IN

THE MATTER OF APPEAL

ARBITRATION BETWEEN
El Paso Municipal Police Officers Association, # 14 – 126/SR 13-005
(C.L.E.A.T.)
Officer Jose Flores:
AND

The City of El Paso Termination

ARBITRATOR
Mark R. Sherman, LLM, PhD

DATES OF HEARING
April 14 & 15, 2016
(Briefs: July 5, 2016)

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

For the Union: Jim Jopling, Esq.

C.L.E.A.T. Staff Attorney
747 E. San Antonio Ave., Suite 103
El Paso, TX 79901
 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?

RELEVANT JURISDICTIONAL AUTHORITY

CITY CHARTER PROVISIONS FOR THE CITY OF EL PASO TEXAS

Article VI – CIVIL SERVICE

* * * * *

Section 6.13-3 - CAUSES OF SUSPENSION, REDUCTION OR DISCHARGE

The following, which may be further defined in the Rules, may

constitute causes for discharge, suspension or reduction in grade of
regular employees:

A. Conviction of, or deferred adjudication community supervision

for, a felony or of a Class A or B misdemeanor;

B. Abusive, threatening, or coercive treatment of another employee

or a member of the public, the provocation or instigation of
violence, brutality to a City prisoner, or abusive treatment to an
animal in the care or control of the employee;

C. Being under the influence of intoxicants or drugs or the use

thereof while on duty;

D. Being physically or mentally unfit for City service to the extent

permissible under federal and state laws;

E. Being wantonly offensive in conduct or language;

F. Incompetency or negligence in the performance of duties,

including but not limited to, failure to perform assigned tasks, or
failure to discharge duties in an accurate, prompt, competent, or
responsible manner;

G. Dishonesty, theft, violation of a law, or violation of policies

relating to the handling or procurement of property, or negligence
in care or misuse of City property;

H. Abandonment of position, repeated unexcused absence or tardiness,

abuse of leave privileges, or absence without notification or the
provision of a valid or acceptable reason for absence;

I. Failure to meet or maintain qualifications, including but not

limited to, failing to obtain or maintain required certificates,

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licenses or other credentials established for the employee's
position or classification;

J. Inducing or assisting another to commit an unlawful act;

K. Deliberate or careless conduct endangering the safety of self or

others;

L. Engaging in improper political activity;

M. Violates the City's Ethics Ordinance;

N. Refusal to follow the lawful order of a superior or supervisor;

0. Subjecting a fellow employee or subordinate to unlawful

intimidation, harassment or retaliation; and

P. For just cause.

Section 6.13-4 - APPEALS.

Any regular classified employee may appeal to the Commission any

order which is believed to violate the rights granted employees by
this Charter. This appeal must be filed with the Commission within
thirty days from the date of the alleged violation and may be in any
form clearly directing the attention of the Commission to the order
complained of and the rights or provisions violated.

Section 6.13-5 - HEARING OPTIONS.

Upon receiving notice of appeal, the Commission may in its

discretion hear the appeal directly or refer it to a Hearing
Officer.

Section 6.13-6 - ACTION BY COMMISSION.

A. If the Commission hears the appeal in a disciplinary case it

will, by majority vote of its members present and voting, determine
whether the evidence sustains the charges. If the Commission
determines that the charges are sustained, in whole or in part, it
will at once determine whether the good of the service requires that
the appealed action be upheld or reduced. If the Commission
determines that the charges are not sustained, the accused will be
reinstated immediately and without prejudice, and will not be
deprived of any salary for any period of suspension preceding the
hearing.

B. In cases involving matters such as denial of promotion, the

Commission shall review all facts in the cases and direct
appropriate corrective steps, if necessary.

C. In conducting any hearing, the Commission must in all cases,

afford full and free opportunity to all parties to present evidence
relevant to the issue or issues involved. The burden of proving ah
alleged offense and of establishing just ground of discharge,
suspension or reduction rests upon the City Manager or designee by

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whom the action was taken. A preponderance of the evidence is
required to substantiate any charge.

D. Decisions of the Commission shall be final.

Section 6.13-7 - HEARING OFFICER.

A. The Hearing Officer shall have the power to establish appropriate

procedures for the conduct of the hearing, issue subpoenas to compel
the attendance of witnesses, make appropriate findings during the
course of a hearing, prepare written recommendations to the
Commission, and such other powers and duties as set forth in the
Rules.

B. The principles established in Section 6.13-6, will apply equally

to hearing officers.

Section 6.13-8 - SUBSEQUENT ACTION.

Upon receipt of the Hearing Officer's opinion and recommendations

where applicable, the Commission will review the written record of
the hearing, review any written briefs or oral arguments which the
parties are permitted by the Commission to submit in accordance with
the Rules, and take one of the following actions:

A. Accept or reduce the Hearing Officer's recommendations;

B. Remand the matter to the Hearing Officer for development of such

additional facts and findings as the Commission deems necessary.
Consistent with the remand, the Hearing Officer must conduct an
additional hearing and render a further opinion or recommendations
for its further action pursuant to this provision; or

C. Reject the Hearing Officer's recommendations and refer the matter

to the Civil Service Commission for a de novo hearing.

Collective Bargaining Agreement between the City of El Paso and the

El Paso Municipal Police Officers Association (2008 – 2012)

Article 21 Grievance Procedure

Section 1.

Appeals of suspensions, demotions and/or terminations shall be heard

by a hearing examiner designated by the Civil Service Commission on
a random basis from a panel of five or more local individuals
provided that, in the case of a demotion, a termination, or a
suspension of more than 40-hours, either the City or the Association
may elect to have the dispute heard by an arbitrator selected in
accordance with the procedures set forth in Section 4. Whether the
dispute is heard by a hearing examiner or an arbitrator, the same
procedures shall be used as in an appeal to the Civil Service
Commission, and the Hearing Examiner or the Arbitrator shall have
the same rights and powers as the Civil Service Commission. The

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decision of the Hearing Examiner assigned by the Civil Service
Commission or the Arbitrator shall be final and binding upon the
employee(s) involved, the City and the Association, subject to any
rights of appeal to court of law as permitted by law. During the
hearing of an appeal or an arbitration the parties shall have the
right to have a representative of their choosing sit at the counsel
table.

A. The hearing examiner panel shall have not less than five (5)
qualified members appointed by the City and Association. The members
on the panel shall serve a one ... year term and ·be subject to re-
appointment or removal by mutual agreement of the City and the
Association. Subject thereto, the City and the Association may, at
any time remove and/or add agreed-upon members. If there is a
vacancy, such as by resignation, death, or agreed-upon removal, the
City and the Association shall act promptly to select enough new
members to ensure that the panel contains not less than five (5)
active members. The Civil Service Commission shall create a list of
the hearing examiners, placed in random order, and shall designate a
hearing examiner for each appeal on a rotating basis, subject to the
hearing examiner's availability. On or before January 1, 2007 and
January 1st of each subsequent year the parties shall meet and
confer in regards to re-appointment or replacement of the hearing
examiner panel.

B. 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' non-privileged statement shall preclude the party from
calling the individual as a witness, unless the hearing examiner or
arbitrator finds exceptional good cause for such failure.

C. The hearing examiner or arbitrator shall, when mutually requested

by the legal counsel for the City and the aggrieved employee, be
required to issue a bench award at the conclusion of the hearing and
in such event, no briefs are allowed unless both parties agree.

D. The following procedures additionally apply to all disciplinary

grievances to be heard by the hearing examiner. Within 30-calendar
days after the date that the Civil Service Commission has assigned a
hearing examiner to hear the appeal, the legal counsel for both the
City and the aggrieved employee shall meet with the hearing examiner
for a pre-hearing conference. At such prehearing conference, the
hearing examiner shall address such preliminary matters as the
hearing examiner determines to be appropriate and shall establish a
time line for conducting the hearing and the date for the final
hearing on the appeal. Once this hearing date is established, the
legal counsel for the City and the aggrieved employee may each
request one continuance for a period of time not to exceed 20-
calendar days. Additionally, the hearing examiner may grant other
continuances upon a showing of good cause or upon mutual agreement
by both the legal counsel for the city and the aggrieved employee.

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Section 2. Disputes involving the application, interpretation or
enforcement of this Agreement; but not involving the suspension,
demotion or termination of an employee, shall be resolved in the
following manner:

Step la. Any grievance filed by the Association shall be filed in

writing within 14-calenclar days after the occurrence of the
grievance. The written grievance shall indicate the employee or
employees affected and/or the specific Articles allegedly violated
and shall proceed directly to the Police Chief.

Step lb. If the grievance is initiated by an individual employee,

rather than the Association, the aggrieved employee shall within 7-
calendar days after the actual or constructive knowledge of the
existence of a dispute, discuss the grievance with the immediate
supervisor and attempt to resolve the matter. The supervisor
involved shall give an oral answer with respect to the dispute
Immediately, if possible, but not later than 7-calendar days
following the end of the discussion. In the event the employee is
not satisfied with the oral answer, the employee shall document the
discussion with the immediate supervisor on a form provided by the
Association.

