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Josey1
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Officer shooting 'accidental'
By JOHN GRANT EMEIGH Tribune Chronicle
WARREN - Investigators said the ''friendly fire'' incident involving two city police officers during a burglary call on Austin Avenue two weeks ago was accidental.
Sgt. Chuck Sines concluded the criminal investigation into the June 10 shooting in which patrolman Jeffrey Miller shot patrolman Benjamin Harrell twice in the leg. Sines presented the results of the probe on Thursday to Assistant Law Director James Reese, Mayor Henry J. Angelo and other city officials. Reese will study the results and decide if Miller should be charged criminally.
''It's my feeling there was no criminal intent involved (in the shooting). It was accidental,'' Sines said.
However, the city Law Department will decide if any charges should be filed in the shooting. Sines said Reese should have a decision made by next week. The mayor deferred all comment concerning the investigation to the Police Department.
Once the city makes a determination, Lt. Joseph Marhulik said the department may start an internal investigation into the shooting. This investigation will determine if the department's policies and procedures were violated and could lead to disciplinary action from within the department.
Since the investigation could continue, Marhulik said police could not go into detail about the incident.
Sines did say he believes darkness was the contributing factor to the accidental shooting.
''He (Miller) saw a silhouette of a person with a gun in the dark that he assumed was a suspect running from the house,'' Sines said.
Harrell, 37, was working a 7 p.m. to 3 a.m. shift as an officer assigned to the nearby Trumbull Metropolitan Housing Authority unit when the house burglary call came in shortly after midnight, police reported. At some point in responding to the call, Miller fired two quick shots, hitting Harrell, who was in the backyard.
Police responded to a burglary in progress at 750 Austin Ave. S.W. just after midnight Monday morning. Early reports indicated the suspects were carrying weapons. When one of the suspects was caught climbing out of the house's window, however, he did not have a weapon.
Police found a handgun in a refrigerator in the house. The gun did not belong to Claudette Wells, the woman who lives at the house with her 11-year-old son. Wells was not at home at the time of the burglary.
According to 911 tapes, a citizen from Austin Avenue told the dispatcher he saw two men break into the house through a window. Miller arrived at the scene around midnight and went to secure the back of the house, according to the tape.
Minutes later Miller can be heard shouting: ''Guns, they got guns, coming out the front. They have guns.''
During the next transmission, Miller said shots were fired, an officer was down and they needed an ambulance. After asking the dispatcher to switch to a different channel, Miller said the officer was hit by ''friendly fire.''
Harrell was taken to Forum Health Trumbull Memorial Hospital, where he was treated and released on June 10. He has not returned to work since the shooting, Marhulik said. Miller is not under suspension and has continued working..
Two men, Matt Smith, 19, 363 Parkman Road N.W., and Edward T. Lighting, 19, 726 Oak St. S.W., were arrested in connection with the burglary. They both pleaded innocent to charges of burglary of the Austin Avenue house Monday, which brought police to the scene.
http://www.tribune-chronicle.com/news/story/06282002_new01.asp
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
By JOHN GRANT EMEIGH Tribune Chronicle
WARREN - Investigators said the ''friendly fire'' incident involving two city police officers during a burglary call on Austin Avenue two weeks ago was accidental.
Sgt. Chuck Sines concluded the criminal investigation into the June 10 shooting in which patrolman Jeffrey Miller shot patrolman Benjamin Harrell twice in the leg. Sines presented the results of the probe on Thursday to Assistant Law Director James Reese, Mayor Henry J. Angelo and other city officials. Reese will study the results and decide if Miller should be charged criminally.
''It's my feeling there was no criminal intent involved (in the shooting). It was accidental,'' Sines said.
However, the city Law Department will decide if any charges should be filed in the shooting. Sines said Reese should have a decision made by next week. The mayor deferred all comment concerning the investigation to the Police Department.
Once the city makes a determination, Lt. Joseph Marhulik said the department may start an internal investigation into the shooting. This investigation will determine if the department's policies and procedures were violated and could lead to disciplinary action from within the department.
Since the investigation could continue, Marhulik said police could not go into detail about the incident.
Sines did say he believes darkness was the contributing factor to the accidental shooting.
''He (Miller) saw a silhouette of a person with a gun in the dark that he assumed was a suspect running from the house,'' Sines said.
Harrell, 37, was working a 7 p.m. to 3 a.m. shift as an officer assigned to the nearby Trumbull Metropolitan Housing Authority unit when the house burglary call came in shortly after midnight, police reported. At some point in responding to the call, Miller fired two quick shots, hitting Harrell, who was in the backyard.
