IN RE: THE ARBITRATION BETWEEN:

FRATERNAL ORDER OF POLICE,

WALTER E. HEADLEY, JR., MIAMI FMCS No.: 13-55857-3
LODGE NO. 20, ON BEHALF OF
POLICE OFFICER REYNALDO GOYOS, Grievance No.13-01
FOP/Goyos,
and,

CITY OF MIAMI, FLORIDA,
DEPARTMENT OF POLICE,
City/Employer.
_____________________________________/
OPINION AND AWARD
Arbitrator: Martin A. Soll
For FOP/Goyos: Mr. Eugene G. Gibbons, Esq.
Buschel Gibbons, P.A.
100 S.E. Third Avenue, Suite 1300
Fort Lauderdale, Florida 33394
For City/Employer: Ms. Victoria Mendez, City Attorney
By: Ms. Iliana Forte, Esq., Assistant City Attorney
By: Ms. Diana Vizcaino, Esq., Assistant City Attorney
444 S.W. 2
nd
Avenue, Suite 945
Miami, Florida 33130-1910
Witnesses called by City:
Detective Desreen Gayle; Detective Odney Belfort; Detective Alejandro
Gutierrez; Detective Joaquin Perez; Deputy Chief Medical Examiner Dr.
Emma Lew; Police Officer Walter Byars; Assistant Chief of Police Rodolfo
Llanes; Assistant Chief of Police Roy Brown; Major Raul Herbello; Chief
of Police Manuel Orosa
Witnesses called by FOP/Goyos:
Mr. Jose Arrojo, Esq.; Retired Chief of Police Miguel Exposito; Lieutenant
Richard Gentry; Sergeant Altar Williams; Grievant/Detective Reynaldo
Goyos
Applicable Collective Bargaining Agreement (CBA):
Agreement Between City of Miami, and Fraternal Order of Police, Walter E.
Headley, Jr., Miami Lodge No. 20, dated October 1, 2012, through September
30, 2014.
JURISDICTION & BACKGROUND
In this matter Walter E. Headley, Jr., Miami Lodge 20, Fraternal Order of Police (FOP),
on behalf of Mr. Reynaldo Goyos protests and grieves Goyos January 31, 2013-discharge as a City
of Miami (City), Department of Police (Department), detective/police officer. Goyos has been
employed by Department since May 31, 2005. Since February 2010, and at all times relevant to this
matter, Goyos was assigned to Departments Gang Unit.
As more specifically discussed below, Citys termination of Goyos employment results from
his approximate 11:05 p.m., Thursday, February 10, 2011-shooting/discharge of his 40 caliber Glock
firearm which killed Mr. Travis McNeil (DOB August 6, 1982), and twice wounded McNeils
cousin, Mr. Kareem Williams (DOB May 4, 1980). The shooting took place at the intersection of
North Miami Avenue and 75
th
Street in Miami, while both McNeil and Williams were sitting in the
front seat of McNeils burgundy Kia Sorrento SUV.
The record, in short, shows that just minutes prior to the shooting, the burgundy Kia (being
driven by McNeil, with Williams in the front passenger seat), was observed by undercover police
officers driving out of the parking lot of the Take One Lounge (located at 333 N.E. 79
th
Street in
Miami) at a high rate of speed going through a red light and weaving, and then chased and eventually
stopped/boxed in by three police cars manned by Goyos and other Miami and City of Hialeah police
officers, and Department of Homeland Security Investigations (HSI) special agents. Each of the
police officers and agents which stopped the Kia were part of a joint federal and local police task
force called Operation Southern Tempest. On the evening of February 10, 2011, the task force was
targeting local gang members believed to frequent the Take One Lounge.
City contends, argues and insists that its discharge of Goyos was for just or proper cause on
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the grounds that his shooting of McNeil and Williams was an unjustified use of deadly force which
patently violated Departments Deadly Force Policy and eight other below quoted City and
Department rules and regulations. Thus, it requests the undersigned deny the instant grievance.
Goyos, on the other hand, vehemently denies Citys charges. Thus, he requests the
undersigned award the instant grievance, and further order his return to his former detective/police
officer position with all lost back pay and benefits.
The grievance/arbitration procedures set forth in the parties Collective Bargaining
Agreement (CBA) failed to bring about a satisfactory settlement of the grievance. Accordingly,
it was submitted to the undersigned, as the agreed neutral arbitrator, for final resolution. Transcribed
arbitration hearings were held at Citys downtown Miami offices on November 18, 19, 20, and
December 9, 2013, wherein, the parties were accorded the full opportunity to call, examine and
cross-examine witnesses and submit all evidence and argument in support of their opposing
positions. Written closing briefs were received by the undersigned on or about February 3, 2014.
1
APPLICABLE CBA LANGUAGE
Article 4.1 - Management Rights
The rights of the City, through its management officials, shall include, but not be limited to,
the right to . . . suspend, demote, discharge, or take other disciplinary action against
bargaining unit members for proper cause; . . . and to establish rules, regulations and rules
of conduct.
APPLICABLE FLORIDA CRIMINAL STATUTES
Florida Statutes Sections 776.012 and 776.032:
776.012 Use of Force in Defense of Person. A person is justified in using force,
except deadly force, against another when and to the extent that the person
1
Additional time for the undersigned to complete this Opinion and Award was mutually
agreed to by the parties.
3
reasonably believes that such conduct is necessary to defend himself or herself or
another against the others imminent use of unlawful force. However, a person is
justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent
imminent death or great bodily harm to himself or herself or another
or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.
776.032 Immunity from Criminal Prosecution and Civil Action for Justifiable Use
of Force.
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s.
776.031 is justified in using such force and is immune from criminal
prosecution and civil action for the use of such force, unless the
person against whom force was used is a law enforcement officer, as
defined in s. 943.10(14), who was acting in the performance of his or
her official duties and the officer identified himself or herself in
accordance with any applicable law or the person using force knew
or reasonably should have known that the person was a law
enforcement officer. As used in this subsection, the term criminal
prosecution includes arresting, detaining in custody, and charging or
prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for
investigating the use of force as described in subsection (1), but the
agency may not arrest the person for using force unless it determines
that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorneys fees, court costs,
compensation for loss of income, and all expenses incurred by the
defendant in defense of any civil action brought by a plaintiff if the
court finds that the defendant is immune from prosecution as
provided in subsection (1).
AGREED ISSUES
2
Whether or not City had just or proper cause for terminating the employment of Grievant/Police
Officer Reynaldo Goyos? And, if not, what should the remedy be?
2
While not determinative of the agreed issues in this matter, the undersigned takes
notice that the Office of the Miami-Dade County State Attorney (MDCSA) investigated
Goyos February 10, 2011-shooting, and on June 5, 2012 (as stated in MDCSAs Police Shooting
Closeout Memorandum (Closeout Memo) (Joint Exhibit #5), found his actions a justifiable
use of deadly force under the above quoted Sections 776.012 and 776.032 of Floridas Criminal
Statutes.
4
SUMMARY OF CITYS GROUNDS AND REASONS FOR
DISCHARGING GOYOS
Citys specific grounds and reasons for terminating Goyos employment are recited in
Departments below stated December 5, 2012-Reprimand (a/k/a disciplinary charging letter) #13-009
(Reprimand #13-009) (Joint Exhibit #3). In relevant part, it states and concludes:
[Page 1] On December 5, 2012, The City of Miami Firearms Review Board
3
convened and concluded that Officer Reynaldo Goyos discharge of his City of
Miami Police Department issued Glock firearm on February 10, 2011, under I.A.
case number 11-035, was unjustified. The Firearms Review Board ruled that when
Officer Goyos discharged his firearm, nor he or another person present was in
imminent danger of death or serious physical injury and therefore his discharge was
in violation of the [Departments] Deadly Force Policy.
On February 10, 2011, at approximately 2300 hours [11:00 p.m.], Officer Reynaldo
Goyos was the front passenger in an unmarked Chevrolet Suburban with interior
police emergency lights. The Suburban was being driven by a special agent of the
U.S. Department of Homeland Security Investigations (HSI) [i.e., Special Agent
Timothy Scott]. Officer Goyos and the two other law enforcement officers in the
Suburban [i.e., the driver, Agent Scott and Special Agent Kevin Deslauriers who
was sitting in the back seat], were participating in multi-day sweeps and arrests as
part of Operation Southern Tempest. On this particular evening, law enforcement
officers from HSI, The U.S. Bureau of Alcohol, Tobacco, Firearms & Explosives
(ATF), the Hialeah Police Department, and the City of Miami Police Department's
Gang Unit, were targeting gang members believed to frequent the Take One
Lounge located at 333 N.E. 79
th
Street [in Miami].
* * *
[Page 2] During the course of the evening detail, undercover [City of Miami Gang
Unit] surveillance officers positioned within the parking lot of the Take One Lounge
observed Mr. Travis McNeil [DOB-August 6, 1982], and Mr. Kareem Williams [DOB-
May 4, 1980], exit the Take One Lounge and walk over to a burgundy Kia Sorrento
[SUV] that was parked on a side street. Mr. Williams was physically directed out of
the Take One Lounge by security personnel. Video surveillance revealed that Mr.
McNeil and Mr. Williams appeared to be intoxicated.
Upon observing Mr. McNeil and Williams exit the lounge, an undercover surveillance
officer positioned within the parking lot [i.e., City of Miami Gang Unit Detective
Desreen Gayle], alerted what she observed and [her] concern [that] both males [i.e.,
both McNeil and Williams] might return to the lounge, attempt to re-enter, and
3
The Firearms Review Board was comprised of Assistant Chief of Police Rodolfo
Llanes, Assistant Chief of Police Roy Brown, Assistant Chief of Police Ricardo Roque, Major
Raul Herbello, and Mr. George Wysong, III, Esq.
