Demotions of Oakland P.D.’S Rick Orozco and Chris Mufarreh Overturned: Part 1

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 story.

I have been representing cops for 30 years and have probably never been as conflicted as I am now about reporting on an unqualified victory resulting in payment of hundreds of thousands of dollars for clients I have represented. I say that because I am ecstatic that the two-step demotion of Oakland Police Captain Rick Orozco and Lieutenant Chris Mufarreh has been recently overturned by Arbitrator Paul Greenberg, but I know, at the same time, that the events of March 21, 2009, in East Oakland have taken a permanent toll on them, hundreds of officers from the Oakland Police Department and officers from surrounding agencies who lived through the infamy of the events that day.

This case has been particularly hard for me, because all four of the outstanding police officers who died — Sergeant Mark Dunakin, Officer John Hege, Sergeant Erv Romans, and Sergeant Dan Sakai — were friends of mine. I had talked to Erv earlier the same week about unfair and undeserved discipline being handed out by the OPD administration to committed and dedicated Oakland police officers. When Rick and Chris received notice of their two-step demotions, I did everything within my power to avoid having to go to arbitration — I never wanted them or any other Oakland police officer, for that matter, to have to relive what occurred on that terrible date. I didn’t want to relive it either, because six lawyers from my office and I had gone to the OPD in the aftermath of the carnage, and we all remembered how hard it was to keep our wits as lawyers when all we wanted to do was cry with our clients about the loss of four great cops.

Summary of the Events of March 21

On March 21, 2009, at approximately 1:08 p.m., Mark Dunakin and John Hege stopped a vehicle on MacArthur Boulevard in East Oakland a short distance from the substation. The individual they stopped, Lovelle Mixon, gave them a fake name and as they reapproached his vehicle to contact him to make further inquiry, he leaned out the window of the car and shot both at point-blank range with a handgun. He got out of the car and ran a short distance onto 74th Avenue as bystanders called the police and reported the shooting. Police units began converging on the area.

Less than two hours later, at 3:04 p.m., seven OPD Tactical Team members made a dynamic entry into a first-floor apartment located at 2744 74th Ave. after having been informed that Mixon had “ties” to the apartment and was believed to have stayed there a few days before the shooting occurred. As the Tactical Team made an entry, Sergeant Romans was shot by Mixon (who was now firing an SKS assault rifle) almost immediately. Mixon was observed by other team members to be fleeing toward the back of the apartment, and the Tactical Team moved in that direction. As the team entered a back bedroom, Sergeant Sakai was shot and the remaining OPD officers, joined by an Alameda County Sheriff’s deputy, engaged Mixon in a gun battle that resulted in Mixon’s death.

Why did the OPD Tactical Team go into the apartment and who authorized it? Who was in charge of the Tactical Team? This latter issue was compounded both by OPD policy, which made the “ranking command officer” the incident commander and by the failure of the acting police chief or several other command officers to step into that role despite their presence at the scene. That’s what this case was all about.

As a former cop, I understand that when police officers die, there is an almost universal desire to fix blame on somebody. In this case, OPD management put the blame squarely on Rick Orozco and Chris Mufarreh and thereafter misled an “Independent Board of Inquiry” that it had selected and convened. The City had hoped that it could also mislead the arbitrator selected to hear the appeal of Rick and Chris. It didn’t work. This case is just another in a whole series of cases at the Oakland Police Department in the post-“Riders” era where the Department’s deceitful attempt to fix blame on somebody has been overturned on appeal.

I am writing this article because I know that neither Rick Orozco nor Chris Mufarreh deserved to be demoted. But I remain mindful of the impact of this event and decision on the outstanding members of the OPD Tactical Team who entered the apartment that day, some of whom were forced to testify at the arbitration (over my objection) about what occurred. I have the most profound respect for that elite group of cops.

Overview of the Arbitration

The arbitration of this case consumed seven days in June 2011. The City of Oakland hired two outside, experienced lawyers to deal with the multitude of issues and witnesses. I was assisted by RLS Investigator Tom Leary, whose knowledge of police procedures, investigative abilities, and organizational skills were largely responsible for the presentation made on behalf of Rick and Chris. Twenty-three witnesses testified during these seven days, and I had scheduled to call four more witnesses on the eighth day when Mr. Greenberg said that he had “heard enough.” My “brief” on behalf of Rick and Chris was 140 pages long. The City’s brief was less than half of that, and the arbitrator’s decision, when it was finally rendered a year and a half after submission of the case, was 124 pages.

This article cannot and will not even attempt to scratch the surface of all of the issues that were litigated in this case — those issues received almost cursory treatment in my 140-page brief. But for those who read this article, I can only hope that you appreciate the fact that the PORAC Legal Defense Fund maintains a panel of outstanding attorneys committed to representing officers in disciplinary cases, and provides those lawyers with resources to do what they need to do for their clients. Rick and Chris deserved to get their bars back — but that would not have been possible if we had not been provided the resources we needed by the Legal Defense Fund.

Background of Rick Orozco and Chris Mufarreh

At the time of this incident, Rick Orozco had been employed by the OPD for 21 years and had been Police Captain for one and a half years. He had never previously been disciplined during his career and had received performance appraisals as Police Captain that rated him as “exceeding expectations” in every category. Even the evaluation he received on December 4, 2009, following this incident, rated him as “exceeds expectations” in every category. During his career, Rick had worked a number of different street and administrative assignments and almost paid the ultimate price for his service as an Oakland police officer, having been shot earlier in his career while working in a narcotics assignment.

Prior to this incident, Chris Mufarreh had been a member of the OPD for almost 19 years. He had served in the rank of Lieutenant for approximately three and a half years and had also never been disciplined during his entire career. Like Rick, Chris had received performance evaluations that rated him as performing consistently at “fully effective” or “exceeds expectations” levels.
The lengthy and unblemished careers of both Rick and Chris, and the outstanding evaluations they had received in their current command assignments (Rick as a Patrol Area Commander and Chris as a Patrol Watch Commander) played a prominent role, I am certain, in the arbitrator’s decision to rescind the discipline. 

This story will continue in the next issue; please watch for Part 2 in the December Law Enforcement News.

About the Author

Mike Rains is a principal and founding member of Rains Lucia Stern. He heads the firm’s Criminal Defense and Legal Defense of Peace Officers Practice Groups. Mike is one of California’s top trial attorneys. He has over 30 years of experience representing peace officers and other high-profile clients in civil and criminal litigation. Mike’s practice focuses on criminal trial work in both state and federal courts. Mike also handles civil and labor-related actions and has served as both defense and plaintiff’s counsel in state and federal court employment cases.