oaklandpd.swat.greenberg

8/16/2019 Oaklandpd.swat.Greenberg

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1 Arbitration between:

2

3 OAKLAND POLICE OFFICERS

4 ASSOCIATION, RICARDO OROZCO AND

5 CHRISTOPHER MUFARREH,6 Grievants,7 and

8

9 CITY OF OAKLAND, CALIFORNIA,10 Employer/Respondent,

1112 regarding the City of Oakland’s decision to demote13 Grievants Ricardo Orozco and Christopher Mufarreh.

14

15 BEFORE: PAUL GREENBERG, Arbitrator 1617 Appearances:18 For Oakland Police Officers Association, Ricardo Orozco and Christopher Mufarreh:19 Michael L. Rains, Esq., Rains Lucia Stern, P.C., Pleasant Hill, California2021 For City of Oakland:22 Karen L. Snell, Esq., San Francisco, California; Rachel Wagner, Esq., Bertrand, Fox & Elliott, San23 Francisco, California2425

26 DECISION AND ORDER 272829 I. OVERVIEW.1

30

31 On Saturday, March 21, 2009, four police officers employed by the Oakland Police

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

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

As is customary, the Decision in this matter is based exclusively on the extensive record presented by1

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

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

3 Hege died from their wounds.

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

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

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

7 a history of violence.

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

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

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

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

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

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

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

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

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

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

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

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

20 Both died within a short time.

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

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


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

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

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

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

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

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

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

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

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

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

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

12 findings.

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

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

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

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

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

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

19 and thus no discipline was imposed.

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

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

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


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1 II. PRELIMINARY COMMENTS.

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

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

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

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

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

7 subsequent investigations and proceedings:

8 OPD Senior Management9

10 Chief Anthony Batts. Chief Batts was appointed Chief in October 2009.

11

12 Asst. Chief Howard Jordan. Between February and October 2009, Asst. Chief Jordan

13 served as Acting Chief of Police. He was Acting Chief on March 21, 2009.

14

15 Patrol Division

16

17 Capt. Richard Orozco. In March 2009, Capt. Orozco was the Area 2 (Central Oakland)

18 commander.

1920 Lt. Chris Mufarreh. In March 2009, Lt. Mufarreh was one of the Area 2 lieutenants,

21 working under Capt. Orozco.

22

23 Lt. Ersie Joyner III.

24

25 Sgt. Richard Andreotti.

26

27 Sgt. Donald Covington. Area 3 Patrol Supervisor.

28

29

30 Criminal Investigation Division (CID)/Homicide

31

32 Lt. Brian Medeiros. CID Commander.

33

34 Sgt. Tony Jones.

35

36 Sgt. Rachel Van Sloten.


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1 Sgt. Louis Cruz. At the time of the arbitration hearing, Sgt. Cruz had left OPD and was

2 employed as an Inspector with Alameda County DA office.

3

45 Tactical Operations2

6

7 Sgt. Patrick Gonzalez. Team Leader

8

9 Sgt. Michael Beaver. Team Leader

10

11 Sgt. Mike Reilly. Team Leader

12

13 Sgt. Sean Knight. Although assigned to the Tactical Operations Team, by March 2009

14 Sgt. Knight no longer was performing tactical entry work. His primary area of

15 responsibility involved electronic surveillance. 16

17 Dispatcher Nancy Parlette. Parlatte primarily works as a Communications Dispatcher,

18 but also has responsibilities as a Tactical Operations Dispatcher and a “scribe”

19 for the tactical operations unit.

20

21

22 Internal Affairs

23

24 Lt. Sean Whent. Lt. Whent was in charge of the Internal Affairs Division (IAD) from

25 January 2009 thru October 2010, and returned to IAD in May 2011.

2627 Other OPD witnesses

28

29 Capt. Benson Fairow. In March 2009, Capt. Farrow was in charge of the Youth and

30 Family Services Division. At the direction of Acting Chief Jordan, Capt. Farrow

31 chaired the Force Review Board inquiry into the events of March 21, 2009.

