MICHAEL L. RAINS
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 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.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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Dear PORAC Legal Defense Fund, This email has been weighing on my heart and should have been sent a long time ago. However, time seems to move fast even though your life has been put on hold. I have been on administrative leave since December of 2012. In April of 2013, I was arrested for the performance of my duties. Since the administrative side this case has not been resolved, I won't be getting into specific details regarding my case. However, I will say that I never thought that my life would turned upside down by doing the job that I love, and doing it in a way that I had been trained. I have been in Law Enforcement for 10 years, and I have been paying my monthly dues all along. I never really understood how important paying dues might be for me, I just thought it was the "cost of business". After being arrested, I understood the real worth of that investment. Because of politics, my case was given the "full court press". On January 3rd of 2014, the case against me was dismissed. It took no less than 5 experts to convince the Humboldt County District Attorney's Office to request dismissal. The time, effort, and money that this case cost couldn't have been endured by me as the sole provider of a family of four. LDF was there, big time. The panel attorney's under LDF were the best in the business. In the uncertain time during the criminal process, I couldn't have imagined how much help they could be. What a relief to know that LDF had my back. I am used to defending those who can't defend themselves. That's my job. When I was defenseless, LDF and the attorneys assigned to my case were my advocates and defenders. I thank you. My criminal attorney said it best at the conclusion of my criminal case: "Adam and his family are thankful that they can now move forward. The evidence showing Sgt. Laird was innocent was overwhelming. The expert EPD hired said that the suspect was rising up when Sgt. Laird pushed him back to the ground. The two experts that the DA’s office hired said that the force was reasonable and appropriate. The defensive tactics instructor who trained Adam said he acted consistent with his training in apprehending a high risk suspect in a dangerous situation. In total, five separate police practices experts reviewed the case and unanimously said Sgt. Laird acted appropriately". "It is hard to imagine what it must be like to risk your life apprehending a known gang member only to be charged with using excessive force when the suspect stated that he did not even feel the contact at issue. It is simply bizarre that Sgt. Laird was ever charged with a crime". Thank you. My family and I will forever be grateful for your service, Sergeant Adam Laird
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To whom it may concern: Let me start by saying how much I appreciate the opportunity to join the PORAC Legal Defense Fund. This is a great benefit for our membership. During the past twelve months I was fortunate to have access to the Legal Defense Fund through MPCA. Earlier this year I was both surprise, and disappointed, when realized that I needed to provide counsel to mediate pending litigation. In accessing the Legal Defense Fund I found your staff to be very professional and reassuring. The staff felt that [my representative]., would be the best ft for the situation. I would like to take the opportunity to express my appreciation for being represented by [Rick Barry]. Not only was he a good fit for the circumstances, at times it seemed as if he was the only attorney out of several involved that really had a grasp on the issues. Again, I would like to thank the PORAC staff, and know that I could not have been better served than by what was provided by [my representative].
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- RIchard Okeson Hesperia USD POA
I can't express how satisfying and comforting it was to have such a well qualified and pleasant attorney at my side. Thank you so much for everything you did for me, and if you can, please thank [ my representative] again for being there for me.
- Evelyn Hooks Shasta CO PPOA
Thank God for the L.D.F.
- Kim Jasper Alhambra POA
Excellent service, prompt and courteous.
- Larry Fitch Shasta Co DSA
My LDF rep was great, always returned my calls quickly and kept me up to date with what was going on with the case. Thank you.
- Christopher Boyd Carlsbad POA
[My representative] was an outstanding attorney to work with. Even though I did not receive a desirable outcome entirely, I was exceptionally satisfied with his representation. Thank you.
- Paul Barrolaza Twin Cities POA
- William Jackson Santa Maria POA
Keep up the great work.
- Phillip Flores Oxnard POA
My attorney was excellent. I would use her again.
- Scott King Ripon POA
[My representative] is the best LDF rep I have ever had. If I were to need an LDF rep again I would want it to be [my representative].
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- Anthony Russo Clark Co School District
The members of my Association are very pleased with the level of representation that PORAC has given to us. As the President I can not thank you all enough.
