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BART Officer’s Termination Overturned by Arbitrator

Posted on Tuesday, March 01, 2011 at 12:00PM
Posted by Alison Berry Wilkinson

The Fruitvale Platform from a Different Perspective

We all know the tragic story of Oscar Grant and Johannes Mehserle — one man’s life taken by accident on January 1, 2009, at the Fruitvale BART Station; a second man’s life and law enforcement career devastated by the harsh reality of weapons confusion leading to the mistaken drawing of a gun instead of a Taser.

This is the story of BART Police Officer MarySol Domenici, who was wrongfully terminated in the politically and racially charged aftermath of the New Year’s Day incident just because she was doing what she was hired to do — trying to keep the peace.

Arbitrator William E. Riker today overturned the termination of Officer MarySol Domenici, and ordered her reinstated with full back pay. The Arbitrator specifically found that “there was no basis for the conclusion that Officer Domenici was untruthful.” Officer Domenici was defended by Alison Berry Wilkinson, who was assisted by a team that included Labor Relations Representative Mark O’Connell, Investigator Jesus “Jesse” Zuniga, Jr., and Associate Attorney Jeff Martin. Officer Domenici is grateful to the PORAC Legal Defense Fund for providing the resources necessary to aggressively challenge the termination.

The New Year’s 2009 Incident: Domenici’s Perspective

For Officer MarySol Domenici, this infamous day started more than 16 hours before the shooting when she began an overtime assignment riding the BART trains to serve as a visible law enforcement presence as people readied themselves for the New Year’s festivities. That overtime shift began at 10 a.m., with her regular shift starting at 3:15 p.m. Around 6 p.m. on New Year’s Eve, Officer Domenici was assigned by her sergeant to work with Officer Anthony Pirone, patrolling the beat that included both the Oakland Coliseum and Fruitvale Stations.

At 2:02:44 a.m. on January 1, 2009, dispatch assigned Officer Pirone to investigate a fight reported on board the train that was holding at the Fruitvale station. When this dispatch was broadcast, Domenici had been standing in the downstairs area of the Fruitvale Station chatting with a Station Agent about the agent’s recent vibrant choice of hair color.

When Pirone headed up to the platform to investigate the fight call, Domenici immediately followed but was waylaid by two patrons engaged in a verbal dispute. A minute later, Pirone radioed Domenici and requested that she “98” on the platform. Domenici then told the two arguing patrons that she had to go, ran up the escalator, and arrived on the platform in less than 15 seconds.

At the top of the escalator, Domenici was immediately struck by the fact that the eight-car train was jam-packed with festive and intoxicated patrons who were on their way home from celebrating the New Year, and that the platform was overwhelmingly noisy because the voices of the revelers were projecting out the open train car doors.

Domenici then saw that her partner was approximately 285 feet down the platform to her right, standing in front of three individuals who he appeared to have detained. As she ran in Pirone’s direction, Domenici heard some patrons on the train singing the new “lady cop” song, and she noticed that there were other patrons on the platform near the front of the train past the area where her partner was detaining the subjects.

When Domenici reached Officer Pirone, he directed her to stay with the detainees so that he could return to the train to retrieve the additional subjects that he believed to have been involved in the fight. Officer Domenici then directed the three individuals who were standing at the wall to sit on the ground with their legs outstretched, and to keep their hands out of their pockets.

The two additional individuals that Pirone removed from the train were Oscar Grant and Michael Greer. Both men fit the description of the suspects in the fight (black males wearing all black) and had been spotted by Pirone hopping back onto the train car in an apparent effort to avoid police contact.

When Michael Greer resisted being removed from the train by Officer Pirone, several of the detainees popped up quickly onto their feet, began yelling aggressively that this was
“all f—ed up,” and started stepping away from the wall toward Domenici. Domenici told them to “stay out of it, just stay out of it,” pushed them back toward the wall and directed them to sit down. As Domenici tried to control these three highly-agitated men who were yelling in her face, she simultaneously sought to monitor what her partner was doing by taking quick glances over her shoulder toward Officer Pirone. As a result, Domenici only saw bits and pieces of the extraction and takedown of Michael Greer.

