1 IN THE CIRCUIT COURT OF THE STATE OF OREGON
2 FOR THE COUNTY OF MULTNOMAH
3
4
5
6 GRAND JURY No. 1 PROCEEDINGS
7 Case No. 28
8 Conducted by:
9 Don Rees, Chief Deputy District Attorney
10 Todd Jackson, Deputy District Attorney
11
12 - - -
13 May 4, 2018
14 - - -
15 DA Case No. 2380019
16 Re: PPB Case No. 18-114856
17
18
19
20
21 Katie Bradford, CSR 90-0148 Court Reporter 22 Portland, Oregon (503) 267-5112 23
24 Proceedings recorded on FTR audio recording; transcript provided by Certified Shorthand Reporter. 25 2
1 GENERAL INDEX
2 VOLUME 1
3 Page No.
4 May 4, 2018 Proceedings 3
5 Case Called 3
6 Examination of Gary Britt 3
7 Examination of Coleen Vala 15
8 Examination of Scott Vala 29
9 Examination of Andrew Barnard McKimmy 35
10 Examination of Erik Kammerer 46
11 AFTERNOON SESSION 84
12 Examination of Derek Wollin 131
13 Examination of Jerry Herrera 141
14 Examination of Carletta Davis 151
15 Reporter's Certificate 158
16 * * *
17
18
19
20
21
22
23
24
25 Examination of Gary Britt 3
1 Death Investigation
2 PPB Case No. 18-114856
3 Deceased: John Andrew Elifritz
4 Incident Date: April 7, 2018
5 Location: 526 SE Grand Avenue, Portland, Oregon
6 * * *
7 (Volume 1, Friday, May 4, 2018, 9:07 a.m.)
8 P R O C E E D I N G S
9 (Whereupon, the following proceedings were
10 held before Grand Jury No. 1:)
11 MR. REES: Good morning. This is Chief
12 Deputy District Attorney Don Rees and Deputy District
13 Attorney Todd Jackson appearing before Grand Jury
14 No. 1. This is Grand Jury Case No. 28 and this is DA
15 Case No. 2380019, a death investigation following the
16 use of firearms by police which caused the death of
17 Mr. John Andrew Elifritz on April 7th, 2018, in the
18 city of Portland. And the first witness to be called
19 before the grand jury is Sergeant Gary Britt.
20 GARY BRITT
21 Was thereupon called as a witness; and, having been
22 first duly sworn, was examined and testified as follows:
23 EXAMINATION
24 BY MR. REES:
25 Q Good morning. Sergeant Britt, if you would, Examination of Gary Britt 4
1 for the record please state and spell your name.
2 A Yeah. It's Gary Britt, B-r-i-t-t.
3 Q And how are you employed?
4 A I'm a sergeant with the Portland Police
5 Bureau.
6 Q How long have you been a police officer?
7 A For ten years.
8 Q I want to ask you about a call you responded
9 to on April the 7th, 2018, at about 2:20 in the
10 afternoon.
11 A Mm-hmm.
12 Q Do you recall that --
13 A I do.
14 Q -- that call?
15 What was the nature of the call you
16 responded to?
17 A The nature of the call was there was a male
18 that called in saying that his family was murdered at
19 a duplex at 79 and Holgate.
20 Q All right. And did you go to that location?
21 A I did not make it to the location.
22 Q Or the -- or the --
23 A But --
24 Q -- but the general neighborhood --
25 A Yeah. Examination of Gary Britt 5
1 Q -- or area?
2 A Yes.
3 Q All right. And so where -- where did
4 you go?
5 A I was actually in route to the location. I
6 was going westbound on Holgate. We had another caller
7 call in saying that a male was talking about his
8 family being murdered at 82 and Holgate and he was
9 walking eastbound, described him as a white male
10 wearing a black shirt and jeans.
11 And so when I came into the area, observed a
12 male later identified as Mr. Elifritz walking
13 eastbound on Holgate talking on a cell phone. He was
14 just walking, minding his own business.
15 So, at that point, I turned around and
16 attempted to contact Mr. Elifritz, you know, asked him
17 if he'd talk to me real quick. He told me he didn't
18 want to talk to me and he continued to walk and told
19 me to leave him alone.
20 At that point, officers were arriving to 79
21 and Holgate to check the -- the duplex in the area to
22 see if we actually had a crime committed, you know, a
23 murder or anything. Two other officers arrived at my
24 location.
25 At this point, we were at about 86th and Examination of Gary Britt 6
1 Holgate and pulled in front of Mr. Elifritz and got
2 out and tried to contact him as well.
3 Mr. Elifritz at that point ran briefly
4 southbound on 86th from Holgate and turned around and
5 quickly displayed a knife and just held it to his
6 throat real quick and then backed up from us.
7 Q When you had contact with him --
8 A Mm-hmm.
9 Q -- were you in uniform and a marked
10 patrol car?
11 A I was and so were the other officers.
12 Q And did you communicate verbally to him,
13 "Hey, can I talk to you for a moment," or something
14 like that?
15 A Yeah.
16 Q What did you say?
17 A It was -- it was exactly like that. You
18 know, I pulled up kind of just behind him, you know,
19 and just -- not aggressive or anything, just like,
20 "Hey, man, can I talk to you real quick?"
21 And, you know, he's like, "No. Leave me
22 alone. I don't want to talk to you." I was like,
23 "Hey, though, can you stop and talk to me real quick?"
24 It was just kind of that conversation, just trying to
25 figure out what's going on. Examination of Gary Britt 7
1 Q All right.
2 A So --
3 Q And were there other police officers who had
4 also responded to this call?
5 A Yes.
6 Q And what -- did you learn what they were
7 doing? Because as the sergeant you were the
8 supervisor of the scene, right?
9 A Yes. There was actually another sergeant as
10 well down on 79 and Holgate with the officers that
11 were -- they located the duplex and they were actually
12 clearing the duplex and making sure that there was no
13 signs of a crime or any homicide that occurred or
14 anything. And they didn't locate any evidence at the
15 duplex or even in the general area of 79 and Holgate.
16 Q And was that a duplex that was under some
17 kind of construction?
18 A Yeah, like a renovation.
19 Q And did police at the scene talk to the
20 contractor or the builder?
21 A They did.
22 Q And what information did they get from him?
23 A They described a male matching
24 Mr. Elifritz's description acting kind of odd out
25 front for a little bit and then he left. Examination of Gary Britt 8
1 Q So sign of a homicide?
2 A No, no sign.
3 Q All right. And so what else happened then
4 in -- in the contacts with Mr. Elifritz and the police
5 who had responded?
6 A So myself and the other officers that were
7 at 86th and Holgate, you know, we tried to engage in
8 dialogue with Mr. Elifritz, just asking him to calm
9 down, you know, see what's -- what's happening.
10 Every time he -- we would take a step
11 forward and try to talk to him, he'd take like two
12 steps back and he'd tell us to leave him alone. I
13 mean, at this point the knife wasn't at his throat
14 anymore. It was kind of half clasped in his hand.
15 You know, we asked him if he wanted to hurt
16 himself. He said no. We asked him if he wanted to
17 hurt anybody else. He said no. He just wanted us to
18 leave him alone.
19 You know, so based on, you know, the
20 information that we had down at 79 and Holgate where
21 there was no crime that we could find, we had real no
22 legal reason to keep pushing this incident with
23 Mr. Elifritz. That was when, you know, the decision
24 was made to disengage to see if we could try and
25 deescalate him. You know, maybe he'll calm down on Examination of Gary Britt 9
1 his own since it seemed like our initial contact with
2 him was -- was what, you know, agitated him.
3 Q And to make an arrest a police officer needs
4 probable cause --
5 A Yes.
6 Q -- to believe that a crime's been committed,
7 right?
8 A That is correct.
9 Q And -- and so did you believe you had
10 probable cause that he had committed any crimes at
11 that point?
12 A No.
13 Q All right. And then police officers have
14 authority to place someone on a civil hold for a
15 mental status?
16 A Yes.
17 Q Did you believe that at that point you had
18 the legal authority to -- to do that and to take him
19 into a involuntary mental health hold?
20 A Yeah. At that -- for that we need probable
21 cause that he's a danger to himself or others. And at
22 that time I didn't believe that we had probable cause.
23 I mean, his actions and stuff were -- it seemed like
24 he wanted us just to leave him alone. And also we
25 can't precipitate a force event. Examination of Gary Britt 10
1 So you look at it this way, like if we kept
2 pushing the issue with Mr. Elifritz with no probable
3 cause of a crime, you know, we really didn't have a
4 whole lot for a hold and we end up using force on him,
5 you know, would that be legally justified? No. So --
6 Q All right. Was -- did a police officer
7 document for purposes of the behavioral health unit
8 this encounter with Mr. Elifritz?
9 A Yes. So, you know, this tactic of
10 disengagement is something we use. Often in the city
11 is -- you know, we'll contact people that are really,
12 you know, high, you know, agitated or whatnot.
13 And so in order not to, you know, force the
14 issue we use disengagement as a deescalation where we
15 can refer to our BHU unit, Behavioral Health Unit, in
16 an attempt to, you know, gather intel for them.
17 The Behavioral Health Unit will recontact
18 them at a future date when hopefully they've calmed
19 down and they're less agitated, you know, to see if we
20 can get them some kind of help, or, you know --
21 Q And so in the report you had identified him
22 by name and documented this encounter for the
23 Behavioral Health Unit; is that correct?
24 A Yes. An officer did (indiscernible) report.
25 And we got that name from dispatch. While we were Examination of Gary Britt 11
1 trying to engage him in a dialogue they actually ran
2 the phone number that was called by the initial male
3 caller calling in the homicide and it came back to
4 Mr. Elifritz, which we IDed by a photo in one of
5 our cars.
6 Q Okay. And then, finally, after you made the
7 decision to let him just walk away --
8 A Mm-hmm.
9 Q -- did you receive any more information
10 about him from a -- a person who -- who came up to the
11 police in Lents Park afterwards?
12 A Yes, we did. There was a male who came
13 up -- 'cause we stayed in the area for a while just
14 to -- to -- in case we get more and more calls on him.
15 An individual did pull up to us and say that he tried
16 to get into his car, described Mr. Elifritz.
17 After he gave the description he -- he began
18 to drive off and we had to ask him to stop, asked him
19 if, you know, he wanted to press charges, you know,
20 for any potential crimes. He said, no, he just wanted
21 to relay the information to us.
22 Q And was that information relayed out either
23 by -- by radio or some other report to other
24 officers --
25 A Yes. Examination of Gary Britt 12
1 Q -- in the area?
2 A Yes.
3 MR. REES: Okay. Do you have any questions?
4 Do members of the grand jury have any
5 questions for Sergeant Britt?
6 A GRAND JUROR: Yes. So was he walking down
7 the -- this knife, how big was it?
8 THE WITNESS: It was a folding knife.
9 A GRAND JUROR: A folding knife?
10 THE WITNESS: Yeah.
11 A GRAND JUROR: Did he just pull it out when
12 the police showed up or did he have it out --
13 THE WITNESS: Oh, well, the --
14 A GRAND JUROR: -- before that or --
15 THE WITNESS: No. When -- when -- when I
16 initially saw him he was just walking up the street
17 talking on the cell phone.
18 A GRAND JUROR: Mm-hmm.
19 THE WITNESS: I mean, there's people out and
20 about. He was just acting like somebody talking on a
21 cell phone.
22 The only reason why I went to contact him
23 was 'cause he matched the description that one of the
24 callers gave. And as soon as we started pressing the
25 issue of trying to get him to stop, and, you know, Examination of Gary Britt 13
1 talk to him, you know, that's when the knife came out.
2 But once he got distance from us, you know,
3 it went from his throat down. He, you know, kind of
4 flipped it, you know, back in type of this. So it
5 kind of deescalated once he got more distance from us.
6 A GRAND JUROR: Wouldn't that cause a
7 concern that not only did this person say that --
8 described him as trying to get in his car and is
9 walking around with a knife, isn't he a danger? Like,
10 if someone is walking down the street with a weapon --
11 THE WITNESS: Well --
12 A GRAND JUROR: -- is that reason enough
13 to --
14 THE WITNESS: No. I gave -- like, we
15 need --
16 A GRAND JUROR: -- do more than let him go?
17 THE WITNESS: We need probable cause of a
18 crime and a victim, you know, to really pursue --
19 A GRAND JUROR: Right.
20 THE WITNESS: -- you know --
21 A GRAND JUROR: You have to wait until he
22 steals the car before you arrest him.
23 THE WITNESS: And, I mean, I don't -- I
24 don't make the laws. And there's individuals that
25 carry knives all the time in the city. I mean, Examination of Gary Britt 14
1 Southeast Portland, you know, folding knives or
2 whatnot.
3 A GRAND JUROR: But he put it up to his neck
4 like he was going to -- he would harm himself?
5 THE WITNESS: Yeah. If -- if we didn't --
6 you know, he did that -- the action was like he wanted
7 us to leave him alone and we were pressing the issue
8 that's when it came up, of trying to talk to him.
9 A GRAND JUROR: Did you get the name of the
10 person in Lents Park who --
11 THE WITNESS: No. He -- he drove off and
12 didn't want to give us -- you know, it was just he
13 wanted to relay the info, so --
14 MR. REES: All right. Did you have any
15 other questions?
16 A GRAND JUROR: Hmm-mm.
17 MR. REES: No. Okay. Hearing no other
18 questions from the grand jury, we'll excuse Sergeant
19 Britt.
20 Thank you for coming in.
21 THE WITNESS: Thank you.
22 MR. REES: And our next witness is Colleen
23 Vala.
24 (Pause in proceedings, 9:20 a.m.)
25 Examination of Coleen Vala 15
1 Remain standing and raise your right hand,
2 please.
3 THE WITNESS: Oh, sorry. Yes.
4 COLLEEN VALA
5 Was thereupon called as a witness; and, having been first
6 duly sworn, was examined and testified as follows:
7 EXAMINATION
8 BY MR. REES:
9 Q Please be seated. And when you're ready if
10 you'd please state your first and last name and spell
11 your name.
12 A My name is Colleen Vala, C-o-l-l-e-e-n; last
13 name, Vala, V-a-l-a.
14 Q Ms. Vala, what's your occupation?
15 A I teach second grade.
16 Q How long have you been doing that?
17 A This is my 17th year.
18 Q Oh, 17 years. At what school?
19 A Lincoln Park Elementary. It's in the David
20 Douglas School District next to the high school.
21 Q All right. On April 7th, 2018, which I
22 believe was a Saturday --
23 A Mm-hmm.
24 Q -- were you the victim of a carjacking?
25 A Yes. Examination of Coleen Vala 16
1 Q And did that happen at about 4:35 in the
2 afternoon?
3 A Yes.
4 Q Do you remember where that happened?
5 A It was at the corner of Southeast 72nd and
6 Foster.
7 Q And what -- what happened?
8 A I was at my home on Southeast 70th between
9 Foster and Schiller. And I was working with my dad.
10 I'm doing a large remodel project. So my dad and I
11 meet there on the weekends to work on my house. And
12 we had finished for the day and we were leaving. And
13 so I was in my car and my dad was actually behind me
14 in his truck.
15 And then I was going to go on to my
16 boyfriend's house for the weekend and he was going to
17 go on home. He lives just not very far from me, a few
18 blocks. And so I pulled up to the stoplight at
19 Southeast 72nd and Foster.
20 And I was sitting at the red light. And a
21 man was walking on Foster to the left of me. And he
22 was looking at me in my car, but it was pouring down
23 rain. And that intersection, people cross without the
24 light a lot of times there because you don't
25 necessarily know that I'm going to go through and it's Examination of Coleen Vala 17
1 a different signal than the other cars. So I didn't
2 think anything of it.
3 But then as he got across the front of my
4 car he started waving at me. And -- and I was
5 watching him. And then he started coming toward the
6 car. And I remember looking and seeing that my
7 passenger side was unlocked. And so I went to try to
8 lock it and he was already in the car sitting in the
9 seat next to me.
10 And he just started yelling. And he was
11 saying, "They've already killed" -- and he -- he said
12 and -- what I thought was a name of a woman and it was
13 like a foreign-sounding name. And he was yelling,
14 "They've already killed this person."
15 And -- and I just started yelling, "Get out
16 of my car. Get out of my car. Get out of my car.
17 Get out of my car." And then he said, "I'll give you
18 the money." And he was shouting and -- and facing me
19 right here.
20 And I was trying to, like, not look at him.
21 And he was saying, "I'll give you the money. They're
22 going to kill people." And I was just saying, "Get
23 out of my car. Get out of my car." And then he said,
24 "You have to drive."
25 And I -- then I looked up and I saw the red Examination of Coleen Vala 18
1 light and I started saying, "It's a red light. I
2 can't drive. It's a red light." And he was like,
3 "You've got to drive." And he was just yelling at me.
4 And then I -- I -- I -- he was shaking me because my
5 foot kept coming off of the brake.
6 And I kept saying, "It's a red light. It's
7 a red light." And then I looked at -- I looked across
8 the corner at Mercado. There's the food carts. And
9 there were three people standing there. And they were
10 looking at me and -- and I -- I -- so I locked my arms
11 and I just started honking and holding my hands.
12 And he was grabbing me. And I was looking
13 at them and I was thinking -- they were looking at me
14 like, "What is she doing?" and I was -- I don't know.
15 I just was, like, trying as hard as I could to just
16 keep the horn honking 'cause I didn't know what else
17 to do.
18 And then he was, like, saying to me, "Get
19 out of the car. Get out of the car." And he was,
20 like, pushing me. And I had my purse across my body
21 and I had the seatbelt on. And I was trying to keep
22 my foot on the brake and honk the horn.
23 And these people were watching me. And he
24 was yelling, "Get out of the car. Get out of the
25 car." And I was just frozen. I just started Examination of Coleen Vala 19
1 screaming as loud as I could. And then he reached
2 across me and opened the door and tried to start
3 pushing me out, but I was tangled up and I couldn't
4 get out.
5 And then -- then I looked up and then my dad
6 was there and he was pulling me and saying, "Get out
7 of the car. Get out of the car." And I didn't know
8 how I got out of the car because then I was standing
9 outside of the car and I could see the back of my dad.
10 And I was thinking, "Get away from there. Go. Get
11 out of there." And so then --
12 Q And let me -- you're -- you're crying.
13 You're upset. Let me give you a tissue and get some
14 water. And just -- just (indiscernible) a moment.
15 A Okay.
16 Q And --
17 A Okay. Thank you.
18 Q Do you want to just have a second or --
19 A No. I -- no.
20 Q Okay.
21 A Just --
22 Q All right. Just --
23 A Thank you.
24 Q -- take a moment. And then -- and you're in
25 a safe space here. Examination of Coleen Vala 20
1 A I know. Thank you.
2 Q So this was -- this was a terrifying
3 experience, it sounds like?
4 A It just didn't feel real.
5 Q What do you -- what did you think -- what do
6 you think was going to happen?
7 A Ah, I didn't know. And that's -- one of the
8 things I'm really struggling with now is knowing what
9 happened, I -- I -- I didn't feel like myself when it
10 was happening and I don't feel like myself now because
11 it happened.
12 And I'm -- and I just think about why didn't
13 I just get out of the car? Like, why did I stay in
14 the car? I don't understand. I would -- I mean,
15 anybody else told me that happened, I would be
16 thinking, "Why didn't you just get out of the car?"
17 And -- and I just -- I was just paralyzed.
18 I just couldn't move. And -- and I don't -- and I
19 just -- I keep thinking about that over and over
20 again, like why didn't I just get out of the car as
21 soon as he got in the car, why didn't I just get out
22 of the car and --
23 Q You said you were screaming?
24 A Mm-hmm.
25 Q You were honking the horn? Examination of Coleen Vala 21
1 A Mm-hmm.
2 Q Were you crying then?
3 A No. And -- and that was the other thing.
4 Like, after I got out of the car I was sitting in the
5 grass on the side of the road and I just couldn't
6 breathe. I was just, like, gasping.
7 And there were strangers standing around me
8 the -- the -- the same people that I saw on the corner
9 at the intersection. And I just couldn't breathe.
10 And I remember saying to the -- to the woman, "I'm not
11 crying. Like, I'm not crying" and I just -- it was
12 just this surreal out-of-body experience.
13 Like, I -- I just wasn't myself. I -- I
14 didn't understand what had happened, why -- why I
15 wasn't crying. Like, I just couldn't breathe. And,
16 you know, she was like, "Try to breathe. Try to
17 breathe." And someone was telling me my -- "Your dad
18 is on the phone with 9-1-1," 'cause I didn't see
19 him then.
20 And I watched the car go across the
21 intersection. And I was facing the back of the car
22 and -- and I saw him try to pass someone on 72nd, but
23 then he couldn't. And then he just started driving
24 down 72nd.
25 Q Are you talking about your stolen car? Examination of Coleen Vala 22
1 A My stolen car, yes.
2 Q Okay.
3 A So I watched him drive away.
4 Q All right.
5 A And then --
6 Q So I'm going to back you up a little bit --
7 A Okay.
8 Q -- 'cause we -- we kind of interrupted --
9 A Sorry. Yeah.
10 Q -- what was happening. That's okay.
11 A Okay.
12 Q That's okay. And it's hard, I think, to
13 imagine, not having gone through an experience like
14 this, then just how frightening it is. And do you
15 remember telling the police that you were frightened
16 for your life when this happened?
17 A I don't -- I don't remember that. And I
18 was -- I was terrified, but I -- I was more just like
19 paralyzed.
20 Q Now, you're --
21 A I was more terrified after.
22 Q Uh-huh.
23 A Thinking about what had happened.
24 Q Afterwards?
25 A And -- Examination of Coleen Vala 23
1 Q You're a -- you're a -- I think it's fair to
2 say you're a petite person, right?
3 A Yeah.
4 Q Very, very --
5 A I guess.
6 Q You're small -- well, you're small and thin.
7 And you're a --
8 A If you say so.
9 Q And you're an elementary schoolteacher?
10 A Mm-hmm.
11 Q Is this person larger or smaller than you?
12 A Much, much larger.
13 Q How -- how big did he seem?
14 A He seemed very large to me when I -- when he
15 was on the seat next to me. And even when he was
16 walking in front of me he had -- he had a clear poncho
17 on and a white T-shirt underneath it. So it made him
18 seem large. And then when he was next to me he felt
19 larger than, like, my boyfriend or my dad, just upper
20 body, big, round face, large.
21 Q And you say he was pushing you --
22 A He --
23 Q -- and saying, "Get out of the car." How
24 hard was he pushing?
25 A Enough to move me over; and, like, with -- Examination of Coleen Vala 24
1 with both hands he was -- he had both hands on me.
2 Q And then you saw your dad run up to the car?
3 A I didn't -- I didn't see my dad until the
4 door was open and my dad was standing in the open door
5 of the car.
6 Q And what happened then?
7 A So then as he was yelling, "Get out. Get
8 out of the car," I was -- I couldn't get out of the
9 car. I was tangled and I couldn't get out. And then
10 I just remember that I was out of the car.
11 I remember looking and seeing my dad. My
12 dad, I think, had his hands on me, too. And then I
13 just remember being out of the car and seeing the back
14 of my dad facing into the car, into the driver side of
15 the car door.
16 Q All right.
17 A And I didn't know how I got out of the car
18 until I went to look at the car with detectives on
19 Monday.
20 Q Yeah. So you went on -- on Monday you went
21 with detectives Erik Kammerer and --
22 A Correct.
23 Q -- Mark Slater --
24 A Mm-hmm.
25 Q -- to a storage facility to look at the car, Examination of Coleen Vala 25
1 right?
2 A Yes. Mm-hmm.
3 Q And did you see that the driver side
4 seatbelt, your seatbelt, had been cut all the way
5 through?
6 A Mm-hmm.
7 Q What --
8 A But that --
9 Q What do you --
10 A -- again, was -- it was -- it's -- it's very
11 strange to me how -- how things have happened after
12 this. Like, time and just me, like, thinking about
13 everything, I just -- I keep looping on certain parts
14 of it.
15 And when I went to the car the detectives
16 were there and they said our goal was to look at the
17 outside of car and identify any preexisting damage and
18 any new damage and then look at the interior of the
19 car and do the same thing.
20 And so we walked around and I pointed out,
21 like, a scratch that had already been there and then
22 the wheels on the passenger side were both scraped and
23 scratched and the front passenger wheel and tire were
24 bent sideways and flattened.
25 And we went around the back and around the Examination of Coleen Vala 26
1 car. And -- and then we looked at the interior and --
2 and he -- Detective Kammerer asked me, like, "Does it
3 look like anything's missing?"
4 And then I -- he said, "Is this your phone
5 on the seat of the car?" And I said, "No." There was
6 a cell phone on the seat of the car. And I said, "But
7 that's my mail." And it was just -- I was like why is
8 my mail -- did he go back and get my -- you know, I
9 just -- did he go back to my house and get into my
10 mailbox?
11 And then I couldn't remember if I had gotten
12 the mail and set it on the seat and he came and sat on
13 top of it. And -- and it was just this really surreal
14 thing where I had to, like, really think about what --
15 and my -- my dad was like -- I said, "Can I touch the
16 mail?
17 "Yes." They gave it to me. And I said -- I
18 looked at it and I was like, "Okay. I remember seeing
19 it prior." When I left my house I -- I did get it
20 from my mailbox. I remember that now.
21 And then I saw the two detectives talking
22 over to the side and they called me around. And they
23 said, "Was your seatbelt like this before?" And I saw
24 that it was just cut, like a straight cut off. And
25 there was just a short piece hanging out and the rest Examination of Coleen Vala 27
1 of it was either up in the door or I don't even know
2 where.
3 And I was like, "No. No, of course not.
4 No." And I told them, I said, "I always have my
5 seatbelt on. I -- I had the seatbelt on. I was
6 caught in the seatbelt. I couldn't get out of the
7 car." And they asked me, like, several times to where
8 I thought why do they keep asking me about the --
9 "You're positive that your seatbelt was not cut off
10 and missing?"
11 And I'm looking at my dad, "No. No. Of
12 course, I had the seatbelt on. I had -- I had the
13 seatbelt on. I couldn't get out of the car 'cause the
14 seatbelt was on.
15 "You're sure?
16 "Yeah."
17 And then when we left I said something about
18 "They keep -- it was weird that the seatbelt was cut."
19 And then I -- I was like, "Oh, my God, he cut me out
20 of the seatbelt. That is how I got out of the car."
21 And I -- and it was very surreal to me that
22 I -- I couldn't put that together until we were
23 driving away and then all of a sudden I realized that
24 that's how I got out of the car, was that he had to
25 have cut the seatbelt out -- cut the seatbelt off and Examination of Coleen Vala 28
1 then that's how I got out.
2 A GRAND JUROR: Who's "he"? Is that your
3 dad or --
4 THE WITNESS: No. The -- the --
5 A GRAND JUROR: John, the guy?
6 THE WITNESS: Yeah. My -- my dad doesn't
7 carry a knife --
8 A GRAND JUROR: All right.
9 THE WITNESS: -- or anything, so --
10 MR. JACKSON: Could you just describe what
11 your car looks like for us?
12 THE WITNESS: It's a Honda CRV. It's
13 silver. It had -- the other thing that -- as it -- as
14 my dad was on the phone with 9-1-1, they were asking
15 me for the license plate. And I -- I -- I knew it,
16 but I couldn't -- I couldn't come up with it.
17 I kept saying the letters in the wrong order
18 and -- but I had an OSU Beaver wheel cover on the
19 spare tire in the back. So I said that would be an
20 identifier possibly to help if it was spotted.
21 Silver and just like a 2003, so like
22 everybody else's CRVs around town, it's -- looks like
23 everyone else's cars, but I had that -- the beaver on
24 the wheel cover that made it stand out possibly.
25 MR. REES: Any questions from the grand Examination of Scott Vala 29
1 jury?
2 All right. If there's no other questions,
3 we'll excuse this witness. Thank you for coming in.
4 I'm sorry this -- this happened to you.
5 THE WITNESS: Me, too.
6 MR. REES: And we'll call our next witness,
7 who is Scott Vala.
8 MR. JACKSON: Thank you.
9 MR. REES: Sir, if you could remain standing
10 and raise your right hand, please. If you could raise
11 your right hand, please.
12 THE WITNESS: Oh, I'm sorry.
13 SCOTT VALA
14 Was thereupon called as a witness; and, having been
15 first duly sworn, was examined and testified as follows:
16 EXAMINATION
17 BY MR. REES:
18 Q And if you'd please state your name and
19 spell your name.
20 A Scott Vala; V-a-l-a, S-c-o-t-t.
21 Q Mr. Vala, are you the father of Colleen?
22 A Yes.
23 Q And were you following in your car behind
24 her on April the 7th when a man jumped into the
25 passenger side of her car? Examination of Scott Vala 30
1 A Yes.
2 Q And did you see that happen?
3 A I saw him just as he was getting in.
4 Q What did you -- what did you think when you
5 saw that?
6 A I was probably almost a little over a block
7 away. And I just kind of thought, well, it must be
8 somebody she knows, because we were only a couple
9 blocks from her house and it was raining real hard.
10 At first I thought it must be -- 'cause he was already
11 getting in, I thought it was somebody she must know as
12 I approached.
13 Q When did you realize you were witnessing a
14 carjacking?
15 A As I got closer I saw his hands kind of go
16 up and he moved real close to her and I saw her
17 thrashing around and -- and I knew it wasn't right.
18 Q What did you do?
19 A I just pulled up as quick as I could and
20 jumped out. And her door was open at that time, by
21 the time I got there.
22 Q And so what happened?
23 A I came up and she was screaming like, "Get
24 out." And as far as I could see, I thought he was
25 going after her. And I -- the only thing I could Examination of Scott Vala 31
1 think of was getting her out of the car.
2 Q "Going after her," meaning what?
3 A Grabbing at her. He was, like, way over on
4 her side and -- and she was screaming and he was kind
5 of yelling.
6 Q Was he a big man or a small man?
7 A Yeah, he was a pretty good size.
8 Q Bigger than you?
9 A Yeah, I would say so.
10 Q And how did you manage to get your daughter
11 out of the car?
12 A Well, I was just saying, "Get out," and I
13 tried to grab her, but she was kind of tangled up, I
14 think, in the seatbelt. And next thing I knew all of
15 a sudden she came loose and I pulled her out.
16 Q And once you pulled her out of the car
17 what -- what happened? What did the -- what did the
18 man in the car do?
19 A Well, I just kind of took her over and she
20 went down to the ground. And as I turned around he
21 was in the seat -- I don't know how he got there so
22 quickly -- and took off.
23 Q Drove away in the car?
24 A Yeah.
25 Q All right. And did you call 9-1-1? Examination of Scott Vala 32
1 A Yes. I called 9-1-1 and kind of took a
2 couple minutes to even figure out how to call. I had
3 never done that on my cell phone. I'm kind of new to
4 that. And I called 9-1-1.
5 Q And were you -- I mean, were you sort of
6 rattled at this time?
7 A I certainly was.
8 Q Yeah.
9 A Yes. I mean, she was terribly rattled. And
10 it was fairly -- I mean, it was -- I kind of realized
11 how hard it is to realize what's going on. Just all I
12 wanted to do was get her out of the car. I thought --
13 I thought he was assaulting her or whatever. And it
14 was just very frantic.
15 Q Were you able to provide 9-1-1 a description
16 of the car and the license plate number?
17 A I couldn't -- you know, I looked right at
18 the license number as he drove off. And when I
19 finally got ahold of them I didn't tell her the
20 number. And I -- I had a hard time even telling them
21 what kind of car it was. I told them it was a Honda
22 and it was like a small SUV. I --
23 Q Was that because you were so upset?
24 A Probably, yeah. I assume so.
25 Q All right. Did you -- Examination of Scott Vala 33
1 A It was just --
2 Q I'm sorry?
3 A I don't know. It was just -- you know, I
4 was --
5 Q Yeah. Were you eventually able to get the
6 information about the car to police?
7 A We -- they finally called us. They called
8 her back while we were waiting for the police. And
9 she couldn't remember the license number. And I took
10 her over to our house, which is real close, so she
11 could get the number.
12 MR. REES: All right. So you got the
13 license plate number back at your house. Okay.
14 MR. JACKSON: Sir, did you also provide a
15 description of the assailant to the police?
16 THE WITNESS: No.
17 MR. JACKSON: Okay.
18 MR. REES: All right. Are there any
19 questions from the grand jury?
20 A GRAND JUROR: Did Colleen speak at all to
21 9-1-1, to the police at all --
22 THE WITNESS: She -- not at the --
23 A GRAND JUROR: -- on the phone?
24 THE WITNESS: Not the 9-1-1 call. I think
25 the police called back and talked to her after that Examination of Scott Vala 34
1 while we were waiting at the site.
2 A GRAND JUROR: And then did she give a
3 description of him, do you know?
4 THE WITNESS: I'm not sure then. She did, I
5 know, when the police officer came to our house.
6 A GRAND JUROR: Mm-hmm.
7 THE WITNESS: She gave a description.
8 A GRAND JUROR: That same day? Like --
9 THE WITNESS: Yeah. Within --
10 A GRAND JUROR: -- was it --
11 THE WITNESS: -- half hour, 45 minutes.
12 A GRAND JUROR: Okay.
13 THE WITNESS: We went there to get the
14 license number and then the officer showed up there.
15 I was talking to somebody else out in the street while
16 they (indiscernible).
17 MR. REES: All right. If there are no
18 further questions from the grand jury, we'll excuse
19 Mr. Vala. Thank you for coming in.
20 THE WITNESS: Okay. Thank you.
21 MR. REES: And we're going to take about a
22 two-minute break.
23 (Recess taken, 9:42 a.m. - 10:07 a.m.)
24 MR. REES: All right. Our next witness will
25 be Andrew McKimmy. Examination of Andrew McKimmy 35
1 All right. Come on in.
2 MR. REES: And, sir, when you're ready if
3 you could raise your right hand (indiscernible) swear
4 you in.
5 ANDREW McKIMMY
6 Was thereupon called as a witness; and, having been
7 first duly sworn, was examined and testified as follows:
8 EXAMINATION
9 BY MR. REES:
10 Q For the record would you please tell us your
11 name and spell your name.
12 A Andrew Barnard McKimmy, A-n-d-r-e-w,
13 B-a-r-n-a-r-d, M-c-K-i-m-m-y.
14 Q All right. Thank you very much for coming
15 in this morning and talking to us. We wanted to ask
16 you about something that happened to you on Saturday,
17 April 7th, in front of a business called My Father's
18 Place. Do you remember that incident?
19 A Yes. It wasn't directly in front of
20 My Father's Place. It was in front of the Shleifer
21 Furniture building, which is next door to My Father's
22 Place.
23 Q Okay. You're familiar with that business?
24 A Yes.
25 Q Okay. Examination of Andrew McKimmy 36
1 A I'm a regular there.
2 Q You're a regular there. Okay. And you --
3 you -- you're here today with your dog, Tank. And I
4 gather that you and Tank go everywhere together; is
5 that right?
6 A Yes. Yes.
7 Q And you have a yoga mat for him to -- to
8 lay on?
9 A Yes.
10 Q Okay. Well, the best that you're able to,
11 can you tell us -- tell the grand jury about what
12 happened that night when the man held the knife to
13 your neck.
14 A So this would've been about a quarter to
15 8:00, 7:50 thereabouts. I deboarded the southbound
16 street car at Stark Street and walked up to the
17 Columbia shelter, which is a TPI shelter that was
18 being maintained at the Shleifer Home Furniture
19 building.
20 I noticed there were a lot of police with
21 their lights on. My preference in that scenario
22 would've been to have run right into the building. It
23 had been raining pretty hard. We were both wet. The
24 dog was wet.
25 And just as we showed up there was an Examination of Andrew McKimmy 37
1 ambulance out front and they had just brought the
2 gurney in through the front door. So I didn't want to
3 bring a wet dog right next to where they're loading a
4 patient onto a gurney.
5 So I -- I sat his yoga mat down out front
6 about half way between the front door of the building
7 and -- and the corner of Stark Street. So I sat the
8 yoga mat down so that the dog could have something to
9 sit on while we waited for the paramedics to do
10 whatever they were doing.
11 After a minute or so this guy sidled up, I
12 think, from the direction of the Jacksons. So this
13 would've -- we would've been on -- on Grand. And he
14 kind of slid up to me and put his arm around my
15 shoulder, kind of slurring his speech, like, "Oh, he
16 must be drunk, ha-ha-ha."
17 That's why he's being so chummy because
18 I'm -- I'm not really a touchy-feely kind of a person.
19 But then he smoothly, yet swiftly and steadily brought
20 a knife out to my neck. And at that point there was
21 some dialogue. I don't remember exactly what was said
22 in between us.
23 I remember -- what I remember clearly of
24 what he said was that he did want -- wanted -- that
25 the police were looking for him, the police were here Examination of Andrew McKimmy 38
1 for him; that he wanted to make them understand
2 something and that I had something to do with what he
3 wanted to make the police understand.
4 That he -- he was about to grab the
5 paramedic that was standing in front of the ambulance,
6 but that it was easier to grab me instead.
7 So what felt like a really long time, like
8 over the course of about five minutes, I was trying to
9 understand did he want to get away? Was there
10 something that he needed?
11 Was there something that I could do to -- to
12 help him out, just keeping my -- my -- my tone of
13 voice even and -- and calm to the best of my ability,
14 to at least keep him talking because I realized I had
15 to have my hostage negotiator hat on. And I was the
16 hostage in this equation.
17 Q Did you tell him to let go of you or to take
18 the knife away from your neck?
19 A I asked him, "Would you please take that
20 away from my neck." I -- I don't have very good
21 eyesight. And I didn't get a good look. And so I
22 knew he was holding an object, but I didn't know if it
23 was a utility knife or a box cutter or -- or a stick
24 or what.
25 I just knew that he was holding something Examination of Andrew McKimmy 39
1 like a knife and I felt in danger. There were people
2 who were walking by. The expressions on their face --
3 I even heard some people say, "That guy's got a knife
4 to that guy's neck."
5 Q So you said --
6 A He --
7 Q -- "Get it away"?
8 A He said, "No, I can't take that away from
9 you right now."
10 Q And were you -- were you scared?
11 A Very. I --
12 Q How scared?
13 A With the number of police that had saturated
14 the neighborhood, the scenario I was in, the backdrop
15 behind us is plate glass windows and -- and that
16 would've gone into the women's dormitory in -- in the
17 women's shelter, it would've been.
18 If -- if it was a question of a sharp
19 shooter making that decision, they wouldn't have had a
20 safe backdrop. I was mouthing "Help me" to the people
21 that were going by as I was trying to negotiate with
22 him. But at the same time, I kept doing this with my
23 hands, which I believe is "Please don't shoot."
24 I've -- I've had some training for that type
25 of scenario, so I did -- I did what I was supposed to. Examination of Andrew McKimmy 40
1 Q So how -- so how -- you say you were scared,
2 but how -- how scary was this?
3 A I -- I was thinking that if the police
4 didn't have a safe backdrop that he was probably going
5 to cut my throat before the cops got a shot at him.
6 Q Were you able to physically step away? Did
7 you feel like you could just move away from him?
8 A Ah, if -- no, 'cause he had -- he was a
9 strong guy. He had a really good solid grip around my
10 shoulder.
11 Q Was he bigger than you?
12 A Height-wise, no. I think in terms of muscle
13 mass, probably yeah.
14 Q Big upper body?
15 A Yeah.
16 Q And you mentioned something about seeing the
17 ambulance that was there. You're on the sidewalk.
18 The ambulance is parked right there on the street,
19 right on your side of the street?
20 A So he was kind of using me as cover as much
21 as anything. He was ducking behind me. I think he
22 might have been a little bit winded, like he was
23 panting a bit. Like, he was kind of leaning on me at
24 times. As much as anything, it was a chance for him
25 to catch his breath and get collected, as much as any Examination of Andrew McKimmy 41
1 -- as anything else.
2 Excuse me. He was leaning on me some. I
3 was staying pretty motionless because I had ahold of
4 the dog. The dog was on the mat, so we wouldn't move
5 than a foot or so.
6 Q Well, did he -- did he give you any verbal
7 direction to move towards the ambulance?
8 A Yeah.
9 Q He did? What did he say or do?
10 A The medics brought the patient out with the
11 gurney on the ambulance. The door to the ambulance
12 was open. He said, "What we're going to do is go
13 inside that -- get inside the back door of the
14 ambulance."
15 So his plan was to highjack the ambulance.
16 I was going along with him. So we both went from
17 where the yoga mat was 'til at least underneath the
18 placard of the historical building.
19 And from there up to the ambulance, which
20 would've been 15 feet away, something like that, we
21 got just almost up to the door of the ambulance. And
22 he changed my [sic] mind, and said, "No, we're going
23 to go back to where we were before," so we went back.
24 I held onto the dog's leash, so I was
25 dragging the dog along with me. But I don't know if Examination of Andrew McKimmy 42
1 that was a deterrent factor or he had some
2 subconscious stuff going on. I don't know.
3 But we didn't highjack the ambulance.
4 That -- that was his plan for a minute, is what --
5 what he communicated to me. So we're standing there,
6 still got the knife to my throat.
7 And then he brings it around and I can feel
8 the tip of the knife at the base of my skull right at
9 the top of my spine, not on the skin, but I can feel
10 it through my hair. I had the sensation of -- of the
11 tip of the blade there. And --
12 Q You said touching, like, the hair on the
13 back of your neck?
14 A Yeah. I -- I could feel -- I could feel the
15 knife tip. It's the end. It's a very distinctive
16 sensation to, like, the -- the -- the tip of this
17 knife was not touching my skin, but the tip of the
18 knife was in the hair at the base of my neck.
19 And it was a distinct sensation that was --
20 seemed -- was sharp that I had of the point of
21 something at the base of my skull. And, at that
22 point, I don't know what happened. Somehow we
23 dislodged from each other.
24 Q When you say "dislodged," do you mean you
25 got away from him? Examination of Andrew McKimmy 43
1 A Yeah.
2 Q But you don't know how?
3 A I don't know how.
4 MR. REES: Okay. Any questions from the
5 grand jury about that incident?
6 A GRAND JUROR: You mentioned there was a
7 lot of police activity going on in the neighborhood.
8 Did any of the police officers witness the situation
9 that you were in?
10 THE WITNESS: At the very least, given the
11 cameras on those vehicles, there would have been
12 occasions as they were driving by where -- where there
13 would be footage.
14 BY MR. REES:
15 Q What I think -- I think what -- what this
16 grand juror means is: Did any police officers, like,
17 come up and talk to you or say anything to this man
18 or -- is that what you mean? Like --
19 A I -- I -- no, they didn't. My -- my
20 assumption is that they were aware of it, but that it
21 would've put me in danger if they approached.
22 Q But you don't -- okay. That's your
23 assumption, but you don't know?
24 A No.
25 Q And the fact is no police officers came up Examination of Andrew McKimmy 44
1 to you two when this was happening, right?
2 A No.
3 Q Okay.
4 A And then the -- the -- well, not right then.
5 A GRAND JUROR: Did you go to the police
6 afterwards to tell them what happened?
7 THE WITNESS: Okay. Afterwards -- like
8 as -- as soon as we -- as soon as -- as soon as I was
9 released I -- I went in through the front door of the
10 Columbia Shelter. The -- the paramedic that -- that I
11 believed was at risk was there.
12 And so I told the paramedic that there was a
13 guy out there with a knife, that the reason I was
14 standing outside for so long was this guy had a knife
15 to my throat. And I asked the paramedic to put that
16 out on the radio so that the police would know what
17 was going on 'cause I figured that was the most direct
18 way to -- to make the police aware of what was
19 going on.
20 A GRAND JUROR: Do you know: Why would
21 there -- what was the police activity about? Why were
22 they there? Was it -- did it have to do with the
23 ambulance being there or was a separate thing
24 going on?
25 A I -- I think -- I think -- Examination of Andrew McKimmy 45
1 MR. REES: If I can just caution you. We
2 talked about speculation, that you can't speculate.
3 So you can only answer that question if you know the
4 reason.
5 THE WITNESS: I don't know, honestly.
6 A GRAND JUROR: Well, were the police right
7 there at the shelter or were they down the -- a block
8 away? Or how far away were they from you?
9 THE WITNESS: I would say that just about
10 every block there was a police car that was parked
11 with its lights on. And there also were police
12 regularly driving by, both on Stark and Grand.
13 A GRAND JUROR: Is that normal in that area?
14 You go -- you're -- you're around there often?
15 THE WITNESS: Sometimes, but not to that
16 extent. The -- the volume --
17 A GRAND JUROR: So something was going on?
18 THE WITNESS: Yeah.
19 A GRAND JUROR: You're just not sure what --
20 THE WITNESS: Something was going on.
21 A GRAND JUROR: -- exactly? Yeah. Okay.
22 MR. REES: Okay. Anything else? No?
23 All right. If there's no further questions,
24 then Mr. McKimmy, we'll excuse you.
25 (Recess taken, 10:22 a.m. - 10:58 a.m.) Examination of Erik Kammerer 46
1 MR. REES: For the record the next witness
2 will be Detective Erik Kammerer.
3 ERIK KAMMERER
4 Was thereupon called as a witness; and, having been
5 first duly sworn, was examined and testified as follows:
6 EXAMINATION
7 BY MR. REES:
8 Q Good morning, Detective. If you would
9 please for the record state and spell your first and
10 last names.
11 A Erik, E-r-i-k; Kammerer, K-a-m-m-e-r-e-r.
12 Q What's your occupation?
13 A I'm a detective with the Portland Police
14 Bureau.
15 Q How long have you been a detective?
16 A Since 2003.
17 Q And how long have you been a police officer?
18 A Since 1994.
19 Q How many homicide cases have you worked on
20 either as a lead investigator or as one of the
21 assisting detectives?
22 A The last time I counted it was just over
23 150.
24 Q Have you been assigned to investigate the
25 use of deadly force by police officers? Examination of Erik Kammerer 47
1 A I have, yes.
2 Q And have you received special training in
3 those areas of homicide investigations and
4 officer-involved shootings?
5 A Yes, I have.
6 Q On Saturday -- Saturday, April 7th, 2018,
7 were you called to respond to the scene of an
8 officer-involved shooting in the city of Portland?
9 A Yes, I was.
10 Q What time did you receive the call?
11 A It was shortly before 8:30 p.m.
12 Q Who called you?
13 A My sergeant, Sergeant Ken Whattam.
14 Q And what general information did you receive
15 at that time?
16 A At that time we had very limited information
17 other than there had been an officer-involved shooting
18 in the area of Martin Luther King and Stark and just
19 to respond to that area.
20 Q In addition to yourself who responded to the
21 scene that night?
22 A My partner, Detective Mark Slater; Sergeant
23 Whattam; several assisting detectives that work for
24 the Portland Police Bureau; assisting detectives from
25 the Multnomah County Sheriff's Office and the Gresham Examination of Erik Kammerer 48
1 Police Department who are part of the East County
2 Major Crimes Team; forensic specialists from our
3 forensic division at the Portland Police Bureau.
4 Representatives from the District Attorney's
5 Office; representatives from independent police
6 review; representatives from our Internal Affairs
7 Division and our Professional Standards Division.
8 Q And did that include layers of command staff
9 from both the Portland Police Bureau and the
10 Multnomah County Sheriff's Office?
11 A Yes, it did.
12 Q Is there a special protocol that's followed
13 by the investigators after officer use of deadly force
14 like this?
15 A Yes. It's very similar to every homicide
16 investigation we do. It's treated the same. We know
17 there's going to be a -- a lot more interest in the
18 investigation, so we are extremely thorough in
19 everything we do.
20 The standard things we'll do, we'll set up a
21 crime scene, make sure the scene has been established;
22 there's a clear perimeter; one point of ingress and
23 egress from the scene, so we don't have people just
24 wandering through.
25 We'll obviously locate and mark items of Examination of Erik Kammerer 49
1 evidence. We'll locate and record all the witnesses
2 we can find. We'll interview the witness officers.
3 We'll do weapons countdowns of all the involved
4 officers so we can determine how many rounds they
5 fired and match that back to the scene. Locate all
6 the items of evidence we can find.
7 Q What's done to separate witnesses to prevent
8 them from discussing the situation amongst themselves?
9 A So in this instance it was pouring down
10 rain. They requested a TriMet bus. They put all the
11 witness officers on that TriMet bus and assigned
12 someone that wasn't involved in the incident at all to
13 monitor them to make sure they do not discuss any of
14 the event so we can interview them in that
15 environment.
16 And that's -- that's -- they're ordered by a
17 sergeant not to talk about it and then they're
18 monitored to make sure that they don't.
19 Q And are the involved officers given an
20 communication restriction order, also known as a
21 gag order?
22 A Yeah. After we do the round countdown on
23 them they're provided with a communication restriction
24 order which says they can't talk about it with anybody
25 other than clergy and investigators, lawyers, until Examination of Erik Kammerer 50
1 the order is rescinded. And it's still in effect
2 today.
3 Q One video clip taken by a cell phone was
4 posted on social media by a witness and it's been on
5 the local media. Has -- has the Police Bureau
6 released any evidence like that in the case up to
7 this point?
8 A Absolutely not.
9 Q And why not?
10 A We have to protect the integrity of the
11 investigation. So we don't release anything. We keep
12 it all to ourselves. That way when -- in a grand jury
13 setting when witnesses come in to testify we know and
14 then you can know that what they're telling you is
15 from their recollection, from their perspective.
16 It's not a video they've seen or an
17 interview they've seen on TV. It's what they know,
18 what they remember. And that's how we protect the
19 integrity of the investigation.
20 Q All right. So if I can direct your
21 attention now specifically to this case before the
22 grand jury, what was the name of the person shot by
23 the police?
24 A John Elifritz.
25 Q And how was he identified? Examination of Erik Kammerer 51
1 A Ultimately, he was identified by the
2 identification he had in his pocket, which was located
3 on him at the scene.
4 Q And how old was he?
5 A 48 years old.
6 Q And what was his height and weight?
7 A 6'2", 240.
8 Q Did Mr. Elifritz have any known connections
9 to the location where he was shot by the police?
10 A None that we could find at all.
11 Q Was he homeless?
12 A No.
13 Q Where did he live at the time of the
14 shooting?
15 A He resided in Milwaukie.
16 Q All right. So in Clackamas County, Oregon?
17 A Yes.
18 Q And who did he live with?
19 A His wife.
20 Q Had he had any previous contact with the
21 Portland Police Bureau's Behavioral Health Unit?
22 A No.
23 Q You testified that you were contacted by
24 your sergeant, Ken Whattam, to respond to the scene.
25 I imagine it took you some time to -- you were at Examination of Erik Kammerer 52
1 home, I'm guessing, that night or some other location.
2 But you went to the scene directly?
3 A Yes. I went directly to the scene from
4 home.
5 Q About how long did that take?
6 A 20, 25 minutes.
7 Q And when you were at the scene did you
8 receive a briefing that covered some of the events
9 that preceded the shooting that night?
10 A Yes.
11 Q Thanks.
12 Were you told on the scene that there had
13 been a number of incidents related to the conduct of
14 John Elifritz in the hours preceding the shooting?
15 A Yes. Do you want me to stay standing?
16 Q If -- if you could use that diagram --
17 A Absolutely.
18 Q -- maybe you could explain to the grand jury
19 what the events were that you were briefed about.
20 A So the first incident that day occurred
21 around 2:30 p.m. Officers received a 9-1-1 call from
22 a man identifying himself as John Elifritz. He
23 claimed that his family had been murdered and were
24 located inside a duplex at 79 and Holgate.
25 Initial responding officers went to that Examination of Erik Kammerer 53
1 location, did not see anyone identifying himself as
2 Mr. Elifritz, but saw the described duplex; made
3 contact with -- it was under construction -- made
4 contact with the guy that was the general contractor,
5 who let them in.
6 They looked around, found no evidence of any
7 murder, no -- no dead bodies, anything like that. And
8 while this was going on other responding officers
9 located Mr. Elifritz at about 86th and Holgate, so
10 just up the street. And when they went to contact him
11 he pulled out a knife, held it to his throat and ran
12 away from the officers.
13 Based on everything they knew at that point
14 the officers decided that it would exacerbate the
15 situation to continue confronting him, so they opted
16 to just let him -- let him leave. As far as they
17 could determine, he had committed no crimes. There
18 was no need to force an issue with him, so they just
19 let him go.
20 Approximately two hours later Colleen Vala
21 calls 9-1-1 because she had been in her car at 72 and
22 Foster when a guy matching the description of John
23 Elifritz came up and started -- got into her car and
24 told her to drive her somewhere.
25 She didn't want to. Ended up getting in a Examination of Erik Kammerer 54
1 struggle to get her out of the car. Her father, who
2 was behind her, ended up pulling her out of the car.
3 And then he drove away in her vehicle, which was a
4 silver Honda CRV.
5 About three hours later a guy named
6 Mr. Elezar called 9-1-1 saying -- up in North Portland
7 here saying that he had been the victim of a road rage
8 on Columbia around Chautauqua area and had some cell
9 phone video of this. One of our officers went out to
10 deal with that.
11 And while that was going on a 9-1-1 call was
12 made just before 7:30 p.m. down at MLK and Stark. Two
13 calls came in. One described a vehicle crash and the
14 other described a vehicle that had been abandoned in
15 the middle of the street while the driver jumped out
16 of the car while it was still moving and ran away.
