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THE MATTER OF
ARBITRATION BETWEEN
APPEAL
# 14 126/SR 13-005
Officer Jose Flores:
AND
Termination
ARBITRATOR
Mark R. Sherman, LLM, PhD
DATES
OF
HEARING
PLACE
OF
HEARINGS
211 E. Florence
El Paso, Texas 79901
DATE
OF
AWARD
August 8, 2016
APPEARANCES
For the Union:
Ricardo J. Navarro
Denton, Navarro et al.
Assistant City Attorney
701 E. Harrison, Ste. 100
Harlingen, Texas 78550
ISSUE
Whether the Hearing Examiner should grant Officer Flores Appeal of his Notice of
Termination, dated October 28, 2014 and if so, what is the appropriate remedy?
supervision
established
for
the
employee's
to
unlawful
of
the
evidence
is
the Association any written agreement extending the time limits set
forth under this Article. For grievances at or below the level of
the Chief of Police, the Chief may designate a person authorized to
sign on behalf of the City any written agreement extending the time
limits set forth under this Article. For grievances that are above
the level of the Chief of Police, the City may designate a person
from the City Attorney's Office to sign on behalf of the City any
written agreement extending the time limits set forth under this
Article.
Section 4. Upon notification that the Association desires to proceed
to arbitration under Section 2, Step 3 of this Article, the parties
shall within 14- calendar days either select a mutually agreeable
neutral arbitrator; or request that the American Arbitration
Association submit a list of seven arbitrators. Upon the receipt of
the list of arbitrators, each party shall alternate in striking a
name from the list until only one name remains, and each party shall
at the time agree on a date for the hearing. Upon request of either
party addressed to the opposing party, at least 10-calendar days
prior to the date of hearing, the parties shall exchange the names
of witnesses expected to be called at the hearing as well as any
statements of witnesses expected to be called not coming within the
attorney's work product privilege. Failure of a party to timely
provide the name of a witness or a copy of the witness' nonprivileged statement shall preclude the party from calling the
individual as a witness, unless the arbitrator finds exceptional
good cause for such failure.
Section 5. The hearing examiner or neutral arbitrator to whom any
grievance shall be submitted in accordance with the provisions of
this Article shall have the authority to interpret the Agreement, to
make conclusions of fact based upon the evidence submitted at the
proceeding and to apply the contractual provisions to said facts.
The jurisdiction of the hearing examiner or neutral arbitrator is
limited In that he or she has no authority to add to, subtract from,
amend or otherwise change or in any way modify the provisions of
this Agreement. The fee and expenses of a neutral arbitrator shall
be borne equally by the City and the Association.
Section 6. The decision of the hearing examiner or arbitrator, if
rendered in accordance with the provisions of Section 5 of this
Article, shall be final and binding upon the Association, all
bargaining unit employees, and the City;
Section 7. All time limits in this Agreement are based on calendar
days. If a time limit expires on a weekend or City-observed holiday,
the time limit shall be extended to the next City business day. The
day of the act, event, or default shall not be included.
FACTS
Jose Flores (the Appellant or Grievant) was working as a Police Officer for the City of El
Paso (the City or the Department) during a snowstorm in early January 2013 when he answered a
call about a homeless man at a local hardware store. Before transporting the 83-year old veteran
to a homeless shelter, Officer Flores reached into his pocket and pulled out enough money to buy
the man a brand new pair of insulated work boots to replace some soggy old tennis shoes that were
letting in the cold and damp from all directions. That would seem an unexpected turn of events to
most people as witnessed by the fact that the Huffington Post picked up the story and ran it in a
January 28, 2013 edition.
On the other hand, people who knew Officer Flores well probably did not think it unexpected
that he would either do such a thing or that he would decline comment about it for the Post. They
were probably left with the same impression as the Arbitrator: that the Grievant was a can do
officer whose approach to his job was to help people whenever he could. This attitude is no doubt
why he received both Officer of the Month and Officer of the Year commendations in his local
substation in 2012. However, Officer Flores promising career as a policeman came to a shattering
end as a result of a series of incidents that began less than two months later with a citizen who
seemed bent on self-destruction.
On the evening of March 7, 2013 there was a call for a domestic disturbance. It involved a
citizen named Saenz who was known to police. According to witnesses on the scene, he had
burned one of his mothers dogs, cut another one and threatened to kill his brother. Apparently this
was par for the course as police had been called to the address before when Mr. Saenz threatened
to burn his mothers house down with her in it. In any event, the alleged perpetrator was not on the
scene when police arrived and had not returned by the time they cleared the call. Only a few hours
8
later however, Mr. Saenz was the subject of another police call at a local commercial
establishment where he was violently menacing staff and customers.
When police arrived on the scene they managed to transport him to a nearby hospital where
he violently assaulted numerous staff and patients before punching a female El Paso Police Officer
in the face. The same female Police Officer fired five full cycles of Taser on Mr. Saenz but it did
not have any effect on him. Eventually, as many as a half dozen hospital personnel responded to a
Code Strong and finally managed to subdue Mr. Saenz so that double cuffs could be placed on
him. (Single cuffs would not fit because of his muscular torso and arms.) It was then that he was
transported to the Pebble Hills substation where Officer Flores was about to report for duty.
When Officer Flores came on duty at the substation he volunteered to take two prisoners to
County Jail. One of them was Mr. Saenz. Officer Flores could see that Mr. Saenz was not a tall
man but he had the physique of a professional body builder.
conversations that Officer Flores had with Mr. Saenz as he tried to establish rapport with him prior
to transporting him. According to the Grievant and every officer and citizen who came in contact
with Mr. Saenz that day, he was not in a sound state of mind and seemed to be on something.
While it is not clear how much warning commanders provided for Officer Flores in the
performance of the task he had volunteered for, it is undisputed that they did not assign another
officer to accompany him. Instead they paired him with a 23-year old contractor from a company
called G4S. At the time there were no policies for the use of these contractors and few people
were familiar with the level of training and qualifications that they possessed.
In any event, Mr. Saenz caused several disruptions while he was in route to the County jail.
He banged his head against the wall of the van that he was being transported in. He managed to
free himself from a seatbelt even though his hands were cuffed behind his back. All the while he
consistently behaved as though he was hallucinating. From all accounts he would go from being
very passive and docile, then become extremely violent and combative in a series of cycles that
went on all day long. He also repeatedly went limp and dropped to the ground on numerous
occasions so that the Grievant and the contractor had to carry him great distances over the course
of the day. Ultimately, he became so uncooperative that he deliberately smacked his head against
the door sill leading into the enclosed portion of the sally port. The bloody wound that resulted
was cited as grounds for his being declined transfer into the County Jail.
By this point, both Officer Flores and his contractor sidekick were physically and mentally
exhausted from their ongoing interaction with Mr. Saenz. Every witness who testified about their
condition confirmed this as an obvious fact. However, none of these same witnesses (who were
present when Officer Flores accompanied Mr. Saenz to the booking desk) testified about what
they did to assist their fellow law enforcement officer in his time of need. Shockingly, as
demonstrated by the Closed circuit video, no one lifted a finger to assist Officer Flores or his
contractor sidekick. In any event, the circumstances in play at that point in time did not suggest
there would be a positive outcome from this state of affairs if it continued and indeed nothing
positive came of it.
While exiting the sally port, Mr. Saenz pulled the last stunt he would ever pull. While closed
circuit camera technology provided everyone indisputable images of the events that transpired in
the County Jail sally port on March 8, 2013, there was a dispute over the interpretation of the
visual evidence and whether it revealed a policy violation on the part of Officer Flores. Within the
boundaries of these two disputes lies the matter to be decided by the Arbitrator.
Below, in the Parties Briefs, the two competing interpretations of Officer Flores actions are
debated thoroughly. What was not subject to interpretation however was the ultimate decision of
10
the Chief to discharge the Grievant on October 28, 2014. The grounds for the Appellants
Termination are spelled out clearly in the following Notice of Termination.
Pursuant to my authority as Chief of Police for the El Paso Police
Department (Department), this is your notice that the Department hereby
terminates your employment as a police officer as a result of your acts or
omissions that are the basis of case IA14-126, which is related to the
officer-involved shooting under SR13-005.
A. Authority to Discharge or Suspend
1. Charter of the City of El Paso, Texas, Article VI, Section 6.13-2
A permanent employee may be discharged, suspended or reduced in rank or
position as provided in this Charter or further defined in the Rules.
2. Civil Service Rules, City of El Paso, Texas, Rule 11, Sections 1, 3
Section 1. Any Department Head shall have the right to promulgate rules and
regulations regarding the operation of his department, and the conduct of
the employee therein, subject to the consent and approval of the City
Manager, provided that such rules do not conflict with the Civil Service
Charter or the Rules promulgated thereunder.
Section 3.
Any Department Head may, as provided in the Charter, suspend,
discharge or demote any employee for insubordination, for failure to comply
with departmental rules and regulations, for failure to comply with the
Rules of the Commission or for failure to obey any lawful order of a
superior officer.
3. El Paso Police Department Procedures Manual, Section 2-602.06(E)
Termination and suspensions of employees will be decided only by the Chief
of Police after receiving such recommendations from an Assistant Chief or
the Discipline Review Board or Special Discipline Review Board.
B. Applicable Policies, Procedures, Rules, Regulations and Administrative
Orders
1. Charter of the City of El Paso, Texas, Sections 6.13-3(B) and (P)
The following, which may be further defined in the Rules, may constitute
causes for discharge, suspension or reduction in grade of permanent
employees:
(B.)
(P.)
2. Civil Service Rules, City of El Paso, Texas, Rule 15, Sections (b.) and
(p.)
11
Section 0-401, including but not limited to the following subsections, which
state:
0-401
WE RESPECT LIFE. We hold the preservation of life as our sacred
duty. Our value of human life sets our priorities.
0-401.04 Officers will not use more force than is reasonably necessary and
will use force in accordance with the law and Department procedures.
Section 0-402, including but not limited to the following subsections, which
state:
0-402
WE REVERE THE TRUTH.
We accept nothing less than truth, honesty
and integrity in our profession.
0-402.04 Employees will not make false official statements.
0-402.05 Employees will truthfully and impartially report, testify, and
present evidence in all matters of an official nature.
Section 0-403, including but not limited to the following subsections, which
state:
0-403. WE ENFORCE THE LAW. We recognize that our basic responsibility is to
enforce the law. Our role is to resolve problems through the law, not to
judge or punish.
0-403.06 Employees, in the application of the law, shall exercise mature
judgment and discretion within the limits of statutory authority and
Department policy.
Section 0-405, including but not limited to the following subsections, which
state:
0-405. WE HONOR OUR POLICE POWERS. We understand that our police powers are
derived from the people we serve.
We do not tolerate the abuse of our
police authority.
0-405.01 Officers will be aware of the extent and the limitation of their
authority in the enforcement of the law.
0-405.04 Employees will not knowingly mistreat or use unnecessary force
toward any person.
Section 0-406, including but not limited to the following subsections, which
state:
12
Officer
may
discharge
firearm
under
the
following
14
Police
Department
Procedures
Manual
Addendum,
Rules
and
Rule 1
Employees, to include sworn and civilian, will familiarize themselves with
the rules and regulations, policies and procedures, administrative orders,
special orders, memorandums, Civil Service Rules and Regulations, City
policies and any other directives or policies issued by the Chief of Police
and any other pertinent material, which deals either directly or indirectly
with the performance of the employees duties.
