MR. GALIPO:

7 Q Can you please state your name.

8 A Jeffrey Newlen.

9 Q Have you ever had your deposition taken before?

10 A No. 11:1811 Q Have you testified in court before?

12 A Yes.

13 Q And do you have an estimate as to how many times

14 you've done that?

15 A Several times. 11:18

16 Q Do you know if it's more or less than ten?

17 A More than ten.

18 Q Would it be more than 20?

19 A More than 20.

20 Q Do you have any type of estimate? Thirty to 50? 11:19

21 Any range you can give me?

22 A Probably over 50 times I would imagine.

23 Q Does that include preliminary hearings and

24 trials?

25 A Yes. 11:19


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1 Q Do you understand you have a duty to tell the 11:19

2 truth today?

3 A Yes, I do.

4 Q If I ask you a question and you don't understand

5 it, will you let me know? 11:19

6 A Yes, sir.

7 Q If you need to take a break at any time, will you

8 let us know that?

9 A Yes.

10 Q The court reporter, as I explained yesterday, is 11:1911 taking down all the words that we say. So it's important

12 that you do exactly as you are. Speak clearly, and we'll

13 try to speak one at a time.

14 A Yes, sir.

15 Q In the future, the deposition transcript will be 11:19

16 prepared for you to read and review. The law gives you the

17 right to make changes to your answers if you think that is

18 necessary, but I do want to caution you if you make changes

19 to your answers, the law also gives any of the lawyers

20 involved in the case the right to comment on your changes, 11:20

21 and it could affect your credibility in front of a judge or

22 jury.

23 Do you understand that?

24 A Yes, I do.

25 Q So in short, do you understand that it's in your 11:20


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1 best interest to give your best answers or best testimony 11:20

2 today?

3 A Yes.

4 Q Do you believe you're able to go forward with the

5 deposition today? 11:20

6 A Yes, sir.

7 Q I may ask for some estimates as I asked Officer

8 Griffin yesterday. We are entitled to your best estimate.

9 It could even be a range. Do you have a basic

10 understanding of what an estimate is? 11:2011 A Yes, I do.

12 Q Have you reviewed any documents to help refresh

13 your recollection about this incident?

14 A Yes.

15 Q And what have you reviewed? 11:20

16 A I reviewed my transcript, and I reviewed the

17 use-of-force policy that was a while back.

18 Q Okay. Anything else you can think of that you

19 have reviewed?

20 A No. 11:20

21 Q When was the last time you looked at your

22 transcript?

23 A I went over it yesterday.

24 Q And is that the transcript of the statement that

25 you gave following the shooting? 11:21


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1 A Yes. 11:21

2 Q After the shooting how long were you at the scene

3 before you left the scene?

4 A Ten to 15 minutes estimate --

5 Q And where did you -- okay. Sorry. Where did you 11:21

6 go from the scene?

7 A I went to the station.

8 Q And how did you get there?

9 A I was transported there by Corporal McKinney.

10 Q And who else was with you in the car? 11:2111 A Officer Griffin.

12 Q And did you go into a particular room at the

13 station?

14 A Yes. We were put in separate rooms once we got

15 to the station. 11:21

16 Q Meaning you and Officer Griffin?

17 A Yes, sir.

18 Q At some point did an employee representative show

19 up?

20 A Yes. 11:21

21 Q And at some point did an attorney show up?

22 A Yes.

23 Q Did you have an opportunity to talk to the

24 employee representative at some point?

25 A My union rep? 11:22


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1 Q Yes. 11:22

2 A Yes.

3 Q And did you have a chance to talk to the attorney

4 at some point?

5 A Yes. 11:22

6 Q Was that a female attorney?

7 A Yes, it was.

8 Q If you know, was it the same female attorney that

9 Officer Griffin had?

10 A Yes. 11:2211 Q Were you expecting to give a statement either

12 that night or early morning?

13 A Yes, I was.

14 Q And did you end up giving a statement that night

15 or early that morning? 11:22

16 A I gave my statement on Monday, I believe.

17 Q Did you have an understanding as to why your

18 statement was being done on Monday as opposed to on Sunday

19 morning?

20 A I wasn't sure why. 11:22

21 Q You were just told at some point "Come back

22 Monday, and we'll do the statement at that point"?

23 A Yes, sir.

24 Q And then when you gave your statement, who was

25 present for your statement? 11:22


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1 A Detective Bzdigian, Detective Van Hecke, and my 11:23

2 attorney Audra Call.

3 Q And yourself?

4 A And myself, yes, sir.

5 Q Did you graduate from high school? 11:23

6 A Yes.

7 Q In what year?

8 A 2001.

9 Q And in what state did you go to high school?

10 A Ohio. 11:2311 Q Okay. I'm also from Ohio. What city did you go

12 to high school?

13 A White Hall.

14 Q All right. When -- did you go to college after

15 high school? 11:23

16 A Yes.

17 Q Can you tell us about that, please?

18 A I did one semester in 2006, I believe.

19 Q And do you remember what courses or types of

20 courses you were taking? 11:23

21 A I took a couple basic courses, a math course, and

22 I did an architectural design CAD course.

23 Q And it was just the one semester you went to

24 college?

25 A One full-time semester. 11:24


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1 Q When did you first become a police officer? 11:24

2 A I was sworn in in 2007.

3 Q Can you briefly tell me your work history from

4 graduating high school to becoming a police officer. What

5 type of work were you doing? 11:24

6 A Yes, sir. After I graduated high school, I

7 joined the Marine Corps. I did four years active duty.

8 After I got out of the Marine Corps, I worked for an armor

9 transportation company, and after that I became a police

10 officer. 11:2411 Q Okay. Thank you. The Marine Corps, would it be

12 approximately from 2001 to 2005?

13 A Yes, sir.

14 Q Then you worked for the armor security company?

15 A Yes, sir. 11:24

16 Q And what years did you work for that company,

17 approximately?

18 A The end of '05 towards the end of '06.

19 Q What did you do for them?

20 A I was a driver slash messenger, and I also worked 11:25

21 in their vault.

22 Q Sometimes I see these trucks either delivering or

23 picking up, I assume, cash or money. You would do that

24 sometimes?

25 A Yes, sir. 11:25


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1 Q Were you armed in that position? 11:25

2 A Yes, I was.

3 Q Now, with respect to your work, it was in the

4 Navy?

5 A Marine Corps. 11:25

6 Q Tell me a little bit more in detail what your

7 assignment or assignments were in the Marine Corps.

8 A I was an 0311 which is a basic rifleman. I

9 served in infantry battalion.

10 Q I have never been in the military. Can you tell 11:2511 me a little bit about what serving in the infantry, what

12 that involves.

13 A It involves -- I mean what exactly do you want to

14 know about?

15 Q Let me be more specific. First of all, did you 11:26

16 do that here in the United States or another country or

17 both?

18 A Both.

19 Q What other countries did you go to?

20 A I've been to several. Went to deployment 11:26

21 Okinawa, Japan on Omu which is a marine expeditionary unit.

22 It's a presence in that area of the world. I also deployed

23 to Iraq.

24 Q Okay. When were you in Iraq?

25 A I went in 2004, and I went a second time in 2009. 11:26


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1 Q Were you ever involved in your work in the Marine 11:26

2 Corps in actually having to fire your weapon at the enemy?

3 A Yes, sir.

4 Q And how many times did you have to do that?

5 MR. GILBERT: Objection to the extent it calls for 11:27

6 classified information. I'm okay with him answering this,

7 but if goes too far, we have to be careful. I don't know

8 if there's top-secret material or not.

9 MR. GALIPO: I'm not seeking any top secret

10 information at this point. 11:2711 MR. GILBERT: I just don't know what's classified.

12 THE WITNESS: I fired it several times. A few times.

13 Q BY MR. GALIPO: What I'm getting at I don't know

14 if it was such that you had to fire your weapon once a

15 week, once a month, or just maybe two or three times the 11:27

16 whole time you were there. Can you give me some type of

17 estimate?

18 A Probably four or five times.

19 Q Four or five different incidents where you had to

20 fire? 11:27

21 A Yes, sir.

22 Q That would be in Iraq?

23 A Yes.

24 Q And how about in any of your assignments? Did

25 you have to fire your weapon in any of those assignments? 11:27


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1 A No. 11:28

2 Q Just in Iraq?

3 A Yes, sir.

4 Q The four or five times, would that include both

5 your deployment in 2004 and 2009? 11:28

6 A No, sir.

7 Q That was just 2004?

8 A Yes, sir.

9 Q How about 2009?

10 A I didn't fire. 11:2811 Q Okay. So the times that you fired was in the

12 2004 deployment?

