Over the years, the Oakland Police Department has come under intense criticism for failing to discipline officers who engage in misconduct or make grave errors that unnecessarily put people in harm’s way. In the fall of 2010, however, then-Police Chief Anthony Batts decided that conduct by two department commanders was bad enough to merit a strong reprimand, and recommended to then-City Administrator Dan Lindheim that the officers be demoted. Batts based his recommendation on two exhaustive investigations of a deadly incident, in which two Oakland cops were killed, along with a homicide suspect. Lindheim agreed with Batts’ assessment and demoted the commanders. But last week, an arbitrator overturned the punishment, thereby raising questions as to whether OPD, a department that rarely disciplines its own, can ever properly do so.
The incident in question involved an ill-fated decision on March 21, 2009 by OPD commanders to order the department’s SWAT team to enter an East Oakland apartment building in search of suspect Lovelle Mixon. Mixon was believed to have killed Sergeant Mark Dunakin and Officer John Hege two hours earlier during a traffic stop. During the raid on the apartment, Mixon fatally shot SWAT team Sergeants Erv Romans and Dan Sakai before being killed himself.
An extensive internal affairs investigation of the incident concluded that three commanders — Deputy Chief Dave Kozicki, Captain Rick Orozco, and Lieutenant Chris Mufarreh — had engaged in “gross dereliction of duty” when they ordered the raid. The investigation concluded that Orozco and Mufarreh also may have lied when they maintained that they ordered the search because they did not think that Mixon was inside. The investigation noted that then-Lieutenant Ersie Joyner, one of the most respected officers in the department, had told the commanders that one of his longtime informants was convinced that Mixon was inside. Moreover, the investigation noted that if the commanders truly did not think Mixon was there, then the search itself would have been unconstitutional. At the time, then-Sergeant Sean Whent headed up the internal affairs department. Earlier this month, Mayor Jean Quan and City Administrator Deanna Santana appointed Whent to be interim police chief.
The internal affairs investigation of the 2009 raid was followed by an independent review by a panel of outside law enforcement experts. Then-Acting Chief Howard Jordan had requested the panel, and it came to roughly the same conclusions as the internal affairs investigation — that Kozicki, Orozco, and Mufarreh had screwed up badly that day, and that their actions may have caused the unnecessary deaths of Romans, Sakai, and Mixon. The independent panel concluded that the commanders, at minimum, should have attempted to negotiate with Mixon in order to obtain a peaceful surrender.
Based on these two investigations, Batts recommended that Orozco be demoted to sergeant and Mufarreh to officer. Kozicki escaped discipline by retiring from the force. Lindheim agreed with Batts’ decision. It was one of the few times that the city and the department had disciplined police commanders for their actions.
The Oakland police union, however, appealed the demotions to an arbitrator, Paul Greenberg, citing provisions of the union’s contract with the city. Greenberg then conducted a two-week hearing in which many of the people involved, including Batts, Jordan, Whent, Orozco, and Mufarreh, testified. Greenberg then issued a 124-page decision late last week, overruling the demotions and ordering OPD to reinstate Orozco and Mufarreh to their former ranks.
Greenberg ruled that even though Orozco and Mufarreh had made mistakes on March 21, 2009, he believed that the decision to demote them was “unfair and unbalanced,” in part because there were other commanders at the scene at the time of the raid. Greenberg noted that Jordan was there, as was Deputy Chief Eric Breshears and Lieutenant Drennon Lindsey, who was the OPD watch commander that day. Greenberg also found OPD’s regulations and training for such incidents to be grossly insufficient.
Greenberg, however, stopped short of saying that OPD should have disciplined the other commanders. Instead, he essentially portrayed the entire incident as an unfortunate series of events. And his core ruling was that Orozco and Mufarreh couldn’t have known better, because the department had trained them that the best way to deal with a potentially barricaded suspect was with a raid — training that Greenberg noted flies in the face of best practices in police agencies around the country.
In other words, the arbitrator ruled that Oakland can’t hold officers accountable for behavior that could get them fired in other police departments because OPD doesn’t train officers properly like other police department do.
That ruling, of course, presents several serious issues for the city and OPD. And it means that OPD has far more problems than its ongoing failure to live up to court-ordered reforms.
More Bridge Woes
The new Bay Bridge may turn out to be the biggest design failure in state history. A leading engineering expert, who is also an advisor to Caltrans, recently said the agency should replace as many defective bolts on the new eastern span as possible, the San Francisco Chronicle reported earlier this week. The 2,300 steel rods were designed to be too hard and brittle, thus making them susceptible to snapping in an earthquake; 32 of them have broken already. Meanwhile, many elected officials are calling for a comprehensive investigation into the Bay Bridge scandal in the wake of the bolt problems and a recent report that the span appears to be riddled with corrosion problems as well, the Sacramento Bee reported.