Employees, to include sworn and civilian, will also familiarize themselves
with the Texas Penal Code, Texas Code of Criminal Procedures, the Family
Code, the Dangerous Drugs and Controlled Substance Act, Texas Motor Vehicle
Laws, City Municipal Ordinances and any other pertinent material, which
deals either directly or indirectly with the performance of the employees
duties.
Rule 4
Dereliction of Duty on the part of any officer prejudicial to the proper
performance of the functions of the Department is cause for disciplinary
action. The following constitute violations under this rule:
(a) Failure to observe and give effect to policies and directives of the
Department.
Rule 5
The following actions constitution major violations and may
supervisory officer to relieve from duty a subordinate officer:
(d)
require
(i)
For conduct subversive to the good order and discipline of the
Department.
Rule 9
No member of the Department will conduct themselves in a manner, which may
bring discredit upon the individual or the Police Department.
Rule 10
15
16
At about 1723 hours, more than 2-hours after your first contact with Saenz,
you assisted his transport to the County Jail.
Saenz, at all relevant
times, was double-cuffed behind his back. Upon arrival at the jail, you and
a G4S officer escorted Saenz down the ramp to the basement entrance of the
jail. Saenz lunged at the door and struck his head causing an obvious head
injury, with profuse bleeding as per your description. Saenz fell to his
knees as a result of his injury.
Based on the evidence, you dragged him
into the jail basement, with the help of the transport officer.
After the jail refused to accept Saenz because of his head injury, you and
the transport officer then dragged the handcuffed Saenz back into the
elevator to take him downstairs.
Once downstairs, you called your
supervisor to update on the status of Saenz and then called for E.M.S. You
then allowed the unarmed G4S transport officer to drag Saenz outside the
jail and wait for E.M.S while you stayed inside the jail to retrieve your
weapon.
You allowed the G4S transport officer to remain outside without a
weapon alone with Saenz for about 2-minutes despite your contention that you
feared for your safety and the safety of others based on Saenz behavior,
size and history of being a body builder. You claimed safety was a concern
at all times, but your actions contradict such contention.
Once you retrieved your weapon, you went outside and asked Saenz why are
you acting like this or why you acting up. Were only trying to help you
or similar words. You also informed Saenz that you were going to stand him
up to pull up his pants. You and the transport officer attempted to stand
the handcuffed Saenz up, Saenz resisted and a struggle ensued resulting in
Saenz falling to the ground.
You instructed the transport guard to protect Saenz head and you attempted
to subdue Saenz by holding him face down on the ground. A few seconds later
Saenz began to resist again, grabbed your hand and near your groin area
before you disengaged from the struggle. When you disengaged, you stepped
back and allowed the unarmed transport officer to continue his attempts to
protect Saenz head.
You are then seen reaching for your Taser, but you did not draw it. Rather,
you drew your duty weapon and re-engaged in the struggle by reaching your
left hand towards Saenz body. The evidence established that when you were
reaching in to re-engage, you shot Saenz once on the top of his left
shoulder. When Saenz was shot by you, he was double-cuffed behind his back.
After you shot Saenz, you told the transport officer that it was an
accident. However, you then told two separate supervisors that arrived on
scene that you had to shoot the guy, [Sarge], I didnt want to shoot him
but I had no other choice or similar words.
You denied making these
statements to the Shooting Review Board but admitted that the supervisors
were not lying.
You then stated in your sworn criminal statement given 10-days after the
shooting that you felt [you] had no choice but to stop this threat with
deadly force.
This statement establishes that you intentionally shot
Saenz; yet you claimed in your second sworn criminal statement given about
5-months after the shooting that your actions were accidental.
Thus, you
contradict yourself.
17
sections
(b)
and
(p),
El
0-405,
Paso
Civil
0-406,
Police
Service
3-101,
Department
El
Rules
and
Paso
Police
Procedures
Manual
E. Conclusion
You became a commissioned police officer with the City of El Paso Police
Department on or about April 3, 2007.
At that time, you were given a
procedures manual which unequivocally directed all employees to familiarize
themselves with the rules and regulations, policies and procedures,
administrative orders, special orders, memorandums, Civil Service Rules and
Regulations, any other directives or policies issued by the Chief of Police
and criminal and civil laws and any other pertinent material which deals
either directly or indirectly with the performance of your duties.
Said
direction has not changed during your employment with the Department and
remains in effect today.
Based on the evidence, the shooting of Daniel Saenz falls outside Department
policies, procedures, rules and/or regulations.
Your use of deadly force
against Saenz was not justified under Department policy. Deadly force, as a
18
While Officer Flores acknowledged the factual basis of the charges against him, he
maintained that his conduct was not really in breach of policy and that the penalty of Termination
imposed by the Chief was excessive under the circumstances. After criminal investigations were
completed and resulted in no charges being filed, Officer Flores proceeded with his appeal against
the Chiefs decision to terminate him and plea to be reinstated. With the assistance of the El Paso
Municipal Police Officers Association and the legal staff of the Combined Law Enforcement
Associations of Texas (the Union), Sergeant Flores filed a timely grievance indicating his intent to
challenge the Chiefs decision to terminate him. The undersigned Arbitrator was chosen to act as
19
Hearing Examiner in early 2016. A Hearing was conducted on April 14 & 15, 2016 in the Citys
Offices at 211Florence Street in El Paso.
At the Hearing, the Parties availed themselves of a full and fair opportunity to present all
relevant evidence and testimony in support of their respective cases. Afterwards, the Parties
agreed to file post-hearing briefs in lieu of closing arguments. The Arbitrator received the Parties
Briefs in early July 2016. The Record of the Hearing was then formally closed. He renders this
Award in what he trusts will be the final and binding resolution of this matter.
20
criminal case against Flores and the civil rights case against Flores and the
City.
The Citys charges against Flores are independent of the other collateral
proceedings, and turn entirely on findings related to administrative
violations, that is, of violations of the Citys and the Police Departments
rules, regulations, and policies.
The evidentiary record presented in this case, both documentary and
testamentary, supports the just cause findings in the Notice of Termination
signed by Police Chief Greg Allen. It does so as to Flores non-compliance with
the applicable use of force policies. It also does so with respect to the
findings that Officer Flores, in connection with his official reports about the
shooting incident, failed to truthfully and impartially report, testify, and
present evidence about the shooting incident.
The question presented in this arbitration therefore is whether the City
of El Paso had just cause to terminate Flores employment for violations of the
applicable rule and regulations stated in the Termination Notice. And if just
cause exists, then the subsidiary question presented is whether the discipline
imposed here termination - was proportionate to the offenses alleged.
A mirror formulation of this standard of review is whether the
disciplinary decision was arbitrary and capricious, either as to the facts
determined to be true, or as to the discipline imposed.
It is the Citys position that its decision in this matter does not
warrant being modified, much less reversed. This brief addresses the evidence
presented in light of these standards of review.
II. AUTHORITY AND SCOPE OF THIS ARBITRAL REVIEW
The shooting incident that occurred on the afternoon of March 8, 2013
generated three different proceedings:
1)
a criminal investigation against Officer Flores, which
grand jury reviewed and declined to criminally indict;
local
2)
a federal civil rights case against Officer Flores and the City of
El Paso, Texas, which remains pending; and,
3)
an internal affairs investigation against Officer Flores for policy
violations, which resulted in his termination and is the subject of this
arbitration appeal.
This proceeding addresses
termination of employment.
only
the
proceedings
related
to
Flores
After Flores filed his Notice of Appeal, Counsel for the respective
parties later subsequently agreed to AAA arbitrator, Prof. Mark Sherman. The
actual hearing on this matter was postponed by agreement pending resolution of
other collateral proceedings. Ultimately, however, the hearing in this matter
was held on April 14 and 15, 2016 in El Paso, Texas at a mutually agreed upon
site. The appeal is properly before the arbitrator, and there are no
jurisdictional issues regarding timeliness.
21
By way of
organized under
a civil service
Charter, not in
#2.A and #2.B.
23
24
this guy was able to get the cuffs to the front and then back and he was
double-cuffed.
At any time did you mention anything to the supervisor or
anybody there there was a viable concern on your part?
OFFICER FLORES:
No. Weve had weve had prisoners do that before and
normally we tell them to stop that or they cant do that and they comply. We
have them either place their cuffs back, if theyre able to do it. If theyre
not, then well assist them. I did not notify the supervisor at the time.
See Flores Testimony at SRB Hearing, City Exhibit 10.H.1 @ pp. 15-16
(emphasis added).
24. On the issue of calling for help, the investigative record shows that
Flores did eventually make a call for help to Sgt. Gabriel Peralta #1923 - as
he was leaving the jail facility to take Saenz for medical treatment.
See
Exhibit 3.D.1.
25. When contacted by telephone from the jail facility by Flores, Sgt.
Peralta stated that he told Officer Flores to keep him [Saenz] on the ground
until either he or other help arrived. See Exhibit 3.D.1 @ p.1. But Flores
either did not hear Peraltas directive, or he disregarded it.
26. Officer Flores then, before help had arrived, tried to lift Saenz up
ostensibly to lift up his pants which had dragged down - in preparation for
EMS transport. This precipitated Saenz getting agitated again, as shown in the
jail surveillance videos. See City Exhibit 4.A 4.D (emphasis added).
27. In his March 18, 2013 statement, Flores culminates his narrative by
stating, in pertinent part, I felt that I had no choice but to stop this
threat with deadly force. City Exhibit 3.A @ p. 6.
28. In that same statement, Flores goes on to say that After I fired
my weapon, I couldnt believe that I had shot him. I told the guard Man, I
didnt want to shoot him, I was trying to help him. City Exhibit 3.A @ p. 6.
29. Sgt. Peralta, for his part, states that when he arrived at the scene
and made personal contact with Flores, that Flores stated, Sgt. I didnt want
to shoot him but I had no other choice. See Peralta Statement, City Exhibit
3.D.1 @ p. 1.
30. Sgt. Andrew Salazar, who also made personal contact with Officer
Flores just after the shoot incident reports that in response to questions
about what happened, Officer Flores indicated to him several times that he had
to shoot the subject. See Salazar Statement, City Exhibit 3.D.2 @ p. 1.
31. On the other hand, the G4S officer, Alejandro Romero, who was with
Flores stated that Flores told him, in response to his question about what had
just happened, that he [Flores] had accidentally shot Saenz.
City Exhibit
9.F.4 (March 8, 2013 statement of G4S Officer Alejandro Romero #2988).
However, Flores makes no reference to the shooting being accidental in his
March 18, 2013 statement. Any references to the shooting being accidental do
not surface until the clarification statement given by Flores to Ranger
Wright six months later. City Exhibit 3.B.
32. As one reads the hearing transcript of the SRB review during Flores
statement, it becomes evident that the SRB, certain members expressed concerns
26
of
Flores
testimony,
as
reflected
in
the
UNKNOWN MALE:
Yet as I look at your first statement, but I dont
remember seeing accidental discharge anywhere in that first statement.
OFFICER FLORES:
UNKNOWN MALE:
Why wouldnt you if thats your contention of how Mr.
Saenz was killed, why is that not included in your first statement?
OFFICER FLORES:
I dont know why I did not list it on my first
statement, sir. I was still shocked after giving my statement. I tried to
remember everything in sequence, how I remember how everything transpired.
Thats why I guess they [sic] asked me for a clarification the second time,
then I clarified on my second statement.
UNKNOWN MALE:
How many days after the shooting or when did you give
that statement? It was March 18.
OFFICER FLORES:
Ten Days.
UNKNOWN MALE:
Ten Days.
OFFICER FLORES:
Ten Days.