13 A Yes, sir.

14 Q Were you ever firing at a particular person?

15 A Yes, sir. 11:28

16 Q And do you know in the four or five times

17 incidents that you had to fire in 2004 whether you ever

18 struck anybody?

19 A Yes, sir.

20 Q And you believe that you did? 11:28

21 A Yes.

22 Q Do you know how many people altogether you

23 struck?

24 A Approximately four to five.

25 Q And do you know if any of those people died? 11:28


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1 A I do not know. 11:28

2 Q Just know that you struck them?

3 A Yes, sir.

4 Q Did you tell me early on you were a rifleman?

5 A Yes, sir. 11:28

6 Q And what is that exactly?

7 A It's just a basic infantryman. I don't -- I'm

8 not trained in any of the specialized big guns as in, like,

9 the rockets or anything like that.

10 Q Now, in any of those times where you had to fire 11:2911 the four or five times, were there ever situations where

12 you were returning fire? In other words, you heard fire,

13 and you had to return fire?

14 A Yes.

15 Q Were all of them situations where you were 11:29

16 returning fire or just some of them?

17 MR. GILBERT: Vague as to returning fire.

18 But go ahead.

19 Q BY MR. GALIPO: What I basically mean by that

20 were they situations where you heard gunfire? 11:29

21 A Not all of them.

22 Q Some of them yes and some of them not?

23 A Yes.

24 Q Okay. In terms of firing at someone in the

25 context of your assignment when you went to Iraq, were 11:29


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1 there certain -- was there certain training you had as to 11:29

2 when you could or could not fire at someone in context of

3 your assignment?

4 A There were rules of engagement, yes, sir.

5 Q What were the, basically, rules of engagement as 11:30

6 to when you could or could not fire someone?

7 MR. GILBERT: Overbroad.

8 Go ahead.

9 THE WITNESS: When we witnessed a hostile act.

10 Q BY MR. GALIPO: What is a hostile act based on 11:3011 your training?

12 A Shooting at somebody, setting in what we call IED

13 which is an improvised explosive device which are roadside

14 bombs, things of that nature.

15 Q Now, you at some point had training with respect 11:30

16 to the use of deadly force as a police officer.

17 A Yes.

18 Q You obtained some of that at the police academy?

19 A Yes, sir.

20 Q In terms of when you could use deadly force as a 11:30

21 police officer, in your mind was it different as to when

22 you could use deadly force in your assignment in Iraq?

23 A It's more in depth.

24 Q How was it more in depth? What do you mean by

25 that? 11:31


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1 A Just given what's -- I mean it's a different type 11:31

2 of a situation over there.

3 Q So after getting back from Iraq, is that when you

4 took the job with the armory or the armored car service?

5 A Yes, sir. 11:31

6 Q I used the wrong word. I'm sorry. After you

7 finished with that, is that when you went to the police

8 academy?

9 A Yes. I was -- I left that job because I got

10 hired on by the police department. 11:3111 Q Had you put an application in previously?

12 A With the police department?

13 Q Yes.

14 A Yes, sir.

15 Q And you were just waiting for that to come 11:32

16 through, basically?

17 A Yes. Once I was told I was to be hired, I put in

18 my notice from the other job.

19 Q When did you go to the police academy,

20 approximately? 11:32

21 A It was at the end of 2006. I started in 2006. I

22 can't remember if it was December or November.

23 Q But towards the end?

24 A Towards the end, sir.

25 Q And where did you go to the police academy? 11:32


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1 A L.A. sheriffs in Whittier. 11:32

2 Q How long was that academy for?

3 A Approximately four months.

4 Q I think you already told me this, but you had

5 training at the academy with respect to the use of force? 11:32

6 A Yes, sir.

7 Q With respect to the use of deadly force?

8 A Yes, sir.

9 Q With respect to tactics?

10 A Yes, sir. 11:3211 Q And then upon graduating from the academy, where

12 did you go next?

13 A I went to Pasadena Police Department.

14 Q Were you hired by Pasadena before you went to the

15 academy? 11:33

16 A Yes, sir.

17 Q And did Pasadena pay for your academy?

18 A Yes, sir.

19 Q Did you have them field training with Pasadena?

20 A Did I have field training with them? 11:33

21 Q Yes, sir.

22 A Yes.

23 Q How long was the field training for?

24 A I've had numerous trainings with them.

25 Q What I mean to started -- state and I asked 11:33


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1 Officer Griffin some. It's my understanding that sometimes 11:33

2 if officers are going to go in patrol --

3 A I understand your question.

4 Q When they first get there, there's a field

5 training program? 11:33

6 A Approximately six months.

7 Q Did you have that with different field training

8 officers?

9 A Yes, sir.

10 Q I'm going to test your memory now. Do you 11:3311 remember the names of any of your field training officers?

12 A Yes, I do.

13 Q Can you please tell us ones you can recall and if

14 the last name is a little tricky, can you spell it for our

15 court reporter? 11:34

16 A Yes, sir. I had Officer Magallon, and I'm not

17 positive on the spelling, but I believe it's

18 M-a-g-a-l-l-o-n.

19 Q Okay.

20 A I'm not positive on the exact spelling. 11:34

21 Q That's fine.

22 A I had Officer Kirby, who's now a sergeant.

23 K-i-r-b-y. I had Corporal Cuellar, C-u-e-l-l-a-r, I

24 believe. I had Officer Lewis, L-e-w-i-s, Officer Bualon,

25 and I don't know how to spell it. I could give you my best 11:34


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1 guess. I believe it's B-u-a-l-o-n. And Officer Bucholtz. 11:34

2 I'm not sure of that spelling either, but I believe it's

3 B-u-c-h-o-l-t-z, I believe. I'm not positive.

4 Q Okay. And during the field training, you also

5 had some training with respect to tactics? 11:35

6 A Yes.

7 Q And use of force?

8 A Yes, sir.

9 Q And at the end of that field training, you're on

10 patrol and off, I guess, a probation period? 11:3511 A I'm on probation after training.

12 Q How long are you on probation for?

13 A The probation is another year after training.

14 Q So you finished the academy approximately when?

15 A April, 2007. 11:35

16 Q And then when did you finish your field training?

17 Initial field training?

18 A Would have been six months after that.

19 Q So about October, 2007? Whatever six months is?

20 A Whatever six months is. 11:36

21 Q And then you would have been on probation for a

22 year from that time?

23 A Yes, sir.

24 Q Tell me about your assignments from the time you

25 ended field training to the time of the incident. Were 11:36


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1 you, basically, assigned to patrol? 11:36

2 A I was assigned for patrol for most of that time,

3 yes, sir.

4 Q Just take me --

5 A All that time, actually, before the time of the 11:36

6 accident.

7 Q Yeah. I just asked you differently than I asked

8 Officer Griffin. Just as to the time of the incident.

9 A Patrol.

10 Q Were you always assigned to the same geographic 11:3611 area, or did that change?

12 A That changed.

13 Q Can you explain that, please.

14 A Throughout the course of my time on, I worked

15 several different service areas. It's all based on 11:36

16 staffing and where they need officers at the time.

17 Q Do you have an understanding as to how many

18 uniformed police officers there are patrol-type officers

19 that work for the city of Pasadena?

20 A I do not know that. 11:37

21 MR. GILBERT: Foundation.

22 MS. HARPER: What was the objection?


24 Q BY MR. GALIPO: Do you have any idea, or you

25 don't have any idea? 11:37


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1 A I don't. 11:37

2 Q Do you know how many law enforcement officers

3 work for the department in total?


5 THE WITNESS: I don't know. 11:37

6 Q BY MR. GALIPO: Do you know how many officers are

7 on a given shift in a given geographic area?

8 MR. GILBERT: Vague as to time. Foundation.

9 Go ahead.

10 Q BY MR. GALIPO: Let me be more specific. Around 11:3711 the time of this incident, in other words, were you

12 assigned to area 2?

13 A Yes, sir.

14 Q And your partner was Officer Griffin?

15 A Yes, sir. 11:37

16 Q I'm just wondering, you know, if you know were

17 there four patrol officers? Six patrol officers? How many

18 were assigned to a particular shift to a particular area?

19 MR. GILBERT: Same objection.

20 Go ahead. 11:38

21 THE WITNESS: I don't know exactly. I know there

22 was -- I don't know. I couldn't tell you that.

23 Q BY MR. GALIPO: Okay. Do you know any other

24 officers that were assigned to that area on that shift on

25 the day of the incident? 11:38


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1 A I know there were other officers there, yes. 11:38

2 Q Well, some of them came to the scene eventually;

3 correct?

4 A Yes.

5 Q Do you recall any of them that came to the scene 11:38

6 that would have also been assigned to that geographic area?

7 A I don't remember seeing any of them on scene that

8 was assigned to that geographic area.