32

33 Ofr. Kevin Kaney. In March 2009, Ofr. Kaney was assigned to the Gang and Gun

34 Investigation Task Force. At the request of his supervisor, Sgt. Sean Knight, on

35 March 21, 2009, Kaney reported to the crime scene and assisted with researching

36 crime records to try to identify the suspect.

37

Tactical operations is an auxiliary assignment, i.e., members of the tactical operations unit normally2

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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1 Ofr. David Burke. Ofr. Burke works in the OPD’s Information Technology (IT) unit. He

2 has responsibility for multiple IT programs, including the “Field Based

3 Reporting” program.

45

6 Witnesses not affiliated with the Oakland Police Department

7

8 Capt. Phillip Hansen. Capt. Hansen is employed by the Los Angeles Sheriff’s office. He

9 served on the Independent Board of Inquiry.

10

11 Asst. Sheriff Brett Keteles. Asst. Sheriff Keteles is employed by the Alameda County

12 Sheriff’s Office. He served on the Independent Board of Inquiry.

13

14 Thomas Leary. Mr. Leary is an investigator working for the Rains Lucia Stern law firm,

15 which represents the Grievants and the Oakland Police Officers Association.16

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

15

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

17 A. The Oakland Police Department’s Patrol Division command structure in March

18 2009; Lt. Mufarreh’s voluntary agreement to work a March 21 shift.

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

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

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

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


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

2 Rachal.

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

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

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

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

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

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

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

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

11 assigned to OPD’s Homicide Division.

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

9 March 22.

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

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

12 record, and had received positive performance evaluations.

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

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

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

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

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

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

19 Command functions.

20

21


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

2 response..

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

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

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

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

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

8 operator a few minutes after the initial stop.

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

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

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

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

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

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

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

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

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

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

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

20 immediately.

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

A lengthy summary of the relevant OPD communications on March 21 between 1:04 PM and 3:13 PM4

is found at JX 7.


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

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

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

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

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

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

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

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

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

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

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

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

13 Avenue, but he (Ellis) did not see his face. JX 40 pp. 6-7.5

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

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

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

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

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

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

20 “southbound on 74th.”

Neither Ellis nor the unnamed officer testified at the arbitration hearing. In this Arbitrator’s view, it is5

unlikely a member of the OPD would need this kind of communications assistance from a citizen.

However, Ellis’s report to Lt. Joyner suggests Ellis had become familiar with OPD procedures.


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

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

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

4 radioed that an outer perimeter should be established “ASAP.” Acting Lt. Blair Alexander from6

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

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

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

8 volunteered to take the assignment.

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

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

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

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

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

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

15 wounded.

16

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

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

Alexander had the rank of sergeant in March 2009, but on March 21 he was serving as the Area6

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 with7

the witness, Elaine Walker. In her IAD interview, Lt. Lindsey indicated she had lived in a “four-plex”

with Walker and Walker’s children for about 3 years, when she (Lt. Lindsey) was young. Walker’s

children were among her playmates, and Walker had watched over Lindsey when Lindsey’s mother was

not present. JX 44 p. 12.


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

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

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

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

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

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

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

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

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

10 been the site of the Eastmont police station.

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

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

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

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

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

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

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

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

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

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


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1 overseeing the crime scene investigation.8

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

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

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

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

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

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

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

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

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

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

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

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

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

15 of a criminal investigation:

16

17 I. COMMAND OF CRIME SCENE/RESPONSIBILITIES FOR

18 PRELIMINARY INVESTIGATIONS

19

20 * * * *

2122 E. Ranking Officer at the Scene of the Crime

23

In a subsequent statement to IAD, Lt. Mufarreh stated he told Lt. Alexander, “I’ll be in charge of 8

following up on, you know, whatever leads that come in. You take care of the perimeter . . . We’ll have .

. . [Lt. Lindsey] take care of the crime scene.” Exh. 27 (IAD Interview) p. 10; also, Tr. VI:136-37.


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1 1. The ranking supervisor or command officer shall assume

2 command at the scene of a crime and shall be briefed of the

3 circumstances of the incident by the preliminary investigator.