UNKNOWN MALE:
Okay. And being that the main focus here is looking at
the shooting, it never dawned on you that you needed to go in there and clarify
it?
Flores Testimony, SRB Review, City Exhibit 10.H.1 @ pp. 53 (emphasis
added).
33. In his testimony, Chief Allen had expressed some concerns about the
way in which Flores was initially handled.
He expressed concerns about the
time delay in Flores giving a statement at all about the incident. See Chief
Allen Testimony, Hearing Transcript I @ pp. 380-81. The circumstances
surrounding the taking of a second statement from Flores shed light on Chief
Allens concerns about the investigative statements.
See Ranger Wright
Testimony, Hearing Transcript II @ p. 72.
34. Ranger Wright explained that the City and his agency had recently
initiated a procedure whereby the Rangers would be involved in the
investigative process for Officer involved shooting incidents. The process had
not been formalized in writing, but was a practice that had recently begun.
The point of it was to add transparency and credibility to investigations of
officer involved shooting incidents. See Wright Testimony, Hearing Transcript
II @ pp. 85-87.
35. Ranger Wright testified that he was caught off-guard when he learned
from Det. Hinojos that a statement from Flores had already been provided. As he
put it:
Q.
A.
Q.
A.
Well, according to Det. Hinojos, he was kind of caught off guard
that they showed up to provide to provide the statement. And Det. Hinojos
were all busy people he just didnt think to give us a call to say Hey,
theyre over here to give a statement. You-all want to show up.
Q.
Okay.
A.
And at this time, this was a fairly new process. I think this was
probably the second or third officer involved shooting that the Rangers had
been involved in.
Prior to 2000 I guess 2011, I dont think we had much
involvement in the officer involved shootings here with El Paso PD.
See Wright Testimony, Hearing Transcript II @ pp. 85-89.
36. Texas Ranger Wright explained his concerns about the first statement
as follows:
Q.
Okay. Now, when you read the statement, you said you became upset.
Why did you become upset?
A.
I just felt that there were several things in there that needed
more clarification. I felt like to be honest I felt like the statement Im
going to use the term riding the fence, you know, not coming down one way or
the another. There were some things there were in there that were vague to me
that needed more clarification.
See Wright Testimony, Hearing Transcript II @ pp. 90-91 (emphasis added).
37. Because of his concerns, Ranger Wright arranged
statement to be provide by Flores to get clarification:
for
second
Q.
All right. And so it sounds like from what youre saying that you
read it [the first statement] and you almost immediately felt that it failed to
address certain things or there were aspect of it that concerned you?
A.
Correct.
Q.
A.
Q.
A.
Correct.
Q.
A.
Correct.
Q.
All right. And thats the one that was done at the criminal defense
attorney for Officer Flores by that time which is Jim Darnell.
A.
Correct.
28
Q.
A.
Correct.
Q.
All right. And the purpose of this was, as you testified earlier,
to do clarification.
A.
Correct.
Correct.
Q.
All right. And is that the case, a second statement in a case like
this is not normal?
A.
Q.
A.
Usually we get everything addressed within the first statement.
You know, theres no need normally to go back and clarify anything. You know,
we normally come up with our questions that we want to ask prior to the first
statement and we get all those things addressed in the first statement.
Q.
Okay. And would it be important to you to- if the circumstances
should arise that you need clarification, that that be done as soon as
possible?
A.
Q.
Yeah.
the jail surveillance video before turning in his first statement was a choice
he made presumably with the benefit of counsel for advice.
42. Flores first statement should have been complete, candid, and
reliable.
Flores was not coerced or pressured in any way, and he had the
benefit of counsel.
Det. Hinojos did not directly conduct the interview or
direct the first statement. As he explained, Flores and his counsel showed up
to his office to turn in Flores statement:
A.
What happened was the officer showed up and the officer had
representation so the officer was allowed, with his representation, to present
the information that they had and type out the information.
I review the
statement and then reaffirmed with the officer that this is what this is what
you want to submit as your statement? And there is some review, some back and
force, some clarification of issues. And then ultimately the finished product
is given to the officer and his representation to go ahead and review it before
it is signed.
Det. Hinojos Testimony, Hearing Transcript I @ pp. 98 (emphasis added).
44. It was not until the second statement, overseen by Ranger Wright,
that the issue of an accidental discharge was raised for the first time in an
official statement by Flores.
In addition, Ranger Wright directly addressed
the question of whether the discharge of Flores firearm had been caused by G4S
officer Romero accidentally hitting his Flores gun hand as he [Romero] fell to
one side. Significantly, Flores could not recall if this happened. See City
Exhibit 3.B @ p. 2.
a. The video is inconclusive on whether Romero accidentally struck
Flores gun hand as he fell back. Flores called Ranger Wright as a witness for
the specific purpose of having him testify that - in his opinion - the video
appears to show that G4S Officer Romero struck Flores gun hand. But Ranger
Wright offered no special expertise on this issue.
See Ranger Wright
Testimony, Hearing Transcript II @ pp. 99-100.
b. It is significant that neither Flores, nor Romero for that matter, can
say if this happened. See Flores Clarification Statement @ p. 2, City Exhibit
3.B; see also Romero Responses to Internal Affairs Interview, City Exhibit
9.F.4 @ p. 2, Question 9.
44.
It
seems
that
Ranger
Wrights
follow-up
efforts
to
get
clarification from Officer Flores did not in fact contribute to the integrity
of the investigation. If anything, it created questions about the veracity of
the first statement.
Flores further compounded these concerns when he
testified at the SRB hearing.
See Flores Testimony at SRB Hearing, City
Exhibit 10.H.1 (Audio and Transcribed).
This was not Ranger Wrights fault.
But the second statement began to reflect how uncertain, and suggestible,
Flores was about how it was that he ended up killing his prisoner.
45. Despite his personal sympathy for Flores, Chief Allen agreed that
Flores had provided conflicting statements. He acknowledged that this became
an issue at the SRB hearing for certain board members. Chief Allens Testimony,
Hearing Transcript I @ pp. 379-380; see also City Exhibit 10.E (Notes by
Estella Flores and George Atkins).
30
Police
Department,
Procedures
Manual
Addendum,
Rules
and
Rule 10
No member of the Department shall willfully misrepresent any matter,
verbal or written, at any time to any person or party in any venue.
See City Exhibit 1.A (Termination Notice @ pp. 2, 6).
VII. FLORES USE OF DEADLY FORCE DID NOT COMPLY WITH THE CITYS USE OF
DEADLY FORCE RULES AND REGULATIONS.
47. Regardless of whether Officer Flores shooting of Saenz was
intentional, accidental, negligent, or less than culpable, the irrefutable
objective evidence of the shooting incident establishes that the shoot incident
does not comply with Department policy on use of deadly force.
48. The Citys and the Departments use of force policies establish that
the use of deadly force in dealing with citizens is a measure of last resort.
The full text of the policies is contained in the Termination Notice, but the
most central statement of the use of force policy are reproduced below:
3-101. USE OF FORCE POLICY. This Department recognizes and respects the
value and special integrity of each human life. In vesting officers with the
lawful authority to use force to protect the public welfare, a careful
balancing of all human interests is required. It is the policy of this
Department that officers will use only that force reasonably necessary to
effectively bring an incident under control while protecting the lives of the
officer or other persons. Factors to consider whether force is reasonable
include the severity of the crime, the risk the subject places on officers and
third parties and whether or not the subject is fleeing or resisting arrest by
force. Officers will take into account the special vulnerabilities of young,
frail or disabled persons when making a decision to use any force. Officers
will evaluate the subject's need for medical attention any time force is used.
City Exhibit 1.A Termination Notice (citing El Paso Police Department,
Procedures Manual (emphasis added).
49. A still shot of the surveillance video demonstrates that the
objective circumstances that could justify a use of deadly force simply do not
exist. See City Exhibit #4.D (still frame 180029.0579 (attached to the brief
as Exhibit A).
31
Thats right.
Q.
A.
Q.
A.
Well, the fact that everyone was seeing it differently and that we
had civilian members on this board [SRB] who arent police officers, theyre
laypeople, saw this as a bad shoot, which it was. We dont kill people
accidentally.
Q.
A.
Yes, it was. We dont kill people accidentally. And I think it was
an accidental shooting. With that I think there were other mitigating factors
that would have prevented him from possibly losing his job.
32
Q.
A.
Okay
A.
And that becomes an overriding factor when I make decisions
sometimes because no I cant weigh it on the individual, but I have to look at
the organizations effectiveness in this community and that it was part of
the decisions.
.
Q.
Well, so whats the fairness issue her, you know, the big picture
that youve just described versus Officer Flores? How do you come down on that?
A.
I think you are talking above my pay grade now to some degree. I
mean if it were up to me personally, I would bring him back because I think
hes an honest and decent individual. There was no evil intent there that day.
But with that being said, we still have a dead individual who was killed
accidentally, and we dont kill people accidentally. And in this case theres
that we know accidental perception of it, but the public doesnt. And whether
that statement can be made to the public or it can be believed is the problem.
.
Chief
added).
Allen
Testimony,
Hearing
Transcript
pp.
384-385
(emphasis
33
34
UNKNOWN MALE:
And did Sergeant Rathman at any time indicate to you
that there was a perception of you need to have hyperawareness with this guy or
any did he voice any concern to you?
OFFICER FLORES:
35
OFFICER FLORES:
Thats correct.
UNKNOWN MALE:
but its its just I think gut feelings and and
good common sense that probably were ignored.
Flores Testimony at SRB Hearing, City Exhibit 10.H.1 @ p. 15
64. Again, despite the tone of Flores initial statement to the effect
that Saenz presented a ticking time bomb that nobody noticed does not bear up
to reasonable scrutiny. Flores insinuates that Sgt. Rathman should have done
something more than he did, but it is Flores himself who describes fear and
apprehension about Saenz. Yet, he does not take any steps to make alternate
arrangements for the transport, even when Saenz resists getting into the G4S
van at Pebble Hills. See Flores Statement dated 3/18/2013, City Exhibit 3.A @
p. 3.
65. In this respect, Flores is himself surprisingly oblivious to the
warning signs presented by Saenz. Flores own statements and testimony, even if
accepted at face value, serves as much to highlight his routine attitude
towards Saenz.
66. For Flores to take the position that he was the victim here is
indeed inconsistent with the Departments expectations from its law enforcement
officers, as stated in policy. That policy, included in the Notice of
Termination, provides in pertinent part as follows:
0-406.WE CONDUCT OURSELVES WITH DIGNITY. We recognize that our personal
conduct, both on and off duty, is inseparable from the professional reputation
of both the Officer and the Department.
0-0406.7 Employees will maintain a level of performance and competence
that will keep them abreast of current techniques, concepts, laws and
requirements of the profession.
Employees will strive for professional
excellence.
0-406.08 Employees
enforcement personnel.
will
strive
to
set
an
example
for
other
law
Correct.
37
A.
Yes.
Q.
Do you understand that.
And that its not a good shoot in that
given the city, the departmental policy on use of force, that the objective
criteria primarily the videos, but also the testimony, does not present a
scenario that qualifies for use of deadly force. Did you hear that testimony?
A.
Q.
Okay. Now, what is what is your position about that? Are you
do you agree or disagree with the citys / departments findings on that issue,
the use of force issue?
A.
Obviously I disagree.
Thats why were here. Like I mentioned
before, when we were struggling, my level of energy was rock bottom compared to
Mr. Saenzs, when his is going up. So I felt threatened at that moment.
Q.