Step 2. If the immediate supervisor's oral answer does not settle

the issue to the employee's satisfaction, the employee shall, within
7-calendar days following the receipt of the oral answer provided
for in Step lb., present the grievance in writing and signed by the
employee to the Association's Grievance Committee on ·a form
provided by the Association, with a copy to the Chief. The Grievance
Committee shall have full authority to determine whether to proceed
further with any employee's grievance. If the Grievance Committee
decides not to proceed with the grievance, it shall be deemed to be
withdrawn. If the Committee decides to proceed with the grievance,
it shall present the written and signed grievance to the Chief of
Police within 21-cafendar days following the Grievance Committee's
receipt of the grievance from the employee. The Chief of Police
shall, within 10-calendar days following his receipt of the written
grievance from the Committee, meet with the aggrieved employee and
the Association to discuss the matter. Within 10-calendar days
following said meeting, the Chief of Police shall submit the written
response to the Association.

Step 3. If the grievance is not settled to the Association's

satisfaction in Step 2, the Association may within 14-calendar days
following the conclusion of Step 2, notify the City in writing that
it desires to submit the matter to final and binding arbitration.

Section 3. A failure by the Grievant or the Association to comply

with the time limits set forth In Section 2 and Section 4 shall
result in a dismissal of the grievance;. a failure by the city to
comply with the time limits set forth in Section 2 and Section 4
shall result in the grievance being sustained; provided however,
that all time limits referred to in these Sections may be extended
by mutual agreement of the parties in writing. For the purposes of
extending the time limits referred to under Article 21, the
Association may designate a person authorized to sign on behalf of

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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' non-
privileged 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.

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 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 mother’s 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 mother’s 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

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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. This fact was confirmed in

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

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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

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the Chief to discharge the Grievant on October 28, 2014. The grounds for the Appellant’s

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.) Brutality to a City prisoner;

(P.) For just cause

2. Civil Service Rules, City of El Paso, Texas, Rule 15, Sections (b.) and
(p.)

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(b.) Has willfully, wantonly, or through culpable negligence been guilty of
brutality or cruelty to an inmate or prisoner of a city institution or to a
person in custody, provided the act committed was not necessarily or
lawfully done in self-defense, or to protect the lives of others, or to
prevent the escape of a person lawfully in custody;

(p.) For just cause.

(3) El Paso Police Department, Procedures Manual

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:

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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.

0-406.07 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 will strive to set an example for other law enforcement
personnel.

Section 3-101, including but not limited to the following subsections, which
state:

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.

A. Definitions of levels of resistance:

1. No Resistance: the subject offers no resistance to the officer's orders.

2. Passive Resistance: the subject does not comply or only partially

complies with the officer's orders but takes no action that could be defined
as defensive resistance, active aggression or deadly force threat. Refusing
to move or refusing to walk when subjected to an escort hold are considered
passive resistance.

3. Defensive Resistance: any action by a subject that attempts to prevent an

officer from gaining control of the subject (e.g., pulling/pushing away to
defeat the Escort Position). It is not an attack on the officer, but a
physical act designed to prevent the officer from gaining control.

4. Active Aggression: includes physical actions/assaults against the officer

or another person with less than deadly force (e.g., advancing, challenging,
punching, kicking, grabbing, wrestling, etc.).

5. Deadly Force Threat: includes actions that place the officer or another
at risk of imminent serious bodily injury or death.

3-101.01 PARAMETERS FOR USE OF DEADLY FORCE. The Texas Penal Code sets forth
when the use of deadly force is justified. The Department sets further
guidelines and administrative restrictions regarding the use of deadly
force. Immediate threat is considered to exist if the suspect has
demonstrated actions that would lead an Officer to reasonably believe that a

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suspect will continue to pose a threat of death or serious bodily injury if
not apprehended without delay. Reasonable belief, death, and serious bodily
injury carry the same definition as in Section 1.07 of the Texas Penal Code.
(emphasis added)

A. Deadly force, as a matter of Department policy (whether the Officer is on

or off duty), is used only in the following situations:

1. When necessary to protect the Officer from what is reasonably believed by

the Officer, at the time, to be an immediate threat of death or serious
bodily injury. (emphasis added)

2. When necessary to protect another from what is reasonably believed by the

Officer, at the time, to be an immediate threat of death or serious bodily
injury. (emphasis added)

3. When immediately necessary to make a lawful arrest or prevent an escape

after arrest, and the crime allegedly committed included the use or
attempted use of deadly force by the suspect, and the Officer reasonably
believes there is a substantial risk that the suspect will cause death or
serious bodily injury to another if the arrest is delayed.

B. A Police Officer may discharge a firearm under the following

circumstances:

In the use of deadly force.

3-101.03 USE OF FORCE CONTINUUM.

D. Level 4: Use of Less Lethal Force: Use of less lethal force techniques
are designed to control active aggression, but can be used to control
defensive resistance when other lesser means have failed or where the
officer reasonably believes the lesser means would clearly be ineffective.
Police officers are authorized to use less lethal force techniques for which
they are trained and certified. Less lethal force techniques are techniques
that do not create a substantial risk of causing death or serious bodily
injury. These techniques should always be used with the intent to
temporarily disable a subject and gain compliance, never with the intent to
cause permanent injury. Officers deploying less lethal techniques involving
chemical agents, air taser and 12 gauge bean bag munitions, will summon
medical personnel to evaluate the subject’s condition.

1. Hard empty hand control.

2. Chemical agents.

3. Batons.

4. Air Taser.

F. Level 6: Deadly Force/Potentially Deadly Force: Any force used by an

officer that may result in serious injury or the loss of human life.
Officers’ use of deadly force will be consistent with the parameters set
forth in this chapter.

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3-101.05 SITUATIONAL FORCE MODEL. The Department recognizes that a Police
Officer may have to immediately resort to any level of force appropriate for
the situation at hand. The Situational Force Model is designed to show that
an Officer has a variety of force levels available and will select the least
violent means relative to the situation. The Officer will rely upon
objective reasoned discretion to make the selection. The option an Officer
uses will depend upon many factors, but is generally dictated by the amount
of resistance offered by the subject. This model places the Officer in the
center of the situation. The Officer is trained to evaluate and continually
re-evaluate the situation and select the appropriate force option based on
the Officer’s knowledge, skills, and justification for the force used.

(4) El Paso Police Department Procedures Manual Addendum, Rules and

Regulations

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 employee’s 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 employee’s
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 require a

supervisory officer to relieve from duty a subordinate officer:

(d) For unnecessary force toward any person.

(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
No member of the Department shall willfully misrepresent any matter, verbal
or written, at any time to any person or party in any venue.

C. Factual Background

This administrative investigation was initiated against you on or about

March 9, 2013 as a result of your involvement in an officer-involved
shooting that took place at or near the Downtown El Paso County Detention
Facility located at 601 East Overland in the City and County of El Paso,
Texas (“County Jail”). As a result of this shooting, a separate criminal
investigation was opened by the appropriate unit of the Department, the
Texas Rangers and the F.B.I. Pursuant to the terms of the Articles of
Agreement between the City of El Paso, Texas and El Paso Municipal Police
Officers’ Association, the applicable time limitation for the administrative
case falls under the 2-year rule. This administrative investigation was
timely per the terms of said agreement.

On or about March 8, 2013, at or about 1055 hours, Daniel Saenz (“Saenz”)

was arrested by the Department for assault, assault on a public servant and
injury to elderly that took place at the Del Sol Medical Center Emergency
Room in the City and County of El Paso, Texas. Saenz was medically cleared
by the hospital prior to being transported to Pebble Hills Regional Command
Center (“PHRC”) for processing. Based on the administrative investigation,
you were not involved in the arrest of Saenz and first interacted with him
at PHRC while he was in the holding cell area.

On the same day, March 8, 2013, your tour of duty as a police officer with
the El Paso Police Department at PHRC began at or about 1500 hours. Upon
the start of your tour of duty, you volunteered to assist G4S officers
transport prisoners to the County Jail rather than go into the field.

One of the prisoners you were going to assist in transporting was Saenz.

Prior to transport, you spoke to Saenz while he was in a holding cell and
“tried to build a rapport with him as [you] do with all [your] prisoners and
transports.” You explained that you tried to build this rapport with Saenz,
as you do with all your prisoners or transports, because you wanted him to
“know that [you were] not the arresting officer and [didn’t] know why [he]
was arrested” or similar words. However, the evidence established that you
did know the reason for his arrest as you reviewed the criminal affidavit
and claimed that this knowledge coupled with his former body building
history created fear and made you more cautious of him or similar words.

Based on the evidence, you claimed that your “fear grew stronger” of Saenz
after interacting with him at PHRC even though he was not displaying any
aggressive behavior. You admitted that he was not combative while at PHRC
and thus, his behavior was not enough to raise an alarm for you to voice a
concern for your safety or the safety of others to any supervisor.