4 He/she shall be responsible for directing the activities and tasks of 5 Departmental personnel at the crime scene.

6

7 2. Tactical decisions shall be made by the ranking Patrol Division

8 member at the scene in accordance with the provisions of

9 Departmental General Order K-5, TACTICAL OPERATIONS TEAM.

10 Once the incident is under control, the investigator shall advise the

11 ranking Patrol Division member regarding investigatory needs, to

12 ensure that the assigned officer(s) completes a thorough preliminary

13 investigation.

14

15 3. Investigators shall contact the ranking officer upon their arrival at the16 scene. The investigator shall be briefed of the circumstances of the

17 incident.

18

19 a. If superior in rank to the ranking Patrol Division member at the

20 scene, the investigator shall clearly communicate that he/she is

21 assuming command and shall supervise the preliminary

22 investigation.

23

24 b. If subordinate in rank to the ranking member at the scene, the

25 investigator shall advise the ranking officer regarding investigatory

26 needs and shall supervise the preliminary investigation. The27 subordinate investigator shall comply with the orders of the

28 ranking Patrol Division member; however, the ranking Patrol

29 Division member shall cooperate with all requests made by the

30 investigator in order to ensure that the preliminary investigation is

31 thorough and complete.

32

33 c. If equal in rank to the ranking Patrol Division officer at the scene,

34 the investigator shall assume command and shall supervise the

35 preliminary investigation, proceed to expand the investigation and

36 provide consultation at the scene.

3738 4. If more than one investigator responds to a crime scene, among

39 investigators of equal rank, the investigator whose unit will conduct

40 the follow up investigation of the offense shall be the primary

41 investigator.

42


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

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

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

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

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

6 under her command.

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

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

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

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

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

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

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

14 2:45 PM.

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

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

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

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

19 stay focused on her responsibilities as the Incident Commander:

20 Well, [Lt. Lindsey] was incident commander. If you’re going to be the

21 incident commander, you want to have less duties. And the easiest thing

22 to do in my opinion was to handle the crime scene itself. That’s pretty

23 easy. All you need to do is put a sergeant in charge of the crime scene. It

24 takes 5 minutes, if that, just to coordinate a couple of things. Now, you’re


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1 done. Now you can sit back and you can look at the whole thing. I guess

2 it was my impression that she would probably go back to 73rd. I don’t

3 know. I don’t know what she was thinking, what she wasn’t thinking. But

4 that was the reason why we came up with the division that way to give her 5 the easiest task that a sergeant can do.

6 Tr. VI:205.

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

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

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

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

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

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

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

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

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

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

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

18 objection to the arrangement.9

When Lt. Lindsey was interviewed by the Sgt. Cruz of the Homicide Division in early April about the9

events of March 21, she stated “So . . . basically I get on the radio and . . . I lock that scene down because

now I’m treating it as a homicide scene, and we’re just trying to, you know, canvass, uh, grab witnesses

for Homicide. . . . [W]e triage the scene at one point [be]cause . . . Blair Alexander was handling theouter perimeter. And . . . Lieutenant Mufarreh arrived on the scene and he was assisting with the search

and entry team . . . to locate the suspect. So . . . gosh, it was a lot of things going on, you know, still

coordinating a lot of resources, . . . and I didn’t want to be all over the place.” Later in the interview, in

response to Sgt. Cruz’s question about her contact with Mufarreh, Lt. Lindsey said Lt. Mufarreh’s “role

was going to be the search and entry into the apartment …because that’s what we discussed. That was

his role. We talked about it. We triaged the scene. I was handling the inner perimeter. Blair had the

outer perimeter, and he was gonna assist with the search and entry into the apartment.” JX 44, pp. 6-7,

22.