Police responded to a burglary in progress at 750 Austin Ave. S.W. just after midnight Monday morning. Early reports indicated the suspects were carrying weapons. When one of the suspects was caught climbing out of the house's window, however, he did not have a weapon.
Police found a handgun in a refrigerator in the house. The gun did not belong to Claudette Wells, the woman who lives at the house with her 11-year-old son. Wells was not at home at the time of the burglary.
According to 911 tapes, a citizen from Austin Avenue told the dispatcher he saw two men break into the house through a window. Miller arrived at the scene around midnight and went to secure the back of the house, according to the tape.
Minutes later Miller can be heard shouting: ''Guns, they got guns, coming out the front. They have guns.''
During the next transmission, Miller said shots were fired, an officer was down and they needed an ambulance. After asking the dispatcher to switch to a different channel, Miller said the officer was hit by ''friendly fire.''
Harrell was taken to Forum Health Trumbull Memorial Hospital, where he was treated and released on June 10. He has not returned to work since the shooting, Marhulik said. Miller is not under suspension and has continued working..
Two men, Matt Smith, 19, 363 Parkman Road N.W., and Edward T. Lighting, 19, 726 Oak St. S.W., were arrested in connection with the burglary. They both pleaded innocent to charges of burglary of the Austin Avenue house Monday, which brought police to the scene.
http://www.tribune-chronicle.com/news/story/06282002_new01.asp
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
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"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Eight (8) police officers refuse to testify in case where guns were illegally sold to cops
By MICHAEL G. MOONEY
BEE STAFF WRITER
Eight former and current Modesto police officers refused to testify during a hearing for a central figure in the Police Department's gun-sale scandal of the late 1990s, according to a court document.
Their silence played a critical role in an arbitrator's April 30 decision ordering Carol Mosconi reinstated as the department's records manager.
"The city's capacity to satisfy its burden of proof and (Mosconi's) ability to prove some of her affirmative defenses were impaired by the witnesses who invoked their Fifth Amendment right against self-incrimination," arbitrator John B. LaRocco wrote in a 112-page opinion.
The city went to court Friday seeking to overturn the arbitrator's ruling, which also orders an estimated $182,000 in back pay for Mosconi.
LaRocco's opinion was not made public until it was filed in Stanislaus County Superior Court as part of the city's appeal.
A judge will be assigned to review LaRocco's ruling and listen to arguments from attorneys at a hearing, probably in September, before making a decision. It was not clear Saturday which judge would review the case.
The city fired Mosconi on Oct. 20, 1999, for 15 alleged offenses ranging from embezzlement of city property to gross dereliction of duty. The accusations arose from the Police Department's sale of handguns to officers in 1996 and 1997.
Then-Police Chief Paul Jefferson devised the plan when the department switched from .38-caliber revolvers and .45-caliber semiautomatics to Sig-Sauer 9 mm semiautomatic pistols.
Jefferson believed the city could make more money by selling the guns to its officers than by trading the firearms in to the company that was selling the department $188,000 worth of new guns. Ultimately, the gun sale netted about $26,000 in revenue. The city would have received about $40,000 worth of credit had the guns been traded.
In 1996, Mosconi was the department's records manager -- the department's highest-ranking civilian employee -- and responsible for day-to-day coordination of the gun sale.
Ultimately, a city investigation determined that the gun sale violated city policy and state laws. Infractions ranged from buying and reselling the guns without filing proper paperwork required by state law to officers taking guns without paying for them.
"Because some of the purchasers resold the weapons," LaRocco noted, "at least one gun (and maybe more) ended up in the possession of unsavory individuals."
The domino effect
A number of reforms were enacted as a result of the sale, including improvements in gun storage and inventory records. It also was decided that guns would never again be sold to officers or department employees.
Mosconi and her immediate supervisor, Capt. David Leonardo, faced criminal charges as a result of their roles in the sale.
Leonardo was acquitted of a misdemeanor charge of improperly profiting from the gun sale, while the embezzlement charge against Mosconi was dismissed.
Mosconi then appealed her firing. She also filed a federal sexual discrimination lawsuit against the city, which was dismissed.
Leonardo, meanwhile, retired from the department and landed a job as a deputy police chief in a suburb of Phoenix. He could not be reached for comment Saturday.
City officials have said that the problems with the gun sale played a role in the resignation of City Manager Ed Tewes and the retirement of Jefferson, who also filed a successful disability claim.