17 And the description given was a male in blue
18 jeans, no shirt, who appeared to have soiled himself
19 and that he was larger. The physical description was
20 consistent with John Elifritz.
21 When officers were responding to that
22 location about 15 minutes later a 9-1-1 call comes in
23 from Jacksons Food Mart, which is right down there
24 between Grand and MLK at about Alder to Washington,
25 saying a man had been inside Jacksons wearing blue Examination of Erik Kammerer 55
1 jeans and a coat holding a knife, had been there about
2 five and ten minutes and left.
3 So then when officers were responding to
4 Jacksons here an ambulance crew was staged up here at
5 Grand and Stark and got on their radio and said a
6 gentleman by the name of Andrew McKimmy had been there
7 and said a guy, pants, jacket, came up, held a knife
8 to his throat and then after a couple minutes left.
9 So when the officers were looking over here, over here
10 at 526 Southeast Grand, which is City Team
11 Ministries --
12 Q And if I could interrupt. The information
13 from the ambulance -- just point of clarification
14 first, were they on a completely unrelated call --
15 that is, the ambulance crew -- that had nothing to do
16 with the events you're describing?
17 A Yes.
18 Q And did the ambulance crew relay that
19 information that you just described to 9-1-1 to
20 broadcast to the various police officers?
21 A Yeah. So the way it works, they're on a
22 completely separate radio net than the police. So it
23 goes back to fire dispatch and -- and it's --
24 everybody's housed over at the Bureau of Emergency
25 Communications. There's a bunch of different radio Examination of Erik Kammerer 56
1 nets. So it gets relayed back to their dispatcher,
2 who relays it over to the police dispatcher, who then
3 relays it to the officers on the street.
4 So then while they're over here a couple
5 people come running out of City Team 'cause they see
6 all the officers over here and basically they're like,
7 "He's over here. The guy you're looking for is in
8 here."
9 And there's talk about him with a knife,
10 about him attempting to stab people. And this is the
11 information the officers have when they approach this
12 location.
13 Q All right. And so is it correct that that's
14 the information that you received from one of the
15 initial briefings when you arrive on the scene that
16 night, this -- this sequence of events?
17 A Yes.
18 MR. REES: All right. Thank you.
19 Any questions about that?
20 A GRAND JUROR: Yes.
21 MR. REES: Yes, ma'am.
22 A GRAND JUROR: First of all, no one's ever
23 mentioned how -- how -- how big was this knife? How
24 many -- what kind -- it was a switch blade?
25 THE WITNESS: Oh. Examination of Erik Kammerer 57
1 A GRAND JUROR: Was it a --
2 THE WITNESS: We've a picture of it.
3 A GRAND JUROR: -- hunting knife?
4 THE WITNESS: It's a pocketknife.
5 A GRAND JUROR: How -- how big was the
6 blade?
7 THE WITNESS: It's about that big.
8 A GRAND JUROR: So a three-inch blade?
9 THE WITNESS: Yeah, about.
10 A GRAND JUROR: Or -- or more?
11 THE WITNESS: Probably. I didn't -- we have
12 a pick of it with the measurement, but --
13 A GRAND JUROR: Okay. So -- so --
14 THE WITNESS: -- two to three inches
15 probably.
16 A GRAND JUROR: -- the thing that's really
17 eating away that I keep thinking about is the very
18 first incident when the -- when they got the 9-1-1
19 call he was saying his family was murdered, first of
20 all, that's a false 9-1-1 call.
21 I don't know if there's any -- if they
22 should've apprehended him for that. And, secondly,
23 what constitutes having -- someone with a knife in the
24 very first incident putting a knife to his neck,
25 wouldn't the mental health people have been brought on Examination of Erik Kammerer 58
1 at that point? Should they have been?
2 MR. REES: So I -- I don't know whether this
3 witness can answer those questions. And -- and
4 also --
5 A GRAND JUROR: Well, what constitutes --
6 MR. REES: -- it doesn't --
7 A GRAND JUROR: -- calling that, the mental
8 health --
9 MR. REES: Well --
10 A GRAND JUROR: -- unit?
11 MR. REES: Okay. Well, if he can answer
12 that question. So I'll let the witness answer the
13 question if he -- if he's able to, although that
14 doesn't ultimately directly go to the shooting that he
15 investigated.
16 A GRAND JUROR: Well, it has to do with
17 police action --
18 MR. REES: Well -- okay. Let's -- let's --
19 A GRAND JUROR: -- or inaction, is my
20 thought.
21 MR. REES: Okay.
22 A GRAND JUROR: What's the protocol when
23 someone's walking around with a knife?
24 MR. REES: Right.
25 A GRAND JUROR: It might not have escalated Examination of Erik Kammerer 59
1 to this is my thought.
2 MR. REES: Okay. Well, let's just go off
3 the record if we -- if we can for a second.
4 (Recess taken, 11:15 a.m. - 11:21 a.m.)
5 MR. REES: And we're back on the record.
6 And we had just had a discussion about the scope of
7 the question and the witness's ability to answer the
8 question and I think we have clarification that the
9 witness is able to answer a portion of the grand
10 juror's question.
11 So go ahead, Detective Kammerer.
12 THE WITNESS: So when you asked about the
13 involvement of the -- the mental health unit I'm
14 assuming you're talking about our Behavioral Health
15 Unit.
16 A GRAND JUROR: Yes.
17 THE WITNESS: And they are -- as I
18 understand it, they're more of a follow-up unit. So
19 officers on the street will contact someone and then
20 they'll make a referral to our Behavioral Health Unit
21 to have them come out and do some followup in their --
22 their teams of an officer and a clinician to see what
23 assistance they can provide.
24 And that is what was done in this case.
25 After the call was over -- Examination of Erik Kammerer 60
1 A GRAND JUROR: Mm-hmm.
2 THE WITNESS: -- a referral was made to the
3 Behavioral Health Unit for followup. But we don't
4 have, you know, mental health units driving around in
5 police cars going and responding to 9-1-1 calls.
6 A GRAND JUROR: Okay. So if someone's
7 walking down the street with a knife and it seems like
8 a scary -- like this guy's just walking down the
9 street --
10 THE WITNESS: Right. It's very alarming.
11 And people are going to call the police and the police
12 will respond.
13 A GRAND JUROR: So it's not the same as if,
14 say, someone was on a bridge jumping off and they get
15 people in that are trained to help deescalate kind of
16 a mental tragic situation? There's no one --
17 MR. REES: And, again --
18 A GRAND JUROR: -- on call for that?
19 MR. REES: So I just want to caution the
20 witness to only answer that question if -- if you are
21 qualified to answer it, because, again, this seems to
22 be beyond the scope of his responsibilities as a
23 homicide detective.
24 A GRAND JUROR: Okay.
25 THE WITNESS: Yeah. I mean, we would be Examination of Erik Kammerer 61
1 getting into theoretical conversations now. Every
2 situation is unique. You know, the -- the variables
3 on each situation have to be dealt with at the time.
4 BY MR. REES:
5 Q Okay. As to the homicide investigation
6 itself you received briefing and you at some point
7 viewed the shooting scene itself, correct?
8 A I did, yes.
9 Q All right. And have you prepared some
10 exhibits with the assistance of others to illustrate
11 the scene as it appeared the night of the shooting?
12 A Yes. We have a diagram, a 2D diagram and
13 then a three-dimensional scan, if you will, of the
14 scene.
15 Q All right. So let's -- I'm going to put up
16 a line diagram of the scene. Thank you.
17 A Mm-hmm.
18 Q What does this exhibit represent and what
19 are these circles with numbers?
20 A So this is the inside of the main room of
21 City Team Ministries. This is the sidewalk out front,
22 Southeast Grand Avenue. The main door is here. This
23 is like a little desk counter area.
24 This area in the middle here, actually, is
25 a -- a railing about this high that encloses a set of Examination of Erik Kammerer 62
1 stairs that go down to a basement. And then this is
2 a -- just a low wall back here separating these two
3 sections. These are all doors that lead to various
4 locations inside City Team.
5 These are some stairs that goes up. Small
6 rooms, a kitchen area. And this -- that is a hallway
7 that runs all the way out back to the front. And the
8 small circles are what we refer to as placards, so
9 they show the location of items of evidence.
10 Q So each item of evidence is marked by
11 someone from the Forensic Evidence Division and given
12 a unique identifying number; is that correct?
13 A That's correct, yes.
14 Q All right. And then it's photographed and
15 in this case incorporated into this diagram?
16 A Yes.
17 MR. REES: And in a moment, ladies and
18 gentlemen, I'll pass out this sheet, which is an
19 index, which will guide you through the diagram. Each
20 number corresponds to an item of evidence. And the
21 number on this sheet corresponds to the numbers on the
22 circles on the diagram.
23 If you can't see it clearly, feel free to
24 move up to the board at some point. It depends on
25 your glasses if you can see those numbers. I can't Examination of Erik Kammerer 63
1 really see them, so -- yeah. But you can -- you can
2 look.
3 BY MR. REES:
4 Q And then, to assist us, let's go to the
5 Leica 3D digital image of the --
6 A Okay.
7 Q -- scene as well, if you can.
8 Okay. And so whether you want to begin with
9 the image that we see, the digital photographs that
10 are incorporated into our 3D image, or -- or this --
11 A Yeah.
12 Q -- why don't you give us an overview of what
13 we're seeing.
14 A Sure. It'll probably be easiest to -- to
15 work between the two of them. So this sits on a
16 tripod, does a scan. It covers all the areas that the
17 camera can see. So, like, down here this would be the
18 base of the tripod, so it's black where the camera
19 can't see.
20 This is that stairwell I was talking about
21 with the railing on it. Over here is the front door.
22 So the scan would be right about in here. So you're
23 looking out in this direction.
24 So here's the front. And then these are --
25 whoops. It's not going to let us zoom in. So these Examination of Erik Kammerer 64
1 are casings from our 40-millimeter less -- less-lethal
2 launchers. There's -- that corresponds with these
3 three right here on the -- on the sidewalk. And then
4 there's another one just inside the door here.
5 Q And we haven't heard really about that yet.
6 So are you able to explain a little bit about what --
7 what is that when you say a less-lethal 40-millimeter
8 launcher --
9 A Yeah.
10 Q -- is that the same thing as the beanbag
11 rounds that we hear about?
12 A Well, similar in theory, but -- so the
13 beanbag rounds were 12 gauge. So that's the size of a
14 caliber. So imagine, if you will, a shotgun, a
15 standard shotgun, 12-gauge shotgun. So it's a
16 rectangular shape that's rolled up into a circle.
17 It's cloth with, like, shot inside, so it has an
18 impact when it strikes.
19 It's rolled up into a tube, put in a regular
20 shotgun shell. When it's fired, it comes out the
21 barrel. Barrels, firearms, are smooth or rifled. If
22 they're rifled, it's -- it's got a twist in it.
23 So as the object, the bullet, if you will,
24 moves down the barrel it's imparted spin. And when an
25 object moving through the air is spinning it's more Examination of Erik Kammerer 65
1 stable than an object that's not spinning, which means
2 you'll have a flatter flight profile. It'll be more
3 accurate.
4 So a 12-gauge shotgun is smooth bore, no
5 spin is imparted upon the object. So when this
6 rectangular object opens it's acted upon by wind. It
7 has no spin, so they're not super accurate. They can
8 sheer off, go at weird angles.
9 We got rid of those. We've moved to a
10 40-millimeter launcher. So 40 millimeter, it's about
11 the size -- the base of it around is about the size of
12 a shot glass. The barrel on the launcher is rifled,
13 so it has that spin.
14 So when the projectile -- in this case now
15 it's a foam-nosed projectile and we've got some
16 pictures of them -- is launched down the barrel, it
17 spins, so it's given stability and accuracy. So
18 they're very accurate out to great distance. You
19 know, at least 40 yards it's super accurate --
20 Q So --
21 A -- whereas the old 12-gauge shotgun was not
22 very accurate out 15 yards.
23 Q So the Police Bureau was using these --
24 these sponge projectiles --
25 A Mm-hmm. Examination of Erik Kammerer 66
1 Q -- instead of the beanbags now --
2 A Yes.
3 Q -- as a less-lethal alternative to a
4 firearm; is that right?
5 A That is correct, yes.
6 Q And the sponge -- it's like a hard sponge or
7 a hard --
8 A It's -- it's foam. It's just a compact
9 foam.
10 Q And it's designed not to kill someone or
11 penetrate the skin, right?
12 A Right.
13 Q It's a pain compliance?
14 A Yeah. It -- so bullets are made of metal,
15 go right through skin. This is a foam round. It's
16 designed to expand when it hits your body, so it
17 doesn't penetrate into the body. It just -- you get
18 the kinetic energy of it whopping you basically.
19 Q And so just so we understand what -- this is
20 the -- we're looking at this picture. This is the
21 sidewalk in front of 526 Southeast Grand Avenue; is
22 that right?
23 A Yes, that's correct.
24 Q And does that correspond on this sheet to --
25 to anything we're seeing here? Examination of Erik Kammerer 67
1 A Yeah. Placards 1 through 3. So you can
2 see, you know, we have our placards out there: 1, 2
3 and -- and 3.
4 MR. REES: Okay. Let me pass out, folks,
5 your -- your legend or index so you'll have this.
6 A GRAND JUROR: What are those two dots
7 under that back tire?
8 THE WITNESS: Ah, rain. It was pouring down
9 rain, so you're actually seeing raindrops there.
10 MR. REES: There you go.
11 A GRAND JUROR: Thank you.
12 A GRAND JUROR: And they actually fired
13 these shots outside the building?
14 THE WITNESS: So they were fired in the
15 doorway. They had not entered yet. And it's a --
16 it's a single-shot launcher. So after you fire it,
17 you open the breach, you pull out the round and you
18 just discard it. It's no longer a good round at that
19 point. And then you load another one and you're ready
20 to go again.
21 BY MR. REES:
22 Q And so when you -- when you see the -- the
23 casings -- and that's on our index here Items 1, 2,
24 3 --
25 MR. JACKSON: 4. Examination of Erik Kammerer 68
1 BY MR. REES:
2 Q -- and 4. That's like a little -- I don't
3 know: Are you able to zoom in on that?
4 A No, I tried.
5 Q Can you see that?
6 A No.
7 Q Okay.
8 A It's like a tea light in size.
9 Q It's a little metal tea light. So that's
10 left behind after the foam ball flies through the
11 barrel?
12 A Yes.
13 Q And goes -- and goes away, right?
14 A Correct.
15 Q So when you -- when you see those in that
16 location, like, what are you -- what are you thinking
17 that probably means?
18 A That people that fired a 40-millimeter
19 less-lethal launcher were in the vicinity of those
20 rounds. You wouldn't expect them to be a great
21 distance away because all you're doing is just pulling
22 it out and discarding it. You're not throwing it.
23 They don't eject. So you just pull it out and
24 drop it.
25 Q All right. And -- and later on based on Examination of Erik Kammerer 69
1 statements of witnesses and video that you reviewed,
2 in fact, did it appear consistent that less-lethal
3 40-millimeter rounds were fired from the sidewalk
4 outside of the building initially?
5 A Yes.
6 MR. REES: Okay. Did anyone have any
7 questions about that or what we're talking about with
8 this less-lethal round?
9 A GRAND JUROR: Only -- only four nonlethal
10 shots were fired?
11 THE WITNESS: No, ma'am. That's just what
12 was fired from out front and --
13 A GRAND JUROR: Oh, okay.
14 THE WITNESS: -- we don't refer to them as
15 nonlethal because they could still be lethal depending
16 on the manner in which they're used, much like a
17 pencil or a pen could be lethal depending on the
18 manner in which you use it. These could also be
19 lethal if used improperly.
20 A GRAND JUROR: But on here any time I see
21 40-millimeter casing that's what it's referring to?
22 THE WITNESS: Yes, ma'am.
23 A GRAND JUROR: Okay.
24 A GRAND JUROR: Less lethal.
25 MR. REES: Yeah, less lethal. Examination of Erik Kammerer 70
1 A GRAND JUROR: Or, well --
2 THE WITNESS: Yes.
3 A GRAND JUROR: -- but then it also says
4 sponge round.
5 THE WITNESS: So that -- when these are
6 fired -- it's one complete cartridge, but when it
7 fires they separate.
8 A GRAND JUROR: Oh. Oh, sorry.
9 THE WITNESS: So what's left is the casing.
10 The sponge round is what goes down range.
11 A GRAND JUROR: Did all four of these hit
12 the victim?
13 THE WITNESS: I don't know if all four of
14 these hit. A total of nine rounds were fired with --
15 A GRAND JUROR: Oh.
16 THE WITNESS: -- six definite impacts.
17 A GRAND JUROR: So there's additional foam
18 (indiscernible)?
19 THE WITNESS: Yes. Yeah. More rounds were
20 fired inside.
21 A GRAND JUROR: Oh, okay.
22 A GRAND JUROR: So why were they firing
23 outside? Or you can't answer that?
24 THE WITNESS: Well, when we -- it should be
25 apparent when we watch the video on why they did that. Examination of Erik Kammerer 71
1 A GRAND JUROR: Okay.
2 MR. REES: And then --
3 THE WITNESS: But I will certainly try to
4 answer your question afterward.
5 A GRAND JUROR: Okay.
6 THE WITNESS: So these are additional -- the
7 picture's taken from about the same location as the
8 scan. So you can see all the placards all through
9 here all the way up to No. 26 are located right in
10 this area here, which corresponds with this area right
11 here.
12 MR. REES: And I don't know whether people
13 can read the number on those placards or not. If not,
14 we can have him read to you the placard numbers --
15 THE WITNESS: Absolutely.
16 MR. REES: -- and point them out. Did you
17 have --
18 THE WITNESS: And --
19 MR. REES: -- a preference on that, folks?
20 THE WITNESS: When we numbered them we
21 pretty much went chronologically from the front door
22 all the way to the back end of the -- the building
23 with the exception that we started to find other items
24 -- smaller items of evidence after we located the
25 larger ones. And most of these are all casings. Examination of Erik Kammerer 72
1 A GRAND JUROR: This doesn't seem to be
2 identical.
3 THE WITNESS: Well, it's not -- it's not
4 identical. This is -- this is a picture and this is a
5 hand-drawn --
6 A GRAND JUROR: No. I mean as far as the --
7 THE WITNESS: -- re-creation.
8 A GRAND JUROR: -- placement of that second
9 page. It looks a little different from this chart.
10 But can I see it again? Thank you. 16, five, 16 --
11 A GRAND JUROR: So what -- what are the 223
12 casings that are in that vicinity?
13 THE WITNESS: So the other -- the weapons
14 that were used in this are two different caliber Glock
15 handguns, an AR15 rifle and a 12-gauge shotgun. So
16 the AR15 rifle fires a 223 caliber round. So the
17 casing then would be what's expended from the rifle
18 when it's fired.
19 And this is -- so Placards 25 and 26 right
20 here you can see pretty clearly. Those are your 233
21 casings. 17 and 18 up here are 12-gauge casings.
22 BY MR. REES:
23 Q And, Detective --
24 A Yes, sir.
25 Q -- on this chart the 25 is here? Examination of Erik Kammerer 73
1 A Mm-hmm.
2 Q 26 is here. And you viewed --
3 A GRAND JUROR: From this way.
4 BY MR. REES:
5 Q -- the surveillance videos in this case that
6 we're about to show the grand jury, right?
7 A (No audible response.)
8 Q Does that correspond to the general location
9 of the officers firing those weapons?
10 A It does, yes.
11 So then we -- as we rotate over here you can
12 see the back of the building here. This is like a
13 little kitchen food storage area and there's --
14 there's no way to get out of that area.
15 Q What do you mean, "there's no way to get
16 out"?
17 A Once you go into that room, there's no --
18 there's no exit other than to come back in this way.
19 The door on that side was secured. So people that did
20 go in there trying to flee were -- were stuck and
21 could not get out that way. And these are these
22 various little doors you see here.
23 So now you can see right where that scan was
24 on the other side. We've moved across the room now,
25 so we're now on this side of the room looking back Examination of Erik Kammerer 74
1 that way to the front door. Here's that stairwell
2 again. And now you're -- you're looking down this
3 side right here where that little table is.
4 A GRAND JUROR: And the victim was lying?
5 THE WITNESS: He's lying right here. I'll
6 scroll down here in a minute. So this is just
7 additional items of evidence. Placard 35 here is that
8 blue foam round, the foam-tip round.
9 A GRAND JUROR: Is this behind --
10 THE WITNESS: Which is over here. And, you
11 know, so when these things hit they are, you know,
12 cone shaped. So you don't get -- they -- they go
13 everywhere once they impact. They impact an object
14 and then bounce off at whatever angle they kind of
15 want to go.
16 A GRAND JUROR: Is that a blue coat or is
17 that a tarp? What is that?
18 THE WITNESS: That's a -- that's someone's
19 blue coat, yeah. And there's another foam round
20 laying on top of that.
21 This is a shotgun wadding. So you have --
22 when a shotgun shell's fired you have the -- the
23 casing that contains this plastic wadding that holds
24 the actual shot, the round shot.
25 And so the wadding and the shot are expelled Examination of Erik Kammerer 75
1 out the end of the shotgun while the casing stays.
2 And then as it's traveling the shot separates from the
3 wadding, which also is called a wad cup.
4 BY MR. REES:
5 Q And, actually, on the -- on the legend it's
6 listed as a -- well, I thought it was listed as -- is
7 it listed as wad cup?
8 A GRAND JUROR: Yeah. Shot shell wad.
9 BY MR. REES:
10 Q Shot shell wad?
11 A Yeah. So shot shell wad, wadding, wad cup,
12 they're all interchangeable terms.
13 Q Okay.
14 A And then 40 here is a set of keys. So this
15 is the knife that we recovered, Placard 38. It's just
16 a, you know, standard pocketknife. And then,
17 obviously, this is Mr. Elifritz's location.
18 Is there any questions about any of that
19 so far?
20 Q Actually, I have one question. You just
21 showed us the close-up picture of the knife. So
22 that's Placard No. 38; is that correct?
23 A That's correct, yes.
24 Q Which is located immediately next to the
25 body of Mr. Elifritz? Examination of Erik Kammerer 76
1 A Yes. Yes. If we go to the picture here.
2 So this is his -- his waistline right here, his pants.
3 And that's where the knife was located.
4 A GRAND JUROR: Why are the (indiscernible)?
5 THE WITNESS: The keys, we believe, were in
6 his pocket because at the autopsy we pulled a couple
7 pieces of key out of his leg.
8 BY MR. REES:
9 Q So broken by a bullet?
10 A Yes. That's it for that.
11 MR. REES: Okay. So -- and I -- sorry if I
12 interrupted. Were there any questions about anything
13 physically at the scene post-shooting or about this
14 diagram or -- or any of the exhibits at this point?
15 A GRAND JUROR: No.
16 BY MR. REES:
17 Q Okay. Then I'll ask you to resume your
18 seat, Detective.
19 A Yes, sir.
20 Q And we're -- we're coming up on our noon
21 break, but before we break, let me ask you if you're
22 able to, in summary, through the course of the
23 investigation how many police officers used their --
24 their firearms, used deadly force in this incident?
25 A So six -- well, technically five officers Examination of Erik Kammerer 77
1 and one deputy fired their firearms. And then two of
2 our officers fired their less-lethal launchers.
3 Q So five members of the Portland Police
4 Bureau used deadly force and one member of the
5 Multnomah County Sheriff's Department?
6 A That's correct, yes.
7 Q Is that right?
8 A Yes.
9 Q And what -- what were the weapons used --
10 maybe start with the Multnomah County Sheriff's deputy
11 and then talk about the five other officers.
12 A So Deputy Sieczkowski had a Glock 22, which
13 is a 40-caliber handgun. Officer Polas, which is our
14 officer, had a Glock 17, which is a
15 nine-millimeter-caliber firearm, a handgun.
16 Officers Phifer and Nutting and Fender had
17 AR15 rifles. And Officer Martiniuc had a shotgun.
18 Q I think that's pronounced Martiniuc.
19 A Martiniuc. And Officers Bailey and
20 Damerville had their less-lethal launchers.
21 Q And so on our legend when we see Placard
22 No. 28 is a 40-caliber Smith & Wesson casing that
23 would be from the Multnomah County Sheriff's deputy
24 you just mentioned. You said he had a 40-caliber
25 handgun? Examination of Erik Kammerer 78
1 A Yes. So that -- the -- and it can be
2 confusing, 40-millimeter, 40 caliber, one is
3 significantly larger than the other. A 40 -- a 40
4 caliber, roughly 10 millimeters. So a 40 millimeter
5 would be, you know, three times more.
6 Q So Placard 28 is -- is the sheriff's
7 deputy's -- that's the casing from his --
8 A Yes, from Deputy Sieczkowski's.
9 Q -- handgun. And then I think that you --
10 this grand juror had already asked about the 223. Let
11 me see that number. That's the AR rifle rounds all
12 mentioned, right?
13 A Yeah, that's correct.
14 A GRAND JUROR: So you don't differentiate
15 between the 40-millimeter nonlethal and the 40 caliber
16 here, right?
17 THE WITNESS: It is -- it is different.
18 A GRAND JUROR: Oh.
19 THE WITNESS: It's a different size. Item
20 28 --
21 A GRAND JUROR: Yeah, I understand that.
22 THE WITNESS: -- is your -- it's --
23 A GRAND JUROR: But I'm not seeing that
24 here.
25 THE WITNESS: Item -- Item 28. Examination of Erik Kammerer 79
1 A GRAND JUROR: Oh, I'm sorry.
2 THE WITNESS: Item 28 is --
3 A GRAND JUROR: Oh, that's the 40 caliber?
4 THE WITNESS: -- 40 Smith & Wesson casing.
5 That's from the handgun.
6 A GRAND JUROR: All right.
7 BY MR. REES:
8 Q And -- and so -- I'm sorry -- did you -- you
9 identified their weapons. Have -- have -- did you
10 tell us the number of times the weapons were used?
11 A No, I did not.
12 Q Okay.
13 A So Deputy Sieczkowski fired his handgun
14 once. Officer Polas fired his handgun six times.
15 Officer Fender fired his rifle four times. Officer
16 Phifer fired his rifle twice. Officer Nutting fired
17 his once. Officer Martiniuc fired his shotgun three
18 times. Officer Bailey fired his less-lethal four
19 times. And Officer Damerville fired his five times.
20 A GRAND JUROR: What was Fuller?
21 THE WITNESS: I'm sorry?
22 A GRAND JUROR: There's someone named
23 Fuller? Phifer?
24 THE WITNESS: Phifer or Fender?
25 A GRAND JUROR: No, I missed one. Examination of Erik Kammerer 80
1 A GRAND JUROR: Can I get Fender and Polas
2 again? Sorry.
3 THE WITNESS: Yes, ma'am. Polas fired six
4 times and Fender fired four times.
5 A GRAND JUROR: Okay. Thank you. He's got
6 a really good memory.
7 THE WITNESS: Thank you.
8 A GRAND JUROR: I know. I'm like, "Oh."
9 THE WITNESS: It helps with my job.
10 A GRAND JUROR: So how many shots fired
11 (indiscernible)?
12 THE WITNESS: I'm sorry?
13 A GRAND JUROR: The shot that killed him was
14 only fired once by the guy who shot him?
15 THE WITNESS: Ah --
16 A GRAND JUROR: The shot that killed him by
17 the Nutting guy, he only shot once?
18 THE WITNESS: Nutting only fired once. I
19 don't know if that's the shot that killed him or not.
20 BY MR. REES:
21 Q Okay. So in terms of the counts that you
22 just went through and the officers, how did you arrive
23 at that conclusion?
24 A So, obviously, it'd be very easy if we just
25 counted the -- the casings that were on the ground and Examination of Erik Kammerer 81
1 left it at that. But we actually go through the
2 weapons of each officer.
3 In addition to their primary weapons, you
4 know, the shotgun or the rifle or the less-lethal
5 launcher, we also do a countdown of all their -- the
6 handguns. And then if they have a back-up handgun,
7 we -- we count that, too.
8 And then we just do the math. "You're
9 supposed to have this many number of bullets and
10 you're missing this number." And that corresponds
11 with what we're finding in the scene.
12 A GRAND JUROR: Is there any way to tell if
13 all these were going out at the same time? Or do we
14 assume that or --
15 THE WITNESS: The rounds being fired?
16 A GRAND JUROR: Yeah.
17 THE WITNESS: In the video you can see that.
18 A GRAND JUROR: Okay.
19 BY MR. REES:
20 Q So on the -- on the video, you -- you were
21 able to actually see the shooting?
22 A Yes.
23 Q And you also have an audio recording of the
24 shooting?
25 A Yes. Examination of Erik Kammerer 82
1 Q Did you measure the amount of time that this
2 shooting took place in?
3 A Roughly two to three seconds.
4 Q So all the shots you described occurred in a
5 span of two to three seconds of time; is that right?
6 A That's correct. Except for the
7 40-millimeter less-lethal shots.
8 Q Right. But so the -- but the -- but for
9 firearms -- and to go back to this grand juror's
10 question then -- you -- you've determined that these
11 shots were essentially fired simultaneously?
12 A Yes.
13 Q Okay. So --
14 A GRAND JUROR: So --
15 MR. REES: Oh, I'm sorry.
16 A GRAND JUROR: The two .223 casing, that's
17 the AR, right?
18 THE WITNESS: That's correct.
19 A GRAND JUROR: So here it's listed seven
20 times, but you said Phifer did twice, Nutting once and
21 Fender four.
22 THE WITNESS: Yes, ma'am.
23 (Pause in proceedings, 11:50 a.m.)
24 MR. REES: Did you have a follow-up
25 question? Examination of Erik Kammerer 83
1 A GRAND JUROR: No. I was just trying to
2 make sure I understood who had what 'cause he was
3 going fast and my notes were, like --
4 THE WITNESS: Sorry about that.
5 A GRAND JUROR: -- scribbling.
6 A GRAND JUROR: When the police go in there
7 is it to their discretion which handgun or rifle
8 they use?
9 THE WITNESS: Again, it -- it depends on the
10 variables in the situation; but for the most part,
11 yes.
12 A GRAND JUROR: Okay.
13 A GRAND JUROR: Who was the senior officer
14 in this group?
15 THE WITNESS: Well, the senior-most officer
16 would've been witness officer, Officer Wilcox.
17 A GRAND JUROR: Okay. So he wasn't involved
18 in the actual shooting?
19 THE WITNESS: Right. Just based on time in
20 the Police Bureau he'd be the senior-most person.
21 MR. REES: And, sir, do you mean ranking
22 officer or supervisory officer?
23 A GRAND JUROR: Yeah.
24 MR. REES: Okay. And so --
25 THE WITNESS: Sergeant Axthelm would've been Examination of Erik Kammerer 84
1 the -- the ranking officer.
2 A GRAND JUROR: Oh, the ranking officer
3 instead of senior.
4 MR. REES: If that's what you meant. And
5 the sergeant will be testifying.
6 A GRAND JUROR: Okay. So who was that
7 again?
8 THE WITNESS: Sergeant Axthelm.
9 MR. REES: We're coming up on noon, so I'll
10 propose that we take our noon break. Detective
11 Kammerer will be back with us at 1 o'clock and we'll
12 continue the questions and we'll present the video at
13 that time. All right? Thank you.
14 A GRAND JUROR: Thanks.
15 THE WITNESS: Thank you.
16 * * *
17 (Noon Recess taken at 11:52 p.m.)
18
19 AFTERNOON SESSION
20 (Grand Jury No. 1, 1:39 p.m.:)
21 MR. REES: All right. We're resuming Grand
22 Jury No. 1 following our noon break. And we're
23 resuming with the testimony of Detective Erik
24 Kammerer, who remains under oath.
25 BY MR. REES: Examination of Erik Kammerer 85
1 Q Detective Kammerer, you're still under oath.
2 And as we resume your testimony there was a question
3 just at the end of our break. If you could write for
4 us the -- the names of the shooting officers and the
5 numbers of shots fired because I think some people
6 missed that when you went through it the first time.
7 A Sure.
8 A GRAND JUROR: Just the firearm?
9 MR. REES: For the firearms, yes, sir.
10 BY MR. REES:
11 Q And if you would for the record --
12 A Yes.
13 Q -- read what you've written so the
14 transcript will --
15 A So Fender fired four 223 rounds. Nutting
16 fired one 223 round. Phifer fired two 223 rounds.
17 Martiniuc fired three 12 gauge. Polas, six
18 9-millimeter. And Deputy Sieczkowski, one 40 caliber.
19 MR. REES: All right. And does that answer
20 the question.
21 A GRAND JUROR: (No audible response.)
22 BY MR. REES:
23 Q Okay. So, now, as we resume I want to ask
24 you about the portion of your investigation where you
25 and other detectives looked for any possible video of Examination of Erik Kammerer 86
1 the shooting you've been testifying about.
2 We've seen the scene itself after the
3 shooting. We talked about the evidence that you found
4 there. But you wanted to see if there was video that
5 actually showed the -- the events prior to the
6 shooting, correct?
7 A Yes, that's correct.
8 Q And were you able to obtain videos of the
9 shooting itself?
10 A Yes, we were.
11 Q And did you also look for video that might
12 show some of the earlier events that had been
13 mentioned involving Mr. Elifritz?
14 A We did, yes.
15 Q Okay. And did you bring those videos here
16 to the grand jury?
17 A Yes.
18 Q All right. Then I'm going to step aside and
19 why don't we show the first video.
20 A Okay.
21 MR. REES: And if any grand jurors -- if you
22 want to move to get closer to the screen, of course
23 feel free to -- to do that.
24 A GRAND JUROR: Would it help to turn the
25 lights off to see better? Examination of Erik Kammerer 87
1 A GRAND JUROR: Yeah.
2 A GRAND JUROR: Yeah. Okay.
3 A GRAND JUROR: Thank you.
4 (TRANSCRIBER'S NOTE : Video recording
5 played, 1:43 p.m., as follows:)
6 UNIDENTIFIED SPEAKER: (Indiscernible) that
7 was me (indiscernible) at the end of the --
8 (TRANSCRIBER'S NOTE : Video recording
9 stopped, 1:43 p.m.)
10 THE WITNESS: So I had previously talked
11 about the -- the road rage incident up here in
12 Columbia Chautauqua. So this is the complainant,
13 Mr. Elezar. And they were -- he was in the car with
14 his family and used his phone to video some of it.
15 (TRANSCRIBER'S NOTE : Video recording
16 played, 1:43 p.m., as follows:)
17 (Indiscernible speaking.)
18 (TRANSCRIBER'S NOTE : Video recording
19 stopped, 1:43 p.m.)
20 THE WITNESS: So that right there is the
21 Honda CRV that was stolen in the -- the carjacking
22 down there at 72 and Foster earlier in the day, about
23 three hours prior to this.
24 (TRANSCRIBER'S NOTE : Video recording
25 played, 1:43 p.m., as follows:) Examination of Erik Kammerer 88
1 UNIDENTIFIED SPEAKER: This car has been
2 chasing us and (indiscernible) close to us trying
3 to -- he's following us. (Indiscernible).
4 UNIDENTIFIED SPEAKER: You guys are scaring
5 me.
6 UNIDENTIFIED SPEAKER: (Indiscernible).
7 Chelsea, put the camera a little forward.
8 UNIDENTIFIED SPEAKER: I'm trying to get the
9 license (indiscernible), but --
10 UNIDENTIFIED SPEAKER: Mom, (indiscernible).
11 UNIDENTIFIED SPEAKER: (Indiscernible).
12 He's getting closer and trying to hit us.
13 UNIDENTIFIED SPEAKER: Stop.
14 (Indiscernible).
15 (Various speakers, speaking in a foreign
16 language.)
17 UNIDENTIFIED SPEAKER: And we're not doing
18 anything. He keeps following us.
19 (Various speakers, speaking in a foreign
20 language.)
21 UNIDENTIFIED SPEAKER: Is he actually
22 following us? (Indiscernible). He keeps following
23 us.
24 (Various speakers, speaking in a foreign
25 language.) Examination of Erik Kammerer 89
1 UNIDENTIFIED SPEAKER: He keeps following
2 us. And he -- he won't stop following us.
3 (Indiscernible).
4 (TRANSCRIBER'S NOTE : Video recording
5 stopped, 1:46 p.m.)
6 THE WITNESS: So you can hear the kids are
7 pretty scared.
8 BY MR. REES:
9 Q What's this next video?
10 A So this video is a dash-cam video from just
11 a citizen who was driving and contacted us later.
12 He's driving southbound on MLK up by the Convention
13 Center right now. I believe this is Interstate right
14 here. And --
15 A GRAND JUROR: What's the time on that?
16 THE WITNESS: So this says April 23rd, 2017,
17 at 0:27. So the time stamp is completely inaccurate
18 from real time.
19 A GRAND JUROR: Oh.
20 BY MR. REES:
21 Q But so -- that the real time, though,
22 Detective, isn't this -- would be a few minutes before
23 the report --
24 A GRAND JUROR: 7:25 p.m.
25 BY MR. REES: Examination of Erik Kammerer 90
1 Q -- of the vehicle crash?
2 A Yes.
3 Q Which is at --
4 A 7:29.
5 Q -- 7:29. So this is just before that
6 report?
7 A GRAND JUROR: 7:25 is what they said
8 earlier.
9 BY MR. REES:
10 Q Okay. 7:25, so it's four minutes before
11 this.
12 A So --
13 Q And because it's just -- as you say, this is
14 several blocks north of the location where the vehicle
15 crash was reported, right?
16 A Yes. And just for clarification 7:25 is
17 when the 9-1-1 call came in from the road rage
18 incident, so he actually went home before calling.
19 (TRANSCRIBER'S NOTE : Video recording
20 played, 1:47 p.m., as follows:)
21 THE WITNESS: So as you're watch, watch the
22 right side of the -- the screen.
23 (Beep.)
24 A GRAND JUROR: Oh. Oh.
25 UNIDENTIFIED SPEAKER: Ha, ha, ha. Ha, ha, Examination of Erik Kammerer 91
1 ha. Oh, my God. Oh, my God. Fucking A.
2 (TRANSCRIBER'S NOTE : Video recording
3 stopped, 1:48 p.m.)
4 THE WITNESS: So the reason he's laughing is
5 the car drives down the streetcar line here, which
6 isn't designed for vehicular traffic at all.
7 (TRANSCRIBER'S NOTE : Video recording
8 played, 1:48 p.m., as follows:)
9 UNIDENTIFIED SPEAKER: (Laughter).
10 THE WITNESS: Then he turns off to go to
11 work.
12 (TRANSCRIBER'S NOTE : Video recording
13 stopped, 1:49 p.m.)
14 THE WITNESS: It's just hard to see it
15 because the camera obviously focuses on the raindrops
16 on the windshield and not through the windshield.
17 A GRAND JUROR: I'm confused. Were those
18 two different cars seen? Two different cars?
19 THE WITNESS: What do you mean by "two
20 different cars"?
21 A GRAND JUROR: The one with a -- with a
22 cell phone --
23 A GRAND JUROR: This was the --
24 A GRAND JUROR: This was the dash cam.
25 A GRAND JUROR: -- car with the family Examination of Erik Kammerer 92
1 in it.
2 THE WITNESS: Yes, ma'am.
3 A GRAND JUROR: And now this car, was that
4 the same car?
5 THE WITNESS: Same car. Yeah, the car that
6 was following the Hispanic family --
7 A GRAND JUROR: Yeah.
8 THE WITNESS: -- is the same car that you
9 just saw drive around everybody and hit the curb.
10 A GRAND JUROR: No. No. No. I don't mean
11 the -- the guy. The family that was being followed --
12 THE WITNESS: Mm-hmm.
13 A GRAND JUROR: -- this video just now --
14 THE WITNESS: That's a, yeah, totally
15 different guy.
16 A GRAND JUROR: That's a different person?
17 THE WITNESS: Different guy --
18 A GRAND JUROR: Okay.
19 THE WITNESS: -- who's on his way to work
20 with a dash cam.
21 A GRAND JUROR: Oh, okay.
22 A GRAND JUROR: Did he -- did he call 9-1-1
23 or something or --
24 THE WITNESS: He did not call 9-1-1. He
25 called afterwards. So this video here is -- you're Examination of Erik Kammerer 93
1 looking at Grand again. The direction of travel would
2 be southbound. Or, I'm sorry, Martin -- MLK, not
3 Grand. Direction of travel southbound. This is a
4 business that -- Stark would be right down here and --
5 BY MR. REES:
6 Q Detective, you can use this --
7 A Oh.
8 Q -- too, to a point where -- where we are.
9 A So it's -- like this business here, the
10 camera looking down. And you're going to see that CRV
11 drive down the street. And as you do pay close
12 attention to the driver side of the vehicle.
13 (TRANSCRIBER'S NOTE : Video recording
14 played, 1:50 p.m.)
15 THE WITNESS: So he's hanging out of the
16 vehicle as he's driving up and he jumps out before he
17 even comes to a stop.
18 BY MR. REES:
19 Q And now, Detective Kammerer, a person or
20 persons called 9-1-1 about that incident, right?
21 A Yes, that's correct.
22 Q And was that reported as a -- or understood
23 by 9-1-1 as a crash report?
24 A Yeah. One of the calls, they -- they
25 believed it was a crash, like a vehicular crash, like Examination of Erik Kammerer 94
1 a traffic accident, if you will, at that location.
2 Q And was it reported that -- that a man with
3 no shirt on left the scene and -- and ran off into
4 traffic?
5 A Yes.
6 Q Now, you -- as part of this investigation
7 you and your partner went and looked at that -- at
8 that car, right?
9 A That's correct, yes.
10 Q And did you notice any damage to it?
11 A So the front passenger side of the vehicle,
12 on the right side, that front tire, where it attaches
13 to the axle was completely busted and at about a
14 45-degree angle to the rest of the tires. So I'm
15 guessing -- and the rim was dented, too.
16 So I'm guessing that occurred either when he
17 hit the curb, which I doubt because he was able to
18 drive much longer, but when he hit the streetcar line
19 and was on those chunks of concrete that's probably
20 what busted up the axle.
21 A GRAND JUROR: He snapped the axle?
22 THE WITNESS: Mm-hmm.
23 A GRAND JUROR: (Indiscernible).
24 BY MR. JACKSON:
25 Q You can actually see that if you back up the Examination of Erik Kammerer 95
1 film just like one click. Can you actually see that
2 on the car when it comes to a rest, that damage --
3 A Oh.
4 Q -- you just described?
5 A GRAND JUROR: I can see the tire.
6 BY MR. JACKSON:
7 Q Yeah. Just play it from there.
8 (TRANSCRIBER'S NOTE : Video recording
9 played, 1:52 p.m.)
10 A GRAND JUROR: Yeah, you can see it.
11 THE WITNESS: Yeah. It's --
12 A GRAND JUROR: Oh, gosh.
13 THE WITNESS: So you notice that tire's kind
14 of facing forward and that one's bent over. So I
15 don't know how he was able to drive it that far
16 really.
17 A GRAND JUROR: Lucky nobody got run over
18 during that.
19 THE WITNESS: Mm-hmm. So then this view is
20 from the camera outside City Team Ministries. So
21 you'd be looking north along Grand Avenue up towards
22 Stark Street at the top of the -- the screen there.
23 So then Grand -- or I'm sorry -- MLK would be one more
24 block over from where the car was dumped.
25 BY MR. REES: Examination of Erik Kammerer 96
1 Q Detective, at the top of the screen there --
2 A So that's Mr. Elifritz right there with no
3 shirt on crossing the street right behind a white car.
4 And then you'll see him come down the sidewalk.
5 Q Detective, is the date and time stamp on
6 this video correct?
7 A Yeah, that is.
8 Q Okay.
9 A GRAND JUROR: That's him?
10 THE WITNESS: I'm sorry?
11 A GRAND JUROR: That's him, the guy?
12 THE WITNESS: Ah, no, not yet. You'll see
13 him. He's coming down the sidewalk now at the top of
14 the screen there.
15 A GRAND JUROR: No police officers around?
16 THE WITNESS: Not at this time.
17 A GRAND JUROR: Not yet, right?
18 THE WITNESS: Correct.
19 A GRAND JUROR: Yeah.
20 THE WITNESS: If you see his right hand,
21 he's holding the knife with the blade extending down
22 from the bottom of his hand.
23 (Pause in proceedings, 1:55 p.m. Video
24 playing with no sound.)
25 THE WITNESS: So then this is the inside now Examination of Erik Kammerer 97
1 of City Team Ministries. This is the front door over
2 here on the right-hand side of the screen. This is
3 the counter area that we talked about earlier. This
4 is the Alcoholics Anonymous/Narcotics Anonymous
5 meeting going on right there.
6 So there's Mr. Elifritz coming in.
7 That's him trying coats on.
8 BY MR. REES:
9 Q So did you find out what that is, what's
10 happening? Is there a barrel of donated clothing?
11 A Yeah. So there's a bin of clothing right
12 there, right in the front. And he initially tried to
13 take this gentleman's jacket that was on the chair and
14 they directed him to the bin for -- you know, "If you
15 need a coat, take it out of there."
16 So this is that same camera again from the
17 first image where we've seen him come down the street.
18 Now he comes out and he walks southbound. Then he
19 comes back in. He's kind of just hanging out in the
20 doorway there.
21 A GRAND JUROR: Is that him in the upper
22 right?
23 THE WITNESS: Yeah, right there in the
24 doorway. And you can see he's still got that knife in
25 his hand. Examination of Erik Kammerer 98
1 (Pause in proceedings, 1:57 p.m. - 1:58 p.m.
2 Video playing with no sound.)
3 A GRAND JUROR: Was he quiet through all
4 this?
5 THE WITNESS: Was he quiet?
6 A GRAND JUROR: Yeah.
7 THE WITNESS: He was -- I mean, he wasn't
8 standing there not talking.
9 A GRAND JUROR: Is there audio?
10 THE WITNESS: No, there's no audio. But I
11 don't know what it is he was saying other than just
12 engaging people around him.
13 (Pause in proceedings, 1:58 p.m. - 2:01 p.m.
14 Video playing with no sound.)
15 A GRAND JUROR: There's --
16 THE WITNESS: Yeah. So these are the
17 officers responding to that initial call.
18 A GRAND JUROR: The paramedic call?
19 THE WITNESS: No. The -- the one about the
20 car.
21 BY MR. REES:
22 Q And so he momentarily stepped outside again?
23 A Yeah. So the officer goes by and he steps
24 out. He's looking around and then steps back inside.
25 But you can see his attention is clearly focused on Examination of Erik Kammerer 99
1 what's going on outside, not really what's going on
2 inside here. So he steps outside again, back in.
3 (Pause in proceedings, 2:02 p.m. - 2:03 p.m.
4 Video playing with no sound.)
5 THE WITNESS: So there he is coming outside.
6 And this is just a camera on the other side of the
7 door looking southbound.
8 BY MR. JACKSON:
9 Q Detective, where is the Jacksons on this
10 screen?
11 A So right above where it says 1937 that is
12 the back side of the Jacksons store. And then he went
13 out the door, ran across the street and headed right
14 for the Jacksons store.
15 (Pause in proceedings, 2:04 p.m. Video
16 playing with no sound.)
17 BY MR. REES:
18 Q Was there video from the Jacksons store?
19 A There was, yes.
20 Q And is that what we're seeing here?
21 A Yeah. So a detective that was there at the
22 time -- they didn't have the ability to download the
23 video, so he's just using his phone to record the
24 screen inside the Jackson store.
25 BY MR. JACKSON: Examination of Erik Kammerer 100
1 Q Who is that standing up by the door there?
2 A That's Mr. Elifritz. He's right -- right
3 there. And that person that just walked up there by
4 the door, her name is Carletta Davis.
5 A GRAND JUROR: Is the store video clearer?
6 This is hard to see.
7 THE WITNESS: Not much, no. It's hard to
8 see. But, like most convenience stores, the cameras
9 are set up to capture what the employees are doing and
10 not necessarily what else was going on in the store.
11 BY MR. JACKSON:
12 Q Did his behavior here generate a 9-1-1 call?
13 A Yes. Yes. The employee at the store called
14 9-1-1 saying that he was standing there holding a
15 knife for about five or ten minutes and just pacing
16 back and forth, acting weird.
17 THE WITNESS: And the audio you're hearing
18 is coming from the detective's phone as he's
19 recording. It's not from the store video.
20 So, again, we're -- the camera at City Team
21 Ministries is looking back towards Jacksons at the top
22 of the screen there. There goes Mr. Elifritz.
23 BY MR. JACKSON:
24 Q Is he crossing the street up there --
25 A Yes. Examination of Erik Kammerer 101
1 Q -- at the top of the screen?
2 A Yes.
3 Q Okay.
4 A Just hit the corner there, is walking down
5 the sidewalk on the west side. And you can see him up
6 there crossing by that car. And there's the ambulance
7 that I talked about earlier that was there.
8 Q Is that the Columbia homeless shelter across
9 the street?
10 A Yes. And this is where his interaction with
11 Mr. McKimmy takes place, right back there at the back
12 end.
13 (Pause in proceedings, 2:08 p.m. - 2:11 p.m.
14 Video playing with no sound.)
15 BY MR. REES:
16 Q So this time that we're sitting through, is
17 this when you believe Mr. Elifritz is holding
18 Mr. McKimmy at knifepoint?
19 A Yes, that's correct.
20 (Pause in proceedings, 2:12 p.m. Video
21 playing with no sound.)
22 THE WITNESS: Now, eventually you'll see
23 Mr. Elifritz cross Stark, cross over across Grand and
24 then come back down this way.
25 A GRAND JUROR: So by now you've received Examination of Erik Kammerer 102
1 the 9-1-1 call from the Jackson store?
2 THE WITNESS: Yes, sir.
3 A GRAND JUROR: And you've tied that -- tied
4 it to the earlier events?
5 THE WITNESS: Yeah. They're starting to
6 make those connections that it's all the same guy.
7 (Pause in proceedings, 2:12 p.m. - 2:13 p.m.
8 Video playing with no sound.)
9 THE WITNESS: So you see him coming down the
10 sidewalk now towards City Team right at the top there.
11 He's still got that knife in his hand. He comes in
12 the door and he's right there by the counter again.
13 So these are officers responding now to the call from
14 the ambulance crew about Mr. McKimmy.
15 BY MR. REES:
16 Q At some point persons inside shelter call
17 9-1-1 as well, correct?
18 A You'll see people come out the front door
19 and they're waving at the officers to come across the
20 street.
21 (Pause in proceedings, 2:15 p.m. Video
22 playing with no sound.)
23 THE WITNESS: So you see the flashing light
24 in the door there. The officers are across the street
25 now. Examination of Erik Kammerer 103
1 BY MR. JACKSON:
2 Q So at this point, Detective, are there --
3 how many camera angles are there inside of City Team
4 Ministries?
5 A Four. There's four that -- that capture the
6 events on the inside.
7 Q On the inside. And so were you able to pull
8 video from all of the different angles --
9 A Yes.
10 Q -- within City Team? Okay.
11 So which angle are we looking at here?
12 A So this is inside the -- the building.
13 There's a camera like right here looking like in this
14 direction so you see the front door all the way up to
15 about the stairway here, so that encompasses this area
16 right here.
17 Q Am I standing in the way? Can you see that?
18 A (No audible response.)
19 (Pause in proceedings, 2:16 p.m. - 2:17 p.m.
20 Video playing with no sound.)
21 THE WITNESS: So you see that he's cutting
22 his neck right there. And people are starting to
23 notice what he's doing.
24 (Pause in proceedings, 2:17 p.m. Video
25 playing with no sound.) Examination of Erik Kammerer 104
1 THE WITNESS: So now he's cutting the other
2 side of his neck.
3 As he moves around watch for his interaction
4 with the guy in the blue coat and the white ponytail.
5 BY MR. JACKSON:
6 Q Are officers now at the door?
7 A Yeah. Officers are now at the door. So he
8 tried grab the guy in the white -- white ponytail and
9 that blue coat.
10 BY MR. REES:
11 Q Who (indiscernible) --
12 A GRAND JUROR: It looks like he --
13 BY MR. REES:
14 Q -- identified as Mr. Herrera?
15 A Correct, that's Jerry Herrera.
16 (Pause in proceedings, 2:18 p.m. - 2:19 p.m.
17 Video playing with no audio.)
18 THE WITNESS: You can see the officers now
19 starting to breach the doorway there. And
20 Mr. Elifritz is still in the back corner of the room,
21 kind of in this area here. Some of the officers are
22 coming in.
23 BY MR. JACKSON:
24 Q Where's Mr. Elifritz now?
25 A He's still right there behind that pillar. Examination of Erik Kammerer 105
1 He's poking out right there. So about half the
2 officers are focused on dealing with him and the other
3 half are focused on getting all the civilians out of
4 there.
5 A GRAND JUROR: So it seems like the
6 thoughts were shired [sic] -- were shot, fired --
7 THE WITNESS: Right there.
8 A GRAND JUROR: -- right there.
9 THE WITNESS: Yep. We can back right up if
10 you want to see that again since I was talking through
11 it. You can see he's still back there. And then he
12 comes out and then starts running. And that's when
13 he's shot.
14 Can I get the light switch?
15 BY MR. JACKSON:
16 Q Yeah, go ahead. Let's actually look at the
17 (indiscernible).