Okay. Well, so in other words your position here is that there is -- with respect to the use of force policy in place that there is no
violation.
A.
Yes.
Q.
A.
Thats correct.
Q.
Okay. And so you are asking the hearing examiner to find that there
is no policy violation?
A.
Q.
Are you asking the hearing examiner to find that there is no policy
violation here on the use of force?
A.
Yes.
Yes.
ARBITRATOR SHERMAN:
And if you did I would like to hear about it.
And if you dont if you dont think it was a policy violation and you didnt
learn anything from it, I would like to hear that too.
A.
Well, as far as a policy violation, I wouldnt be able to tell you
right now, you know. I mean do I take responsibility for what happened?
Of
course I do. Of course I do. Theres a lot of what ifs could have been done,
you know, and thats from the beginning of this, from my supervisors to myself.
I mean -Flores Testimony, Hearing Transcript II @ pp. 228-229 (emphasis added).
81. And therein lies the crux of the dilemma with Flores.
It appears
that he will say either what he is told to say, or what is suggested to him to
say, or what he determines is most expedient to say, to suit the situation.
This is not to say he is malevolent about it; he seems candid enough. But he
rides the fence as Texas Ranger Wright previously pointed out about Flores
first statement. Ranger Wright Testimony, Hearing Transcript II @ p. 91, ll.
2-8. Its not clear whether Flores himself is aware of this.
82. Consequently, the City is left holding a scenario where a mentally
disabled citizen, lawfully in custody, is shot and killed by one of its police
officers. The jail surveillance video put into the record, including the frame
attached to this brief, got onto the social media networks.
And the person
most responsible for the incident is unable to articulate clearly and
unambiguously, how and why that happened.
X. THE CITYS TERMINATION DECISION WAS NEITHER ARBITRARY OR CAPRICIOUS
83. Thus, the evidentiary record presented in this case demonstrates that
the Citys decision to terminate Flores employment was neither arbitrary nor
capricious. That there was just cause for the decision is amply supported in
the evidentiary record, as a whole.
39
84. What is unique about the case is that while the institutional
decision satisfies the just cause standard, and was neither arbitrary or
capricious, there is, at a personal level, much personal compassion for the
situation that Flores allowed himself to drift into.
Probably many law
officers, in looking at Flores situation feel like there but for the grace of
God go I. Or, perhaps, like a fighter pilot who witnesses a downed comrade,
think, that wont happen to me.
85. While personal compassion for Flores exists, including the Chief of
Police, the institutional process, and the outcome it generated was reasoned,
thorough, orderly, fair and just. There was nothing arbitrary about it.
86. For example, Chief Allen testified that even though he had the final
decision-making authority in the case, he felt bound to honor the findings of
the SRB. See Chief Allen Testimony, Hearing Transcript I @ pp. 382-383.
87. Chief Allen honors and respects the people to comprise the SRB.
Whatever misgivings Chief Allen may have had about Flores situation
personally, he respects the abilities and qualification of the SRB to do its
job:
Q.
A.
Yes, I am.
Q.
All right. And do you feel that it strikes the appropriate balance
between the what Ill call the lay interest in officer shoot situations
versus the professional law enforcement interest in office shoot situations.
A.
Q.
A.
I think so because it enlightens the civilian on the processes and
the discipline that police officer is imposed with.
Q.
Okay.
A.
And his duties and how difficult that is at times and it becomes an
eye-opener for them a lot of times in
Q.
Okay.
A.
-- looking at the difficult an officer has to deal with in day-today operations of the city or their jobs.
Chief Allen Testimony, Hearing Transcript II @ pp. 45-46.
88. In other words, the City has an orderly, deliberate, reasoned process
under which officer shoot situations are evaluated. There is nothing arbitrary
or capricious about it. See SRB Review, City Exhibit 10.A 10.H (including
transcribed testimony as requested by Arbitrator Sherman).
XI. REMEDIES DOES THE ARBITRATOR HAVE AUTHORITY TO GIVE FLORES A SECOND
CHANCE?
40
89. Given the state of the record, does the Arbitrator even have a basis
upon which to reinstate Flores and give him another chance?
90. Flores, to his credit, testified that he simply wants another chance,
and he is willing to forego any back pay to get it despite what his counsel
has pleaded. See Flores Testimony, Hearing Transcript II @ pp. 208.
91. However, it is the Citys position that the evidentiary record does
not truly present mitigating circumstances justifying reinstatement, much less
backpay. The just cause standard is met here at both levels, level of fault
and level of discipline.
At this juncture, Chief Allen does not support
reinstatement for Mr. Flores. See Chief Allen Testimony, Hearing Transcript I
@ pp. 385-390.
92. Chief Allen was faced with the same competing concerns between
compassion for Flores professional situation and the Chiefs institutional
obligations to the City, to the Department, and ultimately to the public. Chief
Allen determined that the only reasonable outcome here was to separate Jose
Flores from his position at the City.
The City therefore requests that the
Arbitrator not disturb this decision.
CONCLUSION & PRAYER
For the foregoing reasons, the CITY requests that the Arbitrator
enter an Award that provides as follows:
1.
That the material factual matters contained in termination notice
dated October 28, 2014 are supported by the evidentiary record as being true
and correct, that is, not arbitrary or capricious and therefore not subject to
modification;
2.
That the disciplinary termination imposed by Chief of Police Greg
Alan on behalf of the City of El Paso, is supported by the evidentiary record
is not unreasonable, nor arbitrary or capricious and therefore not subject to
modification; and therefore,
3.
That Grievants appeal be DENIED and the disciplinary termination
be sustained in its entirety.
41
Jose Flores
Daniel Saenz
After assaulting Mr. Sosa, Mr. Saenz returned to his room.12 He had an
extreme reaction when he saw an off-duty police officer, Kristina Aguirre, who
was dressed in her blue police uniform.13 Mr. Saenz yelled obscenities at her
and began removing the contents of his duffel bag and throwing them at her.14
When Mr. Saenz ran out of items to throw, he rushed toward Officer Aguirre and
punched her in the face,15 giving her a black eye.16 A struggle ensued, during
which time Mr. Saenz assaulted two other people, both of whom worked for the
hospital.17 Officer Aguirre managed to free herself from Mr. Saenz and deploy
her Taser on him.18 Mr. Saenz was able to endure five, five-second cycles of
the Taser19 with little to no effect.20 Ultimately, Mr. Saenz was arrested for
assault on a public servant, assault of the members of the Del Sol medical
staff, and for assault of the elderly patient.21
The arresting officer, EPPD R. Machuca, double cuffed Mr. Saenz. Double
cuffing is the use of two sets of handcuffs, chained end-to-end.22 This was
due to Mr. Saenz "being a heavy muscular male."23
Officer Machuca chose to
double cuff Mr. Saenz, even though he was tensing up his arms as if he was
going to start fighting at the time.24
EPPD officer Ruben Esparza transported Mr. Saenz to the Pebble Hills
Regional Command Center ("PHRCC").
While escorting Mr. Saenz to the patrol
car, Officer Esparza had difficulty because Mr. Saenz kept "making is body
hang," causing Esparza to use more strength and energy to get him to walk.
Officer Esparza also noted that Mr. Saenz was contemplating "donkey kicking"
him while conducted his pat-down, but decided not to. While en route to the
PHRCC, Mr. Saenz was saying things that did not make sense. He also banged his
head against the Plexiglas of Esparza's patrol vehicle.25 Once at the PHRCC,
Mr. Saenz was fingerprinted.
He engaged in assaultive behavior during that
process.26
D.
12 EPPD 7.B., 31st page (probable cause affidavit of EPPD Officer Ricardo
Machuca, dated 3/8/13).
13 EPPD 7.B., 26th page; Hinojos, RR 163.
14 EPPD 7.C., statement of Officer Christine Aguirre; EPPD 7.B., 10th page
(statement of Diane Cisneros via police supplement of EPPD Officer Ricardo
Machuca); see also Hinojos, RR 80 & 164-65.
15 EPPD 7.B., 10th page (statement of Diane Cisneros via police supplement of
EPPD Officer Ricardo Machuca).
16 EPPD 7.B., pages 26-27; 29-30; Hinojos, RR 165-66.
17 EPPD 7.C., third document of that tab (statement of Arturo Ignacio Robles);
Hinojos, RR 166-67; EPPD 7.B., first page; EPPD 7.C., first page and next-tolast page (statement of Joseph Sepulveda).
18 EPPD 7.B., 1st and 10th pages.
19 EPPD 7.B., 1st, 10th pages and 13th page (page 13 of 13 downloaded Taser
report); Hinojos RR 167-70.
20 EPPD 7.C., third document of that tab (statement of Arturo Ignacio Robles);
Hinojos, RR 166-67.
21 See generally EEPD 7.B.
22 Hinojos, RR 138.
23 EPPD 7.B., 38th page (statement of Ricardo Machuca).
24 EPPD 7.B., 38th page (statement of Ricardo Machuca); see also Hinojos, RR
171.
25 EPPD 8.A., pp. 26-27 (statement of EEPD Officer Ruben Esparza).
26 Hinojos, RR 171.
43
The PHRCC was the flagship for a new program that was implemented by the
City of El Paso and the EPPD in order to save money and resources.27
Specifically, the City of El Paso contracted with G4S Security Solutions
("G4S") to transport arrestees from the suburbs to the downtown jail for
booking.
However, the G4S transport personnel required a uniformed police
officer to go to the jail with them because they could not book prisoners into
the jail by themselves.28
There were no written policies or procedures in place for EPPD officers
to follow when interfacing with G4S personnel.29 EPPD officers did not train
with G4S personnel.30 EPPD officers were not aware of what training G4S
personnel received,31 although some were known to be retired law enforcement
officers.32
Alejandro Romero was the G4S guard who escorted Mr. Saenz with
Officer Flores.
Although he had trained as a Dona Ana County Detention
Officer, he held that job for less than nine months.33
At the PHRCC, the Lieutenant had issued a verbal directive to all of the
sergeants to override the practice of using G4S personnel when transporting
combative, non-compliant or highly intoxicated prisoners.34 In those types of
cases, the sergeants were to not use G4S and order at least two uniformed
police officers to transport the prisoner.35 The lieutenant and sergeants did
not disseminate this directive to patrol officers such as Officer Flores.36
When Daniel Saenz arrived at PHRCC, the sergeant on duty was Sgt.
Rathmann. He did not issue an order to have Mr. Saenz transported only by EPPD
officers, even though he knew that it took multiple officers to get Mr. Saenz
under control at the Del Sol emergency room,37 and even though he knew Mr.
Saenz had been Tased 5 times with no effect.38
E.
When Officer Flores arrived for his shift, Sgt. Peralta asked for
volunteers to transport with G4S. Officer Flores volunteered. At the time, G4S
guards Matthews and Romero were at the Mission Valley Regional Command Center,
picking up another prisoner.39
Officer Flores had a conversation with Sgt. Rathmann about Mr. Saenz's
apparent strength and size.40
Sgt. Rathmann knew that Mr. Saenz had been
arrested for assaulting a police officer, but he was not aware of the details
of what it took to take Mr. Saenz into custody at Del Sol Hospital.41
Officer Flores had a conversation with Officer Machuca, who told him
about Mr. Saenz's assault of Officer Aguirre. He also told Officer Flores that
Mr. Saenz had been Tased five times, with no effect.42
Mr. Saenz stayed in one of the PHRCC holding cells. He had to be moved
into a new holding cell because he urinated on himself. As a result of this,
his shoes were outside of the holding cell.43
Officer Flores removed the G4S handcuffs from Mr. Saenz and replaced them
with his own. Mr. Saenz was compliant during that transaction.44
Later, Officer Flores opened Mr. Saenz's holding cell to allow him to put
his shoes on. Officer Flores asked Mr. Saenz to turn around so that Office
Flores could unlock his cuffs. But Mr. Saenz bent at the waste, put his shoes
on, then stood up with his hands in front of him.45 This happened very quickly.