9 Q The ones that you saw may have come from

10 different areas? 11:3811 A Yes, sir.

12 Q And how long had you been partnered with

13 Officer Griffin before the March 24, 2012, shooting

14 incident?

15 A Approximately the whole year, the whole year 11:38

16 prior.

17 Q And was it pretty much that area? Area 2?

18 A Yes, sir.

19 Q And was your shift hours generally the same?

20 A Yes. 11:39

21 Q What were your shift hours?

22 A 7:30 P.M. to 8:00 A.M.

23 Q Had you ever been involved in an officer-involved

24 shooting before that day?

25 A No, sir. 11:39


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1 Q Had you ever witnessed an officer-involved 11:39

2 shooting before that day?

3 A No, sir.

4 Q Had you ever responded to an officer-involved

5 shooting? 11:39

6 A No, sir.

7 Q Had you ever heard of any other officer-involved

8 shootings with the city of Pasadena in between the time you

9 started and the time of this incident?

10 A Yes, sir. 11:3911 Q How many had you heard of?

12 A There's two that I can think of.

13 Q Which two are you thinking of? If you either

14 know the officer or the approximate date.

15 A I don't know the dates. Officer Torres was 11:40

16 involved in one and Officer Michael Alvarado, and there was

17 another officer with Michael Alvarado. Officer Reed.

18 Q Those were the two that you were aware of in

19 between the time you started and the time of this shooting?

20 A Yes, sir. There may have been more. 11:40

21 Q Okay. Those are the few that come to mind?

22 A Yes, sir.

23 Q Who was the chief of police when you started for

24 the city?

25 A Chief Melekian. 11:40


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1 Q Who was the chief of police at the time of the 11:40

2 incident?

3 A Chief Sanchez.

4 Q Do you know when that change took place

5 approximately and what year? 11:40

6 A I think it took place in 2011, but I'm not

7 positive.

8 Q That's an estimate?

9 A Yes, sir.

10 Q Who's the chief of police now? 11:4111 A Chief Sanchez.

12 Q You had a firearm on your person the day of the

13 incident?

14 A Yes, sir.

15 Q What type of firearm was it? 11:41

16 A It was a Glock .22.

17 Q Is that .40 caliber?

18 A .40 caliber.

19 Q Did you have an X-26 taser?

20 A Yes. 11:41

21 Q Pepper spray?

22 A Yes, sir.

23 Q A police baton?

24 A I had a police baton. It was on my belt.

25 Q You had it in your car? 11:41


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1 A Yes. 11:41

2 Q You had your police radio?

3 A Yes, sir.

4 Q How was it situated in your police radio? Was it

5 clipped on your shirt, or how is it? 11:41

6 A I had an earpiece and mike clipped to my lapel.

7 Q You're able to hear at times without pressing a

8 button; is that true?

9 A To hear?

10 Q To hear. 11:4211 A Yes, sir.

12 Q But if you want to make communication, then you

13 have to press a button?

14 A Yes, sir.

15 Q Do you have to hold the button throughout the 11:42

16 communication?

17 A Yes, you do.

18 Q Did you have any type of audio recording device

19 on your person?

20 A Yes, I did. 11:42

21 Q Was that in your pocket?

22 A Yes.

23 Q Were you familiar with the video equipment in the

24 vehicles?

25 A Yes. 11:42


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1 Q And we heard a little bit about that yesterday. 11:42

2 If I recall, it could -- there's a switch that could be or

3 a button that could be pressed to turn it on. Is that your

4 recollection as well?

5 A Yes, sir. 11:42

6 Q And if you go Code 3, is it your understanding it

7 comes on automatically?

8 A Yes, sir.

9 Q And if you're at an impact and it's significant

10 enough, is it your understanding it could come on then? 11:4311 A Yes, sir.

12 Q Where is the button, as you recall, to turn it

13 on?

14 A It's on the control device which is up by the

15 rearview mirror. 11:43

16 Q Towards the end of Officer Griffin's deposition

17 yesterday, I think he was being asked some questions by

18 Ms. Harper, and she was referring to a policy, I think,

19 about activating lights and sirens when you're chasing a

20 felony suspect. Do you recall that conversation? 11:43

21 A Yes, sir.

22 Q Is it your understanding that the City does have

23 a policy that covers that topic?

24 A Yes, sir.

25 Q What is your understanding of what the policy is, 11:43


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1 basically? 11:43


3 THE WITNESS: I would have to see the policy in order

4 to --

5 Q BY MR. GALIPO: Fair enough. Is your 11:43

6 understanding, in general, if you're chasing a felony

7 suspect, it's recommended that you turn on your lights and

8 sirens?

9 A Yes, sir.

10 Q Did you believe at some point when you were 11:4411 pursuing Mr. McDade that he was a potential felony suspect?

12 A Yes, sir.

13 Q And did either you or Officer Griffin ever

14 activate the button or press the button to go Code 3?

15 A I did not, sir. 11:44

16 Q Do you know if Officer Griffin?

17 A I do not.

18 Q You don't know?

19 A I did not know if he had at the time.

20 Q Well, did you ever have the sense that the lights 11:44

21 and sirens were on in your vehicle as you were pursuing

22 Mr. McDade?

23 A No, I did not.

24 Q So did you assume that he probably hasn't pressed

25 the button? 11:44


30/178

1 A Yes. 11:44

2 Q Is it a button that you would reach from where

3 you're seated in the passenger seat if you needed to?

4 A Yes, sir.

5 Q And would it be at least correct to say that you 11:44

6 did not press the button?

7 A Yes.

8 Q Now, we heard yesterday from Officer Griffin that

9 he gave an estimate of many gun calls that he had been

10 called out on or had heard. Have you also heard of a lot 11:4511 of gun calls working as a patrol officer?

12 A Yes, sir.

13 Q And I think he gave a percentage of maybe Officer

14 Griffin of 10 or 20 percent where there's actually a gun.

15 Has that been your experience as well? 11:45

16 A I really wouldn't feel comfortable giving a

17 percentage based on a number that I'm not sure of how many

18 I responded to.

19 Q Let me ask you this: Would you agree that the

20 majority of the gun calls that you have responded to ended 11:45

21 up not being a gun involved?

22 A Yes.

23 Q Would you agree --

24 A Well --

25 Q I'm sorry. 11:46


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1 A Can I change my answer a little bit? 11:46

2 Q You can.

3 A A gun has not been found.

4 Q Okay. Have you been involved in cases where

5 someone thought the object was a gun but it turned out to 11:46

6 be something else?

7 MR. GILBERT: Vague.

8 MR. GALIPO: I'll be more specific. A phone,

9 sunglasses, a toy gun, anything like that.

10 MR. GILBERT: Vague as far as "involved." 11:4611 Go ahead, though.

12 THE WITNESS: I've been at calls where somebody said

13 there was a gun involved, and we found a toy gun. I can't

14 think of anything specific where we found an object that

15 was believed to be a gun that turned out not to be. Just 11:46

16 maybe that there wasn't a gun that we found.

17 Q BY MR. GALIPO: Okay. Has it been your

18 experience, as a police officer, that sometimes information

19 broadcast to you in the field turns out not to be accurate?

20 A Yes. 11:47

21 Q Is it generally work that somebody would call

22 9-1-1, for example, relay certain information, the

23 dispatcher then relays that information to you as a patrol

24 officer in the field?

25 A What's your question? 11:47


32/178

1 Q Is that how it generally works? 11:47

2 A Yes.

3 Q So, for example, if the information that the

4 dispatcher is getting is inaccurate even though the

5 dispatcher is relaying it, you may end up with inaccurate 11:47

6 information?

7 A It's possible, yes, sir.

8 Q So as a police officer, are you trained that

9 sometimes the information you get is inaccurate?

10 A Yes. 11:4711 Q And that sometimes you have to investigate

12 yourself to see what the situation is?

13 A Yes, sir.

14 Q Just moving forward for a moment, at some point

15 you got out of your vehicle and were chasing Mr. McDade on 11:48

16 foot?

17 A Yes.

18 Q Prior to doing that, did you ever hear Mr. McDade

19 verbally threaten you or Officer Griffin?

20 A No. 11:48

21 Q Did you ever see him point a gun at you?

22 A I did not.

23 Q Did you see him appear to attempt to shoot you at

24 any time before you got out of your vehicle?

25 A No. 11:48


33/178

1 Q Did you see a gun on him at any time before you 11:48

2 got out of your car?

3 A No.

4 Q And at some point were you running up a sidewalk

5 on Sunset? 11:48

6 A Yes.

7 Q And does Sunset run -- the direction that Sunset

8 was running, would that be northwest?