"Many individuals in the department did not perform admirably with regard to the gun sale," LaRocco wrote in his ruling, "but only (Mosconi) was discharged."
The arbitrator's other findings included:
POSSIBLE PROSECUTION -- The Police Department did not take any steps, such as informing the district attorney, that might have led to criminal charges against the officers.
In the aftermath of the sale, officers said they had relied on their superiors to meet all legal requirements. The department eventually issued counseling letters to officers, explaining the legal procedures that were violated.
TRANSFER FORMS -- The California Department of Justice did not enforce its "same-day" mailing requirement for gun ownership transfer forms coming from law enforcement agencies.
A city investigation found that Mosconi collected the forms before sending them in bulk to the Department of Justice for the 237 guns that were sold and resold.
Mosconi said that in some cases she did not mail the transfer forms to the Department of Justice because she was awaiting payment.
Sgt. Burl Condit and police officer Clint Raymer, for example, took possession of 11 guns without paying for them immediately. As a result, LaRocco said, it would have been premature for Mosconi to send the registration forms to the Department of Justice.
WEAPONS SECURITY -- The Police Department security was lax in storage and handling of the guns during the sale. Guns often were kept in drawers and lying on a desktop. They also were stored in boxes and milk crates in Mosconi's office, which was not locked when she was on duty.
Although the arbitrator ordered Mosconi reinstated, he did not find her blameless.
"Mosconi was derelict in her duties regarding the sale," LaRocco said, "by failing to keep adequate records, failing to collect monies from officers, failing to adequately secure firearms in her office and failing to supervise clerks to insure that they were carrying out her instructions."
But those offenses, LaRocco continued, warranted reprimands or a short suspension -- not termination.
LaRocco said attorneys on both sides at Mosconi's hearing -- 19 days of testimony that stretched from March 2000 to May 2001 -- expected the eight officers to testify.
"To the surprise and chagrin of the parties," LaRocco wrote in the introduction to his ruling, "several persons who were subpoenaed to testify, or who had consented to testify, invoked their Fifth Amendment right against self-incrimination.
"These witnesses are former Capt. David Leonardo, Sgt. Burl Condit, police officers Clint Raymer, Ron Cloward, Dave Sundy, Mark Weiglein, Art Garza, and union representative Paul Konsdorf."
Sidestepping reassignment
Condit retired from the department at the end of December. Earlier this year, Police Chief Roy Wasden said Condit decided to retire rather than accept a reassignment.
At one point, Condit wrote a check for $344, LaRocco said in his opinion, to pay for four guns. He wrote a separate check for $56 to cover the $14 Department of Justice registration fee for each gun.
LaRocca wrote: "Mosconi declared that a day or two later, Condit told her that due to a bankruptcy proceeding, the checking account on which he wrote the checks was closed.
"Mosconi stated that, as a result, she never cashed the checks (from Condit) made payable to the city."
Sometime later, LaRocco said Mosconi returned the checks to Condit.
Silence plays loud part
The silence of Condit and the other officers, LaRocco said, coupled with the absence of "two seemingly material witnesses" -- Jefferson and property technician Delores Armendarez -- "not only resulted in an incomplete record but also heavily influenced the outcome of this case."
Wasden could not be reached for comment Friday or Saturday. Detective Doug Ridenour, police spokesman, said Friday that no one at the department would make any comment about LaRocco's ruling.
Ridenour said any comment would have to come from City Attorney Michael Milich, who also refused to comment on the specifics of the ruling.
Only two of the officers singled out in the ruling -- Raymer and Cloward -- could be reached, and Cloward declined to comment.
Raymer, however, said he was called as a witness because he had bought guns. He said a lawyer, provided by the Modesto Police Officers Association, advised him not to testify.
LaRocco indicated that it would have been especially helpful to hear from Leonardo during Mosconi's hearing.
The arbitrator noted that Leonardo had nothing but good things to say about Mosconi's performance in her evaluations. He even nominated her for bonuses in 1996 and 1997, the same time frame of the gun sale.
"Leonardo concluded that (Mosconi's) performance constituted superior management of the department's records division," LaRocco wrote.
"Leonardo called (Mosconi) a superior manager. The gun sale is not mentioned in any of (Mosconi's) performance evaluations."
Bee staff writer Susan Herendeen contributed to this report.
Bee staff writer Michael G. Mooney can be reached at 578-2384 or mmooney@modbee.com. http://www.modbee.com/local/story/3402799p-4432990c.html
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878