When Officer Flores told Mr. Saenz that he would need to unlock his cuffs to
place Mr. Saenz's arms back behind him, Mr. Saenz bent over and easily put his
handcuffs back behind his body. While Mr. Saenz's strength and agility had
caused alarm and fear in Officer Flores, he nevertheless decided to continue
the practice of double-cuffing Mr. Saenz, given that Mr. Saenz was noncombative and compliant, and given his size and musculature.46
After the incident with the handcuffs, Officer Flores established a
rapport with Mr. Saenz by talking to him about his body-building. This was in
keeping with Officer Flores' usual and customary procedure. While he observed
unusual speech by Mr. Saenz, Officer Flores did not observe any violent
behavior.47
After some difficulty getting Mr. Saenz into the G4S transport van, G4S
guards Mathews and Romero drove prisoners Johnson and Saenz to the downtown
jail. Officer Flores followed the van in his marked EPPD police unit by
himself.48
F.
At
the back
sidewalk
struggle
the jail, Officer Flores and G4S guard Romero escorted Mr. Saenz to
entrance while Mathews escorted Mr. Johnson. On the way along the
and down the driveway to the jail entrance, Mr. Saenz began to
against Officer Flores and Mr. Romero.49
Once at the entry to the jail, they all had to wait for a jail officer to
buzz them in.50 When the door was unlocked, Officer Flores opened it.
Mr.
41
42
43
44
45
46
47
48
49
50
Saenz injured himself by violently smashing his head against the corner of the
steel door jamb. This opened up a wound on his head that started bleeding
profusely.51
Officer Flores decided to proceed to the second-floor booking area
because he believed Mr. Saenz could get medical attention for his selfinflicted wound there. There have been instances in which the downtown jail has
admitted injured inmates.52
The only medical "facility" in downtown El Paso
was the fire station on the other side of and across the street from the
jail.53
Upon entering the sally port area of the jail, Mr. Saenz continued to
struggle. Four detention officers came to assist while Officer Flores, Mr.
Romero and Mr. Mathews placed their weapons in the jail's gun lockers.54
Mr. Saenz then became limp and refused to walk.55 He was conscious during
this time, which led Officer Flores and Mr. Romero to believe that Mr. Saenz
was intentionally making himself into "dead weight."
Detective Hinojos
testified that he believed that Mr. Saenz injured himself and made himself into
dead weight, knowing that he probably would not get booked into the jail.56
Officer Flores and Mr. Romero had to drag Mr. Saenz into the elevator lobby,
into the elevator, out of the elevator on the second floor and into the holding
cell.57
The jail had discretion to accept or reject an inmate for booking. If an
inmate was injured, sometimes the jail would accept him, sometimes it would
not.
The jail exercised this discretion without consistency.58
If the jail
refused to book an inmate for medical reasons, the officer had to obtain a
medical release. This involved getting the prisoner to a medical facility to
obtain an evaluation and a release stating that the prisoner was fit to go
through the booking process.59 Officer Flores had seen the downtown jail staff
secure injured prisoners in a holding cell and call FMS. He was hoping that
something similar would happen for Mr. Saenz.60
On the second floor, the jail intake nurse and one of the detention
officers, upon seeing Mr. Saenz's condition, refused to book him.
A female
detention officer repeatedly yelled at Officer Flores to get Mr. Saenz out, so
Flores felt rushed to get Mr. Saenz back downstairs.61 His concern was to get
Mr. Saenz outside so that FMS could treat his self-inflicted head would.62
Officer Flores thought he told the jail personnel to call FMS, but he did not
recall that with certainty.63
51
52
53
54
55
56
57
58
59
60
61
62
63
Officer Flores and Mr. Romero then had to drag Mr. Saenz back into the
elevator and then, once on the basement level, out into the sally port.64 By
the time they got to the gun lockers, Officer Flores' fatigue level was a 9 out
of 10, with 10 being the most fatigued he could be. His back was also hurting
because dragging Mr. Saenz caused him to aggravate an old injury.65
While in the sally port, officer Flores called out on his radio for
assistance.66 He also called for FMS to come administer aid to Mr. Saenz.67
Sgt. Peralta heard this over the radio at the PHRCC and called Officer Flores
to check up on him.68 Officer Flores stated that he was having trouble with Mr.
Saenz that he had hit his head on the door jamb, was bleeding and that the
jail would not allow him to be booked. Sgt. Peralta said that he would send
help. Sgt. Peralta then contacted the EPPD Central Regional Command Center
(CRCC) and asked for officers to assist Officer Flores.69
The jail's sally port was located at the back of the jail. The nearest
fire station with FMS personnel was located directly across the street from the
front door of the jail.70 The CRCC was located immediately next door to that
fire station.71
At the time Sgt. Peralta asked for assistance for Officer
Flores, CRCC had 5 to 10 officers available to assist. However, none of them
responded to the call for assistance.72
Officer Flores asked Mr. Romero to take Mr. Saenz outside of the jail. He
asked him to do this so that Mr. Saenz could get assistance from FMS as soon as
possible.73 Officer Flores expected FMS to arrive via the sally port driveway.
Mr. Romero did as instructed, dragging Mr. Saenz outside through the back door
of the jail with Officer Flores' help.
As Mr. Romero and Officer Flores
dragged Mr. Saenz outside, Mr. Saenz's pants caught on the door's threshold,
which pulled them down around his thighs.74
Officer Flores went back inside the jail, where he struggled to retrieve
his gun from the gun locker. He encountered extreme difficulty in performing
this simple task, due to the effect that physical exhaustion was having on
him.75 His fatigue level was 9 out of 10. His lower back was in pain, he was
out of breath, and he was experiencing cramping in his hands and forearms.76
Nevertheless, Officer Flores did not intentionally delay himself. He proceeded
outside, where he observed that Mr. Saenz's pants were down.77
G.
64
65
66
67
68
69
70
71
72
73
74
75
76
77
Physical Struggle
Hinojos, RR 141.
Flores, RR 157-58.
Flores, RR2 165; Hinojos, RR 145.
Hinojos, RR 141-42:12.
Peralta, RR2 11.
Peralta, RR2 13.
See Hinojos, RR 146.
Poust, RR 222-24.
Testimony of Sgt. Salazar, RR2 35-39.
EPPD 3.C., page 5 (IAD statement of Jose Flores).
Romero, RR2 118.
Hinojos, RR 146-47.
Flores, RR2 157-58; see also Hinojos, RR 146-47.
Flores, RR2 158-59; Hinojos, RR 157-58.
47
Out of concern for Mr. Saenz's dignity, Officer Flores knelt down and
told Mr. Saenz that they were going to stand him up in order to pull up his
pants.78 Mr. Saenz did not cooperate in this effort, so Officer Flores and Mr.
Romero had to lift Mr. Saenz to get him on his feet.79 As soon as Mr. Saenz was
upright, he tried to run up the driveway and started to struggle violently.80
Officer Flores tripped Mr. Saenz and all three men went to the ground. Officer
Flores got on Mr. Saenz's back.81
At this stage, Officer Flores' fatigue level was 10 out of 10. He felt
like the blood had rushed from his head and he felt cold. He felt as though he
was losing strength, while Mr. Saenz was gaining strength.
Officer Flores
started to fear for his life.82
Mr. Saenz was back-kicking with his legs, and landed at least one strike
on Officer Flores' thigh area.83
Mr. Saenz began to violently smash his head onto the pavement. Officer
Flores told Mr. Romero to help with Mr. Saenz's head.84 Mr. Romero placed his
hand underneath Mr. Saenz's forehead. Mr. Romero was to the side of Mr. Saenz,
and was not assisting in the effort to pin Mr. Saenz to the ground.85
Officer Flores believed that Mr. Saenz was trying to slide his hands
below his buttocks to get his cuffed hands to the front of his body.86 Even
though Officer Flores was on Mr. Saenz's back, Mr. Saenz was able to push off
of the ground, due to the freedom of movement he had with his hands being
double-cuffed, combined with his exceptional strength.87
To control this,
Officer Flores attempted to grab Mr. Saenz's left hand. But Mr. Saenz gained
control of three of Officer Flores' fingers, bending them backward to the point
that Officer Flores thought they were going to break, causing him pain.88
Despite Officer Flores' best efforts, Mr. Saenz was able to roll onto his
side. At that point, Officer Flores still believed that Mr. Saenz was going to
either get his handcuffs to the front of his body or break his handcuffs.89
This fear that Mr. Saenz could "front" his cuffs was augmented by Flores' prior
observations of Mr. Saenz at the PHRCC holding cell. This knowledge, combined
with all of the circumstances described, placed Officer Flores in immediate
fear for his life and that of Mr. Romero.90
Mr. Romero also feared that Mr. Saenz would get his handcuffs to the
front, even though he had no prior knowledge of Mr. Saenz's ability to front
his cuffs.91
78
79
80
81
82
83
84
85
86
87
88
89
90
91
As Mr. Saenz rolled onto his side, several things happened in quick
succession, some simultaneously. First, Officer Flores freed his hand from Mr.
Saenz's grip by sliding it out of his glove.92 Mr. Romero's hand slid down to
Mr. Saenz's mouth area. Mr. Saenz attempted to bite down on Mr. Romero's hand,
but managed to bite only on Mr. Romero's glove.93 Second, Officer Flores could
no longer remain on Mr. Saenz's back. He stood up and stepped back from Mr.
Saenz. As he did this, Mr. Saenz grabbed Officer Flores' crotch, causing him
pain.94 Mr. Saenz also tried to kick Officer Flores, but Officer Flores was
able to spin away from this kick.95 As he was off-balance, Officer Flores
placed his left hand on his Taser and attempted to unholster it.96
This ended the physical struggle between Officer Flores and Mr. Saenz.
At no point during the physical struggle did Officer Flores or Mr. Romero gain
control.97
For his part, Mr. Romero was also physically exhausted.
arms were burning and felt "like noodles."98
As Officer Flores spun away from Mr. Saenz's kick, he remembered that Mr.
Saenz had already been through 5 cycles of the Taser that same day, without
effect.100 So Officer Flores decided not to draw his Taser. Instead, Officer
Flores made a split-second decision, under circumstances that were rapidly
evolving, and as he was experiencing fear, extreme fatigue and pain in his
back, fingers, forearms, thighs and crotch. Officer Flores was afraid that Mr.
Saenz would quickly get his cuffs to his front and, using his extraordinary
strength and relentless energy, turn his handcuffs into a deadly weapon.
Officer Flores was also mindful of a recent incident in which an EPPD officer
had been beaten to death after being taken to the ground.101 Officer Flores
decided to use deadly force, but only by unholstering his weapon to display his
gun.102
His intent was not to shoot Mr. Saenz, but to display his weapon in hope
that Mr. Saenz would become compliant upon seeing it.103 This decision was in
keeping with the common police maxim that "they don't see the badge sometimes,
but they sure know what a gun is when they see it pointed at them."104
Had Mr. Saenz fronted his handcuffs and attempted to use them as a
weapon, Officer Flores would have been prepared to apply deadly force by
discharging his weapon.105
Had Mr. Saenz become compliant, or had
circumstances not warranted the application of lethal force, Officer Flores
would have re-holstered his weapon.106 Unfortunately, Officer Flores was never
able to make that decision, due to a series of rapid events that were both
unforeseeable and unexpected.