9 A Approximately, yes, sir.

10 Q What sidewalk were you on? Would the street have 11:4911 been to your right?

12 A Yes.

13 Q And when you started running, was Mr. McDade also

14 on the sidewalk?

15 A Yes, he was. 11:49

16 Q Was he also running?

17 A Yes.

18 Q And so both of you at that point would have been

19 running on the sidewalk in a northwest direction?

20 A Yes, sir. 11:49

21 Q And do you have an estimate as to what the

22 distance was between you and Mr. McDade when you started

23 running?

24 A My estimate by memory would be 15 to 20 yards.

25 Q Okay. And as you were running, what did you have 11:49


34/178

1 in your hands? 11:49

2 A I had my handgun in my right hand, and I had

3 nothing in my left.

4 Q Does your handgun have a tack light on it?

5 A Yes. 11:50

6 Q And that's for illumination purposes?

7 A Yes, sir.

8 Q Was it activated as you were running?

9 A Yes.

10 Q What was the general lighting like from your 11:5011 perspective when you were running up that sidewalk about 15

12 or 20 yards behind Mr. McDade? How would you describe the

13 lighting in that area?

14 A It was -- there was light, but it was dark. It

15 wasn't bright. 11:50

16 Q All right. Well, let me ask. It was nighttime;

17 correct?

18 A Yes, sir.

19 Q Was there some ambient lighting either from homes

20 or streetlights? 11:50

21 A Yes.

22 Q Could you see Mr. McDade from the distance you

23 were at?

24 A I could see him.

25 Q Was it more or less of a shadow you were looking 11:50


35/178

1 at, or could you pretty clearly see him? 11:51

2 A I could see him. I don't know what you mean by

3 "shadow" but --

4 Q Well, what I mean by that you're familiar with

5 what a shadow is; correct? 11:51

6 A Yes.

7 Q I just don't know with what specificity you could

8 see him based on the lighting. In other words, when you

9 feel you could clearly make out his arms and legs and

10 things of that nature, or it was less definite than that? 11:5111 A I could make out his shape and his movement.

12 MR. GILBERT: Just for clarification, we're talking

13 about when he's on foot?

14 MR. GALIPO: Correct. When they're about 10 to

15 25 yards apart. 11:51

16 Q Is that what you understood?

17 A Yes, sir.

18 MR. GILBERT: Thank you.

19 MR. GALIPO: You're welcome.

20 Q Now, from the time you started to chase him on 11:51

21 foot to the time you heard the first shot, how much time

22 passed?

23 A Ten seconds. That's an estimate.

24 Q Okay. You were there and thinking about it.

25 That's an estimate? 11:52


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1 A Could be 10 to 20 seconds. 11:52

2 Q Are you comfortable with a range of 10 to 20

3 seconds?

4 A About that.

5 Q Now, and you're obviously -- you're running on 11:52

6 the sidewalk; correct?

7 A Yes.

8 Q And does Mr. McDade say anything to you while

9 you're chasing him on the sidewalk?

10 A No. I didn't hear anything. 11:5211 Q Did you say anything to him as you're running on

12 the sidewalk?

13 A Yes.

14 Q What did you say?

15 A I told him -- and this isn't exact, but I said 11:52

16 something along the lines "Stop. This is the police."

17 Q Anything else that you recall saying other than

18 something to the effect "Stop. This is the police"?

19 A No.

20 Q How tall are you? 11:53

21 A Five seven.

22 Q How much do you weigh approximately?

23 A 170.

24 Q Were you about the same weight back at the time

25 of the incident? 11:53


37/178

1 A Similar. Yes, sir. 11:53

2 Q Did you work out at the time of the incident in

3 terms of weights or running or things of that nature?

4 A Not consistently.

5 Q You did it sometimes but not consistently? 11:53

6 A Yes, sir.

7 Q Did you play any sports in high school?

8 A I didn't play any sports from my high school. I

9 did play baseball for a summer league while I was in high

10 school. 11:5411 Q Have you been in foot pursuits before?

12 A Yes, sir.

13 Q And how many foot pursuits would you estimate

14 you've been in?

15 A Two or three. 11:54

16 Q Now, at some point did you see Mr. McDade leave

17 the area of the sidewalk?

18 A Yes.

19 Q And at some point did you see Officer Griffin

20 pass you in his vehicle as he was going up Sunset? 11:54

21 A Yes, I did.

22 Q What did you see first between those two? Did

23 you see Mr. McDade leave the sidewalk, or did you see

24 Officer Griffin pass you in the car?

25 A I saw Officer Griffin pass me in the car. 11:54


38/178

1 Q How much time would you say passed between the 11:55

2 time you saw Officer Griffin pass you in the car and the

3 time you saw Mr. McDade leave the sidewalk?

4 A Not long. Second.

5 Q About one second? 11:55

6 A Second or two. A few seconds.

7 Q And how much time would you say passed between

8 the time that you saw Mr. McDade leave the sidewalk and the

9 time you heard the first shot?

10 A Second or two. 11:5511 Q Were you keeping a pretty much constant distance

12 from Mr. McDade the approximate 10 or 20 yards before he

13 left the sidewalk?

14 A I believed I was gaining on him.

15 Q You appeared to be gaining on him? 11:55

16 A Yes.

17 Q Can you tell me about that, please. What do you

18 think you closed that gap to while you were both on the

19 sidewalk?

20 A Maybe ten yards. 11:56

21 Q Could you see him better the closer you got to

22 him?

23 A I don't remember.

24 Q But you do remember closing the distance?

25 A I remember believing I was closing the distance. 11:56


39/178

1 Q And your estimate is you got to about ten yards? 11:56

2 A Yes.

3 Q Were you pointing your gun at him at some point

4 while he was on the sidewalk?

5 A I was running, like, normal with my gun in my 11:56

6 hand. I was not pointing it at that time.

7 Q So the tack light would not have been pointed in

8 his direction at that point?

9 A No.

10 Q Is that correct? 11:5611 A Yes, sir.

12 Q Now, your training with respect to the use of

13 deadly force, are you -- were you trained that deadly force

14 should only be used as a last resort?

15 A Yes, sir. 11:57

16 Q Were you trained that it should be only used

17 really in immediate defensive-life situation?

18 A Yes, sir.

19 Q And were you trained that deadly force should

20 only be used when there are no other reasonable measures or 11:57

21 options available?

22 A Yes, sir.

23 Q Were you trained that a warning should be given

24 when feasible before using deadly force?

25 A Yes, sir. 11:57


40/178

1 Q Now, as a police officer, were you trained that 11:57

2 if there was an immediate threat to your life that you

3 observed, for example, someone turns on you with a gun that

4 you could defend yourself and shoot that person?

5 A Yes, sir. 11:57

6 Q And were you trained as a police officer, if

7 there's an -- by someone's action an immediate threat to

8 the life of a fellow officer, that you could shoot the

9 person?

10 A Yes. 11:5811 Q And are you trained as a police officer, if you

12 observe an immediate threat to the life of a fellow

13 officer, you should shoot to protect the fellow officer?


15 Go ahead. 11:58

16 THE WITNESS: Can you repeat the question?

17 Q BY MR. GALIPO: Sure. Were you trained as a

18 police officer, that if you see an immediate threat to the

19 life of a fellow officer, that you should shoot the person

20 to protect the fellow officer? 11:58


22 Go ahead.

23 THE WITNESS: I will defend him with the force

24 appropriate.

25 Q BY MR. GALIPO: Right. And if it was appropriate 11:58


41/178

1 to use deadly force, then that would be the force? 11:58

2 A Yes.

3 Q Now, at any time while Mr. McDade was running up

4 the sidewalk, did you shoot him?

5 A No. 11:59

6 Q Would it be correct that you did not shoot him as

7 he was running up the sidewalk because you did not observe

8 an immediate threat to life at this point?

9 A Yes, sir.

10 Q And then you're saying Mr. McDade left the 11:5911 sidewalk area; correct?

12 A Yes.

13 Q And as he left the sidewalk area, as he was

14 approaching the vehicle, did you shoot him then?

15 A No. 11:59

16 Q And is that because at that point you did not see

17 an immediate threat to life?

18 A At that point, no.

19 Q Let me ask it a better way. Did you have an

20 immediate threat to life as Mr. McDade was approaching the 11:59

21 patrol vehicle?

22 A At what distance?

23 Q Well, you told me that, I believe, that there was

24 one or two seconds in between him leaving the sidewalk and

25 you hearing a shot; is that correct? 12:00


42/178

1 A Yes, sir. 12:00

2 Q Were you expecting a shot at the moment you heard

3 that first shot?

4 A I don't know what I was expecting at that point.

5 Q Well, was your gun pointed at Mr. McDade at the 12:00

6 moment you heard the shot?