5
create a disturbance. It was transmitted over the police radio to the field units that
the two men had entered a burgundy Kia (Sorrento) sport utility vehicle parked on
a side street. Officer Goyos responded that he had the Sorrento in sight, and was
pursuing it. Ultimately, after officers reported observing an erratic driving pattern,
the Kia Sorrento driven by Mr. McNeil and occupied in the front passenger seat by
Mr. Williams was stopped by three undercover police vehicles at the intersection of
N. Miami Avenue and N.E. 75
th
Street [in Miami].
During the course of the traffic stop, Detective Goyos approached the driver's side
of the Sorrento, and was heard to command the driver, Mr. McNeil, to show him his
hands and [Goyos was] further heard to utter don't do it. Thereafter, Detective
Goyos discharged his firearm three times, striking Mr. McNeil once, and fatally
wounding him. Mr. Williams was struck twice, and survived his injuries. [A] [s]earch
of the [Kia] revealed two cellular phones on the drivers side floor board of the
vehicle, but no weapons located in the vehicle.
The aforementioned [firearm] discharge was presented to the Firearms Review
Board which ruled that the [firearm] discharge was in violation of the Deadly Force
Policy, because nor Officer Goyos, or another person present, was in imminent
danger of death or serious physical injury when the discharge occurred. They found
that the evidence was not consistent with Officer Goyos [November 14, 2012-
Garrity] statement because Mr. McNeil was struck in the rear left shoulder blade
area, inconsistent with Officer Goyos [November 14, 2012-Garrity] statement that
he saw a black object on Mr. McNeil. The Firearms Review Board also ruled that
Officer Goyos should have never approached the vehicle, but instead should have
retreated and followed all training protocols regarding felony stops involving armed
subjects or vehicles.
Therefore, Officer Reynaldo Goyos is found to be in violation of the following City of Miami
Police Departmental Orders:
Departmental Order 6, Chapter 21, Sections;
21.1.2 Deadly Force:
The most serious act in which a police officer can engage is the use of
deadly force. The authority to carry and use firearms in the course of public
service is an enormous responsibility. Respect for human life requires that,
in all cases, deadly force be used as a last resort, and then only to protect an
officer or another person from imminent danger of death or serious physical
injury. Officers should use only the minimal amount of force necessary to
protect human life. Where feasible, and consistent with personal safety,
some warning, such as POLICE-DONT MOVE, should be given. If
appropriate, officers should employ non-lethal alternatives prior to utilizing
deadly force. Deadly force is never justified in the defense of property. Above
all, the safety of the public and officers must be the overriding concern
whenever the use of deadly force is considered. Therefore, it is the policy of
the Miami Police Department that officers are prohibited from using deadly
force against any person, including fleeing felons, except as necessary in
self-defense or the defense of
[page 3]
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another person when those officers have reasonable belief that they or
another person are in imminent danger of death or serious physical injury.
When the decision is made to use deadly force, officers must cease its
application when they no longer have a reasonable belief that they or another
person are in imminent danger of death or serious physical injury.
21.4.7 Procedures for the Use of Deadly Force:
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1. Police Officers are prohibited from using deadly force against another
person unless they have an objectively reasonable belief that they
must protect themselves or another person present from imminent
danger of death or serious physical injury.
2. Police Officers are prohibited from discharging their firearms when
doing so will unnecessarily endanger innocent persons.
3. Police Officers are prohibited from discharging their firearms in the
defense of property.
4. Police Officers are prohibited from discharging their firearms to
subdue a fleeing felon who presents no imminent danger of death or
serious physical injury to them or to another person present.
5. Police Officers are prohibited from firing warning shots.
6. Police Officers are prohibited from discharging their firearms to
summon assistance except in emergency situations when someones
personal safety is endangered and no other reasonable means is
available.
7. Police Officers are prohibited from discharging their firearms at or
from a moving vehicle unless deadly force is being used against the
police officer or another person present, by means other than the
moving vehicle.
8. Police Officers are prohibited from discharging their firearms at a dog
or another animal except to protect themselves or another person
from imminent danger of death or serious physical injury and there is
no other reasonable means to eliminate the threat.
9. Police Officers are prohibited from discharging their firearms when
the circumstances are clearly obvious to the officer that he/she has
4
The undersigned also takes notice of the below quoted Departmental Order 6, Chapter
21, Section 21.4.1.16, and particularly the retreat language stated in its fourth sentence.
In properly determining the appropriate response to a subjects resistance, several
factors must be evaluated by an officer. For instance, an unarmed small framed,
female, juvenile subject may be displaying Level 5 resistance, but would probably
only require a Level 3 response by the average officer. On the other hand, a single
officer faced with a very large professional wrestler or football player may very well
find that his/her response to even mild resistance must be escalated to a relatively
high point on the matrix. It must be remembered that by law, an officer need not
retreat in his/her efforts to lawfully control a subject, but may utilize the amount of
force necessary to accomplish his/her task. This is not to say that a tactical retreat
in the face of overwhelming odds may not be a wise choice. . .
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lost visual sight of the subject or has no identifiable imminent threat.
10. Police Officers shall not unreasonably place themselves in a position
where a threat of imminent danger of death or serious physical injury
is created when attempting to approach, pursue, and/or stop a motor
vehicle or armed subject. Police Officers will follow all training
protocols regarding felony stops involving armed subjects or
vehicles.
[page 4]
11. Police Officers are reminded of the potential danger while
encountering emotionally disturbed individuals. For the protection of
police and such persons, officers will be guided by Departmental
Order 11, Chapter 11.
21.4.20 Unauthorized Discharge of Firearms Penalty Schedule:
The following is the recommended minimum discipline schedule for
a first offense, unauthorized discharge of firearms by department
personnel. A second offense will automatically double the
recommended discipline in the category it falls, except Subsection
21.4.20.6 where dismissal will be recommended.
21.4.20.6 Unreasonable Action - Careless Someone Injured: DISMISSAL.
Departmental Order 1, Chapter 11, Sections:
11.6.28.3 Members and Civilian Employees to Conform:
Members and civilian employees shall be required to conform to and
abide by the Rules and Regulations, Departmental Orders and other
directives of the Police Department, the Ordinances of the City of
Miami and the County of Miami- Dade, and the laws of the State of
Florida and the United States of America.
CIVIL SERVICE RULE 14, Section 14.2 - Grounds for Dismissal, Suspension and
Demotion.
The following are declared to constitute a breach of duty and to be grounds
for dismissal or suspension from the classified service or grounds for
demotion, though charges may be based upon causes other than those
enumerated: viz, that any employee who has been guilty of conduct
unbecoming any employee of the City of Miami, who:
* * *
(d) Has willfully violated any of the provisions of the Civil Service
law or rules of the Board; or
(e) Has violated any lawful and reasonable official regulation or
order, or failed to obey any lawful or reasonable direction
made and given by his/her superior where such violation or
failure to obey amounts to:
* * *
(2) A serious breach of proper discipline; or
(3) resulted, or reasonably might be expected to result, in
loss or injury to the City or the public or to the
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prisoners or wards of the City; . . .
* * *
(k) Is incompetent, negligent, or ineffective in the performance of
the duties of the position held; or . . .
* * *
The City of Miami Firearms Review Board concluded that Officer Goyos discharge
violated the Deadly Force Policy and/or the Miami Police Departmental Orders and
City of Miami Civil Service Rules and Regulations. As a consequence, Officer Goyos
is to receive this written reprimand, and his employment with the City of Miami Police
be Terminated in accordance with the Unauthorized Discharge of Firearms Penally
Schedule.
BURDEN OF PROOF
This being a disciplinary matter, for City to sustain its discharge of Goyos, it must prove its
case by at least the preponderance (i.e., more than 50%) of the evidence. Goyos specific actions or
conduct, and/or inactions stated in Reprimand 13-009 which City contends violated its Deadly Force
Policy and other rules and regulations are listed below as Charges One, Two, Three, and Four.
Charge One:
That Officer Reynaldo Goyos violated Departments Deadly Force Policy on the grounds:
That the evidence of the case was not consistent with Officer Goyos [November 14, 2012-
Garrity
5
] statement because McNeil was struck in the rear left shoulder blade area.
Charge Two:
That Officer Reynaldo Goyos violated Departments Deadly Force Policy on the grounds:
That when Goyos discharged his firearm, nor he or another person present was in imminent
danger of death or serious physical injury.
Charge Three:
That Officer Reynaldo Goyos violated Departments Deadly Force Policy on the grounds:
That the evidence of the case was inconsistent with Goyos [November 14, 2012-Garrity]
statement that he saw a black object on Mr. McNeil. And,
5
The undersigned observes that the only statement given by Goyos in this matter was
his sworn Garrity Statement taken by IA Investigator/Sergeant Jesus Ibalmea on November 14,
2012, submitted as Joint Exhibit #10.
9
Charge Four:
That Officer Reynaldo Goyos violated Departments Deadly Force Policy on the grounds:
That Goyos should have never approached the Kia, but instead should have retreated and
followed all training protocols regarding felony stops involving armed subjects or vehicles.
SUMMARY OF THE RELEVANT EVIDENCE
Goyos discharge directly results from his charged unjustified use of deadly force by shooting
and killing Mr. Travis McNeil, and shooting and wounding Mr. Kareem Williams at or about 11:05
p.m. on Thursday, February 10, 2011, just after the burgundy Kia driven by McNeil, with Williams
in its passenger seat, was chased and then stopped by an unmarked Chevrolet Suburban police car
driven by HSI Agent Timothy Scott and two other unmarked police cars. The record is undisputed
that once the Kia had stopped, Goyos immediately exited the right/front passenger seat of the
Suburban and then (as stated in paragraph 3, on page 2 of Reprimand 13-009/Joint Exhibit #3), he:
[a]pproached the driver's side of the Sorrento, and was heard to command the driver,
Mr. McNeil, to show him his hands and [Goyos was] further heard to utter don't do
it. Thereafter, Detective Goyos discharged his firearm three times, striking Mr.