I.
The video evidence showed that, as Officer Flores drew his weapon, he
reached toward Mr. Romero with his left hand. Officer Flores testified that he
did not recall making that motion.107
Also, Officer Flores was righthanded.108 The EPPDs expert, Officer Jose Luis Lopez, testified that he did
not know exactly what Flores was trying to do whether he was trying to push
Mr. Saenz or maybe control him with one hand.109
Officer Lopez agreed that
Officer Flores was smart enough to know that trying to control Mr. Saenz with
one hand would not be effective.110
He also testified that, as this was
occurring, the situation was very tense and stressful, that the sequence of
events was rapidly unfolding, and that Officer Flores was having to make splitsecond decisions under those circumstances.111
From the point where Officer Flores started to reach in with his left
hand, he could not have reached Mr. Saenz.112
Officer Lopez could not say
whether it would have been reasonable, under those circumstances, for Officer
Flores to reach over and tap Mr. Romero on the shoulder as if to say, "Hey, get
back."113
J.
At the same time that Officer Flores was reaching toward Mr. Romero, Mr.
Saenz was pushing off against the curb of the sally port driveway, using his
body to throw Mr. Romero backward.114 According to the EPPD's use-of-force
expert, this event was completely unforeseeable.115
Officer Flores did not
expect Mr. Romero to go flying across the driveway.116 On the video, as Mr.
Romero was thrown backward, his left hand can be seen striking Officer Flores'
gun, causing it to discharge.117 All of this happened in a split second.
104
105
106
107
45.
108
109
110
111
112
113
114
115
116
117
Officer Flores testified that he never made the decision to shoot Mr.
Saenz. He also testified that he had no recollection of pulling the trigger of
his gun,118 and that he was shocked when it went off.119 As of the hearing, he
did not remember the gun going off or the contact from Mr. Romero's hand. In
fact, he was so traumatized by the event that he did not remember Mr. Romero
being thrown across the driveway.120
K.
The video evidence showed a startled reaction from Officer Flores after
his weapon was discharged. Mr. Saenz, who had a visible wound to his shoulder,
still thrashed about after he was shot. As a precaution, Officer Flores drew
his Taser, but then quickly realized he was not going to need it. He and Mr.
Romero Rendered aid to Mr. Saenz.121
Mr. Romero testified that he heard a loud noise, but was not sure what it
was and did not know that the gun had discharged. He did not recall his hand
impacting Officer Flores' gun. After the shooting, he asked Officer Flores,
"What happened?"122
Officer Flores replied, "It was an accident. I didn't mean to shoot
him."123
Then as the two men rendered aid to Mr. Saenz, Mr. Romero heard
Officer Flores say, "Damn it. I'm sorry, Saenz. Stay awake. Stay awake."124
FMS arrived to the scene and began rendering aid to Mr. Saenz. Officer
Flores and Mr. Romero disengaged. Next, EPPD officers from the CRCC arrived.
As the scene was sealed off, other officers arrived, including Sgt. Salazar
from the CRCC and Sgt. Peralta from the PHRCC.
Officer Adrian Castro arrived on the scene shortly after FMS arrived. He
observed both Mr. Romero and Officer Flores "to be pale in color" and "out of
it" when asked if they were OK. Officer Castro also saw Officer Flores leaning
over a wall as if he was sick or throwing up.125
Sergeant Peralta testified that Officer Flores told him, "Sergeant, I
didn't want to shoot him, but I had no other choice. I was trying to help him,
but he went crazy on me."126 Officer Flores appeared exhausted and "out of it"
to Sergeant Peralta at the time this statement was made. The color was drained
from his face and Officer Flores did not seem to be "in his right mind."
Officer Flores was unable to support himself on his own two legs and Sergeant
Peralta had to help him balance himself. At one point, Officer Flores' legs
buckled and Sergeant Peralta asked the medics to come check him out.127
Sergeant Salazar was also at the scene of the shooting shortly after it
took place. He testified that Officer Flores said something similar; namely,
that he had to shoot the subject.128
Sergeant Salazar agreed that Officer
Flores appeared to be "shell shocked."129
While Officer Flores thought he remembered having a conversation with
Sergeant Peralta, he did not remember saying these things to him or to Sergeant
Salazar.
In fact, Officer Flores did not remember how he got home that
night.130 What Officer Flores remembered was giving his name and badge number
to Sergeant Alvarez, who was from the Central Regional Command Center, and also
to Sergeant Salazar.
He also testified that this event was among the most
emotionally distressing events of his life.131
L.
M.
On March 18, 2013, Officer Flores went to the Crimes Against Persons
Division of the EPPD (CAP), with counsel, to provide a voluntary statement. He
had already typed the statement himself. The statement was reviewed by CAP
Detective Hinojos, CAP Sgt. Rivera, CAP Sgt. Cardenas and CAP Lt. Zamora, each
of whom had an opportunity to seek any clarification they needed.134 There was
nothing about Officer Flores' statement that led the CAP personnel to believe
that he was not telling the truth.135
The CAP personnel offered to allow Officer Flores to view the video
recording of the shooting incident; however, Officer Flores declined to do
so136 because he wanted his statement to be made from his untainted memory.
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
On May 6, 2014, Officer Flores and other witnesses were brought before
the Shooting Review Board (SRB) to answer their questions.
Officer Lopez spoke to the SRB; however, he did not discuss Officer
Flores' fear that Mr. Saenz might front his cuffs, or the fact that Mr. Saenz
was not pain-compliant.147
In fact, Officer Lopez had never seen the video
from PHRCC that showed Mr. Saenz quickly fronting his handcuffs.148
Also,
Lopez agreed that handcuffs can be used as a deadly weapon.149
Based upon questioning in the SRB by IAD Director Jennifer Callan, it
appeared that the SRB expected Officer Flores to have perfect recall of the
entire incident, and that little consideration was given to the concept of
tachycardia.150
Much of the questioning of Officer Flores appeared to be an
exercise of "Monday morning quarterbacking" his decisions before the
shooting.151
Regarding his statements to Sgt. Peralta and Sgt. Salazar, the testimony
proceeded as follows:
UNKNOWN MALE: You're saying you accidently shot him. But yet when two sergeants
showed up, Sergeant Salazar and Sergeant Peralta, you told both of them that
you had no other choice but to shoot him.
OFFICER FLORES: I don't recall using the words "shoot him." Sergeant Salazar? I
-- I remember a sergeant showing up to the scene asking me -- I think he asked
for my name, number, my badge number and where I was from. But at no time did
we have a specific conversation about what took place. And -- and I've learned
that any time you're involved in a shooting or anything, you don't start saying
things. You wait for the proper personnel to get debriefed.
UNKNOWN MALE: So he -- he says in his statement, he said that he had -- then
had -- he had to shoot. You're saying that you never told him that?
OFFICER FLORES: No, sir, not that I remember saying that to him.
UNKNOWN MALE: Same with Sergeant Peralta, you didn't say that to him?
OFFICER FLORES: That's correct. Saying that -- that I -- what were the words,
sir?
146
147
148
149
150
the
151
36;
the
UNKNOWN MALE: Sergeant Peralta wrote that, "I didn't want to shoot him, but I
had no choice. He went crazy on me." That's what -- according to Sergeant
Peralta's -UNKNOWN MALE: It says "Sergeant, I didn't want to shoot him, but I had no other
choice."
OFFICER FLORES: I might have said something in that line. I know I didn't mean
to shoot him, but I don't remember exactly my words. And as far as Sergeant
Salazar, like I said at no time did we have a specific conversation of what
took place. The only thing I think of maybe he asked what happened. In my mind
I said I shot him but...
UNKNOWN MALE: So you're 100 percent sure it was accidental?
OFFICER FLORES: That's correct, sir.152
Then later in his statement to the SRB, Officer Flores testified as follows:
UNKNOWN MALE: Officer Flores.
OFFICER FLORES: Yes, sir.
UNKNOWN MALE: Officer Romero who is a G4S officer at the time is assisting you.
You said that right after the shooting happened that you said to him it was an
accident or it was a mistake. Do you remember saying that to him?
OFFICER FLORES: I remember -- I don't know the exact words I used with Mr.
Romero. I do remember shaking my head and I think I might have said that, you
know what, it was -- I didn't mean to shoot him. It was an accident.
UNKNOWN FEMALE: Officer Flores, your memory in your statements, as well as
today, has been flawless up to the point of the shooting. Is that a fair
assessment?
OFFICER FLORES: That's correct, ma'am.
UNKNOWN FEMALE: So after the shooting, though, however you're saying you don't
recall making certain statements that go against this accidental statement you
made to G4S. So are you saying that the two sergeants who are saying -- put in
their sworn statements that you told them that you had to shoot and had no
other choice or similar words, that they're lying?
OFFICER FLORES: I wouldn't want to say that they're lying, ma'am, I just don't
remember using those words.
UNKNOWN FEMALE: Okay. So when you tell the board today that you're 100 percent
sure you didn't say that, you're not really 100 percent sure.
OFFICER FLORES: No, ma'am, I'm not 100 percent sure, that's correct.153
At least one member of the shooting review board spoke to the fact that
officers encounter situations where "they don't know what they're going to
152 Transcript of statement of Jose Flores before the SRB, pp. 37-38.
153 Transcript of statement of Jose Flores to the SRB, pp. 40-41.
55
confront," in which they can draw their weapons as a show of force. Examples
provided included going into dark buildings and felony traffic stops.154
The Shooting Review Board concluded that Officer Flores drew his weapon
for the purpose of creating apprehension in Mr. Saenz and that the shooting was
accidental.155
Only three of the ten voting members of the Shooting Review
Board specifically recommended termination on their recommendation forms.156
Q.
Other Testimony
Relevant
testimony
from
witnesses
at
the
hearing,
not
already
incorporated into the Factual Background above, is summarized as follows:
Q.1.
Jeremy Poust
Sergeant Poust was the lead case agent with the Internal Affairs Division
who oversaw the investigation of the administrative case against Officer
Flores. He also made the IAD's presentation to the Shooting Review Board. He
testified that the SRB found that the shooting was outside of policy.157
Sgt. Poust also stated that the SRB concluded that Officer Flores lied to
them.
Specifically, the SRB found that Officer Flores lied to them when he
said that he never told Sergeants Peralta and Salazar that he intentionally
shot Mr. Saenz.158 Apparently, it was a matter of some concern to the SRB that
Officer Flores was saying that the shooting was accidental; however, his
statements to Sergeants Peralta and Salazar seemed to indicate that the
shooting was intentional.159 Sergeant Poust could not say exactly what Officer
Flores' statement was that constituted a lie to the SRB.160
With respect to the alleged safety violation against Flores, the
discipline resulted from the allegation that Officer Flores tried to reengage
or touch Mr. Saenz again while Flores had his gun out of the holster.161
Sergeant Poust testified regarding circumstances when it is appropriate
for a police officer to have his gun in his hand, with his trigger finger
indexed along the side of the gun (e.g., when searching a building or during a
felony stop).162
He testified that "contralateral movement," or a
"contralateral contraction," or "gripping" could translate to an officer's hand
and cause that officer to accidentally pull the trigger.