7 A No.

8 Q Before you heard the shot, did you hear any

9 warning that a shot was going to be fired?

10 A I did not. 12:0011 Q As you were chasing Mr. McDade, did you ever take

12 cover at any time before you heard the shot?

13 A No.

14 Q Are you trained as a police officer, that if you

15 think someone, for example, may have a gun, one option you 12:01

16 have is to take cover?

17 A Yes.

18 Q And one thing you could potentially take cover

19 behind would be an automobile or a car?

20 A Yes. 12:01

21 Q Do you recall if there were any cars parked on

22 Sunset on the street on the night of the incident?

23 A I'm sure there were. I couldn't tell you where

24 or how many.

25 Q Did you ever at any time before you heard the 12:01


43/178

1 first shot attempt to take cover? 12:01

2 A No.

3 Q Now, with respect to the radio dispatches, did

4 you yourself ever dispatch that Mr. McDade was holding his

5 waistband or words to that effect? 12:02

6 A No.

7 Q Did you ever dispatch that you thought he had a

8 gun?

9 A No.

10 Q Was he wearing a hat? 12:0211 A I don't remember seeing the hat.

12 Q Was there any description given from what you

13 heard on the audio dispatch that either of the suspects had

14 a hat?

15 A I remember after re-listening to it that there 12:02

16 was, I believe, a description about one of the subjects

17 wearing a hat.

18 Q Was that the person -- I know at some point they

19 say one person may have been running one direction and the

20 other the other direction. 12:02

21 A There were two different directions.

22 Q There were two different directions, and the

23 person running, I think, was it west on Orange Grove?

24 A One of them was running west on Orange Grove.

25 Q Was that the person described wearing a hat? 12:03


44/178

1 A I would have to listen to this again, but I don't 12:03

2 remember.

3 Q But you don't recall if Mr. McDade had a hat on

4 or not?

5 A I don't remember if he did. 12:03

6 Q Now, you are about ten yards from Mr. McDade on

7 the sidewalk running at the point he leaves the sidewalk;

8 is that fair?

9 A I believe so.

10 Q Now, when he left the sidewalk, meaning 12:0311 Mr. McDade, did he go out towards the middle of the street?

12 A Yes.

13 Q And did he go out towards the middle of the

14 street almost at a right angle? In other words,

15 perpendicular to the sidewalk? 12:04

16 A What I saw pretty much a right angle maybe a

17 little off a few degrees here and there.

18 Q But generally it was a right angle?

19 A Generally, yes, sir.

20 Q Now, did he slow down based on your observations 12:04

21 when he changed direction from going on the sidewalk and

22 then towards the middle of the street?

23 A If he slowed down, I don't remember him slowing

24 down very much.

25 Q Did he appear to you to be continuous running, if 12:04


45/178


46/178

1 A Yes, sir. 12:05

2 Q As he was running up the sidewalk, did you see

3 his right hand?

4 A I could not see his right hand.

5 Q Could you see his left hand? 12:06

6 A I don't remember.

7 Q As he made this right turn, could you see his

8 right hand?

9 A No.

10 Q Could you see his left hand? 12:0611 A I don't remember seeing his left hand.

12 Q So at the moment you hear the shot, were you

13 running?

14 A I was still running at that moment, yes, sir.

15 Q And could you tell where the shot was coming 12:06

16 from?

17 A I could tell.

18 Q I mean in general.

19 A I could tell where it was coming from, yes, sir.

20 Q Where was it coming from? 12:06

21 A From the area the vehicle and where Mr. McDade

22 was.

23 Q And did you know that Officer Griffin was inside

24 the vehicle at this point?

25 A I didn't know for a fact, but I assumed it was my 12:07


47/178

1 partner. 12:07

2 Q You saw the vehicle going up the street, and you

3 assumed Officer Griffin was driving it?

4 A Yes, sir.

5 Q You hadn't seen him get out of the car? 12:07

6 A No.

7 Q So you assumed he was in the car still?

8 A Yes.

9 Q Did you give any commands of any kind to

10 Mr. McDade from the time he left the sidewalk to the time 12:0711 you heard the first shot?

12 A No.

13 Q Did you hear any commands being given to him from

14 the time he left the sidewalk to the time of the first

15 shot? 12:07

16 A I did not hear any commands.

17 Q Now, did you say that you had reviewed your

18 transcription of your statement yesterday?

19 A Yes.

20 Q Did you say in your statement that when 12:08

21 Mr. McDade turned into the street, that's when the car,

22 meaning Officer Griffin's patrol car, came up and passed

23 you?

24 MR. GILBERT: The statement speaks for itself.

25 Go ahead. 12:08


48/178

1 THE WITNESS: I don't know exactly what I said, what 12:08

2 it says in the statement.

3 Q BY MR. GALIPO: Well, when you looked at it

4 yesterday, do you recall seeing that reference?

5 A I remember something along that line, yes. 12:08

6 Q Does that seem about right that when you saw

7 Mr. McDade turn into the street, that's pretty much when

8 the car came up and passed you?


10 Go ahead. 12:0911 THE WITNESS: That's what it says in there. That's

12 what I said.

13 Q BY MR. GALIPO: Well, do you think that detail,

14 if you will, would be fresher in your mind when you gave

15 your statement than it is now? 12:09

16 A Probably, yes, sir.

17 Q Did you ever see Mr. McDade walking out into the

18 street?

19 A At what point?

20 Q At any point before you heard the shot. 12:09

21 A Are you talking about after I'm on foot pursuit?

22 Q Correct.

23 A No.

24 Q In your statement -- and I'll show you this on

25 page 21, Bates stamp 270, you say, "By the time I see the 12:10


49/178

1 car pulling up beside me, I remember him walking out to the 12:10

2 street."

3 First of all, the "him," would that be

4 Mr. McDade? Let me show you, and I underlined it. It's on

5 lines 11 and 12. Why don't you read it to yourself first 12:10

6 and starting with that sentence.

7 A Probably just a poor choice of word.

8 Q Okay. Let me just break it down. "By the time I

9 see the car pulling up beside me," what car are you

10 referring to? 12:1011 A Our police car.

12 Q The patrol car?

13 A Yes, sir.

14 Q I remember him. Who's the "him"?

15 A McDade. 12:11

16 Q Walking out to the street, just to give me an

17 idea when you see the car that Officer Griffin is driving

18 passing you, how far -- how far ahead was Mr. McDade?

19 Would it be about the ten yards, sir?

20 A Within ten to five yards would be my estimate. 12:11

21 Q And it's at that time, according to your

22 statement, you saw Mr. McDade going out to the street?

23 A He would be turning towards the street. I don't

24 know if he's actually putting the foot in the street, but

25 that's when he started to make his turn. 12:11


50/178

1 Q And in your statement, you use the word "walking" 12:11

2 out in the street, but you're saying that was a poor choice

3 of words?

4 A That was a poor choice of words.

5 Q You're not saying you didn't say it, but you're 12:11

6 saying that maybe you could have used a different word like

7 running, for example?

8 MR. GILBERT: And you're limiting that sentence as

9 opposed to the next sentence where it references running?

10 MR. GALIPO: I'm happy to include that in all 12:1211 fairness.


13 Q BY MR. GALIPO: Let me read the next sentence in

14 fairness. The next sentence says, "By the time I see the

15 car pulling up beside me, I remember him walking out to the 12:12

16 street." The next sentence -- and I'll read the

17 corrections. "Matt comes to a stop, and the guy runs

18 directly towards" -- "he's running directly towards the

19 driver's side, the driver's door of the police car, and

20 this all happened very, very quick." 12:12

21 That's your complete answer; correct?

22 A That's what I said, sir.

23 Q So just so I understand --

24 MR. GILBERT: As far as a complete answer, there is

25 another paragraph. 12:12


51/178

1 MR. GALIPO: Oh. 12:12

2 MS. HARPER: I'm going to object as to counsel

3 coaching. He'll have -- Mr. Gilbert will an opportunity to

4 correct anything or add anything or take anything away.

5 Mr. Galipo is asking his question. If you could not read 12:13

6 the transcript into the record, please, sir.

7 MR. GALIPO: But I will agree that I said that's the

8 complete answer, and there's actually a little bit more to

9 the answer.

10 MR. GILBERT: Thank you, sir. 12:1311 Q BY MR. GALIPO: Okay. Let me clarify this.

12 You're saying that, as the car that Officer Griffin is

13 driving is passing you, you remember Mr. McDade running out

14 to the street?

15 A If I can clarify, when I saw the car passing me 12:13

16 or beside me, it's probably a poor term. I didn't look to

17 my right and see a police car. By the time I noticed it

18 was a police car, it was in front of me.

