Demotions of Oakland P.D.’S Rick Orozco and Chris Mufarreh Overturned: Part 2

MICHAEL L. RAINS
Principal Attorney
RAINS LUCIA STERN

On March 21, 2009, four Oakland police officers were killed. In the aftermath, a captain and lieutenant were demoted. Their demotions have now been overturned. This is the conclusion of that story. For Part 1 of this article, please see the November 2013 issue of the PORAC Law Enforcement News.

What the City and the OPD Never Wanted Anyone to Know: The Organizational Structure of the OPD on March 21, 2009, Was a Recipe for Disaster

In representing police officers in critical incidents and tactical matters for almost three decades, I cannot think of a single case where a police organization was so ill-equipped to respond to a disaster because of organizational mismanagement.
At first blush, in order to understand the organizational dysfunction that existed on that day and how it translated into the discipline of Rick and Chris, one has to understand that the demotions of both men were premised upon decisions they made as the “Incident Commander” and “Tactical Commander,” respectively, of the Tactical Team operation that resulted in the deaths of Sergeants Romans and Sakai. Yet on March 21, Rick was not a member of the Tactical Team at all, and Chris (a former operator) had only recently rejoined the team to become a Tactical Commander but had not yet even attended school, making him ineligible to participate as a Tactical Commander under OPD policy.

As we looked at this case more carefully in the aftermath of the tragedy, we saw that:

• To save money, the three Area Patrol Commanders (including Rick) had been directed to put a sergeant in charge of their patrol area on the weekends instead of a lieutenant. 
• The OPD assigned the lieutenant of Area 3, Lieutenant Lindsey, to be the Citywide Watch Commander (Police Chief) during the day shift on March 21, 2009.
• The Citywide Watch Commander assigned had not been in patrol for six years and had been performing administrative duties before being promoted to lieutenant just six weeks earlier.
• The Citywide Watch Commander had no tactical experience whatsoever. Yet OPD policies and practices required this lieutenant to be the commanding officer over the crime scene created when Lovelle Mixon shot and killed Sergeant Dunakin and Officer Hege, as well as the ensuing search and apprehension operation by the Tactical Team.
• On Friday evening, March 20, Captain Orozco, nervous about running his area with a sergeant, asked his lieutenants if one of them would be willing to work as the Area Commander on Saturday. Chris Mufarreh responded by email that he would assume Area Commander duties in Captain Orozco’s patrol area (Area 2) from noon until 10 p.m. on Saturday.
• Although the OPD had several individuals who were assigned to serve as Tactical Team leaders on March 21, one was unavailable for unknown reasons, one was at the FBI Academy and the third was also the captain in charge of the OPD Motor Unit and went to the hospital upon learning that Sergeant Dunakin and Officer Hege had been shot. He telephoned Rick Orozco, who was off duty (and had resigned as a Tactical Team Commander approximately six weeks earlier), and asked if Rick would respond to the scene and work with the Tactical Team to coordinate a search for the suspect who had shot the two motor officers. Rick readily agreed to help under the circumstances.
• In the final analysis, the only two individuals disciplined for events that occurred on this date — Rick Orozco and Chris Mufarreh — were scheduled to be off duty on the date of the incident and neither should have been, pursuant to the OPD policy, in any managerial capacity whatsoever over the Tactical Team.

The Involvement of Rick and Chris Leading up to the Entry Into the Apartment

After Lovelle Mixon shot the two motor officers, Mark Dunakin, and John Hege, the Citywide Watch Commander, Lieutenant Lindsey, responded to the scene of the shooting and essentially began directing activities at the crime scene, including investigative activities to identify the suspect who had shot the two motor officers and fled.