After Pirone finished handcuffing Greer, he walked over to the wall to assist Domenici in controlling the other detained subjects. Officer Domenici only caught the approaching Officer Pirone in her peripheral vision while she was directing Jackie Bryson, Jr. to sit down and was pushing him back toward the wall. Simultaneously, Nigel Bryson (who was seated against the wall, to Jackie Bryson, Jr.’s left) captured Domenici’s attention because he was calling “hey blood” toward people who were off to the side on the platform.

Because her attention was drawn toward what Nigel Bryson was doing, Domenici only saw Pirone reaching with an open hand toward Oscar Grant. She also saw that Nigel Bryson had been calling to three men that were quickly approaching the detention area from her right flank. These men had angry looks on their faces, were yelling, and were calling her a “f—ing bitch.” Domenici then fully turned in their direction, pulled her taser, and told them to step back. Domenici focused on one of the subjects who would step back for a short while, and then step toward her again in a threatening manner while shouting curses. As she started to raise the Taser to deploy it at the individual, Officer Knudtson arrived and tackled the subject. Within seconds after the tackle, the shot was fired by Officer Mehserle.

The Aftermath

In the media frenzy that followed the shooting of Oscar Grant by Officer Johannes Mehserle, there were suggestions that the other officers on the platform covered up what really happened. As a result, the PORAC Legal Defense Fund assigned Alison Berry Wilkinson to represent five of the six other officers who were on the platform at the time of the shooting — Officers Domenici, Flores, Guerra, Knudtson and Woffinden. Officer Anthony Pirone was assigned to PORAC Legal Defense Fund attorney William R. Rapoport.The arbitration of his termination
is still pending.

As the cover-up allegations intensified, BART hired the law firm of Meyers Nave to perform the administrative investigation. Although that report exonerated four of the officers on the platform (Flores, Guerra, Knudtson and Woffinden), it indicted Officer Pirone for his actions, and concluded that Domenici lied to cover up what he did. The arbitrator rejected those findings.

The Arbitrator’s Decision

In concluding that there was no basis for the finding that Domenici was untruthful and that the evidence did not support the charge, the Arbitrator found that the reliance by BART on the Meyers Nave Report was “misplaced.” The arbitrator specifically stated:

“The Report did not contain a full vetting of the evidence as it related to the allegations against Officer Domenici, the investigators did not ask witnesses certain key and critical questions about the actions of Officer Domenici and the analysis of the multitude of videos related to the allegations about Officer Domenici’s conduct appears flawed. The Arbitrator finds, as a result, that the Report prepared by the outside consultants [Meyers Nave] was not a full and complete investigation of Officer Domenici’s actions, and that critical information necessary to the evaluation of whether Officer Domenici acted appropriately during the events of January 1, 2009, was not made available to the District by the investigators.”

The Arbitrator’s Rejection of the Untruthfulness Charges

Many of the charges of untruthfulness resulted from improper evidence analysis in the Meyers Nave Report. For example, Domenici was charged with lying when she stated there were people on the platform when she initially arrived and was running toward the detention area. The Meyers Nave conclusion was based exclusively on the images of her arrival captured by the platform camera. The investigators, however, never evaluated whether the platform camera’s limited range provided a distorted context.

One of the photographs made it appear that the area was completely deserted when Domenici arrived. At no point did the investigators consider what Officer Domenici actually saw in her direct and peripheral vision as she was running, which included the over 150 feet of platform that was in her view but out of the platform camera recording range. Another photograph depicted the area that was in Domenici’s direct line of sight as she was running toward Officer Pirone’s location, which at that time had two train cars filled with people. Various percipient witnesses, who were in that specific area at that specific time, testified that they also observed people on the platform. The failure of the Meyers Nave investigators to consider that important information in evaluating the charge against Domenici proved fatal to the conclusions reached.