19 Q Okay. But at about that same time, you're saying

20 you're seeing Mr. McDade running into the street. 12:13

21 A Yes. Starting to make his turn to the right

22 towards the street.

23 Q You said walking out to the street, but you're

24 saying he was running?

25 A He was running. 12:14


52/178

1 Q So just so we're clear, based on your 12:14

2 recollection, Mr. McDade is starting to make his turn and

3 run into the street as you're seeing the patrol car passing

4 you?

5 A To be clear, it had already passed me. 12:14

6 Q As you're seeing the patrol car moving?

7 A Yes.

8 Q So it wasn't based on your observation as if the

9 patrol car came to a stop, and then Mr. McDade turned to

10 run into the street. You're obviously saying from what 12:1411 we've been looking at your statement, you recall Mr. McDade

12 turning and running into the street as the patrol car is

13 moving up the street?

14 A It was almost simultaneous.

15 Q With him running and the patrol car moving? 12:14

16 A Yes. As to when the stop came and when he

17 turned.

18 Q Well, this is -- and I'm being specific because

19 I'm looking at your statement.

20 A I know. 12:15

21 Q First of all, you would at least agree with me in

22 the portion of your statement we just read, you're saying

23 that you see him going out into the street during the same

24 time frame you see the vehicle going up the street.

25 A Yes. 12:15


53/178

1 Q You don't say in your statement, at least not in 12:15

2 this portion, that you saw the vehicle come to a complete

3 stop and then Mr. McDade ran into the street. Would you

4 agree with that?

5 A That is not what it says there, no. 12:15

6 MR. GILBERT: You have to wait until he finishes his

7 question, please.

8 THE WITNESS: Sorry.


10 Q BY MR. GALIPO: Now, do you have an estimate as 12:1511 to the speed of the patrol vehicle when you saw it passing

12 you?

13 A I wouldn't be able to give an estimate.

14 Q Did the patrol vehicle have its lights and sirens

15 on at that point? 12:16

16 A No, sir.

17 MR. GILBERT: And just for clarification, you mean the

18 red and blue lights on the roof?

19 MR. GALIPO: Yes. Thank you.

20 MR. GILBERT: Thank you. 12:16

21 Q BY MR. GALIPO: Now, so you hear a shot. You're

22 running, and then you come to a stop; is that accurate?

23 A Yes.

24 Q And when you came to a stop, you still have the

25 gun in your hand? 12:16


54/178

1 A Yes, sir. 12:16

2 Q You're on the sidewalk still?

3 A I'm in that area.

4 Q Now, at some point you see muzzle flash; is that

5 true? 12:16

6 A Yes.

7 Q Do you know if you saw muzzle flash with the

8 first shot or one of the subsequent shots?

9 A I don't know which shot.

10 Q But one of the shots you saw muzzle flash? 12:1611 A Yes, sir.

12 Q After you heard the first shot, you observed

13 Mr. McDade immediately turn toward you; correct?

14 A Yes.

15 Q And you're on the sidewalk; true? 12:17

16 A I think I'm in the parkway area of the grassy

17 area between the sidewalk and the curb.

18 Q And, in fact, you saw him in what you

19 characterize as a crouched position?

20 A Yes. 12:17

21 Q And then you heard additional shots; correct?

22 A I heard two shots.

23 Q Well, after you saw him turn towards you and go

24 in a crouched position, you heard another shot?

25 A I believe so, yes. 12:17


55/178

1 Q And was it with that second shot that you heard 12:17

2 that you saw the muzzle flash, or you don't recall?

3 A I couldn't tell you which shot it was.

4 Q So you see the muzzle flash, and you see some

5 gunshots; is that correct? 12:18

6 A Yes, sir.

7 Q And you think that maybe Mr. McDade is shooting

8 at you?

9 A Yes, sir.

10 Q So you return fire? 12:1811 A Yes, sir.

12 Q How far would you say you were from the driver's

13 side of the patrol vehicle when you hear the first shot?

14 A Ten yards maybe.

15 Q Did you sense that shots were coming in your 12:18

16 direction? Was that the perception that you had at the

17 time you heard the shots and saw the muzzle flash?

18 A That was my perception, yes.

19 Q After the first gunshot, did you see Mr. McDade

20 start to walk towards the back of the car and turn towards 12:19

21 you?

22 A Yes.

23 Q And then you heard a second gunshot?

24 A I can't tell you how many steps he took but, yes.

25 Q So after the first gunshot, based on your 12:19


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1 MR. GALIPO: Let me ask a better question. 12:20


3 Q BY MR. GALIPO: Could you tell where either of

4 his hands were when you fired your first shot?

5 A I don't remember where his hands were, sir. 12:20

6 Q I'm wondering it you think you could see his

7 hands when you fired your first shot or not.

8 A I couldn't see them.

9 Q How about your second shot? Could you see his

10 hands then? 12:2011 A No.

12 Q Third?

13 A No.

14 Q Fourth?

15 A No. 12:20

16 Q How many shots did you fire altogether?

17 A I ended up firing four shots.

18 Q Did you ever see a gun in his hands?

19 A I never saw a gun in his hands.

20 Q Did you ever see anything that looked like a gun 12:21

21 in his hands?

22 A I couldn't see his hands.

23 Q Where were you aiming when you fired?

24 A I was aiming center mass.

25 Q Would that be his chest from your perspective? 12:21


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1 MR. GALIPO: I think this is fine now. 12:22

2 MR. GILBERT: I just need the restroom.

3 MR. GALIPO: Let's take a break.

4 THE VIDEOGRAPHER: Okay. We're going off the record

5 at 12:23. 12:22

6 (A recess was taken.)

7 THE VIDEOGRAPHER: We're back on the record at 12:32.

8 Q BY MR. GALIPO: Going back to the lights and

9 sirens and the video, there's two separate buttons; is that

10 right? One button is for lights and sirens and another one 12:3211 if you want to manually activate the video separately from

12 the lights and sirens?

13 A The button is to manually activate the lights and

14 sirens switch.

15 Q There's a switch? 12:32

16 A A toggle switch.

17 Q Now, clearly when you're running behind him on

18 the sidewalk with your gun out, you don't shoot him at that

19 point; correct?

20 A No, sir. 12:32

21 Q Is -- based on your training, you would agree it

22 would be incorrect or inappropriate to shoot him as you're

23 chasing him up the sidewalk.


25 Q BY MR. GALIPO: You would agree with that? 12:33


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1 towards me, yes. 12:34

2 Q And so with his upper body turning towards you,

3 he would then be turning away from the car; is that

4 correct?

5 A Yes. 12:34

6 Q And at the time that you -- after you heard the

7 first shot and you saw him walking and turning towards you,

8 you believe he was actually looking in your direction; is

9 that true?

10 A I could see his face. 12:3511 Q And his face appeared to be looking in your

12 direction as you were hearing an additional gunshot?

13 A I don't remember exactly what point but, yes.

14 Q When you saw him starting to run into the street,

15 you started to run towards the street, didn't you? 12:35

16 A At some point, yes.

17 Q And that would be before you heard the first

18 gunshot that you started to run towards the street?

19 A I believe so, yes.

20 Q In other words, you changed direction somewhat in 12:36

21 response to him changing direction?

22 A Yes.

23 Q In your mind, were you intending to keep

24 following him wherever he went?

25 A I was in foot pursuit, yes, sir. 12:36


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1 the vehicle had struck Officer Griffin or Mr. McDade? 12:38

2 A I did see it strike Officer Griffin.

3 Q And did you then jump in the vehicle to stop it

4 from rolling backwards?

5 A Yes, sir. 12:38

6 Q Was it, in fact, in reverse?

7 A I didn't actually check to see what gear it was

8 in. I just quickly put it in park.

9 Q And then the vehicle stopped?

10 A Yes. 12:3911 Q And you got back out of the vehicle?

12 A Yes.

13 Q What did you do next?

14 A After I got out of the vehicle, I covered down on

15 McDade. 12:39

16 THE REPORTER: On my?

17 MR. GALIPO: Covered down.

18 THE WITNESS: And I began to put out radio traffic

19 that we had shots fired and needed an ambulance.

20 Q BY MR. GALIPO: Now, at some point, was -- did 12:39

21 you or Officer Griffin in your presence pat him down?

22 A At one point I did, yes.

23 Q And do you have training on doing that?

24 A Yes.

25 Q And can you explain just, basically, what you did 12:39


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1 in terms of patting him down. 12:39

2 A Just patted down his waistband where he had his

3 hand.

4 Q And did you say he was facedown?

5 A Yes. 12:40

6 Q And were both of his arms underneath him at that

7 point?

8 A I don't remember if both of them were. I

9 remember the right specifically because I pulled it out.