- Allison Clark Twin Cities POA
[My representative] is the best attorney LDF has. Her attention to details, professionalism, and intelligence were off the charts. If I did not have her as a rep I would probably be out of a job. She is fair and she was honestly concerned about me, my family and my case.
- Rachel Tyner Transit EOA of San Diego
All the LDF representatives were very courteous and attentive with a punctual response to all of my concerns, inquiries and appointment scheduling. My representative was very informative about the legalities and kept in contact with me regularly. He was also very patient and straight forward. I would definitely want to use the LDF again and felt more confident through my proceedings because I had representation!
- Keith Stiver Hayward POA
[My representative] brings a superlative reputation, a comforting and confidence building demeanor and a clear expertise to the table. In particular I appreciate her philosophy that she gives her total undivided attention to her clients during their appointments.
- Jurell Snyder Oakland POA
My LDF representative had a power point presentation, which was extremely professional.
- Kim Prout Upland Firefighters Assoc
It was great comfort to know somebody would be there for me in this matter. I was able to finally sleep @ night & wake up with confidence that I would be ok. Thanks.
- Christopher Walters Antioch POA
My LDF rep was very attentive, and courteous. She made every effort to keep me informed, and kept my best interests at the front of the process. I was very satisfied with my LDF rep, and the entire process.
- Eric Olson Escondido POA
You guys did an amazing job! Thank you L.D.F. !
- Tamboura Nettingham Claremont Custody Center EA
My representative was an outstanding rep. I was very fortunate to be represented by her and the firm should be very proud to have her in it. She's courteous, smart and aggressive when needed. I would not ask for anyone else, if any other situation evolved, she's the best. Thanks.
- Kelly K. Roe San Joaquin Co Corr Officers
[My representative] did a fantastic job at returning my phone calls and keeping me informed of any and all information pertaining to my case. I would recommend him to anyone.
- Brendan Tinney UC Berkeley POA
[My representative] has represented me twice now and both times I have been very pleased with his thoroughness with handling my cases. I appreciate all what LDF and [my representative] have done for me.
- Michael Sexton Manteca POA
[My representative] was awesome.
- Brent Teasley ERS/Reno PSAEA
[ My representative ] was bogged down with multiple cases when he represented me, but I feel he did an excellent job. I would not have wanted anyone else to represent me during a very troublesome time.
- Brian Markert Lakewood Police Indp Guild
I feel that I was very well represented by the LDF regarding a fatal officer involved shooting. Both attorneys assigned to assist me - our guild attorney plus a criminal defense attorney - were very aggressive and helpful. Their work was instrumental in helping me to navigate the criminal and internal investigations so that I could return to full duty status.
- Tyler Robins Pasadena City College POA
At a time when no one cares about you it's nice to have someone on your side who does. (My attorney ) made a stressful six months a lot more tolerable.
- Wendy Morrow Chico Public Safety Association
I had never been through an I.A. in my 21 years. I was scared and ashamed and humiliated. ( My attorney ) was excellent. He helped me through one of the worst times of my life. Had great outcome and I am grateful.
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- Marshall Henderson Vancouver Police Officers Guild
I have used LDF in 3 OIS's. Each time I have been very well taken care of. I highly recommend [ representative ] and the PORAC system. Well done and thank you.
- Steven Moorehouse Redding POA
You guys are Great! Very professional and well informed. THANK YOU!
- Robert Mickschl SAN DIEGO HARBOR P O A
From my initial call to LDF, to my "Thank You" email to (my attorney ) I had the best representation I could have hoped for. The "800" number call receptionists were very professional & understanding. (My Attorney's) office & staff kept me informed & updated. I am forever thankful to LDF & exceptional representation by ( my attorney ) & staff.
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- Craig Caches Fremont POA
I have only used LDF once for myself, which with the circumstance was great. I work with LDF in my assignment ( OIS investigator ) and after approximately 4-5 OIS's, I have great experiences with LDF.