You further claimed that he told you to “shoot him” when you and others were
placing him in the transport van. However, no other police or transit
officer assisting you with placing Saenz in the van heard this comment. You
again did not notify a supervisor of your concern or growing fear of Saenz
after he allegedly made this comment because you “figured once we got him in
the truck he would calm down” or similar words.

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. We’re 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 didn’t 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
Based on your training and experience as a police officer, you stated in
your sworn statement that an officer can legally use deadly force “when
necessary to protect the officer or another from what is reasonably believed
by the officer at the time to be an immediate threat of death or serious
bodily injury. When immediately necessary to make a lawful arrest or
prevent escape after an arrest” or similar words. The evidence established
that deadly force was not justified in this shooting because there was no
immediate threat of death or serious bodily injury, the handcuffed Saenz was
not using or attempting to use deadly force against you or the transport
officer and he was not on his feet escaping at the time you shot him.

Additionally, you admitted in your sworn administrative statement that you

did not believe that deadly force was reasonable and necessary at the time
of the shooting but “felt that it could escalate to that point because [you
were] not physically capable at the time to stop Mr. Saenz” or similar
words.

You claim that you were fatigued and your judgment was clouded. However,
you state in your sworn statements that you were able to mentally determine
that non-deadly force would not work on Saenz because of his behavior
earlier in the day, which is why you did not draw your Taser and drew your
duty weapon to gain compliance from Saenz. Therefore, your words contradict
your contentions and establish that you engaged in poor judgment at the time
in question.

D. Reasons for Termination

Based on this evidence, your conduct was found to be in violation of:

a. Sections 6.13-3(B) and (P), Charter of the City of El Paso.

b. Rule 15, sections (b) and (p), El Paso Civil Service Rules and
Regulations.

c. Section 0-401, 0-402, 0-403, 0-405, 0-406, 3-101, El Paso Police

Department Procedures Manual;

d. Rule 1, 4, 5, 9, 10, El Paso Police Department Procedures Manual

Addendum, Rules and Regulations.

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
 matter of Department policy, is used only in limited situations including
when necessary to protect an officer or another from what is reasonably
believed to be an immediate threat of death or serious bodily injury.

Saenz was handcuffed at all relevant times and you re-engaged in the
struggle with him after you drew your weapon. Your conduct was the result
of poor judgment and such conduct is not considered to be within the policy,
practice or custom of the Department.

Additionally, an officer’s integrity is essential to the performance of his

duties as a peace officer. Yet, you misrepresented facts regarding res
gestae statements made to supervisors and whether or not your conduct was
intentional or accidental. By misrepresenting the facts you are considered
to have been dishonest and untruthful.

Your conduct in this case brings your integrity into question and
demonstrates that you do not understand the gravity of your oath as a police
officer that you will uphold the law and tell the truth. Your conduct in
this case is violates Department policies, procedures, rules, and
regulations. Your conduct has brought discredit to you as well as to the
Department. Hence, your conduct is subject to severe
discipline. Therefore, the Department hereby terminates your employment
with the City of El Paso.

Disciplinary action for violating the listed charges is within the

discretion of the Chief of Police. The discipline taken in this case is
based solely on the evidence obtained during the administrative
investigation. Said discipline being taken in this case is based solely on
your conduct at issue at the time in question.

You will have thirty (30) days from the date you receive this (final) Notice
of Termination to appeal such to the Civil Service Commission or, at the
election of the Association, to an arbitrator mutually agreed to by the
parties.

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 Chief’s 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 Chief’s 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 City’s

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.

POSITION OF THE CITY

The position of the City was spelled out in the following excerpt from its Post-Hearing Brief

reproduced below:

I. SUMMARY STATEMENT

On the afternoon of March 8, 2013, Police Officer Jose Flores shot, and
killed Daniel Saenz while Saenz was handcuffed and in Flores’ custodial care.
The moment of deadly force at issue here was captured in a single video frame
from a surveillance camera. See attached Exhibit A; Surveillance Camera video
frame (City Exhibit 4.A, Frame HDQ-1303-03029 Vid19 175941-180029.0579)).

After a thorough investigation of the shooting incident, Police Chief

Greg Allen, on behalf of the City of El Paso, terminated Flores employment with
the City. See Notice of Termination of Employment dated October 28, 2014, City
Exhibit 1.A)(“Termination Notice”).

The administrative charges specifying the just cause for termination can
be summarized into two basic categories:

First, that Officer Flores violated the City’s and the Police
Department’s policy with respect to the use and application of deadly force;
and,

Second, that during the course of the investigations into the event,
Officer Flores official statements were inconsistent with each other, leading
to the conclusion that Flores was not fully honest, candid, or forthcoming
about the reasons why he decided to pull his service weapon and discharge it
against a handcuffed person in custodial status.

Jose Flores filed a timely notice of appeal. See City Exhibit 1.B (Flores
Notice of Appeal). The hearing on this matter was abated by agreement of the
parties pending resolution of other collateral proceedings, namely, the

20
criminal case against Flores and the civil rights case against Flores and the
City.

The City’s 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 City’s and the Police Department’s
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 City’s position that it’s 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 a local

grand jury reviewed and declined to criminally indict;

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 only the proceedings related to Flores’

termination of employment.

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 background, the City of El Paso is a home rule municipality
organized under the Texas Constitution. It’s police department is governed by
a civil service system, but that system is contained in the City’s home-rule
Charter, not in Chapter 143 of the Texas Local Gov’t Code. See City Exhibit
#2.A and #2.B.

In addition, the City of El Paso is a collective bargaining city under

Chapter 174, Texas Local Gov’t Code. Consequently there are certain provisions
of an applicable labor agreement between the CITY and the police union that
apply to this appeal. See City Exhibit #2.D.

Between the time of the underlying incident in this case, and the time of
the evidentiary hearing, a new labor agreement was negotiated that made some
changes to the Article relating to disciplinary appeals. See City Exhibit
#2.D.1 and #2.D.2. The parties agree that the provisions contained in the labor
agreement in place at the time of the hearing control the arbitrator’s scope of
authority in this case. See City Exhibit #2.D.2 (Art. 21, Sec. 3, subpara. F,
p. 45). This provision articulates the scope of the arbitrator’s authority in
a discipline case, and specifically disavows the applicability of the ruling
for independent hearing examiners under Chapter 143, TLGC articulated in the
case of City of Waco v Kelley. The parties stipulated to the scope of the
arbitrator’s authority on the record at the inception of the hearing. See
Hearing Transcript I @ pp. 10-14.

III. SUMMARY OF POLICIES FOUND TO HAVE BEEN VIOLATED

The relevant policy provisions applicable to this termination and appeal

are laid out in the Termination Notice itself. See attached Exhibit B (City
Exhibit 1.A). The cited policy provisions are hereby incorporated by reference
from the Termination Notice document and will be addressed at appropriate
junctures in this brief.

IV. THE CHRONOLOGY OF EVENTS LEADING TO SAENZ’ MEDICAL CUSTODIAL STATUS,

HIS ARREST, AND THE SHOOTING INCIDENT.

The broad evidentiary record relating to the underlying incident is

largely undisputed and is amply supported by both the documents and the
testimony developed in this hearing. The documentary evidentiary record
includes not only the contents of the criminal investigation into the shooting
incident, but also internal affairs investigation into the incident, including
the administrative review of the Police Department’s Shooting Review Board
(SRB).

In short, no stone was left unturned in this investigation. The contents

of both the criminal investigation, as well as the internal affairs
investigation were included in the evidentiary record here. They are further
augmented by the testimony of the witnesses provided at the arbitral hearing.
Further, because the shooting incident itself, which occurred in the sally-port
driveway of the County Jail was videotaped, a digital record of the events is
also a part of the evidence record in this case.

What follows is a general chronology of the facts and events leading to

the shooting incident:

1. On the morning of March 8, 2013, the CITY’s Fire Department received a

call from an Albertson’s store located at 2200 Yarborough requesting assistance

22
with an individual who was reported with a psychiatric problem. Ambulance
personnel assessed the individual on scene, and transported him as a medical
call to Del Sol Medical Center (“Del Sol”). See City Exhibit #6.A thru #6.C.

2. At Del Sol, the individual who was brought in as a medical transport

only was identified as Daniel Saenz (“Saenz”). While he was at Del Sol, Saenz
was involved in an altercation with a patient, with medical personnel, and also
with an off-duty police officer. After a call for service to the police, Saenz
was later arrested by police officers who made the scene. See City Exhibit #7.A
thru #7.C (including reports and statements).

3. Saenz was taken to the Pebble Hills Regional Command Center (“Pebble
Hills”) for charging and later transport. See City Exhibit #8.A and #8.B
(including reports and statements).

4. Officer Jose Flores, Badge #2628, was scheduled to work on an

afternoon shift out of Pebble Hills from 3 pm to 1 am.. Flores volunteered to
transport two detainees who needed to be taken to the County Jail downtown, one
of whom was Daniel Saenz. See City Exhibit #3.A (Flores statement dated
3/18/2013).