McNeil once, and fatally wounding him. Mr. Williams was struck twice, and survived
his injuries. [A] [s]earch of the [Kia] revealed two cellular phones on the drivers side
floor board of the vehicle, but no weapons located in the vehicle.
While not stated in the Reprimand, the record also shows and, thus, the undersigned further
finds as follows:
1. That the shooting was witnessed by, among others, HSI Special gent Scott (who drove
the unmarked Suburban police car which initially stopped the Kia), HSI Special Agent
Kevin Deslauriers (the back seat passenger in the Suburban), HSI Special Agent
Benjamin Fargo (the driver of an unmarked black Dodge Durango police car which
participated in stopping the Kia), Miami Gang Unit Detective Alejandro Gutierrez (the
back seat passenger in the Dodge Durango), and Miami Gang Unit Detective Joaquin
Perez (the driver of an unmarked Ford Taurus police car which also participated in
stopping the Kia). (Joint Exhibit #5, pages 8-14).
2. That when both the Kia and the Suburban stopped, the Kia was facing westbound with
its divers side window open; whereas, the Suburban was south and west of the Kia
facing west, and at its closest point, the Suburbans right/front passenger door from
10
which Goyos exited was three feet from the front drivers side quarter panel of the
Kia. (Joint Exhibit #5, page 3).
3. That from the start of the incident (i.e., when Goyos exited the right/front passenger
seat of the Suburban at or about 11:05 p.m.), to its conclusion (i.e., when Goyos fired
his weapon three times at McNeil), encompassed no more than seconds. (Joint Exhibit
#5, page 9; Tr. pp. 1194, 1238).
4. That when Goyos discharged his weapon he was approximately one to no more than
two feet from the open widow of the Kia and could see both McNeils and Williams
laps and hands. (Tr. pp. 1205-1206, 1210-1211, 1218.)
5. That Department has no retreat policy, nor does it teach its officers to retreat,
however, the officer may tactically move for cover. (Tr. p. 394).
6. That the fourth sentence of Departments Order 6, Chapter 21, Section 21.4.1.16 states
and advises its officers, It must be remembered that by law, an officer need not
retreat in his/her efforts to lawfully control a subject, but may utilize the amount of
force necessary to accomplish his/her task. (Joint Exhibit #9, page 4).
7. That two cellular telephones were recovered from the Kias drivers side floor, one
was a black Metro PCS Samsung, and the other was a white Sprint HT cell phone.
(Joint Exhibit #5, page 4).
8. That DNA subsequently taken from the black Metro PCS Samsung phone recovered
from the Kias drivers side floor matched McNeils DNA. (Joint Exhibit #5, pages
4-5,14).
9. That unbeknownst to Goyos at the time of the shooting, McNeil and Williams had no
firearms or weapons in their possession. (Joint Exhibit #5, page 4).
10. That Goyos rapidly fired three times at McNeil, however, it remains undetermined
which of the three bullets hit and killed McNeil, and which bullets hit and wounded
Williams. (Tr. pp. 337-338).
11. That McNeil was not shot in the back or through his shoulder blade. The one bullet
which struck and killed McNeil entered the left side of his upper torso directly under
his left axilla/armpit, and then traveled downward through his left lung, through his
heart and then to his right lung. (Tr. pp. 331, 379, 1214, 1220, 1222-1223).
12. That while the Firearms Review Board (FRB) ruled that Goyos discharge of his
weapon on February 10, 2010, violated Departments Deadly Force Policy:
A. Page 7 of the FRBs report submitted as Joint Exhibit #13, states:
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The [HSI] [A]gent [Scott] that conducted the traffic stop [of the Kia] in
front of the suspects [i.e., the Kias driver/McNeils left/front] door
didnt give Officer Goyos options to take cover, etc.
That Officer Goyos reasonably believed he saw what appeared to be
a weapon (black object).
That [the] Subject [i.e., the Kias driver McNeil] apparently reached
down causing Goyos to make a calculated decision. This decision
caused the passenger Williams to be shot while his hands were in his
lap and fatally wounding McNeil. And,
B. Page 5 of the FRBs January 28, 2013-report submitted as Joint Exhibit #5,
similarly states:
Concerns by the Firearms Review Board:
The Firearms Review Board had numerous concerns which included the
following:
1) Officer Goyos was not the driver of the unmarked vehicle driven in
the operation. (Poor planning as he was officer most familiar with
area).
2) Officer Goyos did not conduct the traffic stop.
3) (Miami Police Department doesnt teach how other agencies (agents)
conduct their traffic stops.) Poorly executed felony stop.
4) Although our deadly force policy holds officers accountable, the agent
didnt give Officer Goyos options to take cover, etc. where he stopped
the unmarked vehicle.
5) Agent stopped vehicle while conducting a felony stop in front of
suspects vehicle placing Officer Goyos in a frantically poor position.
6) Although Officer Goyos reasonably believed he saw what appeared
to be a back object, Officer Goyos made statements, Dont move,
etc. Subject apparently reached down causing Officer Goyos to
make a calculated decision.
7) Evidence was not consistent with Officer Goyos statement:
a. McNeil was struck in the rear left shoulder blade area.
b. Inconsistent with Goyos statement that he saw a black
object.
c. There was a black object on floorboard (cell phone).
8) Officer Goyos discharged three rounds. Two (2) striking the
passenger Williams and one (1) fatally wounding McNeil.
That following the shooting, McNeils blood alcohol level was tested and found to be
.19, which is over twice the legal limit for driving in Florida. (Joint Exhibit #5, pages
6, 17; Tr. pp. 365-366).
The undersigned also finds the above referenced Miami-Dade State Attorneys June 5, 2012-
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Closeout Memo accurately summarizes the overall relevant facts of the case, and particularly the
eyewitness statements of HSI Agents Scott, Deslauriers and Fargo. As relevant to this matter, the
Closeout Memo stated as follows:
Summary of the Events During the week of February 6, 2011, Prior to Approximately
11:05 p.m. on Thursday, February 10, 2011
During the week of February 6, 2011, City of Miami and other local law enforcement officers
were participating in a Homeland Security Investigations (HSI), U.S. Bureau of Alcohol, Tobacco,
Firearms & Explosives (ATF) and local law enforcement task force called Operation Southern
Tempest aimed at removing illegal handguns and other weapons from Miami street gangs. On the
night at issue/February 10, 2011, numerous law enforcement officers from HSI, ATF, City of Hialeah
and City of Miamis Gang Unit (including Goyos and, among others, Detectives Desreen Gayle,
Odney Belfort, Alejandro Gutierrez, and Joaquin Perez) were specifically targeting local gang
members believed to frequent the Take One Lounge located at 333 N.E. 79
th
Street in Miami.
During the course of the evening on February 10, Detectives Gayle and Belfort while
UC/undercover, were parked in unmarked City police cars in and about the Take One Lounges
entrance while other unmarked police cars driven by, among others, Miami Detective Perez and other
HSI federal officers patrolled up and down 79
th
Street near the lounge. Detective Gayle and Belforts
main assignment was to observe any suspicious behavior by lounge patrons, and to immediately
report the same by radio to the unmarked police cars who would then stop/takedown the suspicious
individuals.
Staring at approximately 10:00 p.m. on February 10, 2011, Goyos was in the front passenger
seat operating the police radio in an unmarked dark blue Chevrolet Suburban police car driven by HSI
Agent Timothy Scott, with HSI Agent Kevin Deslauriers in the vehicles back seat. At approximately
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10:50 to 10:59 p.m., Detective Gayle radioed to the unmarked police vehicles requesting that a
burgundy Kia Sorrento be stopped. She advised that two then unidentified intoxicated black males
had been physically removed/pushed out of the lounge by its security personnel, that both staggered
to a parked four door burgundy Kia Sorrento SUV, and were then driving out of the lounges parking
lot at a high rate of speed west on 79
th
Street.
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A short time later, Goyos responded by radio advising they had the burgundy Kia in sight, and
were pursuing it. The record then shows that the unmarked Ford Taurus police car driven by Miami
Gang Unit Detective Perez joined the pursuit directly behind Goyos vehicle followed by the
unmarked Dodge Durango police car driven by HSI Agent Fargo.
Summary of the Events Just after 11:04 p.m. on February 10, 2011
1. HSI Agents Timothy Scott and Kevin Deslauriers Eyewitness Observations
Agent Scott recalled that he initially spotted the burgundy Kia traveling at a high rate of speed
swerving slightly onto oncoming lanes of traffic. He also observed the Kia drive through a red light
and later drive onto a driveway kicking up dirt.
Agent Scott followed the Kia until two other unmarked police cars were in position to assist
in stopping the Kia. Thereupon, he activated his emergency red and blue lights and overtook the Kia
as it approached the intersection of North Miami Avenue and 75
th
Street. Scott then pulled in front
of the Kia causing it to stop.
Detective Goyos was the first to exit the Suburban through the right/front passengers door
while Scott exited through the left/drivers door followed by Agent Deslauriers. As Scott ran around
6
At arbitration, Detective Gayle stated that she requested the Kia be stopped since she
was concerned the then two unknown males would later come back and shoot up the club. (Tr.
p. 53).
14
the back of the Suburban on the drivers side, he heard Goyos identify himself as a police officer and
order the Kias then unknown driver (McNeil) to show him his hands several times followed by three
gunshots. Scott estimated that approximately one and a half to two seconds elapsed between Detective
Goyos commands and the gunshots.
At the time of the Kias traffic stop, Agent Deslauriers exited the rear left side door of the
Suburban, heard Goyos instruct the driver of Kia to show him his hands three to four times, and, as
the agent walked around the rear of the Suburban, he heard several gunshots.
Agent Deslauriers also described the Kias driving pattern as erratic and noted that just prior
to stopping the Kia, he witnessed it drive off the side of the road onto the swail and fail to stop at a
red light.
Deslauriers recalled that the traffic stop of the Kia was initiated as it was traveling westbound
approaching the intersection of North Miami Avenue and 75
th
Street, and that the Kia began to slow
down as the police cars activated their emergency lights. The Suburban then overtook the Kia on the
Kias left/driver side which caused it to stop.