Examples include
being startled or scared by something, such as a loud noise or a bump to the
body.163 This type of action is akin to a reflex, or an involuntary action,164
which is not the type of event that an officer would likely remember.165
154
155
156
157
158
159
160
161
162
163
164
165
Officer Lopez was the EPPD's use-of-force expert. He opined that, based
upon his review of the video evidence and "not being a part of the situation,"
the struggle with Mr. Saenz did not justify the use of deadly force.168
However, he distinguished between the actual application of deadly force and
the mere show of deadly force by displaying a weapon.169 Among other things,
he stated that an officer can draw his weapon, without intent to fire it, where
the potential for deadly force might exist.170 The decision to draw a weapon
as a show of force was completely given over to the discretion of the officer.
The EPPD had no written parameters or guidelines that limited that
discretion.171
Only when actually applying deadly force was there a
requirement for a reasonable belief of an immediate threat of death or serious
bodily injury to himself or to another.172
Officer Lopez stated that the hypothetical of Mr. Saenz choking Mr.
Romero with his handcuffs could possibly be close to a situation that would
have justified the application of deadly force.173
Officer Lopez clarified the EPPD's position with respect to the
allegation of Officer Flores "reengaging" with Mr. Saenz. He testified that it
was a safety violation for Officer Flores to try to get into a hands-on combat
situation with Mr. Saenz while he had his gun drawn.174
He also testified that the DPS-enhanced video showed that Romero's hand
contacted Flores' weapon hand, causing the gun to fire.175
Lopez also testified that, just before the shooting incident, Officer
Flores was showing signs of tachycardia, which is a condition associated with
extreme fatigue. The symptoms of tachycardia are similar to those testified to
by Jeremy Poust, and include visual reduction, auditory exclusion, lack of fine
motor skills and impaired memory.176
166
167
168
169
170
171
172
173
174
175
176
Poust,
Poust,
Lopez,
Lopez,
Lopez,
Lopez,
Lopez,
Lopez,
Lopez,
Lopez,
Lopez,
RR
RR
RR
RR
RR
RR
RR
RR
RR
RR
RR
268-75.
236.
290.
321-22.
322.
357-58.
321-24.
316.
315.
317.
329-31.
57
Chief Allen spent much of his testimony talking about factors outside of
EPPD policy that affected his decision to terminate Officer Flores' employment.
For example, he testified about the public's perception of the video after it
was released,179 speculation as to "psychological concerns" over Officer
Flores' ability to perform on the job again,180 an apparent conflict in Officer
Flores' statements,181 the fact that Officer Flores' was not at the scene of
the shooting the entire time,182 the fact that Officer Flores waited "a number
of days" before providing his statement to CAP,183 and concerns about upcoming
civil litigation.184
But for these concerns, Chief Allen would have preferred to retain
Officer Flores as an employee, assuming he could have passed a fitness for duty
evaluation.185 However, given all of the concerns described above, the Chief
did not feel that it was his place to override the Shooting Review Board's
decision,186 even though he had the authority to do so as the final decision
maker.187 He was concerned about how it would appear in a civil trial if he
did not go along with the SRB's decision to terminate Officer Flores'
employment.188
The Chief agreed that the shock of the shooting was traumatic upon
Officer Flores, and the time immediately following the shooting was not the
time for the police sergeants to be interrogating him.189
Chief Allen also agreed that, in order to fully evaluate a use-of-force
case under the objective standard, you must take into consideration everything;
such as fatigue, pain, experience with Mr. Saenz and Officer Flores' personal
knowledge regarding Saenz's pain compliance.190 However, only Officer Flores'
fatigue was presented to the Shooting Review Board.191 Thus, the SRB was not
advised as to the reasonableness of Officer Flores' actions, considering all of
the relevant circumstances.192
177
178
179
180
181
182
183
184
185
186
187
188
189
190
191
192
Lopez, RR 61-62.
See Lopez, RR 326-27.
Chief Allen, RR 376.
Chief Allen, RR 377.
Chief Allen, RR 378-79.
Chief Allen, RR 380-81.
Chief Allen, RR 381.
Chief Allen, RR 381.
Chief Allen, RR 382.
Chief Allen, RR 382-85.
Chief Allen, RR 380.
Chief Allen, RR 382-93.
Chief Allen, RR 398-99.
Chief Allen, RR 402.
Chief Allen, RR 402.
Chief Allen, RR 402.
58
Chief Allen agreed that, had Mr. Saenz become compliant when Officer
Flores unholstered his gun, then Officer Flores' conduct would have never been
called into question.193
When asked if he thought Mr. Saenz was "the aggressor," Chief Allen
deferred to the judgment of Officer Flores, and recounted his belief that a gun
is a lot more noticeable than a badge.194
Q.4.
Ranger Wright was also of the opinion that the accidental shooting was
caused by the impact of Mr. Romero's hand on Officer Flores' gun hand. He also
opined that it was reasonable under the circumstances for Officer Flores to
draw his handgun.195
Q.5.
Jose Flores
Officer Flores acted within policy because his action of drawing his
weapon as a show of force was objectively reasonable in light of the facts and
circumstances confronting him at the time.197
The reasonableness of a
particular use of force must be judged from the perspective of a reasonable
officer on the scene, and not with the 20/20 vision of hindsight.198
The
calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments in circumstances
that are tense, uncertain, and rapidly evolving about the amount of force
that is necessary in a particular situation.199
To be certain, Officer Flores intended to use his weapon only as a
display of force to gain Mr. Saenz's compliance.
The EPPD does not dispute
that this action was reasonable under the circumstances. Chief Allen testified
that, had Mr. Saenz seen Officer Flores' weapon and complied, then Officer
Flores would never have been disciplined. Thus, with respect to each and every
action Officer Flores chose to take, he acted within policy.
The shooting itself was, of course, a "bad shoot," to borrow the EPPD's
phrase used during the hearing.
But Officer Flores did not ever make a
decision to shoot Mr. Saenz. And while Officer Flores accepted responsibility
193 Chief Allen, RR2 54-55.
194 Chief Allen, RR2 55-56.
195 Ranger Wright, RR2 82.
196 Flores, RR2 218-28.
197 See Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872, 104 L. Ed.
2d 443 (U.S. 1989).
198 Id. at 396.
199 Id. at 396-97.
59
for the role he played in this tragic event, it must be acknowledged that not
all of the responsibility can be laid at his feet.
First, the fault of Mr. Saenz must be assessed. Whether he acted with a
clear mind or whether he had no idea what he was doing he must share some of
the blame for what happened to him.
His relentless efforts to wear down
Officer Flores and Mr. Romero, and then to injure them and escape from them,
placed them in a situation that Chief Allen described as "uncontrollable." In
this way, Mr. Saenz placed himself in a situation where a gun needed to be
displayed as a show of force in his presence.
Then his final, assaultive
action against Mr. Romero was a contributing cause to the discharge of Officer
Flores' weapon.
In fact, one could conclude that it constituted "but for"
causation, because Officer Flores' had no intention of discharging his weapon
unless Mr. Saenz successfully fronted his handcuffs and tried to use them as
deadly weapons.
Second, the fault of the EPPD and the City of El Paso must be considered.
Because of their business decision, Officer Flores found himself in an
impossible situation with a civilian guard who had not attended the EPPD
academy.
Although Mr. Romero was trained as a Dona Ana County detention
officer, he did not have that job for long. Moreover, Officer Flores did not
work with him regularly.
Nobody within the EPPD in general, and PHRCC in
particular, trained with the G4S personnel or knew what training they received.
The PHRCC command staff at least had the foresight to devise their own set of
rules for overriding the use of G4S personnel when dealing with individuals
such as Mr. Saenz. Yet that same command staff did not disseminate those rules
to the patrol officers and did not invoke those rules in this situation,
despite the fact that they had every reason to do so. Of course, these rules
should have been in place with EPPD department-wide, but they were not.
It
appears that EPPD officers were required to work with G4S personnel in all
situations, no matter what they were.
Perhaps this is why the PHRCC command
did not disseminate its rules to its officers.
At the hearing, the cross-examination of Mr. Flores was, in a word,
unfair. He was asked questions about the shooting that assumed the shooting to
be intentional.
He was essentially asked to concede that his conduct was
outside of policy.
Mr. Flores does not contend that Mr. Saenz deserved to be shot.
Mr.
Saenz most definitely did not deserve what he got.
And to be clear the
shooting itself should not have occurred. Mr. Flores has never disputed that.
Had Officer Flores intentionally fired upon Mr. Saenz, then his conduct would
have been outside of policy.
But the unique facts of this case dictate a
finding that the conduct of Officer Flores was, in fact, within policy.
It appears that much of the alleged policy violation rests upon the
City's allegation that Officer Flores "reengaged" Mr. Saenz by trying to go
"hands on" with him after he unholstered his gun.
B.
This allegation
The EPPD provided testimony via their expert, Jose Luis Lopez, that
Officer Flores was reaching toward Mr. Saenz for purposes of engaging him by
60
grabbing him, one-handed, with his left hand. Officer Flores is right-handed,
which makes this argument somewhat unbelievable. Nevertheless, the video does
show Officer Flores reaching forward.
Since Officer Flores does not recall making this "reaching-in" motion,
and since Jose Luis Lopez cannot read Officer Flores' mind, the video is the
only evidence of Officer Flores' intent at the time of the incident.
The undersigned has used 11 of the frames from the DPS enhanced video
below. These frames have been altered by placing a red dot on the shoulder of
Mr. Romero in the first image. Then that dot is placed at the same X/Y
coordinates on all of the subsequent 10 photographs, reproduced below:
[Photos omitted]
Officer Flores was not trying to reengage Mr. Saenz at all.
He was
trying to tap Mr. Romero on the shoulder to get him to disengage from Mr.
Saenz. But at the same time Officer Flores was going for Mr. Romero's shoulder,
Mr. Saenz pushed off of the curb and sent Mr. Romero flying backwards. This
happened so quickly, Officer Flores did not and could not have seen it coming.
Unfortunately, it is this final act by Mr. Saenz that set in motion the series
of events that ended his life.
There is further evidence that Officer Flores was not attempting to
reengage Mr. Saenz.
In Figures 10 & 11 above, Officer Flores can be seen
making a "sweeping" motion with his hand, from his right to his left.
His
fingers are fanned out. This is wholly inconsistent with an attempt to reengage
Mr. Saenz by grabbing him. Officer Flores was simply trying to tell Mr. Romero
to get away from Mr. Saenz.
Had Mr. Saenz not been as strong and combative as he was; had Officer
Flores not been laboring under the effects of tachycardia, brought on by Mr.
Saenz's behavior; had Officer Flores been working with a trained EPPD officer
instead of a civilian guard; had Mr. Saenz not demonstrated his ability to
front his cuffs rapidly; and had the circumstances not been tense, uncertain,
and rapidly evolving, then perhaps this effort to tap Mr. Romero on the
shoulder would not have been objectively reasonable.
But under the
circumstances, it was absolutely reasonable to do so.
C.
Failing to Seek Medical Attention after Mr. Saenz Injured his Head
Officer Flores believed that the quickest way to get medical attention
after Mr. Saenz injured his head was to seek that attention from the jail nurse
on the second floor. The nurse's station on the second floor was, in fact, the
closest source of medical care. Officer Flores did not know that Mr. Saenz was
going to struggle the way he did inside the sally port to the jail. He had no
idea that Mr. Saenz was going to go limp. He had no idea that he was going to
have to drag Mr. Saenz to the elevator and into the second floor holding cell.
The EPPD's own witness, Jerome Hinojos, testified that the jail had
discretion whether to accept injured inmates, and that sometimes they did.