5. Flores, with the assistance of two other G4S employees, assisted with
placing Saenz in the transport van, and he accompanied the transport van to the
County Jail downtown in his own patrol vehicle. See City Exhibit #3.A (Flores
statement dated 3/18/2013).

6. At the Jail, Saenz hit his head – either intentionally or accidentally

- against the frame of the door leading into the jail facility, causing a
bleeding head wound. Because of this injury, the County’s jail personnel
refused to accept Saenz for booking until he had received medical clearance
from the City first.

7. This meant that Officer Flores had to keep custody of Saenz. It also
made him responsible for having to take Saenz to another facility to get
medically cleared. For this reason, Flores and the G4S Officer accompanying
took Saenz back downstairs to get him medical transport. Because Saenz was not
cooperating, he had to be dragged back down to the sallyport area.

8. The shooting incident itself occurred outside the sallyport door where
Saenz had earlier hit his head, the details of which can be viewed in the jail
surveillance videos. See City Exhibit #4.A thru #4.D (jail surveillance
videos).

V. THE POST-SHOOT INVESTIGATIONS AND CHRONOLOGY OF EVENTS

9. Because the shooting incident involved a custodial death, the

department engaged in a criminal investigation of the shooting incident. This
was led by Detective Jerome Hinojos #1848.

10. The bulk of Det. Hinojos investigative work product was presented as
part of the investigative packet in this appeal. Det. Hinojos also explained
his involvement and work product in the testimony provided at the hearing. See
City Exhibit #9A thru #9.H (docs related to shooting incident); see also
Hearing Transcript I @ pp. 63-189 – Jerome Hinojos Testimony.

23
 11. The El Paso District Attorney presented a criminal case to a Grand
Jury. The Grand Jury did not indict Flores. It is not known what theory of
criminal liability, that is, what level of intent or culpability, the District
Attorney presented to the Grand Jury. The record shows simply that the Grand
Jury did not indict. See Testimony of Det. Hinojos, 1 Transcript @ pp. 65-66;
93-95.

12. The internal affairs component of the investigation was led primarily
by Det. Jeremy Poust #2451, who incorporated the criminal case materials into
the internal affairs file. Det. Poust was the investigative officer primarily
responsible for compiling the evidence and presenting it to the Department’s
Shooting Review Board (“SRB”). See Testimony of Det. Poust, 1 Transcript @ pp.
189 – 261. The SRB completed its work on or about May 16, 2014. See City
Exhibit #10.

13. Flores received his first Notice of Proposed Termination from Police
Chief Allen dated t June 9, 2014 and was advised of his right to ask for a due
process hearing with the Chief. Flores also received a complete copy of the IA
investigative file on or about June 10, 2014. City Exhibits #1.C.

14. Flores invoked his right to due process hearing, and the parties
agreed to postpone the due process hearing by written agreement dated June 24,
2014. City Exhibit 1.D.

15. The due process hearing with Police Chief Allen was later held on
October 28, 2014 to discuss a negotiated resolution of the proposed
disciplinary charges. City Exhibit 1.E. No agreement was reached and the
Termination Notice was therefore issued. See City Exhibits #1.A.

VI. FLORES FAILED TO SATISFY THE POLICE DEPARTMENT’S STANDARDS FOR TRUTH,
HONESTY, AND INTEGRITY IN CONNECTION WITH OFFICIAL REPORTS AND STATEMENTS

16. Officer Flores gave a number of official statements during the course
of the investigations, all of which are contained in the evidentiary record.
These are the following:

a. On March 18, 2013, about ten days after the shooting incident, Flores
delivered a voluntary statement to Detective J. Hinojos #1848 in connection
with his criminal investigation into the incident. This statement was prepared
by Flores, with the benefit of counsel, and only limited interrogation by Det.
Hinojos. See City Exhibit 3.A; see also Det. Hinojosa Testimony, Hearing
Transcript @ pp. 97-99 and Ranger Wright Testimony, Hearing Transcript II @ pp.
85.

b. On September 18, 2013, just over six months after the incident, Flores
give another voluntary statement to Texas Ranger Kevin D. Wright, which was
taken at the law offices of Attorney Jim Darnell, Flores’ criminal defense
attorney. City Exhibit 3.B; see also Ranger Wright Testimony, Hearing
Transcript II @ pp. 92 .

c. On May 5, 2014, about fourteen months after the incident, Officer

Flores gave Internal Affairs statement to Detective Jeremy Poust #2451. City
Exhibit 3.C.

24
 d. On May 16, 2014, Officer Flores provided further testimony to the
Department’s Shooting Review Board (SRB). See Exhibit 10.H.1 (transcription of
testimony before SRB).

17. It was the shifting nature of Flores’ testimony over the course of
these statements, that drew skepticism by the time of the SRB hearing about
Flores’ evolving description of why he had used deadly force against a person
in his custodial care.

18. This skepticism was exacerbated by the comparative testimony of two

supervisory Sergeants, both of whom had had immediate contact with Flores after
the shooting occurred, and who testified about what Flores had said to them at
that time. See Exhibit 3.D.1 (Sgt. Gabe Peralta) and 3.D.2 (Sgt. Andrew
Salazar).

19. These testimonies did not line up, and the SRB at least gave credence
to the statements of the Sergeants over that of Flores. The same is true of the
description by the G4S officer who was with Flores at the time of the shooting.
See Statements of G4S Officer Alejandro Romero, City Exhibit 9.F.4. A summary
of this material will illustrate the point.

20. In his statement of March 18, 2014, after Flores had had a ten day
reprieve from the incident and presumably had had time to calm down and gather
his thoughts about the matter. Flores and his counsel had been given access to
the video of the shooting incident by Det. Hinjos. Flores had ample opportunity
to provide a full, complete, and candid statement. See Det. Hinojos Testimony,
Hearing Transcript @ pp. 98-100.

21. To read Flores’ first statement, one senses that from the moment
Flores came into contact with Saenz at Pebble Hills, he was apprehensive about
Saenz’ abnormal behavior and his obvious strength. To read Flores’ narrative,
his fear and apprehension about Saenz clearly begins at Pebble Hills, even
before Saenz is transported. See Flores Statement dated 3/8/2013, City Exhibit
3.A.

22. One is left wondering why Flores did not ask for assistance with
Saenz from the outset or take some safety precautions. Flores, for example,
had stated that he had witnessed at Pebble Hills Saenz’ ability to bring his
cuffed hands from behind his back to his front. He states, in pertinent part:

“… As long as I’ve worked for EPPD and in the department of corrections

[Flores’ prior job], I have never seen someone especially with his build place
his arms in front of his body and back without any difficulties and as quick as
he did it. It was unbelievable that is was that easy for him, even with double
cuffs. Again, I told myself to be very careful with this guy. One of the G4S
guys was standing there and saw Mr. Saenz do this. He said Oh shit when he saw
this happen….”

See Flores Statement dated 3/18/2013, City Exhibit 3.A @ p.3 (emphasis
added).

23. But when asked about this representation by an SRB member, Flores
response was:

UNKNOWN MALE: And then you mentioned, also, that while you’re in the
cell area of the Pebble Hills regional command, you saw the ease with which

25
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. We’ve had – we’ve had prisoners do that before and
normally we tell them to stop that or they can’t do that and they comply. We
have them either place their cuffs back, if they’re able to do it. If they’re
not, then we’ll 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 Peralta’s 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 couldn’t believe that I had shot him. … “I told the guard “Man, I
didn’t 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 didn’t 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
about the conflicting nature of Flores’ testimony, as reflected in the
following exchange with Flores:

UNKNOWN MALE: Yet as I look at your first statement, but I don’t

remember seeing accidental discharge anywhere in that first statement.

OFFICER FLORES: That’s correct, sir.

UNKNOWN MALE: Why wouldn’t you –if that’s your contention of how Mr.
Saenz was killed, why is that not included in your first statement?

OFFICER FLORES: I don’t 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.
That’s 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
Allen’s 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. You were not in fact involved in the taking of the statement.

A. The first statement, yes.

27
 Q. The first statement. And why is that?

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 –
we’re all busy people – he just didn’t think to give us a call to say “Hey,
they’re 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 don’t 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 – I’m
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 for a second

statement to be provide by Flores to get “clarification”:

Q. All right. And so it sounds like from what you’re 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. And did you share that with Det. Hinojos?

A. I did eventually. Not that day.

Q. So we have a second statement that you were involved in.

A. Correct.

Q. And that was done in September 2013.

A. Correct.

Q. All right. And that’s the one that was done at the criminal defense
attorney for Officer Flores by that time which is Jim Darnell.

A. Correct.

28
 Q. So this was done at his law office.

A. Correct.

Q. All right. And the purpose of this was, as you testified earlier,
to do clarification.

A. Correct.

See Ranger Wright Testimony, Hearing Transcript II @ pp. 91-92.