7
Deslauriers saw Detective Goyos exit the Suburbans right/front passengers door with his
weapon in hand and immediately instruct the Kias driver to show him his hands. Deslauriers then
heard Goyos repeat his commands several times prior to hearing gunshots.
2. HSI Special Agent Benjamin Fargos Observations
On the night of February 10, 2011, HSI Agents Fargo and Geoffrey Goodwin, and City of
7
As noted above, the record shows that when both the Suburban and the Kia had finally
stopped the actual distance between the right/front door of the Suburban driven by HSI Agent
Scott, and the left/front drivers side quarter of the Kia driven by McNeil was only three feet
apart.
15
Miami Gang Unit Detective Alejandro Gutierrez were patrolling on 79
th
street in an unmarked black
Dodge Durango police car. Fargo was driving, Goodwin was in the front passenger seat, and Gutierrez
in the back seat.
Agent Fargo spotted the Kia traveling westbound at a high rate of speed in the area of 79
th

Street and 2
nd
Avenue being followed by the unmarked Chevy Suburban driven by Agent Scott. Fargo
estimated the driver of the Kia was driving approximately twenty to thirty miles an hour over the
posted speed limit. He described the Kias driving pattern as absolutely erratic and noted that the
driver was weaving onto the shoulder of the road several times and was unable to maintain control
of the vehicle within a single lane of travel.
Agent Fargo recalled that as the Kia approached a red light at the intersection of North Miami
Avenue and 75
th
Street, the Suburban accelerated past the Kias left/drivers side and cut off its
forward movement. Fargo then stopped his vehicle approximately half a car length behind the Kia,
exited his vehicle and then saw and heard Goyos yelling at the Kias driver to let me see your
hands, show me your hands. Fargo also noted that Goyos tone and pitch increased with each
series of commands and that Goyos seemed distressed.
Agent Fargo further recalled he was standing near the rear of the Kia on its left/drivers side
when he heard someone say dont do it, and then saw Goyos, from a high-ready position, fire three
to four times in rapid succession into the Kia from approximately two feet away from the Kias
drivers door.
SUMMARY OF DETECTIVE GOYOS TESTIMONY
Goyos denies that his February 10-actions violated Departments Deadly Force Policy, nor
any other City or Department rule, regulation or order. In his November 14, 2012-sworn Garrity
16
Statement before IA Investigator/Sergeant Jesus Ibalmea (Joint Exhibit #10), and repeated in his
December 9, 2013-testimony here, Goyos explained the facts and circumstances, and, as he contends
and insists, the lawful and justified reasons he discharged his weapon on February 10, 2011, as
follows:
[W]hen I got out of the [Suburban], I got out with my weapon drawn, I
acquired the targets. There was two black males in the [Kia]. I approached the [Kia]
at a low ready stance, giving loud verbal commands, Show me your hands. Show
me your hands.
At that time, I looked at the driver. He was staring right at me. He looked like
he wasn't paying attention, like hes very incoherent, [he] was disobeying my -- my
commands.
I also observed the passenger was wearing a white T-shirt. He has -- I saw
him looking, also, at me. His hands were both -- his hands were on his -- on his lap,
both hands, and the other -- and the driver, who was wearing the black shirt with the
cargo shorts, his hands were both also in his lap.
When I approached the [Kia], I got closer. I observed [the driver] was just --
started staring at me. I continued to give him loud verbal commands, Show me your
hands. Show me your hands.
At that time, I had a feeling -- I -- you know, I was pretty much -- I know this
is not going well, and I was in fear, cause he [the driver] wasn't listening to what I
was saying. So I believed he [the driver of the Kia] was up to something.
At that time, when he -- he [the driver] made a sudden movement to -- he dug
down, and he reached towards his waistband pocket area. At that time, I said, Don't
do it. [I] [g]ave him a loud verbal command, Don't do it, and at that time, I saw a
black object coming up, and thats when -- from his right side of his leg, and thats
when I -- I was in fear for my life, in fear for my partner's life, and thats when I fired
three shots at the driver, and when he [the driver] -- when -- you know, when he --
when he when I shot, those three shots were in his direction, he kind of laid back in
the car.
The driver -- the passenger -- like I said, I dont know if I hit him [the
passenger] or not, but I -- I know I was trying to neutralize the -- the driver, 'cause
he [the driver] was the one that was presenting the -- you know, the harm at that
time, which [the driver] was not listening and reaching into his waistband.
And then when I saw the black object, thats when I -- I reacted and I was --
you know, my training kicked in. You know, I might -- I was -- you know, I had the
target acquired. I was -- I was -- like I said, I was in fear for my life, cause I believed
I saw a firearm coming out of there, which was that black object, and I fired the three
shots. (Joint Exhibit #10, pp. 9-11).
* * *
Q. (By IA Investigator/Sergeant Jesus Ibalmea)
From the vehicle [i.e., the Suburban] positioning, if at some point there was
a -- you needed to seek cover, did you have the capabilities, based on the
way the position was - the vehicle [i.e., the Suburban] was positioned, to be
able to seek cover, if you needed to do so?
17
A. (By Detective Goyos)
No. I was pretty much thrown out there. I didnt have any cover.
Q. I know you mentioned earlier about Mr. McNeil, which is the gentleman that
ended up -- the decedent in this case, in regards to his actions when he
reached a pulled out a black object. . . . The object that he pulled out or that
you observed him pull out, was pulled out from what side of his pants?
A. From his right side.
Q. And at that point is when youre yelling at him, Dont do it, dont do it,
correct?
A. Correct.
* * *
Q. And what was his [the drivers] response or reaction to you?
A. He disobeyed my command and basically just continued with the motion.
(Joint Exhibit #10, pp. 28-29).
* * *
Q. Okay. The black object that he [the driver] pulled out, I know you had
mentioned that you were you felt that it was a weapon?
A. Correct.
Q. Could you tell if there was a firearm at the time?
A. Like I said earlier, as soon as I saw an object coming out, and I noticed it was
black, it was dark, I -- I fired at that -- at that moment. I was in fear for my life.
I thought it was a firearm.
Q. And how many times did you discharge your weapon?
A. Three times. (Joint Exhibit #10, pp. 29-30).
* * *
Q. Could you describe that?
A. Oh, yeah, as soon as I -- I saw what I believed was a firearm, and I was in
fear for my life, I took my target and I -- it was three shots in -- you know,
right -- back to back to back. It was -- if you want me, I could -- it was pah,
pah, pah, just like that.
Q. And at this point, where was it that you were aiming at?
A. I was aiming at the driver's chest. (Joint Exhibit #10, p. 30).
Q. And did you have a clear and unobstructed line of site on the driver?
A. I had a clear shot in.
Q. Okay. Approximately -- I know you mentioned you were by the driver's door.
Approximately how many feet, would you say you were from him?
A. I would say, maybe a foot away from the [Kia]. A foot or two, maybe. So I
was pretty much right up on it.
Q. At any time, did you point your firearm at Mr. Williams, who was the
passenger?
A. No. .
Q. Okay. Mr. Williams was subsequently shot twice as a result of this incident.
Can you explain to me, how did that occur?
A. It occurred cause when the driver lunged -- I was aiming at him. When he
lunged forward, he basically moved up -- moved forward, so my -- my -- my
-- my site changed and I had to redirect those rounds, and obviously he
[Williams] was sitting behind -- behind him [McNeil] the driver, and that's
when he [Williams] got struck.
Q. So you -- what you're saying is that as you - when you shot at the driver --
18
A. Oh-huh.
Q. -- he shifted?
A. Correct. He [the driver] was moving. (Joint Exhibit #10, pp. 31-32).
At arbitration, Goyos further detailed his actions just after the Kia and the Suburban driven
by Agent Scott had finally stopped. On his direct and cross, he testified in relevant part as follows:
Q. (Direct By Mr. Gibbons, Esq.)
So you stop, thinking the Kia is going to hit [the Suburban], but [the Kia] also
stop[s] simultaneously, right?
A. (By Detective Goyos)
Correct.
Q. Okay. And who made the decision for everybody to just get out or did that
just happen?
A. That just happened. I mean, like I said, I can only speak for myself, and I
felt, where I was put -- the position I was put in, I felt that wasnt a safe
position for me. I was kind of in the line of fire. The front part of the [Kia] was
kind of close to my [front/right passenger] door. So I felt that I was in a bad
position. . . . As soon as we stopped, I exited the vehicle, with my gun drawn,
at the low ready, approaching the vehicle, yelling police . . . Police, show
me your hands, loud verbal commands. I said it several times, four to five
times, approaching the [Kia]. At this time, Im seeing Mr. McNeil kind of lean
back in his car -- basically, you know, the chair was a little bit leaned back.
Hes making eye contact with me. His hands are sort of around his lap, waist
area. As soon as I get close to the vehicle, I saw his hands, where they
were.
* * *
Like I said, I saw [McNeils] hands down towards his waist, thigh area, both
hands were down in that area. I had my gun drawn. I was acquiring, you
know, the target, giving loud verbal commands, Show me your hands, show
me your hands. He was making eye contact with me. As soon as I got a
little closer to the vehicle, and Im pretty much on the [Kias left/driver] door,
maybe a foot or two away, he [McNeil] made a sudden and aggressive
movement towards -- he kind of leaned forward, turned like this, reached
towards his right waist. (Tr. pp. 1147-1150).
* * *
Q. And what were you doing at that point?
A. Well, at that point, I saw [McNeils] movement. My training, my experience
led me to believe -- I had reason to believe that he was reaching for a
weapon. I saw a black object that he was grabbing, and then he made it --
Q. Did you make verbal commands at that time?
A. Yes, I told him, Dont do it, dont do it, and then he [McNeil] came up with
it [the object], sort of like this . . . It was like a quick jolt, quick movement
coming back up with the object, trying to --
The Arbitrator:
Where are the hands of this individual [i.e., McNeil]?
