Detective Vindicated After Arbitrator Rejects Biased OIR Group Investigative Report

JOSHUA A. OLANDER
Senior Associate
Mastagni Holstedt, APC

On August 18, 2023, Detective Jarrett Tonn prevailed in the appeal of his termination from the Vallejo Police Department (VPD) related to his June 2, 2020, officer-involved shooting. Garnering national media coverage, this encounter with Sean Monterrosa became quickly politicized and distorted to fuel police protests and the defund movement. Overcoming an avalanche of misinformation, Detective Tonn was cleared and reinstated with full back pay in a binding arbitration decision that found that his use of deadly force was legally justified based upon the proper application of AB 392 to the uncontradicted evidence and testimony. The arbitrator found the City’s disciplinary charges misapplied the law and that the City failed to prove its factual allegations set forth in the notice of termination. Detective Tonn, who was represented by Joshua Olander of Mastagni Holstedt, APC, greatly appreciates the unconditional support of the PORAC Legal Defense Fund in vindicating his actions.

Applying the new deadly force standard enacted in AB 392, the decision affirmed that officers are still entitled to deference when confronting deadly threats and are forced to make split-second judgments in high-stress, dynamic situations. Discrediting the conclusions of the OIR Group’s investigative report as biased and legally flawed, the arbitrator determined that Monterrosa posed an imminent and deadly threat and that Detective Tonn’s use of force was objectively reasonable under the totality of the circumstances.

Following the murder of George Floyd on May 25, 2020, the United States was reeling from the tragedy. While many peacefully protested, some exploited the civil unrest for nefarious purposes. On the night in question, there was unprecedented rioting, looting, vandalism, burglary and violence throughout Solano County, including in Vallejo. The VPD headquarters had been attacked, and rioters expressed active hostility toward Vallejo police officers. Against this backdrop of violence and chaos, Detective Tonn encountered Monterrosa amid a group of looters on June 2, 2020, at approximately 12:36 a.m.

Earlier that night, the SWAT team was activated to assist with the apprehension of looters and other violent criminals within the city. Detective Tonn, along with two other SWAT detectives, deployed in an unmarked pickup truck, all wearing their SWAT uniforms and equipment. Detective Tonn and his partners responded to a report of looting at a Walgreens pharmacy. Upon arriving near the scene, a VPD captain ordered the three detectives to execute a high-risk stop of the looters.

As the detectives approached, the captain advised them over the radio that the subject was possibly armed. As they received this information, all three detectives observed an individual running in an awkward manner — holding his waistband area — which they perceived as efforts to conceal a firearm in his waistband while running. In response, the detective driving the truck activated the emergency lights, which prompted the looters to flee. Chaos and confusion ensued as cars quickly dispersed from the parking lot. The truck began to stop and the two SWAT detectives in the front seats prepared to exit the vehicle, while Detective Tonn provided cover with his duty rifle from the backseat. Despite his apparent ability to escape in a fleeing vehicle, Monterrosa suddenly turned away from the getaway car and faced the approaching SWAT truck. He then took a kneeling position while retrieving an object from his waistband with a wooden handle that appeared to be a firearm.

All three detectives believed Monterrosa was retrieving a firearm with the intent to shoot at them. Each testified that Monterrosa had the present ability, opportunity and apparent intent to inflict death or great bodily injury upon them unless immediately stopped. Detective Tonn knew he and his partners were exposed and would be in mortal danger if Monterrosa successfully drew a firearm from his waistband. Detective Tonn believed he had the apparent intent to shoot them because rather than fleeing or surrendering, he chose to engage the officers by taking a kneeling position and drawing an object from his waistband that resembled a firearm. Detective Tonn feared for himself, but more for his partners, who were exiting the vehicle and may not have seen the imminent threat to their safety. Despite the risks associated with shooting from inside a vehicle, Detective Tonn knew immediate action was necessary. He acted instinctually and rapidly fired five rounds through the windshield. One round struck Monterrosa, resulting in his death. It was subsequently discovered that Monterrosa had a claw hammer in his waistband and was not armed with a firearm. However, the handle of the hammer closely resembled the handle of a handgun.

Rather than follow standard protocol for an internal affairs investigation, then-Chief of Police Shawny Williams hired the OIR Group, an outside consulting firm, to investigate the shooting. According to department witnesses, the decision to hire OIR was a political decision. OIR’s supposed mission was to perform a thorough, objective and unbiased investigation. OIR completed its investigation in June 2021, and concluded that Detective Tonn’s use of deadly force was not objectively reasonable or within department policy. Rather than applying the factors set forth in Penal Code Section 835a, OIR’s conclusion relied almost exclusively on their subjective tactical considerations, including blaming the officers for creating the situation that placed their lives in peril, notwithstanding their orders to respond, and for allegedly failing to de-escalate despite having no feasible ability to do so.

On April 20, 2022, Detective Tonn exercised his due process right to a pre-disciplinary Skelly hearing. The City’s designated Skelly officer determined that Detective Tonn did not violate VPD’s Use-of-Force Policy or the legal mandates of Penal Code Section 835a, and noted the OIR Group’s inappropriate reliance on 20/20 hindsight to reach its conclusions. The Skelly officer recommended continued employment with corrective action for poor performance, consistent with the discipline received by the other detectives involved in the incident related to their tactical response with Detective Tonn.