The termination was also based on the Meyers Nave conclusion that Domenici was untruthful about whether she had seen the force that Pirone had allegedly used against both Grant and Greer.1 That conclusion was based upon an assessment that her claim that she looked away was “against her training.” But, that finding ignored both the actual training Domenici had received as well as the realities of the dynamic unfolding. In response, the defense called use-of-force expert Dave Rose to not only describe the training he directly provided to her, but also to specifically evaluate her tactical decision-making in light of that training.

The untruthfulness finding was further based on the Meyers Nave conclusion that Domenici “was in a position to hear and see things during this incident that she claims she did not hear or see.” However, that conclusion ignored both fundamental principles of human performance in rapidly-evolving dynamic encounters, as well as the realities of the event as depicted in the numerous videos taken by civilian bystanders. Extensive forensic image analysis of the multiple video recordings in this case was completed by expert Michael Schott. Through painstaking and detailed work, Schott was able to synchronize the various images, which provided an important new perspective on the events. These synchronized videos made it possible to see events from a variety of angles simultaneously, and allowed the Arbitrator to view the rapidly evolving and chaotic events more fully. Despite the fact that the Meyers Nave investigators had also hired a video forensic analyst, they never spent the time and effort required to synchronize the videos. As a result, the Arbitrator found that the Meyers Nave analysis of the video recordings “appears flawed.”

The synchronized video completed by Michael Schott revealed that at the same time that Officer Pirone went hands-on with Oscar Grant, there were three subjects aggressively approaching Officer Domenici from her right flank. The testimony of trainer Dave Rose showed that the legitimate focus of Domenici’s attention as cover officer was to prevent those people from encroaching on the detention and disrupting the scene. Then, with the assistance of the Force Science Institute and Dr. William Lewinski, the defense was also able to demonstrate that Domenici could not have humanly performed as the Meyers Nave investigators alleged. Since the video revealed that Officer Pirone’s hand was only in Officer Domenici’s peripheral vision for 1/3 of a second before her head rotated fully in the opposite direction, Dr. Lewinski explained that she could not have humanly focused on or perceived that action in detail. Dr. Lewinski’s studies on human performance factors during critical incidents were vital to the evidence analysis.

Another flaw of the investigation analysis was highlighted in the response presented to the allegation that Officer Domenici had seen, but failed to report, Officer Pirone striking Oscar Grant with his knee. The synchronized images completed by Michael Schott conclusively proved that Officer Domenici had her back turned to that alleged contact when it occurred. The Arbitrator appeared to agree that Domenici could not be expected to report that which she did  not see.

Perhaps the most absurd of the charges was the allegation that Officer Domenici lied about whether Pirone used profanity when he was attempting to locate Michael Greer and remove him from the train. Multiple witnesses reported that he did, and Domenici was alleged to have denied that ever occurred. However, that sustained finding was simply the product of sloppy investigative analysis. Officer Domenici clearly stated not only during the investigative interviews but also at the preliminary hearing that she heard Officer Pirone use curse words, including the “F-word,” while removing Michael Greer from the train. These are only examples of some of the charges that were debunked during the arbitration hearing.

Each and every allegation of untruthfulness — and there were many — were unfounded by the Arbitrator.

The effort to exonerate MarySol Domenici was a long, complicated and intensive battle.

Countless hours were spent by a number of people to achieve this result. MarySol Domenici is grateful for the support of the Legal Defense Fund, and is very much looking forward to returning to her chosen profession.

Alison Berry Wilkinson, along with a team of consisting of labor relations representative and retired Alameda Police Sergeant Mark O’Connell, associate attorney, use of force expert, and retired San Jose Police Sergeant Jeffrey Martin, as well as  investigator Jesus “Jesse” Zuniga, Jr., a retired Tracy Police Officer,  all worked tirelessly on behalf of the Berry | Wilkinson | Law Group to achieve
this result.

The Berry | Wilkinson | Law Group focuses on public sector labor and employment law with a special emphasis on peace officers and firefighters.  Formerly a founding partner at Rains, Lucia & Wilkinson, Alison remains dedicated to providing effective, quality representation to public safety officers in civil, criminal, disciplinary, and collective
bargaining matters.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.