A. Theyre still in his mid section, right around his stomach area.
Q. Lap area?
19
A. Lap area, around here. He wasnt leaning forward, like people are saying.
He was leaning back in the [Kia]. So when he came up -- obviously, he was
leaning back, so he had to come up. He didnt reach down like people were
saying.
So [McNeil] reached towards -- he moved forward, but he reached kind of like
this, and he gave me his left side of his body. (Tr. pp. 1150-1152).
* * *
Q. Yeah. . . . You said, Dont do it?
A. Correct. I said, Dont do it, twice.
Q. And at that time, what did you believe [McNeil] was doing?
A. I believed he was producing a firearm.
Q. Okay. And what did you do?
A. I fired three rounds at the subject.
Q. Okay. And at what part of his body --
A. I was aiming toward his center mass area, chest area. . . . Center mass is
basically his torso. His torso.
Q. And why did you shoot him?
A. I felt my life was in danger. I felt I was in imminent danger, that he wasnt
complying, and then he made that movement and he was -- and I had reason
to believe that he was producing a firearm, he was going to shoot me, and
I was in fear for my life.
Q. What color was the object you saw?
A. It was black.
Q. Okay. And consistent with a firearm?
A. Correct. Could be the butt of a gun, the rail of a gun.
Q. Okay. Were you intending to shoot Mr. Williams, the passenger?
A. No, I was not. (Tr. pp. 1152-1154)
* * *
Q. Okay. Now, you heard the testimony in this case about seeking cover? . . .
Why didnt you seek cover?
A. Well, when I initially got out of the [Suburban], there was no threat. I didnt
feel like -- I had to assess the situation, before, you know -- I didnt feel I had
to take cover. There was no imminent threat to me -- . . . -- imminent danger.
(Tr. p.1156).
(Cross by Ms. Forte, Esq.)
* * *
Q. (By Ms. Forte, Esq.)
Okay. So this shooting happened within seconds of you getting out of the
[Suburban]? Would it be fair to say?
A. (By Detective Goyos)
Yes, it happened fast. (Tr. p .1194).
* * *
Q. Okay. And I understand that the reason why you didnt take cover and
retreat to the back of the vehicle or do something different was because you
didnt feel, at that point, that you were in any danger and you could approach
the car with your gun drawn?
A. Correct.
20
Q. But if you didnt -- if you werent in imminent danger and you werent really
too concerned or fearful about this guy, why would you come out with your
weapons drawn like that, because youve pointed them as being basically in
front, kind of looking down, but theyre completely in front of you?
A. Thats how we are trained. Thats how were trained when we -- when we do
traffic stops, were trained to approach the vehicle and assess whats going
on. Were not trained to retreat or take cover.
* * *
From the training and from the stuff that weve done, Ive never been told to
take cover when you get out of the vehicle or retreat. Thats the not the way
they do things. We approach the vehicle, in a tactical approach, and you
assess the situation, and then you act according to what happens after that.
(Tr. pp.1200-1201).
* * *
Q. Okay. So you come out of the [Suburban], and based on your testimony, you
say, Show me your hands, show me your hands, and Mr. McNeil is not
showing you his hands; is that correct?
A. Correct.
Q. You couldnt see his hands?
A. From the time I exited the vehicle, I didnt have -- all I could see was from his
torso -- kind of mid torso up. When I got closer [to the Kia], I can see where
[McNeils] hands were positioned.
Q. How close did you get to the [Kia], because your hands are extended?
A. I would say, a foot or two from the [Kia]. (Tr. p.1205).
* * *
Q. Okay. Now youre a foot away from [McNeil], and then he makes a sudden
movement and moves to the left from you?
A. To the right.
* * *
Q. So [McNeil is] giving you his left side?
A. Correct. He gave me -- like he opened up like this
The Arbitrator:
Youre seeing [McNeils] shoulder, is that correct, and are you seeing part of
his back?
A. A little bit of his back, but its mostly all shoulder -- shoulder.
Q. Okay. Now, which hand did [McNeil] use to reach to his waist, his right hand
or his left hand?
A. His right hand. It went with his right hand. His hand was right on it [the
object].
Q. So his hands went from being on his lap, to then him moving his body to the
right and putting his right hand on his waist, right?
A. Yes.
Q. And thats when you said [to McNeil], Dont do it, dont do it?
A. I said it right before he did that. Right when he was -- when he started
reaching for it, when he started making the movement toward it. When he
started reaching for something, and obviously at that time I didnt know it was
a cell phone, and I saw something black that he grabbed, when he was
making that movement, and then he started -- he did this turn, coming back.
21
* * *
Q. Okay. So [McNeil] goes to the right. He has his hands on his lap and then
he makes a movement to the right, but with his right hand, he puts his hand
on his waist, right?
A. Yes.
Q. Okay. When did you see the object?
A. When he was grabbing it, when he was pulling it back up.
* * *
Q. Okay. So was [the object] in the pocket or the waist?
A. It was in that vicinity. I couldnt tell you it was his waist. Like I said, it was the
waist area, right side of his leg. I never said a specific area. I said it was on
the right side, in that vicinity. (Tr. pp. 1211-1213).
* * *
Q. Okay. Now, you saw [the black object] when [McNeil] moved back and you
said, Dont do it, dont do it, and where did you shoot [McNeil]?
A. In his torso.
Q. In the back? In the back part of his body, did you not?
A. It wasnt [McNeils] back. It was on the side of his body. (Tr. pp. 1213-1214).
* * *
Q. Okay. And according to you, you didnt shoot [McNeil] in the back?
A. No I did not . . . On the left side of [McNeils] body. (Tr. p. 1223).
* * *
Q. And I think we all safely assumed that it was -- if it was an object that you
saw, it was a cell phone?
A. It ended up being a cell phone. (Tr. p. 1223).
* * *
Q. Okay. So where that officer [i.e., HSI Agent Scott] placed you at was really
not that relevant to you, was it?
A. It was relevant, because I didnt have -- to me, I didnt feel I had any options.
I felt I had one option, and my best option was to approach the [Kia] and
assess what was going on. . . . To assess what was going on. I didnt feel I
was in danger. I didnt feel I had to take cover. I didnt feel I had to retreat.
Were not trained to retreat . . . So I felt my best option was - from where I
was placed [by HSI Agent Scott], was to approach the [Kia]. (Tr. pp. 1233-
1234).
SUMMARY OF OFFICER WALTER BYARS ARBITRATION TESTIMONY
City Police Officer Walter Byars has been one of Departments training instructors for more
than twenty-one years. On direct, he testified, in relevant part, that Departments officers are trained
on Departments Deadly Force Policy, and how to approach stopped vehicles during routine and
containment stops. (Tr. pp. 392, 395-398). He also testified that Departments officers are not trained
to shoot civilians simply because the officers commands are not followed. (Tr. pp. 401-402). As
22
specifically relevant to the facts and circumstances in this matter, and particularly Citys Charge that
Goyos should have retreated and not approached the Kia, Officer Byars further testified as follows:
Q. (By Ms. Forte, Esq.)
Do you teach [City of Miami] officers to retreat, in certain situations?
A. (By Officer Byars)
We will advise them to move in a situation that is safe for them. You know,
we don't teach [officers to] actually retreat. There's no policy that you have
to retreat, but what we do -- you can do a tactical movement, where it would
be, if you run into cover. (Tr. p. 394).
In the course of Officer Byars cross examination, when asked by Mr. Gibbons, Esq., if,
hypothetically, a subject has a cell phone in their hand, which the police officer perceives to be a
weapon, is the officer justified in using deadly force? Officer Byars responded Yes [the officer
is] justified. (Tr. p. 416). Officer Byars further testified on cross as follows:
Q. (By Mr. Gibbons, Esq.)
Okay. Now, Detective Goyos, at the time [he] got out of the [Chevrolet
Suburban driven by HSI Agent Scott]. Now, you dont -- youre not sitting
here saying that thats a [Department] policy violation, is it, that [Goyos] got
out of this vehicle, this [i.e., the right/front] door [of the Suburban]?
A. (By Officer Byars)
No, its not a [Department] policy violation.
* * *
Q. Now, you can sit here all day and say, Well, if I was him, I would have gone
out the back or I would have climbed over the back and came out the back
of the [Suburban] or I would have ran around here, but you werent there,
right?
A. Correct.
Q. Okay. So it was up to Goyos as to what to do, right? Its not a policy violation
that he [Goyos] didnt run behind the [Suburban], that he didnt run in front of
the [Suburban], that he didnt go out the [Suburbans left/front] drivers door,
that he didnt go out the back and out this door or out the back and out the
very back [of the Suburban]?
A. No, its not a policy violation.
* * *
Q. All right. So if Detective Goyos got out [of the Suburban], and having his gun
drawn at the low ready [position], that would be appropriate, given the
circumstances now that you know of, right?
A. Correct.
Q. Okay. And as he [Goyos] scanned and moved towards the driver [of the Kia],
it was appropriate for him to yell, Let me see your hands, let me see your
hands, show me your hands, something to the effect, right?
23
A. Right.
* * *
Q. Okay. The [Departments] deadly force policy says that you should give loud
verbal commands, right?
A. Yes.
* * *
Q. Okay. As he [Goyos] moved to the side of the [Kia], you didnt see what he
saw, right?
A. Correct.
Q. So if he [Goyos] saw what he [the driver] had just displayed, with the driver
sitting down and going towards his front right pocket area, retrieving a black
object which he [Goyos] thought was a gun, and Officer Goyos, in fact, then
engaged him [i.e., the driver], that would be a justified shooting, wouldnt it?
A. Yes.
* * *
Q. Okay. Okay. I just want to clear up, because -- personal knowledge, you
dont have to personally know that thats a firearm? If you perceive it [i.e.,
the black object] to be a firearm, and a threat to you and your other officers,
youre justified in using deadly force, arent you?