Chris Mufarreh had arrived to begin his Watch Commander duties in Area 2 at the main police building when he heard an “officer needs help” broadcast in Patrol Area 3. He jumped into a police car and drove to the area of 74th and MacArthur, learning only upon his arrival that the two motor officers had been shot and were likely dead. When Chris arrived at the location half an hour after Mark and John had been shot, he saw what he testified to as “complete chaos — it was and is, indescribable.” Realizing that there had not been an effort to establish a perimeter around the area where the suspect was observed fleeing, and realizing that the Citywide Watch Commander/Lieutenant was dealing with the crime scene supervision duties, he asked a highly regarded and tactically sound sergeant who was the Area Commander for Area 1 to set up a large perimeter to hopefully confine the suspect. Shortly after that, he requested a “blue alert” — the activation of the Department’s Tactical Team, intending to use the Tactical Team to search for the suspect. As one might imagine in this kind of case, a number of Tactical Team members had already received telephone calls from other OPD officers advising them of the incident and were responding on their own before the blue alert activation occurred.

As the perimeter started taking shape and efforts continued to identify and hopefully locate the suspect, Rick Orozco was headed to Oakland from his residence at the request of the Department’s Tactical Commander. When Rick arrived in the area, he immediately located Chris, who advised him that Mixon had last been seen running on 74th Avenue and that he was known to “have ties” to an apartment located at 2755 74th Ave. No one had observed the suspect actually entering the apartment after the shooting. However, during the ensuing investigation, Lieutenant Lindsey claimed that she had learned from a credible informant that Mixon had run into the apartment and that she had informed Rick, Chris, Deputy Chief Kozicki and about 10 other officers of this information. All of the officers denied being told this by Lieutenant Lindsey. Although the IA investigator did not interview this alleged informant in an effort to verify the information provided by the Lieutenant, RLS Investigator Tom Leary located her and conducted a lengthy tape-recorded interview, during which she denied telling Lieutenant Lindsey that the suspect was in the apartment before the entry was made by the Tactical Team. 

Shortly after Rick arrived at the location, Deputy Chief Kozicki also arrived, wearing civilian clothes, not a uniform. Prior to being appointed Deputy Chief, Kozicki had served as the Tactical Team Commander at one point and was regarded as highly knowledgeable about Tactical Team operations. Almost immediately after his arrival, a series of short meetings occurred involving Lieutenant Lindsey, Lieutenant Mufarreh, Deputy Chief Kozicki and Captain Orozco concerning intelligence on the suspect and his possible location. The 12-unit, three-story apartment complex at 2755 74th Ave. had been surrounded by an army of officers shortly after Mark and John were shot, and assessments had been made about the ability to evacuate residents who might still be inside. Safe evacuation would be difficult or impossible due to the apartment layout. There were also discussions about tactical alternatives to making a dynamic entry. Based upon available information, Lieutenant Mufarreh, who had been serving as an interim Tactical Commander until the arrival of Captain Orozco, formed the belief that the suspect was not likely to be inside the apartment.

Tragically, after the events of the afternoon were long over, while listening to a series of chaotic, excited and never-ending radio transmissions throughout the afternoon, we heard a broadcast from an officer at 2:04 p.m. — about one hour before entry was made into the apartment — that there were “people looking out of” a window at the “target location.” That radio transmission was not heard by or reported to any of the command personnel. Almost equally tragic was the fact that two other deputy chiefs arrived in the area where Rick and Chris had established a command post, but neither announced their presence over the radio — which, pursuant to the policy, would have put them in charge. The acting police chief was observed slumped down in his car, making cellphone calls only a few hundred yards away, but he never got out to assume any leadership role before the Tactical Team made an entry.

The discussion/briefings involving Deputy Chief Kozicki, Captain Orozco, Lieutenant Mufarreh and Lieutenant Lindsey led to a decision that it would be best for the Tactical Team to make entry into the apartment, clear the apartment and thereafter begin a systematic search for the suspect, who they hoped was still contained inside the perimeter, which had not taken shape as quickly as everyone would have liked. Lieutenant Mufarreh discussed the entry into the apartment with members of the Entry Team, who were described by Deputy Chief Kozicki as “the best of the best” and by the Department’s assigned Tactical Commander, Captain Tracey, as “The A-Team.”