38. Ranger Wright further explained that the taking of a second statement
was out of the ordinary:

Q. All right. You indicated here in the direct exam that a second
statement is not normal.

A. Correct.

Q. All right. And is that the case, a second statement in a case like
this is not normal?

A. For me, as far as my experience, it is not normal.

Q. And why is that, sir?

A. Usually we get everything addressed within the first statement.

You know, there’s 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. As far as if there’s a first statement that needs clarification?

Q. Yeah.

See Ranger Wright Testimony, Hearing Transcript II @ pp. 92, l.16 - p.

93, ll. 1-10 (emphasis added).

39. Ranger Wright also explained that before taking the second statement,
he reviewed the video with Officer Flores, who apparently was seeing it for the
first time. See Ranger Wright Testimony, Hearing Transcript II @ pp. 94-95.

40. But Det. Hinojos had made the video available to Flores and his
counsel before Flores turned in his first statement. See Hinjos Testimony,
Hearing Transcript @ pp. 100-101. Although it appears that Flores’ counsel
viewed the video, Flores apparently did not view the video before turning in
his first statement.

41. Det. Hinojos testified that Officer Flores was given the necessary
time and latitude to provide a full and complete statement the first time
around. Had Flores asked to see the video first, he could have done so. See
Hinjos Testimony, Hearing Transcript @ pp. 100. Why Flores elected to not view

29
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 Wright’s 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 Wright’s 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 Allen’s Testimony,
Hearing Transcript I @ pp. 379-380; see also City Exhibit 10.E (Notes by
Estella Flores and George Atkins).

30
 46. The Notice of Termination Notice cited a violation of the following
department policy provisions:

El Paso Police Department, Procedures Manual:

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.

El Paso Police Department, Procedures Manual Addendum, Rules and

Regulations:

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 CITY’S 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 City’s and the Department’s 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
 50. Use of force training officer Jose Luis Lopez, as sympathetic as he
was to Flores’ situation, had testified that based on his objective view of the
shooting incident, it did not present a factual scenario that would justify the
use of deadly force:

Q. Okay. So here is what I wanted you to address and let me start with
this question, which I had put to you when I met you. At any time in the – in
the sally port area when Officer Flores and Romero are handling Saenz, did you
– do you see a scenario that justifies the use of deadly force?

A. What I saw simply on the video, not being part of the situation, I
can’t say that it matches anything that would justify a deadly force response.

Q. Looking at it from the perspective of a training, is there anything

in this video that – I mean given all the context that where you would feel
comfortable training and then saying if you have this fear or you have this
concern or you have this kind of combative subject, despite the fact that he is
cuffed, you can have a deadly – a scenario that would justify the use of deadly
force?

A. Unfortunately, no. I can’t see – even giving his – you know, state
of fatigue, from what I’m seeing, I can’t – I can’t say that is a deadly force
situation.

See Testimony of Jose Luis Lopez, 1 Transcript @ pp. 291-291.

51. The SRB members unanimously concluded that the use of deadly force by
Flores was out of policy. See SRB Findings and Recommendations Notes; City
Exhibit #10.E and #10.F.

52. Chief Allen, for all his misgivings and concerns, and even sympathy
for Flores’ situation, stands by the decision to terminate Flores from his
position as a law enforcement officer.

Q. Well, I mean in the end here, we have a charge letter signed by you
that terminates this officer.

A. That’s right.

Q. And so do you still stand by this letter today.

A. I still stand by it.

Q. Okay. And why is that?

A. Well, the fact that everyone was seeing it differently and that we
had civilian members on this board [SRB] who aren’t police officers, they’re
laypeople, saw this as a bad shoot, which it was. We don’t kill people
accidentally.

Q. You agree that it was a bad shoot?

A. Yes, it was. We don’t 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. What mitigating factors are those?

A. Well, the confliction [sic] in statements.

See Testimony of Police Chief Allen, Hearing Transcript I @ pp. 379

(emphasis added).

53. But Chief Allen was completely transparent about his responsibilities
as the Chief to the Department, to the City, and to the public:

A. … And in that case, now, the bigger picture doesn’t become Officer
Flores or me. it becomes the integrity of the police department and how this
department is perceived in the community.

Q. Okay

A. And that becomes an overriding factor when I make decisions

sometimes because no I can’t weigh it on the individual, but I have to look at
the organization’s effectiveness in this community and that – it was part of
the decisions.

….

Q. Well, so what’s the fairness issue her, you know, the big picture
that you’ve 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
he’s 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 don’t kill people accidentally. And in this case there’s
that – we know accidental perception of it, but the public doesn’t. And whether
that statement can be made to the public or it can be believed is the problem.
….

Chief Allen Testimony, Hearing Transcript I @ pp. 384-385 (emphasis

added).

VIII. MITIGATING CIRCUMSTANCES?

54. This appeal is unique in that there are arguably certain mitigating
circumstances that bear on the just outcome of the case and which beg to be
addressed in this closing brief. These are:

a. The County Jail nurse’s refusal to accept Saenz into the jail pending
medical clearance;

b. Whether supervisory sergeant’s at Pebble Hills Regional Center should

have taken affirmative steps to make alternate transport arrangements for
Saenz; and,

c. Whether the discharge of Flores’ weapon was causes by GS4 Officer

Romero’ hand inadvertently striking Flores’ gun-hand after Flores had drawn his
weapon.

33
 55. Flores cites as a mitigating circumstance is that the County Jail
Nurse summarily refused to accept Saenz into the facility, without even
bothering to look at him. It does appear that Saenz deliberately knocks his
head against the sallyport door, causing much bleeding. There can be no doubt
that this was frustrating for Flores.

56. One statement provided to Det. P.R. Lozano, provides a view of the
scene from an eyewitness at the jail. It states in in pertinent part:

“… At this time I heard one of the female nurses that was wearing a gray
scrubs and black prescription glasses yelling at the Officer that had just
brought in the male subject with the bloody face/chest into the holding tank.
I heard thee female nurse yelling, "No,“No, we can not take him inside because
he needs to go to the ER or you need to call an ambulance.”

“I could see that the male Officer was tired as he was sweating and he
looked like he was trying to catch his breath. I could see that his sunglasses
were about to fall from his head where he had secured them. I would also see
that the Officer’s bullet proof vest was raised on the front and it looked as
if he had been struggling with the male subject with the blood on his face
before he brought him into the holding tank at the jail. I also saw that the
Police Officer looked frustrated with the male subject he had just brought into
the holding tank. It looked like the Police Officer was very tired from
dealing with this male subject as the Officer was smaller than the male subject
with the blood face. I don’t think the Officer heard the nurse yelling at him
that they were not going to take his blood prisoner and the nurse had to scream
a couple of times so that the Officer in the holding tank could hear her.

I then saw that the Officer acknowledge the nurse and he looked surprised
that the nurse was not going to take his blood prisoner….

Statement of Omar Cuevas dated 3/12/2013, to Det. P.R. Lozano, City

Exhibit 9.H.2 @ p.2 (emphasis added).

57. Further, it is apparent that the Jail Personnel were simply following
their own policies with respect to accepting prisoners who were in obvious need
of medical assistance. For example, Corporal Richard Rosales, a Sheriff’s
Deputy, witnessed the incident and stated in pertinent part as follows:

“ I was behind the counter and I was about to approach the holding area
when Corporal Covington walked up to me and asked me “Are we going to take him
(the prisoner) like that?” I told Corporal Covington, “No, we cannot accept
him (the Prisoner) like that, because he was bleeding.” Corporal Covington
approached the Holding Area, and I stayed at the counter when Nurse Magdaleno
began yelling, “We (the Jail) were not going to accept him (the Prisoner) like
that, call EMS.

By procedure, We contact our dispatcher, and they call EMS. We did not
request EMS because the Officers began to leave. I saw the Officers leaving so
I assumed they (the Officers) were taking the Prisoner out the holding area and
toward the elevators. When the Officer left, Covington saw that there was
blood left by the Prisoner in the Holding area. Corporal Covington called the
Trustees to clean up the blood in the holding cell. I saw the blood in the
holding cell before it was cleaned. I would say that there was plenty of blood
left by the Prisoner.

34
 Statement of County Jail Corporal Richard Rosales dated 3/11/2013 to Det.
JR Armendariz, City Exhibit 9.E.7 (emphasis added).

58. Other statements from County Jail personnel reflect that jail
personnel did move to assist Officer Flores and GS4 Officer Romero as they were
bringing Saenz in through the salleyport area. See City Exhibit 9.E – Witness
statements from County Jail Personnel.

59. It is most likely that this development was not one that Flores had
expected, and that it contributed to his own Flores’ statement of mind and
attitude towards Saenz. Now, he had to not only go back downstairs with Saenz,
but had to accompany him to get medically clear before he could be delivered to
the Jail’s custody. Part of Flores duties, but a hassle nonetheless.

60. However, this development does not justify Flores’ later use of
force, which for policy purposes must necessarily, and always, be evaluated on
an objective basis, not an officer’s subjective emotional state. In other
words, the rejection of Saenz by Jail personnel, while unfortunate, cannot
reasonably serve as a basis upon which to rule that Flores’ termination was
somehow arbitrary and capricious or that his discipline was disproportionate.