18 So while I'm getting to the time stamp, do
19 you want to describe what this is?
20 A So this is that same camera view we saw
21 earlier on the outside of City Ministries looking
22 southbound. So all the officers are in the location
23 now because of the incident with Mr. McKimmy. And
24 then this guy comes out, saying, "He's -- he's cutting
25 his throat. You need to get in here." Examination of Erik Kammerer 106
1 (Pause in proceedings, 2:22 p.m. Video
2 playing with no sound.)
3 THE WITNESS: And they're also telling the
4 officer he's trying to stab people.
5 A GRAND JUROR: Was that the nonlethal with
6 the gray strap?
7 THE WITNESS: Yeah. So the red stripe
8 denotes the -- not nonlethal --
9 A GRAND JUROR: Or --
10 THE WITNESS: -- but less-lethal.
11 A GRAND JUROR: -- less-lethal, sorry.
12 THE WITNESS: Yes, ma'am.
13 And this guy here is a police officer. He's
14 in plain clothes because he has a trainee that he's
15 evaluating.
16 And then that's the second less-lethal
17 operator coming up there in the back.
18 (Pause in proceedings, 2:23 p.m. - 2:24 p.m.
19 Video playing with no sound.)
20 THE WITNESS: And that is Sergeant Axthelm
21 right there.
22 A GRAND JUROR: Portland Police don't have
23 body cams?
24 THE WITNESS: No, ma'am.
25 A GRAND JUROR: Oh. Examination of Erik Kammerer 107
1 UNIDENTIFIED SPEAKER: Do you want to stay
2 on this one or --
3 THE WITNESS: And I don't know if you
4 noticed or not, but they did fire the less-lethal from
5 out here before going in.
6 A GRAND JUROR: Those long two -- the first
7 two things that went in were long, like, rifles?
8 Those are the nonlethal?
9 THE WITNESS: No. The -- the orange straps.
10 A GRAND JUROR: Yeah. But from the other
11 video when you look in the door the first two guns
12 that you can see peeking in are long.
13 THE WITNESS: Yeah. Those are the AR15
14 rifles.
15 A GRAND JUROR: Okay. Oh.
16 THE WITNESS: So this camera angle is kind
17 of right here looking back this way towards the front
18 door. So these are all the folks at the meeting.
19 There's Mr. Herrera sitting right there, Mr. Elifritz
20 there.
21 A GRAND JUROR: It looks like he changed his
22 coat a few times.
23 THE WITNESS: It's the same coat that he got
24 from earlier.
25 (Pause in proceedings, 2:26 p.m. - 2:27 p.m. Examination of Erik Kammerer 108
1 Video playing with no sound.)
2 THE WITNESS: So those guys are trying to
3 use chairs to keep him from coming out towards them.
4 BY MR. JACKSON:
5 Q And so what happened right there?
6 A He was struck with the less-lethal.
7 Q Okay. And where are the police right now?
8 A They're still outside. They're in the
9 doorway there.
10 Q Okay. Could you just go up and point to
11 direct the attention of where that happens?
12 A Mm-hmm.
13 A GRAND JUROR: About how many feet away was
14 that, was he from the -- from the doorway?
15 THE WITNESS: From there he's probably 40 or
16 50 feet.
17 A GRAND JUROR: Which is the distance that
18 those things work?
19 THE WITNESS: Oh, absolutely. So watch his
20 leg. Right there. See that round drop right down
21 there? Do you guys want to see that again?
22 A GRAND JUROR: Yeah. I --
23 THE WITNESS: Okay.
24 A GRAND JUROR: -- must have blinked when it
25 did it. Examination of Erik Kammerer 109
1 THE WITNESS: So the round's going to land
2 in the alcove. It'll be about here. And right about
3 -- watch his left thigh. Right there.
4 A GRAND JUROR: So he didn't feel it.
5 THE WITNESS: Correct.
6 BY MR. JACKSON:
7 Q What happened right there?
8 A Same thing.
9 Q He got hit again with less-lethal?
10 A Yes.
11 Q And there?
12 A And -- and another one impacted him.
13 Q Okay. So let's see that again.
14 A And if you can't see it from back there --
15 A GRAND JUROR: But he's not rushing anyone
16 at this point.
17 THE WITNESS: Nope.
18 (Pause in proceedings, 2:29 p.m. Video
19 playing with no sound.)
20 BY MR. JACKSON:
21 Q Are the police just standing there quietly
22 while this is happening or what --
23 A No. They're giving constant directions to
24 the civilians, constant directions to Mr. Elifritz to
25 drop the knife. Examination of Erik Kammerer 110
1 Q Does he appear to be complying with those
2 orders?
3 A No, he actually -- you can hear him yell,
4 "No." And then he runs out from back here. He runs
5 right out there towards the officers.
6 A GRAND JUROR: Where -- where was the
7 officer with the shotgun?
8 THE WITNESS: Ah, he was standing rough --
9 roughly over here.
10 A GRAND JUROR: Oh, okay. 'Cause I thought
11 there were shotgun casings up on the other corner if
12 you go back.
13 THE WITNESS: Yeah. So Mr. Martiniuc is
14 right there next to that pillar.
15 BY MR. REES:
16 Q And I think, Detective, he's asking about
17 then, if he's standing there, how does that correspond
18 to the placard with the shotgun shells.
19 A So you fire the shotgun. You rack the slide
20 back. It ejects the shell out.
21 A GRAND JUROR: Right.
22 THE WITNESS: And then depending on what is
23 between the shell and its resting place determines
24 where it goes from there. So if there's nobody there,
25 it maybe flies 10, 15 feet, hits. Depending on the Examination of Erik Kammerer 111
1 terrain. If it's smooth terrain, it rolls. If it's
2 grass, it stays.
3 If it impacts something between there, then
4 it moves in that -- that direction now. So if, you
5 know, there's an officer right next to him or a pillar
6 in this case, it's going to change the direction of
7 that casing as it's coming out.
8 BY MR. REES:
9 Q What was the distance from where
10 Mr. Elifritz fell to the floor from the officers who
11 were shooting at him?
12 A Depending on the various officer, between 18
13 to 20 feet.
14 BY MR. JACKSON:
15 Q And at that time that they were deploying
16 the less-lethal sponge rounds at him were they also
17 giving the constant commands to drop the knife, drop
18 the knife, drop the knife?
19 A Yes.
20 Q Okay.
21 A And by law we're required to notify them,
22 you know, "Drop the knife or something will occur. In
23 this case or you'll be hit with less-lethal or" -- you
24 know, there has to be a warning given.
25 Q So what angle are we seeing here on the Examination of Erik Kammerer 112
1 screen?
2 A So you would be in this corner here looking
3 down this way.
4 Q Okay.
5 A So everybody's starting to notice that he
6 made thet first series of cuts on his neck.
7 Q You mentioned earlier in your testimony
8 there was a door that was locked in the back?
9 A Well, yeah. So there's this -- this doorway
10 right here. You can see the edge of the doorway,
11 which corresponds with this doorway here, which leads
12 to that food storage area. And so everybody was
13 funneling in that direction, but they couldn't get out
14 through here.
15 A GRAND JUROR: So there's only one way in
16 and one way out?
17 MR. REES: (Indiscernible).
18 THE WITNESS: Yeah. I mean, there are other
19 doors, but they were secured.
20 BY MR. JACKSON:
21 Q So all of these people we see on the screen
22 here were basically stuck in that back corner?
23 A That's correct, yes.
24 Q What are these people doing down here?
25 A They're just hiding. You can see the guy Examination of Erik Kammerer 113
1 hiding behind a desk. Another couple guys hiding
2 behind a garbage can. Those two guys are ducked down
3 behind a chair, just hoping not to be seen by
4 Mr. Elifritz.
5 A GRAND JUROR: And some guy's standing
6 there with their hands in their pocket.
7 THE WITNESS: Yeah.
8 A GRAND JUROR: Does he live in that
9 shelter?
10 THE WITNESS: I'm sorry?
11 A GRAND JUROR: Does he live in the shelter?
12 THE WITNESS: No, he does not live in the
13 shelter.
14 A GRAND JUROR: All right.
15 THE WITNESS: So you can see he's hiding
16 behind that pillar, trying to keep the pillar between
17 him and the officers. And then he just comes out and
18 starts running.
19 (TRANSCRIBER'S NOTE : Audio recording
20 played, 2:36 p.m., as follows:)
21 (Indiscernible yelling.)
22 (TRANSCRIBER'S NOTE : Audio recording
23 stopped, 2:36 p.m.)
24 BY MR. REES:
25 Q Okay. And what is this? Examination of Erik Kammerer 114
1 A So this is -- one of the guys that was
2 inside there going -- ah, got a cell phone out and
3 started videoing what was going on.
4 Q Is this the -- the video that was released
5 to the media?
6 A No.
7 MR. JACKSON: No. Okay.
8 (TRANSCRIBER'S NOTE : Audio recording,
9 played, 2:36 p.m., as follows:)
10 (Indiscernible yelling.)
11 (TRANSCRIBER'S NOTE : Audio recording
12 stopped, 2:36 p.m.)
13 THE WITNESS: So if you saw the orientation
14 really quick, this guy is back here in this corner
15 where he's videoing 'cause here's the stairs here.
16 Mr. Elifritz is back here. And then the officers are
17 way down here at the front.
18 (TRANSCRIBER'S NOTE : Audio recording
19 played, 2:37 p.m., as follows:)
20 (Indiscernible yelling.)
21 (TRANSCRIBER'S NOTE : Audio recording
22 stopped, 2:37 p.m.)
23 BY MR. JACKSON:
24 Q What do we see here?
25 A So this is taken from a different angle, so Examination of Erik Kammerer 115
1 another guy that would've been over here -- I'm
2 sorry -- over here videoing.
3 BY MR. REES:
4 Q And this was released to the media, but it
5 doesn't show the shooting?
6 A Correct.
7 (TRANSCRIBER'S NOTE : Audio recording
8 played, 2:37 p.m., as follows:)
9 (Indiscernible yelling.)
10 (TRANSCRIBER'S NOTE : Audio recording
11 stopped, 2:37 p.m.)
12 THE WITNESS: So that -- that snap you just
13 heard, that's a 40-millimeter less-lethal round being
14 fired.
15 (TRANSCRIBER'S NOTE : Audio recording
16 played, 2:37 p.m., as follows:)
17 (Indiscernible yelling.)
18 THE WITNESS: That's another one.
19 UNIDENTIFIED SPEAKER: Drop the knife now.
20 UNIDENTIFIED SPEAKER: No.
21 UNIDENTIFIED SPEAKER: (Indiscernible) fire.
22 (Indiscernible) fire it. Down now.
23 (TRANSCRIBER'S NOTE : Audio recording
24 stopped, 2:38 p.m.)
25 THE WITNESS: So I don't know if you can Examination of Erik Kammerer 116
1 hear that or not. "Drop the knife," and he screams,
2 "No."
3 A GRAND JUROR: Wait. That video is from
4 Oregon Live?
5 THE WITNESS: No. It was -- it was --
6 A GRAND JUROR: So they -- they --
7 THE WITNESS: -- given to the media.
8 A GRAND JUROR: -- they edited it --
9 THE WITNESS: And we were able to --
10 A GRAND JUROR: -- short.
11 THE WITNESS: -- retrieve it from Oregon
12 Live.
13 A GRAND JUROR: It seems that that person
14 that shot it probably has a longer version?
15 THE WITNESS: No. I think what happened is
16 he turned his phone off and then went out.
17 BY MR. JACKSON:
18 Q And what door would he have gone out of from
19 that position?
20 A He would've gone out through here, which is
21 this hallway that leads all the way down.
22 Q You mean on the other side of the --
23 MR. REES: The hallway's on the other side.
24 THE WITNESS: Oh, I'm sorry. Yeah. This
25 hallway here that leads all the way down. Examination of Erik Kammerer 117
1 MR. JACKSON: Yeah. Okay.
2 BY MR. REES:
3 Q Now, this next video, is this the cell phone
4 video that was released?
5 A No. So this is -- it's the same video as
6 the previous one, but this one was texted to our
7 detective, which is why it's such poor quality.
8 (TRANSCRIBER'S NOTE : Audio recording
9 played, 2:39 p.m., as follows:)
10 (Indiscernible yelling.)
11 UNIDENTIFIED SPEAKER: This shit's fucking
12 (indiscernible).
13 (Indiscernible yelling.)
14 THE WITNESS: So this is what we were
15 talking about earlier where he just ran outside.
16 (Indiscernible yelling.)
17 (TRANSCRIBER'S NOTE : Audio recording
18 stopped, 2:40 p.m.)
19 THE WITNESS: (Indiscernible). So this is
20 the video that shows the shooting. And he's standing
21 over here. You can see those stairs right here. And
22 then you'll -- you'll the interaction. That's
23 Mr. Elifritz standing right there at the right,
24 correct.
25 MR. JACKSON: Okay. So we should play it? Examination of Erik Kammerer 118
1 BY MR. REES:
2 Q Well, I'm sorry to keep asking this
3 question, but I just want to make sure we're clear.
4 A This is the -- this is the video that was
5 released to the --
6 Q Okay. Well, this is a critical point, so
7 I -- I just want to -- before we show it, to avoid
8 further confusion --
9 A Okay.
10 Q -- as this has been shown on the media
11 repeatedly. And it creates a completely distorted and
12 incorrect view of what occurred --
13 A That's correct.
14 Q -- right?
15 A Yes.
16 Q And why is that?
17 A So for whatever reason as he's recording,
18 the video and the audio are in sync. And then as it
19 progresses forward the video hangs, but the audio does
20 not. You can hear it continue forward without
21 hanging.
22 And then after a couple of seconds the video
23 unfreezes and continues to go forward from the point
24 where it hung. So now the audio and the video are out
25 of sync. Examination of Erik Kammerer 119
1 Q And so as a result it appears that the
2 police shoot Mr. Elifritz when he's really not doing
3 anything?
4 A Right. Long before he exits the -- the
5 alcove, it -- merely watching this video you would
6 think they shot him while he was still back there.
7 Q And that's been, of course, what's been out
8 in the public. Did -- did the police bureau release
9 this corrupted video?
10 A No. The -- the guy that took the video,
11 Morgan Pickering, loaded it on Instagram and that's
12 how it got out.
13 A GRAND JUROR: However, that other video
14 showed also when they started shooting the foam rounds
15 at him, he wasn't at that point running towards them.
16 THE WITNESS: That is correct. He wasn't.
17 A GRAND JUROR: He wasn't.
18 BY MR. REES:
19 Q Well, I'm -- so to be clear, if you remember
20 from the earlier video, the police don't use the
21 deadly force firearms until he runs. And that's what
22 we're talking about. Clearly, they were shooting him
23 with the less-lethal foam projectiles before he ran?
24 A GRAND JUROR: When he was further away.
25 MR. REES: Yes, that's correct. And they'll Examination of Erik Kammerer 120
1 explain why later.
2 BY MR. REES:
3 Q But we were trying to -- just to be clear --
4 we're talking about the use of deadly force. So go
5 ahead and -- with the understanding that in this
6 video, the pictures and the sound do not match, then
7 go ahead and show it.
8 A And right now it does, but you'll see when
9 it doesn't.
10 Q You mean at the beginning?
11 A Mm-hmm.
12 (TRANSCRIBER'S NOTE : Audio recording
13 played, 2:43 p.m., as follows:)
14 (Indiscernible yelling.)
15 UNIDENTIFIED SPEAKER: Get out from behind
16 him. Move. Come on.
17 UNIDENTIFIED SPEAKER: Oh, my God. Oh, my
18 God.
19 (Indiscernible yelling.)
20 THE WITNESS: Right here.
21 (Indiscernible yelling; dog barking.)
22 UNIDENTIFIED SPEAKER: Drop the knife.
23 (Indiscernible). Drop the knife. (Indiscernible).
24 (Indiscernible yelling. Shots being fired.
25 Dog barking.) Examination of Erik Kammerer 121
1 UNIDENTIFIED SPEAKER: Oh, God. Oh, no.
2 Please don't look (Indiscernible). Oh, my God. Oh,
3 my God. Oh, my God.
4 (Indiscernible yelling. Dog barking.)
5 UNIDENTIFIED SPEAKER: Drop the knife now.
6 UNIDENTIFIED SPEAKER: Oh, my God. Oh, no.
7 (Indiscernible yelling.)
8 UNIDENTIFIED SPEAKER: You guys, come here.
9 Get out of the way. Out. Out. Out. (Indiscernible)
10 and get out.
11 A GRAND JUROR: It seems to be synchronized
12 right now when he's saying, "Come on, get out."
13 THE WITNESS: It's -- it's still behind. It
14 never synchronizes.
15 (Indiscernible chatter and yelling in the
16 background. Sirens.)
17 UNIDENTIFIED SPEAKER: Oh, my God. Oh, my
18 God. Oh, my God. Oh, my God. Oh, my God. Oh, my
19 God. Oh, my God.
20 (TRANSCRIBER'S NOTE : Audio recording
21 stopped, 2:45 p.m.)
22 THE WITNESS: Okay.
23 A GRAND JUROR: Can we see the rest of it?
24 Is that the end?
25 THE WITNESS: Sure. Examination of Erik Kammerer 122
1 (TRANSCRIBER'S NOTE : Audio recording
2 played, 2:45 p.m., as follows:)
3 (Indiscernible chatter and yelling in the
4 background. Sirens.)
5 UNIDENTIFIED SPEAKER: Can I use the cell
6 phone?
7 UNIDENTIFIED SPEAKER: Well, I'm taping
8 this. Oh, my God.
9 (Indiscernible yelling in the background.)
10 UNIDENTIFIED SPEAKER: Oh, my God. Oh, my
11 God.
12 UNIDENTIFIED SPEAKER: I'm on my phone.
13 (Indiscernible).
14 UNIDENTIFIED SPEAKER: I don't know.
15 (Indiscernible).
16 (TRANSCRIBER'S NOTE : Audio recording
17 stopped, 2:46 p.m.)
18 THE WITNESS: So if you notice at the end
19 there the sound stopped, but the video continued for
20 another couple of seconds.
21 BY MR. JACKSON:
22 Q Okay. So what is this here, Detective?
23 A So though we don't have body cams, we do
24 have cameras in some of the cars. And this is the
25 camera from inside Officer Fox's car. When he exits Examination of Erik Kammerer 123
1 the vehicle he has a unit on him that records sound.
2 So when it stopped in front -- you're not going to see
3 anything different than rain and brake lights, but
4 you'll be able to hear what's going on inside the
5 building from Officer Fox's MAV.
6 A GRAND JUROR: Which officer?
7 THE WITNESS: Officer Ken Fox.
8 (Pause in proceedings, 2:48 p.m.)
9 (TRANSCRIBER'S NOTE : Audio recording
10 played, 2:48 p.m., as follows:)
11 THE WITNESS: As soon as he turned on the --
12 activated the lights, it activates the video. So it
13 shows him driving around for a while.
14 BY MR. JACKSON:
15 Q So can you orient us here?
16 A Yeah. So right now he's northbound on
17 Grand. That would be Stark down there and so he's
18 roughly down in this area right now.
19 Q So My Father's Place is to the left of the
20 screen as we look at it?
21 A Correct.
22 Q And City Team is to the right?
23 A Correct.
24 MR. JACKSON: Okay.
25 (TRANSCRIBER'S NOTE : Video recording Examination of Erik Kammerer 124
1 played, 2:49 p.m., as follows:)
2 UNIDENTIFIED SPEAKER: (Indiscernible).
3 THE WITNESS: And the way the audio records
4 on this, it's one channel per source. So there's a
5 source in the car and there's a source on his person.
6 But they play simultaneously, so you're going to hear
7 what's going on in the car simultaneous to what's
8 going on inside.
9 OFFICER FOX: Do we know where he went?
10 A GRAND JUROR: Do they know he's inside the
11 building at this point?
12 THE WITNESS: Not yet, no. Officer Fox
13 justed asked, "Do we know where he went?"
14 UNIDENTIFIED SPEAKER: Officer,
15 (indiscernible).
16 THE WITNESS: Hear the guy yelling,
17 "Officer."
18 UNIDENTIFIED SPEAKER: (Indiscernible).
19 UNIDENTIFIED SPEAKER: (Indiscernible)
20 sounds like (indiscernible).
21 UNIDENTIFIED SPEAKER: (Indiscernible).
22 UNIDENTIFIED SPEAKER: I know.
23 UNIDENTIFIED SPEAKER: We need help.
24 UNIDENTIFIED SPEAKER: Okay.
25 UNIDENTIFIED SPEAKER: He's trying to stab Examination of Erik Kammerer 125
1 people now (indiscernible).
2 THE WITNESS: You hear that? "He's trying
3 to stab people now."
4 UNIDENTIFIED SPEAKER: All right. Get back.
5 Get back. Get back. Get back in. Get everyone back
6 there (indiscernible) you guys get inside a room.
7 UNIDENTIFIED SPEAKER: (Indiscernible).
8 UNIDENTIFIED SPEAKER: Stay right there.
9 (Indiscernible). Hey, drop the knife or you're going
10 to get beanbagged. Throw it down to -- throw it down
11 to the ground. You're going to get beanbagged.
12 UNIDENTIFIED SPEAKER: (Indiscernible) get
13 this door open.
14 UNIDENTIFIED SPEAKER: Get back.
15 (Indiscernible). We're going to beanbag.
16 UNIDENTIFIED SPEAKER: Back off.
17 UNIDENTIFIED SPEAKER: (Indiscernible)
18 coming at everyone (indiscernible). You're going to
19 get shot. Drop the knife, dude. Drop the knife.
20 (TRANSCRIBER'S NOTE : Audio recording
21 stopped, 2:50 p.m.)
22 THE WITNESS: So I don't know if you're able
23 to hear those orders, but it's "Drop the knife or
24 you're going to get beanbagged. If you come at us,
25 you're going to get shot." And he's been given Examination of Erik Kammerer 126
1 warnings and -- and --
2 A GRAND JUROR: But beanbags weren't used,
3 right? He was just --
4 THE WITNESS: It's a -- it's a phrase.
5 A GRAND JUROR: Yeah.
6 THE WITNESS: A beanbag is less-lethal.
7 They just got these tools out on the street. So a lot
8 of the guys are used to saying "beanbagged," but it's
9 a description of what's going to happen.
10 A GRAND JUROR: They were not beanbags.
11 THE WITNESS: It's a less-lethal.
12 (TRANSCRIBER'S NOTE : Audio recording
13 played, 2:51 p.m., as follows:)
14 UNIDENTIFIED SPEAKER: (Indiscernible) on
15 the ground (indiscernible) less-lethal
16 (indiscernible).
17 THE WITNESS: There's another -- "You're
18 going to get hit with a less-lethal."
19 A GRAND JUROR: The foam was used instead.
20 (TRANSCRIBER'S NOTE : Audio recording
21 stopped, 2:51 p.m.)
22 MR. JACKSON: I'm sorry. What was your
23 question?
24 THE WITNESS: It was the other type, the
25 foam, not the beanbag rounds. Examination of Erik Kammerer 127
1 THE WITNESS: We don't have the beanbag
2 rounds anymore.
3 A GRAND JUROR: Okay. So he was just saying
4 it 'cause --
5 THE WITNESS: He was just --
6 A GRAND JUROR: -- that's --
7 THE WITNESS: Right.
8 A GRAND JUROR: -- what they call it.
9 THE WITNESS: 'Cause, you know, years of
10 training, "You're going to do this or you're going to
11 get, you know, shot with a beanbag," but it's all
12 less-lethal. And then the other officer said, you
13 know, "Drop the knife or you're going to get shot with
14 a less-lethal."
15 A GRAND JUROR: Okay.
16 BY MR. JACKSON:
17 Q And in your experience do people more
18 readily understand what it means to be shot with a
19 beanbag than a 40-millimeter --
20 A Oh, yeah.
21 Q -- foam-tip round --
22 A Absolutely.
23 Q -- projectile?
24 Okay. So if you're shouting in a dynamic
25 situation -- Examination of Erik Kammerer 128
1 A GRAND JUROR: It's just for communication.
2 BY MR. JACKSON:
3 Q -- commands --
4 A Yeah.
5 A GRAND JUROR: Yeah.
6 THE WITNESS: It also lets the other
7 officers know what's going on so they don't think
8 you're firing a lethal round when that's not your
9 intent.
10 (TRANSCRIBER'S NOTE : Audio recording
11 played, 2:52 p.m., as follows:)
12 UNIDENTIFIED SPEAKER: Everyone -- everybody
13 get (indiscernible). Go to a different room. Hey,
14 you, come here. Come here. Everybody over there.
15 (Indiscernible). Drop the knife. Drop the knife.
16 (Indiscernible). Drop the knife. Drop the knife.
17 Drop the knife.
18 (Indiscernible). Hey. Hey, hey. Come back
19 here (indiscernible) over here. Drop the knife.
20 (Indiscernible) back in the corner over there.
21 (Indiscernible). (Dog barking.) Drop the knife.
22 (Shots fired.)
23 THE WITNESS: And those are the lethal
24 shots.
25 UNIDENTIFIED SPEAKER: (Indiscernible). Examination of Erik Kammerer 129
1 (TRANSCRIBER'S NOTE : Audio recording
2 stopped, 2:53 p.m.)
3 MR. JACKSON: Would anyone like to hear it
4 again now, the audio?
5 No? Okay. All right.
6 A GRAND JUROR: I can't understand what
7 they're saying anyway.
8 THE WITNESS: Yeah. Unfortunately, you
9 know, it's just one microphone.
10 A GRAND JUROR: But there's so much --
11 THE WITNESS: You've got everything else
12 going on and -- and then you factor in all the --
13 A GRAND JUROR: I mean, you can hear the dog
14 barking --
15 THE WITNESS: -- noise from the car.
16 A GRAND JUROR: -- (indiscernible)
17 everything else.
18 THE WITNESS: Yeah.
19 A GRAND JUROR: So it was only the one
20 officer with audio?
21 THE WITNESS: Yeah. Only one officer that
22 night had the -- the MAV unit.
23 A GRAND JUROR: Hmm.
24 MR. REES: Okay. So that concludes our
25 presentation of Detective Kammerer. Do you want ask Examination of Erik Kammerer 130
1 questions now or I believe he'd be available to us
2 during next week's sessions Monday, Tuesday and
3 Wednesday as well.
4 Is that right?
5 THE WITNESS: Yes. Tuesday and Wednesday
6 (indiscernible).
7 MR. REES: But are there any immediate
8 questions before we dismiss him for the afternoon?
9 All right. Thank you, Detective.
10 We'll take -- I'm sorry. Was there a
11 question?
12 A GRAND JUROR: I can ask it later. I was
13 just wondering --
14 MR. REES: Are you sure?
15 A GRAND JUROR: -- about the dog
16 (indiscernible).
17 MR. REES: So Officer Gore, who's the canine
18 handler, is one of our witnesses. You'll be able to
19 ask him exactly that question. Okay. So we'll
20 dismiss Detective Kammerer now.
21 Thank you.
22 THE WITNESS: Thank you.
23 MR. REES: And then we'll go off the record
24 and take our afternoon break. Thank you.
25 (Recess taken, 2:56 p.m. - 3:16 p.m.) Examination of Derek Wollin 131
1 MR. REES: All right. We're back on the
2 record after a brief afternoon break. And our next
3 witness is Derek Wollin.
4 Mr. Wollin, if you'd please remain standing
5 and raise your right hand?
6 THE WITNESS: Sure.
7 DEREK WOLLIN
8 Was thereupon called as a witness; and, having been
9 first duly sworn, was examined and testified as follows:
10 EXAMINATION
11 BY MR. REES:
12 Q Thank you, sir. Please be seated.
13 And when you're ready if you could state and
14 spell your name.
15 A My name is Derek Wollin; D-e-r-e-k,
16 W-o-l-l-i-n.
17 Q Mr. Wollin, I understand that you were
18 present at the City Team Ministries at 526 Southeast
19 Grand Avenue on April the 7th, 2018, when this
20 incident occurred; is that correct?
21 A That is correct.
22 Q Okay. When did you first notice
23 Mr. Elifritz, who's the man with the knife? When did
24 you first notice him?
25 A He actually -- before he even came in with Examination of Derek Wollin 132
1 the knife I was standing in the doorway of the -- the
2 building. He came in 15 minutes before the second --
3 the first time he came in I was standing in the
4 doorway. He came in, kind of brushed by me. He had
5 no shirt on. He looked really confused. You know, I
6 don't know if he was high on something or whatever.
7 But he just started screaming, "I need a
8 shirt. I need a -- I need a jacket. Give me a shirt.
9 Give me a jacket."
10 Someone had said, "There's a donation bucket
11 right there." He dug through it. He threw on a
12 jacket quick. I stepped like five feet off to the
13 side. He stood in the doorway peeking out the door,
14 looking back in, peeking out the door as if somebody
15 was chasing him or something. I don't know. Then
16 he -- he did that for about three to four minutes and
17 then he left.
18 Q All right. And then did you see him again?
19 A He did. He came back in. It was during an
20 AA meeting that was in the process of going on. He
21 came back in and had a knife in his hand, walked in
22 the door, just said -- he was repeatingly [sic]
23 saying, "They killed my family. They're going to kill
24 me. I'm taking you all out. I'm killing everybody in
25 here. Nobody's going to take me down." Examination of Derek Wollin 133
1 He kept repeating something about somebody
2 killed his family, that they wanted to kill him and
3 that he's here to take everybody out.
4 Q And did you have any reaction to what he was
5 doing and saying at that point?
6 A Yeah. I stood up. I moved a little bit
7 away from him. Everybody was kind of scurrying to the
8 other side of the room. I just kind of stood up to
9 look to see what he was doing next. He proceeded to
10 take a knife that was in his hand and cut his throat
11 -- or the side of his throat, it looked like.
12 Then he was almost, like, grabbing for
13 people that were kind of, like, scurrying past him.
14 It looked like he was trying to grab somebody. I
15 picked up a chair like this. I held the legs out and,
16 you know, I just said, "Stay -- stay away from me,"
17 and I started to move to the back of the room
18 (indiscernible).
19 Q And so did you think at that point that he
20 was a danger, possibly was going to cut or stab other
21 people?
22 A He was a complete danger. He looked like he
23 was -- he was trying to grab and, you know, kill
24 anybody that he could. That's what it seemed to me
25 anyway, yes. Examination of Derek Wollin 134
1 Q So were you -- were you afraid?
2 A I was.
3 Q And what happened then?
4 A Then the group of us kind of moved to the
5 back side of the room. And he just started kind of
6 pacing back and forth, looking as if he's looking to
7 find somebody. You know, he's a big kind of guy. He
8 was. Maybe find somebody weaker than him or not. We
9 all moved to the side of the room.
10 Next thing you know, the Portland Police
11 Department came in. As soon as they got in the door,
12 "Drop your weapon. Get on the ground. Drop your
13 weapon. Get on the ground." You know, and we're just
14 kind of standing there. I'm thinking, "Okay. Cool.
15 It's going to all be over in a second." Well, he
16 wouldn't.
17 He -- he wouldn't -- he -- he looked like he
18 was -- like he was trying to grab somebody else at
19 that time maybe, like, as a shield or something, you
20 know. But he wouldn't -- he just -- he wouldn't drop
21 his weapon and he wouldn't get on the ground.
22 He looked like he -- I mean, and you could
23 hear them clear as day. I -- I would say they
24 probably said it ten to 12 times, "Drop your weapon.
25 Get on the ground. Get on the ground." And he -- he Examination of Derek Wollin 135
1 wouldn't do anything.
2 Q That was the police making those commands?
3 A Correct.
4 Q And you could hear them clearly?
5 A Oh, yeah.
6 Q Did you see Mr. Elifritz, the man with the
7 knife, any kind of response to that at all?
8 A He looked like he was getting more and more
9 mad. That's how it looked on his face. He -- he was
10 starting to more and more move around like this, like
11 he was looking for something to grab somewhere. It
12 even looked like he was looking -- there was a -- like
13 a little side entrance, like, behind him. He -- he
14 wouldn't -- like, he wasn't even looking to get out.
15 Like, he was looking for somebody to grab or
16 somebody to -- he actually -- there was a gentleman
17 that walked -- kind of walked by him within a couple
18 feet and he reached out and tried to grab the guy, but
19 the guy kind of scurried away and -- one of the guys
20 that were in the place.
21 And then he was like, "Oh, my -- okay.
22 Well" -- you know, and he just kept saying, you know,
23 "I'm going to kill myself. I'm going to kill
24 everybody." He just kept repeating that.
25 Q So what happened after that? Examination of Derek Wollin 136
1 A After that I -- we were in the back corner.
2 We were probably 10 to 15 feet away from him. We
3 heard a couple -- like, a ping, ping, ping. I don't
4 know if he was -- if he was shot with, like -- like a
5 rubber bullet or something. I -- you know, something
6 like that. I'm not sure of that point.
7 But he -- the police just kept saying, "Get
8 down. Get on the ground. Drop your weapon. Get on
9 the ground." We all scurried over towards the
10 restroom. When I'm saying "we all," there's probably
11 15 of us or so, which is on the opposite side of the
12 room. He's over here. We're over here.
13 And they -- there was a little semicircle of
14 Portland Police Department officers. There was
15 probably five to eight of them or so. They just kept
16 screaming, "Get on the ground now. Drop your weapon
17 now. Get on the ground now."
18 Then he looked like he was -- to me he
19 looked like he was -- he took a few steps towards them
20 like he was going to charge them. That's what I
21 thought.
22 I even -- one of the guys next to me I'm
23 like, "oh, shit, look" -- excuse my language -- "Oh,
24 crap, look what -- oh, no." And next thing you know
25 then there was shots fired and they told us to leave Examination of Derek Wollin 137
1 the building.
2 Q Did -- did you see him fall to the ground?
3 A I did.
4 Q When you -- when you heard the noise and you
5 said maybe it was a rubber bullet -- you're not sure
6 what that was -- but when that happened did that seem
7 to have any effect on him?
8 A Not at all. They -- I -- like I said, I'm
9 not sure what that was. But, you know, if -- if
10 somebody -- if -- if the officers did try to shoot
11 him -- or, you know, with a -- I don't know --
12 sometimes officers have a beanbag thing or a rubber
13 bullet or whatever.
14 If they did that -- it sounded like two or
15 three times that you could hear the ping, ping, ping.
16 It sounded like a BB bouncing around a -- you know,
17 the room or whatever.
18 That guy -- that took no effect on that guy.
19 That guy was still -- the gentleman was still
20 standing. He was still gripping a knife, holding it
21 up in his hand. And he was looking like he still
22 wanted to take somebody out, you know.
23 I mean, after you say, "I'm going to kill
24 everybody in here," ten times, you know, that's all in
25 your mind, "Wow, this guy is going to try to take us Examination of Derek Wollin 138
1 all out," you know.
2 Q Is this man bigger or smaller than you?
3 A I would say he's like 6 -- oh, he's much
4 bigger than me. I would say he's like 6'4" and
5 300 pounds. He's a pretty big guy, he looked like
6 to me.
7 Q Would you ever have any thought of, you
8 know, trying to grab him or something?
9 A No.
10 Q Grab the knife?
11 A He's bigger than me. I mean, unless he was
12 an imminent threat to my kids or something, no, I -- I
13 wouldn't want to pick a fight with this guy, no.
14 Q All right. In that situation what do you
15 think would've happened if you had done that?
16 A He would've stabbed me for sure. I mean, he
17 was -- he -- I think he would've stabbed anybody that
18 tried to confront him.
19 MR. REES: All right. Are there any
20 questions from the grand jury?
21 A GRAND JUROR: Yeah. So what -- what was
22 your reason for being there? What --
23 THE WITNESS: So I -- I work for Franz
24 Bakery here in town. I live in Salem, Oregon. My
25 license had been suspended. So I -- I make a -- you Examination of Derek Wollin 139
1 know, I make 65, 70 grand a year. I'm not going to
2 give that job up. I'm married. I have kids. We have
3 a house in Salem.
4 But I took the Amtrak back and forth as a
5 commuter. But the commuter system here isn't as great
6 as, like, you know, the San Francisco area or the
7 East Coast area.
8 So there's times when I start too early
9 where I can't get here in time, so I sometimes stay
10 there instead of, you know, I mean, get a hotel room,
11 you know, things like that. You know what I mean? So
12 I kind of sacrifice because I love my job and I love
13 supporting my family.
14 A GRAND JUROR: Mm-hmm.
15 THE WITNESS: So I was told about that place
16 from somebody. I pay $5. I go in there at like 9 --
17 9 o'clock at night. I go to sleep and I get up and go
18 back to work in the morning.
19 On my weekends off -- I mean, I have two,
20 three -- you know, a couple days off a week. I go
21 home. If I'm not starting early in the morning, I
22 take the Amtrak home, you know, which is nice, and
23 then just come back in the morning.
24 But that's the only reason that I would ever
25 be at a -- I'm not saying it's a bad place. I'm just Examination of Derek Wollin 140
1 saying that's the only reason that I -- I was there.
2 That night we got off work at like -- we started at
3 4:00 a.m. that day. We got off at 6:00.
4 I shower at my -- at Franz. And I went
5 there to stay for the night. And I ended up getting
6 there at like 7 o'clock or something like that, but --
7 A GRAND JUROR: (Indiscernible).
8 THE WITNESS: Yeah, exactly. It's pretty
9 expensive lodging here in Portland, okay? Especially,
10 you know what I mean? You know, so hopefully just a
11 few more months I'll have my license back; and, you
12 know, I'll be commuting like I have for the last four
13 years, so --
14 MR. REES: Any other questions? No.
15 All right. Well, thanks, Mr. Wollin, very
16 much for -- I think on your work break, so thank
17 you --
18 THE WITNESS: No problem.
19 MR. REES: -- for coming in. Appreciate it.
20 THE WITNESS: Great. I appreciate your
21 time.
22 MR. REES: Thank you.
23 THE WITNESS: Have a nice day, sir.
24 MR. REES: Take care.
25 All right. Are we ready for the next Examination of Jerry Herrera 141
1 witness?
2 MR. JACKSON: Yep.
3 MR. REES: All right.
4 MR. JACKSON: And the next witness is Jerry
5 Herrera.
6 If you want to stand right hear and raise
7 your right hand, I'll swear you in.
8 JERRY HERRERA
9 Was thereupon called as a witness; and, having been
10 first duly sworn, was examined and testified as follows:
11 EXAMINATION
12 BY MR. JACKSON:
13 Q All right. Have a seat.
14 Could you please state and spell your name.
15 A Jerry Herrera; J-e-r-r-y, H-e-r-r-e-r-a.
16 Q Okay. And, Mr. Herrera, I want to take you
17 back to April 7th of 2018. Were you staying at the
18 City Team Ministries that night?
19 A Correct.
20 Q And how long had you been staying there?
21 A A couple of nights.
22 Q A couple of nights. And that evening did
23 you decide to take a nap at the AA meeting that was
24 happening in the main room?
25 A That's correct. Examination of Jerry Herrera 142
1 Q Okay. And where were you sitting?
2 A Towards the back.
3 Q Toward the back?
4 A Yeah.
5 Q And is the back, as you refer to it, kind of
6 toward the front doors --
7 A Correct.
8 Q -- of the -- of the building?
9 A Correct.
10 Q Okay. And what were you sitting on?
11 A Chairs they had laid out.
12 Q For the meeting?
13 A Yeah.
14 Q Could you estimate about how many other
15 people were at the meeting in and around that room?
16 A Well, I was asleep. I -- my guess is
17 probably 15.
18 Q 15 or so?
19 A But I wasn't paying attention. I was
20 just --
21 Q Okay. And I guess I meant before you went
22 to sleep how many people were around --
23 A Yeah.
24 Q -- there. About 15?
25 A My guess is 15. Examination of Jerry Herrera 143
1 Q Okay. And what woke you up from your sleep?
2 A Ah, commotion in the back.
3 Q Okay. And what did you see?
4 A A guy ranting and raving. And I had just
5 woke up, so I had cobwebs. And I was kind of taken
6 offguard. I wasn't sure what was going on.
7 Q Mm-hmm. Safe to say that wasn't happening
8 when you went to sleep?
9 A Correct.
10 Q Okay. And how were the other people around
11 you reacting to that individual?
12 A Ah, that's kind of interesting because I
13 thought they were overreacting. I -- I didn't see --
14 I didn't feel a threat.
15 Q Were they reacting to him, though?
16 A Yes.
17 Q And what, if anything, did you see in his
18 hands?
19 A Something that looked like a box cutter.
20 Q Okay. Like a knife?
21 A Yeah. I don't think it was an actual knife.
22 I think it was a box cutter, something you'd cut a box
23 with.
24 Q Okay. And did you see him actually use that
25 knife to slice his own neck? Examination of Jerry Herrera 144
1 A I did. I did. But --
2 Q Okay. About how many times did you -- would
3 you say he did that?
4 A That's a -- that's the interesting part of
5 it. It was --
6 Q Well, Mr. Herrera, how many times -- let me
7 just jump in. How many times would you say you saw
8 him actually use the knife on himself?
9 A Twice.
10 Q Twice. Okay.
11 A Twice.
12 Q And were you still seated at that point or
13 had you stood up?
14 A I had stood up.
15 Q Okay. And then at some point did he move in
16 your direction?
17 A Correct.
18 Q And what happened then?
19 A He -- he had grabbed me. I was the last
20 physical contact that he had before he was killed.
21 Q Okay. And he grabbed on -- do you remember
22 what part of your body he grabbed onto?
23 A I think it was my right shoulder. It had to
24 have been 'cause I was sitting this way. I'm thinking
25 my -- my right -- my right shoulder. Examination of Jerry Herrera 145
1 Q Okay. And did he still have that knife you
2 described in his hand at that point?
3 A I don't recall seeing it.
4 Q Okay. And then how did you get away
5 from him?
6 A I turned around and -- and just shook him
7 off and looked directly into his eyes and --
8 Q And then did you move more kind of away from
9 where he was at that point?
10 A Yeah.
11 Q In what direction did you move to?
12 A It would've been off to the -- off to the
13 left. And then I turned around and I was just
14 standing there watching him.
15 Q Okay.
16 A Watching what he was doing.
17 Q And then did you see at some point the
18 police arrive at the door to the building?
19 A At that point it was absolutely chaos. And
20 I heard the shouting outside the door. And as he was
21 -- and I was moving towards the corner, watching it --
22 I'm sorry. What was the question?
23 Q The question was: Did you become aware that
24 the police had arrived --
25 A Yes. Examination of Jerry Herrera 146
1 Q -- at the building?
2 A Yes.
3 Q Okay. And were you still inside at that
4 point or had you --
5 A Yes.
6 Q -- moved outside?
7 A No. I was still inside.
8 Q Okay. And what -- what did you do then once
9 the police arrived?
10 A I had made my way back to the corner of the
11 room, the exit.
12 Q Near the front door?
13 A Yeah. Yeah. But in -- in the corner.
14 Q Okay.
15 A For some reason I ended up in the corner and
16 I was just sitting back there watching, taking
17 things in.
18 Q Okay. And then did you leave the building?
19 A As the shots were fired, yes.
20 Q Okay. And so did you actually see the shots
21 or did you just hear them?
22 A No. I turned. I turned at that -- just as
23 I turned the shots were fired.
24 Q Turned away --
25 A Yeah. Examination of Jerry Herrera 147
1 Q -- you mean or turned toward?
2 A No. No. I -- I turned away --
3 Q Okay.
4 A -- and was headed out.
5 Q Headed out the door?
6 A (No audible response.)
7 MR. REES: Okay. All right. Do you have
8 any other questions?
9 Do you folks have any questions?
10 A GRAND JUROR: Yes.
11 A GRAND JUROR: Do you -- a recollection of
12 what he was saying during the -- the whole event?
13 THE WITNESS: Something was said. It was
14 real vague. But it's something to the effect that
15 "I'm going to take somebody." We just talked about
16 that. And -- and I don't really recall precisely.
17 But it was -- it was -- what was said. But
18 I'm a little concerned. I'm from Albuquerque,
19 New Mexico. And in Albuquerque, New Mexico, we had
20 the highest --
21 BY MR. JACKSON:
22 Q Well, Mr. Herrera, let me -- let me just
23 jump in here. And so when you got outside of the
24 building did you speak to the police about what you
25 had observed and seen that night? Examination of Jerry Herrera 148
1 A Yes.
2 Q Okay. Provided them a statement?
3 A Correct.
4 MR. REES: Okay. All right. Okay. Are
5 there any other questions?
6 A GRAND JUROR: I think I heard you say that
7 you didn't particularly feel threatened even though he
8 was so close to you that he had contact with you.
9 THE WITNESS: Not in the least. Not in the
10 least.
11 BY MR. REES:
12 Q Now, is it -- is it correct that you --
13 you've also said that you weren't sure which part of
14 this was real or which part was not real or there was
15 some confusion on that point?
16 A Yeah. Yeah, there is.
17 Q And do you know why that would be, why you'd
18 have confusion over which part really happened and
19 which part didn't happen?
20 A I would have to go to the entire -- I was
21 questioning the validity of the entire episode, quite
22 frankly. It wasn't -- it wasn't adding up between his
23 body language, the pandemonium at hand. It just -- it
24 wasn't adding up. And his -- so I was questioning the
25 whole situation. Examination of Jerry Herrera 149
1 Q And is part of that because you were just
2 waking up, do you think? Or --
3 A Oh, that obviously factors into it, yes.
4 Q Okay. At some point I thought you also had
5 said that you -- you thought maybe this was connected
6 to something that was going on with you --
7 A A conflict of interest.
8 Q -- forces maybe that are following you
9 across the country or something. Is that part of it?
10 A I -- I -- I'm not going to answer that
11 particular question --
12 Q Oh.
13 A -- as phrased that way.
14 Q Oh, I'm not -- maybe I'm not phrasing it
15 that way, but --
16 A GRAND JUROR: Can I ask: What -- did you
17 feel -- just by observing him, did he seem
18 threatening? Did he seem scared or paranoid? What --
19 what -- how would you describe his demeanor, how he
20 was acting?
21 THE WITNESS: He wanted -- he was looking
22 for some help and I could see it. When I turned and I
23 looked -- I looked right into his eyes. And back to
24 the way he was cutting himself.
25 He wasn't cutting himself to -- to -- to do Examination of Jerry Herrera 150
1 irreparable damage. Just -- just by the way he was
2 cutting himself, he was looking for attention. He --
3 he wanted -- he was desperately seeking attention.
4 I'm a proponent of mental health. He wanted
5 some help. He wasn't there to end his life. It was
6 the only way he knew to reach out. He was in a bad
7 spot for whatever reason. And the pandemonium just
8 caught up. It just caught up with him in that moment.
9 And he was killed for that reason.
10 MR. JACKSON: Are there any other questions?
11 A GRAND JUROR: No.
12 MR. JACKSON: Thank you very much for being
13 here, Mr. Herrera.
14 Well, why don't we go off of the record for
15 a minute.
16 And we're back on the record. Our next
17 witness is Carletta Davis.
18 If you'd stand right here and raise your
19 right hand, she'll swear you in. Right over here?
20 THE WITNESS: Okay.
21 CARLETTA DAVIS
22 Was thereupon called as a witness; and, having been first
23 duly sworn, was examined and testified as follows:
24
25 Examination of Carletta Davis 151
1 EXAMINATION
2 BY MR. JACKSON:
3 Q All right. You can have a seat.
4 And could you please state and spell your
5 name.
6 A Carletta Davis, C-a-r-l-e-t-t-a; Davis,
7 D-a-v-i-s.
8 Q All right. Ms. Davis, where do you work?
9 A Jackson Food Store.
10 Q Okay. Is that the one down on Southeast
11 Grand?
12 A Yes.
13 Q Okay. And is that food store connected to a
14 gas station?
15 A Yes, it is.
16 Q Okay. How long have you worked there?
17 A In general, I'm on my third set of owners in
18 almost 20 years. I've been at that location for
19 almost 12.
20 Q For almost 12 years?
21 A Yes, sir.
22 Q Okay. And were you working on April 7th of
23 2018?
24 A Yes, I was.
25 Q Okay. And do you remember what your shift Examination of Carletta Davis 152
1 was that day?
2 A Second shift, 3:00 to 11:00.
3 Q 3:00 to 11:00 p.m.?
4 A Yes.
5 Q Okay. And so that evening do you remember a
6 man coming in and kind of acting oddly by the door?
7 A Yes.
8 Q Okay. Could you describe for us what you
9 saw.
10 A He was by the door and he was pacing,
11 looking. At times he was standing in front of the
12 door almost like -- you know, just standing right in
13 front of the door where customers come in. And I
14 didn't think nothing of him at first, but I get a lot
15 of customers coming in and they stand there.
16 So I went up to him and I asked him, "Are
17 you looking for someone?" At that time a cop car had
18 went by going down the street by the U.S. Bank. He
19 says when I asked (indiscernible) well, the cops --
20 the cops are after me. The cops are looking for me."
21 I said, "There's nobody out there." I said,
22 "There's no cop out there." And then the next thing
23 -- I didn't believe what he said. I said -- I just
24 had a -- like, I couldn't believe what he said, the
25 cops were looking, because I didn't believe him when Examination of Carletta Davis 153
1 he first told me this.
2 And then paramedics went down to the
3 Shleifer Building. I said, "You come outside and see.
4 There's no cops outside. There's nobody looking for
5 you. They're just probably on another call or
6 something," 'cause I didn't believe him when he told
7 me this.
8 He said, "Yes," and he told me, he said,
9 "You get them back" -- he said, "You get them down
10 here. You get them down here now." And I asked him
11 why. He said he wanted to kill them all. He said he
12 wanted to kill them all.
13 Q He said he wanted to kill them all?
14 A He said he wanted to kill all the cops. He
15 wanted to kill them all.
16 Q Were you inside the store?
17 A Outside the store between the two pillars in
18 the front.
19 Q Okay. Okay. And did you see anything in
20 his hands?
21 A Not at that time. We was still talking --
22 Q Okay.
23 A -- at this time. He did not have nothing in
24 his hand. He was just in the clothes that he had on.
25 And I said, "No." I said, "I'm not calling a cop down Examination of Carletta Davis 154
1 for you to come out" -- just point blank, I said, "No,
2 you can't do this." I said, "Please. Please. No."
3 He said, "You get them down here and you get
4 them down here now." Then he proceeded to tell me
5 that he'd done three or four robberies before. He
6 told me he would do it again.
7 "You get the cops down here and you get them
8 down here now." And I asked him, I said, "It can't be
9 that bad." He proceeded to walk over to the other
10 pillar over there. And then he pulled a knife out. I
11 was scared. I just stepped back and said, "Okay." I
12 didn't approach him after that.
13 Q I'm sorry. You said you didn't approach him
14 after that?
15 A No. I couldn't approach him after that.
16 And after I told him, "Okay," he put the knife back in
17 his pocket and proceeded to walk back in the store,
18 pacing back and forth.
19 I went inside and told my other two
20 cashiers. I didn't want to go that far from him, but
21 I didn't want nobody else to be near him. The next
22 thing I know, there was -- he let one lady in. I
23 waited on her.
24 And I went and see -- 'cause she -- 'cause I
25 told her I wasn't quite sure if I should make a 9-1-1 Examination of Carletta Davis 155
1 call on this issue or not. But he told me pretty much
2 get them down here now, he'd done three or four
3 robberies, he would do it again, "You get them down
4 here now." He told me I had to get them. I didn't
5 want to.
6 Just tell me to make the call. I said, "I
7 can't tell them that 'cause the guy was wrong. I told
8 her tell him he was off, he wasn't thinking right.
9 Q You told him that?
10 A I told the other cashier who made the call.
11 Q Okay. And when you say "made the call"?
12 A To the 9-1-1 operator.
13 Q Okay. So you guys did call 9-1-1 because of
14 his behavior?
15 A Yeah.
16 Q Okay. And then you said you helped the lady
17 that had come in --
18 A Yeah.
19 Q -- to the store?
20 A Yeah, it was a lady. She lived at the
21 Shleifer Building before they moved them all out.
22 They helped her get a place down the street somewhere
23 not that far from where we are.
24 Q Okay. And then when you went back to the
25 front he was gone? Examination of Carletta Davis 156
1 A He was gone. I went and looked. They said
2 he went south. I looked out at the sidewalk and I
3 could've sworn I seen him going north toward the
4 sidewalk by My Father's Place.
5 Then sometime -- you know, the cops --
6 'cause I thought he went thataway and I could've sworn
7 he went thataway. The next thing I know there was
8 somebody dead over there and it was him. I didn't
9 know it was him. I just couldn't believe it was him.
10 Q Okay. Do you remember the police coming in
11 response to the 9-1-1 call --
12 A Yes.
13 Q -- that you guys made?
14 A They did.
15 Q Okay.
16 A I told them he left. I told them which way
17 the cashier said that he went, but I thought he went
18 thataway. I wasn't quite sure exactly which direction
19 he went.
20 MR. REES: Okay. All right. Do you have
21 any questions?
22 Do you folks have any questions?
23 A GRAND JUROR: It appears he was having a
24 mental health crisis?
25 THE WITNESS: He was having something. He Examination of Carletta Davis 157
1 was having something. He wasn't right. He wasn't
2 thinking right. I tried. I don't know what else I
3 could've done for him. But I felt like if I didn't
4 ever make the call -- I don't know. Maybe if I didn't
5 make the call, maybe he'd still be alive.