- Stephanie Haas Lyon Co SEA
When I first contacted LDF re: my case I was unsure of how well/poor I'd actually be represented. I was impressed beyond belief. From the timely responses from my attorney, his knowledge in my case, advising me what my rights were and where I stood. I felt like I was genuinely being protected from unwarranted and unfounded accusations and believe, as long as I am in the right, I have someone fighting for me. Thank you, Thank you.
- Clyde Williams San Diego Harbor POA
Thank you for all of the work related to my officer involved shooting case.
- Dan McDow San Luis Obispo POA
[My representative] is the poster face representative of the greatest attorney (representative) that anyone could possibly ask for. She gets a 12 out of 10 star rating. Nobody works harder.
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- Robert Hartman Contra Costa Co DSA
Quick response, experienced and knowledgeable attorney which assisted in every step. [My representative] kept me apprised through the process. Thank you.
- Patricia Goss San Anselmo POA
[My Representative] is fabulous! Thanks for all the exra work she did for me!
- Jonathan Smith San Diego D.A. Investigators
I couldn't be happier or more satisfied with my LDF Representative, the process and the outcome of my case.
- Gary Silva East Bay Region Parks POA
Thank you for providing this service. My experience with LDF was very much to my satisfaction.
- Robert Morales Rialto PBA
I was very pleased with the service I received
- Joseph A. Henderson Merced POA
The firm I used was very valuable to my career and kept me updated as to status of the case. Thank you!
- Alfredo Hernandez El Centro POA
[My representative] was very attentive, [informative] and knowledgeable. He spoke very clearly and explained things in ways easy to understand. [He] made me feel like he truly cared about what was going on with this case and me. Not to mention [he] was funny and witty, traits which made him trustworthy and someone who would stand by me and other police officers.
- Brendan Dolan Milwaukee PA
Everything went very smooth and they handled everything! Thank you.
- Paul Figueroa Oakland POA
LDF was there when I needed them!! In this litigious world, it's nice to know LDF has GREAT lawyers on our side who look out for us!! [My Representative] is a great attorney and a person I would trust in any circumstance!!!
- Christopher M. Fuzie Modesto POA
I was very impressed with the speed at which the case was handled. Thank you!
- Michelle Foerder Pinole PEA
I thank God for the support of LDF and my attorney. I had a letter of intent to be fired and he helped me turn it all around. I still have my job and I'm so grateful.
- Douglas Mansker Bakersfield POA
(My attorney) is a very good attorney, despite his young age. He kept me well informed throughout my legal matter and returned phone calls in a prompt manner. I was very satisfied with his performance and would not hesitate to be represented by him again.
- Byron Kies Santa Barbara Co DSA
Everything was great!
- Gregory Carbett Ontario POA
The attorney assigned to my case was GREAT! It's sad, but it's impossible to be an officer in today's world without a defense fund like PORAC LDF. I am now retired and signed up for the retired officers CCW LDF. Thanks!
- Carlos Gonzalez Oakland POA
Very well informed group.
- Juan Pascua, Jr. San Diego Co DSA
Very helpful and very informative!
- Cherie Rye Lyon Co SEA
I am very happy with the service I received from LDF. I am grateful that our association includes LDF as part of our dues.
- Jon Seabron Oceanside POA
[My Representative] was the best and if I ever need to call al lawyer again for anything, I'll be calling her.
- Alex Camarillo LASchool P A
[My Representative] did an excellent job with my case. He was very professional and kept me well informed throughout this case. Thank you for an awesome job.
- Steven Moorehouse Redding POA
Thank you for your help.
- Rodd N. Joseph Clearlake MMA
I appreciate the fact that my representative met with me in a social setting prior to the interview, during which time she learned the facts of the case. She was prepared for the interview. She seemed to have a genuine interest in my case.
- Gina Romines San Joaquin Co Corr POA
I couldn't have been more satisfied with the representative!
- Marco Flores Ventura County PPOA
Great program. I was lost until the attorneys explained the situation. I was very impressed and satisfied. Thanks LDF.
- Stephen Woodward Palm Springs POA
Great job by my LDF lawyer. I have had to use them several times over my 20 year career and their service is invaluable.