61. Other possible mitigating circumstances urged by Flores is that

supervisory personnel at the Pebble Hills Regional Facility did not adequately
appreciate that Saenz was going to present an exceptional situation, and that
some other provision should have been made for transporting him to the County
Jail.

62. This topic was explored by the SRB:

UNKNOWN MALE: Okay. Second point. Who gave you the assignment as far
as transporting?

OFFICER FLORES: Sergeant Rathman.

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: No, not that I remember…..

Flores Testimony at SRB Hearing, City Exhibit 10.H.1 @ p. 15

63. One SRB member summarized the chain of events as follows:

UNKNOWN MALE: You know, it’s – it’s just like a ticking time bomb and
you-all are progressingly [sic] just taking it along until – like a wounded
animal is very, very dangerous.

And I just would ask you at any point during the transport from
Pebble Hills to refusal on the second floor of the jail, did you think of
taking like “Hey, I got to do something drastic like shackles, leg irons. I
got to put out a Mayday.” I mean, you know, this guy – after you drug him
around and everything, he’s just getting his second wind and you guys are
almost done in. What would have happened I don’t know. I – I feel that – that
you wish you could take everything back.

35
 OFFICER FLORES: That’s correct.

UNKNOWN MALE: but it’s – it’s 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 Department’s 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 will strive to set an example for other law

enforcement personnel.

3-101.5 SITUATIONAL FORCE MODEL. The Department recognizes that a Police

Officer may have to immediately resort to any level of force appropriate for he
situation at hand. The Situational Force Model is designed to show that an
Officer has a variety of force levels available and will select the least
violent means relative to the situation. The Officer will rely upon objective
reasoned discretion to make the selection. The option an Officer uses will
depend upon many factors, but is generally dictated by the amount of resistance
offered by the subject. This model places the Officer in the center of the
situation. The Officer is trained to evaluate and continually re-evaluate the
situation and select the appropriate force option based on the Officer’s
knowledge, skills, and justification for the force used.

Notice of Termination @ pp. 3, 5, City Exhibit 1.A (emphasis added).

67. Finally, there is the question of whether the extant video of the
shooting incident itself supports a finding that the shooting was in fact
caused by GS4 Officer Romero inadvertently striking Flores’ gun-hand as he
(Romero) fell away from Saenz.

36
 68. First, as previously addressed above, the evidence on this point is
inconclusive. The video shows what it shows, and reasonable minds can draw
different conclusions about whether Romero’s left hand in fact struck Flores’
right hand, thereby causing the gun to discharge.

69. Flores’ counsel brought in Texas Ranger Wright to provide an “expert

opinion” on this issue. See Ranger Wright Testimony, Hearing Transcript @ p.
82. But on cross-examination, Ranger Wright admitted that there was no way to
be 100% sure that this had happened.

ARBITRATOR SHERMAN: Wouldn’t you agree it looks like a roughing the

kicker call when you’re watching the video and you’re trying to figure out – I
mean it’s – you can’t know for sure. Right?

A. Correct.

Ranger Wright Testimony, Hearing Transcript II @ pp.99-100.

70. Moreover, when all is said and done, whether the shooting was
“accidental” does not provide a defense to the policy violation. There is no
disagreement that Flores made a conscious and deliberate decision to draw his
firearm. Whether he intended to use it at that moment is a different question.
He consciously chose to draw it, even if it was, as he said that the SRB
hearing, simply to make for a show of force with no intent to in use such
force. See Flores Testimony at SRB Hearing, City Exhibit 10.H.1 @ pp. 31-32
(transcript and audio)

71. In fact, most observers by the time of the evidence hearing in this
case, even Chief Allen, believe that Flores did not intend to in fact shoot the
suspect at that instant. The Grand Jury must have believed this, since that
body did not indict. Whether the Grand Jury considered negligent homicide as
an option is not known. But for purposes of the administrative charges at
issue here, which are evaluated on a civil service standard of just cause,
Flores can and should be held responsible for the consequences of his action
once he elected to draw is weapon. In short, Flores lost control of a
situation that it was his duty to control.

72. That the shooting was “accidental” does not make it justifiable, nor
does it bring it within policy. As Chief Allen testified, “… we don’t kill
people accidentally…” Chief Allen Testimony, Hearing Transcript I @ p. 385,
ll. 1-12.

IX. IN HIS HEARING TESTIMONY, FLORES DEMONSTRATED AN UNWILLINGNESS, OR AN

INABILITY, TO ACCEPT THAT HIS USE OF DEADLY FORCE AGAINST SAENZ, WHETHER
INTENTIONAL OR ACCIDENTAL, WAS NONETHELESS IN VIOLATION OF THE CITY’S USE OF
FORCE POLICIES.

73. Given the overwhelming consensus that this shooting was not compliant
with policy on use of force, it was surprising to hear from Flores that he did
not concede the policy violation on the use of force at all. That testimony
reads as follows:

Q. Now, you heard some testimony yesterday about – from the trainer
Lopez and from the shooting review board, and even from Chief Allen, that the
shoot was not a good shoot.

37
 A. Yes.

Q. Do you understand that. And that it’s 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. Yes, I heard that.

Q. Okay. Now, what is – what is your position about that? Are you –
do you agree or disagree with the city’s / department’s findings on that issue,
the use of force issue?

A. Obviously I disagree. That’s why we’re here. Like I mentioned

before, when we were struggling, my level of energy was rock bottom compared to
Mr. Saenz’s, 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. In spite of the review and the findings that were made.

A. That’s correct.

Q. Okay. And so you are asking the hearing examiner to find that there
is no policy violation?

A. I’m sorry. Could you repeat that.

Q. Are you asking the hearing examiner to find that there is no policy
violation here on the use of force?

A. Yes.

Jose Flores Testimony, Hearing Transcript II @ pp. 210-211 (emphasis

added).

74. In fact, throughout the investigation, and beginning with his first
statement, a common and recurrent theme by Flores is that he is the victim
here.

75. Flores lays responsibility for what happened outside of himself, at

all levels, beginning with Saenz, next the County Jail staff, followed by the
GS4 Officer, and ending with his supervisory staff.

76. As discussed above, Flores lays responsibility on the County Jail,

for refusing to accept Saenz, as discussed above.

77. Flores negative inferences against G4S Officer Romero are

undignified. To describe him as a liability rather than an asset is unfair,
and is not borne out by the record. G4S Officer Romero was called to testified
in this case by Flores, not the City. So on the one had Flores disses, Romero,
but then calls him as a witness.

38
 78. Significantly, Romero demonstrated himself to be candid, credible,
certified, trained, and otherwise competent and qualified to do the job he was
doing. See G4S Officer Alejandro Romero Testimony, Hearing Transcript II @ pp.
128-132. He was hardly a “burger-flipper.”

79. Moreover, Romero bears no responsibility for Saenz getting agitated

just before getting shot. While Romero was in the outside sally port driveway
guarding Saenz – by himself - while Flores went back into the facility to
retrieve his weapon, Saenz was quiet and under control. It was Flores’
decision to pick Flores up before EMS personnel arrived, and it was this action
that got Saenz agitated again. Sally port Video, City Exhibits 4.A – 4.D.

80. As shown above, Flores wants his own subjective fears to serve as a
basis upon which to support an arbitral finding of “no policy violation”.
Significantly, it was only after the Arbitrator expressed concern about whether
Flores had learned anything from this experience that Flores modified his
position, once again:

ARBITRATOR SHERMAN: But only you know whether you learned something from
this whole incident.

A. Yes.

ARBITRATOR SHERMAN: And if you did I would like to hear about it.
And if you don’t – if you don’t think it was a policy violation and you didn’t
learn anything from it, I would like to hear that too.

A. Well, as far as a policy violation, I wouldn’t 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. There’s a lot of what if’s could have been done,
you know, and that’s 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. It’s 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 CITY’S TERMINATION DECISION WAS NEITHER ARBITRARY OR CAPRICIOUS

83. Thus, the evidentiary record presented in this case demonstrates that
the City’s 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 won’t 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. Are you comfortable with the composition of this board?

A. Yes, I am.

Q. All right. And do you feel that it strikes the appropriate balance
between the – what I’ll call the lay interest in officer shoot situations
versus the professional law enforcement interest in office shoot situations.

A. Yes, I am comfortable with that.

Q. Okay. And you feel that it strikes the right balance.

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-to-

day 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 City’s 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 Chief’s 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 Grievant’s appeal be DENIED and the disciplinary termination

be sustained in its entirety.

41
 POSITION OF THE UNION
The position of the Union was spelled out in the following excerpt from its Post-Hearing

Brief:

Summary of the Evidence

A. Jose Flores

Jose Flores was an excellent police officer with an exemplary record.1

From a personal standpoint, the Chief of Police would like to bring him back to
work for the EPPD because Flores is an honest and decent individual.2 He was
officer of the year at Pebble Hills Regional Command in 2012.3 He is eager to
serve the community of El Paso once again as a police officer.4 Officer Flores
accepts responsibility for his part in this tragic event,5 but agrees with the
Chief of Police — that he was placed in an "uncontrollable situation"6 and did
not deserve to lose his job.