At arbitration, members of the VPD command staff highlighted the deficiencies of the OIR Group’s analysis and testified that the deficiencies were pointed out to Chief Williams when the OIR report was submitted to the VPD. Witnesses testified that the OIR report’s emphasis on de-escalation was “unrealistic and far-fetched” under the circumstances that Detective Tonn faced. They also testified that all three SWAT officers perceived that Monterrosa had the present ability, opportunity and apparent intent necessary to justify using deadly force. However, despite the Skelly decision and the analysis from his own command staff, Chief Williams was determined to fire Detective Tonn and so he adopted the OIR Group’s flawed reasoning.

The arbitration hearing was held on March 20–21, 2023. The parties were afforded full opportunity for the examination and cross-examination of witnesses, the introduction of relevant exhibits, closing arguments and post-hearing briefs.

Consistent with the findings of the Skelly officer and members of the VPD command staff, the arbitrator found that OIR improperly based its decision on a hindsight analysis that is expressly prohibited by the United States Supreme Court, Penal Code Section 835a and VPD policy. The law, and VPD policy, requires that any use-of-force analysis must be based on an officer’s perceptions at the time force was used. OIR implicitly and improperly started from the premise that Monterrosa was unarmed, and then worked backward to find the use of force unreasonable. OIR’s analysis was the epitome of the forbidden 20/20 hindsight second-guessing of an officer’s split-second decisions made when lives are potentially hanging in the balance. All three SWAT officers perceived Monterrosa drawing an object consistent with a firearm from his waistband while kneeling in a shooting position. Those facts are the appropriate focus of the inquiry.

OIR also completely failed to account for the timing of events, which is critical in any use-of-force analysis. They attempted to portray a significant period of time during which the detectives should have been able to plan and execute an alternative strategy, and suggested they should have retreated while their captain was out of his vehicle and exposed to danger or not taken enforcement action at all, contrary to their orders. In reality, this incident — from the captain’s order to the shooting — unfolded in a mere 17 seconds. Re-evaluation, repositioning and de-escalation were simply not feasible at the moment the deadly threat was presented.

In their effort to undermine the reasonableness of Detective Tonn’s decision to use deadly force, OIR highlighted the fact that neither of Detective Tonn’s partners unholstered their firearms. Not only did OIR’s analysis disregard the fact that Detective Tonn was designated lethal cover, but they also ignored the facts that the driver was not in a position to unholster his firearm while operating the vehicle and the front passenger was designated less-lethal and prepared to deploy with a flash bang. OIR also heavily relied on the fact that one round struck the back of Monterrosa’s head, but completely disregarded the human factors explanation, including perception reaction time. Detective Tonn fired five rounds from his rifle in less than two seconds. The plausible, and most likely, explanation was that Detective Tonn fired when Monterrosa was facing the officers but turned away at the sound of the gunfire. OIR ignored well-established force science and human factors investigatory considerations. These troubling details of OIR’s investigation called into question their purported expertise and impartiality.

At arbitration, the City did not present any witnesses or evidence to refute the criticism leveled at the OIR report. The City’s only witness at arbitration was Chief Williams, who was unable to articulate any independent opinions regarding the use-of-force analysis and relied solely upon the OIR report to support Detective Tonn’s termination. The chief was severely discredited by his own statements in a VPD email sent shortly after the incident, in which he admitted that Detective Tonn perceived a deadly threat and that the chief profoundly appreciated his “hard work, dedication, and courage.”

The neutral arbitrator conducted his own complete and independent analysis of the facts, wherein he methodically described all the events leading up to the shooting. In his analysis, the arbitrator determined the testimony of the two SWAT officers in the truck with Detective Tonn to be consistent and credible in corroborating his perceptions of the imminent threat. Both testified that they also believed Monterrosa was armed, that he needed to be immediately stopped before he shot at them and that they would have taken the same action in Detective Tonn’s position as lethal cover.

The ruling also highlighted the many deficiencies in OIR’s report. The arbitrator opined that had VPD followed its own standard policies and procedures throughout the IA process, the investigation likely would have cleared Detective Tonn of wrongdoing and no termination would have been imposed.

Most importantly, the arbitrator found Monterrosa’s actions immediately preceding the shooting were inconsistent with surrender or retreat, and concluded that de-escalation was not feasible “because an officer who reasonably believes he is about to be shot and killed is entitled to use deadly force at that moment.” Ultimately, the arbitrator ruled that Detective Tonn “reasonably perceived that Monterrosa had the present ability, opportunity, and intent to cause death or serious bodily injury to them,” and “Monterrosa presented a life-threatening danger justifying the use of deadly force.”

Regarding OIR’s flawed analysis and the applicable legal standard, the arbitrator held: “Department Policy and PC 835a forbid second-guessing of an officer’s use of deadly force based upon hindsight. This means that facts unknown to the officers are not relevant in analyzing whether an officer reasonably believes there is a threat of imminent harm. Here, OIR relied upon several facts unknown to the officers at the time of the shooting: 1) that Monterrosa was in possession of a hammer and not a gun; and 2) that Monterrosa was shot in the back of the head.”

Detective Tonn and the Vallejo Police Officers’ Association are thankful for the due process rights afforded to public employees in California, which ensure that determinations are rendered based on the law and evidence rather than political expediency or agendas. Detective Tonn is dedicated to continuing to proudly serve and protect the citizens of Vallejo.

About the Author

Joshua A. Olander is a senior associate with Mastagni Holstedt, APC, and an LDF panel attorney who represents peace officers in disciplinary investigations, critical incidents and criminal defense matters, and supervises the firm’s statewide criminal defense practice.