A. Yes.
Q. Under the [City of] Miami [deadly force] policy, as well, right?
A. Yes. (Tr. pp. 428-431).
* * *
Q. Okay. Now, in the circumstances I just related to you, the hypothetical, the
Goyos' case, all of the facts of this case -- start to finish, we went through,
from the start at the [Take One Lounge], to the shooting, based on his [i.e.,
Goyos] perception of Mr. McNeil having a weapon in his hand . . . -- that
would be -- if it's found to be justified, based on the facts as you know it, do
you know of any other reason it would be unauthorized?
A. No.
Q. Now, I just want to walk through real quickly -- you're familiar with this
[definition of reasonable belief]? I'm sure you are . . . You teach this right?
A. Yes.
* * *
Q. Okay. So the reasonable belief of Officer Goyos, under the hypothetical I
just ran with you and the facts -- you're a reasonable police officer -- would
you have shot, as well?
A. If threatened with a gun, yes.
Q. If threatened with what you believe -- perceived to be a gun?
A. Yeah. If I was threatened with a gun -- with what I perceived to be a gun, yes.
(Tr. pp. 437-438).
SUMMARY OF DETECTIVES GUTIERREZ & PEREZS
ARBITRATION TESTIMONY
Detective Alejandro Gutierrezs Eyewitness Testimony
24
As noted above, Miami Gang Unit Detectives Alejandro Gutierrez and Joaquin Perez were
both present at the scene of the shooting and witnessed Goyos actions. At the November 18, 2013-
arbitration hearing, Detective Gutierrez, in relevant part, testified as follows:
Q. (By Mr. Gibbons, Esq.)
Okay. Now, Officer Goyos' position [as he exited the front passenger door of
the unmarked Chevrolet Suburban driven by Agent Scott], do you have an
opinion on whether or not he was in a real good spot there?
A. (By Detective Gutierrez)
No, this was not a great spot to be in.
Q. Okay. Why?
A. Because any threat that we would have would be here, and he [Goyos] was
basically placed [by the Agent driving the Suburban] within the danger zone.
If we have -- this would be our hot zone, which is why we conduct our stops
back here. [H]e [Goyos] basically came into the hot zone from the beginning.
(Tr. p. 230).
* * *
Q. Okay. Now, Officer Goyos, being in the --I think you called it, the danger zone
that he [Goyos] was placed in --
A. Correct.
Q -- when he [Goyos] got out [of the Suburban], it would have been appropriate
for him to point his gun at the driver, would it not?
A. Yes.
Q. Okay. And you heard him give loud, verbal commands, right?
A. From the moment [he] exited the vehicle.
Q. Okay. And you heard the commands were something to the effect, "Show me
your hands. Let me see your hands," something to that effect, numerous
times?
A. Correct.
Q. Okay. And did you hear him also then say, shortly after that, "Don't do it.
Don't do it? Did you hear that?
A. I vaguely recall that, correct.
Q. Okay. And then you heard three successive shots?
A. Yes. (Tr. pp. 231-232).
* * *
Q. Okay. Now, was there anywhere for Goyos to run and hide, here, at this point
[i.e., where Goyos exits the Suburban]?
A. No, not in this facility. There was no cover at all there.
The Arbitrator:
Didn't he have his door [of the Suburban]? He could stay behind his door?
Mr. Gibbons:
The door [of the Suburban] opens up and [Goyos is] right next to the driver
of the [Kia].
A. Basically this is where the door --
The Arbitrator:
So the door [of the Suburban] was already further than the front of the
25
suspect's vehicle?
The Witness:
Once again, it was in that general vicinity. I can't tell you --
The Arbitrator:
So he [Goyos] lost his cover?
The Witness:
Yes.
The Arbitrator:
He's [i.e., Goyos is] more or less, parallel with the driver [of the Kia]?
The Witness:
Once again, in that general vicinity, yes. (Tr. pp. 235-236).
* * *
By Mr. Gibbons:
Q. Okay. What I'm asking you is, in your mind, when you hear the words, "Don't
do it, don't do it," from a fellow officer, on a traffic stop, what does that mean
to you?
A. In that agitated voice, it's that basically the subject is doing the opposite of
what we are lawfully asking him to do or her, and they're in a motion to do
something incorrectly, whether it's grab a knife, a grenade, a rifle, a handgun,
something that can possibly be a threat to us.
Q. Okay. Now, you mentioned, as soon as he [Goyos] got out of the [Suburban],
his voice, since you've known him for quite some time, was in an immediate
heightened level of alertness, and I think you used the word, distressed,
right?
A. Correct.
Q. Because he's [i.e., Goyos is] in the kill zone, right?
A. Correct.
Q. His [Goyos] kill zone, right?
A. Yes. Particularly his. (Tr. pp. 239-240).
Detective Joaquin Perezs Eyewitness Testimony
At the November 18, 2013-arbitration hearing, Detective Perez, in relevant part, testified as
follows:
Q. (Direct By Ms. Forte, Esq.)
Okay. And as hes [i.e., Goyos is] getting out of the car [i.e., the Suburban
driven by HSI Agent Scott], which direction does he go?
A. (By Detective Perez)
[Goyos] goes towards the driver [of the Kia]. He tells him [the Kias driver],
Let me see your hands. Let me see your hands, and the last thing I hear
[Goyos] say is, Don't do it. Don't do it, and then he discharges his weapon.
Q. At all times, were you able to see Mr. Goyos?
A. Yes.
Q. So you saw everything that happened?
A. Everything. (Tr. p. 262).
* * *
26
Q. (Cross By Mr. Gibbons, Esq.)
Okay. Now, in your training and experience and since you've been on the
street, the fact that somebody is intoxicated or under the influence of alcohol,
that concerns you, doesn't it, as a police officer?
A. (By Detective Perez)
Of course.
Q. Okay. Because they don't act correctly, right?
A. Correct.
Q. And they might get violent quicker, right?
A. Correct.
Q. And they may not listen to you, right?
A. Correct.
Q. And in this case, he [the driver of the Kia] wasn't stopping, right?
A. Right.
Q. We know that, the [Kia] was actually running from you, right?
A. Yes.
Q. And then ultimately a decision was made to stop the [Kia] by doing some kind
of boxing, right?
A. Correct.
Q. Okay. Do you know who made that ultimate decision?
A. I don't remember who called it on the radio, but it would have been the lead
car [i.e., the Suburban].
Q. Okay. And the people who would have made the decision to pull that
Homeland Security vehicle up in front of [the Kia], on an angle, would have
been the driver [Agent Scott], right?
A. Yes.
Q. It wasn't Detective Goyos, was it?
A. No, he wasn't driving.
Q. Okay. And then the other [police] vehicles came in behind, right, to box [the
Kia] in?
A. Correct. (Tr. pp. 293-294).
* * *
Q. And when they turned the vehicle [i.e., the Suburban], that put Detective
Goyos almost parallel with that driver [of the Kia], right?
A. Correct.
Q. And in your opinion, and with your training and experience, what kind of
position is that to be in?
A. Ugly.
Q. Ugly? What do you mean by that?
A. He's [i.e., Goyos is] wide open.
Q. Okay. Explain why.
A. He has no cover. I mean, he -- you can't stay inside the car, and you have to
come out and engage the threat.
Q. Okay. So Detective Goyos decided to engage the threat, right?
A. Correct.
Q. Okay. And you had your weapon out, right, when you got out [of your
unmarked police vehicle]?
A. Correct.
27
Q. Because that's what you do on felony stops, right, in these types of
situations?
A. Correct.
Q. Especially when they're not listening to you and they're fleeing, right?
A. Correct.
Q. Okay. And you heard him [i.e., Goyos] give loud, verbal commands, right?
A. Yes, he did.
Q. Show me your hands, right?
* * *
A. Yes.
Q. And you also heard [Goyos] say, twice, Don't do it, don't do it?
A. Correct.
Q. Back to back?
A. Correct. (Tr. pp. 295-296).
* * *
Q. Okay. And when [Goyos] was yelling, "Don't do it, don't do it," would you say
that his voice was elevated, at least?
A. Yes.
Q. Or stern?
A. Yes. (Tr. pp. 296-297).
* * *
Q. Okay. Those words, Don't do it, Don't do it, as a law enforcement officer,
they could indicate to you that the man [i.e., the Kias driver] is going for a
weapon of some sort?
A. Correct.
Q. Don't do it, don't grab that?
A. Correct.
Q. Now, the City has made mention over and over and over again here that
Goyos had a choice when he was placed in that position [i.e., when he exited
the Suburban driven by Agent Scott]. Do you believe he had a choice?
A. No.
Q. Okay.
The Arbitrator:
Would you elaborate what you mean by a choice, for the record? I think I
know, but I don't want to speculate. (Tr. pp. 297-298).
By Mr. Gibbons:
Q. Well, as far as his [i.e., Goyos] positioning [when he exited the Suburban],
where he [Goyos] was positioned with this [the Kia] vehicle.
A. No, he had no choice.
Q. Okay. That wasn't his call, right? He [Goyos] wasn't driving the [Suburban]
car, right?
A. No.
Q. He [Goyos] had to deal with what the driver [of the Suburban, Agent Scott]
did to him, right?
A. Correct.
Q. And that was a Federal agent, right?
A. Correct.
Q. Okay. And they [i.e., federal agents] don't work with the Miami Police
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Department every day, right?
A. Correct.
Q. Now, isn't it also true that the only person with the best point of view on the
driver [of the Kia] was Goyos?
A. Yes, sir.
Q. Now, just because a driver is impaired or drunk, doesn't mean he can't hurt
you, right?