6 But if I didn't, somebody else up there in a
7 cop uniform -- that's all I could think of 'cause they
8 come in and out of my station all the time, getting
9 gas, food, drinks like anybody else who's working.
10 BY MR. REES:
11 Q 'Cause he had said he wanted to kill them?
12 A He wanted to kill all the cops. He said he
13 wanted to kill them all. He didn't put a specify on
14 it. He said all of them. Just all. It was all. But
15 he's dead.
16 MR. REES: Okay. Are there any other
17 questions?
18 Okay. So you're done. Thank you,
19 Ms. Davis.
20 THE WITNESS: Thank you.
21 MR. REES: Okay. And we can go off the
22 record.
23 * * *
24 (Grand Jury No. 1 adjourned,
25 Volume 1, 5-4-18 at 4:06 p.m.) 1
2 --oOo--
3 REPORTER'S CERTIFICATE
4 I certify, by signing below, that the
5 foregoing is a correct transcript, of the audio record
6 in the above-entitled cause, as recorded on CD and
7 transcribed to the best of my ability and in accordance
8 to the quality of the audio CD.
9
10 ______Katie Bradford, CSR 90-0148 11 Court Reporter (503) 267-5112 12
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25 1 IN THE CIRCUIT COURT OF THE STATE OF OREGON
2 FOR THE COUNTY OF MULTNOMAH
3
4
5
6 GRAND JURY No. 1 PROCEEDINGS
7 Case No. 28
8 Conducted by:
9 Don Rees, Chief Deputy District Attorney
10 Todd Jackson, Deputy District Attorney
11
12 - - -
13 May 7, 2018
14 - - -
15 DA Case No. 2380019
16 Re: PPB Case No. 18-114856
17
18
19
20
21 Katie Bradford, CSR 90-0148 Court Reporter 22 Portland, Oregon (503) 267-5112 23
24 Proceedings recorded on wma audio recording; transcript provided by Certified Shorthand Reporter. 25 Index 160
1 GENERAL INDEX
2 VOLUME 2
3 Page No.
4 May 7, 2018 Proceedings 161
5 Case Called 161
6 Examination of Roger Axthelm 161
7 Examination of Kenneth Fox 192
8 Examination of Grover Robinson, Jr. 219
9 AFTERNOON SESSION 241
10 Examination of Troy Grundmeyer 241
11 Examination of Jeff Livingston 254
12 Examination of Timothy Ferguson 272
13 Examination of Dennis Wilcox 296
14 Examination of Tyler Simpkins 309
15 Examination of Clifford Nelson 325
16 Examination of Chad Phifer 340
17 Examination of Brad Nutting 366
18 Reporter's Certificate 393
19 * * *
20
21
22
23
24
25 Examination of Roger Axthelm 161
1 Death Investigation
2 PPB Case No. 18-114856
3 Deceased: John Andrew Elifritz
4 Incident Date: April 7, 2018
5 Location: 526 SE Grand Avenue, Portland, Oregon
6 * * *
7 (Volume 2, Monday, May 7, 2018, 8:43 a.m.)
8 P R O C E E D I N G S
9 (Whereupon, the following proceedings were
10 held before Grand Jury No. 1:)
11 MR. REES: All right. We're on the record.
12 And we're continuing on Monday morning with
13 DA Case 238001 and Grand Jury No. 1, Case No. 28.
14 And our next witness is Sergeant Roger Axthelm.
15 Sergeant. Sergeant, if you could remain
16 standing and please raise your right hand.
17 ROGER AXTHELM
18 Was thereupon called as a witness; and, having been
19 first duly sworn, was examined and testified as follows:
20 EXAMINATION
21 BY MR. REES:
22 Q For the record, sir, if you could please
23 state and spell your name.
24 A Yeah. Roger, last name's Axthelm. It's
25 A-x-t-h-e-l-m, as in Mary. Examination of Roger Axthelm 162
1 Q And what's your occupation?
2 A Sergeant with the Portland Police Bureau.
3 Q How long have you been in the Police Bureau?
4 A Since 1994, so 23-plus years.
5 Q And how long have you been a sergeant?
6 A 12-plus years as a sergeant.
7 Q All right. And what precinct are you
8 currently assigned to?
9 A Central Precinct, afternoon relief. We call
10 it C relief.
11 Q And so what -- what are the hours of that
12 shift?
13 A 4:00 p.m. 'til 2:00 -- 'til 2:00 a.m.
14 Q All right. And is this correct that,
15 currently, Central Precinct extends west to the
16 Washington County border and then east across the
17 Willamette River to -- I'm not sure how many blocks?
18 A Yeah. Our line for Central is basically
19 Southeast 39th west over in the Forest Heights, I-84,
20 south down to Milwaukie, Lake Oswego. And then almost
21 to the Saint Johns Bridge and then further west over
22 to Beaverton.
23 Q So, geographically, it's a -- it's a -- it's
24 a big piece of territory?
25 A Yeah. Yeah, it's a -- it's a big area. I Examination of Roger Axthelm 163
1 think East Precinct is bigger, but when you look at
2 response to calls, the Southwest Hills can kind of jam
3 up that flow a little bit with how you can get through
4 the hills.
5 Q And, generally, what are your duties during
6 a shift as the patrol sergeant? Are you responding to
7 9-1-1 calls one after another or are you supervising
8 the people who are doing the (indiscernible)?
9 A Our minimums are three sergeants on at a --
10 on nights. And on a Friday, Saturday night, we have
11 20 officers, is our minimum. And during the week, is
12 18 officers and 3 sergeants, are the minimums.
13 And street sergeants are responsible for
14 going to calls, covering calls from a supervisory
15 point of view. But we also do respond as back-up
16 officers quite frequently to calls, too, just because
17 of the numbers that we have in the Bureau right now.
18 They'll send us dispatches.
19 Q Was Saturday, April 7th, 2008 -- I'm sorry,
20 2018 -- a -- a regular shift for you?
21 A Right. That's --
22 Q Okay.
23 A -- my last shift of the week.
24 Q All right. And prior to this call that
25 we're talking about -- Examination of Roger Axthelm 164
1 A Mm-hmm.
2 Q -- this morning involving a shooting at
3 Cityteam Ministries, was there anything unusual going
4 on during the shift?
5 A No, not that I remember. I mean, it was --
6 if I remember right, it was fairly steady. The
7 weather was bad. The rain had started to come in, I
8 think, earlier.
9 Q Okay. When did you first learn about some
10 incident involving John Elifritz?
11 A I was in the office right over here at
12 Central Precinct doing some paperwork in the office.
13 I had my pack set on.
14 We also have a stationary radio in -- in the
15 sergeant's office there when I heard the call come out
16 of a car that was basically determined that it was
17 dumped and somebody ran from it on Martin Luther King
18 Boulevard --
19 Q Okay.
20 A -- at about Stark. And the car came back --
21 the license plate that was on it came back as stolen.
22 And the person was seen running, what we had heard
23 initially, eastbound from that location, a gentleman
24 not wearing a shirt.
25 And I heard that initially, officers were Examination of Roger Axthelm 165
1 going to it and I stayed in the office at that point
2 and kind of finished up some paperwork I was
3 (indiscernible).
4 Q And you're hearing about all of this over
5 the radio --
6 A Right.
7 Q -- is that right?
8 A Yeah.
9 Q The police radio?
10 A Yeah. It -- it came out as a priority call
11 initially. The way they dispatch, a -- a certain
12 level of them are called ones and twos, basically,
13 sometimes a three. The dispatchers will let people
14 know over their radio.
15 And then other calls hold on our computers,
16 which we call our MDCs. And the officers can pick
17 those calls as they have time available. But this
18 information came over the radio.
19 Q All right. And then did you receive further
20 information about that situation at some point?
21 A Yeah. There was -- officers, you know, were
22 getting over on the call and then there was somebody
23 -- came over on the radio. I believe it was an
24 officer from East came over on the radio and said,
25 "Hey, that car was involved in a kidnapping earlier Examination of Roger Axthelm 166
1 today. I believe the subject displayed a gun," or
2 something like that. And that was -- it came over the
3 air, too, from another officer.
4 And for clarity, what dispatchers will do,
5 if there's a major event going on in -- in one of our
6 frequencies -- we have three frequencies that work
7 within Portland and that's being the Central Precinct,
8 North precinct and East Precinct.
9 So if East has something going that's fairly
10 hot, they'll usually let us know, "Hey, East is behind
11 the stolen car," or, "East is going to a burglary call
12 at such and such address."
13 So officers in Central know what's going on
14 -- a little bit about what's going on, but just in
15 case they might be over in East Precinct, too, so they
16 don't run right over the top of something like that,
17 too.
18 So some information had transpired somewhere
19 and an East officer came up -- I believe it was
20 East -- came up on our frequency and said, "Hey, that
21 car was involved in a -- a kidnapping, possibly with a
22 gun."
23 Q Okay. At what point did you leave your
24 office at Central Precinct to go out on the road?
25 A I think shortly after I heard that, I got in Examination of Roger Axthelm 167
1 my car and left. And -- and, at that time, it -- it
2 was still -- canine was coming. We had a canine
3 officer coming from out in East Precinct. His
4 statement was basically -- 'cause we'll set up and do
5 dog tracks and stuff.
6 And that area over in Grand is kind of a
7 busy area for -- for foot traffic, so doing a dog
8 track can be sometimes difficult. And it was, like,
9 you know, how far are we behind it and stuff like that
10 since the guy ran and then also there was rain
11 starting to come down.
12 So it was basically decided by him and the
13 officer started doing more of a grid search, so the
14 last we heard, he was to the east. So cars started
15 driving in neighborhoods and -- and doing that stuff.
16 So I -- I went east.
17 Q So, meaning -- meaning looking for the --
18 the suspect?
19 A Looking for the subject, yeah. Which --
20 Q Okay.
21 A -- at that point, we figured should've stuck
22 out a little bit because he left without a shirt on on
23 a fairly chilly, rainy night.
24 Q And so then what are you doing? What are
25 you -- at this point, what's your role? Examination of Roger Axthelm 168
1 A Well, I'm listening to the radio, but I was
2 actually over in the area just kind of driving through
3 the area and grid searching because there wasn't a,
4 quote, unquote, "formal" search going on. We just
5 kind of swarmed the area at that point.
6 Q And so based upon what you had heard on the
7 police radio, what, in your mind -- what, in your
8 mind, is happening? What are you -- what are you
9 looking for? What's -- what's -- do you have probable
10 cause? What would the probable cause be for making an
11 arrest?
12 A Well, we -- we have a guy that is in a
13 stolen car to begin with. We have a guy that's
14 possibly involved in a kidnap and possibly an armed --
15 armed kidnapping at that point.
16 It did come out a little bit later -- an
17 officer came out while we were still looking through
18 the blocks that, hey, he had looked at some video or
19 something and he couldn't clearly see a handgun, but
20 just where his hand position was.
21 So it -- it kind of stepped down a little
22 bit as far as the handgun was concerned. And then a
23 North officer came on the air, too, I believe, and
24 said, "Hey, this car was involved in something else
25 with us not too long ago up in North, too." Examination of Roger Axthelm 169
1 So then that compounded. Now, I've got this
2 car is involved in something that happened out in
3 East; something that happened out in North; and, now,
4 all of a sudden, I've got this stolen car that's all
5 of a sudden dumped with a guy running from it right
6 down here in our precinct.
7 Q Okay. So what -- then what happened?
8 A We continued searching and somebody got on
9 the air and said, "Hey, I just talked to the -- the
10 clerk." And I don't know if they face to face talked
11 to the clerk or if they called Jacksons, which is the
12 Shell mart right over at about Washington and --
13 between MLK and Grand, and said, "Hey, this gentleman
14 just came in and he was wearing, like, a raincoat on,"
15 which they had had some problems, you know, with and
16 it matched the description of the guy.
17 And then he'd left to the west, they
18 thought. And so I was east, so I started vectoring
19 back to the west to go down into the lower-southeast
20 side when I heard on the radio an officer say, "Hey,
21 somebody -- you know, he just ran into the homeless
22 shelter and he's threatening people in there."
23 Q All right. Were you familiar with that
24 particular location, Cityteam Ministries?
25 A Yeah. I've -- I've been there once, maybe Examination of Roger Axthelm 170
1 twice, not through the door we were going through, but
2 there's a side door that goes up a staircase. But
3 I've, you know, peeked into that -- that area. But
4 the call I had been on previously was basically more
5 up the stairs to their housing, which is above.
6 Q Okay. So when you hear that the suspect is
7 now in that shelter, were you still in your
8 patrol car?
9 A Mm-hmm.
10 Q And where -- where did you go?
11 A I was south and to the west of Jacksons at
12 that point and police cars were starting to vector in,
13 closing in. And I just basically turned a U ball in
14 the parking lot there and a couple cars slid in up on
15 Washington prior to me (indiscernible) then I came in
16 after them and parked.
17 I grabbed, I think, my raincoat and put it
18 on in the car, but I had also gotten on the radio and
19 said -- my call sign is 3810 -- said, "3810, I'm
20 arriving." And I don't believe I'd put myself on the
21 call prior to that.
22 I, as a sergeant, a lot of times, you'll get
23 on the air and say where I'm at, you know, if I'm
24 going to get on the call or something like that. And
25 that does a couple of things. One is it lets officers Examination of Roger Axthelm 171
1 know there's a supervisor there.
2 But, secondly, it lets my other two
3 supervisors know -- the other two supervisors know
4 that, "Hey, I -- I've got this call. You've got this
5 one over here." So it keeps, you know, a sergeant
6 from way out in Southwest Portland saying, "Hey, I got
7 to run into downtown quick."
8 So it kind of keeps us, you know,
9 juxtaposed, okay? You know, Sergeant Dunbar has this
10 and, you know, so we don't all three converge on
11 something really quick.
12 Q All right. And where -- where do you go
13 once you park?
14 A I parked -- the officers -- the other ones
15 were running to the -- the door of the shelter. I
16 followed them to the door.
17 Q All right. And so what -- if you could,
18 just give us kind of a word picture of what's --
19 what's happening there on the sidewalk outside of
20 Cityteam Ministries.
21 A Yeah. The building is multi-story and the
22 entrance to it is kind of the old-style facade where
23 it kind of angles into the doorway. So there's kind
24 of a awning dry spot. When I got there, there was a
25 number of officers in the doorway. Examination of Roger Axthelm 172
1 I could tell that they were giving commands
2 to him. I could hear him, you know, yelling, but it
3 was fairly chaotic. I was behind our canine officer,
4 who had his canine dog and it was barking, so I
5 couldn't hear a lot.
6 I also could peek to my left and see I --
7 there was a number of people to my left down into that
8 room. And the attention of the officers was to the
9 left -- I mean, to their right, so over this
10 direction.
11 And I had people over on this side that were
12 just standing or -- or way back in a -- in a -- kind
13 of a doorway area that I could see that there was just
14 people there.
15 Q All right. And what -- what were you
16 thinking at that point as far as this situation,
17 what's going on and what -- what action should be
18 taken?
19 A Yeah. Well, my -- my concern was I had
20 heard that he was threatening people with a knife. you
21 know, I had -- everything that had built up to this
22 point. And my concern was for the people who were in
23 there, that we needed to move into that location to
24 challenge the suspect, but also to gain his attention
25 over to us and not those people. Examination of Roger Axthelm 173
1 I was concerned that, you know, he could
2 willfully do what he wanted to with those people at
3 that point, so I wanted to make sure that we could get
4 in. We had numerical superiority. We had less
5 lethal. They had cover with them, so he would
6 hopefully look toward us and we could get those people
7 out safely and that would give us time to deal
8 with him.
9 Q Did you think that there was a -- a -- an
10 immediate threat to the people who were inside the
11 shelter or not?
12 A Yeah. He -- he had free reign inside that
13 room to go wherever, basically, he wanted to go.
14 And -- and he was kind of darting.
15 Q So --
16 A (Indiscernible).
17 Q Okay. So what did you do?
18 A I basically said something to the effect of,
19 "Step in," or, "Move in." And we just all -- we --
20 the doorway opened up and the officers came in and --
21 and formed into the room.
22 Q And -- and so why did you think that that
23 was the better plan as opposed to all the police
24 staying out on the sidewalk?
25 A Again, it -- it shows numerical superiority. Examination of Roger Axthelm 174
1 We had a better advantage, tactical advantage to
2 address him, but also for protection of those people,
3 too. And what I want to do is get him into a room or
4 get him out. There was a door where they were all
5 kind of pushing out of this backroom.
6 You know, get in that room, if we could get
7 them in the room and we had more time, we could deal
8 with the -- with the subject when I knew that they
9 could be safe behind the door at that point.
10 Q All right. And so what -- what happened
11 following all of that?
12 A Officers pushed in. They continued to give
13 commands to them. I started, you know, yelling at the
14 people, "Get in the room. Get in the room." There
15 was people who were right behind us, you know, trying
16 to get them to get out from right behind us and get
17 the other people in the room so we could contain him
18 where he was.
19 He was on the south wall. There was a -- an
20 alcove area, I'll call it, right there where he was
21 kind of darting in and out of. That was a concern to
22 me, too, 'cause I wasn't sure what was in that alcove,
23 whether there was a staircase, whether there was a
24 door to go upstairs.
25 But he didn't seem to be trying doors. He Examination of Roger Axthelm 175
1 would dart out, come back, dart out, come back. The
2 officers were deploying less lethal at him. Our less
3 lethal had just changed -- the program had just
4 changed from -- what we used to use was a beanbag
5 round, came out at -- like, a -- a sock, almost, that
6 had lead shot in it.
7 And what -- the new system we're using is a
8 40 millimeter. It's a bigger round, more impact, but
9 it's single shot also, so the less-lethal guys have
10 to -- if they fire one round, they have to break it,
11 throw that cartridge out, put a new one in, lock it
12 back up and reacquire their target again.
13 The -- the target system is -- is much
14 better on it. It's got a -- a scope sight on it with
15 a red dot, so it's much more accurate, too.
16 Q So that's the foam --
17 A That -- that's the foam --
18 Q -- projectiles?
19 A -- less lethal. It's called a 40
20 millimeter.
21 Q And -- and -- and we've heard and you just
22 testified that the Portland Police Bureau has just
23 recently started --
24 A Mm-hmm.
25 Q -- using that. Had you seen it used -- Examination of Roger Axthelm 176
1 A I had not.
2 Q -- in the field?
3 A Had not. Had not even heard it go off,
4 really, before, myself. But it's a -- it's a -- more
5 of a, (descriptive noise), sound 'cause it -- as it
6 goes down the -- the barrel.
7 Q And so you saw officers using that out on --
8 A Yeah, I --
9 Q -- on the sidewalk?
10 A I heard --
11 Q Or inside?
12 A I'm -- I'm pretty sure I heard it when we
13 were at the doorway, one or two rounds that might have
14 been launched while we were -- while they were in the
15 doorway. And then when we pushed in, I contend I
16 heard it a number of other times that they were using
17 less lethal as he darted more toward the north.
18 Q Were you able to see the suspect at
19 that time?
20 A I would see him darting. My -- I -- I
21 wasn't addressing looking at him most of the time
22 'cause my concern was more -- at that point, I knew my
23 officers were back over here to my right, were
24 addressing him.
25 My more concern was let's get these people Examination of Roger Axthelm 177
1 to get in so we can get them safely secured or get
2 them out, so we had more time to deal with him at that
3 point, we had containment, we had him isolated at that
4 point and we didn't have innocent people in there.
5 Q And so did you have your gun out?
6 A I did not.
7 Q And there were a number of people inside of
8 the shelter, a number of civilians, homeless people,
9 right?
10 A Yeah.
11 Q What -- what -- what did you see them doing?
12 A Well, like I said, they were basically
13 overflowing that doorway, which was on the northeast
14 corner, just basically spilling out from that room
15 whether it was totally full or whether they just
16 wanted to see what was going on.
17 You know, they weren't moving. They were
18 wide eyed and -- and just kind of -- you know, we
19 were saying, "Get in. Get in," and nobody was moving.
20 And, you know, "Come this way," nobody was moving at
21 that point.
22 Q And so what did you then see or -- or
23 hear happening?
24 A Again, he had made, you know, some motions,
25 kind of darting. The -- the distance he had from Examination of Roger Axthelm 178
1 where the alcove was to the officers was also kind
2 of -- he had free reign on that, too. There were some
3 chairs thrown around; but, I mean, he could run
4 straight down at the officers and stuff like that.
5 And as I'm yelling at the people, I saw out
6 of the corner of my eye him kind of darting this way.
7 He was wearing a blue jacket with maroon on top. He
8 kind of darted this way. And then, all of a sudden, I
9 heard a -- kind of a simultaneous just, boom, and that
10 was gunfire.
11 I looked and looked at the officers. I saw
12 him down, the suspect down. I went over to one of the
13 officers that works with me, Officer Nutting. He had
14 an AR-15. I put my hand on his shoulder, I think, and
15 I looked at him and I said, "Okay. We're going to
16 form a custody team."
17 He looked at me and kind of said, "I -- I
18 don't know if we need to." And I could see blood
19 right about the person, but my view was different from
20 where Officer Nutting was 'cause there was a chair or
21 something obstructing my view. And so I looked over a
22 little bit and I just told him, I said, "Okay. Stay
23 here. You guys stay here."
24 Q Okay. And --
25 A GRAND JUROR: Can I ask a question? Examination of Roger Axthelm 179
1 MR. REES: (Indiscernible).
2 A GRAND JUROR: I'm sorry.
3 THE WITNESS: Yeah.
4 A GRAND JUROR: Could you go back -- you --
5 you asked him to do what kind of team or what kind
6 of --
7 THE WITNESS: A -- a custody team.
8 Basically, we're trained post-shooting, we make sure
9 it's safe. We move up with a custody team and we'll
10 begin a -- or handcuff the person. That's just the
11 way we're trained. So muscle memory kind of kicks in.
12 And that's where I told him. I said, "Hey,
13 we're going to form a custody team and move up," and
14 that's when he gave me that -- his assessment.
15 A GRAND JUROR: Okay.
16 BY MR. REES:
17 Q And then per the Bureau training policy, did
18 you take steps to render medical assistance?
19 A Right. What I did was I walked from him to
20 the west. There was less -- less-lethal officers
21 there. He was still laying on the ground and I
22 told -- I put my hand, I think, again, on one of the
23 less-lethal officers and I said, "I want you to fire
24 one round" -- I' already gloved up.
25 Right after the shooting happened, I -- I Examination of Roger Axthelm 180
1 gloved up. And I -- I said, "I want you to fire one
2 less lethal at him." And my plan was that -- was I
3 wanted to see if there was any movement.
4 'Cause my plan at this point was I was
5 planning to move up on my own, which, tactically, we
6 normally move up with three people in a custody team.
7 But seeing what I was seeing, I was going to address
8 that on my own.
9 And one of the reasons was there was a bunch
10 of -- at -- at that point, I could observe a bunch of
11 blood splatter and everything all over the place,
12 almost all the way back to where my less lethals were.
13 So I was thinking also contamination area,
14 too, so I could go up on him by myself. So I had that
15 officer fire one round. I saw no motion from the
16 subject and I walked up to the subject myself.
17 Q All right. Again, what did you do regarding
18 getting medical assistance?
19 A Yeah, medical had been called. I -- he was
20 laying face down. When I got closer, there was a
21 serious amount of blood there. I picked him on his
22 right side, grabbed the right side of his body, rolled
23 him up onto his left side to observe. And as I did
24 that, his hand kind of fell free and a knife kind of
25 flipped out from him. Examination of Roger Axthelm 181
1 A GRAND JUROR: How big was that blade? No
2 one has told us yet. Was it a two inch?
3 THE WITNESS: I'm -- I'm guessing it was --
4 A GRAND JUROR: (Indiscernible) blade?
5 THE WITNESS: -- this big. I mean --
6 A GRAND JUROR: That's -- that's big. I'm
7 sure someone (indiscernible).
8 THE WITNESS: I'm -- I'm sure --
9 MR. REES: You -- (indiscernible) --
10 THE WITNESS: And it was a fold-out -- it
11 was a fold-out blade. It had a thumb throw on it,
12 which, if you're familiar with how those blades are,
13 you know, you kind of put your finger in the hole and
14 it can flip out. And it was probably about a
15 60-degree angle when it -- when it pulled through on
16 him and was sitting there opened. I couldn't tell if
17 it had a -- go ahead.
18 A GRAND JUROR: Were -- were the officers --
19 at this time, by the time they all were at Cityteam,
20 weren't they aware that he had been stabbing himself
21 in the neck --
22 THE WITNESS: I -- I hadn't heard --
23 A GRAND JUROR: -- and -- and had suicidal
24 actions that day?
25 THE WITNESS: I hadn't heard anything about, Examination of Roger Axthelm 182
1 you know, that -- that came to me --
2 A GRAND JUROR: And the gun? There was
3 no gun?
4 THE WITNESS: -- that was clearly -- that
5 there -- that there was a -- a suicidal thing like
6 that or -- or a -- a cutting thing like that. And,
7 you know, we -- we kind of ruled the gun out on the
8 air.
9 But, I mean, I -- I -- I guess I can -- I
10 can say that I've got a carjacking in one place with
11 possibly a gun and possibly not and I've got something
12 else in North Portland that he was involved and then I
13 got something down here that keeps --
14 A GRAND JUROR: I just assumed that's why
15 they knew every -- all the police that were there at
16 the end, where they were, "Oh, he had done this in the
17 day. He had done that, this, this" --
18 THE WITNESS: No. I mean, the -- the
19 information that I base -- that I remember is
20 basically -- was what I mentioned, the -- an East
21 car saying, "Hey, that car was involved in a" --
22 A GRAND JUROR: Mm-hmm.
23 THE WITNESS: -- "in this and -- and this
24 guy possibly was with them."
25 A GRAND JUROR: Mm-hmm. Examination of Roger Axthelm 183
1 THE WITNESS: "He was with the one that did
2 it." And then when it came out that he was -- had his
3 shirt off, I remember somebody saying that, "That's
4 how that -- you know, he doesn't wear a shirt very
5 often."
6 A GRAND JUROR: Mm-hmm.
7 THE WITNESS: But as far as, you know,
8 him cutting or something like that, I don't remember
9 anything like that.
10 I mean, the last thing that -- you know,
11 which got us all to that homeless shelter was a
12 transmission of, "Hey, he's in the homeless shelter
13 and he's threatening people with a knife." And
14 that's -- that's what got -- brought us --
15 A GRAND JUROR: Was there blood on his neck
16 when you actually put -- put your eyes on him at the
17 shelter?
18 THE WITNESS: I -- I didn't --
19 A GRAND JUROR: Was he doing that then?
20 THE WITNESS: -- I didn't see any; but, to
21 be honest with you, I didn't really pay a lot of
22 attention to him because I had officers who were
23 addressing him and my concern was for these people
24 over here 'cause the sooner I could get them
25 contained, the sooner I could get them to someplace Examination of Roger Axthelm 184
1 safe, the sooner I had that isolated so we could
2 address him and we had a little bit more time.
3 My -- my major concern was I was going to
4 have a -- a TriMet incident here with a guy who's in
5 a -- had free reign, if we couldn't stop him, to run
6 over and grab somebody, and then I had a
7 hostage/cutting situation.
8 That -- that was really my concern because
9 it was going to have to be a split-second decision
10 made by officers if he ran that direction at that
11 point --
12 A GRAND JUROR: Mm-hmm.
13 THE WITNESS: -- or else we were going to
14 have a much different situation.
15 BY MR. REES:
16 Q What -- what do you mean by, "A TriMet
17 situation"?
18 A TriMet, at 42nd, we had a gentleman that
19 slit the throats of -- that he was in a fight with
20 two people with a knife, killed both of them. And,
21 obviously, I think there was a couple more people
22 hurt.
23 But, I mean, this situation, when I got
24 there, I was like, well, I got a guy with a knife and
25 a guy who's obviously, you know, not doing -- Examination of Roger Axthelm 185
1 complying with things and has been doing a number of
2 things around town. Now, all of a sudden, I've got
3 him in a closed setting with people in there. And
4 that was my concern.
5 MR. REES: Okay. Do you have any questions?
6 MR. JACKSON: No.
7 MR. REES: Are there any other questions
8 from the grand jury?
9 A GRAND JUROR: I've got -- I've got a
10 couple questions.
11 MR. REES: Sure.
12 A GRAND JUROR: You know, from the video, it
13 was loud.
14 THE WITNESS: Mm.
15 A GRAND JUROR: Pandemonium going on. The
16 dog -- dog was barking like crazy.
17 THE WITNESS: Mm-hmm.
18 A GRAND JUROR: You know, it was pretty
19 clear to me that the -- the folks in the homeless
20 shelter weren't responding to any, you know, requests
21 by you to get out or get safe.
22 So that -- I -- I'm not sure that, you know,
23 the situation as it was with all that noise, that
24 those folks maybe didn't even hear you or -- or
25 comprehend what you were trying to portray to them. Examination of Roger Axthelm 186
1 That's kind of one observation, I guess --
2 THE WITNESS: Mm-hmm.
3 A GRAND JUROR: -- not a question. But when
4 -- and -- and the non-lethals had -- from the video,
5 seemed to have absolutely no effect and it looked like
6 he was struck in the leg a couple times and --
7 THE WITNESS: Mm-hmm.
8 A GRAND JUROR: -- it didn't faze him. And
9 I appreciate the fact that maybe this is a new thing
10 that you're trying. Did they -- with -- with the
11 accuracy of these foam bullets, could they have done a
12 head shot on him and --
13 THE WITNESS: That -- that's considered
14 deadly force with -- with these rounds. Also with
15 our -- the beanbag rounds, too, a head shot is -- is a
16 lethal -- considered deadly force.
17 A GRAND JUROR: Okay. So, basically, they
18 were going for the skin because he had a jacket on --
19 THE WITNESS: They -- they have a --
20 A GRAND JUROR: -- so they were going for
21 the leg?
22 THE WITNESS: Well, they -- they have a
23 targeted area that they look at. And I'm not trained
24 in the less lethal, but their targeted area is
25 basically here down, is their targeted area that they Examination of Roger Axthelm 187
1 go --
2 A GRAND JUROR: Well, I mean, from your
3 observation and -- and experience, why wouldn't those
4 have had any effect whatsoever on this guy other than
5 the fact maybe he was drugged up and -- it seemed like
6 they would've had a little more effect.
7 THE WITNESS: That would be my
8 interpretation, is somebody who's -- who's very high
9 on -- on drugs can fight through that stuff. They can
10 fight through the Taser. It doesn't have any effect.
11 And the impact weapon, too, they can --
12 they can fight through, too, based on where it is just
13 because, you know, they -- they're in more of a -- you
14 know, an amped-up state on where it's at.
15 And -- and you're more educated on what
16 happened out there from seeing the videos and stuff
17 because the only video I've seen was the one that came
18 on the news, I think, the first night that came out
19 (indiscernible). And I turned the volume down on it
20 and turned it off. And I haven't seen anything since
21 then or discussed it, so --
22 A GRAND JUROR: Since, you know, you were
23 the ranking officer and -- and your focus was mainly
24 on, you know, safety of people in the room, so policy
25 that seven individuals basically armed and ready -- Examination of Roger Axthelm 188
1 THE WITNESS: Mm-hmm.
2 A GRAND JUROR: -- the -- are there any
3 typical discussions before a situation, if you're in
4 a situation like that, where, "Okay. This is what
5 we're going to do if this guy comes at us. Maybe
6 one guy shoots"?
7 I mean, it was basically -- are there any
8 discussions prior to a situation like that? Are
9 the officers trained to -- if -- if -- if there's a
10 threatening move by this individual, everybody go?
11 THE WITNESS: Well, officers have to
12 evaluate in their own mind, you know, what -- where is
13 the threshold for me to shoot based on policy, based
14 on my comfort zone, based on my training? So they
15 have to make that determination.
16 In longer, protracted type of instances,
17 then that's when we'd scale our forces if we're going
18 somewhere. This one was more, I got there. I was
19 more wanting rapid entry to step into that void so he
20 is more, I guess, targeted at us and deflected toward
21 us and not to these innocent people over here 'cause
22 my number-one goal is the safety of civilians.
23 And I was comfortable -- when I saw how they
24 staged up in there, I was comfortable with how they
25 were set in that. And, like -- again, I kept kind of Examination of Roger Axthelm 189
1 looking over occasionally.
2 I was yelling at them. And then, all of
3 sudden, when I saw him darting down and I heard, boom,
4 then I knew -- you know, I saw him down, then,
5 obviously, we have a shooting.
6 You know, his reign to come down to those
7 officers -- when you kind of look at it from your
8 video and from what I remember, his reign to come down
9 to the officers is fairly quick and fairly fast. I
10 don't know what the footage was to go down there, but
11 it's fairly fast.
12 And if you -- the officers on this side, for
13 them to have a shot, to program, yeah, he's a threat
14 to me, he's a threat to other officers, he's a threat
15 to civilians, it closes pretty quick before they get
16 into what we call a crossfire where shooting at
17 somebody could -- could accidentally hurt somebody
18 else in that process, kind of.
19 What -- what I remember was just a loud,
20 boom. It wasn't a -- you know, one round, another
21 round and another round. It was almost like a
22 simultaneous --
23 A GRAND JUROR: It was --
24 THE WITNESS: -- boom. So every officer,
25 basically, that threat was there. It was present. Examination of Roger Axthelm 190
1 They processed that in their brain. It had to go from
2 here down, down to a trigger finger and -- and fire it
3 and it was all made simultaneously.
4 A GRAND JUROR: Is -- is there ever a plan
5 for -- I mean, it seems like this happened so fast,
6 but --
7 THE WITNESS: This moved very fast, yes.
8 A GRAND JUROR: -- you know, is there ever a
9 protocol for deescalation? Like, what other tools are
10 there, what other options besides deadly force?
11 THE WITNESS: Well, the problem is, I mean,
12 deescalation is a -- is a great term and that's what
13 we all use and kind of a buzzword. But we can't
14 really work at, quote, unquote, "deescalation," until
15 I can make sure I have containment and isolation on
16 this person and it's safe for the people -- for the
17 other people who were in there. That's what we
18 were --
19 A GRAND JUROR: It probably made it
20 harder --
21 THE WITNESS: -- initially doing.
22 A GRAND JUROR: -- too, with -- with so
23 many civilians --
24 THE WITNESS: Yeah.
25 A GRAND JUROR: -- in the room. Examination of Roger Axthelm 191
1 THE WITNESS: That's -- and that was my
2 plan. Once we got them secured somewhere or once we
3 got them out of there, I had time on my side because
4 then I had -- the only threat I had, basically, was
5 this door behind here, which I didn't know where it
6 went to. And I could scale that.
7 His movement going here, threatening to
8 these people, and defracking [sic] this way and then
9 his charge toward the officers made that decision and
10 that's why it happened quickly.
11 Our plan was to get people out and my plan
12 was to get the people out, get him contained, then we
13 could work at other -- you know, then we can start
14 slowing things down a little bit, but we can't
15 deescalate, in the term, until we really have a scene
16 that's safe for us and the containment issue.
17 And that -- and we didn't get to that point.
18 That -- that wasn't allowed -- you know, that wasn't
19 allowed to happen. And then we would have all the
20 time, you know, that we could work with him, we could,
21 you know, bring in, you know, some extra assets if we
22 need to talk to him.
23 We could make sure we had the -- the -- if
24 there's a back stairway, that that's all contained.
25 But that -- that decision was taken out of our hand Examination of Kenneth Fox 192
1 on that.
2 MR. REES: Any other -- any other questions
3 from the grand jury?
4 All right. Okay. All right. I'm not
5 seeing any other questions, so we'll excuse
6 this witness.
7 Sergeant, thank you for coming in.
8 THE WITNESS: Okay. Thank you.
9 MR. REES: Thank you for your time.
10 THE WITNESS: Thank you.
11 A GRAND JUROR: Thank you.
12 (Recess taken, 9:21 a.m. - 9:34 a.m.)
13 MR. JACKSON: Okay. We're back on the
14 record. The next witness is Kenneth Fox.
15 Come on in, sir.
16 Please stand right here and raise your right
17 hand.
18 KENNETH FOX
19 Was thereupon called as a witness; and, having been
20 first duly sworn, was examined and testified as follows:
21 EXAMINATION
22 BY MR. JACKSON:
23 Q Okay. You can have a seat.
24 Could you please state and spell your name?
25 A Kenneth Fox, K-e-n-n-e-t-h, F-o-x. Examination of Kenneth Fox 193
1 Q All right. And where are you employed?
2 A The Portland Police Bureau.
3 Q And what do you do for the Police Bureau?
4 A I'm a police officer.
5 Q How long have you been a police officer?
6 A Eleven years.
7 Q And what have been your assignments over
8 those eleven years?
9 A I've been assigned to patrol the entire
10 time.
11 Q Patrol the entire time?
12 A Correct.
13 Q Okay. And what are your general
14 responsibilities as a patrol officer?
15 A I take 9-1-1 calls and non-emergency calls.
16 Q Okay. Respond, deal with calls and then
17 move to the next one?
18 A Correct.
19 Q Okay. Were you working on April 7th of
20 2018?
21 A Yes, I was.
22 Q And what shift were you working that day?
23 A I was working afternoon shift.
24 Q What are the hours of afternoon shift?
25 A It's 4:00 p.m. to 2:00 a.m. Examination of Kenneth Fox 194
1 Q And did you have any special equipment with
2 you while you were on your patrol shift that day?
3 A I had the MAV audio recorder.
4 Q Okay. And what is that?
5 A It's an audio and video recorder. It's an
6 in-car camera system. The camera is in the car and
7 then there's an audio mic, which I wear on my person.
8 Q Okay. And so how is the MAV system
9 initiated?
10 A It's initiated a variety of different ways,
11 one which is turning on the overhead lights. There's
12 a button on the actual mic that I wear on the chest.
13 You can turn it on. And there's a record button on a
14 display screen within the car if you go over a certain
15 mile per hour or if you crash.
16 Q Okay. Any -- any one of those would
17 activate the system?
18 A Correct.
19 Q Okay. And how many cameras are in the car?
20 A There's one facing forward, one that faces
21 left and right, one that faces rear and one in the --
22 the backseat, so five.
23 Q Okay. And if you get out of the car, you
24 said the audio is actually on your uniform?
25 A Correct. Examination of Kenneth Fox 195
1 Q Okay. And so do you know how far you can
2 get away from a car that the audio will still transmit
3 or --
4 A It depends on the surroundings. Sometimes
5 it's farther than others. If you're inside a
6 building, sometimes it doesn't work; other times, it
7 does. So it's -- it's very dependent upon the area
8 that you're actually in.
9 Q Okay. Were you working that shift in
10 uniform in a marked patrol car?
11 A Yes, I was.
12 Q All right. And what was the area of your
13 shift?
14 A Inner Southeast Portland.
15 Q Inner Southeast Portland. And Stark and
16 MLK, is that included in your patrol area?
17 A Yes, it is.
18 Q Okay. And did you become aware of a call
19 of an abandoned vehicle in the middle of Stark
20 and MLK?
21 A Yes, I did.
22 Q How did you become aware of that call?
23 A I was dispatched as a cover unit to that --
24 to that call.
25 Q Okay. And what does that mean? Examination of Kenneth Fox 196
1 A I was -- I responded as a cover car for the
2 primary officer to assist him with whatever --
3 whatever come -- came up.
4 Q Okay. What information did you have about
5 the call when you responded?
6 A Initially, when the call came out, it was
7 just an abandoned vehicle. It was at the -- at the
8 intersection where a subject had walked off. But then
9 an update came out that it was a -- actually a stolen
10 vehicle that had been left behind. And it was -- that
11 vehicle was associated to two previous calls earlier
12 in the day.
13 Q Okay. Do you recall what the nature of
14 those previous calls were?
15 A I -- I do. So the initial call, the only
16 information I have about the call was a -- a computer
17 message sent out by an East officer stating the
18 vehicle was taken by force. It didn't specify the
19 exact force, but it gave a description of the vehicle
20 with the license plate.
21 And then shortly before the call that I was
22 dispatched to, North net responded to a call of a
23 threat with a -- possible threat with a gun related to
24 the same -- same call that the North officer had sent
25 the message out on -- out about. And then the updates Examination of Kenneth Fox 197
1 came that they were one and the same car.
2 Q Okay. All three of those incidents
3 were all --
4 A Correct.
5 Q -- the same. Okay.
6 A Same vehicle.
7 Q And so when you were dispatched out to the
8 abandoned vehicle call, where were you coming from?
9 A I was coming from South -- Southeast 3rd and
10 Southeast Stevens.
11 Q Okay. So about how long does it take to
12 drive to the scene?
13 A A couple minutes. Not -- not very long. I
14 mean, like, probably like ten blocks, give or -- give
15 or take.
16 Q Okay. And did you have a partner with you
17 or were you by yourself?
18 A I was by myself.
19 Q What did you see when you first arrived at
20 the location?
21 A I saw a vehicle parked on MLK facing
22 southbound and there was a -- there was a group of
23 citizens standing just west of the vehicle in a
24 parking lot/sidewalk area.
25 Q Okay. What did you observe about the Examination of Kenneth Fox 198
1 vehicle?
2 A I know there's -- there was some damage to
3 the vehicle. I believe it was to the front driver's
4 side, but it was just sitting there stationary, nobody
5 inside.
6 Q Okay. Did you talk to any of the people
7 that had gathered around the vehicle?
8 A I did. I asked if anybody had seen the
9 person who was -- had driven, walking off. A
10 gentleman said he had. I got a description from that
11 -- that subject and broadcast the information.
12 Q Okay. Over your police radio?
13 A Correct.
14 Q And when you say, "broadcast" out, I mean,
15 who would that be broadcasting to?
16 A It would be broadcast to any -- any officers
17 monitoring Central net.
18 Q Okay. And is that limited only to Portland
19 police officers or does that include other agencies
20 as well?
21 A It includes other agencies as well.
22 Q Okay. So anybody who was listening to the
23 Central Precinct net would have heard that broadcast?
24 A Correct.
25 Q Or could have heard that broadcast? Examination of Kenneth Fox 199
1 A Could have heard the broadcast, correct.
2 Q Okay. What did you do next?
3 A I asked -- asked Officer Nell if he wanted
4 me to hang out and help with interviews there or to go
5 area check for the subject. Officer Nell requested
6 that I go help with the area check.
7 Q Okay. And what is an area check?
8 A Drive around the area looking for somebody
9 who matches the description of the person who was in
10 the vehicle.
11 Q How did you begin your area check?
12 A I went and started looking around at camps,
13 area transient camps where people often go and hang
14 out at where somebody might blend in at and just drive
15 around the general area 'cause there are a variety of
16 camps in the area.
17 Q Okay. And how long have you patrolled that
18 particular part of town?
19 A Since 2008, in general. I mean, not
20 specifically that area, but the greater inner
21 southeast area.
22 Q Okay. So ten years?
23 A About, yeah.
24 Q Safe to say you're pretty familiar with the
25 area, the folks, the businesses? Examination of Kenneth Fox 200
1 A I feel pretty familiar, yeah.
2 Q Yeah. Okay. So as you were conducting your
3 area check, what happened?
4 A There was a call broadcast at the Jacksons
5 gas station at 621 Southeast Grand about a subject
6 standing in the doorway holding a knife.
7 Q Okay. What did you do with that
8 information?
9 A Well, myself and a bunch of other officers
10 started driving that -- that direction towards the
11 Jacksons gas station.
12 Q Okay. Did you have information at that
13 point that it was the same person?
14 A At that point, I don't -- we didn't know if
15 it was -- if the person from the vehicle was one and
16 the same or not.
17 Q And how far is the Jacksons from the
18 location where the vehicle was abandoned?
19 A Just a couple blocks.
20 Q Okay. Pretty close?
21 A It's pretty close.
22 Q All right. So you said you were responding
23 to the Jacksons as a result of that call.
24 A Correct.
25 Q What happened then? Examination of Kenneth Fox 201
1 A There was an update that the subject who had
2 been standing in the door with a knife had left. I
3 believe he left southbound on Grand Avenue.
4 Q Okay. That was the information you
5 received?
6 A That was information via the radio.
7 Q Had you arrived at the Jacksons when
8 you got --
9 A I had --
10 Q -- that information?
11 A -- not arrived.
12 Q Okay. So when that update came out, what
13 did you do?
14 A I continued to area check looking for that
15 subject who walked southbound, so I went beyond --
16 southbound beyond the Jacksons and was coming back up
17 and around.
18 Q Okay. At some point, did you learn that the
19 suspect from the Jacksons was one and the same with
20 your abandoned vehicle call?
21 A An officer -- and I'm no sure who -- went to
22 the actual Jacksons and contacted them. Then they
23 broadcast that they believed it was the same --
24 same person.
25 Q Okay. And did you receive that information Examination of Kenneth Fox 202
1 over the radio?
2 A Via the radio.
3 Q Okay. And were you conducting your area
4 check while you were getting that update?
5 A Correct.
6 Q Okay. What happened then?
7 A Then it came out AMR had seen a person
8 holding a knife directly in front of the Columbia
9 Shelter at 509 Southeast Grand.
10 Q Okay. And where is that in relation to the
11 Jacksons?
12 A It's one block north.
13 Q Okay. And --
14 A It's basically at the corner of Grand
15 and Stark.
16 Q Okay. And the vehicle was abandoned at MLK
17 and Stark?
18 A Correct.
19 Q Okay. So what did you do in response to
20 that information?
21 A Well, I began responding to that area from a
22 couple blocks away.
23 Q Okay. And what happened when you got there?
24 A Other officers arrived there prior to me and
25 then it was broadcast that the subject was no longer Examination of Kenneth Fox 203
1 there.
2 Q No longer --
3 A No longer standing in front of the
4 Columbia Shelter.
5 Q In front of the Columbia Shelter.
6 Okay. And while you're conducting your area
7 check or responding to these various locations, did
8 you have your lights, sirens activated?
9 A Not at that point.
10 Q Okay. Was your MAV recording system
11 otherwise activated by you or some other means?
12 A I had not activated it yet. I activated it
13 upon arriving to walk up to the Columbia Shelter.
14 Q Okay. So you parked your car?
15 A Parked my car. I turned my lights on to --
16 to activate the MAV and parked my car.
17 Q Okay. And then what did you do?
18 A Got out. It was broadcast that he was gone
19 and I began walking back to my police car. And I was
20 flagged down by somebody from Cityteam Ministries.
21 Q Okay. And where is Cityteam Ministries in
22 relation to the Columbia Shelter?
23 A It's basically directly across the street to
24 the east. It's at 526 Southeast Grand Avenue.
25 Q Okay. What information did you receive from Examination of Kenneth Fox 204
1 this person that was flagging you down?
2 A I seen there was a subject inside of
3 Cityteam holding a knife to his throat.
4 Q Okay. Did you look -- or could you see into
5 Cityteam from where you were?
6 A You can see -- you can see in there, but I
7 couldn't see anybody do that typically.
8 Q Okay. So what did you do?
9 A I attempted to get on the radio to broadcast
10 that information, made multiple attempts to and my
11 radio just made a squelching noise, so --
12 Q I'm sorry?
13 A It made a squelching noise and I couldn't
14 broadcast due to other radio traffic, I'm presuming,
15 but I'm not entirely sure why.
16 Q Okay. So then what did you do?
17 A I guess the other officers must have heard
18 the -- heard the information via that guy talking or
19 it was being broadcast on the radio. I'm not
20 100-percent sure. And they became -- they started
21 going over towards Cityteam as well.
22 Q And so did you move in that direction?
23 A Correct.
24 Q What did you see when you got up there?
25 A We got up to the door and opened the door. Examination of Kenneth Fox 205
1 And I could see in the southeasterly corner of
2 Cityteam a -- a male holding a knife.
3 Q Okay. What else did you see in there?
4 A I saw a bunch of people who were also at
5 Cityteam there quickly moving/running away from
6 the subject.
7 Q Did you have a sense of how many people were
8 in there?
9 A I would guess about 40.
10 Q Okay. So a fair amount of people?
11 A Quite a few, yeah.
12 Q All right. And where were they in relation
13 to where this subject was with the knife?
14 A They were all over the place. I mean, they
15 were trying -- so the subject with -- with the knife
16 was in the southeast corner and they were trying to
17 move to the north side of the building away from him.
18 Q And were -- were they all kind of piling up
19 over there --
20 A They were --
21 Q -- staying away?
22 A They were moving that direction. I mean,
23 some of them rather slowly, but some of them pretty
24 quickly.
25 Q So what were some of the concerns you had at Examination of Kenneth Fox 206
1 that point?
2 A The subject could -- could grab one of the
3 people who was also in there, potentially hold them
4 hostage. He could hurt, stab somebody. He could
5 hurt himself.
6 Q Were the people close enough to him for him
7 to do that?
8 A Yeah. There was people moving around in
9 his vicinity.
10 Q Okay. So what did you do then?
11 A We -- we were right at the door, so we were
12 in -- actually in the physical doorway. And there was
13 me and a couple of officers there and other officers
14 were walking up. And Officer Damerville deployed a --
15 the less-lethal 40 millimeter at the subject.
16 Q Okay. Did you give the subject any
17 commands?
18 A I didn't personally give the subject any
19 commands.
20 Q What about other officers?
21 A I believe they were, but I don't recall what
22 they were.
23 Q Okay. You do recall, though,
24 Officer Damerville deploying a 40-millimeter round?
25 A Correct. Examination of Kenneth Fox 207
1 Q Okay. And do you know where he was when he
2 did that?
3 A He was in the doorway.
4 Q Okay. And where were you?
5 A I was in the doorway. So he -- so it's a
6 double door with, like, a bar in the center. He was
7 to my left, I think, one or -- one or two officers to
8 the left and I was at the very far right side of the
9 doorway initially.
10 And then I adjusted to hold the door open to
11 pry more room for the less lethal. And there was an
12 AR there, an officer with an AR as well.
13 Q AR operator came in?
14 A Yes.
15 Q Okay.
16 A I believe it was Officer Nutting. I believe
17 he came up with us initially.
18 Q Okay. Could you see whether the less-lethal
19 rounds were actually hitting the subject?
20 A Yes. I observed, I think, one or two
21 less-lethal rounds actually hit the subject.
22 Q What reaction, if any, did he have to it?
23 A Little to none. He continued holding a
24 knife and -- and pacing in the -- in that general
25 vicinity. Examination of Kenneth Fox 208
1 Q Okay. Were the people still near him?
2 A There were still -- there were still people
3 in the -- the greater area. I don't remember if there
4 was anybody, like, right next to him at that point or
5 not, though.
6 Q All right. Could you see whether or not
7 the -- the subject was injured in any way from where
8 you were?
9 A At that point, I don't -- I don't recall if
10 he was injured at all at that -- at that moment.
11 Q Okay. So what happened then?
12 A I remember hearing another officer either
13 say or broadcast over the radio -- I'm not entirely
14 sure which -- that the potential for a hostage
15 situation and then shortly thereafter is when we -- we
16 went into Cityteam.
17 Q Okay. What happened once you got inside?
18 A We tried to get as many people that were
19 inside out of harm's way. There was doors on the
20 north side of the building. We were trying to get
21 everybody to go in -- in those doors out -- to the
22 outside of this main room.
23 Q Okay. Did they seem to be complying with
24 those commands?
25 A Yeah. Everybody that was in there was, as Examination of Kenneth Fox 209
1 quickly as possible, trying to get through those
2 doors.
3 Q And was it your sense that they were able to
4 actually exit through those doors, exit the building?
5 A I -- I don't believe they were able to exit
6 the building through those doors, but I'm not entirely
7 sure, as I have not been in those doors before.
8 Q Okay.
9 A I think it might just give access to
10 different areas of the building.
11 A GRAND JUROR: Can you, like, point on the
12 chart behind you what doors you're talking about?
13 Like, at the bottom is Grand Ave there.
14 THE WITNESS: So that's Grand. So
15 there's -- I believe these -- these doors over here.
16 And I don't -- I don't remember which doors exactly
17 they went into, but I think it was these two, were the
18 primary doors.
19 BY MR. JACKSON:
20 Q Okay. And where were you positioned once
21 you came in?
22 A Would've been this general vicinity --
23 Q Okay.
24 A -- I believe.
25 Q You're pointing more kind of toward Examination of Kenneth Fox 210
1 the north --
2 A Yeah.
3 Q -- side.
4 A North side --
5 Q Okay.
6 A -- kind of in -- kind of in line -- I
7 believe it was kind of in line with the stair --
8 staircase, but a little farther down.
9 Q Okay. And is that staircase enclosed with
10 a -- a kind of waist-high railing?
11 A Yes.
12 Q Okay. Do you -- do you remember being
13 actually behind the railing or --
14 A I -- I don't remember exactly --
15 Q -- down by --
16 A -- the position -- the position, but I
17 was -- I guess I was a little bit west of it. I don't
18 remember how -- how far west, though.
19 Q And where was your attention focused during
20 that time?
21 A It was in the -- on the subject in the back
22 of the room with the knife.
23 Q Okay. And what was he doing?
24 A I think he was kind of pacing around and
25 then at one point, when the knife was in his hand, he Examination of Kenneth Fox 211
1 started, like, motioning towards his neck like he was
2 stabbing himself in the neck. And I don't know
3 whether he was or not, but it appeared like he was.