Investigative Responses to the Incident by the OPD

As is customary in Alameda County when an officer is involved in a fatal shooting, a criminal investigation was conducted of this incident by the OPD Homicide Unit and the Alameda County District Attorney’s Office. In addition, for reasons I will never understand, the Department assigned a recently promoted sergeant in the Internal Affairs Unit with no tactical experience and no investigative experience to conduct the Internal Affairs investigation. We would later learn that the Internal Affairs investigator sustained an allegation of “gross dereliction of duty” against both Rick and Chris. After this was done, the Department convened what it called an “Independent Board of Inquiry” to hear a presentation from Department investigators about what occurred on March 21 and supposedly make an “independent determination” concerning performance and misconduct issues of OPD personnel on that date.

The Independent Board of Inquiry consisted of police Tactical Team experts and police administrators from other police agencies.
When this case came to arbitration, the City called two members of the Independent Board of Inquiry to testify, a SWAT team commander from the Alameda County Sheriff’s Department and a SWAT team commander from the Los Angeles County Sheriff’s Department. It was clear from the testimony of both commanders that the OPD had selectively “fed” information to the Board to paint a picture of misconduct committed by Rick and Chris, but had not told them the truth about what really occurred that day from the organizational portrait of the OPD or the fact that some of the errors allegedly committed by Rick and Chris (establishing an “ad hoc SWAT team,” failing to set up a formal command post and entry into the apartment without a search warrant) were not issues that had arisen uniquely in this incident under the direction and control of Rick and Chris.

Indeed, just before the Department had convened the Independent Board of Inquiry, it had concluded an arbitration of the disciplinary termination of another OPD supervisor who had responded to another incident in which a motor officer had been shot and in which the OPD response by two deputy chiefs was almost identical in most respects to the way Orozco and Mufarreh handled this matter. The Board wasn’t told any of this. It was clear at the arbitration that the OPD had attempted to use its Independent Board of Inquiry to justify and bolster its findings against Orozco and Mufarreh. It might have succeeded if we had not been able to establish that the OPD presentations to the Board had misled its members about what had really occurred and had omitted important and exculpatory information relating to the conduct of both Rick and Chris.

Our Arguments and the Arbitrator’s Decision

My arbitration brief included 22 separate arguments as to why there was no “just cause” to demote Rick or Chris. The initial argument centered around the fact that the single basis for the demotion of both employees — “gross dereliction of duty” — was not defined nor even contained in the OPD Policy Manual but was simply an after-the-fact criticism of decisions that were made (and had to be made) in a situation that was tense, uncertain and rapidly evolving. As you might imagine, both the OPD Chief who testified at the arbitration, Anthony Batts, and the Internal Affairs Commander at the time stammered and stuttered through an effort to explain what “gross dereliction of duty” really means (they defined it differently), how it differs from “less-than-gross dereliction of duties” and where Rick or Chris might have found any such authority in any OPD publication prior to March 21, 2009.

Argument No. 19 in my brief was entitled “The Board of Inquiry Was Not Provided Relevant and Exculpatory Information Concerning Orozco and Mufarreh by the Oakland Police Department.” That section listed five separate instances in which the OPD actively suppressed information exculpatory to the actions and decision making of Rick and Chris from the Board of Inquiry in order to fix blame on them.

Arbitrator Paul Greenberg took way too long to finally decide this case, and the attorneys for the City and I told him that we were going to submit the extensive record of this case to another arbitrator for a decision and refused to pay him for his participation during the arbitration. Finally, the arbitrator announced that he had carefully analyzed this extremely complex case and had written opinion and award. Arbitrator Greenberg’s decision, which reinstated Rick and Chris to their former positions with full back pay and benefits, was 124 pages long. For the sake of brevity, I will share with you some of his findings:

• Captain Orozco and Lieutenant Mufarreh were “serious committed police officers.” (Decision, page 102)
• “Lt. Mufarreh stepped up to the plate.” (Decision, page 92)
• “Lt. Mufarreh and Captain Orozco were credible witnesses and never received any information from any source that the suspect was inside the apartment before entry was made.” (Decision, page 101)
• “This arbitrator has serious reservations whether the information was communicated from Lt. Lindsey to Lt. Mufarreh, Captain Orozco, or Deputy Chief Kozicki, as she claimed.” (Decision, page 101)
• “I am perplexed by the degree to which IAD exonerated Lt. Lindsey for missteps … and directed criticism at Lt. Mufarreh instead.” (Decision, page 85)
• “There is no doubt that Lt. Lindsey was responsible for commanding the scene.” (Decision, page 84)
• “The OPD did not provide Lt. Lindsey with adequate support and she was unable to deal with an event of this complexity.” (Decision, page 92)
• “The arbitrator is absolutely convinced that Lt. Mufarreh in good faith did not believe that the suspect was inside the apartment before entry was made.” (Decision, page 93)
• “In this Arbitrator’s view, Lt. Mufarreh displayed professionalism by taking on added leadership responsibilities when he concluded his colleague (Lt. Lindsey) might not have been full ‘up to the task’ of directing this kind of major criminal event.” (Decision, page 85)
• “There was no creation of an ‘Ad Hoc’ Tactical Operations Team by Orozco and Mufarreh.” (Decision, page 118)
• “As the events of March 21 developed, several high-ranking OPD officials arrived at the crime scene, including Captain Orozco, Deputy Chief Kozicki, Deputy Chief Breshears, and Acting Chief Jordan. Under the letter of General Order M-4, it would appear several of these high-ranking officers may have had a duty to announce their arrival and assume the status of Incident Commander, yet none did — apart from Captain Orozco and Deputy Chief Kozicki, who announced he was taking charge only after the shootings at the 74th Avenue apartment.” (Decision, page 86)
• “This grievance arbitration represents the first time the events of March 21, 2009, have been considered in a formal, adversarial proceeding, with the Grievants having an opportunity to cross-examine witnesses. The significance of this cross-examination element cannot be overstated … it is clear to this Arbitrator that the picture of what happened on March 21 that was developed at the arbitration hearing was richer and more complex compared with the earlier analyses, with additional significant facts.” (Decision, page 82)
• “In this Arbitrator’s view, the IAD Report is flawed in several important respects.” (Decision, page 82)
• “I find the department acted improperly in singling out Lt. Mufarreh and Captain Orozco for discipline, when others within OPD (including others senior in rank to Lt. Mufarreh and Captain Orozco) also were present and participating in decision making (or, per OPD policies, should have been participating in decision making) but were not similarly held accountable.” (Decision, page 81)
• “The City’s decision to single out Lt. Mufarreh and Captain Orozco for discipline does not adequately recognize the responsibility of others — including their organizational peers, and also some of the senior management of the department. Like the matter involving Sgt. W., the decision to discipline Lt. Mufarreh and Captain Orozco has the appearance of the department needing to hold someone individually accountable for the tragic deaths of Sgt. Romans and Sgt. Sakai but not considering the possibility that senior-level management decisions also contributed to the chain of events.” (Decision, page 121)
  It gives me great pleasure to see Rick and Chris wearing their bars again. We are satisfied that this lengthy arbitration and the long wait for a decision finally resulted in “industrial justice.” Yet, now that this legal proceeding is over and I have raided my extensive file on this case to write this article, I intend to close up the four boxes with the transcripts and the binders of exhibits and ship them off to storage. What will remain with me forever about March 21, 2009, in the city of Oakland are the photographs of Mark, John, Erv and Dan that my son put together for me with the inscription “Thank You, Heroes.” I look at it every day as a tribute to them and to all of the other law enforcement clients who I have the honor to represent.

About the Author

Mike Rains is a principal and founding member of Rains Lucia Stern. One of California’s top trial attorneys, he heads the firm’s Criminal Defense and Legal Defense of Peace Officers Practice Groups.