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

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

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

4

5 D. Command post .

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

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

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

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

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

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

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

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

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

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

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

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

Lt. Lindsey also was interviewed by Sgt. Floyd of IAD as part of the IAD investigation, and offered

the following explanation for the assumption of roles: “I was the only – Well, I mean I handled thescene, you know, originally. I set up the parameter ( sic), you know, people – all the information was

originally, you know, coming through me … I’m the first one here, you know. I knew it ( sic) was certain

things I needed to do. I knew that we had a scene of a Homicide. I know I needed to delegate, but early

on, you know, we triaged the scene. So I was in charge of the inner parameter ( sic) and Blair Alexander

took control of the outer parameter ( sic) and Lt. Mufarreh was responsible for search and entry. And that

was established very early.” Lindsey said the decision to triage the scene in that manner came about

when “we talked . . . by phone and then you will hear Blair Alexander get on the radio . . . I don’t know if

it was anybody’s decision. I just think that was what we came up with.” JX 44B pp. 42-45.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17 tactical dispatchers weren’t present because:

18 At the time it was more important to me to ensure that we cleared that area

19 first. Again, it’s not uncommon that police action takes place without the

20 tactical dispatchers or with support staff because again, it’s an evolving21 process to get that put together.

22 Tr. VII:284-86.

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


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

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

3 awaiting direction.

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

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

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

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

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

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

10 stationed near this area.

11

12 E. Eye-witness reports on the possible location of the suspect; the focus on the 2755

13 74th Avenue apartment; assessments of the information being received.

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

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

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

17 attempt to distract the search.

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

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

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

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

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

15.


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

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

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

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

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

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

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

8 and credible witness.

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

6 However, according to Lt. Joyner,

7 [Ellis] said he didn’t have a concern. In fact, his words were, “I don’t give

8 a fuck who sees me,” and he got into the front seat of the [police] car.

9 Tr. IV: 194-195.

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

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

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

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

14 the past had arrested the individual’s grandfather.

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

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

17 suspect had fled to the 74th Avenue building. Lt. Joyner testified that, based on his11

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

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

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

“Elaine” Walker was the woman in the pink hat who separately had spoken with Lt. Lindsey and Sgt.11

Jones (Homicide Division), and who had identified the 74th Avenue address as a likely location for the

suspect.


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

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

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

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

5 phone call got through first, so he (Lt. Mufarreh) had the initial conversation. In his hearing12

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

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

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

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

10 down. I wrote it down on a piece of paper that I had and then I wrote it

11 again. So I wrote it twice. I wanted to be sure of it and I read it back to

12 him. I tore the piece of paper and I gave one of the addresses to Sgt.

13 Andreotti.

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

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

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

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

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

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

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

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

Lt. Mufarreh testified that he called Lt. Joyner in response to Lt. Joyner’s radio request to speak with12

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.


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

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

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

4 location for the suspect.

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

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

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

8 Alright, listen up. When you go inside that building there, there’s a short9 hallway, there’s also supposed to be one unit downstairs that’s going to be

10 to the right. Um, that’s where he, that’s where the suspect’s been staying,

11 or at least was seen going in there.

12 JX 7 p. 23.

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

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

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

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

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

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

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

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

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

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

23 Avenue apartment.


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

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

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

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

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

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

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

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

9 associated with the building. Slightly earlier, Lt. Joyner had heard Acting Lt. Alexander on the13

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

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

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

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

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

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

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

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

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

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

Lt. Mufarreh disagreed with Lt. Joyner’s testimony. Lt. Mufarreh acknowledged walking down 74th13

Avenue to meet with Lt. Joyner, but he was careful to walk on the south side of the street and to “zig-

zag” because he believed the suspect probably was at the 2755 74th Avenue building, based on Lt.

Joyner’s report. Tr. VI:219.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

16 I thought [Ellis] was telling the truth because of the fact that he wasn’t

17 trying to put too much on it in regards to – he could have simply said, “I

18 saw him go in there,” but he was honest and said, “I didn’t. But I think

19 that he’s in there.”

20 Tr. III:294.

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

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

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


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

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

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

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

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

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

7 else’s car.

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

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

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

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

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

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

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

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

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

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

18 provided by Ellis:

19 So it went from he’s in there, he’s in there, to now it’s third hand, and I20 don’t know who he’s getting this information from, and that he [Ellis]

21 never saw or nobody ever saw the suspect go into that residence. That’s

22 pretty much what I got out of that conversation.