B. Relevance of the Circumstances

Officer Flores' conduct is to be evaluated under an objective

reasonableness standard.7 For this reason, all details of the events leading up
to the shooting incident are relevant.8

C. Daniel Saenz

Daniel Saenz was a man of extraordinary physical strength. He was a

weightlifter and competitive body builder with a very muscular frame.9
Following a domestic disturbance call and an incident at a grocery store, Mr.
Saenz was taken by ambulance to Del Sol Hospital.10 While at the Del Sol
Emergency Room, Mr. Saenz assaulted Oscar Sosa, an 80-year old man who was a
patient there.11

1 Testimony of Chief Gregory Allen, RR 374; testimony of Jose Luis Lopez, RR

288 & 335-36; testimony of Jose Flores, RR2 203-04.
2 Chief Allen, RR 385.
3 Flores, RR2 200-03.
4 Flores, RR2 205-08.
5 Flores, RR2 222.
6 Chief Allen, RR 374.
7 Chief Allen, RR 402; Lopez, RR 310.
8 See Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d
443 (U.S. 1989) (objective reasonableness is viewed "in light of the facts and
circumstances confronting [officers]"); see also testimony of Jerome Hinojos,
RR 162.
9 Testimony of Alejandro Romero, RR2 123; Flores, RR2 149; EPPD 3.C., page 7
(IAD statement of Officer Flores); EPPD 7.B., 38th page (statement of EPPD
Officer Ricardo Machuca).
10 Testimony of Detective Jerome Hinojos, RR 73-78.
11 EPPD 7.B., 31st page (probable cause affidavit of EPPD Officer Ricardo
Machuca, dated 3/8/13).

42
 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. G4S Security Services, Inc.

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-to-
last 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. Observations and Discussion at Pebble Hills Regional Command Center

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

27 Hinojos, RR 89; Flores, RR2 140-41.

28 Hinojos, RR 174-75.
29 See Lopez, RR 367-16.
30 See Lopez, RR 366-67; see also EPPD 3.C., page 4.
31 Lopez, RR 366-67; Testimony of Gabriel Peralta, RR2 66.
32 Peralta, RR2 66.
33 Transcript of statement of Alejandro Romero to the SRB, p. 23; Romero, RR2
128-29.
34 Peralta, RR2 59-60.
35 Peralta, RR2 60.
36 Peralta, RR2 62-65.
37 Peralta, RR2 65-68.
38 Transcript of statement of Sgt. Rathmann before the SRB, pp. 16-17.
39 Hinojos, RR 174.
40 Transcript of statement of Sgt. Rathmann before the SRB, p. 5.

44
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 non-
combative 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. Transportation and Escort to the Downtown Jail

At the jail, Officer Flores and G4S guard Romero escorted Mr. Saenz to
the back entrance while Mathews escorted Mr. Johnson. On the way along the
sidewalk and down the driveway to the jail entrance, Mr. Saenz began to
struggle 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 Transcript of statement of Sgt. Rathmann before the SRB, p. 10.

42 Flores, RR2 147-48.
43 Hinojos, RR 174; Flores, RR2 137-38.
44 Flores, RR2 143.
45 Flores, RR2 144-45; see also Hinojos, RR 175-77.
46 Flores, RR2 144-46; EPPD 3.A., p. 9 (IAD statement of Officer Flores).
47 Flores, RR2 149-51.
48 Flores, RR2 152-53.
49 See generally Hinojos, RR 120-26.
50 Romero, RR2 115.

45
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 self-
inflicted 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 Romero, RR2 115-16; see generally Hinojos, RR 126-27.

52 Hinojos, RR 85-86.
53 Testimony of Jeremy Poust, RR 247-48.
54 Hinojos, RR 130.
55 Hinojos, RR 131.
56 Hinojos, RR 135-36.
57 Romero, RR2 117-18; Hinojos, RR 85-86.
58 Hinojos, RR 85-86.
59 Hinojos, RR 86-91.
60 Flores, RR2 156-57; EPPD 3.C., pp. 10-11 (IAD statement of Officer Flores).
61 Transcript of statement of Jose Flores before the SRB, pp. 22-23.
62 Flores, RR2 166.
63 Flores, RR2 165; Hinojos, RR 139-41; EPPD C.3., p. 13.

46
 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. Physical Struggle

64 Hinojos, RR 141.
65 Flores, RR 157-58.
66 Flores, RR2 165; Hinojos, RR 145.
67 Hinojos, RR 141-42:12.
68 Peralta, RR2 11.
69 Peralta, RR2 13.
70 See Hinojos, RR 146.
71 Poust, RR 222-24.
72 Testimony of Sgt. Salazar, RR2 35-39.
73 EPPD 3.C., page 5 (IAD statement of Jose Flores).
74 Romero, RR2 118.
75 Hinojos, RR 146-47.
76 Flores, RR2 157-58; see also Hinojos, RR 146-47.
77 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 Flores, RR2 159-60; see also Romero, RR2 119.

79 Flores, RR2 159-60; Romero, RR2 119-20.
80 Flores, RR2 161.
81 Flores, RR2 175-76.
82 Flores, RR2 161-62 & 177.
83 Flores, RR2 162-63 & 179; see also Lopez, RR 307-08.
84 Lopez, RR 304; Flores, RR2 177-78.
85 See Flores, RR2 170.
86 Flores, RR2 179 & 185.
87 Flores, RR2 160-62; Lopez, RR 300-01.
88 Flores, RR2 180-82; EPPD 3.A., p.5.
89 EPPD 3.C., pp. 20-21.
90 Flores, RR2 168-70 & 185.
91 Romero, RR2 121-25; transcript of statement of Alejandro Romero to the SRB,

48
 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. His legs and
arms were burning and felt "like noodles."98

EPPD Chief Gregory Allen characterized Officer Flores' circumstance as

one of being at an "exhaustion point" such that it was starting to make Flores
feel as though he was about to lose.99 It was within this very frame of mind
that Officer Flores made the decision to take his gun out of his holster.

H. Decision to Unholster Gun

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

pp. 14-15 & 25.

92 Flores, RR2 183.
93 Romero, RR2 121-22.
94 Flores, RR2 163 & 185-86; Lopez, RR 308-09.
95 Flores, RR2 186-87.
96 Flores, RR2 184.
97 Flores, RR2 162; see also Lopez, RR 335:2-10; transcript of statement of
Alejandro Romero to the SRB, p. 16.
98 Transcript of statement of Alejandro Romero to the SRB, p. 17.
99 Chief Allen, RR 375-76.
100 Flores, RR2 163.
101 EPPD 3.C., p. 18.
102 Flores, RR2 163 & 168.
103 Flores, RR2 163-64.

49
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. "Reengaging" Mr. Saenz

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 right-
handed.108 The EPPD’s 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 split-
second 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. The Accidental Shooting

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 Chief Allen, RR2 56.

105 Flores, RR2 168-69.
106 EPPD 3.C., p. 19 (IAD statement of Officer Flores).
107 Flores, RR2 167; transcript of statement of Jose Flores to the SRB, pp. 44-
45.
108 Flores, RR2 166-67.
109 Lopez, RR 336-37 & 344.
110 Lopez, RR 337.
111 Lopez, RR 343.
112 Flores, RR2 189.
113 Lopez, RR 343.
114 Lopez, RR 314.
115 Lopez, RR 366.
116 Flores, RR2 172.
117 Testimony of Texas Ranger Kevin Wright, RR2 82; see also Lopez, RR 317.

50
 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. Post-Shooting Statements at the Scene

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

118 Flores, RR 163, 167-68.

119 Flores, RR2 163; EPPD 3.C., p. 21.
120 Flores, RR2 189-90.
121 Flores, RR2 164.
122 Romero, RR2 125-26.
123 Romero, RR2 126; Poust, RR 244-46; transcript of statement of Alejandro
Romero to the SRB, pp. 17-18.
124 Romero, RR2 135.
125 EPPD 8.B., 4th document of the tab (statement of Adrian Castro, dated
4/15/13).
126 Peralta, RR2 16.
127 Peralta, RR2 21-23.

51
 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. Use of Force Continuum

At the time of this shooting, the EPPD's use-of-force policy followed a

standard use-of-force continuum132 which consisted of:

Officer presence

Verbal commands

Soft hand control

Hard empty hand control

Less than lethal force (chemical agents, Taser, K-9, beanbag gun, baton)

Lethal force133

M. Statement to EPPD Crimes Against Persons Division

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 Salazar, RR2 30.

129 Salazar, RR2 37.
130 Flores, 190.
131 Flores, RR2 191-95.
132 Lopez, RR 326; EPPD 1.F.
133 Lopez, RR 346-54.
134 Hinojos, RR 180.
135 Hinojos, RR 181-82.
136 Hinojos, RR 100-01.