A. Correct.
Q. And it doesn't mean he can't also go for a weapon, right?
A. Correct. (Tr. p. 298).
SUMMARY OF THE ARBITRATION TESTIMONIES OF ASSISTANT CHIEF/FRB
MEMBER ROY BROWN, ASSISTANT CHIEF/FRB MEMBER RODOLFO LLANES,
MAJOR/FRB MEMBER RAUL HERBELLO & CHIEF OF POLICE
MANUAL OROSA
On January 28, 2013, Departments Firearms Review Board (FRB) unanimously concluded
that Goyos February 10, 2011, shooting was unjustified and, thus, in violation of Departments
Deadly Force Policy. Based upon the above quoted Section 21.4.20.6/penalty language of the
Deadly Force Policy (which authorizes the first offense dismissal for officers violating the policy
where, as was the case here, someone is injured), the FRB recommends to Chief of Police Orosa that
Goyos be discharged. Thereafter, Chief Orosa concurred, and then discharged Goyos on January 31,
2013, for the reasons stated in the above quoted Reprimand 13-009.
Chief Browns Testimony
Chief Brown, in short, testified that based on the evidence presented from Homicide and IAs
investigation of the case, the witness statements and Goyos inconsistent statements, that Goyos
violated the Deadly Force Policy. According to Chief Brown, as Goyos was approaching the Kia, he
placed himself in a position that gave him no choice but to make a decision, a decision that could
very easily have been the wrong decision, because he [/Goyos] placed himself in a position where
there was no room to . . . make an objective decision. (Tr. pp. 590-591).
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On cross, Chief Brown further testified in summary and in relevant part as follows:
That City police officers have a duty to retreat, adding but I think our policy uses the
term, last resort. Now, last resort can be interpreted as, if you have an option to
retreat, instead of taking somebodys life. Thats the intent of the Departments
policy. (Tr. p. 610).
That when Goyos exited the Suburban he was not placed in an extremely dangerous
position,
because when [Goyos] got out of the [Suburban], if it was an
extremely dangerous situation to him, the option that he had was to
back away and take cover, if he felt that that person [McNeil] had a
gun or he was placed in a bad situation. There was an option -- when
he stepped out of the [Suburban], there were other options, other
than drawing [his] weapon and approaching the window of the [Kia].
(Tr. p. 616).
That as stated in Joint Exhibit #13, the FRB agreed that Goyos reasonably believed
he saw what appeared to be a weapon, a black object. (Tr. p. 647).
Chief Llanes Testimony
Assistant Chief Rodolfo Llanes testified he found Goyos discharge of his firearm unjustified
on the grounds that:
Detective Goyos, in his [November 14, 2012-Garrity] statement [Joint Exhibit #10],
stated that he observed Mr. McNeil reach to the floorboard and then come up with
an object in his hand and then he fired. [Goyos] felt an imminent threat at that time,
and he fired his gun. The physical evidence that was presented at that Board was
inconsistent with that statement. The physical evidence indicates that Mr. McNeil
couldn't have come up from his slumped stance, so to speak, and so it was
inconsistent for me to be able to rule that it was a justified shooting, based on
Detective Goyos' statement, because it wasn't -- it didn't jibe with the physical
evidence, that he actually came back up. The evidence showed that [McNeil] stayed
slumped in that position. (Tr. pp. 516-517).
Major Herbellos Testimony
Major Raul Herbello, in summary, found Goyos shooting unjustified on the grounds he failed
to see a weapon, and that:
. . . [Goyos] had time to basically retreat, if he felt that something was wrong.
If he felt that the subject [McNeil] was reaching into the carpet, into --
somewhere on the seat or whatever, he [Goyos] had enough time to retreat and put
himself in somewhat of an advantage of a tactical position to confront this individual
[the driver McNeil] and the passenger [Williams]. At the time, he didn't know what
30
was going on inside that [Kias passenger] compartment. (Tr. pp. 678-680).
On cross, Major Herbello further testified in relevant part:
Q. (By Mr. Gibbons, Esq.)
But sometimes, Major, officers are put in positions where they're just in poor
tactical positions, right? The circumstances fall that way?
A. (By Major Herbello)
They could change from one second to the other.
Q. Right. Because the dynamics of police work can change from any given
second, right?
A. Yes, sir.
Q. So you would also agree with me that the decision to employ deadly force
could form in almost an instant, right?
A. Depending on the case.
Q. Depending on the facts, right?
A. Depending on each individual case. And, then, again, I felt that based on the
evidence [in this case], he [Goyos] had enough time to retreat, and time was
on his advantage, just to give verbal commands to get [the driver of the Kia]
out of the car.
Q. Okay. And you base -- is there a duty to retreat in the Miami Police
Department?
A. No.
Q. There's no such theory or duty to retreat, is there?
A. No, sir. (Tr. pp. 693-694).
Chief of Police Orosas Testimony
On direct, when asked by Citys counsel, Ms. Forte, Esq., his basis or grounds for determining
the FRBs recommendation to discharge Goyos was correct, Chief of Police Orosa replied:
. . . my basis was the fact that when [Goyos] exited the [Suburban] -- the first thing
we teach an officer is, when you're in the open, seek cover, go and get cover,
because you don't want to be a target, and instead of that [Goyos] approached the
[Kia], which eventually led to the shooting. (Tr. p. 757).
On cross, Chief Orosa further explained his grounds for discharging Goyos as follows:
Q. (By Mr. Gibbons, Esq.)
. . . As a result of [Goyos] not immediately seeking cover, you say it
eventually led to the shooting and the death of Mr. McNeil, correct?
A. (By Chief Orosa)
Correct.
Q. And that's the basis for your termination [of Goyos employment]; is that
right?
A. Yes, that's part of the basis . . . The fact that -- that by not seeking cover
[Goyos] was in a situation where he was giving orders to an individual, and
eventually shot at the individual . . . without any real threat to him at that
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time.
Q. Okay. So I just want to make it clear, because [Goyos] didn't seek cover, and
because he engaged Mr. McNeil with lawful commands, that was part of the
reason for [Goyos] termination?
A. Yeah. You have to add the final twist of the story, which is [Goyos]
unjustifiably shot a couple of people in the [Kia]. (Tr. pp. 771-772).
THE PARTIES OPPOSING POSITIONS & ARGUMENT
The partys comprehensive opposing positions and argument are attached and incorporated
as Attachment A/Citys Brief, and Attachment B/FOPS Brief.
FINDINGS
Citys four charges against Goyos stated in Reprimand 13-009 as its grounds for discharging
him are repeated below:
Charge One:
That Officer Reynaldo Goyos violated Departments Deadly Force Policy on the grounds:
That the evidence of the case was not consistent with Officer Goyos [November 14, 2012-
Garrity] statement because McNeil was struck in the rear left shoulder blade area.
Charge Two:
That Officer Reynaldo Goyos violated Departments Deadly Force Policy on the grounds:
That when Goyos discharged his firearm, nor he or another person present was in imminent
danger of death or serious physical injury.
Charge Three:
That Officer Reynaldo Goyos violated Departments Deadly Force Policy on the grounds:
That the evidence of the case was inconsistent with Goyos [November 14, 2012-Garrity]
statement that he saw a black object on Mr. McNeil. And,
Charge Four:
That Officer Reynaldo Goyos violated Departments Deadly Force Policy on the grounds:
That Goyos should have never approached the Kia, but instead should have retreated and
followed all training protocols regarding felony stops involving armed subjects or vehicles.
For the following reasons, the undersigned finds that City failed in its burden of proving its
above four charges, thus, Goyos grievance shall be awarded/sustained.
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Resolution of Citys Charge One
Citys Charge One, simply put, is flawed on its face since the record shows that McNeil was
not struck in the rear left shoulder blade area of his body as alleged. As both Goyos and Medical
Examiner, Dr. Emma Lew testified here, the bullet which killed McNeil struck him on the left side
of his torso just below his axilla/armpit. Dr. Lew specifically testified that the entrance of the bullet
was on [Goyos] side . . . (Tr. p. 379). At arbitration she also testified in relevant part:
A. (By Dr. Lew)
. . . It's [i.e., the entry of the bullet which killed McNeil] on the side . . . , along
the posterior axillary line, which means that you take the [left] armpit [of
McNeil], and the line that goes directly down the armpit will sort of divide the
front of the body from the back of the body. The line that is at the front of the
armpit is the anterior axillary line and the line that is at the back end of the
armpit is the posterior axillary line.
The entrance wound [of the bullet which killed McNeil] was right along
that posterior axillary line, at the back of the axilla [i.e., McNeils left armpit].
* * *
The Arbitrator:
[Dr.] [y]ou were looking on the left side, and that would have been -- the left
side of the victim [McNeil], and that would have been the driver's side, as you
look forward in the [Kia]?
The Witness:
Correct. (Tr. pp. 379-380).
The undersigned also credits the following language under the heading Medical Examiner
Findings in the MDCSAs June 5, 2012-Closeout Memo (Joint Exhibit #5), which recites in relevant
part that,
Dr. Lew determined . . . [t]he projectile [that killed McNeil] entered [McNeils] body
approximately thirteen inches from the top of the head, and nine inches to the left
of the thoracic spine, alone the victim left side. (Emphasis added). (Joint Exhibit #5,
p. 50).
The undersigned also finds no compelling or actionable inconsistency in Goyos sworn
Garrity Statement with the evidence of the case since at no time did Goyos state, nor was he asked
what part of McNeils body the bullet entered. Goyos arbitration testimony, on the other hand, is
33
entirely consistent with Dr. Lews above stated arbitration testimony that McNeil was shot just under
his left side arm pit. Indeed, on pages 1213-1214 and 1223 of Goyos cross examination - which the
undersigned credits - he testified as follows:
Q. (By Ms. Forte, Esq.)
Okay. Now, you saw [the black object] when [McNeil] moved back and you
said, Dont do it, dont do it, and where did you shoot [McNeil]?
A. (By Detective Goyos)
In his torso.
Q. In the back? In the back part of his body, did you not?
A. It wasnt [McNeils] back. It was on the side of his body. (Tr. pp. 1213-1214).
* * *
Q. Okay. And according to you, you didnt shoot [McNeil] in the back?
A. No I did not . . . On the left side of [McNeils] body. (Tr. p. 1223).
On the record as submitted, and for the above reasons, accordingly, the undersigned finds
Citys Charge One unfounded, and, thus, insufficient grounds to discharge Detective Reynaldo Goyos.