The EPPD's maintenance of this charge against Officer Flores borders on
the absurd, which is probably why they presented virtually no evidence to
support it at the arbitration hearing.
61
D.
arbitrator finds that Jose Flores violated policy, Jose Flores requests
reinstatement with the El Paso Police Department, along with that portion of
back pay deemed appropriate.
Jose Flores respectfully requests any and all
other relief to which he may show himself justly entitled.
DISCUSSION
AND
OPINION
In the course of a 30-year career, this Arbitrator has heard the appeals and grievances of
well over a hundred police officers. In that period he has developed a reputation for scrupulous
neutrality that has resulted in his repeated selection, both for individual cases and for membership
on numerous law enforcement arbitration panels in Texas and other states. There is one area,
however, where his record has been so consistent that it almost demonstrates a bias against some
officers. This is in relation to officers who have been proven to have used excessive force.
Whether this is because he witnessed needless police violence first hand growing up in the
turbulent 60s or whether he believes that officers have a sacred duty not to resort to force unless
they are left no reasonable alternative, he has demonstrated little sympathy for police who have
lashed out at citizens in an ill-advised moment of fury.
proclivity were obvious when he upheld a discharge in a case where a helicopter camera crew
captured video of a female Police Officer slapping a handcuffed suspect and again where he
upheld another discharge for a County Deputy who was caught racking a handcuffed prisoner by
a newly activated camera system. With this in mind, he spent the first few minutes of this Hearing
listening to the Citys Advocate and wondering why the Union had agreed to have him hear this
case.
After all, this was a case where an officer shot and killed a handcuffed prisoner in the sally
port area right outside County Jail where there should have been any number of law enforcement
personnel available to help subdue the individual. However, even before the Union Advocate had
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finished making his opening statement, the Arbitrator began to realize that he could not judge this
book by its cover.
Both through the impactful presentation of evidence and testimony at the Hearing as well
as through his extremely persuasive Brief, Counsel for the City confronted the Arbitrator with
analyses and conclusions that he found it impossible to dispute. Most significantly, the Arbitrator
agreed that this was a case about a bad shoot. Officer Flores drew his weapon when he should
not have, in violation of policies pertaining to the use of force continuum. Moreover, through a
series of bad decisions he allowed himself to be put in the position where it became almost
impossible for him to safely transport the prisoner in his charge. After digesting a 20 inch high
stack of transcripts, documentary evidence, photographs, videos and other evidence, it was clear to
the Arbitrator that all but one of the Charges contained in the Chiefs letter of October 28, 2014
were proven in fact and law. However, despite the Arbitrators overwhelming agreement with the
case as presented by the City, there were two aspects of the Chiefs letter that the Arbitrator could
not bring himself to support.
The first was the Charge that Officer Flores had been untruthful in his numerous
statements regarding the events of March 8, 2013.
Arbitrator has heard, numerous officers and civilians have claimed Critical Incident Amnesia to
explain their conflicting and confusing statements to authorities. In many of those cases the
Arbitrator rejected such portrayals as self-serving excuses for dishonest accounts of behavior. In
this case however, the Arbitrator firmly believes that Officer Flores was in a genuine state of
shock after the unimaginable trauma of killing another human being for the very first time. While
the Arbitrator will never understand why Officer Flores didnt choose to view the video before
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giving his first two statements, many of his utterances offered in those two statements seem
emblematic of retrospective accounts of incidents that are clouded by the fog of war.
His statements may have been equivocal and contradictory, but his ultimate account
definitely comported with what appeared in the sally port video. In the Arbitrators opinion,
earlier conflicting accounts resulted from a discrepancy between his initial shock-induced
utterances and his gradual yet incomplete efforts to recall what actually happened. Moreover, as
discussed anon, the Arbitrator also feels that there was an organizational disconnect between the
Union and the City in the immediate wake of this incident that led to a disjointed and ineffective
effort to obtain a thorough and cogent statement from Officer Flores on the first, or even the
second time around. Of course, this had public relations consequences.
While the overall investigation into this incident may have been thorough by the time it
concluded, the Arbitrator tends to agree with the testimony of Texas Ranger Kevin Wright who
had serious reservations about the thoroughness and attention to detail that characterized the first
two statements that were given by the Grievant. Some obvious avenues of interrogation were
clearly left unexplored. Ultimately the Arbitrator found himself unpersuaded that there was any
intent to mislead. Nevertheless, apart from the Arbitrators inability to agree that there had been
deliberate untruthfulness on the part of the Appellant, there was yet a second aspect of the Citys
case with which the Arbitrator could not agree. Namely, the Chief conclusion that Officer Flores
should not be given a second chance.
Despite his propensity to uphold discharges for proven cases of excessive force, this
Arbitrator found himself with uncharacteristic sympathy for the Grievant in this case due to the
raft of mitigating factors that were present. Unfortunately, due to an apparent lack of coordination
between the Union, the City and the District Attorneys Office, Officer Flores actions seem to
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circumstances did not receive adequate attention. In his admirably candid testimony, the Chief
indicated how difficult the media portrayal made it for him to afford the Grievant another chance.
He also admitted that he felt that the Department had let Officer Flores down. The Arbitrator will
now comment on the aspects of this statement that he finds poignantly true.
Systemically, the Department let Officer Flores (and other officers) down when it agreed to
a contract with the private company G4S to assist in the transport of prisoners. Without clear
guidelines or promulgated policies in place, it would seem that Officer Flores was simply one of
the first victims of a contracting out scheme that had not been thoroughly analyzed or thought
through. Indeed, the situation that occurred on March 8, 2013 epitomized this failure.
Officer Flores was assigned to transport a violent and highly dangerous prisoner with only
a 23-year-old, unarmed security guard to assist him. While his contracted off-sider certainly did
his valiant best to assist Officer Flores, the unarmed young man had never been through any police
academy nor was he physically or mentally equipped to deal with the dangerous situation that
confronted him on the day in question. For all intents and purposes, therefore, the Grievant was
pretty much on his own in his effort to transport a powerful and seriously deranged hulk of a man.
The Arbitrator read the Complaint that was lodged by Mr. Saenz mother with great sorrow
and sympathy. While she accepted that her son may have had problems, she bitterly complained
that he was killed like a rabid dog. While tragic, her comment was in many ways quite ironic.
Whether due to his mental instability (or more likely some powerful psychotropic drug) her son
had been transformed into the equivalent of a rabid person. He was a 250 pound professional
bodybuilder who was delusional, violent, unpredictable and in possession of a physique that was a
metaphorical collection of lethal weapons. In the course of his downward spiral on March 8, 2013
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he had used his legs, feet, arms, hands, head and teeth to assault numerous individuals including
the Grievant. In view of everything that happened before he was placed into custody at Pebble
Hills substation, there is no way that Officer Flores commander should have allowed him to leave
the station with nothing more than a young and inexperienced security guard to assist him.
While it is unclear precisely how much Officer Flores knew of Mr. Saenz immediate prior
history before arriving at Pebble Hills, the Arbitrator doubts whether the full extent of the
prisoners dangerousness was communicated to Officer Flores. Undoubtedly, if there had been a
clear policy in place that mandated two or more officers accompany such a dangerous prisoner,
instead of trusting the transport to a single officer and GS4 contractor, this entire incident would
probably never have taken place. In other words, the Arbitrator felt that the Department had let
Officer Flores down by failing to develop a clear and cogent policy surrounding the use of G4S
contractors; then let him down yet again when he was allowed to volunteer for the transport of
such a dangerous person with no assistance from another armed and trained police officer.
In addition to these two examples of how the Department failed Officer Flores, the
Arbitrator also felt that the Grievant was betrayed in a far more obvious way. This time it was not
the El Paso Police Department, but the El Paso County Jail personnel who were to blame.
As the Arbitrator watched the lengthy video that portrayed Officer Flores efforts to
transfer Mr. Saenz to the County Jail, he became increasingly incensed at the lack of cooperation,
consideration, and common sense that epitomized the attitude of the County Jail staff with the
difficulties that the Grievant was having. While 20/20 hindsight suggests that it would have been
smarter for Officer Flores to summon help from his Departmental colleagues when his prisoner
was denied processing at the County Jail, repeated viewings of the video proved that he was given
the bums rush by the nurse and other staff at the booking desk who seemed oblivious or
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uncaring towards a fellow law enforcement professional who was working through a very difficult
situation.
While the medias tendency to oversimplify and sensationalize matters probably resulted in
some degree of public revulsion towards Officer Flores actions in shooting Mr. Saenz, this
Arbitrator believes that if the public had witnessed the shocking ambivalence that was
demonstrated by the staff at the County Jail booking desk just prior to the shooting, there would
have been far greater sympathy for Officer Flores predicament. The Arbitrator can only hope that
there were some disciplinary or corrective consequences for the individuals involved in that
feckless decision as he feels that they were almost as responsible for Mr. Saenz death as Officer
Flores was.
In the final analysis, there were a couple of key opportunities for the Grievant to seek help
before things got out of hand while he was on his way out of the sally port. Ultimately, he should
have never put himself in the position where he had to draw his gun in an effort to intimidate Mr.
Saenz. He should have never put himself in the position where he had to breach the Use of Force
policy in a last desperate attempt to control the situation. But most critically, he should have never
drawn his weapon in such close proximity to Mr. Saenz, knowing intuitively and through training
that an unexpected and violent movement could cause his gun to accidentally discharge. (After
viewing the sally port video nearly 50 times the Arbitrator reached the firm conclusion that this is
precisely what happened.) In summary, despite the fact he was let down by both the Department
and the County Jail staff, he still bears the brunt of the responsibility for the accidental death of
Mr. Saenz.
In the Arbitrators view, Officer Flores knows this. He has undoubtedly been tortured by
the experience for several years now. He definitely impressed the Arbitrator as someone who has
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carried this experience with him every day since it happened. The Arbitrator feels the Appellant
proved himself to be an exemplary Officer every day of the week for many years before this
incident happened. By contrast, he only showed bad judgement in a single split second of
physical exhaustion and panic.
For these reasons, the Hearing Examiner will serve his customary role of scapegoat and
reviled decider of the controversial, by choosing on this occasion to give an officer a second
chance. The fact that the Grievant placed the Chief in a position where it was impossible for him
to extend the same clemency, featured heavily in the Arbitrators decision not to award any
backpay in this case. The fact that Officer Flores indicated he was willing to forgo any back pay
made this aspect of the ruling even easier.
As it will be up to Officer Flores to demonstrate to his commanders, including the Chief
that this Arbitrator has made the right decision, his return to work will come with strings
attached. Not only will the Grievant have to undertake a full fitness for duty exam if the Chief
demands it, but he shall also be required to undertake whatever additional training that the Chief
deems appropriate; and will only return to patrol duty when the Chief determines he is prepared to
do so.
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AWARD
The Grievance is SUSTAINED IN PART. Aside from the Untruthfulness Charge, all of
the Charges contained in the Chiefs Notice of Termination dated October 28, 2012 were found to
be proven in fact and law. Nevertheless, under the immense weight of mitigating circumstances in
this case, the Arbitrator rules that Officer Flores shall be returned to the El Paso Police
Department with no loss of seniority, but with no back pay, effective one week after the date of
this Award. His reinstatement to patrol duty, however, is contingent upon him passing any routine
fitness for duty exam as well as his willingness to complete any training deemed appropriate by
the Chief. The Arbitrator will retain jurisdiction for a period of 90 days from the date of this
Award to resolve any disputes that may arise out of the implementation of the remedy in this case.
August 8, 2016
DATE
MARK R. SHERMAN
HEARING EXAMINER
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