4 And then after that, I didn't necessarily
5 see any new blood, but I remember seeing blood on his
6 face and around his face.
7 Q Okay. What happened then?
8 A I'm not sure if this was before or after,
9 but there was a gentleman who would've been kind of --
10 there was, like, a little alcove. He would have been
11 here. He kind of popped out and was coming down
12 this -- this wall. I -- I moved and was trying to get
13 him to come behind the desk and he kind of crouched
14 down -- down underneath the -- the desk right there.
15 Q Okay. What happened next?
16 A So I -- I went back to the approximate area
17 where he was at. And shortly thereafter, the subject
18 began walking towards officers with -- with the knife
19 in his hand.
20 Q Okay. What do you remember happening next?
21 A As he walked -- was walking towards us, I
22 heard a burst of gunfire and then he went down to the
23 ground.
24 Q Do you have a sense of how far away he was
25 from the officers? Examination of Kenneth Fox 212
1 A When he went down to the ground or at which
2 point?
3 Q When he started moving in their direction.
4 A I -- I don't recall exactly where he was at
5 when he started moving towards us.
6 Q Okay. What about once he was down on the
7 ground?
8 A I would guess -- guess about seven feet
9 away.
10 Q Seven feet away? Okay. Did you have your
11 handgun or any kind of weapon drawn?
12 A I did. I had my handgun out.
13 Q And when did you pull that out?
14 A I believe when I would've turned back --
15 back to the general area he was at after trying to get
16 the guy to go behind the desk.
17 Q Okay. And so just so we're clear, you --
18 you came down by the desk to try to get that guy out
19 of the way?
20 A Out of the way, out of harm's way. I wanted
21 him to back there, but he stopped and kind of hunkered
22 down right there.
23 Q And then where did you move back to?
24 A Same -- same general area, kind of in this
25 general vicinity. Examination of Kenneth Fox 213
1 Q Okay. And you said at that point you drew
2 your handgun?
3 A I had my handgun drawn, yes.
4 Q You had your handgun drawn.
5 A I -- I believe I drew it -- drew it when I
6 got back to -- and I don't remember exactly when --
7 the exact point when I did draw it.
8 Q Okay. And did you fire?
9 A I did not.
10 Q Why not?
11 A Due to my position, I -- I was slightly
12 behind the line. And I -- at the point when I was
13 about to fire, I recognized that -- I -- I could see,
14 like, the back shoulders of two officers and I didn't
15 feel it was safe to fire between two officers from
16 behind their position, presenting -- that presented a
17 pretty serious risk to them as well.
18 Q And you -- you actually had officers in your
19 line of fire?
20 A Not -- they were not directly in front of
21 me. I had a clear line in front of me, but this
22 gentleman's moving towards us and I didn't -- I can't
23 predict what somebody else might do. And I didn't
24 want to fire from slightly -- slightly behind, between
25 two officers. Examination of Kenneth Fox 214
1 Q Okay. But you did have your handgun out?
2 A I did, yes.
3 Q And then were you aware that other officers
4 had fired?
5 A Yes, I was.
6 Q And what happened then?
7 A The subject went down to the ground, landing
8 on his stomach with his head facing north.
9 Q Okay. What did you do next?
10 A We couldn't -- we couldn't see both his
11 hands and we couldn't see where the knife was at. And
12 we were trying to figure out a way so we could go
13 render -- render aid to him.
14 Me and another officer moved up around to
15 the -- the east side of that staircase so we could
16 see, get eyes on the subject and see if we could see
17 where the knife and where his right hand was. His
18 right hand was underneath his body and we could not
19 see the knife.
20 Q Okay. And did you relay that information to
21 other officers?
22 A I did.
23 Q Okay. What happened then?
24 A I move back and then a couple officers
25 approached. And they rolled him up on his side and so Examination of Kenneth Fox 215
1 they say that they can see the knife and not to
2 move it.
3 Q Okay. Did you actually ever see the knife
4 out when it was on the ground?
5 A I did.
6 Q Okay. When did you see it?
7 A When they -- when they rolled him up onto
8 his side.
9 Q Okay. You could see it right there?
10 A I could see it on the ground to his -- on
11 his right side.
12 Q What happened then?
13 A Medical is requested to come.
14 Q Okay. And was your -- to the extent you
15 knew, your MAV recording, operating throughout that
16 encounter?
17 A As far as I know, yes.
18 Q Okay. You never shut it off or anything?
19 A Not -- not during that point, no.
20 Q Okay. When did you turn it off?
21 A After -- after all that had occurred. After
22 medical had been requested in, I asked
23 Sergeant Axthelm if I could go and turn off my MAV
24 recorder.
25 Q Okay. And -- and was that after the medics Examination of Kenneth Fox 216
1 had come in and all of that?
2 A Correct.
3 Q Okay. When the subject began moving toward
4 the officers, could you actually see the knife in his
5 hand?
6 A Yeah, it was in his right hand.
7 Q Okay. And how did he have it positioned?
8 A I guess he was holding his hand like this
9 with the blade protruding out the top of his hand,
10 pointing towards officers.
11 Q Okay. And that's how it was when he was
12 moving towards the officers?
13 A Correct.
14 MR. JACKSON: Okay. Any questions?
15 BY MR. REES:
16 Q I do. And I -- I'm sorry if you already
17 said this, but MAV, is -- is that an acronym? M-A-V?
18 A Mobile audio video.
19 Q Mobile audio video.
20 A Yeah.
21 Q Okay. And so you were wearing a wireless
22 microphone --
23 A Correct.
24 Q -- essentially.
25 A Yeah. Examination of Kenneth Fox 217
1 Q It's projecting sound back to your car for
2 the recording?
3 A Correct.
4 Q Okay. In terms of a threat assessment, why
5 did you pull your -- your gun out?
6 A Felt like he posed an immediate threat to
7 myself and other officers.
8 Q And you -- you told Mr. Jackson you didn't
9 fire because you thought that possibly other officers
10 were -- would be in danger if you would have fired
11 your weapon?
12 A Correct.
13 Q If -- if you had had a shot that you felt
14 was clear, would you have fired your weapon?
15 A Absolutely.
16 Q Absolutely. And can you explain why you say
17 that?
18 A He's -- the subject's moving towards us,
19 holding a knife. You know, and fearing for myself and
20 for other officers' safety that they may be
21 significantly injured or killed.
22 Q And so did you -- at the time did you think
23 that in your mind, like, I'm -- maybe I'm going to
24 shoot?
25 A Yes. Examination of Kenneth Fox 218
1 Q Several officers -- six, actually. Six
2 officers did use deadly force in this incident. Were
3 -- was that part of your calculation? Did you know
4 that -- that others were going to fire or not fire?
5 A I -- I had no idea who had fired at that
6 point.
7 MR. REES: All right. Thank you.
8 MR. JACKSON: Are there any other questions?
9 A GRAND JUROR: What -- what actions --
10 besides the actions that you just explained, what --
11 what kinds of orders or what was being said by both
12 the sergeant and -- or what did you hear from anybody
13 involved there?
14 THE WITNESS: So I don't really remember
15 hearing much during the time inside during this
16 incident. The only sounds that I remember hearing was
17 the gunfire.
18 A GRAND JUROR: So you didn't remember
19 hearing orders like, "Go here, do this, do that"?
20 THE WITNESS: I don't remember hearing that,
21 no.
22 A GRAND JUROR: And nothing from
23 John Eldridge?
24 THE WITNESS: No, ma'am.
25 MR. JACKSON: Okay. Any other questions? I Examination of Grover Robinson, Jr. 219
1 don't see any.
2 All right. Thank you very much, Officer.
3 THE WITNESS: Thank you.
4 MR. REES: Come on up.
5 THE WITNESS: Good morning.
6 MR. REES: Good morning, Officer.
7 This is our next witness. And if you'd
8 please raise your right hand.
9 GROVER ROBINSON
10 Was thereupon called as a witness; and, having been
11 first duly sworn, was examined and testified as follows:
12 MR. REES: And, sir, if you would, for the
13 record, state and spell your name.
14 THE WITNESS: It's Grover Robinson, Jr.,
15 G-r-o-v-e-r. Last name is R-o-b-i-n-s-o-n.
16 EXAMINATION
17 BY MR. JACKSON:
18 Q And, sir, what -- what's your occupation?
19 A I'm a community police officer with the
20 Portland Police Bureau. Have been for four -- over
21 four years now.
22 Q All right. And is -- when you say
23 "community police officer," is that the same thing as
24 a --
25 A Patrol officer. Examination of Grover Robinson, Jr. 220
1 Q -- patrol officer?
2 A That's correct.
3 Q Okay. And you're here today in front of the
4 grand jury in your police uniform.
5 A Right.
6 Q On the night of this incident that the grand
7 jury is examining on April the 7th, I believe you were
8 wearing plain clothes; is that right?
9 A That is correct.
10 Q And so -- and -- and on the video that we've
11 seen, we see an individual close in with the police,
12 but wearing just casual clothes. And that -- that
13 would be you then?
14 A That would be correct.
15 Q Yeah. And so can you explain what were you
16 doing that night? Why are you wearing plain clothes?
17 A So in addition to my duties as a patrol
18 officer, I'm also a field training officer. That
19 night I was assigned with my trainee, who is on his
20 last day of Phase 4. There are several phases within
21 the training program.
22 And Phase 4, the last two weeks of that
23 phase, I'm in plain clothes in an observation mode.
24 So my job is to just stand back and observe. And I'm
25 not only in plain clothes so that people don't come to Examination of Grover Robinson, Jr. 221
1 me and refer to me, so he can work independent and I
2 can just observe if possible.
3 Q Okay. And so when you're doing that, is --
4 is the purpose that members of the public don't really
5 know that you're a police officer and then you can
6 observe your -- your trainee?
7 A That's correct.
8 Q And do you ever get involved?
9 A In rare occasions. I am still armed. I
10 still have my badge in case I need to identify myself
11 as a police officer. I still have a bulletproof vest.
12 But, primarily, I refrain from taking direct action on
13 anything unless something dire comes up.
14 Q Okay. And where was your -- your -- is
15 it -- is it probably called your -- your trainee or --
16 A Recruit.
17 Q -- recruit. Who -- who was your recruit
18 that night?
19 A Officer Jeffrey Livingston.
20 Q Jeffrey Livingston. Okay. And so do you go
21 with him from the time of the start of the shift, roll
22 call, and then out on -- on patrol and stay with him
23 for the entire shift?
24 A I do.
25 Q Okay. We're -- we're just going to take Examination of Grover Robinson, Jr. 222
1 a -- a minute and just go to the surveillance video so
2 we can see Officer Robinson just for reference in the
3 -- in the video. Do you see yourself in the picture?
4 A I do. I'm wearing the black jacket with the
5 red stripes on the sleeve.
6 Q So that's you --
7 A Yes.
8 Q -- here, right?
9 A Uh-huh.
10 Q Okay. So that was just for -- for
11 reference. We looked at the video again. That's
12 Officer Robinson, but here in plain clothes you just
13 look like some guy standing around, big guy.
14 So what -- what was your -- what was your
15 status regarding responding to this location? What
16 was the first information that you -- you had
17 regarding the situation?
18 A So prior to arriving here --
19 Q Yeah.
20 A -- this would have been probably the fourth
21 call we received in relation to the same subject. My
22 partner -- I refer to him as partner even though he's
23 my recruit because being in Phase 4 and working
24 independent, I want him to be able to be thinking
25 independently as a partner and not a trainee, so I'll Examination of Grover Robinson, Jr. 223
1 refer to him as partner.
2 We were initially on another call unrelated
3 to this when the call came out that there was a
4 crashed vehicle. The subject was seen running from it
5 and shortly thereafter, this -- this particular
6 vehicle had been listed as stolen and taken, I
7 believe, earlier in that day from either North or East
8 Precinct.
9 It's where the original report was taken.
10 It was taken by force. And shortly after that, I
11 believe somebody had said that it was either taken by
12 force with the use of a gun or a weapon of some kind,
13 but it was some uncertainty as to whether or not there
14 was a weapon involved.
15 The subject left in an unknown direction,
16 but because of the severity of the call and, you know,
17 the severity of the crime, the call we were on, I'm
18 just telling him there probably wasn't much we could
19 do at that, so I suggested to my partner, "Hey, we
20 should probably cut loose from here."
21 Had to help out on the area check. We did
22 that, got to the area. Didn't see anybody matching
23 that description. They had left in an unknown
24 direction. The description that we had was, I
25 believe, possibly a white male, no shirt, blue jeans Examination of Grover Robinson, Jr. 224
1 or some blue pants, something like that, and had taken
2 off in an unknown direction.
3 Several officers were already looking one
4 way and we decided, "Hey, let's head up" -- I believe
5 we were heading down Stark, eastbound on Stark and
6 circle around to see if we can find him.
7 Shortly thereafter, another call came out
8 and said that the subject -- a subject was standing at
9 the doorway of the Jacksons, which is located, I
10 believe, south of Stark; but between Grant and MLK.
11 The subject was standing in a doorway armed with a
12 knife, possibly on drugs.
13 And shortly thereafter an update said that
14 they were sure that this was the same person we were
15 looking for, except the new updates showed that he was
16 wearing some kind of a jacket.
17 Q So -- I'm sorry to interrupt. But -- so
18 meaning this is the same person involved in the prior
19 carjacking?
20 A That's correct.
21 Q Okay. And -- and do you -- do you remember
22 anything at all about a call out of North, about a --
23 a situation with the same stolen vehicle at all or --
24 A No. Just --
25 Q No? Examination of Grover Robinson, Jr. 225
1 A Just the update that somebody believed that
2 this report was taken either North or East. There was
3 some kind of video associated with it, but it was
4 unclear in the video whether or not a weapon was
5 involved. I don't recall most of the details on that.
6 You know, at that time the focus was on locating this
7 person.
8 Q So you're getting bits and pieces of
9 information over time?
10 A Mm-hmm.
11 Q It is a -- it's an evolving situation,
12 obviously.
13 A That's correct.
14 Q And -- and maybe you said it, but at some
15 point did you say to your recruit/partner, "Let --
16 let's head in that direction"?
17 A I did.
18 Q And when -- when -- and I interrupted you,
19 but when was that in the sequence that you decided to
20 head in that direction?
21 A That was at the initial call with the crash
22 vehicle and subject that had taken off in an unknown
23 direction.
24 Q Okay.
25 A Once it was determined or broadcast that it Examination of Grover Robinson, Jr. 226
1 was taken by force, just knowing that chances are, if
2 this guy had already taken a vehicle by force and --
3 and crashed that vehicle, he's probably, you know, a
4 high likelihood that he's looking for another vehicle
5 and possibly do the same thing. So the risk to the
6 public was -- was very high, so --
7 Q So are you actively looking for the suspect
8 then?
9 A Yes. We began an area check and started
10 assisting, flooding the area with a bunch of patrol
11 cars just trying to look for him. Now, we were pretty
12 confident we'd be able to spot this guy. He was
13 running around with no shirt. Not too many people
14 running around with no shirt, so --
15 Q Okay. And this is fairly early in the
16 evening. So were there -- were there lots of cars on
17 the road and people out and about --
18 A No.
19 Q -- do you recall?
20 A No.
21 Q All right. Any sign of the suspect?
22 A We didn't locate the suspect during the area
23 check. Having not located anybody, once that second
24 call came out at the Jacksons with the guy standing in
25 the door with a knife, possibly on drugs, at that time Examination of Grover Robinson, Jr. 227
1 we didn't know it was the same person, but everybody
2 was dealing with the initial call working on the area
3 check.
4 I believe somebody had asked -- or somebody
5 had volunteered to go, but they were looking for
6 somebody equipped with a less lethal -- you know, a
7 40-millimeter less lethal. It's pretty standard when
8 you have a subject that's armed with a knife that you
9 have somebody with a less lethal go as a secondary
10 option to confront that.
11 When somebody offered up with that, I
12 recognized, hey, this is probably something we want
13 another officer. We had a primary officer that was
14 going to head for that. A less-lethal officer should
15 be a second officer to go with him so that the less
16 lethal can just focus on being less lethal.
17 So I suggested we head there and do that.
18 Staging location was devised. We met there -- or we
19 waited there at the -- at that location, the staging
20 location, which was over Stark and Grand, or Stark
21 and MLK.
22 The crash vehicle was about a block north of
23 us. I saw that while we were sitting at the staging
24 location. We were there waiting when the other
25 officers were en route to come meet up and rendezvous. Examination of Grover Robinson, Jr. 228
1 I guess another officer had headed to
2 Jacksons to get eyes on. Saw that the guy wasn't
3 there anymore; went in and made contact with the
4 employees, and I was updated that this was probably
5 the same person based on the description, behavior,
6 weapon, et cetera, et cetera.
7 New update, as I said earlier, was that this
8 guy was now wearing a jacket or a rain parka or
9 something like that and had left. But I don't believe
10 there was a -- a direction of travel. He just said he
11 was no longer there.
12 So we never made it to the Jacksons because
13 as we were leaving, heading southbound, another call
14 came out and said that there was a subject armed -- I
15 believe it was subject armed with a knife at the
16 shelter on the west side of MLK -- Grand -- the west
17 side of Grand. And the subject -- and was probably
18 the same guy. So we just headed there.
19 Q And that would be the -- that's the east
20 side of Grand, I think, isn't it?
21 A No, it's the west side. The first -- the --
22 the third call --
23 Q Oh, I'm sorry.
24 A -- was on the west side.
25 Q Which is -- okay. Oh, right. Examination of Grover Robinson, Jr. 229
1 A Yeah.
2 Q The Columbia Shelter, which used to be by
3 Shleifer Furniture.
4 A Yeah. 509.
5 Q Got it.
6 A Right.
7 Q Yeah. Okay.
8 A But --
9 Q Sorry.
10 A Yeah, so he came out there. There was a
11 subject there, I believe, that was also armed with a
12 knife, so we made our way there pretty quickly.
13 Q That's the same side of the street as
14 Jacksons. It's -- but it's north of Jacksons?
15 A That's correct.
16 Q Yeah, I've got it. I'm sorry. Okay.
17 A Yeah. A couple blocks -- a couple blocks
18 north?
19 Q Yeah. Right. Okay.
20 A So we made our way there. As we got there,
21 there were several officers already there and we found
22 out while we were sitting there waiting for
23 information, that the subject was no longer there. He
24 was moving around.
25 But as we were sitting there and I was Examination of Grover Robinson, Jr. 230
1 listening, waiting for updates on the direction of
2 travel, I looked over and there was an older white
3 male, gray hair, coming out of the shelter on the east
4 side of the street.
5 He was indicating, "Hey, somebody's inside,"
6 or pointing inside. So it was quickly after that -- I
7 didn't even get a chance to broadcast, you know,
8 getting flagged down at, you know, the shelter on the
9 east side.
10 And somebody else had updated that, "Hey,
11 the subject was last seen heading across the street."
12 So we made our way over there. I told my partner, I
13 went, "Hey, turn the car, just block traffic south of
14 that location and let's make our way in, figure out
15 what's going on."
16 And I'm not sure if that was at the
17 beginning of -- as we were entering the location, that
18 video, but I approached the window, saw the subject
19 inside had a knife up to his neck.
20 And it was at that point that I recognized
21 it's probably one of those deals where, even in plain
22 clothes, there was probably going to be some role I
23 was going to have to take in -- in this since, you
24 know, this shelter was full of people, rough guess,
25 you know, 40-, 50-some-odd people in there. Examination of Grover Robinson, Jr. 231
1 It's a homeless shelter that has a regular
2 line outside of it. And at some point they let people
3 in. Once they reach capacity --
4 Q And you're --
5 A -- they close the doors.
6 Q I'm sorry. You're talking there from past
7 experience --
8 A Past experience.
9 Q -- you know that, so you're familiar with
10 that homeless shelter?
11 A I am.
12 Q Okay. And so did you -- based on your past
13 observations and I guess also looking through the
14 window, did -- did you have an impression that there
15 were a lot of people inside the shelter?
16 A I did.
17 Q How many? Could you see inside how many
18 people there were or --
19 A Yeah. Rough guess, I mean, without
20 obviously counting, I mean, I would say, you know, 40,
21 50. But could have been more than that.
22 Q Okay. But in the past, you've seen people
23 on the sidewalk lined up to go inside?
24 A Yeah. And it's not uncommon for people to
25 get turned away, just from them reaching their Examination of Grover Robinson, Jr. 232
1 capacity, so --
2 Q So do you --
3 A -- several times during the middle of the
4 night, you know, I can go by and there's people camped
5 out on the sidewalk that couldn't make it in.
6 Q All right. So based on your training and
7 experience as a community police officer, when you see
8 this person inside the shelter with the knife and you
9 know about these other calls and the carjacking call,
10 you can see a weapon's involved, what are you -- what
11 are you thinking?
12 A The danger to the community is probably the
13 most important thing I'm thinking at this time. I
14 mean, this guy is obviously at a -- at this point,
15 threatened himself, threatening self-harm with a
16 deadly weapon.
17 But I know, based on his proximity to, you
18 know, the citizens inside, there's a high likelihood
19 that this could turn into something as severe as a
20 hostage situation. You know, he's in close enough
21 proximity.
22 And based on the fact that we already had
23 prior reports of this subject being possibly under the
24 influence of drugs, he's already, you know, likely
25 carjacked a vehicle, and so he's already demonstrated Examination of Grover Robinson, Jr. 233
1 his ability to place others in harm, so that was
2 pretty -- pretty intense.
3 Q So what do you do in a situation like that?
4 You've got a -- a lot of cops on the sidewalks. You
5 see it. It looks like there's police everywhere.
6 A Mm-hmm.
7 Q And then everybody else is on the inside.
8 What -- what -- what happens?
9 A Well, like I said, I mean, I'm -- if I was
10 dressed the way I was, if I was equipped the way I was
11 I would have obviously been one of the first ones to
12 run in and address the situation myself.
13 But in the role I was in it was important
14 for everybody else who was armed with, you know, less
15 lethal, who's armed with, you know, firearm, shotgun,
16 whatever the case is, to address this threat.
17 You know, I let them filter in first and do
18 that. At one point I recognized there's a ton of
19 people inside. My trainee is inside. He's fulfilling
20 a role, too, and addressed a number of folks that are
21 inside trying to get them away from the subject and
22 hopefully out.
23 I recognized at one point that there's other
24 people inside. There's two employees that are sitting
25 in the southwest corner of the -- the room. They're Examination of Grover Robinson, Jr. 234
1 both employees behind a desk, but they're just sitting
2 there.
3 So I go in. I want to address them to
4 possibly get out. And there's several other people.
5 I know as I came in, I saw that there was somebody
6 behind the subject. The subject was on the south side
7 of the room, but he was pacing back and forth, still
8 holding the knife up to his neck.
9 But behind him there were several people,
10 occupants of the shelter that were still trapped in
11 that kind of corner behind -- the dangerous part about
12 that is they're in a -- what we call our backdrop. So
13 should the point come where deadly force has to be
14 used, there's a potential for them to be in the
15 backdrop, you know, and in the line of fire.
16 So -- and one of the guys -- I mean, at --
17 people were pretty quick to address them, "Hey, move
18 around. Get out of the way." But there was one guy
19 in particular who panicked, I'm assuming, at the table
20 that was there and tried to turn it onto its side and
21 hide behind the table.
22 The table was obviously insufficient cover
23 for, you know, fire coming through. So somebody had
24 figured that out and addressed him and got him moved
25 away. But at this time I'm still trying to tell these Examination of Grover Robinson, Jr. 235
1 guys to -- "Hey, you guys should leave and get out to
2 safety," and whatnot.
3 And starting to focus on my trainee, who's
4 trying to get people funneled out along the north side
5 of the wall out the door. I mean, it's kind of
6 important, too, that there are people that can witness
7 what's going on.
8 But -- and not just police officers. I, as
9 a police officer, when I'm doing an investigation
10 would like to be able to have witnesses that can
11 account for things and not just my own account.
12 But at the same time, you know, with the
13 situation being what it is, I much prefer everybody be
14 out to safety. And not even knowing that there's
15 cameras inside, just getting them out.
16 So my attention was focused on getting
17 people out. Meanwhile, I'm watching what this guy's
18 doing. He's pacing back and forth. At one point he
19 kind of backs towards where people are being funneled.
20 There's this huge kind of obstacle in the
21 middle of the floor. It's a staircase leading down to
22 a lower level. He kind of flies around the side of it
23 towards where people are being funneled away, but
24 somehow makes his way back around.
25 He's pacing back and forth still. Still Examination of Grover Robinson, Jr. 236
1 with a knife to his neck. I never seen him drop it or
2 menace anyone with it, but he's still --
3 A GRAND JUROR: Was he --
4 THE WITNESS: -- with people inside.
5 A GRAND JUROR: -- yelling anything at that
6 time?
7 THE WITNESS: You know, honestly, I don't
8 recall him even saying anything. I know several
9 officers were, you know, asking him to drop the knife.
10 And, you know, he was being warned that force would be
11 used. I did hear some less-lethal rounds going off.
12 Those are the 40 millimeter (indiscernible) rounds.
13 I saw him get hit a few times in the lower
14 waist or below the waist. But I do recall he had --
15 they didn't have any effect on him. You know, I
16 didn't see, you know, anybody who, like -- typically,
17 you would see somebody kind of buckle over or -- just
18 from the impact of, you know, the initial round.
19 But I didn't see any break in demeanor or
20 anything like that. I don't recall him saying
21 anything, but he never -- he never reacted to it. So
22 he kept pacing back and forth. I think I looked at
23 one point to the two who were still sitting there.
24 I told them one more time to get out. They
25 got up and got behind me and headed out the door. And Examination of Grover Robinson, Jr. 237
1 as they were doing that, I heard rounds being fired,
2 lethal rounds being fired from several -- several
3 weapons. I looked up and the guy was -- the subject
4 was in the process of being shot. And he was buckling
5 over, ended up falling forward.
6 And I immediately recognized that he must
7 have moved closer toward this while I was looking
8 away. The last time I saw him, he was further back in
9 the room. When he was getting hit, he was noticeably
10 closer.
11 So, I mean, I automatically knew, you know,
12 he had -- he must have advanced on them causing them
13 to have to fire. I -- I probably would have done the
14 same thing had I been in that position.
15 BY MR. REES:
16 Q You -- you had said that you -- you viewed
17 this is a very dangerous situation.
18 A Mm-hmm.
19 Q People inside, he's got the knife. But
20 he's -- he's holding the knife up to his own neck when
21 you see him.
22 A Mm-hmm.
23 Q So how -- how is that dangerous to the other
24 people in the room?
25 A Well, anybody armed with a knife can -- Examination of Grover Robinson, Jr. 238
1 right now, he's -- at that particular time, he's got a
2 knife to his neck. That's nothing to say that while
3 he's closing the distance on officers, he takes the
4 knife and turns it towards an officer. You know, it's
5 a deadly, dangerous weapon.
6 Q Well, what about earlier -- earlier in the
7 situation? I mean, were you surprised that the other
8 officers were using the less-lethal foam rounds
9 against him given the situation?
10 A No. No.
11 Q No?
12 A No. The less-lethal rounds are a great
13 option because, obviously, being less lethal, it gives
14 us a level of force with the hopes of averting to a
15 higher level of force, you know.
16 For most people, you know, depending on --
17 without other factors, you know, drugs, state of mind,
18 will to fight, whatnot, a less-lethal round is usually
19 -- can -- not usually, you never know.
20 But would be a viable option to try to see
21 if you can get some kind of pain compliance before
22 having to use force. The average person would
23 probably react accordingly, drop the knife, not want
24 to get shot with a less-lethal round more than once.
25 Aside from the fact, I just recently went Examination of Grover Robinson, Jr. 239
1 through the training and got certified as a
2 less-lethal operator, so I have first-hand knowledge
3 of seeing what -- that they can do, how fast it -- it
4 travels and its impact on the target and whatnot.
5 But with him not having any reaction to it,
6 it kind of testifies in and of itself to his will to
7 fight or his state of mind or possible drug --
8 drug-affected behaviors.
9 Q Did you see him have any response at all to
10 either officers yelling at this guy, "Drop the knife,"
11 or being hit with the less lethal rounds?
12 A No.
13 MR. REES: Okay. Are there any questions
14 from the grand jury?
15 A GRAND JUROR: Were -- were there any
16 Tasers on any of the officers involved or why weren't
17 they in the picture?
18 THE WITNESS: I don't recall. I don't know
19 myself, if I would have opted for a Taser at that
20 point. With so many officers nearby, there's always
21 the danger of you can point a Taser -- the way Tasers
22 work, if you don't know -- at least our Tasers, the
23 X26 -- has two probes.
24 Those probes, when fired, you know, you're
25 aiming lower body and you're hoping for a spread. Examination of Grover Robinson, Jr. 240
1 One -- one probe usually comes straight out towards
2 where you're aiming and the second one kind of is
3 angled downwards.
4 With officers moving around, the subject
5 moving around, there's always the danger of that
6 point, that close proximity, by firing the Taser,
7 probe could strike one of the other officers, possibly
8 incapacitate them momentarily. Or based on this guy's
9 movement, you know, I don't know if a Taser would have
10 been applicable at that point.
11 MR. REES: Any other questions? All right.
12 Seeing no further questions, we'll excuse this
13 officer.
14 Thank you very much for coming in.
15 THE WITNESS: Thank you.
16 A GRAND JUROR: Thank you.
17 THE WITNESS: Have a good one.
18 MR. JACKSON: All right. And we're going to
19 go off the record for another case. And then we'll
20 resume this afternoon.
21 * * *
22 (Noon Recess taken at 10:26 a.m.)
23
24
25 Examination of Troy Grundmeyer 241
1 AFTERNOON SESSION
2 (Grand Jury No. 1, 1:21 p.m.:)
3 MR. REES: All right. We're back on the
4 record on Grand Jury No. 1, Case 28. And the next
5 witness is Sergeant Grundmeyer.
6 TROY GRUNDMEYER
7 Was thereupon called as a witness on behalf of the
8 State; and, having been first duly sworn, was examined
9 and testified as follows:
10 EXAMINATION
11 BY MR. REES:
12 Q Sir, when you're ready, if you would,
13 please, for the record, state your first and last
14 name.
15 A Yeah. My first name is Troy, T-r-o-y. And
16 my last name is Grundmeyer, G-r-u-n-d-m-e-y-e-r.
17 Q And what's your position with the Portland
18 Police Bureau?
19 A I'm a sergeant in the K9 unit, and so we
20 have a unit of ten -- or ten patrol dogs and two
21 sergeants, eight officers. I'm one of the sergeants.
22 Q All right. And how long have you been in
23 that position?
24 A I've been a sergeant in the unit for four
25 years. Prior to that, I was a handler in the unit for Examination of Troy Grundmeyer 242
1 ten years.
2 Q All right. And just for the record, as I
3 understand it, there was a K9 officer and his handler
4 on scene in the shooting April 7th, and that was
5 Officer Gore. He's not available, so we've called you
6 for some background information on the capabilities
7 and limitations of the -- the K9 officers.
8 A Yeah. Correct. Officer Shawn Gore is on
9 vacation now out of state.
10 Q Okay. And so, first, briefly, what's the
11 training involved for the officer and -- and the
12 canines?
13 A So each -- each dog, before they're
14 certified as a patrol dog in the state of Oregon, they
15 go through a 400-hour, ten-week training course with
16 the -- the individual officer that's going to handle
17 that dog with the dog. After that's completed, they
18 pass a test.
19 So they're -- all the patrol dogs in the
20 state of Oregon kind of fall under the umbrella of the
21 Oregon Police Canine Association. Once they complete
22 their 400 hours of training and they pass a test --
23 that is an Oregon Police Canine Association test -- if
24 they pass that test, they can then be a certified
25 patrol dog. Examination of Troy Grundmeyer 243
1 Once that's completed, though, the training
2 doesn't stop. We train weekly, daily. Every
3 Wednesday night, the -- our entire unit, that's our
4 training day, so we train together every Wednesday,
5 but then we also train every night.
6 We train in tracking, building searches,
7 control work, which would be the biting and the
8 call-offs and that kind of thing.
9 And then on top of that, we attend -- twice
10 a year, we attend an Oregon Police Canine Association
11 seminar, where it's training and doing all the stuff
12 that we do all year long, we do that as a big -- big
13 group. So it's -- it's hundreds to thousands of hours
14 of training, between the handlers and the dogs at any
15 given time.
16 Q What's the -- the primary purpose, the
17 number one purpose of using one of these canines?
18 A Well, the number one thing that we use them
19 for is as a locating tool. So the dog's nose is
20 roughly -- depending on what you read -- a hundred to
21 a thousand times more powerful than a human's nose.
22 We use the dog to -- to search and find people,
23 sources of human scent. That's our number one
24 priority.
25 Q All right. And what's -- what's the number Examination of Troy Grundmeyer 244
1 two or secondary purpose?
2 A The secondary would be a means of
3 less-lethal force, so you're probably familiar with a
4 taser is a less lethal mean than guns, batons. The
5 dog can also be used to scent -- to be sent on a bite
6 to apprehend a fleeing person or to try to subdue a
7 person.
8 That's -- that's -- we probably train more
9 in that because there's -- it's kind of more -- more
10 involved with that, but that's the secondary function
11 of the dog.
12 Q And do you have an understanding that in
13 this case, Officer Gore handling his canine was
14 involved in tracking the suspect of the -- the
15 carjacking?
16 A Yeah. I'm not a 100-percent familiar with
17 exactly what happened on this, but my understanding
18 was that he was responding to the scene because they
19 had a carjacking and a car in the middle of the street
20 and the suspect had -- had run off somewhere. So I --
21 my understanding is his initial response would be to
22 search for that person, go find him.
23 Q And then we've seen, as part of our grand
24 jury investigation, video that shows the officer with
25 his German Shepherd canine partner coming into this Examination of Troy Grundmeyer 245
1 homeless shelter. I think one -- one question is why
2 wouldn't the dog be just released to grab someone who
3 has a knife or -- or would they be?
4 A Well, we -- generally not. We don't send
5 the dogs on somebody that's armed with a knife or
6 armed with a gun. And the reason being is the dogs
7 are trained to -- when they are sent to bite, to bite
8 the first available piece of the person, whether it be
9 the leg, the arm, to try and control that person.
10 The idea would be you'd send the dog, the
11 custody team would have a plan at that point once the
12 person is dealing with the dog to move up and try and
13 take control. The dog's not kind of a magic thing
14 that's going to go and, if you think about it, grab
15 the person and bring them back to you to control the
16 person.
17 The dog's going to be sent on the bite and
18 then you'd have to have a plan to move forward and
19 then control that person. If you sent the dog against
20 somebody with a knife, you know, the -- I'm not
21 familiar with any training where a dog could disarm a
22 person with a knife.
23 So if you sent the dog against somebody with
24 a knife, the person's still going to have the knife
25 and it could -- could obviously create kind of more Examination of Troy Grundmeyer 246
1 problems than what it's going to solve.
2 Q How -- how might the dog be used in a
3 scenario where the police are confronting someone with
4 a knife and are trying to get the person to drop the
5 knife? At some point, would the dog potentially come
6 into play?
7 A Yeah. That's why you would have -- have the
8 dog there as one of your less-lethal options. If the
9 person dropped the knife, you'd have to be ready to
10 immediately send the dog. The -- the other side of
11 that coin is the dog has to know what their target is.
12 The dog has to have target lock.
13 You'd have to have the dog in a position
14 where they could see which -- I mean, they're dogs. I
15 can't say, "Go bite the person in the black shirt."
16 They have to know what they're looking at. But so you
17 would have the dog there.
18 If the dog -- if the knife was dropped,
19 you'd immediately turn and send the dog up and then
20 move on up and control that person before they could
21 have access to the knife again.
22 Q Okay. So at some point, if a subject had --
23 had dropped the weapon and the dog was clear on -- on
24 who the suspect was, then you might release the dog
25 to -- to hold onto the person so they could be Examination of Troy Grundmeyer 247
1 arrested?
2 A Yeah. Yes, you would. Again, I don't -- I
3 haven't seen everything regarding this case. I -- I
4 did see the news video and the first thing that was on
5 the news that struck me was the dogs. They're dogs.
6 They see movement.
7 So you have to have them at -- to looking in
8 the right direction, have them target lock -- for lack
9 of a better word -- on what their target is. And the
10 dogs are attracted to the movement.
11 So what I saw on that video -- and I just
12 saw that brief clip -- was people moving in the
13 background and that's what the dog's going to see. So
14 you -- just to say that if the person dropped the
15 knife, you would send the dog, that may not be the
16 case.
17 If there's things going in the background
18 and people moving, you would have to really have that
19 person isolated so where the dog realized, like, yes,
20 that -- that is my target. I get where -- where I'm
21 supposed to be focused. I didn't see it in that
22 video. And there's a lot -- there's a lot happening,
23 from what I could see.
24 MR. REES: Okay. And any -- any questions
25 from the grand jury about the dog you saw on the video Examination of Troy Grundmeyer 248
1 or any follow-up questions?
2 A GRAND JUROR: I -- I think more than a
3 question is an observation that in that -- in the
4 video that we've seen, the -- the scene is very
5 chaotic --
6 THE WITNESS: Mm-hmm.
7 A GRAND JUROR: And there are people moving
8 everywhere. And the dog present seemed to add to the
9 general pandemonium in the room, just because, you
10 know, officers are -- are barking orders and there are
11 people in the background. But the dog's barking --
12 THE WITNESS: Mm-hmm.
13 A GRAND JUROR: -- was just, like -- seemed
14 to me it was just adding more chaos to the -- to the
15 scene.
16 THE WITNESS: Yeah. And all of our dogs are
17 different. Some -- my dog is very quiet. Other dogs
18 bark a lot. Sometimes the -- sometimes -- a lot of
19 times, actually, the barking can actually convince
20 somebody to give up.
21 A GRAND JUROR: Yeah.
22 THE WITNESS: You know, people will see the
23 dog, hear the barking, hear our warnings and they'll
24 choose to -- to give up. That happens quite a bit.
25 Again, in -- in that video clip I saw -- I haven't Examination of Troy Grundmeyer 249
1 seen the extended version. I only saw what was on the
2 news, but it was very chaotic. I mean, without the
3 dog involved --
4 A GRAND JUROR: Right.
5 THE WITNESS: -- it looked like a very
6 chaotic scene.
7 A GRAND JUROR: Do you know if the dog had
8 been brought to the car, the Honda --
9 THE WITNESS: I -- I don't, no.
10 A GRAND JUROR: -- that had crashed?
11 THE WITNESS: I did read before I came in
12 here, officer --
13 A GRAND JUROR: I just wondered if you had
14 just any chance to get the scent of this man.
15 THE WITNESS: It's not -- from what I --
16 like I said, before I got here, I read Officer Gore's
17 statement and it sounds like he was on his way to the
18 car --
19 A GRAND JUROR: Mm-hmm.
20 THE WITNESS: -- and realized that it had
21 been 15 minutes. And it was a heavily -- heavily
22 populated area. So to track the person, you would
23 have to -- the way that we work the dogs, if somebody
24 runs from a car, primarily, we'll set a perimeter.
25 So we'll have officers on the corners and Examination of Troy Grundmeyer 250
1 then we'll pick up the person's scent and track that
2 person. It sounds like from where this occurred, that
3 would be really hard 'cause of the conditions, the
4 people everywhere. To try to pick up the correct
5 scent --
6 A GRAND JUROR: In the rain.
7 THE WITNESS: -- from the car in the rain
8 would be really hard. And you're always kind of
9 racing against the clock. So on this one, after 15
10 minutes -- that's kind of an extended amount of
11 time -- it would be difficult.
12 So it sounds like Officer Gore was probably
13 going to this call with the intention of searching.
14 But then realizing the environment and -- and all the
15 other things going on with that. And then it sounds
16 like before he even actually got there to deploy his
17 dog, they started to get information that this person
18 was nearby.
19 And so he -- that would be normal where he
20 would respond to where he could -- and if you think
21 about the dogs in this -- in this -- he's initially
22 responding to use the dog as a locating tool to find
23 this person.
24 He's listening to the call. And he
25 transitions, at some point, for the dog to be another Examination of Troy Grundmeyer 251
1 less-lethal tool. So it's, like -- we always talk
2 about it being a toolbox. We have all these things on
3 our belt.
4 The dog is just another thing to add to that
5 toolbox, but it also -- every single one of them comes
6 with limitations. And the dogs -- the dogs are
7 awesome. They're very well trained. You can't train
8 the dog out of a dog, though. And they're very well
9 trained and they also come with limitations.
10 A GRAND JUROR: So, basically, they're like
11 another officer. They're not put in harm's way if you
12 don't have to?
13 THE WITNESS: I can't hear you. I'm sorry.
14 A GRAND JUROR: So they're like another
15 officer that you're not going to put in harm's way?
16 THE WITNESS: Well, not necessarily. You
17 know, the way that we look at it is the dogs -- we
18 obviously don't want to send the dogs on what we would
19 call a suicide mission if we know the dog -- we're
20 going to send the dog after somebody that's armed.
21 But if we -- if we can protect lives, we --
22 we will do that and we know that. But we're not going
23 to be reckless about it and -- and send out -- we
24 never want to send the dog into a situation where it's
25 going to make -- no matter how chaotic it is, we don't Examination of Troy Grundmeyer 252
1 want to make it worse.
2 Like, if we can send the dog -- if we send
3 the dog into a crowded room of people and, you know,
4 you can think of all the different things that could
5 happen. They could bite the wrong person.
6 A GRAND JUROR: Mm-hmm.
7 THE WITNESS: They could bite the person
8 with the weapon and then the person could use the
9 weapon against the dog, which could create a bunch of
10 other confusion.
11 So we're -- we're constantly training to --
12 to be aware of that line and to use our dogs correctly
13 and use our dogs appropriately. And not just, you
14 know, send the dog out when it wouldn't be a situation
15 that -- that would be applicable, if that makes sense.
16 A GRAND JUROR: What would be the reason for
17 the dog actually going into the -- into that room,
18 because -- because there was, like, 40 or 50 people --
19 THE WITNESS: Yeah.
20 A GRAND JUROR: -- running in all different
21 directions --
22 THE WITNESS: Well --
23 A GRAND JUROR: -- and chaos.
24 THE WITNESS: -- from what it sounds to me
25 like they didn't really know what they had at that Examination of Troy Grundmeyer 253
1 moment. And, again, if they got into that room,
2 there's people everywhere, if they could get everybody
3 out, get that person isolated, then at some point they
4 would have had time to come up with a plan.
5 I imagine the plan would have been, Officer
6 Gore, if he'd have dropped the knife, send the dog as
7 the dog was on a bite, so the suspect's dealing with
8 the dog, then they would move up and try and control
9 him at that point.
10 A GRAND JUROR: Mm-hmm.
11 THE WITNESS: That would be -- that would be
12 normal. That would be reasonable.
13 MR. REES: Okay. If there's no further
14 questions, we'll excuse Sergeant Grundmeyer. Thank
15 you for coming in.
16 MR. JACKSON: Would you raise your right
17 hand?
18 Swear him.
19 JEFF LIVINGSTON
20 Was thereupon called as a witness; and, having been
21 first duly sworn, was examined and testified as follows:
22 MR. JACKSON: Have a seat.
23 Please state and spell your name.
24 THE WITNESS: It's Jeff Livingston.
25 J-e-f-f, L-i-v-i-n-g-s-t-o-n. Examination of Jeff Livingston 254
1 EXAMINATION
2 BY MR. JACKSON:
3 Q All right. How are you employed, sir?
4 A As a police officer with the Portland Police
5 Bureau.
6 Q How long have you been a police officer?
7 A 13 months.
8 Q Okay. And in what phase of your training
9 are you in right now?
10 A I'm in Phase 5 right now.
11 Q What does that mean?
12 A So right now, I'm still an eligible recruit
13 in training, but I'm not independently on my own,
14 operating as a independent officer on daily calls.
15 Q Okay. And were you working on April 7th of
16 2018?
17 A I was.
18 Q And did you have a field training officer
19 with you?
20 A I was. Officer Grover Robinson.
21 Q Okay. Officer Grover Robertson -- or
22 Robinson. And was he in uniform?
23 A He was not. He was in plain clothes.
24 Q And what about you?
25 A So I was in my uniform driving a marked Examination of Jeff Livingston 255
1 patrol car, operating as a independent officer.
2 Q Okay. What was your shift that day?
3 A So my shift was set up -- I was working the
4 744 district. Started at 1600 and ended at 2:00 a.m.
5 At least that's what it was scheduled. That district
6 consists of Southeast Powell down to Southeast Steel
7 over to Caesar Chavez and basically to the water.
8 That day I had basically been patrolling that area.
9 Nothing -- nothing out of the norm, nothing
10 different. I remember it being pretty rainy and it
11 kind of caused me to be a little bit slower than
12 normal. Yeah.
13 Q Okay. And so throughout the shift, were you
14 just responding to calls for service?
15 A I was. I -- there's a couple -- if I
16 remember right, a couple unwanted calls at the time
17 that this call came out. I was just finishing up
18 covering one of my district officers for -- it was a
19 disturbance and we had figured that out. We worked
20 with the complainants and we were just basically
21 finalizing that call.
22 Q Okay. And so what information did you
23 receive related to the call at Stark and MLK?
24 A So as we were finishing up, I heard over the
25 radio a unit say that he just came across what he Examination of Jeff Livingston 256
1 called a dumped stolen -- an abandoned stolen sitting
2 at the intersection of MLK and Stark.
3 The unit basically said that the suspect --
4 information he had is that the suspect had left
5 minutes before, heading eastbound on Stark. So I
6 initially cleared my call that I was on and started
7 driving northbound on 12th Avenue to make my way up
8 there.
9 As I was driving, that particular unit was
10 trying to give updates about where the subject had
11 gone and any updates of where he'd be. And someone
12 asked over the radio, "Do we want to set up a
13 perimeter?"
14 The Unit 714 said, "No. I think because of
15 the timing, let's just do an area check." So I
16 immediately, thinking that I was already at 12th, 12
17 blocks over from where they were at, I would stay in
18 that perimeter. Once I got to Stark, I would just
19 stay in that area, trying to look for the subject.
20 Q Okay. And in terms of an area check, does
21 that just mean you drove around, seeing if you found a
22 guy that matched the description?
23 A It does. It does. It's just -- it's just
24 obviously trying to be vigilant, trying to look for
25 anybody that matches the descriptions that are coming Examination of Jeff Livingston 257
1 over the dispatch, just trying to basically patrol
2 that area to see if you see him walking or running
3 away, anything like that.
4 Q What other information about this individual
5 did you learn while you were performing your area
6 check?
7 A So once I got into the area of 12th and
8 Stark and I actually was doing the area check, the
9 first update that I remember coming through was there
10 were reports that that abandoned stolen was tied to
11 what they called the carjacking over in East Precinct.
12 They said that somebody had a knife and had carjacked
13 someone and had been driving this particular vehicle.
14 As we were driving around, the first initial
15 update we had was a white male with his shirt off,
16 approximately six feet tall. And then as I continued
17 to patrol, another update came out saying that the
18 gentleman was six feet tall, had a red and blue
19 jacket, and had a knife.
20 So I continued my patrol, obviously using
21 that information, kind of keeping my eyes out. And
22 then at one point, there was another update saying
23 that the last known information was he was on Grand
24 heading south -- south.
25 As I turned back and started making my way, Examination of Jeff Livingston 258
1 Unit 714 said that he had spoken to the local gas
2 station, which was right across the street from where
3 the abandoned vehicle was located, and talked to the
4 clerk there and showed them a picture of somebody that
5 they believed to be involved.
6 And the clerk had confirmed that it was that
7 individual. 714 put out a name. I ended up hearing
8 Andrew Elifritz. Later, I found out his full name was
9 Jonathan Andrew Elifritz, who then an east car had
10 communicated over dispatch, "Yes, that's the same
11 individual that we had dealt with earlier with the
12 carjacking out of the East Precinct."
13 So at that point, now, we at least have an
14 idea of who it is, a pretty good description, six feet
15 tall, white male wearing a red and blue jacket with a
16 knife, heading southbound. So now my attention was --
17 I was heading south on MLK trying to divert myself
18 back up, heading north on Grand, to see if I could
19 cross paths with this individual.
20 And, at that point, I received an updated
21 communication that they thought he was at My Father's
22 Place bar, which is Washington and Kent.
23 Q Okay. Pretty near that area?
24 A In that area.
25 Q Yeah. And where was that in relation to Examination of Jeff Livingston 259
1 where you were?
2 A I was roughly five or six blocks south of
3 that location.
4 Q Okay.
5 A So --
6 Q So did you come up north?
7 A I did. Headed northbound. I ended up
8 pulling up -- when -- as I was driving, you could see
9 that there were multiple units doing area checks,
10 multiple units converged on My Father's Place when
11 that update came out.
12 So as I pulled up, I could see, I don't
13 know, between five and six officers just pulling up to
14 that location. As I was getting out of the vehicle,
15 someone already dispatched out -- no, the person at --
16 the bartender or somebody at My Father's Place said,
17 "He's not here. He already left."
18 I specifically asked over the radio, "Was
19 there any last known direction of travel?" They said
20 no, so everybody started to kind of get back into
21 their vehicle and continue doing their area check.
22 Q Then what happened?
23 A As I was getting back into my car, I look
24 over to my right and I see a citizen just waving us
25 over. He was almost to the point where he was in the Examination of Jeff Livingston 260
1 street, just waving. So I was basically on the
2 left-hand side of Grand and I just positioned my car,
3 drove over to the right-hand side, to the right lane,
4 blocked that lane and got out and ran over to where
5 the citizen was -- was waving us over to.
6 Q Okay. What did you see? Well, did you hear
7 the citizen actually say anything about what was
8 going on?
9 A I didn't. It was quite loud I believe.
10 And, like I said, approximately 7:30 at night, there
11 was quite a bit of traffic on Grand, plus the officers
12 that were all coming over, either running over or
13 drove over to the other side of the street.
14 It was -- it was quite loud right there. I
15 didn't hear what he said. He was just pointing inside
16 to a building.
17 Q Okay. Did you look in the building?
18 A I did. As I got out of my vehicle, I ran
19 over to the area that he was pointing. As I walked
20 over -- as I ran over to it, you could see inside
21 this -- it appeared to be a shelter.
22 The windows are quite large and it didn't
23 appear to have any blinds or at least they weren't
24 drawn, so you could see through the windows pretty --
25 pretty easily. Examination of Jeff Livingston 261
1 As I approached, I could see a man standing
2 in the middle of the room matching our description. A
3 red and blue jacket, white male, pretty big guy
4 holding a knife and yelling back towards the doorway
5 at us. At that point, it looked like we had multiple
6 officers in the doorway.
7 There were multiple officers in front of me
8 giving commands to this individual. I happened to be
9 behind them 'cause I got there a couple of seconds
10 late. At that point, I could visibly see and hear
11 them giving him commands to, "Drop the knife, drop the
12 knife," and he was not responding.
13 I saw the individual holding the knife about
14 waist high and then he was -- he was moving it around
15 and yelling back to the officers in the doorway, but I
16 couldn't hear what he was saying because I also
17 noticed that there were several -- I -- I think I
18 estimated 50 or so citizens that were inside this
19 shelter, running kind of erratically around.
20 Some were getting up against the north wall.
21 Some were just standing there. Some were trying to
22 get out the door as we were standing there. And so --
23 Q Okay. How far, if you have to estimate, was
24 this individual from the door where you and other
25 officers were standing? Examination of Jeff Livingston 262
1 A When we were at the doorway and where he was
2 positioned, it was about 30 feet inside the
3 building --
4 Q Okay.
5 A -- away from us.
6 Q All right. But you guys were at the door.
7 Well, let me ask this question: As you're seeing this
8 scene that you've just described, what kind of
9 concerns are you having or are occurring to you?
10 A Immediate concerns are the citizens that are
11 in place that are exposed to this individual with the
12 knife. So being that we're at the doorway, he's
13 30 feet in and there's about 50 people lining the
14 walls and behind him.
15 That, combined with what we've already
16 known, that he's allegedly carjacked somebody with a
17 knife and he's been -- been, you know, yelling,
18 screaming, not listening to any of our commands.
19 Trying to make sure that those people are
20 safe and for us to try to get in there and to at
21 least, you know, get them out as quickly as possible
22 or shield them from any potential threat that could
23 happen moving forward.
24 Q Okay. So what did you guys do to deal with
25 those concerns? Examination of Jeff Livingston 263
1 A So, initially, the -- the officers up front
2 kept giving verbal commands trying to get him to drop
3 the knife. He wouldn't comply.
4 I heard one of the officers standing in
5 front of me ask for a less lethal, which is, like, a
6 40-millimeter rubber bullet I guess designed to have,
7 like, an impact so that it'll hurt, but obviously it's
8 not a lethal option.
9 We -- he asked for someone to step up to
10 where they were at, so someone stepped up into a
11 forward position. They fired off a round. They hit
12 him about mid torso. I could see that. Didn't have
13 an effect on the individual. He continued to stand,
14 yelling, holding the knife, just continuously moving
15 around throughout the room.
16 I heard another officer say, "Let me get
17 another less lethal," because they're individually
18 loaded. So as soon as you fire, you have to take some
19 time to reload. So we had another person standing
20 behind, ready to go. They fired their second shot.