10 Q You pulled the right arm out? 12:4011 A Yes.

12 Q When you patted his waistband, how did you do

13 that? Just, basically, feel around his waistband front

14 sides and back?

15 A I just -- yes. I just felt it. I felt the 12:40

16 front.

17 Q Did you feel any weapon or anything that felt

18 like a weapon?

19 A I did not.

20 Q Did you see any gun anywhere around the area? 12:40

21 A No.

22 Q Could you tell if Mr. McDade was alive at that

23 point when you were patting him down?

24 A Yes.

25 Q Did he appear to be alive? 12:40


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1 A Yes. 12:40

2 Q Was he making noises or sounds?

3 A I don't remember a whole lot of sounds.

4 Q What did you see that made you believe he was

5 still alive? 12:41

6 A He said something to me.

7 Q Okay. Did you mention what he said to you in

8 your statement?

9 A I believe so, yes.

10 Q What did he say to you? 12:4111 A I believe it was something along the lines of "I

12 don't have anything."

13 Q Was that statement made to you at or about the

14 time that you were checking his waistband?

15 A I don't remember exactly when it was made, but it 12:41

16 would have been around that time, yes.

17 Q You recall him saying anything else that you

18 could make out other than that?

19 A No.

20 Q Did you say anything to him after you fired your 12:41

21 shots and before you patted him down?

22 A I don't remember exactly. I imagine I would be

23 telling him to "Let me see your hands," something along

24 those lines. I don't remember exactly.

25 Q Did you ever tell him, "Let me see your hands" 12:42


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1 before you fired your shots? 12:42

2 A No.

3 Q So you might have said something to that effect

4 afterwards?

5 A Yes, sir. 12:42

6 Q And I think you described that he was chest down

7 or facedown and you believe his right arm was underneath

8 him because you pulled that out?

9 A Yes.

10 Q At some point, did it appear to you that he may 12:4211 have been struck by some of the gunshots?

12 A I don't remember ever seeing blood.

13 Q Did you have an impression one way or the other

14 understanding you did not see blood as to whether or not he

15 might have been struck? 12:42

16 A I believe he had been struck when I got up to

17 him, yes.

18 Q What did you see that made you think in your mind

19 that he might have been struck?

20 A Just based on his actions. 12:42

21 Q What about his actions?

22 A He was fairly still. Wasn't a whole lot of

23 movement.

24 Q Now, after you patted him down, what do you do

25 next? Do you handcuff him? 12:43


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1 A At some point, I do handcuff him. 12:43

2 Q And at what point did you handcuff him, if you

3 remember?

4 A I don't remember exactly. I can't remember if it

5 was after I patted him, patted his waistband, or before. 12:43

6 Q But at about near in time to that?

7 A Yes.

8 Q And after you handcuffed him and pat him down,

9 what did you do next?

10 A I walked away. There were other officers on the 12:4311 scene. I walked towards the backpack towards Orange Grove.

12 Q Okay. Do you remember what other officers got

13 there?

14 A I remember Corporal McDonald.

15 Q Who else do you recall? 12:43

16 A Later Officer Griffin showed up down there, and I

17 also spoke with Sergeant Goldstein, and I speak with public

18 safety question.

19 Q The public safety statement?

20 A Yes. 12:44

21 Q Now, I'm going to ask you -- I'm going to go back

22 a little bit in the beginning. Just ask you a series of

23 questions, and then we'll take our lunch break if that's

24 okay.

25 You reference on the bottom of page 3 of your 12:44


69/178

1 statement hearing information that a backpack had been 12:44

2 taken from a man, and I'll show you the portion of your

3 statement that I underlined. Is that something that you

4 believe you heard on the radio dispatch?

5 A I can't remember it based on memory, but if I 12:44

6 said it, I must have heard it.

7 Q Would it be at least fair to say you never saw

8 Mr. McDade in possession of a backpack?

9 A Would it be fair to say that? Yes.

10 Q I may have asked you that. I know I asked 12:4511 Officer Griffin. You didn't have any information that

12 shots had been fired relative to a robbery, did you?

13 A No.

14 Q Did you have any information that anybody had

15 been injured? 12:45

16 A No.

17 Q Now, when you first saw Mr. McDade, you were in

18 the police vehicle?

19 A Yes, sir.

20 Q In the passenger seat? 12:45

21 A Yes.

22 Q And where was the vehicle when you first saw

23 Mr. McDade?

24 A It was pointing to the intersection of

25 Orange Grove and Fair Oaks. 12:45


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1 Q And when you first saw Mr. McDade, you saw him 12:45

2 running; correct?

3 A Yes.

4 Q And after seeing him running, you tell Officer

5 Griffin words to the effect "Hey. There's a guy running up 12:46

6 there" or something like that?

7 A Something like that.

8 Q You wanted to -- you saw Mr. McDade running, and

9 you wanted to direct Officer Griffin's attention to that.

10 A Yes, sir. 12:4611 Q Now, when you initially saw him running, he was

12 actually running across the street; is that true?

13 A Yes.

14 Q And when you initially saw him running across the

15 street, is it also correct that you did not see him holding 12:46

16 his waistband at that point?

17 A I could not tell at that point.

18 Q Well, let me ask you this: Did you see him

19 holding his waistband? You yourself as he was running

20 across the street? 12:46

21 A I don't remember him holding his waistband.

22 Q You made that observation, you believe, for the

23 first time once he's in the parking lot; is that accurate?

24 A Yes, sir.

25 Q Now, at some point the vehicle you were in made 12:47


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1 Q Oh. Air operations? 12:49

2 A Yes, sir.

3 Q What did you do for air operations?

4 A I was a technical flight officer.

5 Q Similar to Officer Griffin? 12:49

6 A Yes, sir.

7 Q So, in other words, when there were pursuits or

8 things of that nature, you would be the eyes, so to speak,

9 and let ground units know what's going on?

10 A Yes, sir. 12:4911 Q What's your assignment now?

12 A I'm back on patrol.

13 Q When were you back assigned to patrol?

14 A February, 2013.

15 Q One more reference, and then I think we'll take 12:49

16 our break now if that's okay with everybody, and I'm

17 looking at page 18 of your statement, Bates stamp 267.

18 We've kind of been over there, but you say once he -- "Once

19 he stopped and turned and went the other way, my partner

20 stopped the vehicle." 12:50

21 Do you see that sentence? It's on line 8, 9 of

22 your statement.

23 A Yes, sir.

24 Q So once he stopped and turned and went the other

25 way, are you referring to McDade? 12:50


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1 A Yes, sir. 12:50

2 Q And your partner, you're referring, obviously, to

3 Officer Griffin?

4 A Yes.

5 Q So based on your recollection of the event, 12:50

6 Mr. McDade, who had been running up the sidewalk, stopped

7 and turned and went another way. Then Officer Griffin

8 stopped his car?

9 A Yes.

10 Q And the stopping and going the other way, would 12:5011 that be out into the street? Is that the way that he

12 turned?

13 A Who are you referring to?

14 Q Mr. McDade. When you say he stopped and turned

15 and went the other way, I know he was running up the 12:51

16 sidewalk. Would the other way be out towards the middle of

17 the street?

18 A It would be back from where he came from. So if

19 he's heading west on Orange Grove, if stopped and went the

20 other way, which would be east. 12:51

21 Q Is this maybe earlier in the -- is this earlier

22 in the incident that you're referring to here or at the

23 time of the incident?

24 A This is earlier. This is before I exited.

25 Q My fault. Okay. 12:51


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1 same. 01:57

2 MR. GALIPO: No. I think we marked 5. I think 4 and

3 6 were the same. Does that sound right, everyone?

4 I'll mark this Exhibit 6.

5 (Plaintiffs' Exhibit 6 was marked for 01:57

6 identification.)


8 MR. GALIPO: You're welcome.

9 Q Okay. So are those your initials?

10 A Yes, sir. 01:5811 Q And did you draw this particular exhibit or part

12 of it?

13 A I believe so.

14 Q And the rectangle with 22, was that meant to

15 depict the patrol vehicle? 01:58

16 A Yes.

17 Q And the "X" on the left, was that intended to

18 depict approximately where you were when you fired your

19 shots?

20 A Yes, sir. 01:58

21 Q Now, on the -- I guess it would be driver's side

22 of the patrol unit. There's a series of marks. One

23 appears to be going towards the area of the -- I don't know

24 front tire area or front door area. I know it's not to

25 scale, and another one appears to be coming down. What 01:58


76/178

1 were you intending to depict in this? 01:58

2 A I think they were asking me to depict what his

3 movements were.

4 Q Okay. And you told me today at some point was

5 going towards the vehicle and at some point more towards 01:59

6 the rear, and that's when you shot; is that correct?