23

24 Tr. VI:220.


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

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

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

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

5 . . . the guy [i.e., the suspect] is probably not there [at the 74th Avenue

6 apartment] because [Lt.] Joyner . . . had a small sliver of the information

7 and he wasn’t there from the beginning. But I still put weight on it. I

8 know I said there’s a low probability that the guy was in there, and, at the

9 time, that’s what I felt. But there was still a probability he could have

10 been in there, but it was pretty low.

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

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

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

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

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

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

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

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

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

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

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

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

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

24 location, and report back to him.


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

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

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

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

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

6 the neighborhood of the earlier traffic stop and shooting.

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

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

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

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

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

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

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

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

15 likely was not in the 74th Avenue apartment:

16 Q So you [Andreotti] get off the phone with Lieutenant Joyner. What was

17 your personal belief concerning the likelihood of the suspect being in the

18 apartment . . . ?

19

20 A Well, based off my experience, I believe[d] the guy was not there. I

21 figured this is something we had to do, we had to clear the apartment

22 before we continue[d] with the search. But in my mind, I was prepared to23 do yard searches for several hours. As a matter of fact, I made some phone

24 calls down at the patrol desk and asked the desk officer to make sure that

25 the batteries were charged . . . [because] if we’re going to be out there for

26 four hours, we’re going to need a supply of fresh batteries.

27 Tr. VII:168.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

3 with Walker, to collect more information.

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

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

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

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

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

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

10 the vehicle with the suspect.

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

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

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

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

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

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

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

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

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

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

21 JX 44 p. 15.

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17

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

19 alert.”

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

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


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

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

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

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

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

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

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

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

9 alert in two ways:

10 I had either put it out on the radio and requested the blue alert and

11 provided them with information, or I had put it out on the radio and then

12 called the communications section.

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

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.


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1 Tr. VII:283.

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

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

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

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

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

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

8 for the alert over the radio.

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

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

11 with a phone call to the radio room.

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

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

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

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

The Board of Inquiry later criticized Lt. Lindsey’s request for additional officers, concluding the15

addition of more officers at the crime scene created additional command problems.


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1 G. Assembling the Tactical Operations Team, and the plan to conduct a canine

2 tracking search to find the suspect.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

22 connection with the tracking canine.


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

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

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

4 element in the perimeter search.

5

6 H. Capt. Tracey’s request that Capt. Orozco assume tactical command duties; Capt.

7 Orozco’s arrival at the crime scene.

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

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

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

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

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

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

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

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

16 credentialing process to serve as a Tactical Commander.

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

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

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

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

21 and Ofr. Hege had been taken.

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The BoI would conclude Capt. Orozco had been at the crime scene for only about 10 minutes before16

the entry into the 74th Avenue apartment, around 3:02 PM. Based on Capt. Orozco’s testimony, it

appears he was present at the scene for closer to 25 minutes before the entry was made. I credit Capt.

Orozco’s estimate of his arrival time.


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

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

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

4 MacArthur, where they remained together.

5

6 I. The arrival of Deputy Chief Kozicki; abandonment of the “canine track” plan;

7 discussion and approval of the decision to enter the 74th Avenue apartment;

8 briefing of the entry team.

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

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

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

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

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

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

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

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

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

18 altered somewhat the command dynamic.

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17 well.” Tr. VII:263.

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

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

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

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

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


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

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

3 at 2:52 PM to discuss this.

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

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

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

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

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

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

10 centered around using the tracking dogs:

11 and the deputy chief [Kozicki] was very concerned about the canine track

12 because we’ve never done a canine track with the tactical team. So he was

13 concerned that we would be using a tactic that we have never used before

14 on the tactical team. This was probably not the right setting to do

15 something without doing the proper training. So he ruled that out. Then

16 we talked about the regular canines, to do searches, but that would be after 17 searching 2755 74th Avenue.

There is reason to question whether Capt. Orozco’s recollection about the number of briefings, and17

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 be

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