21 I couldn't see from where I was at, 'cause
22 the people in front, if it hit the individual or not,
23 the subject. But again, he continued to stand,
24 continued to yell, continued to hold the knife.
25 So, at that point, we were ready to move in Examination of Jeff Livingston 264
1 and at least advance inside so that we could cover the
2 individuals that were in there. He ended up moving
3 back on his own before we entered, back another about
4 ten feet and positioned himself almost towards the
5 back of the wall. So that gave us the ability to move
6 in that ten feet.
7 And officers that were behind that front
8 line were able to funnel in and start basically
9 creating a wall between us and the citizens and that
10 were on that north wall. So myself, Officer Ferguson
11 and a couple other officers -- I don't remember who
12 they were.
13 We went down the -- the north side of the
14 wall, so now we were angled almost at a 90-degree,
15 facing the individual over in the corner as he
16 continued to yell back at us.
17 Q Okay. And was your focus primarily on the
18 individual with the knife or on the citizens you've
19 described that were in that back corner and along the
20 wall?
21 A Initially, when we're entering I'm trying to
22 keep my eyes on the subject because I don't know what
23 he's going to do with the knife. I don't know his
24 intentions. So as we flanked around, getting in
25 position between us -- between the threat and the Examination of Jeff Livingston 265
1 citizens, I was concerned for -- for -- for our safety
2 and what he was going to do.
3 As soon as I realized the position I was in
4 and that I had the individuals behind me, I also
5 quickly noted that there was a -- on the section from
6 us, there was about a three-foot barrier of cabinets
7 or something that was there that give us a little bit
8 more time, a little bit more reaction time in case
9 something happened.
10 I was then starting to pay attention to who
11 was behind me. The individuals and citizens over here
12 were running. They were screaming. Some were
13 standing there wanting to watch.
14 Some were trying to tuck back into these
15 closet doors. Some were just hanging out. So we were
16 trying to control that situation as we were also
17 trying to stay focused on this individual.
18 And at that point, I started directing
19 people back into the bathrooms, back into closets and
20 to get back as quickly as possible.
21 Q Okay. Then what happened?
22 A As I was diverting my attention trying to
23 figure out who was still running behind me and who was
24 moving, giving commands to some of the citizens to
25 either get back or get back inside, I looked -- I Examination of Jeff Livingston 266
1 looked back, I don't know, approximately five seconds.
2 And as I looked back towards the subject, I
3 saw the subject move rapidly towards the officers that
4 were initially giving him the verbal commands and that
5 were actually visibly pointed at him. It -- it
6 appeared that he started running in a rapid, like
7 quick pace.
8 I wouldn't say sprint, but in a quick pace,
9 closing ground on him -- on them pretty fast. And I
10 heard the gunshots go off.
11 Q Okay. Did you have your gun drawn at any
12 point in this encounter?
13 A I did when we had first initially entered.
14 Tactically, we went in, and like I said, we funneled
15 to the -- to the left to create that wall.
16 And when I realized that there was a little
17 bit of a barrier and a little bit of time, I ended up
18 holstering my weapon for safety reasons because of all
19 the people that were running behind me and everything
20 that was behind.
21 I holstered by weapon and was basically
22 telling everybody, you know, where to go. And then
23 when the shots went off and he went down, I quickly
24 drew my weapon and positioned myself a little bit
25 better away from whatever that barrier was so I could Examination of Jeff Livingston 267
1 see, 'cause I saw that he went -- he fell and went
2 down, so I positioned myself a little bit better so I
3 could see where he was at.
4 Q Okay. And what he was doing?
5 A And what he was doing.
6 Q Okay.
7 A Yeah.
8 Q What did you see?
9 A It appeared that he was down. I could see
10 blood. The -- the -- one of the initial officers, I
11 think it was Officer Nutting, was yelling, you know,
12 "Put your guns down, put your guns down. We need to
13 fire another less-lethal round. We don't know his
14 condition yet." So -- and we couldn't see where the
15 knife was.
16 We couldn't see where the weapon was, so we
17 didn't want to obviously advance on him until -- 'til
18 further notice. So when everyone put their -- you
19 know, put their guns down at low ready and one of the
20 individuals that operates the less lethal, they shot
21 it. It hit him, I believe, like, upper torso, upper
22 back.
23 There was no movement. The sergeant,
24 Sergeant Axthelm, said, "Okay, now we need to try to
25 provide medical. We need to approach the individual." Examination of Jeff Livingston 268
1 So everyone continued to have their guns at a low
2 ready. The sergeant and another officer made --
3 advanced toward the individual.
4 They rolled him over to see if there was any
5 response. As they rolled over, I could see the knife
6 was not under him, but close enough in proximity where
7 he was able to grab it. It was next to the -- next to
8 his body. At that point, I couldn't hear what they
9 said.
10 They just ended up rolling him back over.
11 And then at that point, everyone said, "Okay. Let's
12 holster up. Let's holster up." And -- and then we
13 started debriefing what was -- what just happened.
14 Q Okay. And did that involve getting the
15 remaining citizens evacuated out of the building?
16 A It did. At that point, once some of the
17 shooters -- the individuals that fired their weapons,
18 they were debriefing for a moment.
19 Myself, Officer Ferguson and another officer
20 that were on that north wall immediately started from
21 the northeast corner, which was the bathroom, and
22 started clearing those rooms and getting everybody out
23 of there as quickly as possible.
24 And if remember correctly, there was four
25 rooms all the way down and we just made our way Examination of Jeff Livingston 269
1 strategically through each one to make sure we didn't
2 miss anyone, got them out and had them stage out front
3 around the corner.
4 Q Okay. You said that you looked back and you
5 saw the individual kind of rapidly moving in almost a
6 run, closing distance, you said, toward the officers.
7 Do you have a sense of how far he was from the
8 officers when you heard the gunshots?
9 A I would estimate that when we moved in to
10 his new position, we were back to about 20 feet
11 between those officers and him. And when he closed
12 that gap, I would say it's -- it was about ten feet,
13 roughly.
14 MR. JACKSON: Okay. Do you folks have any
15 questions?
16 A GRAND JUROR: Ten feet -- so about how far
17 away was he when the non-lethal, the first -- the
18 non-lethal, they were the first shots fired?
19 THE WITNESS: Correct. When we were in the
20 doorway?
21 A GRAND JUROR: Yeah.
22 THE WITNESS: Correct.
23 A GRAND JUROR: And he was how far?
24 THE WITNESS: About 30 feet.
25 A GRAND JUROR: 30 feet? Examination of Jeff Livingston 270
1 THE WITNESS: Yeah.
2 A GRAND JUROR: And so did -- did the lethal
3 rounds -- when -- I know there were several guns and
4 several different people with the guns, but the first
5 lethal shots, how -- how -- how much time was it,
6 seconds, minutes, between the non-lethal and then the
7 lethal shots being fired? Or was it simultaneous
8 or --
9 THE WITNESS: No, it wasn't simultaneous
10 because we had to have that time to move in --
11 A GRAND JUROR: Mm-hmm.
12 THE WITNESS: And officers were getting
13 around to the other side. So from the first
14 less-lethal shot -- or I guess I should say from the
15 last less-lethal shot to when he advanced towards
16 those officers, I would say it was approximately four
17 minutes, three to four minutes.
18 A GRAND JUROR: From the first non-lethal to
19 the --
20 THE WITNESS: From the last non-lethal
21 'cause there was two shots that I heard at the
22 doorway.
23 A GRAND JUROR: Mm-hmm.
24 THE WITNESS: And then when we saw no
25 reaction and nothing happen -- Examination of Jeff Livingston 271
1 A GRAND JUROR: Mm-hmm.
2 THE WITNESS: -- and he moved himself back
3 into the room, the first layer of officers moved in
4 and then the second layer funneled around and created
5 that wall.
6 A GRAND JUROR: Right.
7 THE WITNESS: And, at that point, the
8 officers that had initial eye contact and was verbally
9 giving commands continued to say, "Drop the knife,
10 drop the knife."
11 He continued to yell and continued to have
12 the knife in his hand. And then in that time frame is
13 when he decided to advance towards those officers.
14 And during that advance is when the less -- is when
15 the lethal options --
16 A GRAND JUROR: Mm-hmm.
17 THE WITNESS: -- occurred. Does that answer
18 your question?
19 A GRAND JUROR: Yeah. Four minutes.
20 MR. JACKSON: Okay. Any other questions?
21 All right. Seeing none.
22 Thank you very much.
23 THE WITNESS: Thank you guys.
24 A GRAND JUROR: Thank you.
25 MR. JACKSON: Come on in, sir. Examination of Timothy Ferguson 272
1 If you could stand right here and raise your
2 right hand.
3 TIMOTHY FERGUSON
4 Was thereupon called as a witness; and, having been
5 first duly sworn, was examined and testified as follows:
6 MR. JACKSON: Okay. You can have a seat.
7 Could you please state and spell your name.
8 THE WITNESS: It's Timothy Ferguson,
9 F-e-r-g-u-s-o-n.
10 EXAMINATION
11 BY MR. JACKSON:
12 Q All right. How are you employed?
13 A City of Portland as a Portland Police
14 officer.
15 Q How long you been a police officer?
16 A Six years.
17 Q And what have been your assignments or
18 duties during that time?
19 A During that time, I am a patrol officer. I
20 am also a detached enhanced crisis intervention
21 trained officer and a FTO, which is a field training
22 officer, so acting as a coach at the time.
23 Q Okay. Did you have a trainee with you?
24 A I did.
25 Q Okay. How long had you been with the Examination of Timothy Ferguson 273
1 trainee?
2 A For that particular day or --
3 Q Overall. Is there --
4 A Overall?
5 Q -- just one field training officer --
6 A Right. So --
7 Q -- assigned to a trainee?
8 A I think up until that point, it had been
9 maybe four weeks. Three or four weeks with that
10 trainee.
11 Q Okay. And were you in uniform, a marked
12 patrol car?
13 A Yes. I was dressed as I am now, uniformed,
14 displaying a badge in a marked patrol car.
15 Q I guess I should back up. But we're talking
16 about April 7th of 2018. Were you working that day?
17 A I was.
18 Q Okay. And you were in uniform in a marked
19 patrol car?
20 A I was.
21 Q Okay. Could you describe for us what your
22 shift was.
23 A As I work the afternoon shift, so we work
24 from -- trying to translate from military time, so
25 from 4:00 p.m. to 2:00 a.m. in the morning. I Examination of Timothy Ferguson 274
1 primarily work downtown on the west side of the river.
2 That's my district, so that's my area of operation.
3 Q Okay. On April 7th of 2018, did you end up
4 responding to a call on the east side of the river
5 near MLK and Stark?
6 A I did.
7 Q And why did you go across the river to
8 that call?
9 A So we heard a call come out of a crash of a
10 stolen vehicle where the suspect was walking away
11 eastbound and so I directed my trainee to drive onto
12 the east side of the river so we could help with the
13 area check --
14 Q Okay.
15 A -- for the suspect.
16 Q Was it your understanding that an area check
17 was going to be necessary?
18 A Yes. Because the updates that continued to
19 come was that the suspect and the vehicle were
20 involved in east precinct in a carjacking earlier in
21 the day. And so -- and there were subsequent --
22 subsequently more updates.
23 Q Okay.
24 A So that was the primary reason we started
25 heading across the river. Examination of Timothy Ferguson 275
1 Q What were the updates -- the further updates
2 you received?
3 A The further updates, so as we got to the
4 east side where -- the area we were checking, there
5 was an update that the suspect in the vehicle were
6 also involved in a -- a road rage incident in north
7 precinct where a gun was possibly seen on video.
8 There was another update that the video
9 actually didn't show a gun, but maybe purported to
10 have a gun. There was -- I think the other updates
11 were -- so at this point, we're still area checking.
12 Q Where were you performing your area check?
13 A So the initial direction was that the
14 suspect had headed east from MLK and Stark. And so I
15 decided that we would go long. And so we went about
16 six blocks east of that location and then started area
17 checking coming back.
18 And so, hopefully, the person hadn't gotten
19 far enough away that we could catch them as they were,
20 you know, further away at that time, just given the
21 time frame.
22 Q Okay. Did you have a description of the
23 person you were looking for?
24 A So the description for that initially was a
25 white male about six foot, wearing blue jeans, no Examination of Timothy Ferguson 276
1 shirt, heavily tattooed and about the 280-pound range
2 or something along those lines.
3 Q So that's what you were looking for?
4 A That's what we were looking for, yeah.
5 Q Okay. What happened while you were doing
6 the area check?
7 A So while we were doing the area check,
8 another call came out at the Jacksons, which is a
9 little bit south of MLK and Stark.
10 And that was a suspect who was wearing,
11 like, a blue and red jacket and armed with a knife,
12 possibly, high, who was threatening or scaring
13 customers or employees around the Jacksons, which is,
14 like, a convenience store, gas station-type place.
15 Q Okay. And is that located close proximity
16 to where the abandoned vehicle was?
17 A Yes, a little bit south. I didn't put it
18 together at the time. I don't work on the east side,
19 so I didn't realize how close that actually was, so --
20 Q Do you know now?
21 A I do now -- I do know now, yeah.
22 Q Okay. How close is it?
23 A It's within a few blocks.
24 Q Okay.
25 A It's very close. Examination of Timothy Ferguson 277
1 Q So what did you do when you heard that call
2 from the Jacksons come out?
3 A So some officers were diverted to that call.
4 Like I said, I didn't initially put anything together
5 that maybe it was just an unrelated call.
6 And then a update came out that -- I think
7 an officer had responded and confirmed that the
8 suspect at that Jacksons call was the same suspect for
9 the call that we were on. So I directed my trainee,
10 Officer Livingston, to head towards the Jacksons and I
11 helped guide her in that direction.
12 Q Okay. And just for clarity, since we've
13 heard from a couple of Officer Livingstons --
14 A Yes.
15 Q -- was it Jeff Livingston?
16 A No.
17 Q Okay.
18 A Mine is -- mine was Ariel Livingston.
19 Q Okay. And is Jeff Livingston also a
20 trainee?
21 A He is also a trainee, yes.
22 Q Okay.
23 A At the same time.
24 Q Okay. But you were not with Officer
25 Jeff Livingston? Examination of Timothy Ferguson 278
1 A I was with -- no.
2 Q Okay. All right.
3 A Yeah, I could be (indiscernible).
4 Q Okay. So you guys come into the area and
5 then what happened?
6 A So we got to the area about the Jacksons.
7 Actually, before we got to the Jacksons, there was an
8 update from one of the -- I believe an AMR unit that
9 said they had seen somebody with a knife up to their
10 throat.
11 So as we got to the Jacksons, there was
12 subsequent updates that came out relatively in quick
13 succession that people were out with the suspect up
14 the street. I could see the lights north on Southeast
15 Grand.
16 And then there was an update that there was
17 possibly a knife to somebody else's throat, to
18 someone's throat. That was not from the medics. That
19 was from an officer directly. So I directed
20 Officer Livingston to drive north up Southeast Grand
21 in a rapid -- rapidly --
22 Q Mm-hmm.
23 A -- towards where the lights were at. And so
24 we headed to that location.
25 Q Okay. Then what happened? Examination of Timothy Ferguson 279
1 A So while we're driving, that's when the
2 updates are coming out that they're out with the
3 suspect; that there's -- possibly he's holding a knife
4 a someone's throat. The vehicle -- so we came to a
5 stop just a little bit short of the location in front
6 of a bar called -- I believe it's called My Father's
7 Place.
8 Attempted to exit the vehicle, but the
9 vehicle wasn't to a complete stop yet, so the door
10 kind of came back and bit me as I was trying to get
11 out of the vehicle. But once I picked up the things I
12 had dropped, I went to the door of the -- I believe
13 it's the Cityteam Ministries. And I don't have the
14 address for that (indiscernible).
15 Q Mm-hmm.
16 A Then that was the location.
17 Q Why was -- why did you go to the Cityteam
18 Ministries?
19 A So the update is that that's where -- the
20 area where the -- the suspect was currently located.
21 And when I got out of the vehicle, there was a few
22 officers in the doorway of the Cityteam Ministries.
23 Q Okay. They were already -- there were other
24 officers already there?
25 A Right. They're, like, side to side in a -- Examination of Timothy Ferguson 280
1 in the doorway.
2 Q Okay. Did you go up and look into the
3 building?
4 A I did. So I was the second row behind the
5 row of officers who was in the -- in the forefront of
6 the doorway.
7 Q Okay. What did you see in there?
8 A So looking in, I had never been inside
9 Cityteam Ministries before, so the room is -- it's a
10 fairly small room. It's in the shape of, like, a
11 rectangle. In the center of the room, there's --
12 there's, like, a low wall, probably about three to
13 four foot high in the shape of a square.
14 And I understand that to be -- I saw that to
15 be, like, a staircase that goes down. There were some
16 doorways in the back. There's some pillars in there.
17 There was a bunch of chairs that were turned over.
18 In the first third of the room, I would say,
19 which would be towards the west, was a male suspect
20 who matched the description of both calls, actually.
21 So it was a white male about six foot tall, looked to
22 be in the upper 200 pounds.
23 But he also had, like, a jacket on that was
24 kind of blue and red, which matched the description of
25 what had come out on the Jacksons call, which was -- Examination of Timothy Ferguson 281
1 turns out to be related. So he's in the upper
2 one-third of the room.
3 And then there -- there's easily 20- to
4 30-plus people, citizens in the room as well. And
5 they're all kind of herded into the -- what would be
6 the northeast corner. So as I'm looking at the room,
7 there's citizens kind of crowding into the corner.
8 The best way to describe that, what the
9 citizens did, just kind of looked like when people
10 cram into an elevator, when you've got a bunch of
11 bodies just crammed together. The citizens were
12 just -- they just appeared to be all crammed, just as
13 close as they could get into the corner.
14 There was chairs turned over. And people --
15 some people were attempting to come down what would be
16 the -- this wall, so the north wall of the room, like,
17 in our direction.
18 So the -- the suspect is in the front of the
19 room. He's got the blue-and-red jacket on. He's
20 bleeding about the neck. He has a knife in his --
21 what I believe to be his right hand. And he's holding
22 it at about this chest height right here, so lower
23 than his neck, like, in the upper chest area.
24 Officers are giving him direction to drop
25 the knife. He's yelling something back, but I can't Examination of Timothy Ferguson 282
1 understand what he's -- what he's saying. Couldn't
2 understand what he's saying.
3 Q Mm-hmm.
4 A Yeah, he looked -- he's in a very agitated
5 state. His fists were clenched. The knife -- the
6 hand that was holding the knife was clenched. His jaw
7 was clenched. He looks very agitated, very angry,
8 just very aggressive stance.
9 Q Okay. What happened then?
10 A So officers are giving him commands.
11 Somebody yelled, "Beanbag, beanbag," or "Bag him." So
12 we used to have a less lethal -- it was a less-lethal
13 shotgun that shot a beanbag. And we had just gotten
14 rid of those about two to three weeks prior and gone
15 to a 40-millimeter less-lethal system.
16 So when somebody says, "Bag him, bag him,"
17 or "Beanbag," they're referring to the less-lethal
18 system. So it's just something in our vernacular that
19 we say that would now apply towards the 40 millimeter
20 less-lethal operating system.
21 So somebody was directing the less-lethal
22 operator at that time -- there was just one -- to --
23 to use his less-lethal device. That was deployed.
24 With the previous shotguns, less-lethal shotguns, you
25 could fire multiple rounds in succession. Examination of Timothy Ferguson 283
1 With the new one, it's a breach-operated
2 weapon system, so you actually have to break it open
3 in half like a -- like one of the old-time shotguns,
4 you know. Remove the spent round and load the new
5 round in, so there's some -- some downtime on there.
6 So that operator was trying to load a new one in. The
7 first round wasn't effective.
8 Q Did you see whether it hit?
9 A I didn't see whether the round hit or not.
10 My understanding was that it did, but I didn't
11 physically see it.
12 Q Okay. But you know that it was deployed?
13 A It was deployed, yeah.
14 Q And is that from the door or were they
15 inside the door or back?
16 A They're -- they're still in the door at this
17 point.
18 Q Okay.
19 A He's still in the first, I'd say, like,
20 one-third of the room. It's tough to gauge distance.
21 It's not a very big room. He was, I believe, forward
22 of the -- the box-like structure, the square
23 structure.
24 There was calls for another less-lethal
25 operator. We ideally like to have, with the new Examination of Timothy Ferguson 284
1 system, you know, more than one, so that during that
2 downtime, that other less-lethal operator can deploy
3 if need be.
4 So a second less-lethal operator got there,
5 kind of moved over and told people to kind of make way
6 so that he could get into position so that he could
7 use the less lethal -- his less-lethal 40 millimeter.
8 Q Did you hear additional shots going off?
9 A I did hear additional 40-millimeter rounds,
10 yes.
11 Q Okay.
12 A It's a very distinctive sound. Doesn't
13 sound like a -- a normal firearm.
14 Q Okay. And did you see whether any of those
15 projectiles hit the subject?
16 A I didn't physically see 'cause I had moved
17 out of the way, so that he could get up there. But
18 when I got back up to a position where I could see
19 back in, it looked like the subject had moved from the
20 first third of the room, like, back.
21 And so if this is the north wall as I'm
22 facing, he kind of went, like, towards the southeast,
23 so he's, like, southeast of the -- the square-like
24 structure in the room.
25 Q Okay. Examination of Timothy Ferguson 285
1 A Towards the back. But he's pacing, so he's
2 not standing still.
3 Q Did you, at any point, see him moving in the
4 direction of all those citizens you described kind of
5 packed into that --
6 A So he was --
7 Q -- that northeast corner?
8 A He looked to be, like, moving just
9 erratically in the back section. Those citizens were
10 -- the ones that weren't trying to get down the wall
11 on this side were -- were really packing into the
12 corner.
13 There was doors back there. And not being
14 familiar with it, I was wondering why -- why they
15 weren't just going out the doors. And I subsequently
16 learned that they're not methods of egress; that
17 they're just restrooms and stuff.
18 So they looked to be in distress. They were
19 just kind of packing themselves in. It looked at at
20 one point, somebody had thrown a chair or were pushing
21 chairs as if to -- to put, like, a barrier between
22 themselves and the subject.
23 Q What kind of concerns were going through
24 your mind as you're watching this unfolding in this
25 room? Examination of Timothy Ferguson 286
1 A So my primary concerns are for the people
2 who are in the corner, the citizens who are in the
3 room. So it's not a very big room. I'm very familiar
4 working downtown with stab wounds and I've been on
5 numerous calls of stabbings, fatal, nonfatal, and I'm
6 very aware of the damage that a knife can cause.
7 And so within a few quick steps -- I mean,
8 we're talking about one to two seconds -- he could
9 have been in the area where the -- where the other
10 citizens are, the ones that are trying to get away.
11 And then once he is in that area, our -- our options
12 are greatly reduced now.
13 Q What do you mean by that?
14 A So I guess the best way to describe this as,
15 we -- we don't have any tools that would be a viable
16 option anymore.
17 So if you have a suspect who's -- who's in
18 front of numerous citizens or has taken a citizen and
19 grabbed him for a hostage or something like that, we
20 no longer have the -- the means to use any of our
21 less-lethal tools or lethal tools.
22 Q You're not going to shoot --
23 A We're not going to fire into -- right.
24 If -- if he was to put a knife or he was to start
25 actively using a knife on a citizen, for us to -- to Examination of Timothy Ferguson 287
1 engage him with -- with a firearm would be very, very
2 difficult, I'd say. Not difficult, but just something
3 that we probably are -- are not going to do.
4 Q Okay.
5 A Just 'cause he's a moving target, he's
6 got -- he's got citizens all around him. If a round
7 was to -- to miss and strike a citizen, then -- so my
8 primary concern is if he gets anywhere near them, then
9 we're -- we're really in a bad spot.
10 Q Okay. At some point, did you move into
11 the room?
12 A At some point, the first row of officers
13 moved into the room 'cause he had gone towards the
14 back of the room. And then I came in to the room
15 as well.
16 Q And given -- well, did you -- you said that
17 you saw the knife in his hand.
18 A Right.
19 Q Do you remember what it looked like?
20 A I couldn't see the -- handle of the knife.
21 It's -- it was in his hand. The knife looked to be,
22 what I'd say to be, like, between three to four inches
23 long. It's difficult to see when it's moving around,
24 but -- but, I mean, from the distance I saw, I would
25 calculate this to be about three to four inches. Examination of Timothy Ferguson 288
1 A GRAND JUROR: You mean the blade or just
2 the --
3 THE WITNESS: The -- the blade.
4 A GRAND JUROR: -- handle and the blade?
5 THE WITNESS: The blade, yeah. So the --
6 A GRAND JUROR: Hmm.
7 THE WITNESS: -- the part that's protruding
8 from the -- from the palm.
9 A GRAND JUROR: Mm-hmm.
10 THE WITNESS: Yeah.
11 BY MR. JACKSON:
12 Q Look -- looked to you to be about three to
13 four inches?
14 A Three -- somewhere between three to
15 four inches.
16 Q Okay. And how, if at all, did size of the
17 blade play into your calculation of the risk that this
18 person posed to those citizens you just described?
19 A Ah, so for me, the -- the size of the blade
20 poses the same risk as if it's a larger blade, if it's
21 a five- or six-inch blade. I mean, the -- the
22 difference is -- is negligible. It's not any less
23 lethal or dangerous.
24 For example, I don't carry a backup weapon,
25 so if I'm ever in a struggle for my primary duty Examination of Timothy Ferguson 289
1 weapon, which is on my hip, I carry a blade mid-center
2 to my body which has a two-inch blade.
3 And I'm basically confident and banking my
4 life that -- that this two-inch blade would be enough
5 to -- to save my life if need be if I was in a
6 struggle to keep my gun from going into someone else's
7 hands. So knowing that I am, essentially, banking my
8 life on a two-inch blade, I'm not going to discount a
9 three- to four-inch blade.
10 And, again, having worked downtown and
11 seeing what box cutters can do and pieces of glass and
12 similarly small to medium-size blades, the mortality
13 is still exactly the same.
14 Q Okay.
15 A Yeah.
16 Q So when you moved in, you said that you kind
17 of fanned around to the northern part of the room?
18 A Yeah. So we moved in and it was kind of
19 like a half-moon formation that we kind of just
20 organically took. And I think the idea is -- at least
21 in my head, is that we have officers who are directly
22 in front of the suspect.
23 And the other officers were kind of going in
24 this direction so that we could put ourselves in a
25 position between the -- the citizens who were in the Examination of Timothy Ferguson 290
1 back of the room and the suspect in case he tries to
2 go this way, at least we'll have a better way to
3 intervene.
4 Q To prevent the scenario you just described?
5 A To -- right. To prevent him from going from
6 this part of the room to where everybody is.
7 Q Okay.
8 A So we kind of formed, like, a half moon.
9 That's the best way to describe it. I don't know what
10 shape that would be.
11 Q What happened next?
12 A So, initially, when I came into the room, I
13 had my duty weapon out and I determined that we had
14 enough resources on scene. There was -- there was
15 long guns, there was less-lethal 40 millimeters, so my
16 primary focus shifted to how I can effectively get the
17 people, the citizens out of the room.
18 And so there was a handful of officers who
19 were focused on the citizens and we were just trying
20 to direct them to stay away and get in the corner.
21 They were yelling back at us that, "There's nowhere to
22 go, there's nowhere to go."
23 There was people, like, cramming into the
24 restrooms. They had a man and a woman's -- a male and
25 a female restroom in the back corner. So I was trying Examination of Timothy Ferguson 291
1 to figure out how to get them down the wall and out to
2 safety without getting in the way of us and there
3 really wasn't a whole lot of space. So that's kind of
4 what my focus was --
5 Q Okay.
6 A -- at that point.
7 Q And where was the suspect with the knife?
8 A The suspect with the knife was still -- so
9 if this is the square in the center, he's still in
10 this portion of the room and he's -- he's kind of
11 going back and forth around. He's moving.
12 So he's still being directed to drop the
13 knife. He's -- he's yelling things in return. And
14 there was just a lot of -- a lot of noise in there, so
15 I wasn't able to understand what he was saying.
16 At this point, the canine was there. The
17 citizens were all yelling things, like, "Where do we
18 go? How do" -- you know, so I wasn't able to hear
19 what he was saying.
20 Q At some point, did you see him move in the
21 direction of the officers?
22 A Yeah. So I was kind of -- I was watching
23 him and then I was watching the citizens and just kind
24 of keeping on eye on both things. There was just a
25 real fast, sudden movement from him coming from Examination of Timothy Ferguson 292
1 basically this corner towards the west side where the
2 officers were (indiscernible).
3 Q Did you turn and look at what was happening?
4 A I did, but at the point where this -- there
5 was pillars and there was things in the way. He had
6 already gotten past the point where I could really see
7 what and where he was, so I'd lost visual sight
8 of him.
9 Q Okay.
10 A And there -- and I was behind the first row
11 of officers. I was behind officers, so I didn't have
12 a clear line of vision to see him anymore.
13 Q Okay. Did you hear gunshots?
14 A I did.
15 Q Do you have any sense of what types of
16 weapons you heard or how many times or anything like
17 that?
18 A It just sounded like -- it sounded like
19 multiple weapons all firing simultaneously. It was
20 just a quick burst and that was it. There wasn't a --
21 a protracted firing. It was just -- sounded like
22 simultaneous bursts going off, yeah, simultaneously,
23 would be the word.
24 Q Okay. And then what did you do after the
25 gunshots ended? Examination of Timothy Ferguson 293
1 A So the gunshots ended. We were waiting to
2 get the word that we can move forward because we can't
3 see. Due to the square little wall and the -- the
4 pillars, we can no longer see the suspect.
5 So we were given the okay. Someone said
6 that we were okay to move forward. So, at that point,
7 I moved forward with several other officers and I was
8 just telling people to, "Get out, get out, get out."
9 There was, like, another low wall directly
10 centered in the back of the room, like, a really low
11 wall. And there was a gentleman who I don't know at
12 what point he got there, but he was on the other side
13 of the wall.
14 So I was directing him to come over the
15 wall. At first, he didn't, so then I was concerned
16 that maybe he was in a wheelchair or he wasn't
17 physically capable of coming over the wall, so I was
18 trying to figure out how I can get to him without
19 placing myself in a situation where firearms are
20 pointed at me.
21 He was able to get over the wall. Then
22 another officer and I started getting citizens out of
23 the restrooms, out of the little rooms in the back and
24 just directing them to -- to leave, to get out as fast
25 that they could, which they did. So we were able to Examination of Timothy Ferguson 294
1 clear the rooms in the back, get all the citizens down
2 the wall and then out the door.
3 MR. JACKSON: Okay. Do you folks have any
4 questions?
5 A GRAND JUROR: Yeah. Did you ever see him
6 harm himself, John Elifritz? Did he --
7 THE WITNESS: Harm himself?
8 A GRAND JUROR: Did he stab himself in the
9 neck or --
10 THE WITNESS: He was -- he was making
11 motions when we first got there. He was -- he had the
12 knife here. There was blood about his neck, but I
13 couldn't tell if he was actually stabbing himself
14 or --
15 A GRAND JUROR: Yeah.
16 THE WITNESS: Or what he was doing, so --
17 A GRAND JUROR: Well, when he had -- you
18 said before he had the knife up here.
19 THE WITNESS: The knife up here, yeah.
20 A GRAND JUROR: Was the blade towards him
21 or out?
22 THE WITNESS: It was -- well, it was -- it
23 was alternating, so at one point, it was, like,
24 towards himself. At other points, it was down here.
25 A GRAND JUROR: Yeah. Examination of Timothy Ferguson 295
1 THE WITNESS: It was just -- it was
2 constantly just kind of moving around between being in
3 front of him.
4 A GRAND JUROR: Hmm.
5 THE WITNESS: Yeah, so --
6 MR. JACKSON: Any other questions?
7 A GRAND JUROR: Oh, I have one more.
8 MR. JACKSON: Sure. Go ahead.
9 A GRAND JUROR: I just want to -- so when
10 you talked about the -- the non-lethal, the two --
11 THE WITNESS: Mm-hmm.
12 A GRAND JUROR: -- non-lethal officers, are
13 they the ones with the red -- they have a red --
14 something red on their uniform to --
15 THE WITNESS: It -- it's like --
16 A GRAND JUROR: -- distinguish them?
17 THE WITNESS: -- a white orange -- orange --
18 the --
19 A GRAND JUROR: So you can tell who they are
20 by that? Is that --
21 THE WITNESS: Yes.
22 A GRAND JUROR: That was my question.
23 THE WITNESS: Yeah. So it's a strap that
24 holds the -- the less lethal on you.
25 A GRAND JUROR: Okay. Examination of Dennis Wilcox 296
1 THE WITNESS: And it's just, like, a really,
2 really intense neon orange color.
3 A GRAND JUROR: Okay.
4 THE WITNESS: It's very visible. Yeah.
5 MR. JACKSON: All right. Any other
6 questions? Okay. That's it.
7 Thank you, Officer.
8 A GRAND JUROR: Thank you.
9 MR. REES: Officer, can you please raise
10 your right hand?
11 THE WITNESS: Yes.
12 DENNIS WILCOX
13 Was thereupon called as a witness; and, having been
14 first duly sworn, was examined and testified as follows:
15 MR. REES: When you're ready, would you
16 please state your first and last name and spell it?
17 THE WITNESS: Dennis Wilcox, D-e-n-n-i-s,
18 W-i-l-c-o-x.
19 EXAMINATION
20 BY MR. REES:
21 Q And, sir, if you'd please state your
22 occupation.
23 A Portland Police officer.
24 Q How long you been a police officer?
25 A 27 years. Examination of Dennis Wilcox 297
1 Q And were you on scene on April 7th during
2 the -- the shooting that occurred at Cityteam
3 Ministries?
4 A Yes, I was inside the room.
5 Q All right. And prior to going inside that
6 location during your shift, did you have information
7 about the suspect at that location?
8 A Yes.
9 Q What -- can you tell the grand jury
10 generally what you understood?
11 A Not too long -- my shift starts at 4:00 in
12 the afternoon. Not too long after shift had started,
13 got information from east precinct about a carjacking
14 that occurred there of a silver SUV. They sent over
15 the MPCs, our mobile computers in our cars.
16 They put out -- information out and then
17 later in the evening, that SUV crashed about MLK and
18 Stark and the suspect ran on foot. And more
19 information was given at that time. They got --
20 first, it was a hit and run.
21 Then we saw and got the plate. They matched
22 the description of the carjacking car, so that
23 information came out. And also there's another
24 incident in north precinct involving the same suspect,
25 same vehicle that initially said that they had video Examination of Dennis Wilcox 298
1 of him, like, there was a road rage incident or
2 something, had video of him pointing a gun at
3 somebody.
4 And then it got revised to maybe just
5 reaching for something, but there was video of him
6 doing something at north precinct, also in the same
7 vehicle.
8 Q Okay. And as the day progressed, did you
9 receive further information, do you recall?
10 A You mean after the crash?
11 Q Yeah. So, I mean, you --
12 A Okay.
13 Q -- you heard about the crash, I assume, and
14 then --
15 A Yeah.
16 Q -- you heard about some other situations --
17 A Yeah.
18 Q -- in the vicinity?
19 A Right. I -- I tell dispatch on call. I was
20 working down in southeast. Sellwood area is my
21 district, you know, several miles away. But
22 self-dispatched to go to it as more information came
23 out and what was involved, that he'd taken off
24 on foot.
25 I knew a canine was on the way, so I -- I Examination of Dennis Wilcox 299
1 went north to assist with the perimeter and the -- the
2 area check for the suspect ran from the stolen car.
3 Description was male, white, anywhere from 20 to 40,
4 at the time with no shirt on, had tattoos. And he ran
5 eastbound from MLK and Stark area.
6 So I started doing area checks once I got up
7 there -- it was quite a ways away -- to the east along
8 Seventh Avenue. You know, a canine would just have us
9 do an area check while everybody's looking for him.
10 Information came out while we were doing
11 area check the Jacksons Shell station, located at MLK
12 and Washington or so, got called about a suspect or a
13 subject standing in their doorway holding a knife to
14 his throat. And so we kind of started doing --
15 converging into that area for an area check.
16 He'd left. Information came out after that
17 from -- I think AMR called in and said they were
18 flagged down and told that there was a subject holding
19 a knife to the throat of another person at a shelter
20 around MLK and Stark area, Grand and Stark area. And
21 so officers went there.
22 We were still continuing to do an area
23 check. It was broadcast that he had already left the
24 shelter and so -- and last seen southbound, so we went
25 kind of south again looking around Jacksons, not as Examination of Dennis Wilcox 300
1 down south as Jacksons, doing area check. Then it was
2 broadcast that he was at the shelter, I think 526
3 Southeast Grand. And officers converged there.
4 I got there. There was already several
5 officers up at the entrance to the door. I parked a
6 block and a half or so away.
7 And as I was approaching the door and
8 en route, there was broadcast there was -- there was
9 hostages, possible hostage situation. Dispatcher had
10 to clarify that and just basically said, "Hold there.
11 It's an urgent situation."
12 So by the time I was approaching the door on
13 foot -- I had to walk quite a ways or run quite a
14 ways -- there was officers at the entryway outside of
15 the -- the room. Less lethal was being deployed.
16 Commands were being given. Warnings were being given.
17 I got to the -- to the doorway behind the
18 officers and shortly after that, the decision made to
19 go inside. I could see, looking through, that there
20 were several citizens inside, like, 20 to 30 citizens
21 inside the big room. I could see the suspect, at
22 times holding the knife to his throat.
23 It looked like he'd already cut his throat
24 and then dropped the knife down. There were citizens
25 behind him running around. And he kept -- the room, Examination of Dennis Wilcox 301
1 the center of the room, there's a stairway that goes
2 to the basement with a -- like, a three-foot
3 (indiscernible) desk. About this size railing that
4 goes around the stairway. And then there's pillars,
5 support pillars in the center of the room.
6 And he was kind of ducking behind the
7 support pillars. The majority of the people were on
8 the left side of the room. He was kind of ducking
9 back out of sight, probably to avoid the less-lethal
10 strikes. And then coming back, kind of peeking around
11 and stuff.
12 So the people who were inside the room were
13 in a very hazardous situation. He'd already
14 demonstrated from information we had that he might
15 have been holding a knife to another person's throat
16 and holding a knife to his own throat. I could still
17 see the knife in his hand while he was doing this.
18 Q And so if I could interrupt.
19 A Yes.
20 Q You were familiar with the legal term
21 "totality of the circumstances," right?
22 A Yes.
23 Q And you've been a police officer for a fair
24 amount of time. Can you -- can you give us some
25 insight into your police officer's mind, having heard Examination of Dennis Wilcox 302
1 all these things over the radio about this situation
2 and then combining that with your training and
3 experience, which is the totality of the
4 circumstances, everything that you know and you've
5 trained.
6 What was your -- what's your assessment of
7 the situation at this point? What are you really
8 thinking when you go into Cityteam Ministries?
9 A It was a very fluid, rapidly evolving
10 situation. My opinion was people inside were in
11 danger of being harmed, either lethally or
12 non-lethally.
13 And the subject with the knife was acting
14 very erratically, wasn't following commands, wasn't
15 dropping the knife, was given the opportunity to drop
16 the knife. Less lethal had been deployed on him.
17 He was refusing to do that. And I felt that
18 we needed -- definitely needed to protect the lives of
19 the people that were inside the room at that time. I
20 was on the -- our SWAT Team, SERT team for over
21 20 years; been involved in a lot of different
22 situations.
23 And based on what I could see -- and I got
24 there a little behind the curve. I think they were
25 developing a plan at the doorway, but I -- I wasn't a Examination of Dennis Wilcox 303
1 part of that 'cause it took me a while to get up
2 there.
3 Made entry shortly after I got there. But
4 it was a situation where something had to be done to
5 separate him from the people inside to save their
6 lives.
7 Q And do I understand correctly that -- that
8 your primary focus when you went inside was on keeping
9 the citizens in that room away from him rather than
10 focusing on -- on him?
11 A Well, it's a combination of the two. I
12 mean, obviously, we want to -- we want to assist him
13 or help him. I've been involved in a lot of suicidal
14 situations. I was the ECIT officer for many years.
15 And so it's combination of, yes, we want to get in
16 there, we want to -- number one is protect the lives
17 of the citizens.
18 But, also, we want to try to save him from
19 himself also. He'd already cut his throat. He was
20 acting very erratically. He wasn't following commands
21 or warnings. So it's a combination of the two, but
22 primarily, yeah, we want to make sure he's not going
23 to hurt these other people also, so --
24 Q Okay. So I -- I sort of interrupted you.
25 What -- what happened then from that point? You were Examination of Dennis Wilcox 304
1 at where you made those observations you just
2 described.
3 A Entry was made. The -- I came in kind of
4 behind the officers. Officer Gore was there with his
5 canine. He was controlling his canine as we made --
6 went through the doorway.
7 I kind of went to the center and to the left
8 of the room a little bit. I was trying to -- other
9 officers and we were trying to convey to the people
10 that were in there to get to the left of the room and
11 to get out the door.
12 It was very -- or chaotic. It was extremely
13 loud. But Officer Gore's canine was barking
14 continuously. Citizens were yelling. Officers were
15 giving commands and warnings.
16 So it was very chaotic and very noisy in
17 there. So I kind of went to the left, kind of with --
18 along with Sean and (indiscernible) those people and
19 trying to get them away from the subject.
20 One of the officers, Officer Nutting, kind
21 of went that way, too. And they created a bit of an
22 L, it's called, where you try to create an L on -- on
23 a thread, so that if there is any kind of discharged
24 firearms, there's no crossfire. And also, the
25 backdrop's real important. Examination of Dennis Wilcox 305
1 And, initially, there were people running
2 around behind him, but by the time we got in there and
3 got most people to the left, they had a clear field of
4 fire as far as the backdrop was concerned.
5 So I created an L. I was kind of dividing
6 my attention between the citizens and kind of keeping
7 an eye on the suspect. I want to stay hands free in
8 case necessary to do whatever I needed to do. I never
9 drew my weapon.
10 There was ample amount of officers dealing
11 with the threat. And there's less lethal also dealing
12 with the threat. So I was kind of divided between the
13 citizens and kind of keeping an eye on what he was
14 doing.
15 Shortly after entry, he -- and he was -- the
16 suspect was kind of yelling something at times, but I
17 couldn't really tell what he was saying. Again, it
18 was very loud and chaotic.
19 The dog was just continuously barking. I
20 realized Sean -- Officer Gore probably wasn't going to
21 release his dog with an armed suspect at that time
22 because of the danger to the dog.
23 And Officer Gore was a SERT -- a SERT
24 operator also on our -- on our SWAT team. So shortly
25 after that, I saw that he started aggressing towards Examination of Dennis Wilcox 306
1 the officers and shot were fired.
2 He initially took a couple steps, continued
3 to as more shots -- shots continued to be fired and
4 then he went down. At that time, we tried to get most
5 everybody else, all the citizens out and then
6 developed a plan to go render aid.
7 Now, less lethal was deployed on his legs to
8 see if there was any reaction out of him, because the
9 -- the knife -- he still had the knife in his hand
10 when he aggressed on the officers, had the knife in
11 his hand when he went down.
12 And he was laying kind of on his stomach and
13 you couldn't where the knife was. So less lethal was
14 just deployed to his leg, just to see if there was
15 reaction. And then we moved forward and kind of
16 rolled him up to check for him, and the knife was
17 directly underneath him.
18 It was obvious that he was deceased. We had
19 medical come in and confirm that. And from there, you
20 know, post-shooting, pretty much just kind of
21 separated the people and shooters.
22 And I ended up clearing the rest of the
23 facility with Officer Gore to make sure there weren't
24 any other victims or citizens that had been injured or
25 were hiding somewhere. So we're cleared the rest of Examination of Dennis Wilcox 307
1 the facility.
2 MR. REES: Okay. Any questions from the
3 grand jury?
4 A GRAND JUROR: Do the police have any other
5 tools that they could use in a crisis? I know it's --
6 I know it's -- you know --
7 THE WITNESS: Like, it was very rapidly
8 evolving.
9 A GRAND JUROR: I just -- yeah.
10 THE WITNESS: It's hard to -- it's hard to
11 really realize, you know, how fast things are
12 happening, but -- if you're not there. But it was
13 rapidly evolving.
14 Steps were being taken to -- to get the
15 citizens away from him. But it only takes a split
16 second for somebody with a knife to cover quite a
17 distance and severely injure somebody or kill
18 somebody.
19 An example would be the -- the TriMet
20 incident, you know, a year or so ago, you know, where
21 two people were fatally stabbed.
22 A GRAND JUROR: Mm-hmm.
23 THE WITNESS: Another was seriously wounded.
24 It can happen very, very quickly with an edged weapon.
25 And it was rapidly evolving. Like I said, less lethal Examination of Dennis Wilcox 308
1 was being deployed. It just -- he kind of made that
2 decision at the time to aggress toward the officers
3 and less -- or lethal force was used.
4 BY MR. REES:
5 Q And I -- I think you mentioned that you
6 are -- is this right, ECIT?
7 A I was.
8 Q Right.
9 A I -- yeah, I was ECIT for -- initially, the
10 first few years.
11 Q And that acronym stands for --
12 A It's Enhanced Critical Incident Team. We're
13 all CIT critical incident team as far as any with
14 mental health crisis and people -- or people in
15 crisis.
16 But then the ECIT officers get an
17 additional -- initially, 40 hours of training, then
18 in-service every year. So you get quite a bit more
19 training on dealing with mentally -- people in crisis.
20 MR. REES: So do you have a follow-up
21 question on that or --
22 A GRAND JUROR: No. I know it's not a
23 perfect world. You can't -- can't get every -- you
24 know, it happens pretty fast.
25 MR. REES: Any -- any other questions? If Examination of Tyler Simpkins 309
1 not, we'll release Officer Wilcox.
2 Thank you for coming in. Appreciate it.
3 MR. JACKSON: Okay. Remain standing. Raise
4 your right hand.
5 TYLER SIMPKINS
6 Was thereupon called as a witness; and, having been
7 first duly sworn, was examined and testified as follows:
8 MR. JACKSON: Please have a seat.
9 And please state and spell your name.
10 THE WITNESS: My name's Tyler Simpkins.
11 Last name is spelled S-i-m-p-k-i-n-s.
12 EXAMINATION
13 BY MR. JACKSON:
14 Q All right. And where are you employed?
15 A I work for Clackamas County Sheriff's Office
16 as a deputy on patrol.
17 Q How long you been a deputy for Clackamas
18 County?
19 A About four-and-a-half years.
20 Q Okay. What's your current assignment?
21 A I'm currently assigned to the transit police
22 division, so I currently work out of Gresham Police
23 Department patrolling basically from I205 east.
24 Q Could you explain a little bit for us how
25 the transit division is set up and that you're a Examination of Tyler Simpkins 310
1 Clackamas County sheriff's deputy working out of
2 Gresham?
3 A So the Transit Police Division is basically
4 an interagency team comprised of several different
5 agencies. Portland contributes, Clackamas County,
6 Gresham, Multnomah County. Basically every -- every
7 agency that has TriMet run through their area.
8 Q Washington County --
9 A Washington County as well.
10 Q -- Beaverton?
11 A Beaverton.
12 Q Okay.
13 A Hillsboro. There's probably a couple other
14 agencies that I haven't listed off, but -- and then --
15 so we're usually riding around in -- in two-person
16 cars. And who we're partnered with, it's not unusual
17 for us to be partnered with someone from a different
18 agency.
19 Q Okay. And so were you working on April 7th
20 of 2018?
21 A Yes, I was.
22 Q Pause for just a moment.
23 All right. And who were you partnered with
24 that day?
25 A I was partnered with Deputy Sieczkowski, Examination of Tyler Simpkins 311
1 who's a Multnomah County deputy.
2 Q And had you been partnered with him before?
3 A Yeah. I've been working with him off and on
4 for the past several months.
5 Q And were the two of you in uniform, badge
6 displayed?
7 A Yes.
8 Q And were you driving a Clackamas County car
9 or --
10 A No. We were driving a car marked Transit
11 Police.
12 Q Okay. And so does the transit division have
13 their own cars that aren't tied to a specific agency?
14 A I believe Portland supplies the vehicles,
15 but they're marked "Transit Police."
16 Q Okay.
17 A They're the Ford Explorers, like most
18 Portland vehicles.
19 Q Okay. What were -- what were the hours of
20 your shift on April 7th?
21 A It was 2:00 -- 2:00 p.m. to midnight.
22 Q 2:00 p.m. to midnight?
23 A Yeah.
24 Q And you said, "Gresham," but did you have a
25 particular boundary that you were operating within? Examination of Tyler Simpkins 312
1 A Ah, so we -- we can respond to any transit
2 calls. But, in general, we -- we patrol from I205
3 east, which is, basically, like, 82nd, 100, 102nd
4 area, somewhere around there, east.
5 We happened to be west of that on April 7th
6 when -- 'cause we -- we were having lunch at -- around
7 this area, 68th and Sandy when -- when the call came
8 out that we responded to.
9 Q Okay. And what was your understanding of
10 the call that you responded to?
11 A So we heard the call come out. It was a
12 call regarding a vehicle that had crashed somewhere
13 near the area of Grand and Stark. And it was reported
14 the vehicle was earlier involved in a carjacking.
15 So we -- and the -- the suspect was
16 reportedly out on foot somewhere in the area, so we
17 responded to help look for the suspect.
18 Q As a transit division deputy, is it normal
19 for you to respond to what seems to be a
20 non-transit-related call to help with an area check?
21 A Yes. A lot of times, we'll -- you know,
22 we're still law enforcement officers and we have
23 police authority throughout the whole state.
24 So if we're in the area of a -- a priority
25 call, we'll oftentimes go by and help out with looking Examination of Tyler Simpkins 313
1 for a suspect or contacting witnesses or however we
2 can help out.
3 Q Okay. And so for that particular call, you
4 and Deputy Sieczkowski decided to respond?
5 A That's correct.
6 Q And so what did you guys do?
7 A So we arrived in the area and we -- we were
8 driving around conducting an area check for the
9 suspect. He was -- I don't remember the exact billed
10 description, but he was described as a white male with
11 no shirt and I think it was blue pants.
12 So we were -- we were driving around the
13 blocks looking for someone matching that description
14 when we were flagged down by someone, an employee of
15 Jacksons convenience store, which I think is just
16 south of the -- the homeless shelter.
17 And he gave us an updated description. I
18 can't remember the exact coloring, but he said he was
19 wearing a jacket now and pointed up somewhere toward
20 Grand as where he went.
21 So we went and continued looking. And I
22 think the -- I can't remember the exact route we took,
23 but we drove around a couple of the blocks in the area
24 looking for him.
25 Q Did you have information at that point that Examination of Tyler Simpkins 314
1 he was armed with any kind of weapon?
2 A There was -- I remember there were some
3 reports from, I believe it was a north officer
4 somewhere that he may be -- may be armed with a
5 firearm, but I don't recall anything other than that.
6 Q Okay. And so you guys, when -- you actually
7 spoke with the clerk at the Jacksons?
8 A Correct.
9 Q And then moved on to start -- continue
10 searching the blocks?
11 A Yes. That's correct.
12 Q And then what happened after that?
13 A So while we were doing that, I looked up
14 the -- the person that officers believed that the
15 suspect was. And I recognized the name from the call
16 earlier in the day that east precinct dealt with.
17 I never responded to that, but I remember
18 hearing it over the radio. In that instance, he was
19 reported armed with a knife and he was claiming that
20 his wife and daughter were murdered. But they -- it
21 was my understanding Portland couldn't find any sort
22 of scene, so they disengaged from there.
23 And after looking up his photo while we were
24 doing an area check, somehow, I don't remember whether
25 it was over the radio or whether someone told us in -- Examination of Tyler Simpkins 315
1 whether someone told us in person, we got information
2 that AMR personnel might be -- might have seen the
3 suspect or been with him or something along those
4 lines.
5 So we went and contacted an AMR unit that
6 was right around the area of Grand and Stark.
7 Actually, a couple Portland officers contacted him.
8 As we were walking up, the Portland officers were
9 walking away saying that he was wasn't here anymore.
10 And as we were walking back to our vehicle,
11 we had parked directly across from the -- the homeless
12 shelter. And we were walking back to our vehicle.
13 Several people -- I heard several people shouting,
14 "He's over here, he's over here." And it sounded like
15 it was coming from the direction of the homeless
16 shelter.
17 Q So at that point, you knew that this suspect
18 had been involved in that earlier call where the
19 police had disengaged where he'd reported his wife and
20 daughter murdered, that he was involved in a
21 carjacking and that he was also involved in some
22 incident in North Portland, a road rage incident in
23 North Portland?
24 A Yes. I don't -- I don't recall exactly what
25 that incident was, but, yeah, some incident in North Examination of Tyler Simpkins 316
1 Portland, possibly involving a firearm.
2 Q Okay. And you said you were aware that that
3 first call had a knife involved in it?
4 A Yes, that's correct.
5 Q Okay. So when you went over -- where was
6 Deputy Sieczkowski while you were kind of learning all
7 of this information?
8 A So he was standing next to me, next -- right
9 next to our vehicle. Are you -- sorry, are you
10 talking about learning about the prior --
11 Q Yeah.
12 A -- call? So we were partnered all day long
13 and he was there. He was listening at the radio with
14 me when he -- when we -- and we were both listening to
15 the east call involving the -- the suspect earlier in
16 the day. And he heard all the updates over the radio
17 as far as the -- the suspect also being involved in a
18 call at north with a firearm involved.