7 A Yes, sir.

8 Q So the line going more towards the rear leading

9 to the X, is that his approximate position when you first

10 fired? 01:5911 MR. GILBERT: I'm sorry. Could you --

12 MR. GALIPO: Sure. There's a line that looks to be

13 somewhat parallel.

14 MR. GILBERT: Would we just for ease also north is the

15 top for references. 01:59

16 MR. GALIPO: Sure.

17 MR. GILBERT: North and west would be the side that

18 says Sunset.

19 MR. GALIPO: Sure.

20 MR. GILBERT: I'm sorry. I didn't catch your 01:59

21 question.

22 Q BY MR. GALIPO: I understand that Sunset runs

23 northwest. For purposes of this question, we're going to

24 think of north being top of this exhibit. Do you have that

25 in mind? 02:00


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1 A Yes, sir. 02:00

2 Q So the front of the patrol vehicle would be

3 generally facing north?

4 A Yes, sir.

5 Q And then on this Exhibit 6 it looks to be an "X" 02:00

6 on the driver's side of the vehicle; is that correct?

7 A Yes.

8 Q Was that "X" intended to depict approximately

9 where Mr. McDade was when you fired your first shot?

10 A Yes, sir. 02:0011 Q Okay. And then there appears to be a line that's

12 somewhat parallel to the driver's side of the vehicle

13 leading up to that "X." You were intending to show his

14 movement in the direction of the "X" before you fired?

15 A Yes, sir. 02:00

16 Q And then this line that I guess would be going

17 somewhat northeast by your directions towards the car, what

18 was that intended to show, if you recall?

19 A I don't recall. Maybe basic where I saw him

20 running towards the vehicle. 02:01

21 Q This other diagram, did you have any involvement

22 in this or not?

23 A That does not look familiar to me.

24 Q Okay. Then I won't ask you about it. When you

25 were running after Mr. McDade on the sidewalk, were you 02:01


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1 sites; correct? 02:02

2 A Yes.

3 Q And, if necessary, continue to run after him so

4 you could do that?

5 A Yes. 02:02

6 Q And then what were you thinking in your mind as

7 far as a tactical plan to take him into custody? Were you

8 hoping to get the assistance of other units?

9 A Yes.

10 Q And did you understand that other units were on 02:0311 the way?

12 A Yes.

13 Q Were you wearing a bullet-proof vest?

14 A Yes, I was.

15 Q As he was -- Mr. McDade was running up the 02:03

16 sidewalk, could you tell if his left arm was pumping or

17 not?

18 A It appeared it was pumping.

19 Q So could see his left arm?

20 A I believe so, yes. 02:03

21 Q Did he ever look back at you as he was running up

22 the sidewalk?

23 A I don't remember him directly looking back at me.

24 Q When he turned towards the street when he changed

25 direction after running up the sidewalk, did you ever look 02:03


80/178

1 in your direction at that point before the first shot was 02:04

2 fired?

3 A I don't recall that.

4 Q When did you first take out your gun in this

5 incident? 02:04

6 A Once we got up to the parking lot.

7 Q Did you put your window down at any point in

8 time?

9 MR. GILBERT: I'm sorry to interrupt. There's been a

10 couple parking lots mentioned. Can we clarify which 02:0411 parking lot?

12 Q BY MR. GALIPO: Which parking lot are you

13 referring? To the first parking lot he ran on?

14 A Yes. Just north on Fair Oaks from Orange Grove.

15 Q We had looked at Exhibit 2 before, and I think 02:05

16 there was a mention of a Mandarin place. Is that the

17 parking lot you're referring to? I think it's also shown

18 in Exhibit 3 a little more close up.

19 A Yes. That is the parking lot. The one where it

20 says Mandarin on the map. 02:05

21 Q And did you ever put your window down?

22 A I don't remember putting it down.

23 Q When you saw the muzzle flash, did you consider

24 in your mind that it could be coming from Officer Griffin?

25 A I felt my partner had just been shot. 02:06


81/178

1 Q That's not my question. My question is when you 02:06

2 saw the muzzle flash, did you think it was possibly coming

3 from Officer Griffin?

4 A I did not think that at the time.

5 Q Did the muzzle flash appear to be coming from the 02:06

6 open window area on the driver's side of the car?

7 A I couldn't tell where it came from. I saw a

8 flash.

9 Q Didn't you say in your statement that you shot

10 because you thought the Mr. McDade was shooting at you? 02:0711 A Yes.

12 Q Did you ever see him with an arm extended in your

13 direction?

14 A No.

15 Q Are you aware that some people that run from the 02:07

16 police may use a hand to hold up their pants because

17 sometimes young people wear oversized clothes?

18 MR. GILBERT: Vague. Overbroad.

19 Go ahead.

20 THE WITNESS: I believe that could be possible, yes. 02:08

21 Q BY MR. GALIPO: There's going to be a little bit

22 of a pause in between. I apologize. I'm just looking at

23 your statement.

24 A Okay, sir.

25 Q Were you trained that if you're chasing someone 02:09


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1 or starting to crouch, and that's when I could see his head 02:11

2 turning my way and possibly like his upper body starting to

3 blades towards me.

4 THE REPORTER: "Upper body"?

5 THE WITNESS: Upper body begin to blade towards me. 02:12

6 Q BY MR. GALIPO: Do you have any understanding as

7 to how many of your bullets, if any, struck him?

8 A I don't know how many bullets struck him.

9 Q But you would have been aiming at him with the

10 gun in two hands center mass during your four shots? 02:1211 A Yes.

12 Q And with your weapon you need to press the

13 trigger for each shot?

14 A Yes, sir.

15 Q Did you see your casings at any time while you 02:12

16 were at the scene?

17 A No.

18 Q Do you have a general idea of the ejection

19 pattern of the casings on that gun from going to the firing

20 range? 02:13


22 MR. GALIPO: Let me break it down a little bit.

23 Q The ejection port is on the right side?

24 A Yes, sir.

25 Q So I don't know. Do you have a general idea that 02:13


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1 the casings go up and slightly to the back? Anything like 02:13

2 that?

3 A I don't know the exact direction they travel. I

4 know they go slightly up and to the right somewhere. I

5 don't know if it's right in forward or right in back. I 02:13

6 don't know.

7 MR. GILBERT: That's fine.

8 Q BY MR. GALIPO: When you were firing, do you

9 believe you were shooting more or less level, slightly

10 upwards, or slightly downward? 02:1311 A I don't know.

12 Q That street there in between where you were and

13 where Mr. McDade was going up in a northwest direction, do

14 you know if it's more or less level or slightly uphill or

15 how would you describe it? 02:14

16 A I would describe it as flat. I don't know the

17 exact incline of the street.

18 Q But it looks generally flat as opposed to a sharp

19 incline?

20 A That's what I remember. 02:14

21 MR. GILBERT: Now, are you talking as it runs north

22 and south or curb to curb?

23 MR. GALIPO: No. North and south.


25 Q BY MR. GALIPO: Is that what you understood? 02:14


85/178

1 A That's what I was referring to. 02:14

2 Q Now you have me curious about that curb to curb.

3 Now, you were asked, and this is referring to the muzzle

4 flash. You were asked in your statement if you could tell

5 where that was coming from, and you said "no." Is that 02:15

6 accurate? You weren't sure where the muzzle flash was

7 coming from?

8 A I mean no. I couldn't tell. If you're talking

9 about I could tell the general area if that's what you're

10 referring to. 02:1511 Q Yeah. But specifically you couldn't tell from

12 where you were; is that correct?

13 A Yes.

14 Q When you say the "general area," you're referring

15 to the driver's side of the patrol vehicle? 02:15

16 A Yes.

17 Q Did you just give the one recorded statement in

18 this case, or was there a follow-up statement with Internal

19 Affairs or something like that?

20 A Just the one statement. 02:15

21 Q Now, when you gave the public safety statement at

22 the scene, did you say that you saw Mr. McDade's hand on

23 his waistband?

24 A I don't believe I said that in my public safety

25 statement. 02:16


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1 writing. 02:18

2 Q Were you asked at some point to listen to the

3 recorded statement and compare it to the transcript?

4 A Yes, I was.

5 Q And did you find some discrepancies? 02:18

6 A Yes.

7 Q And what did you do? Just point them out to

8 someone so the changes could be made?

9 A I made the corrections on the copy I was provided

10 and turned them in. 02:1811 Q When you recently looked at the transcript, did

12 it have some of the changes on it like we're looking at on

13 page 48, although they were not in your hand, the

14 transcript that we looked at, did they have some of those

15 modifications? 02:19

16 A They did have some of those modifications.

17 Q And were those modifications you suggested when

18 you went through, did they appear that way to you, or could

19 you te

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