52
 It was normal practice for a Texas Ranger to be present at CAP when an
EPPD officer provided a statement such as Officer Flores'. However, no Texas
Ranger was present.137

N. Statement to Texas Rangers

Even though it was customary practice to obtain an officer's statement

within two to three days of a shooting,138 the Texas Rangers went to the EPPD
CAP division a day or two after Flores provided his statement "to sit down and
discuss what else needed to be done in this case."139 This would have been 11-
12 days after the incident. It was at this meeting that the Rangers learned
that Officer Flores had provided a statement to CAP, without them being
present.140

Upon reading Officer Flores' CAP statement, the Texas Rangers felt that
they needed to clarify that part of the statement in which Flores said he had
no choice but to stop the threat with deadly force. Specifically, the Rangers
did not know if that statement meant that Officer Flores intended to shoot Mr.
Saenz, or whether he was intending to use his gun as a show of force.141

On September 18, 2013, Texas Ranger Kevin Wright met with Officer Flores
and his counsel to obtain a clarification to his CAP statement. Ranger Wright,
along with a colleague, obtained another statement from Officer Flores at the
office of Flores' counsel. Texas Ranger Kevin Wright was satisfied with the
clarification and believed that Officer Flores was being truthful.142 The
clarification statement indicated that Officer Flores intended to draw his
weapon as a show of force only.143

O. Statement to Internal Affairs Division

Officer Flores provided a statement to the Internal Affairs Division

(IAD) on May 5, 2014. The statement was in the form of written interrogatories
to which Officer Flores responded. Many of those questions inquired into
Officer Flores' various decisions he made before the accidental shooting, such
as why he did not ask for assistance transporting Mr. Saenz, why he did not
report Mr. Saenz's ability to front his cuffs and why he did not report all of
Mr. Saenz's odd behaviors to a supervisor.144

Officer Flores was asked specifically about the video and his purported
attempt to "go hands on" with Mr. Saenz while his firearm was drawn. Officer
Flores stated that he did not remember trying to engage Mr. Saenz with his
handgun drawn.145

137 Ranger Wright, RR2 83-89.

138 Ranger Wright, RR2 89-90.
139 Ranger Wright, RR2 88.
140 Ranger Wright, RR2 88.
141 Ranger Wright, RR2 76-77.
142 Ranger Wright, RR2 77-81.
143 Ranger Wright, RR2 79-80.
144 EPPD 3.C., pp. 3 et seq.
145 EPPD 3.C., p. 27.

53
 Officer Flores stated that, when he made his first statement, he
understood the term "use deadly force" to include displaying a weapon without
firing it.146

P. Shooting Review Board

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 EPPD 3.C., p. 21.

147 Lopez, RR 331-32.
148 Lopez, RR 345.
149 Lopez, RR 345-46.
150 Chief Allen, RR2 52-53; see transcript of statement of Jose Flores before
the SRB, pp. 40-41.
151 See, e.g., transcript of statement of Jose Flores before the SRB, pp. 26-
36; see also id. at p.55-56 (second-guessing Flores' choice of words used in
the heat of the moment).

54
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 Transcript of statement of Jose Flores to the SRB, pp. 46-47.

155 EPPD 10.A., p. 7.
156 EPPD 10.E.
157 Poust, RR 200.
158 Poust, RR 211-12.
159 Poust, RR 217-18.
160 Poust, RR 241-43.
161 Poust, RR 262-63.
162 Poust, RR 264.
163 Poust, RR 265-66.
164 Poust, RR 267.
165 Poust, RR 267-68.

56
 Sergeant Poust also testified to the generally accepted idea of memory
loss and impaired perception of police officers during and after critical
incidents. He testified that certain phenomena are known to occur, such as
loss of peripheral vision, temporary hearing loss, perception of time, memory
fragmentation and the tendency of the mind to fill in memory "gaps" with
something other than what actually occurred. Such statements could be
misconstrued as lies.166

Sgt. Poust also testified that the display of force is not the same thing
as the use of force.167

Q.2. Jose Luis Lopez

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 Poust, RR 268-75.

167 Poust, RR 236.
168 Lopez, RR 290.
169 Lopez, RR 321-22.
170 Lopez, RR 322.
171 Lopez, RR 357-58.
172 Lopez, RR 321-24.
173 Lopez, RR 316.
174 Lopez, RR 315.
175 Lopez, RR 317.
176 Lopez, RR 329-31.

57
 Although the EPPD minimized the application of Graham v. Connor in its
opening statement,177 the EPPD use-of-force policy was later changed to include
a citation to Graham v. Connor.178

Q.3. Chief Gregory Allen

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 Lopez, RR 61-62.

178 See Lopez, RR 326-27.
179 Chief Allen, RR 376.
180 Chief Allen, RR 377.
181 Chief Allen, RR 378-79.
182 Chief Allen, RR 380-81.
183 Chief Allen, RR 381.
184 Chief Allen, RR 381.
185 Chief Allen, RR 382.
186 Chief Allen, RR 382-85.
187 Chief Allen, RR 380.
188 Chief Allen, RR 382-93.
189 Chief Allen, RR 398-99.
190 Chief Allen, RR 402.
191 Chief Allen, RR 402.
192 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. Texas Ranger Kevin Wright

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

Jose Flores was cross-examined in a manner that appeared calculated to

get him to commit to the idea that the accidental shooting of Mr. Saenz was
either a "good shoot" or was completely outside policy. Mr. Flores accepted
responsibility for his part in the shooting,196 but maintained that his conduct
was within policy.

V. Argument & Authorities

A. Shooting Outside of Policy

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. Reengaging with Mr. Saenz

At no point did Officer Flores reengage with Mr. Saenz. This allegation
against him is wholly unfounded.

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.

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D. Lying to the Shooting Review Board

Officer Flores was honest, forthcoming with information and truthful to

the Shooting Review Board. The substance of Officer Flores' testimony to the
SRB, quoted above, was that he could not remember saying the things that
Sergeants Peralta and Salazar attributed to him. In fact, at one point Officer
Flores actually said, "I might have said something in that line," when asked
about his statement to Sgt. Peralta.

Both Sgt. Poust and Officer Lopez testified about Tachycardia. Sgt.
Poust testified that memory gaps are common, as is an officer's tendency to
fill those in with incorrect information. Multiple witnesses, including Sgt.
Peralta himself, observed that Officer Flores was "out of it" after the
shooting. Given that he had just been through the most traumatic event of his
life, that he was physically and mentally exhausted, that he could not stand on
his own two feet, and that he could not even remember how he got home that
night, it is more than reasonable to conclude that Officer Flores could not
recollect his statements to Sgts. Peralta and Salazar when the SRB asked about
them.

VI. Conclusion

Officer Flores's conduct was within policy. The unique and unfortunate
circumstances of this case, created by Daniel Saenz, led to a tragic and
accidental shooting. While Mr. Flores accepts responsibility for his part in
this accident, it would not have occurred but for the conduct of Mr. Saenz
himself. Officer Flores' actions were objectively reasonable, given the
extraordinary circumstances into which Mr. Saenz placed him.

This is especially true, in light of the fact that Flores was made to
work in a combat situation with a civilian security guard. The two did not
have the same training, and the video evidence shows that Officer Flores was
trying to tap Mr. Romero on the shoulder to get his attention. He did not try
to reengage with Mr. Saenz, as he is accused of doing.

With respect to the charge that Officer Flores failed to seek medical
attention for Mr. Saenz after he injured himself: this charge should be
dismissed out of hand. It is an unsound allegation, unsupported in the
evidence, which trivializes the grave nature of this case.

Officer Flores was forthcoming and truthful with information during the
investigation of this case. His version of events never changed. The only
anomaly exists in the form of the statements that Sgts. Peralta and Salazar
attribute to him. Flores does not remember making those statements, although
he told the SRB that he could have said something like them. In any event, he
was not in his right mind at the time the statements are alleged to have been
made. He was struggling under the effects of tachycardia, and physical and
mental exhaustion. For an officer with an exemplary record and a reputation
for honesty, this was not an event that justified — and the evidence does not
support — discipline for untruthfulness.

VII. Relief Requested

Jose Flores hereby requests a finding that his conduct was within policy,
and reinstatement to his position as police officer with the El Paso Police
Department with full back pay. Alternatively, and only in the event that the

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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 60’s 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. Recent high profile examples of this

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 City’s 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 Chief’s letter of October 28, 2014

were proven in fact and law. However, despite the Arbitrator’s overwhelming agreement with the

case as presented by the City, there were two aspects of the Chief’s 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. Time and time again in cases that this

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 didn’t 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 Arbitrator’s 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 Arbitrator’s inability to agree that there had been

deliberate untruthfulness on the part of the Appellant, there was yet a second aspect of the City’s

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 Attorney’s Office, Officer Flores actions seem to

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have been portrayed in the worst possible light by the media. The mountain of mitigating

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

prisoner’s 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 bum’s 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 media’s 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 Arbitrator’s 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 Arbitrator’s 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 Chief’s 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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