19 Q Okay.
20 A And being a carjacking suspect as well.
21 Q And then he was with you when you guys
22 responded to the Jacksons and then to this AMR report?
23 A Yes. That's correct.
24 Q So when you saw these folks at the shelter
25 kind of waving you in or flagging you down, what did Examination of Tyler Simpkins 317
1 you do then?
2 A So at that point, Deputy Sieczkowski and
3 myself, along with a couple other Portland officers --
4 I don't know who they were -- went over towards the
5 entrance of the homeless shelter. And at that point,
6 there were several people coming out of the entrance.
7 I don't --
8 Q Do you recall what they were saying to you
9 guys as they were coming out?
10 A Yeah. So I don't know how many people the
11 statements came from, but I recall someone saying,
12 "He's inside. He's got a knife and he's trying to
13 stab people." So at that point, believing that he was
14 our suspect inside, I drew my handgun and started
15 approaching the door.
16 Q I'm sorry. Could you say that again?
17 A I drew my handgun and started approaching
18 the -- the front entrance along with Deputy -- Deputy
19 Sieczkowski and a couple other Portland officers.
20 Q Why did you make the decision to draw your
21 handgun at that point?
22 A Because of the -- the -- I -- I heard
23 someone say that he was trying to stab people inside
24 and he was armed with a knife, so I believed that
25 there -- there may have been an active fight in Examination of Tyler Simpkins 318
1 progress and someone's life may have been in danger.
2 Q Okay. What happened then?
3 A So we approached the front door. Deputy
4 Sieczkowski and I kind of approached the -- I think it
5 was a set of double doors, if I remember correctly.
6 We were kind of on the left side and then a couple of
7 Portland officers were on the right side of the doors.
8 And I could see just inside the -- the room.
9 It was basically one big room. Just inside to the
10 right, there was, like, a little desk or office space
11 area. Right in the center of the room, there was a --
12 like, a little three-foot wall surrounding what I
13 assumed was a staircase.
14 I didn't actually see a staircase, but it
15 had, like, a -- a door on the front of it. And there
16 were several chairs spread throughout the --
17 throughout the room. And I saw the suspect who we'd
18 just looked up the photo of a few minutes ago,
19 Mr. Elifritz.
20 He was on the -- if you're looking at --
21 in -- in through the front door, he was on the right
22 side of the room, kind of diagonally, halfway between
23 that -- the three-foot, walled-off section and the --
24 the desk area.
25 And he had a knife in his right hand, Examination of Tyler Simpkins 319
1 holding it up to the right side of his throat. And on
2 the left side of his neck, I saw there was a big gash
3 that appeared to be flooding blood. And there was
4 definitely -- there was quite a bit of blood on the
5 floor as well. He seemed very agitated.
6 And I don't know who -- who exactly it was,
7 but one or two of the Portland officers started giving
8 him commands. I remember -- I remember him saying
9 something along the line, like, "Drop the knife. Give
10 us" -- something along -- "Let's talk for a little
11 bit," or something like that.
12 Q Did he respond to --
13 A He --
14 Q -- those commands?
15 A He was -- I remember him shouting something,
16 but I don't remember exactly what he was shouting.
17 And, at that point, a couple more Portland officers
18 that had rifles showed up.
19 So they moved to the front and I kind of
20 moved back behind them, so I couldn't really see what
21 happened for the next -- next little bit. I know a
22 couple of less-lethal rounds were fired at him. I
23 don't know if they hit him, but he -- and don't know
24 if he reacted to them at all.
25 Q At some point, did you and the other Examination of Tyler Simpkins 320
1 officers move into the room?
2 A Yes. So, at this point, there were still a
3 bunch of civilians that were still inside the --
4 inside the room with the suspect. So we started to
5 move in and try and get them and get them out of
6 the room.
7 As we started moving into the room, I went
8 to the left a little bit with Deputy Sieczkowski and
9 started moving down along the wall. On the left wall,
10 there's, like, a -- a door in the front left corner
11 and there's a couple of doors, like, in the middle of
12 the wall. I think one of them went to a closet. I
13 don't know where the other one went.
14 And we started moving down along -- along
15 that wall while Mr. Elifritz was on the -- the other
16 side of that three-foot, walled-off section. And, at
17 that point, there were several more officers showing
18 up, more by the second. So I was trying -- I was
19 focused on the -- the civilians over there.
20 There was a group of civilians huddled in
21 the back left corner. I was trying to get their
22 attention to come down along the wall and out the door
23 so we could get -- get everybody out of there that
24 might have been in danger.
25 And I don't recall exactly what drew my Examination of Tyler Simpkins 321
1 attention back towards Mr. Elifritz, but something
2 drew my attention back towards him. And as I looked
3 over, I saw him walking towards officers. There were
4 still a bunch of officers up at the front of the room
5 by the -- the desk or the office area, along with some
6 more that were with Deputy Sieczkowski and I along the
7 left wall. So I saw him advancing on them and I
8 turned and --
9 Q What did you think he was doing?
10 A So, at this point, I thought he was going to
11 advance on officers and try and attack -- attack them.
12 So I turned towards him and I was getting ready to
13 shoot him when several shots went off within a couple
14 of seconds. And he fell down behind that little
15 three-foot, walled-off section and I -- I didn't see
16 him anymore until we moved around to the side of it.
17 Q Did you have your handgun drawn?
18 A Yes. My handgun was still out at that
19 point.
20 Q Do you recall at point you -- well, I guess
21 I'll ask you this: So you testified when you first
22 walked up to the door, you drew your handgun. Did you
23 ever re-holster it?
24 A No.
25 Q You had it out the whole time? Examination of Tyler Simpkins 322
1 A Yeah, I had it out the whole time.
2 Q Okay. And you said when you -- your
3 attention was directed back to Mr. Elifritz and he was
4 moving toward the officers, you thought he was going
5 to attack them. And what was it about his demeanor
6 and mannerisms to make you think that?
7 A I saw his arms had kind of flared out a
8 little bit and he was walking, advancing on the
9 officers. He was walking towards them. And he was
10 still very agitated at that point. I could see he was
11 tensing his muscles and it looked like he was going to
12 get -- trying to get close enough to -- to stab one of
13 the officers.
14 Q Did he still have the knife in his hand?
15 A Yes.
16 Q And was it pointed at his neck during that
17 period or in a different direction?
18 A I don't recall which direction it was
19 pointed. I remember his arm was kind of coming out
20 away from his body, but I don't recall exactly where
21 the knife was pointed.
22 Q Okay. And you were preparing to shoot?
23 A Yes, that's correct.
24 BY MR. REES:
25 Q Okay. Deputy, if -- if you had shot, do you Examination of Tyler Simpkins 323
1 believe you would have been within the policy of the
2 Clackamas County Sheriff's Office and the -- the law
3 of the State of Oregon?
4 A Yes, I do.
5 Q And why is that?
6 A Because I believed he was an imminent --
7 imminent threat to the officers that were up front. I
8 believed he was going to try and stab them, which, in
9 my opinion, is going to cause either serious physical
10 injury or death.
11 MR. REES: Do you folks have any questions?
12 A GRAND JUROR: How much blood was on his
13 neck? I'm wondering.
14 THE WITNESS: I don't recall. I -- I
15 remember there was -- I could see -- I only saw it
16 for, like, a split second; but I remember it was on
17 the left side of his neck. It looked like, I don't
18 know, maybe a gash about like that -- that long.
19 A GRAND JUROR: Mm-hmm.
20 THE WITNESS: It appeared to be --
21 A GRAND JUROR: He was going like this,
22 probably about to pass out.
23 THE WITNESS: Potentially. But I don't
24 know, I mean, he was still extremely agitated at that
25 point. When he started advancing on officers, it Examination of Tyler Simpkins 324
1 looked like he was going to try and stab them, so --
2 BY MR. JACKSON:
3 Q But did -- did he appear like he was on the
4 verge of -- of passing out or collapsing to the
5 ground?
6 A He was still up moving around. He -- I -- I
7 didn't -- it didn't look like he was getting ready
8 to -- to pass out at all. He was still up, actively
9 moving around and he -- I didn't see his facial
10 expression at all, but he wasn't acting like he was
11 about to pass out.
12 A GRAND JUROR: No -- no officers could
13 understand anything he was -- that -- that he was
14 saying?
15 THE WITNESS: I -- I can't speak for other
16 officers, but I -- my attention was kind of focused on
17 the civilians in the corner, so -- and there was a lot
18 of civilians shouting as well, so I don't know exactly
19 what he was saying.
20 MR. JACKSON: Any other questions? Okay.
21 Thank you, Deputy.
22 (Recess taken, 2:55 p.m. - 2:59 p.m.)
23 MR. REES: All right. We're back on
24 the record.
25 //// Examination of Clifford Nelson 325
1 CLIFFORD NELSON
2 Was thereupon called as a witness; and, having been
3 first duly sworn, was examined and testified as follows:
4 EXAMINATION
5 BY MR. REES:
6 Q Doctor, if you would, please, state and
7 spell your name.
8 A Clifford Nelson, C-l-i-f-f-o-r-d,
9 N-e-l-s-o-n.
10 Q Okay. What's your occupation?
11 A Deputy State Medical Examiner for the State
12 of Oregon.
13 Q And how do you -- how do you qualify for
14 that position?
15 A I'm a forensic pathologist, which means I've
16 gone through four years of college, four years of
17 medical school, five years of pathology residency and
18 combined anatomic and clinical pathology, and then
19 another year of a fellowship in forensic pathology.
20 Q And where did you go to college and
21 medical school?
22 A University of Portland and then medical
23 school and residency were both at OHSU.
24 Q And how many years have you been
25 practicing medicine? Examination of Clifford Nelson 326
1 A Well, officially, you get your medical --
2 medical license as -- when you graduate, so 1989. I
3 was board certified in forensic pathology in 1994.
4 Q And since that time, do you know
5 approximately how many autopsies you've performed?
6 A I think a little over 5,000.
7 Q And you've testified in state and federal
8 court and -- and I guess all over the United States;
9 is that correct?
10 A Correct.
11 Q As an expert witness. Did you perform the
12 autopsy on the body of John Andrew Elifritz on Monday,
13 April 9th, 2018?
14 A Yes.
15 Q Where did you perform that?
16 A At our office in Clackamas, Oregon.
17 Q And who was present at the time of
18 the autopsy?
19 A Criminalists Nebling and Ware, Detectives
20 Kammerer and Slater, Todd Jackson -- Deputy District
21 Attorney Todd Jackson and Officer Gabe Hertzler.
22 Q Okay. And what was the purpose of
23 performing an autopsy in this case?
24 A In this case, where the cause of death is
25 pretty obvious, it's predominantly for documentation Examination of Clifford Nelson 327
1 and collection of evidence.
2 Q And would the -- it be standard, following
3 an officer-involved shooting, that an autopsy --
4 A Correct.
5 Q -- would be conducted?
6 And you've conducted similar autopsies in
7 the past; is that correct?
8 A Yes.
9 Q In terms of the general appearance of the
10 body of Mr. Elifritz, did you measure his height --
11 A Yes.
12 Q -- and weight?
13 A 74 inches and 266 -- or 262 pounds.
14 Q And can you explain to the grand jury the --
15 the difference between the terms "cause of death" and
16 "manner of death"?
17 A Sure. Cause of death is the primary thing
18 that causes somebody to die. So say somebody gets
19 shot in the chest and it hits a large vessel and they
20 pour two liters of blood into their left chest cavity.
21 Cause of death is a gunshot wound of the chest.
22 Manner of death -- or mechanism of death is
23 exsanguination or bleeding internally.
24 Another person gets shot in the chest, they
25 don't have a lot of bleeding, so it misses any major Examination of Clifford Nelson 328
1 vessels. But it hits their back, they become
2 paralyzed. They get a bedsore five years later from
3 inability to move and they get an infection; and then,
4 ultimately, they die.
5 Cause of death is still a gunshot wound to
6 the chest even though it may be several years
7 afterwards. But the manner of death -- or excuse me,
8 the mechanism of death is an infection.
9 Manner of death is one of five things. It's
10 either natural, accident, suicide, homicide or
11 undetermined. And undetermined, we use in cases where
12 it doesn't really fit into the other categories.
13 Q And can -- can you briefly explain the
14 differences between those five different categories
15 under the heading of manner of death? I mean, natural
16 death, I assume, is some natural disease process
17 or aging --
18 A Correct.
19 Q -- is that right?
20 A Correct. Natural death would be coronary
21 artery disease, so somebody dies from heart -- has a
22 dysrhythmia due to blockage of blood flow through one
23 of their coronary arteries due to atherosclerotic
24 coronary artery disease. That's an example of a
25 natural death. Examination of Clifford Nelson 329
1 An accidental death would be an unintended
2 -- unintended traumatic event. Somebody is walking
3 along a -- an embankment or a -- a raised walkway by a
4 river and they slip and they fall off into the river
5 and they drown. And so they're drowning.
6 They're -- they could either have blunt
7 force injuries from the fall or they could drown.
8 Either one of -- one of them is not an intended
9 consequence of their action. Most drug deaths are
10 accidental. They're -- the person using the drugs
11 are intending to get high. They're not intending to
12 kill themselves.
13 Suicide, we use a very strict definition.
14 It's death at one's own hand. No, you know, "What if
15 they change their mind at the last minute?" things.
16 Just -- we just use the idea that, you know, they took
17 an action which any reasonable person would realize
18 would have -- would or could have fatal consequences.
19 They did it themselves; and, now, they're dead.
20 Homicide, death at the hands of another.
21 And then undetermined when it doesn't fit
22 into one of those categories.
23 Q So in this case, after your autopsy, did you
24 reach an opinion or a conclusion about the cause and
25 manner of death? Examination of Clifford Nelson 330
1 A Yes. Listed the cause of death as gunshot
2 and shotgun wounds and the manner of death as
3 homicide.
4 Q And your finding of homicide in this case is
5 a medical conclusion rather than a legal conclusion?
6 A It's a medical definition.
7 Q Are you familiar with the phenomenon of
8 suicide by the police?
9 A Yes.
10 Q And what is that?
11 A It's a term that Dr. Joe Davis actually
12 coined out of Miami. And it was when somebody used
13 the police, except -- as their mechanism by which to
14 end their own life, intentionally end their own life.
15 We are pretty strict about when we use that
16 term. For us, it requires that somebody clearly
17 showed intent; that they have some type of past mental
18 or medical history that indicates that they are
19 suicidal; and that they have, in the form of the
20 written letter, a tape-recorded message or
21 specifically said to reliable witnesses, "I am going
22 to get the police to kill me," and it has to be that
23 clear.
24 Q Did you consider such a finding in
25 this case? Examination of Clifford Nelson 331
1 A Yes.
2 Q And did you know that some of the features
3 that you described were present in this case?
4 A Yes.
5 Q What -- what feature was lacking to prevent
6 a finding of suicide by police?
7 A As far as I know, there is not a written
8 note, a recorded message or a specific statement that
9 says, "I am going to get the police to kill me."
10 Q Is that -- is that the only feature that is
11 absent to prevent you from making that finding?
12 A Yes.
13 Q Going back to the autopsy, itself, that you
14 conducted, can you summarize for the grand jury what
15 you noted in terms of the wounds to the body?
16 A The --
17 Q I'm sorry.
18 A Yeah, I -- I --
19 Q Yeah.
20 A Another thing that happened, I lost hearing
21 in this ear about three weeks ago.
22 Q Right, on the side facing me. I was asking
23 if you could summarize for the grand jury your
24 findings at the autopsy regarding the wounds to
25 the body. Examination of Clifford Nelson 332
1 A Sure. He had six -- I termed them
2 less-lethal -- shotgun-round impacts. Used to term
3 these as beanbag rounds, but my understanding is they
4 don't use beanbags anymore because they had a tendency
5 to tear apart, especially if they had hit an
6 intermediate target before and then you would get
7 penetrating wounds instead of just an impact.
8 Six gunshot wounds, so with -- shot with
9 bullets as opposed to shotgun rounds, which he also
10 had three of.
11 Q So six less-lethal round impacts, six
12 gunshot wounds and three shotgun wounds --
13 A Right.
14 Q -- is that correct?
15 On the less-lethal round impacts, visually,
16 what -- what -- what did that look like and where were
17 they on his body?
18 A They look, actually, just like the old
19 beanbag rounds look -- look like. They're -- they
20 tend to be about an inch in diameter, sometimes a
21 little more depending on the angle which they hit.
22 And they hit with enough force so that they leave this
23 abraided bruise.
24 And it basically emulsifies or turns to
25 liquid the underlying fat. They're meant to be Examination of Clifford Nelson 333
1 painful and they're meant to hopefully stop a person
2 without having to cause their death, you know, use
3 a -- a weapon to cause their death.
4 Q And I'm guessing you don't see people in
5 your line of work who've been hit by a -- a line-drive
6 baseball, probably, but you see other types of
7 traumatic bruising from blunt force trauma.
8 Is this -- is this the equivalent of -- of some
9 kind of --
10 A I -- the --
11 Q -- traumatic event like that?
12 A These are -- these are very localized and
13 very hard. And what they do -- because of the amount
14 of force which they strike and dissipate that energy
15 quickly to the underlying fat. It just literally
16 turns it to liquid.
17 Q Mm-hmm. Of the six gunshot wounds and three
18 shotgun wounds, were you able to distinguish amongst
19 them as -- as far as whether they would be lethal
20 or nonlethal?
21 A Some of them were. Some of them weren't.
22 Let's see.
23 (Pause in proceedings, 3:13 p.m. -
24 3:14 p.m.)
25 THE WITNESS: The one that's strike him -- Examination of Clifford Nelson 334
1 struck him in the area of the pant legs that broke his
2 keys up on the left side was probably not going to be
3 lethal -- would probably not have been lethal. A
4 gunshot of the -- wound to the left finger, again,
5 probably wouldn't be lethal.
6 You know, all of these potentially could be
7 if they were left untreated, they bled enough or they
8 got infected. But -- but I wouldn't think of that as
9 a lethal wound. A gunshot wound to his right hand,
10 same thing. I wouldn't think of that as necessarily a
11 lethal wound.
12 Let's see here. A gun -- gunshot wound to
13 the abdomen, because it just basically went through
14 the underlying fat and superficial muscle, again,
15 probably, you know, with -- with minor medical
16 treatment, wouldn't have been a lethal wound.
17 Right-upper abdomen, that one potentially
18 could be 'cause when -- when it fractured the -- the
19 right costal margin, it injured the underlying lung.
20 A gunshot wound to the right chest and arm, that
21 one could easily have been lethal -- lethal in and
22 of itself.
23 As far as the shotgun wounds, the one in the
24 right chest is predominantly -- ends in -- ends in the
25 pectoralis muscle, which is the -- the muscle of the Examination of Clifford Nelson 335
1 breast and probably wouldn't have, in and of itself,
2 been fatal.
3 Shotgun wound to the right shoulder and
4 axilla, that one easily could have been fatal because
5 of the amount of vascular damage. And shotgun wound
6 to the crevicular region on the left, which would be
7 up in this area, again, because of the vascular
8 damage, could very easily have been fatal.
9 Q Okay. So if I could just double check, of
10 the six gunshot wounds, your testimony is four not
11 immediately fatal, one possibly fatal and one --
12 A Easily --
13 Q -- strong --
14 A Yeah.
15 Q -- easily fatal. Of the three gunshot
16 wounds, one not immediately fatal and then two pretty
17 strongly yes, fatal?
18 A Yeah.
19 Q Okay. So three -- three of the nine
20 firearms or gunshot -- combined shotgun and gunshot,
21 three of the nine --
22 A Likely were rapidly fatal.
23 Q Likely rapidly fatal. Okay. During the
24 autopsy, is it standard practice to take a sample of
25 some bodily fluid for testing for drugs or alcohol Examination of Clifford Nelson 336
1 through toxicology?
2 A Yes.
3 Q And was that done in this case?
4 A Yes.
5 Q And what was tested: Was it blood or urine?
6 A Blood.
7 Q All right. And do you have the results of
8 that testing?
9 A The methamphetamine was 0.33 milligrams per
10 liter and I don't know if the amphetamine was 0.063 or
11 0.63.
12 Q Is that -- is that clinical (indiscernible)?
13 A Yeah. I just wrote down notes that were
14 left on my voicemail from --
15 Q Okay.
16 A -- the tox, but -- so I don't -- I -- I just
17 didn't write it down clear enough that I can make
18 it out.
19 Q But the number that, clinically, you're
20 really interested in is the --
21 A Is the methamphetamine.
22 Q -- 0.33 milligrams per liter. So what does
23 that translate to in terms of, if you're able to tell
24 us, level of intoxication?
25 A I can't just look at a number and say, "This Examination of Clifford Nelson 337
1 person would be this intoxicated with this number,"
2 because I don't know when they took it or how much
3 they took or what their highest level was.
4 If he is going up or if he's stable, that's
5 an intoxicating level of methamphetamine. If he's
6 crashing or going down, they're not going to probably
7 act as intoxicated as I would -- somebody in a -- with
8 a rising level of methamphetamine.
9 Q Okay. You viewed the video of the shooting
10 with myself and Detective Sergeant Ken Whattam
11 following the autopsy. Based on your observations in
12 the -- the video, did -- did it appear that this
13 person was, you know, crashing from the effects of
14 methamphetamine?
15 A No, he -- he does not appear to be crashing.
16 He's common -- commonly referred to as tweaking.
17 Q And what is -- so what is that?
18 A Actively showing agitation, typical of
19 somebody on methamphetamine.
20 Q In the behaviors described prior to the
21 shooting, were -- were those, you know, consistent
22 generally with someone under the influence of
23 methamphetamine?
24 A Yes.
25 Q And does the intoxicating effect of Examination of Clifford Nelson 338
1 methamphetamine mask pain? Because in this case --
2 and, of course, you saw that the six less-lethal round
3 impacts on the body -- and you said it would be very
4 painful. I believe you saw in the video no -- no
5 reaction. Does -- does the --
6 A I --
7 Q -- methamphetamine act as a -- as a mask or
8 could there be some other reason to not feel the pain
9 or not react to the pain?
10 A I -- I'm not an addictionologist. I
11 don't know.
12 Q Okay. Let me ask you finally about your
13 external examination. Did -- did you observe any
14 injury to the neck of John Elifritz at the time of
15 the autopsy?
16 A Yes. I believe it's on both sides, but I'm
17 checking. Yeah. He's got incised wounds of both
18 sides of his neck or cuts.
19 Q And how is --
20 A Cutting wounds on both sides of his neck.
21 Q Cutting wounds. How -- how deep and -- and
22 how significant were those?
23 A Oh, they're not very deep and they're not
24 very significant.
25 Q In terms of them impacting him, his -- his Examination of Clifford Nelson 339
1 ability to act, any impact at all? Any -- any, you
2 know, veins or arteries cut --
3 A Well, and I don't --
4 Q -- or anything like that?
5 A In somebody normally who had that, it would
6 be painful. But they're not losing a lot of blood
7 from those. They're not hitting any major vascular
8 structures, haven't got into an airway. So it's --
9 it's really not affecting him as far as his cause or
10 manner of death.
11 MR. REES: Okay. Any -- any questions for
12 Dr. Nelson from the grand jury?
13 A GRAND JUROR: I'd like to know what --
14 the -- the six nonlethal wounds, which part of his
15 body were they on?
16 THE WITNESS: If I remember, it was
17 primarily leg -- legs and abdomen, but let me check.
18 Medial right thigh, anterior left thigh, posterior
19 right medial thigh, lateral lower left popliteal, so
20 that's near the -- behind the knee.
21 Left thigh again. I guess none of them got
22 his abdomen. Hip. And the last one is anterior right
23 thigh, so pretty much all thigh, one side or the
24 other.
25 MR. REES: Any other questions, folks? No? Examination of Chad Phifer 340
1 All right. Thanks very much, Dr. Nelson.
2 We'll excuse this witness. And shall we
3 take our ten-minute -- sort of just our
4 mid-to-late-afternoon break? Okay.
5 (Recess taken, 3:26 p.m. - 3:43 p.m.)
6 MR. REES: All right. We're back on the
7 record. We're resuming from our midafternoon break.
8 And our next witness is ready to be sworn in.
9 CHAD PHIFER
10 Was thereupon called as a witness; and, having been
11 first duly sworn, was examined and testified as follows:
12 EXAMINATION
13 BY MR. REES:
14 Q When you're ready, if you'll please state
15 your first and last name and spell it.
16 A My name is Chad Phifer, C-h-a-d; last name
17 Phifer, P-h-i-f-e-r. I'm an officer with the Portland
18 Police Bureau.
19 Q All right. How long have you been a
20 police officer?
21 A I've been a police officer for 18-and-a-half
22 years, eight of which was with Multnomah County and
23 ten and a half with Portland Police Bureau.
24 Q All right. And when this incident occurred
25 on April 7th, 2018, was that a regular working day for Examination of Chad Phifer 341
1 you?
2 A It was, yes.
3 Q And prior to coming on your shift, which I
4 believe starts at 4:00 in the afternoon and goes --
5 A Correct.
6 Q -- to 2:00 in the morning?
7 A Yes.
8 Q Prior to that, was there anything unusual
9 happening in your -- your life? Any emotional things
10 happening or --
11 A No. No, not that I recall.
12 Q Had -- had you consumed any drugs or alcohol
13 prior to your shift?
14 A No.
15 Q In your work in downtown Portland, do you
16 frequently encounter homeless people on the street?
17 A Yeah. That's very common in the downtown
18 core area especially and the inner southeast side.
19 There are -- I can probably safely say there isn't a
20 night that goes by that I don't deal with a mentally
21 ill person, usually multiple times a night, often
22 in crisis.
23 There are a lot of mentally ill people on
24 the streets downtown here and we get a lot of calls
25 about them. Examination of Chad Phifer 342
1 Q And have you had weapons-types encounters
2 with homeless people or other people on the street
3 where you've had to deal with that and you've had to,
4 you know, deescalate the -- the situation?
5 A Yes.
6 Q And have you done so successfully?
7 A Yes.
8 Q What would you say the -- the -- kind of
9 the -- the hallmark of that type of situation is where
10 you've been able to successfully been able to talk to
11 and deescalate a -- a situation with a potentially
12 dangerous person?
13 A I mean, like, an example --
14 Q If there is one.
15 A -- or something?
16 Q Well, no. Maybe there isn't a hallmark.
17 But I'm thinking, is there anything about those types
18 of encounters that -- that is sort of a -- a primary
19 feature that exists when -- when you're able to
20 do that?
21 A When you -- when you can do that, there's
22 definitely generally a dialogue that you -- you
23 can talk. If you can talk to the person can often
24 deescalate if they're able to communicate with you.
25 So, I mean, in -- in generally talking to Examination of Chad Phifer 343
1 somebody like that, if they have mental health issues,
2 you can generally tell if they have mental health
3 issues when they start talking to you 'cause they say
4 some pretty interesting things. But you really kind
5 of have to have a dialogue with them to deescalate a
6 situation like that, but it definitely is possible.
7 Q On April 7th, 2018, can you just briefly
8 summarize for us briefly what you had heard over
9 your police radio regarding the events that led up,
10 ultimately, to a confrontation at the
11 Cityteam Ministries?
12 A Yes. Initially, we'd gotten a call --
13 actually, it wasn't a call. It was a CAD message,
14 which is our computer terminal. It's kind of like a
15 text message.
16 And it was from an East officer that said
17 that a silver Honda CRV with Zebra, Roger, Queen 832
18 had been taken by force by a possible suspect that was
19 John Elifritz. And there was PC for probable cause;
20 in other words, for UUMV and I believe Rob III and
21 that the call had also indicated that he had
22 threatened to kill people.
23 So I read the CAD message. I was aware of
24 that CAD message. I kept it in my head, you know, in
25 case I run into that vehicle and see it. Later that Examination of Chad Phifer 344
1 evening, another call came out from North and we're
2 on a different dispatch net than the North is, so I
3 switched over.
4 Basically, there was a call regarding a
5 subject that had threatened somebody with a gun or
6 reportedly threatened somebody with a gun and it was
7 on cell phone video. I just switched over to that net
8 just to see what the call was about.
9 Just as often in -- in situations like that,
10 we'll -- we'll want to know tactically, how are they
11 going to handle it? What's the sergeant going to do?
12 What are the officers going to do? And it's good to
13 know what's going on in the city in case it runs into
14 another precinct, which this one did.
15 So I switched over. I hear that a subject
16 had reportedly pointed a firearm at somebody. They
17 were driving a -- a Honda CRV. And then I hear a
18 North officer come on and ask, "Is that the same CRV
19 that was reportedly taken by force?"
20 Dispatch comes on and confirms that it is
21 and it -- it is coming back as a stolen vehicle. So,
22 now, I know that that vehicle has been involved in two
23 incidents and the suspect is possibly John Elifritz.
24 Q And did you -- did you hear also on the
25 radio at some point that -- that a weapon was not Examination of Chad Phifer 345
1 involved in the road rage incident?
2 A I did. I did hear that later on. And I
3 can -- it -- it's a little bit further on in my -- my
4 timeline of events.
5 Q Okay.
6 A And I'll -- I'll -- I can touch on that
7 when I --
8 Q Okay. All right. Okay.
9 A Okay. If you want me to keep going?
10 Q Yeah. Yeah, sure. I --
11 A Okay.
12 Q Yeah.
13 A So I -- I hear that -- so I -- so I -- I
14 know that that's -- that's -- there's two incidents
15 involved. And so then I'm -- I get dispatched to a
16 call, so I'm going to a call.
17 I hear another call come out over Central
18 dispatch, which is my net, that says that a silver CRV
19 has crashed and a subject -- shirtless subject with
20 tattoos is running from the car. That immediately
21 sparks my interest because it's a silver CRV.
22 I know of two other calls. I ask on the
23 air, "Is that the same vehicle that's associated with
24 the call that was taken -- the car that was taken by
25 force?" And dispatch comes on and says, "It does Examination of Chad Phifer 346
1 appear that that's the same vehicle." So now I'm
2 knowing of three incidents involving this vehicle.
3 I dispatch -- I broadcast over the air
4 that -- 'cause somebody asked, was the subject armed?
5 And I got on and broadcast that the subject was
6 reportedly armed with a firearm in that incident.
7 Later on -- well, I -- I get cleared for my
8 call. I go across the river to assist with this call.
9 I'm driving an unmarked patrol car. They're looking
10 for a suspect. They're often better to find suspects
11 if you're driving in an unmarked patrol car because
12 they -- they don't see you 'cause you're not as
13 obvious.
14 So I go across the river and -- and also
15 knowing that I have -- I am a rifle operator, which we
16 oftentimes don't have any rifle operators on shift. I
17 go across the river. And then when we -- when I get
18 over on the other side of the river and we're looking
19 for the suspect, a North officer gets on and says
20 they've reviewed the video and they did not -- they
21 did -- no -- no gun was seen.
22 So, now, it's -- it's possible that he was
23 not armed with a gun, that he threatened that he had a
24 gun or that there was some sort of discrepancy in --
25 in whether there was actually a firearm involved in Examination of Chad Phifer 347
1 that. But the vehicle was taken by force still.
2 So as I'm in that area, a call comes out
3 regarding a -- a subject with a knife. The call said
4 he appears to be high opiates. He has a -- I think it
5 was a three- or four-inch blade -- bladed knife. He's
6 standing in front of the Jacksons.
7 I'm looking at the Jacksons, essentially,
8 when that call comes out, so I could see the Jacksons.
9 So I say, "Well, I can go." We have a lot of officers
10 in there at the time, but they're probably doing
11 other things.
12 I say, "I can go to that call," and I say,
13 "I'll wait for a less-lethal operator," because,
14 generally, on a -- a knife call or some sort of weapon
15 call, we'll have a less lethal go with us in case that
16 is -- you know, in case we need one.
17 So I'm waiting for a less-lethal operator to
18 come to my location, which, at that time, was MLK and
19 Stark, Martin Luther King and Stark. And then the --
20 the -- we get another call from whoever called that in
21 at the Jacksons saying the subject left. So they left
22 southbound on Grand, so I -- now, we're doing an area
23 check. We're kind of just looking for the subject to
24 see if we can find him again.
25 As I'm looking for that subject, somebody Examination of Chad Phifer 348
1 gets on and says, "We're" -- I'm not thinking and I
2 don't think anybody else was thinking, because there
3 was only two of us going to this call at Jacksons,
4 that this is the same subject that is in -- that has
5 crashed the car that's the suspect in the other things
6 because it's literally within sight of the crashed
7 car.
8 And, normally, people that run from cars,
9 you know, they're hiding. They're not close by.
10 They're trying to get out of the area, so I'm not
11 thinking it's the same subject, you know.
12 And the description is different. This one
13 is the subject is wearing a blue-and-red rain jacket
14 and the call that the subject ran from the car was
15 wearing no shirt and had tattoos and was bald. So as
16 I'm looking for -- you want me to just keep -- keep
17 going? I'm almost done with my timeline of --
18 Q Okay.
19 A So as I'm looking for that subject, someone
20 comes on and says that the subject that we are looking
21 for actually is the same suspect that ran from the
22 vehicle. And they confirmed that it was -- was John
23 Elifritz. I pulled up a picture of John Elifritz on
24 my computer just to see who I was looking for.
25 As I'm driving through the area, I'm driving Examination of Chad Phifer 349
1 westbound on Washington, I hear another call come out
2 of a subject from the location of 509 Southeast Grand
3 that there's a subject in front of the location that's
4 holding a knife to his throat. And so, now, I'm
5 believing that that is also the same subject that we
6 were looking for Mr. Elifritz.
7 I pull up in front of Cityteam Ministries,
8 which is 526 Southeast Grand. I can see the other
9 officer's being contacted at 509. And I hear them --
10 shortly after making contact, they -- I'm about ready
11 to get out of my patrol car, the -- there -- the
12 subject has left.
13 So I -- I'm in my patrol car and I look
14 over. I'm in the middle lane of Grand. I look over
15 and I can see the Cityteam Ministry doors open. And I
16 can see people shuffling back and forth inside and it
17 looks like there's some sort of commotion inside.
18 And I see, like, the bottom of a chair come
19 up, like somebody's lifting up a chair, like, to
20 defend themselves. And I'm thinking, are they moving
21 the chair or are they defending themselves? What's
22 going on in there?
23 And I'm starting to realize there's
24 something going on there. And as I'm doing that,
25 somebody comes out and he's got his hands to his mouth Examination of Chad Phifer 350
1 and he's yelling like he's trying to flag down the
2 officers that are kind of over in front of my patrol
3 car at that point. And then I broadcast information
4 that I believe the -- the subject was in the Cityteam
5 Ministries.
6 Q So did you head to that location, to
7 Cityteam Ministries?
8 A Yeah. I'm literally looking at the front
9 door of Cityteam Ministries at that point. My car is
10 sitting here. If I look out the passenger-side
11 window, I'm looking inside Cityteam Ministries.
12 Q And what did you take with you?
13 A I took my AR, which is my rifle.
14 Q So -- and -- and have you had special
15 training to carry that particular weapon?
16 A I have, yes.
17 Q And why -- why did you -- why did you take
18 it with you? Why did you think that'd be important to
19 have as you left your car?
20 A As I mentioned earlier, there are not many
21 of us on shift that have that particular tool just
22 because it's a -- it's a week-long training and
23 getting people through it and keeping them certified
24 and things, so -- so there might be times when I'm the
25 only afternoon officer on shift that has one. Examination of Chad Phifer 351
1 There might be two, there might be three and
2 then when night shift comes out, there might be a few
3 more. But it's not common to have a lot of rifles on
4 shift. It's a tool that I -- I would bring to the
5 table because I -- because I have that.
6 It's -- it's a tool and we use it for
7 situations where you -- you can address somebody from
8 a longer distance with a rifle than you can with a
9 handgun. You can -- you can keep back further from
10 the incident. You don't have to be as close. It's --
11 it's more accurate at a longer distance as well.
12 So, you know, I -- I thought we might need
13 it in this situation just for our defense or just to
14 have another -- all the tools that we need when
15 addressing the subject.
16 Q All right. And so where -- where -- where
17 did you go to?
18 A I went to -- I got out and I went to the
19 front of Cityteam Ministries. There was officers
20 standing on both sides of the door. And the door is
21 kind of -- there's nobody really in the door. They're
22 kind of -- looked like they were kind of peeking
23 around the door frame.
24 And I come up and I say, "I have a -- a long
25 gun," which is a rifle. And then I was motioning to Examination of Chad Phifer 352
1 come up to the front, so I -- it didn't appear that we
2 had a rifle there already. So I come up to the front.
3 Again, this is a good tool to have from a distance
4 when addressing somebody.
5 And I see the subject standing inside the
6 location and I can see that he's got a knife to the
7 side of his neck and he's holding it kind of in an
8 upright position and I can see blood on his neck.
9 Q All right. And when you see that and --
10 along with everything else that you've heard so far on
11 the radio, what are -- what are you thinking is
12 happening and what do you think the best solution to
13 this crisis would be?
14 A Well, the best solution would be for him to
15 drop the knife, which is the order that I gave him.
16 I -- I addressed him and I said, "Drop the knife." It
17 didn't appear that he -- I didn't get anything back
18 from him to indicate that he was speaking directly to
19 me and he didn't drop the knife.
20 I'm standing basically inside the door --
21 well, at the door, the entryway to the door. And
22 Officer Damerville was standing right next to me, I
23 believe, to the left of me. And we're -- we're --
24 we're trying to get him to drop the knife.
25 Q All right. And -- and how -- how did you Examination of Chad Phifer 353
1 give that command?
2 A It's a -- it's a firm, "Drop the knife,"
3 command.
4 Q In a loud voice?
5 A Loud voice, you know, commanding type call
6 in an effort to, you know, get him to drop the knife.
7 Q And in other situations, you've used your
8 command voice, you've given firm commands as a police
9 officer, I assume?
10 A Correct.
11 Q And do people respond to that?
12 A They have, yeah. I mean, it -- generally --
13 and sometimes it doesn't even have to be the initial
14 command. Sometimes police show up and somebody just
15 complies immediately upon us showing up.
16 You know, I've had times where I pull up to
17 a subject that's armed and they -- they -- you know,
18 they get rid of the weapon and they put their hands up
19 or they do something like that.
20 Q Mm-hmm.
21 A You know, as a police presence, which is
22 kind of our -- our first -- that's the first thing
23 that, you know, we're assessing, is -- is when we show
24 up, we're providing a police presence and then we --
25 we -- we're giving orders, both of those things are Examination of Chad Phifer 354
1 trying to resolve the situation peacefully.
2 Q But, in this case, you said, "Drop the
3 knife," and you said you couldn't tell whether he --
4 A I didn't get -- I didn't -- he looked angry.
5 I saw his teeth. I didn't hear what he said if he
6 said anything back to me. It didn't appear that we
7 were going to have any sort of dialogue as far as him
8 contacting or, you know, speaking with me. He -- so,
9 yeah. Yeah, it --
10 Q All right.
11 A -- he didn't comply.
12 Q And you said you were standing next to
13 Officer Damerville.
14 A I believe it was Damerville, yes.
15 Q He's got the 40-millimeter less lethal?
16 A He has the less lethal --
17 Q Right.
18 A -- yes.
19 Q Did you -- did you see or hear him use that?
20 A He hadn't used it initially that -- 'cause
21 the subject turned and started walking further into --
22 into the shelter. And he -- at that point, he -- he
23 was shooting. He did shoot, that I know of, at least
24 a couple of rounds of less lethal at the subject and I
25 saw them hit him. Examination of Chad Phifer 355
1 Q Could -- could you see whether there was any
2 reaction to that?
3 A I saw him turn once, like maybe one might
4 have hit him, like, in kind of the upper back -- not
5 the upper back, but kind of the hip area. But it
6 wasn't -- it wasn't anything that was making him
7 comply with any of the things that we were trying to
8 get him to do.
9 Q Right. At some point, you and the other
10 officers moved inside of the building or the room?
11 A Yes.
12 Q And why'd you go inside?
13 A Somebody had urged us behind us to go
14 inside, which was -- was good because we needed to get
15 inside because in seeing him walking around inside, I
16 mean, he has -- he has a knife.
17 I'm very concerned for the people that are
18 inside 'cause there's people -- at one point, at the
19 door, I'm like, "Can you" -- I said some sort of order
20 like, "Get out from behind him," or something like
21 that or, "Get them away from him."
22 And a lot of it was to my fellow officers,
23 like, because there's people running around behind him
24 and I'm very concerned that I may have to use force to
25 prevent him from stabbing or hurting somebody in this Examination of Chad Phifer 356
1 room that are running all around behind him and trying
2 to find places to hide.
3 There was a guy that was trying to find a
4 place to hide behind -- not behind him, but, you know,
5 the location it's, like, some sort of desk or
6 something behind him. And I'm concerned about those
7 people. And I'm concerned that I -- I can't stop him
8 at that point because there are people in the room.
9 And I can't -- I can't use force in that
10 type of situation because I'm risking their -- their
11 welfare. But, fortunately, he had not gone directly
12 at any of those people in the room.
13 They -- they were able to kind of filter out
14 and go in a north doorway out of the room. So,
15 generally, it was almost just him that we had at that
16 point when we kind of came in. Most of the people
17 were out at that time, I believe.
18 Q What happens once you're -- you're inside?
19 Where -- where do you -- where do you go and -- and
20 why do you choose to stand in that particular
21 location?
22 A Well, we -- we went in and we kind of
23 created kind of an L pattern. I know Officer Nutting
24 went to the left. And I'm -- I kind of just went
25 straight in. I was kind of -- I didn't vary much from Examination of Chad Phifer 357
1 where I was at before.
2 I kind of went straight in and had officers
3 on my -- on my right, had officers on my left in a
4 kind of L shaped around this barricade that's in a
5 (indiscernible). It's -- it's a stairway that goes
6 down to another level underneath the desk.
7 Q All right. And do you hear other officers
8 make verbal commands or do you make additional verbal
9 commands to the suspect?
10 A Beyond my initial commands to drop the
11 knife, I -- I don't recall making many other commands
12 because there were other officers that were -- were
13 giving verbal commands. In a situation like that, you
14 can't -- no -- not everybody can give verbal commands
15 or it's just overwhelming.
16 They're talking over each other. People
17 can't understand what they're supposed to do. You
18 might be giving conflicting commands, so I wasn't
19 giving commands at that point, but I could hear
20 commands being given.
21 Q Do you -- do you remember specifically what
22 was said?
23 A I don't remember specifically what they
24 were, no.
25 Q Did you hear or see additional less-lethal Examination of Chad Phifer 358
1 rounds fired?
2 A I did. I believe there were less-lethal
3 rounds fired while we were inside. I can't tell you
4 how many, but I believe that there were less-lethal
5 rounds fired inside as well.
6 Q And what did you perceive the suspect was --
7 was doing or -- or having some kind of response to
8 that or -- or no response?
9 A I wasn't seeing anything that obviously was
10 indicating that it was effective with him. He wasn't
11 dropping the knife. He wasn't complying. He wasn't
12 listening to anything that was being said. It didn't
13 appear that he had any intention of cooperating or
14 having a dialogue with us.
15 You know, as I said before, if you can have
16 a dialogue with somebody or communicate with them,
17 then you can -- you can possibly get them -- convince
18 them of something.
19 Q Have you been in situations previously where
20 someone's been hit with a beanbag and who has
21 complied, has dropped the knife?
22 A I have, actually. And this incident is very
23 similar, almost exactly the same, as an incident I had
24 in August of last year. A subject with a knife to his
25 neck was walking around in traffic and he was slicing Examination of Chad Phifer 359
1 his neck. It was over on the southeast side,
2 Milwaukie and Powell.
3 And in that incident, we were trying to
4 contain him because he's walking around through
5 traffic and we're staggering with our patrol cars to
6 try and get him contained so that he doesn't have
7 access to any of the public 'cause he's walking around
8 in traffic.
9 And we were able to kind of contain him. He
10 sat down against a wall. He still held the knife.
11 And in that situation, we, at the time, were using
12 beanbag shotgun rounds, which are -- they're --
13 they're smaller. They're not -- they don't hurt
14 as much.
15 That's kind of why we -- we -- we switched
16 to the 40-millimeter round because it's a bigger round
17 and the beanbag shotgun rounds, a lot of people would
18 just kind of ignore them. This guy didn't, though.
19 He got hit by a round that he -- affected him and he
20 ended up dropping the knife and -- and we took him
21 into custody.
22 Q So on April 7th, 2018, in the incident we're
23 talking about here, you're seeing this person hit
24 multiple times with the new 40-millimeter less lethal,
25 no reaction. I mean, what do you -- what do you Examination of Chad Phifer 360
1 think -- what do -- what do you think is going
2 to happen?
3 A Well, I -- I think that we -- we've taken
4 that tool out of the picture of being effective.
5 That -- that tool is not working, obviously. He's --
6 he's not complying. It also leads me to believe --
7 you know, further lead me to believe that he's on some
8 sort of intoxicant or alcohol or something that is
9 affecting his pain tolerance.
10 And, I mean, 'cause if you're dealing with,
11 you know, mentally ill people or something like that,
12 I mean, they're still feeling pain. And those --
13 those 40-millimeter rounds have to hurt. And so in
14 this situation, they're -- they're not working.
15 Q Did you think that a Taser would be an
16 option in this situation?
17 A He was too far away for the Taser. Our
18 Taser cartridges, I believe, are 25 yards -- or, no,
19 25 feet.
20 Q 25 feet.
21 A Yeah. Sorry. And he was -- he was deeper
22 in the room than that Taser cartridge -- when we were
23 L'd out in our pattern, he was deeper in the room than
24 a Taser cartridge would be effective at. And he was
25 also wearing, like, a -- a rain jacket, which clothing Examination of Chad Phifer 361
1 restricts those. Those are barbed Taser cartridges.
2 They -- they have to penetrate the skin.
3 And so if you have thick jackets on or clothing like
4 that, oftentimes the barbs will get stuck in that and
5 they won't necessarily penetrate the skin. There are
6 oftentimes where the -- the Tasers are not effective.
7 Q Okay. So what -- what -- what happens then
8 at the end of this encounter?
9 A The subject was kind of behind -- kind of
10 behind a little wall. He went around this -- this
11 wall, and I'm thinking, is there a door on that side?
12 'Cause I'm really concerned about keeping him
13 contained 'cause the -- the -- the -- the wall on this
14 side has this open door where I know at least
15 15 people have probably gone in at this point.
16 So I'm worried that when he goes behind the
17 wall, that he's going to exit out of another door.
18 But he doesn't, apparently. I can't see that, but
19 there was no door behind that, kind of goes behind
20 that and then he comes out and starts coming at us, my
21 direction and probably more so to the -- the officers
22 that are standing right next to me, but is
23 deliberately coming towards us.
24 And, at that point, I -- I raised my rifle
25 and I fired two rounds. Examination of Chad Phifer 362
1 Q And why did you make the decision to -- to
2 raise your rifle and fire two rounds at that time?
3 A Well, I -- I felt like my safety as well
4 as the people standing next to me, our safety is in
5 jeopardy. You know, I -- I felt -- you know, this
6 subject has made homicidal threats to kill people.
7 He's threatened somebody involved in this
8 situation. He's armed. I believe he's high on drugs
9 and I felt my danger as well as the -- the danger of
10 the officers standing next to me, he's coming at us
11 with a knife.
12 Q And did you believe that your use of deadly
13 force at that time was within Bureau policy or not?
14 A I do, yes. I was defending myself and I was
15 defending the other officers.
16 Q Why did you stop shooting?
17 A I -- I fired two rounds and the subject fell
18 after my two rounds. So, at that point, he's no
19 longer coming at us anymore, so the situation has --
20 it's more contained now and he's not a threat to us at
21 that point.
22 Q Is that -- is that pursuant to your training
23 to stop shooting when the threat is ended?
24 A Correct. I mean, the -- the only reason we
25 are shooting is to stop the threat. And -- and that's Examination of Chad Phifer 363
1 why we -- we don't fire or use tools after the threat
2 has been stopped. And so that's -- yeah, that's true.
3 The threat had -- had stopped at that point.
4 Q When you fired, were you aware that other
5 officers were firing or -- or not?
6 A I -- when I fired, no. I -- I wasn't aware
7 that anybody else was -- was going to fire. I knew
8 that I was going to fire and it was -- it was very
9 quick, like, all of a sudden, you know, he comes out
10 and he's coming at us.
11 And I raised up and I fired two rounds. And
12 I felt like everybody around me fired at exactly the
13 same time. It felt like -- it -- it was just -- it --
14 it might have been another rifle, AR or something,
15 that was next to me. It felt like it was pretty much
16 exactly the same.
17 Q Were -- were you surprised when he suddenly
18 came towards the police?
19 A Well, yes. I -- I mean, I was hoping that
20 we were going to be able to resolve the situation
21 with -- with -- without using any -- any more levels
22 of force, that we were going to be able to -- to -- to
23 do that.
24 But, yes, it was surprising. Like, we are
25 covering him and trying to get him to comply and then, Examination of Chad Phifer 364
1 all of a sudden he's coming at you. And so, yes, I
2 mean, I was surprised. Like, now, there's really
3 only -- my only option is to -- to fire at him.
4 A Taser, if you were even to use a Taser at
5 that point, if it were even effective, he would pretty
6 much -- you know, he would be on top of you for the --
7 the Taser to be effective because of the distance that
8 the Taser travels. So, yes, I mean, I'm -- it was
9 what we had to do to prevent him coming at us.
10 MR. REES: Do you have any questions?
11 MR. JACKSON: No.
12 MR. REES: Questions from the grand jurors.
13 A GRAND JUROR: With all the commotion in
14 the room, you -- you said you didn't really hear
15 anything he was saying.
16 THE WITNESS: Mm-hmm.
17 A GRAND JUROR: And he was kind of ranting?
18 THE WITNESS: Yes.
19 A GRAND JUROR: Do you -- do you think that
20 maybe he -- do -- do you know if he heard what -- your
21 commands for him to drop his weapon? Do you know if
22 he heard you?
23 THE WITNESS: You know, I don't --
24 A GRAND JUROR: I mean --
25 THE WITNESS: -- I -- I'm sure he did 'cause Examination of Chad Phifer 365
1 there were lots of commands that were given. You
2 know, he -- when -- when -- the initial command, when
3 I was the initial person talking to him, I was
4 probably one of the only ones that was giving him a
5 command --
6 A GRAND JUROR: Mm-hmm.
7 THE WITNESS: -- to drop the knife 'cause I
8 had visual contact with him first and I said, "Drop
9 the knife." And --
10 A GRAND JUROR: But people were running
11 around in chaos --
12 THE WITNESS: Mm-hmm.
13 A GRAND JUROR: -- weren't they, at that
14 time?
15 THE WITNESS: They were running around
16 inside, but he's --
17 A GRAND JUROR: Trying to get away?
18 THE WITNESS: -- I'm looking at him.
19 A GRAND JUROR: Yeah.
20 THE WITNESS: And I'm saying, "Drop the
21 knife." And I -- I can guarantee you he heard that.
22 And then when we're inside the room, I don't know what
23 he could hear. But as I mentioned earlier, there's --
24 our presence alone is a visual command as well.
25 I mean -- Examination of Brad Nutting 366
1 A GRAND JUROR: Mm-hmm.
2 THE WITNESS: -- when you have a line of
3 officers and we're firing less-lethal rounds --
4 A GRAND JUROR: Mm-hmm.
5 THE WITNESS: -- at you and you can see us
6 and we're yelling at you, that alone is something that
7 I think everybody in this room would understand, that
8 I need to comply with.
9 MR. REES: Anything else? Okay. If there's
10 no further questions, we'll excuse this officer.
11 Thank you for coming in.
12 MR. JACKSON: Stand right here and raise
13 your right hand.
14 BRAD NUTTING
15 Was thereupon called as a witness; and, having been
16 first duly sworn, was examined and testified as follows:
17 EXAMINATION
18 BY MR. JACKSON:
19 Q You can have a seat.
20 Would you please state and spell your name.
21 A Brad Nutting, B-r-a-d. Last name is
22 N-u-t-t-i-n-g.
23 Q All right. And how old are you?
24 A Sorry. I'm 32, almost 33.
25 Q 32. And where are you employed? Examination of Brad Nutting 367
1 A City of Portland as a police officer.
2 Q Okay. How long have you been a
3 police officer?
4 A Since January 25th of 2007, so a little over
5 11 years.
6 Q Okay. What have been your primary
7 assignments during that time?
8 A I've been a patrol officer during that time
9 for the most part.
10 Q The entire period?
11 A Yeah. There was a couple months where I
12 worked with our Central Precinct Street Crimes Unit,
13 which is an undercover position, as an opportunity to
14 learn some more things.
15 Q Okay. And aside from your normal training,
16 do you have any other specialized training or
17 certifications?
18 A I do. I am an AR-15 operator, a less-lethal
19 operator, a firearms instructor, a Taser instructor,
20 an AR-15 instructor. I was on our Special Emergency
21 Reaction Team, it's called SWAT, for about
22 two-and-a-half years, extensive training with that.
23 And I'm also enhanced crisis intervention trained
24 since approximately 2013.