Resolution of Citys Charge Two
Citys Charge Two alleges Goyos violation of the Deadly Force Policy on the specific
grounds that when he discharged his firearm, nor he or another person present was in imminent
danger of death or serious physical injury. The undersigned finds no merit to the charge in light of
the FRBs own finding that Goyos reasonably believed he saw what appeared to be a weapon (black
object) in McNeil right hand. (Joint Exhibit #13) Moreover, upon seeing the black object - which
again, the FRB found that Goyos reasonably believed was a weapon - Goyos then (as he testified
in his Garrity Statement and repeated here) called out to the Kias driver stating:
Don't do it. [I] [g]ave him [the driver of the Kia] a loud verbal command, Don't do
it, and at that time, I saw a black object coming up, and thats when -- from his right
side of his leg, and thats when I -- I was in fear for my life, in fear for my partner's
life, and thats when I fired three shots at the driver. (Joint Exhibit #10, page 10).
In light of the FRBs above finding, and since the record shows, nor is it disputed, that Goyos
34
loudly and repeatedly called out show me your hands, which McNeil failed to comply, and then,
upon Goyos seeing what he believed was a weapon, and then again loudly calling out dont do it,
dont do it, and since the entire event was over in just seconds, the undersigned finds no violation
of Departments Deadly Force Policy as alleged in Charge Two, i.e., that Goyos discharged his
firearm, nor he or another person present was in imminent danger of death or serious physical injury.
On the record as submitted, and for the above reasons, accordingly, the undersigned finds
Citys Charge Two unfounded, and, thus, insufficient grounds to discharge Detective Reynaldo
Goyos.
Resolution of Citys Charge Three
Citys Charge Three alleges Goyos violation of Departments Deadly Force Policy on the
grounds That the evidence of the case was inconsistent with Goyos [November 14, 2012-Garrity]
statement that he saw a black object on Mr. McNeil.
The undersigned credits Goyos repeated and unopposed testimony both here and in his earlier
sworn Garrity Statement that as he approached the Kias front drivers side window, he saw a black
object in McNeils right hand. Goyos testimony, as discussed above, is further and totally
corroborated by the Firearms Review Boards finding that Goyos reasonably believed he saw what
appeared to be a weapon (black object). (Joint Exhibit #13). The evidence of case further
corroborates Goyos testimony that he saw a black object, since a black cell phone with McNeils
matching DNA was retrieved from the drivers side floor of the Kia.
In summary, contrary to Citys Charge Three, the undersigned finds no evidence in this case
inconsistent with Goyos Statement, nor his arbitration testimony here, that he saw a black object on
35
Mr. McNeil.
Thus, on the record as submitted, and for the above stated reasons, the undersigned finds
Citys Charge Three unfounded, and, thus, insufficient grounds to discharge Detective Reynaldo
Goyos.
Resolution of Citys Charge Four
Citys Charge Four alleges that Goyos violated the Deadly Force Policy on the grounds that
upon exiting the Suburban, he, should have never approached the Kia, but instead should have
retreated and followed all training protocols regarding felony stops involving armed subjects or
vehicles. While differently worded, Charge Fours text is almost identical to Chief Orosas grounds
for discharging Goyos, i.e., that instead of taking cover upon exiting the Suburban, Goyos approached
the Kia which eventually led to the shooting.
In short, the undersigned finds Charge Four and Chief Orosas similar grounds for discharging
Goyos fatally undermined by the following evidence of the case.
1. The undisputed fact that no more that seconds elapsed from the time Goyos exited the
Suburban to his discharge of his firearm. (Joint Exhibit #5, page 9, Tr. pp. 1194,
1238).
2. Page 7 of the FRBs report submitted as Joint Exhibit #13, which found:
The [HSI] Agent [Scott] that conducted the traffic stop [of the Kia] in
front of the suspects [i.e., McNeils left/front] door didnt give Officer
Goyos options to take cover, etc.
3. Goyos eyewitness testimony and the overall corroborating eyewitness testimony of
both Detectives Gutierrez and Perez that Goyos was placed by HSI Agent Scott in
a hot/danger zone just three feet from McNeils front door, with no cover. (Tr. pp.
235-236, 295; Joint Exhibit #5, page 3).
4. Goyos testimony that where HSI Agent Scott stopped the Suburban, he/Goyos was
36
just thrown out there with no cover. (Joint Exhibit #10, page 29).
5. Goyos testimony that, when stopping vehicles:
[W]ere trained to approach the vehicle and assess whats going on. Were
not trained to retreat or take cover.
* * *
From the training and from the stuff that weve done, Ive never been told to
take cover when you get out of the vehicle or retreat. Thats not the way they
do things. We approach the vehicle, in a tactical approach, and you assess
the situation, and then you act according to what happens after that. (Tr. p.
1201).
6. Officer Byars testimony that Department does not teach its officers to actually retreat.
(Tr. p. 394). And,
7. The fourth sentence of Departments Order 6, Chapter 21, Section 21.4.1.16, which
states, It must be remembered that by law, an officer need not retreat in his/her efforts
to lawfully control a subject, but may utilize the amount of force necessary to
accomplish his/her task. (Joint Exhibit #9, page 4).
The undersigned, in short, finds the above stated seven factors collectively and fatally
undermine Citys Charge Four. In other words, and particularly since the FRC itself found that Goyos
was placed by HSI Agent Scott with no options to take cover; and since Goyos was placed just
three feet from a vehicle which had just been chased and driven by a then unknown driver who was
possibly armed and dangerous (which, in turn, caused all of the officers on scene to draw their
weapons, as did Goyos); and in light of Goyos credible testimony that when stopping a vehicle:
[W]ere trained to approach the vehicle and assess whats going on. Were not
trained to retreat or take cover.
* * *
From the training and from the stuff that weve done, Ive never been told to take
cover when you get out of the vehicle or retreat. Thats not the way they do things.
We approach the vehicle, in a tactical approach, and you assess the situation, and
then you act according to what happens after that. (Tr. p. 1201):
and since the entire event was over in just seconds, the undersigned finds no culpable violation of
Departments Deadly Force Policy by Goyos on the grounds that he should have never approached
37
the Kia, but instead should have retreated and followed all training protocols regarding felony stops
involving armed subjects or vehicles.
That being found, the undersigned further finds Citys Charge Four unfounded and, thus,
insufficient grounds to discharge Detective Reynaldo Goyos.
It follows that based upon the record as submitted and all of the above, and since each of the
Citys Four Charges recited in its Reprimand 13-009 as the grounds or reasons for discharging
Detective Reynaldo Goyos are unfounded, the undersigned further finds City failed to prove it had
just or proper cause to terminate the employment of Grievant/City of Miami Detective Reynaldo
Goyos. Accordingly the instant grievance No. 13-01 is sustained/awarded.
REMEDIES AND AWARD
Based upon the entire and voluminous hearing record in this matter and all of the above, the
undersigned further finds, awards and orders the following appropriate remedies:
1. Just or proper cause did not exist to discharge or otherwise discipline City of Miami Detective
Reynaldo Goyos for his charged February 10, 2011-actions or conduct as discussed above.
Accordingly, the instant grievance is sustained/awarded and Goyos January 31, 2013-
discharge set aside.
2. Reinstatement and Seniority
a. Unless a later or earlier date is mutually agreed upon by the parties, not later than
Wednesday, August 13, 2014, City/Department shall:
i) reinstate Goyos to his former bargaining unit detective police officer
position with no loss in seniority and, thereafter,
ii) if required by applicable Department rules, regulations or law, etc.,
38
provide Goyos at no cost with all training classes and courses needed
for his certification or re-certification as a City of Miami sworn
detective police officer.
b. To the extent allowed by applicable State of Florida laws, regulations and/or Opinions
of the Florida Attorney General, all documents, IA, FRB, or other reports and
references to Goyos January 31, 2013-discharge shall be removed or stricken from
the personnel file(s) that City and/or Department maintain pertaining to Goyos.
2. Payment of Back Pay and Benefits
a. City/Department shall further make Goyos whole by promptly computing and paying
him all lost back pay and all lost employee benefits (including, but not limited to
pension, insurance, insurance premiums, medical/dental payments, etc.) as if Goyos
had not been discharged on January 31, 2013, minus all 1099/W-2 income, wages,
unemployment compensation or earnings either paid, received, or payable to Goyos
from other sources by cash or check for the period commencing on January 31, 2013,
up to Goyos actual date of reinstatement. And,
b. Restore to Goyos all other City/Department applicable employee benefits and
privileges including but not limited to seniority, unpaid vacation, time in service, sick
leave, contractual pay raises, contractual promotions, etc.
c. In order to accurately compute Goyoss back pay and benefits, if requested, he shall
promptly provide City/Department with confidential copies of any and all of his
earning statements and income documentation including 1099s, W-2s, unemployment
payments, tax returns, and all non reimbursed and/or out-of-pocket medical/dental
premiums and medical/dental expenses paid by him (including doctor and hospital
bills, co-payments and prescriptions, etc.), commencing on the date of his discharge
up to his reinstatement date.
e. City/Department shall further and timely provide the President of FOPs Lodge No.
20 with copies of all monetary and benefit computations and all proposed and actual
payments and restored benefits to Goyos.
39
3. Retention of Jurisdiction
The undersigned arbitrator retains jurisdiction in this matter only to resolve any reinstatement,
back pay or benefit payment dispute(s). All other issues or argument(s) raised by the parties
or not addressed in this Opinion and Award are deemed moot and/or denied. This Opinion and
Award is otherwise final and binding.
Signed and e-mailed to the parties this August 8, 2014
Martin A. Soll
______________________
Martin A. Soll, Arbitrator
3530 Mystic Pointe Drive, Suite 401
Miami, Florida 33180
305/932-0001
Lanmar@AtlanticBB.net
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