25 Q Okay. And what is that last one that you Examination of Brad Nutting 368
1 mentioned there?
2 A The last one is -- so we have -- everybody
3 in the Portland Police Bureau is trained in crisis
4 intervention training, which is called ECIT. It's a
5 40-hour program. I received it when I was first hired
6 along with everybody else in our advanced academy.
7 The enhanced crisis intervention training
8 is another additional 40 hours of training focusing
9 on dealing with people in crisis and helping resolve
10 those calls. And then every year we have ECIT
11 in-service, is what it's called, which is a ten-hour
12 in-service, updates, and we also do scenario-based
13 training on that as well at times.
14 Q So if police officers or patrol officers
15 have an encounter with somebody in a mental health
16 crisis, will a ECIT officer be brought in to kind of
17 assist or help handle the situation?
18 A So depending on the call and how it comes in
19 it's received by the Bureau of Emergency
20 Communications, which is 9-1-1, oftentimes, ECIT
21 officers are automatically dispatched, depending on
22 the call, or an officer can request an ECIT officer to
23 come and assist them. So I found myself on those two
24 different scenarios.
25 Q Okay. And in your capacity as a police Examination of Brad Nutting 369
1 officer, ECIT-trained police officer, have you dealt
2 with people in mental health crisis?
3 A Yes. So my primary patrol area is downtown
4 in the PSU area. And we have a lot of -- not in the
5 PSU area, but a little bit north of there, a lot of
6 housing units.
7 And so I take a lot of calls in these places
8 that there's oftentimes multiple calls per night of
9 people in crisis or experiencing some sort of mental
10 health influence. And when I go to talk to them, it
11 kind of has that mental health aspect to it.
12 Q Okay. And have you relied on that --
13 that training to successfully talk to folks and
14 deescalate situations?
15 A Absolutely.
16 Q How often would you say you use that
17 training in your interactions as a police officer?
18 A I think I've utilized as training as kind of
19 an overall guise for how I operate as a police
20 officer. You know, it comes down to how you talk to
21 people, the demeanor, your body posture and also
22 assessing people and where they're at at that moment
23 and understanding what it is that, you know, is
24 affecting how their behavior or their responses are.
25 Q Does part of that training include Examination of Brad Nutting 370
1 deescalation techniques?
2 A Yes.
3 Q Okay. And have you utilized those
4 successfully in your career?
5 A Yes.
6 Q All right. Is your appearance before this
7 grand jury voluntary?
8 A Yes.
9 Q And you're not under subpoena or otherwise
10 compelled to be here and present your testimony?
11 A Correct.
12 Q All right. So I want to take you now to
13 April 7th of 2018. Were you scheduled to work
14 that day?
15 A No, I came in on an overtime shift.
16 Q Okay. And so how did that occur?
17 A So I had been asked if I could work an
18 overtime shift previous -- prior to that day. And so
19 I came in at my normal time and my normal shift hours.
20 I normally work afternoons, which is 4:00 p.m. to
21 2:00 a.m. And so I came in for 4:00 p.m. start time
22 and I started.
23 Q Okay. And during that day, anything unusual
24 happen?
25 A No. The only thing that stands out is I Examination of Brad Nutting 371
1 remember we had a high-wind advisory that day, just
2 bad, nasty weather.
3 Q Okay.
4 A Nothing abnormal other than that.
5 Q Okay. Nothing going on in your
6 personal life --
7 A No.
8 Q -- leading up to this?
9 Okay. Did you consume any drugs or alcohol
10 prior to starting your shift?
11 A No.
12 Q Or at any time during your shift?
13 A No.
14 Q Okay. Did the shift begin kind of as
15 normal, as usual?
16 A It did, yeah.
17 Q All right. At some point, did you become
18 aware of an incident down at MLK and Stark, a car
19 being abandoned in the street?
20 A It did.
21 Q Okay. What did you do -- or how did you
22 come across that information?
23 A So, initially, there was a call that was
24 broadcast on Central Precinct's radio net. So each
25 area geographically in the City has different radio Examination of Brad Nutting 372
1 nets. And so we listened to Central where I work.
2 And it had been a rebroadcast of a stolen vehicle
3 involved in a -- what sounded like a road rage with a
4 gun involved.
5 So I was listening to that net and then the
6 same vehicle was broadcast in a wreck at Southeast MLK
7 and Stark. And so I immediately attached myself to
8 that call because geographically, where I'm located
9 at -- in my work area, I can get across the Hawthorne
10 Bridge and go help out with that call.
11 Q And so were you patrolling the PSU area
12 prior to going over?
13 A Yes.
14 Q Okay.
15 A So I was on Southwest 4th Avenue. I can't
16 give you an exact location. I just recall passing
17 through Southwest Market, which is a couple blocks
18 that way.
19 Q Okay. All right. So you already mentioned
20 there was a rebroadcast of a carjacking that this
21 vehicle was associated with?
22 A So I later learned that this vehicle was --
23 and it was the vehicle that was stolen by force out
24 in East Precinct. The broadcast I spoke to earlier
25 was a North Precinct call -- I don't remember the Examination of Brad Nutting 373
1 exact location -- where a person had called into 9-1-1
2 and was reporting that they had been menaced and the
3 guy possibly had a gun and they had it on video.
4 And North Precinct officers were responding
5 to that location to investigate it. But they had
6 given out the same plate as -- as this MLK and Stark
7 wreck, which when I run the plate, it comes back to
8 the East Precinct incident and that information comes
9 in also.
10 Q Okay. So as you were coming into the area,
11 you were aware of both of those prior calls?
12 A I don't know at which point I -- I don't
13 remember at what point the East Precinct information,
14 I was made aware of. I knew about the North one for
15 sure 'cause I'd been listening to that and then
16 flipped back to Central and I attached to this call
17 after hearing that he had left on foot from the crash
18 scene where the vehicle ended up at MLK and Stark.
19 Q Mm-hmm.
20 A And my initial thought was, okay, we've got
21 a potential suspect running in the blocks who might be
22 armed with a pistol or a handgun, whatever was
23 reported.
24 Q Okay. So when you came into the area, what
25 -- what did you do? Examination of Brad Nutting 374
1 A So I came into the area waiting for a little
2 bit better description of the suspect, direction of
3 travel. And so I had come in on Water Avenue because
4 that's the farthest-west street that goes from the
5 Hawthorne Bridge to Stark and actually connects right
6 there.
7 And so I took that route, so if he had
8 run west, that I would be able to help contain that
9 area. And then the primary officer on the wreck gets
10 to that location about the time that I turn eastbound
11 on Southeast Stark from Water Avenue. And so I kind
12 of just continued my area check. I'm not seeing
13 anybody or anything that leads me in a direction.
14 Q Okay. And then can you kind of briefly
15 summarize the sequence of events that led up to you
16 arriving at the Cityteam Ministries?
17 A Okay. So doing my area check, looking for
18 the suspect description -- or the suspect described
19 from the vehicle, which also matched the North
20 Precinct call. I -- at one point, it's confirmed by
21 Officer Zach Nell on the radio that John Elifritz is
22 the suspect from that incident, from the wreck and
23 same description as the incident up at North, same
24 vehicle.
25 And so I'm like, okay. Now, I have -- I Examination of Brad Nutting 375
1 know who I can look for now instead of a general
2 description of a white male with no shirt who had
3 their pants on with lots of tattoos. And I'm
4 continuing my area check.
5 There's a call that comes in at Jacksons
6 Food Mart, which is -- I work the west side of the
7 river, so I apologize. It's, like, a block and a half
8 south of Southeast Stark on Grand Avenue on the west
9 side of Grand Avenue. (Indiscernible) an exact
10 address, sorry.
11 But a call comes in there, so I'm continuing
12 my area check. At that point, I'm pretty far south.
13 I'm on, like, Grand Avenue and Taylor area. So I'm
14 coming back northbound on Grand. Out -- it comes out
15 that that guy had left, but it sounded potentially
16 like the same description as Mr. Elifritz.
17 But there was an added piece to it that he
18 now had a blue-and-red jacket on -- or, I'm sorry, a
19 blue-and-red jacket, not two jackets.
20 Q Mm-hmm.
21 A And so I just continue my area check, 'cause
22 there's, like, no other direction at that point.
23 Q And then at -- at -- at that point, had you
24 received information that this person was armed with a
25 knife or some other kind of weapon. Examination of Brad Nutting 376
1 A Yes, sorry. I omitted that. There -- yeah.
2 So the original call at the Jacksons was that there
3 had been a male standing outside -- I think I recall
4 the time frame being, like, ten minutes -- holding a
5 knife and appeared to be under the influence of
6 opiates, heroin. I can't remember exactly which one
7 it was. That's what I can recall.
8 Q Okay.
9 A And then --
10 Q Go ahead.
11 A Sorry, go ahead.
12 Q No, go -- go ahead.
13 A And then there's -- so a block and a half
14 north of that location, an AMR, American Medical
15 Response, which is an ambulance, unit was at Southeast
16 Stark -- or, no. It was on Southeast Grand at
17 Southeast Stark. I believe they were at 509 Southeast
18 Grand Avenue on a call.
19 And they report this same described
20 suspect -- or subject with this red-and-blue jacket,
21 holding a knife and over at the doors to the shelter,
22 which is at 526 Southeast Grand Avenue.
23 And so I'm still northbound on Grand Avenue
24 and I go directly to them to talk to them and figure
25 out what information they have. Examination of Brad Nutting 377
1 Q Mm-hmm. Did you do that?
2 A I did.
3 Q What information did you learn?
4 A So I went to contact them. They had a
5 patient which was totally unrelated to any of our
6 stuff that was going on. And so the medic in the back
7 directed me to the driver.
8 And he told me that, essentially, what he
9 saw was there was a guy standing outside holding a
10 knife and that they had locked him out of the shelter
11 and that he had left the location, but he didn't know
12 which direction he had went.
13 So I broadcast that on the radio to
14 everybody else there. At that time, we had multiple
15 cars on Grand Avenue; and, you know, between Stark and
16 a block and a half south of that for the Jacksons.
17 And I'm getting back in my car and getting
18 ready to continue the area check. At this point, I've
19 surmised that I don't know where he went to, so I
20 continue driving around to try and locate him.
21 Q Okay. And then what happened?
22 A So as I'm starting to drive away, another
23 officer gets on the radio -- and I don't know who it
24 was -- and says, "I'm out with a guy in front of the
25 shelter." And he's -- I think he said, "Start to go Examination of Brad Nutting 378
1 through medical. He just cut his neck." And so --
2 Q Is this the information you heard over
3 the radio?
4 A This is information that's coming through on
5 the radio from another officer that's -- I'm assuming,
6 was behind me 'cause that's where the shelter ended up
7 being, is -- so I'm closer to Stark -- Southeast Stark
8 and the shelter is to my southeast at that point.
9 Q Mm-hmm.
10 A And so I stop my car and I get out. And
11 when I was speaking with the medic from AMR, Officer
12 Damerville was with me 'cause he had arrived at that
13 location as well.
14 And I remember he had his less-lethal
15 40-millimeter launcher with him. So I grabbed my AR
16 'cause I'm not -- I was never clear of how many people
17 were with us at that point. And so I grabbed my AR to
18 go provide him with lethal cover.
19 Q And why did you choose to bring the AR with
20 you as opposed to just relying on your handgun?
21 A Because of its accuracy --
22 Q Mm-hmm.
23 A -- the capabilities that it has to be more
24 accurate than a handgun.
25 Q Okay. So you decided to bring the AR, Examination of Brad Nutting 379
1 Officer Damerville has the less-lethal launcher. Did
2 you have a less-lethal launcher with you?
3 A I did.
4 Q Okay. And why did you choose not to
5 bring that?
6 A Like I said, I didn't know exactly how many
7 people were with us and how many people -- 'cause I
8 had started to drive and had already driven away.
9 And my thought process was, okay. We've got a less
10 lethal initially.
11 I'll go provide him with lethal cover and
12 I'll, you know, choose this -- this system that's more
13 accurate to provide that for him, as he's going to be
14 the less-lethal operator initially.
15 And then, I mean, there was other officers
16 working that were in that area doing an area check
17 that had less lethal because, during the Jacksons
18 call, an officer had -- I'm sorry, had been dispatched
19 or self-dispatched to that call that was also less
20 lethal. And so I knew they were still in the area.
21 Q Okay. So you went over to the Cityteam
22 Ministries shelter door --
23 A Correct.
24 Q -- with Officer Damerville. What did you
25 see there? Examination of Brad Nutting 380
1 A So Officer Damerville is standing in the
2 front door. It's -- I don't remember. I feel like
3 they -- I remember them opening outward, but it's got
4 a center post in the middle and he's standing on the
5 right side of the door.
6 There's people lined up on the outside of
7 the shelter as I'm coming up from the north, walking
8 south towards the shelter's entrance. And so we're
9 asking people, me included, like, "Hey, can you guys
10 move down the block? No standing in front of the
11 windows."
12 And I'm hearing them start to address --
13 there's other officers there -- start to address
14 Mr. Elifritz at this time inside. So I come up to the
15 door and Deputy Sieczkowski, who works on TriMet, but
16 is employed by Multnomah County Sheriff's Office, was
17 standing in the door with his pistol out.
18 And I let him know, "Hey, I'm here with a
19 rifle," just to, like, let him know that, "I'm right
20 here behind you." And so he ends up -- we make a
21 decision that we'll switch out.
22 So he steps back and I step forward, so I'm
23 right next to Officer Damerville and I'm in the
24 left -- the left door of the double doors.
25 Q And what did you see happening inside Examination of Brad Nutting 381
1 the room?
2 A So, at that point, there's a lot of people
3 inside and they're all starting to gravitate towards
4 the north wall away from Mr. Elifritz, who was
5 standing there in -- in the middle of the room. And
6 there's a center-fed, like, downward staircase.
7 And he's standing closer towards us than
8 where that's at, but he's got the knife up and it's in
9 his right hand. And he's just intently staring and --
10 super-intense stare at the officers in the doorway.
11 And what I remember about him was there's --
12 what I believed was a cut that ran from the bottom of
13 his jaw on the right side to, like, his collarbone
14 area and the blood was running down onto the front of
15 a zipped-up jacket.
16 And he's still got the knife in his hand.
17 He's clenching it really hard. And then there's
18 commands being given and warnings being given by the
19 other officers on scene about, you know, dropping
20 the knife.
21 Q Did you give any commands?
22 A I didn't, the reason being is part of our
23 training is -- is when there's multiple people giving
24 commands and multiple people talking all at once, it
25 gets very confusing. Examination of Brad Nutting 382
1 And it can oftentimes create confusion for
2 officers, for people involved, suspects, citizens.
3 And so I chose not to at that point because somebody
4 else was clearly articulating what needed -- you know,
5 what -- what the commands were and all that stuff.
6 Q Do you recall what commands were being
7 given?
8 A I remember, "Drop the knife. Drop the
9 knife. You're going to get shot with less lethal."
10 And it was either "less lethal" or "40 millimeter."
11 I can't remember what the exact verbiage
12 was, but there was a command to drop the knife and
13 then a warning of, "If you don't drop the knife,
14 you'll be shot with less lethal."
15 Q How did he respond to those commands?
16 A I don't recall him ever responding to them.
17 He just continued to look at us intently. His
18 shoulders were rolled up. He was posturing as if he
19 was, like, ready for a fight.
20 And, yeah, it -- I don't ever recall him
21 having any response to any sort of verbal contact
22 other than just continuing what he was doing and
23 failing to comply.
24 Q Okay. What happened then?
25 A Officer Damerville fires one 40-millimeter Examination of Brad Nutting 383
1 less-lethal round and I remember watching it. And
2 from what I recall, it struck him right about where
3 your belt buckle would sit, which is where we're
4 trained to aim for, the belt line.
5 He was about -- I'm trying to think now --
6 seven to ten yards away from us inside the building at
7 this point, from what I recall. We're still standing
8 in the doorway kind of side by side. And there's a
9 guy sitting right in front of me.
10 I think there was a (indiscernible) right in
11 front of me. He's a little bit off to my left; but,
12 like, a couple yards in front of me and he's just,
13 like, frozen in fear. That's what I recall seeing on
14 his face.
15 And I'm watching the responses we're getting
16 from Mr. Elifritz and I -- I'm watching a round impact
17 and I see a quick grimace of, like, kind of a
18 tightening of the abdominal muscles, is what I would
19 kind of articulate what happened, but his behavior
20 doesn't change.
21 And then he starts to walk, kind of back
22 pedal, keeping us kind of in sight with the knife in
23 his hand. He's still not dropping the knife. And so,
24 now, I'm getting even more concerned about everybody
25 that's inside. Examination of Brad Nutting 384
1 And I didn't know what he was going to do
2 and my biggest fear was he's going to go back towards
3 these other folks that have kind of tried to push
4 themselves away from the incident and go kill them
5 with his knife.
6 And I'm thinking at this time, like, I -- I
7 can't respond appropriately because there's people
8 behind him and I have to worry about that as far as
9 being lethal cover or being in that position to have
10 to take that shot. And so we're working on getting
11 the guy out in front of me as that's all happening.
12 Q Okay.
13 A And other people are trying to find a
14 way out.
15 Q And so you said that you're trained on the
16 less-lethal launchers as well, right?
17 A Correct.
18 Q And so when you saw that reaction or lack of
19 reaction from him being struck by one of those, what
20 -- what started going through your mind about other
21 options available to you to deal with the situation?
22 A At that point, when I saw his reaction, I --
23 my initial reaction back to his reaction was I told
24 Officer Damerville, "Hit him again," meaning, like,
25 send another round. We need to, like, keep trying Examination of Brad Nutting 385
1 this because right now we don't have -- based on our
2 distance, his movement, we don't have something else
3 we can use right now to stop him from doing what he's
4 doing, other than, you know, getting up to lethal
5 force.
6 It's like the 40 millimeter provides us a
7 standoff distance. He's out of range of the Taser and
8 he's just -- so that -- that was my initial response
9 to that.
10 Q Okay. So there weren't -- it sounds like
11 there weren't any other options available to you at
12 that point to deal with the situation other than try
13 to hit him again with the less-lethal launcher?
14 A Correct.
15 Q Okay. So what happened then?
16 A So -- and I don't remember the exact
17 chronological order, but it's happening kind of
18 simultaneously. He started to move farther away
19 from us back towards the group of folks that is in
20 the northeast corner. And he comes around this half
21 wall on the other side away from us.
22 And there's a guy sitting there in a chair
23 and I remember him walking towards him. And that's
24 where I kind of left off earlier. Like, there were so
25 many people around him, I can't appropriately address Examination of Brad Nutting 386
1 him if he starts trying to kill somebody with his
2 knife. And --
3 Q Do you mean you couldn't use deadly force?
4 A Correct.
5 Q And why is that?
6 A Because of what was behind him. There was
7 people behind him and I'm thinking as I'm essentially
8 coming up, looking for, like, what is my backstop, I'm
9 looking around. And I'm seeing people inside the
10 shelter just kind of stuck, trying to figure a
11 way out.
12 And I'm seeing a door, but I don't know
13 where it leads to in the back, in the northeast
14 corner. And then there's a stairwell door, but it
15 looks like it just leads upstairs off to the northwest
16 corner and then an entry door.
17 And so, like I said, simultaneously, this is
18 kind of all happening. And somebody -- there was
19 another officer behind me or maybe off to my right
20 that says, "Hey, we need to, like -- we need to find a
21 way where we need to move in."
22 I'm like, "Yeah, that makes sense. We need
23 to, like, get down this wall and protect these people
24 'cause he's moving towards them." And I think at that
25 point, Rich Bailey had shown up. He was another Examination of Brad Nutting 387
1 less-lethal operator.
2 That's kind of the chronological part where
3 -- he might have been there before that, but after
4 that, I don't know exactly when he got the call. And
5 so as the person on the left side of the door, knowing
6 that I have other officers behind me, I say, "Okay.
7 Let's -- let's move towards the left."
8 And I don't know how articulate it, but
9 there was a plan made and then we moved to the left.
10 And I, basically, placed myself and the other officers
11 in between the people that are in side, kind of panic
12 stricken and frozen and they're up against that
13 north wall.
14 I placed ourselves in between them and
15 where -- where Mr. Elifritz is at, you know, in an
16 attempt to essentially provide them with a barrier of
17 us. And he responds by backing away from us towards
18 the southeast corner of the building -- or the room.
19 Q And is it your recollection that commands
20 are continually being given to him throughout that
21 time period or has that kind of fallen off?
22 A No. Commands were -- so I'm taking minutes
23 upon minutes to explain this. This happened very
24 quickly. Commands are continuing throughout this.
25 Warnings are still being given. I'm hearing them Examination of Brad Nutting 388
1 from across the room.
2 I'm hearing, out of my right -- the right
3 ear, commands from -- so it basically created an L in
4 the room. There's officers on the west wall, which
5 was where the entry door was. And then I'm over on
6 the north wall towards the northeast corner. So I'm
7 hearing clearly commands from them.
8 I've got people behind me moving as far as,
9 like, citizens trying to move and find a way out. And
10 I'm hearing the commands throughout the
11 whole incident.
12 Q Okay. What happened next?
13 A So, at the point that he kind of backs away
14 from us, I mean, I don't know exactly where and
15 exactly when, but other less-lethal rounds are being
16 fired at him along with the commands and warnings.
17 He's continuing to hold this knife. And I'm
18 sorry, earlier, I kind of glossed over a point and
19 didn't articulate it. So when he had stepped behind
20 the half wall as we're moving in towards the north
21 wall, he's stabbing himself in the -- what I believed
22 was him stabbing himself.
23 I'm watching him take his right hand, which
24 he's been holding the knife the whole time and quickly
25 going towards the left side of his neck. And I'm Examination of Brad Nutting 389
1 seeing little red marks that appeared to be consistent
2 with stab wounds, from what I've seen doing my job on,
3 you know, patrol. So I'm watching him stab himself as
4 we're moving in, just trying to create this barrier,
5 so --
6 Q Okay.
7 A -- jump back a little bit.
8 Q That's okay. So you've now seen him
9 actually stabbing himself and you're aware of his
10 conduct leading up to this encounter and throughout
11 the day. And so you said you're in the L, he kind of
12 moves back to the southeast corner, and then what
13 happened?
14 A And so, at this point, I'm really, really
15 worried about everybody else around here. Like, he's
16 -- he's willing to stab himself in the neck. He's not
17 following commands from officers. He's not being
18 affected by this 40-millimeter launcher after
19 multiple rounds.
20 And he's back in the southeast corner. And
21 he pauses for a moment and he's still holding the
22 knife in his right hand and his shoulders are rolled
23 forward, like I said earlier, just kind of in this
24 fighting stance like he's ready to get in a fight.
25 And then, all of a sudden, he starts moving Examination of Brad Nutting 390
1 towards the officers that are on the west. So -- so
2 he starts moving really intently, very fast. It
3 wasn't a stroll. And he's holding the knife and he's
4 moving towards the officers along the west wall.
5 And as I'm -- I'm on target and I'm getting
6 ready to take a shot. As I'm getting ready to take
7 that shot and I've taken my shot, I'm hearing other
8 rounds go off as well. I'm thinking I'm hearing
9 40 millimeter as well as other lethal rounds going
10 off.
11 And I fire once at the point that he's still
12 advancing towards them 'cause the whole time that he
13 started moving towards them in the manner he's moving,
14 I'm thinking, he's going to go kill one of these guys.
15 Q That's what you thought would happen if you
16 didn't take action?
17 A Yeah.
18 Q Okay.
19 A 'Cause I'm hearing the rounds go off and I'm
20 not seeing any response from him at all. Like, he is
21 continuing to walk forward. And so, like I said, I --
22 I used lethal force to try and stop him from being a
23 threat towards those officers.
24 Q Did you feel like you acted consistent with
25 your training and Police Bureau policy on the use of Examination of Brad Nutting 391
1 deadly force?
2 A Yes.
3 Q Okay. After you fired your one shot, what
4 happened then?
5 A So after I fired the shot, I'm still
6 assessing his behavior and the change. He had stopped
7 moving forward, which is why I only fired one round
8 during the incident. And, basically, he falls to the
9 ground at that point.
10 And then I'm still holding lethal cover
11 'cause that was my primary role on this call, but also
12 trying to work through with everybody else that's
13 there on, okay. Like, how do we render aid to this
14 guy? How do we safely approach him? Where's the
15 knife at? Going through the post-shooting stuff that
16 we train to do.
17 Q Mm-hmm. At any point, did you consider
18 using a different tool at your disposal besides
19 the AR?
20 A No.
21 Q Why not?
22 A There was nothing -- as I spoke to earlier,
23 there was nothing that I had with me that was going
24 to be, A, capable of being deployed on him; i.e., the
25 Taser. And, I mean, I would have to put away my Examination of Brad Nutting 392
1 lethal cover tool, which was my rifle, to go to
2 another less-lethal tool.
3 Therefore, I'm pulling myself out of the
4 role that Officer Damerville and I had already
5 established. And it's -- it's a partnership. He
6 knows that his job is to be less lethal. My job is to
7 be the lethal cover for him and to protect him. And,
8 like I said, I -- there was just nothing else there
9 that I could have used.
10 Q Was there even time to have made that type
11 of a transition from when you perceived him moving
12 toward the officers with the knife?
13 A No.
14 MR. JACKSON: Okay. Do you folks have any
15 questions?
16 Okay. Thank you very much.
17 MR. REES: That's it for today.
18 MR. JACKSON: So that concludes our
19 testimony for today. We want to go off.
20 * * *
21 (Grand Jury No. 1 adjourned,
22 Volume 2, 5-7-18 at 4:50 p.m.)
23
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25 1
2 --oOo--
3 REPORTER'S CERTIFICATE
4 I certify, by signing below, that the
5 foregoing is a correct transcript, of the audio record
6 in the above-entitled cause, as recorded on CD and
7 transcribed to the best of my ability and in accordance
8 to the quality of the audio CD.
9
10 ______Katie Bradford, CSR 90-0148 11 Court Reporter (503) 267-5112 12
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25 1 IN THE CIRCUIT COURT OF THE STATE OF OREGON
2 FOR THE COUNTY OF MULTNOMAH
3
4
5
6 GRAND JURY No. 1 PROCEEDINGS
7 Case No. 28
8 Conducted by:
9 Don Rees, Chief Deputy District Attorney
10 Todd Jackson, Deputy District Attorney
11
12 - - -
13 May 8, 2018
14 - - -
15 DA Case No. 2380019
16 Re: PPB Case No. 18-114856
17
18
19
20
21 Katie Bradford, CSR 90-0148 Court Reporter 22 Portland, Oregon (503) 267-5112 23
24 Proceedings recorded on wma audio recording; transcript provided by Certified Shorthand Reporter. 25 Index 395
1 GENERAL INDEX
2 VOLUME 3
3 Page No.
4 May 8, 2018 Proceedings 396
5 Case Called 396
6 Examination of Richard Bailey 396
7 Examination of Justin Damerville 423
8 Examination of Aaron Sieczkowski 438
9 AFTERNOON SESSION 466
10 Examination of Eleizar Hernandez 467
11 Examination of Alexandru Martiniuc 472
12 Examination of Kameron Fender 499
13 Examination of Leland Samuelson 521
14 Reporter's Certificate 542
15 * * *
16
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25 Examination of Richard Bailey 396
1
2 (Volume 3, Tuesday, May 8, 2018, 8:42 a.m.)
3 P R O C E E D I N G S
4 (Whereupon, the following proceedings were
5 held in open court:)
6 MR. REES: We're back on the record. This
7 is Tuesday morning, DA2380019, Grand Jury No. 1, Case
8 No. 28. And to begin our morning session, our first
9 witness is Officer Richard Bailey.
10 RICHARD BAILEY
11 Was thereupon called as a witness; and, having been
12 first duly sworn, was examined and testified as follows:
13 MR. REES: For the record, would you please
14 state your name and spell your name.
15 THE WITNESS: My name is Richard Bailey,
16 R-i-c-h-a-r-d; last name, B-a-i-l-e-y.
17 EXAMINATION
18 BY MR. REES:
19 Q And are you a police officer with the City
20 of Portland Police Bureau?
21 A Yes, I am. I have been so for the last
22 about 2.7 years.
23 Q Okay. And are you one of the two officers
24 on scene who had the less-lethal 40-millimeter
25 projectile device? Examination of Richard Bailey 397
1 A I was, yes.
2 Q Okay. And without going into great detail,
3 but just to mention, what -- what brought you to that
4 location where the shooting occurred?
5 A I was -- heard that a crashed stolen
6 vehicle, crashed on MLK and Stark. While on route
7 there, as you all have previously heard, I heard about
8 the carjacking via the radio, Southeast Portland. I
9 heard about the gentleman also pointing potentially a
10 firearm -- not confirmed, though -- a gentleman or
11 someone in North Portland.
12 Looked around to find him and then I also
13 was dispatched to Jacksons where a gentleman was
14 waving around a knife, potentially high on drugs
15 wearing a red-and-blue jacket.
16 So that was my thought process, that this
17 guy's pretty violent or has showed indicators of such.
18 And the knife portion was learned obviously at the
19 Jacksons, so my concern is he still has the knife
20 with him.
21 Q When you -- so you said you were dispatched
22 to the Jacksons convenience store, which is just south
23 of the Cityteam Ministries.
24 A Correct.
25 Q And on the west side of the street. Did you Examination of Richard Bailey 398
1 make it to that location then? Did you have any
2 interaction with someone at that location?
3 A I did. So I was dispatched -- everyone was
4 on this crash stolen vehicle call. We were all
5 looking around and dispatch needed someone to free up
6 and go to this call at Jacksons. Someone's waving
7 their knife around. We need police officers to go.
8 So as I'm getting closer, I'm driving up
9 Grand from about Main. And dispatch informs us that
10 the subject left Jacksons walking southbound on Grand.
11 I'm driving northbound on Grand. I don't see the guy.
12 They already gave a brief description. I
13 don't see the guy. I tell dispatch that. And someone
14 thinks that maybe this is -- it's probably all tied
15 together. Crash is at MLK and Stark. One street
16 south is Washington. And Jacksons is at Washington
17 between -- south of Washington between MLK and Grand.
18 They say, "Hey, we think this is all tied
19 together. Can someone go there and just get a little
20 bit more info at Jacksons?" I tell dispatch to show
21 me a route. I pull in the parking lot. I've been
22 there numerous times.
23 I see an employee there. He's a white male,
24 about in his fifties. I say, "Hey, you know, where'd
25 this guy go?" He says, "He walked towards Grand from Examination of Richard Bailey 399
1 the parking lot," and then he told me -- which he --
2 he told dispatch southbound.
3 He told me, "Hey, he probably could have
4 gone northbound. I'm not sure." Maybe -- so now
5 he's -- now he's kind of retracting what he said. And
6 he told me he was wearing, like, a blue denim-type
7 jacket.
8 Sometimes dispatch is real quick and they
9 try to pull information and then they kind of, like,
10 end the call or they try to push it onto us. So
11 sometimes people feel rushed. So when I get there, he
12 kind of said, "Hey, maybe he went northbound."
13 And Cityteam Ministries is half a block from
14 Jacksons. Jacksons is on the west side of Grand.
15 Cityteam Ministries is on the east side of Grand.
16 Q All right. So what did you do?
17 A So I -- I'm about to put that information
18 over the radio. I think it's pretty significant that
19 he may have gone northbound versus southbound. And an
20 updated description that he's wearing a blue colored
21 jacket.
22 I'm about to put it out and I hear dispatch
23 say that AMR sees a gentleman with a knife to his
24 throat. That's what I thought I heard is a knife to
25 his own throat at the shelter. They didn't specify Examination of Richard Bailey 400
1 which shelter.
2 So I drive out of the parking lot. I
3 essentially park at Washington and Grand. I see AMR
4 on the west side of Grand. I know there's a shelter
5 right there, about Stark and Grand on the west side
6 and I also know directly across from there is Cityteam
7 Ministries on the east side of Grand.
8 So, initially, I thought they're on the west
9 side; but I see officers moving toward Cityteam
10 Ministries. In my mind, this gentleman just had a
11 knife, waving it around, high on drugs at Jacksons.
12 Let me bring the 40-millimeter tool with me as another
13 option.
14 So I took that in the car and we had to kind
15 of configure it. It's not set up -- well, I don't,
16 you know, drive around with that thing strapped to me
17 unless I have additional rounds. I don't drive around
18 with that strapped to me either.
19 So I had to take it out of the rack. I had
20 to attach the additional rounds to, like, a snap to my
21 leg. I put that on and I started moving quickly to
22 Cityteam Ministries.
23 Q Okay. And we've seen -- the grand jury has
24 seen the video from outside of Cityteam Ministries
25 where we see a large number of police officers on the Examination of Richard Bailey 401
1 sidewalk outside the front door. We've seen two of
2 the officers with a bright colored strap, which --
3 which I believe is the -- the strap on the 40
4 millimeter?
5 A That's correct.
6 Q Is that right? And I assumed that the
7 Bureau is using that as a color code for officers to
8 look and visually see that someone has that device and
9 it's not some kind of rifle or shotgun, that it's a
10 less-lethal device; is that right?
11 A Absolutely. We used to have the orange,
12 less-lethal shotguns. That's pretty distinguishable,
13 an orange shotgun. That distinguishes it. We moved
14 to this new system. The reason we moved to this new
15 system, it's more accurate.
16 The less-lethal shotgun just had eyesight.
17 It's very difficult to -- I'm sure you guys have been
18 briefed on this, but it's more accurate. It's a more
19 effective tool. And so, yes, the way to distinguish
20 it is an orange strap.
21 Q Okay. And so were you aware, either
22 visually or by the radio or some other means, that
23 there was another officer on scene with a
24 40 millimeter as well?
25 A Getting out of my car, no. Examination of Richard Bailey 402
1 Q Okay.
2 A Getting out of my car, no. I was like, this
3 is a tool I have. Let me bring it along.
4 Q Okay.
5 A It's better to have it and not need it than
6 in the middle of a situation, like, ah, I wish I had
7 that tool. So as I'm getting closer, I see there's
8 already a lot of officers at the door. I'm a little
9 -- a few seconds late. As I'm approaching the door, I
10 see all the officers facing in towards Cityteam
11 Ministries.
12 I see -- I don't know exactly who it was,
13 but I see one rifle on the left side of the double
14 doors, I see one rifle on the right side of the double
15 doors, and I also see Officer Damerville with a
16 less-lethal bright orange strap across his back, also
17 facing in. And he's in between the two rifles. And
18 they're all facing in Cityteam Ministries.
19 Q And beyond that, can you see what's --
20 what's happening?
21 A Yeah, so it's --
22 Q Can you see someone inside the -- the
23 homeless shelter?
24 A I can. It's dark and rainy outside. It was
25 a pretty terrible, wet day. And I see in and it's -- Examination of Richard Bailey 403
1 it's well lit like this.
2 As I'm looking, I see a gentleman standing
3 in the middle of the room. He has a (indiscernible)
4 in the room. In the middle, there's a staircase that
5 goes down. There's a pole in the middle. And I see a
6 knife in his -- I believe in his right hand. He's
7 waving it around, pacing back and forth.
8 I hear officers. I don't know who said, but
9 were saying things along the lines of, "Drop the
10 knife." I don't know who said that. I also see
11 people in the back left corner, probably about 15,
12 20 feet away from him that you guys have probably
13 heard about.
14 And I'm -- I'm very concerned about those
15 people. They're in very close proximity to this
16 gentleman. And they -- they're going to a shelter.
17 They just want to get some shut-eye, get some food in
18 their belly.
19 They don't want a guy running in with a
20 knife. I mean, that's -- for the time being, that's
21 -- that's their safe haven. And this guy just came in
22 running around with a knife. So I'm -- I'm very
23 concerned.
24 I think that he might run over there and
25 start stabbing somebody. I also, again, heard that -- Examination of Richard Bailey 404
1 or my belief is that he said -- that dispatch said
2 that he had a knife to his throat.
3 I don't know if that was -- if I heard that
4 incorrectly, but that's what I thought I heard. Knife
5 to his throat, so now this guy wants to -- he
6 committed all those crimes and now he's potentially
7 going to commit suicide? I don't want that to happen
8 either. That's the last thing.
9 I don't want him to kill anybody. I don't
10 want him to kill himself. I just want him to put the
11 knife down. We can take him into custody, take him to
12 the hospital. If he needs to go to jail, whatever.
13 We'll figure that out. But, like, just drop the
14 knife, dude.
15 But he's pacing back and forth, seems
16 extremely agitated. He's not listening to anybody.
17 He's -- he is just pacing back -- he seems very angry.
18 I think I see, like, blood on his shirt or around him.
19 And I think I see him, like, bring the knife in the
20 vicinity of his throat.
21 Q And if I may interrupt.
22 A Yes.
23 Q That point -- and I kind of put a pin on
24 that point right there. I want to step back for just
25 one moment to ask you whether, in your time as a Examination of Richard Bailey 405
1 police officer, you -- you've had other encounters
2 prior to this involving people who are agitated,
3 perhaps under the influence of drugs or in a mental
4 crisis armed with a knife?
5 A I've had a couple incidents. As far as
6 distinguishing the two, I -- I dealt with a gentleman
7 about two or three months prior to this. It was a
8 welfare check. We were dispatched on that.
9 He was in a -- under a staircase in
10 Northwest Portland. And we get there and he has his
11 stuff strewn about. I see medications everywhere.
12 And I look at them. I recognize them from my training
13 as a CIT officer, not ECIT, but CIT, that it was
14 probably schizophrenic medications.
15 And I ask him, "Hey, man, are these your --
16 your psych meds?" And he says, "Yeah, they are." And
17 I kind of -- we're just having a conversation.
18 He's -- he's coherent. He says he doesn't take his
19 psych meds.
20 He usually self-medicates with
21 methamphetamine. He told me that he moved from
22 California up to Portland 'cause he was having issues
23 with his -- with his family. But we're having this
24 conversation and he's rational and we're trying to
25 offer him services. Examination of Richard Bailey 406
1 And he ends up kind of packing his stuff up
2 and he was -- he was okay, rational. That same
3 gentleman I see about a month later in Southwest
4 Portland. We were also dispatched to that. And he is
5 frantic, pacing back and forth. I get there, he's
6 pacing back and forth. He's -- he's throwing his
7 stuff everywhere.
8 We're trying to talk to him and he's not
9 listening to us at all. These are the classic signs
10 that I see as he's high on stimulant, methamphetamine,
11 most likely. And we're trying to talk him.
12 We get additional resources there, an ECIT
13 officer. And, "Hey, man, let's go to detox, get you
14 in a warm place, let you just sober off this
15 methamphetamine." And he is just out of it. He is so
16 high on meth, he is not having any rational
17 conversation.
18 AMR gets there. He doesn't want anything to
19 do with them. Long story short, he did not want to
20 listen to us. We had to put him into handcuffs to get
21 him into detox. And he still kind of struggled
22 with us.
23 We didn't hurt him or anything, but it took
24 a second to get him in handcuffs. I just want to
25 distinguish the two. He told us he had schizophrenia. Examination of Richard Bailey 407
1 And I dealt with him the first time, rational,
2 coherent. And now this time, high on methamphetamine.
3 And he was out of it, very high.
4 Q You -- you had an encounter with someone a
5 week before this call on April 7th armed with a knife
6 in the same neighborhood?
7 A Correct. Afternoon, probably about a week
8 prior, we get dispatched to a call about a guy walking
9 around with a machete. Pretty concerning. It was,
10 like, Grand and Taylor area. And I also had my
11 less-lethal tool with me at the time in the rack.
12 Kind of look around for him.
13 We end up finding him and he still has the
14 machete -- it's a double-edged machete -- in his hand
15 as we -- we pull up. We kind of use distance to our
16 side. No one's around. And we immediately tell him,
17 "Drop the machete." And he does immediately. He
18 drops the machete.
19 He also has a metal ice pick with him. We
20 tell him to drop that. People do some weird things,
21 but those are concerning. I mean, ice pick, machete,
22 very dangerous weapons. And we tell him to drop that
23 as well. And he does so. No issues at all. We tell
24 him to sit down. He does that as well.
25 We move the weapons off to the side, get his Examination of Richard Bailey 408
1 name. We find out he has a misdemeanor warrant. We
2 take him into custody. No issues, no force, nothing.
3 I mean, this guy has walked around with a machete and
4 it wasn't an issue. It was --
5 Q So -- so on April 7th then, getting back to
6 this case, you were aware about -- I interrupted. You
7 said that you're -- you're seeing the suspect and you
8 said he was pacing, agitated, angry. What are you --
9 what are you thinking you might be able to do with
10 your less-lethal device, you and Officer Damerville?
11 A Well, my initial hope, again, is us telling
12 him to drop the knife, my hope is he would do the same
13 thing the gentleman did a week prior. That is my
14 hope. I'm just hoping that, put the knife down, dude.
15 Let's get you to the hospital, let's get you
16 wherever. Let's get you away from these people who
17 want to be -- you know, get some rest for the night.
18 Obviously, he's not listening to that. That's very
19 concerning to me. Pretty agitated.
20 So with the less-lethal tool, it gives us a
21 little bit of stand-off distance. We don't want to
22 run up there because if we run up there and try to
23 grab ahold of him, he can end up stabbing us and then
24 that's going to be a lethal encounter and that's just
25 right up there. Examination of Richard Bailey 409
1 So our hope is if I use the less-lethal
2 tool, you know, it'll capture his attention, cause
3 some pain and he'll drop the knife and we can, again,
4 take him into custody.
5 Q And in practice, not necessarily your
6 practice, but per your training, is that what has
7 happened in situations, encounters where people
8 haven't dropped the knife on a verbal command, but
9 they've been hit with less lethal and -- and then
10 they'll drop a knife?
11 A Yes. I mean, reactions vary, but I don't
12 know the statistics. I think training may have a
13 better idea of that. But if a Major League Baseball
14 player threw a baseball at your thigh, I mean,
15 whatever you had in your hand, you -- I mean, just --
16 I would drop something. It would capture my
17 attention.
18 That's the velocity this thing's moving.
19 It's not -- it's a foam round, but it -- it's going to
20 capture your attention. You're going to stop doing --
21 you hope they stop doing whatever they're doing. And
22 I've been on calls in the past where individuals have
23 been impacted by less-lethal rounds and they drop the
24 knife and get safely taken into custody.
25 Q So what did you do in the situation on -- at Examination of Richard Bailey 410
1 the sidewalk?
2 A So as everyone's facing in where, again, I
3 told you what I saw -- I heard, "Drop the knife or
4 we'll do less lethal." It's pretty clear in our
5 policy that we have to give a warning as well. And,
6 obviously, I want him to comply with the least amount
7 of necessity for force as possible.
8 I tell him something along the lines of
9 "Drop the knife or you'll be shot with a less lethal."
10 He doesn't -- I -- he didn't respond to me at all. It
11 was pretty noisy in there. There was people yelling
12 and screaming with fear. And he didn't respond. I
13 aim at the preferred target area, as we're trained.
14 I aim towards his left thigh facing me, my
15 right side. I aim towards his thigh. I say, "Less
16 lethal." I believe I say, "Less lethal," once and I
17 deploy one less-lethal round towards his thigh. I
18 believe I see the material kind of move and he does
19 not respond.
20 I'm thinking to myself like, this is
21 terrible, like, dude, oh, my goodness. He just got
22 shot with a less-lethal round and he's not responding.
23 Like, oh, my goodness.
24 Like, we -- we're kind of limited on what we
25 can do right now. That's a pretty -- less lethal, Examination of Richard Bailey 411
1 shooting a -- or deploying a less-lethal round is --
2 it's pretty significant and he didn't respond to it.
3 Q When you say pretty significant, meaning
4 that the next level of force beyond that would be
5 deadly force?
6 A Yes.
7 Q So do you -- do you use your less lethal
8 again after that?
9 A I do. So I deploy one round. Officer
10 Damerville, he deployed right before or after mine.
11 I'm not sure. Someone mentioned something about we're
12 in a fatal funnel. And what a fatal funnel is if
13 we're standing in the doorway here, it's pretty easy
14 -- you've kind of restricted in your movement.
15 And if someone has a gun, like I thought he
16 may also potentially have, as I mentioned in the North
17 Portland call, he potentially pointed a gun at
18 somebody, we're standing in this fatal funnel and it's
19 concerning. We want to get out of there.
20 So either we can back out and kind of fan
21 out and we're going to have an obstructed view because
22 of the building and we're kind of, essentially, you
23 know, leave the people in there to fend for
24 themselves, which I don't want to do.
25 I want to get this guy safely into custody. Examination of Richard Bailey 412
1 We decide to move in. When we move in, I glance to my
2 left, like, as I'm opening the door, like, this
3 gentleman over here seated, and I see about five, ten
4 people standing over here. And they looked terrified.
5 So I tell them, "Hey, get out of here, like walk
6 behind us."
7 I yelled, "Just get out of here," and for
8 whatever reason, they don't. I don't know if they
9 were just frozen in fear, but they don't. So I think
10 to myself, he's about 15 yards in front of me. I need
11 to put myself in between these people that don't have
12 any training and experience that I know of, they don't
13 have tools with them, and this gentleman.
14 So I -- we positioned ourself in between
15 them and him. He's still pacing back -- his behavior
16 hasn't changed at all. Still doing the same things he
17 was doing. He kind of moves off to my right a little
18 bit and people are still giving him commands.
19 I, again, look towards his right thigh and I
20 say, "Less lethal," again and I deploy one more round
21 to the same area, his -- his left thigh, looking at
22 him, my right. It impacts. I believe I see material
23 move. Again, no response. And I'm even more
24 concerned now. Again, multiple rounds deployed and
25 he's not responding. Examination of Richard Bailey 413
1 Q Any -- any additional rounds by you?
2 A He moves to the right even more so and I
3 believe I gave him one more warning of, "Drop the
4 knife or be shot with less-lethal rounds," and, again,
5 I target the same area. I don't know why I kept
6 targeting the same area, but that was my tendency to
7 want to target the same area.
8 He doesn't respond to that command again and
9 I deploy one more round to his right thigh. I say,
10 "Less lethal," before I deploy the round, I believe.
11 And no -- no response.
12 Every time in between, this is a system
13 where you have to manually open it up, take a round
14 either out of the pouch on the -- on the blunt stock
15 or out of my leg pouch. So it's not like -- it's not
16 like you can just deploy rounds. You have to open --
17 you guys are well -- well aware of that. I don't want
18 to reiterate it more, but it takes time.
19 So throughout this whole time, I'm
20 reassessing, like, if he drops the knife at any point
21 and puts his arms out, if he drops the knife, like,
22 we'll move in, put him into handcuffs and we'll go
23 from there. We'll take him into custody, get him to
24 the hospital, whatever, but he never does.
25 Q And if -- if I could interrupt you again. Examination of Richard Bailey 414
1 Have you been trained that you need to assess and make
2 an independent justification for each time that you
3 use your less lethal?
4 A Yes.
5 Q And are you doing that in this process?
6 A Throughout the whole time. I mean, if his
7 behavior changes at any point, we're going to take
8 appropriate action. And my hope, again, constantly
9 reassessing. If he just drops the knife and we
10 approach, take him into custody.
11 You know, maybe prone him out, get him in a
12 safe position where we can safely take him into
13 custody. And he never -- his behavior never changes.
14 So after deploying that third round -- the second
15 round in my mind is a little fuzzy. It's -- I don't
16 know why. It's just -- it's not as clear.
17 I may have even dropped a round, but I'm
18 pretty -- relatively certain that I deployed that
19 second round and then went to that third round when he
20 was in the far right corner.
21 And, again, I believe I gave another
22 warning, "Drop the knife or you'll be shot with less
23 lethal." I say, "Less lethal," again, target that
24 area. It impacts him. Again, no response. That's
25 the third round. My mind goes down to my leg pouch. Examination of Richard Bailey 415
1 For some reason, I kept loading from there.
2 And as my mind went there, I noticed that he
3 rapidly moves towards us. I think he still had the
4 knife in his hand. I'm not absolutely certain. My
5 mind was more focused on getting that system
6 operational again. Then I see officers engage him
7 with lethal rounds.
8 He ends up -- as he's moving towards us, he
9 ends up falling to the ground face first. I notice
10 that his -- looking at him, his left arm falls under
11 his body and I can't see his right arm. And I don't
12 -- in my mind, like, I'm a little taken aback by
13 what's going on here.
14 Like, this is not a usual experience for me.
15 This is the last thing a police officer wants to -- as
16 a human being, I don't want to be around this, but I
17 don't want anyone to get seriously injured or killed.
18 MR. REES: Okay. So I'm just going to stop
19 you right there and just -- let's just see if there's
20 any questions -- well, questions from the grand jury.
21 A GRAND JUROR: You said you had CIT
22 training?
23 THE WITNESS: Yes, ma'am.
24 A GRAND JUROR: What does that include? I
25 forget what it stands for, so if you can refresh my Examination of Richard Bailey 416
1 memory.
2 THE WITNESS: I think it stands for crisis
3 intervention training.
4 A GRAND JUROR: Okay.
5 THE WITNESS: All Portland police officers
6 get it in our advanced academy. It's 40 hours and
7 we're taught how to identify some mental illness; how
8 to communicate with those mental -- that might be in
9 mental crisis, connect them with resources and
10 deescalation assist.
11 A GRAND JUROR: Does it include
12 methamphetamine drug psychosis?
13 THE WITNESS: It -- it mentions that it's --
14 it can be -- it can, at times, be difficult to
15 differentiate.
16 A GRAND JUROR: Mm-hmm.
17 THE WITNESS: It doesn't go real in-depth.
18 A lot of what that comes from is -- from my experience
19 in dealing with those with methamphetamines, just
20 like --
21 A GRAND JUROR: Mm-hmm.
22 THE WITNESS: I mean, it's not a perfect
23 example, but if you drank, like, ten pots of coffee,
24 you'd be -- you'd be going, right? You'd want to --
25 you don't want to sit still here. You'd be going. Examination of Richard Bailey 417
1 And it does -- drugs do some crazy things to your --
2 to your mind.
3 A GRAND JUROR: Mm-hmm.
4 THE WITNESS: But we've also -- we had
5 someone come in who was a doctor who had
6 schizophrenia. Very coherent. I mean, just because
7 you have a mental health condition doesn't mean you
8 can't -- you can't manage that. And you're not acting
9 like you are when you're on -- on drugs.
10 But it gives us skills to -- to attempt to
11 deescalate. But you have to be -- the other party has
12 to be a willing participant. If I walk in this room
13 and all you guys are just facing the other way, you
14 won't listen to me, I mean, I can't make you.
15 We're all our own free person. Our own --
16 we have our own free will. And if you don't want to
17 listen to me, I -- there's nothing I can do. I mean,
18 deploying less-lethal round, in my opinion, is going
19 to catch your attention. And it did not. But that's
20 what CIT training is.
21 A GRAND JUROR: I'm just wondering if he
22 might have felt trapped with a whole -- whole line of
23 police kind of -- you know, like a trapped in a corner
24 kind of thing, whereas when you're dealing with a
25 mentally ill or -- I don't have any experience with Examination of Richard Bailey 418
1 people on meth.
2 But it would seem that he was so paranoid
3 walking around, like, a one-on-one conversation that
4 you described earlier with another incident where, if
5 you could talk one on one, if it wasn't so crowded and
6 hectic in that room --
7 THE WITNESS: Mm-hmm.
8 A GRAND JUROR: -- maybe someone could have
9 got to him, communicated with him. Do you -- do you
10 think that might have been possible?
11 THE WITNESS: My concern is -- is all the
12 people in the room. I mean, in my mind, there's
13 immediacy there. I want him to be safely taken into
14 custody. That's what everyone there wanted to do, in
15 my belief, but that's my belief. And I'm hoping for
16 that, but I can't let him run into that corner and
17 just kill innocent people.
18 I -- I -- I can't do that. Like, I don't
19 want anything bad to happen to him, but I don't want
20 innocent people to die. Like, it's -- it's a terrible
21 place to be in. Like, I'm not saying that this -- the
22 gravity of the situation is extreme, but I can't let
23 people die.
24 And in my belief if we just leave, like,
25 he's going to run over there and kill somebody or kill Examination of Richard Bailey 419
1 himself. Again, I thought he maybe had a knife to his
2 throat. I thought he brought it up to his throat. I
3 thought I saw blood somewhere on him. Like, I don't
4 want him to die either. I don't.
5 And if he -- if we impact him with a
6 less-lethal round and he drops the knife, if it's
7 effective, he's not going to kill anyone else and he's
8 not going to kill himself, that's my hope. And
9 deploying all those rounds, it was -- he did not
10 respond to them.
11 I'm not going to say they weren't effective,
12 but he did not respond to them. They weren't
13 effective as we would hope. I would say that for the
14 effectiveness.
15 A GRAND JUROR: I have a question.
16 THE WITNESS: Yes, ma'am.
17 A GRAND JUROR: Officer Livingston, he said
18 it was approximately four minutes between the last
19 less lethal and when the lethal shots were fired,
20 according to his testimony. Do you know what was
21 going on between --
22 THE WITNESS: From the first and last?
23 A GRAND JUROR: I believe that's what
24 he said.
25 THE WITNESS: Oh. Examination of Richard Bailey 420
1 A GRAND JUROR: It was four minutes between
2 the last less lethal and when the lethal shots were
3 fired.
4 THE WITNESS: We all perceive things
5 differently --
6 A GRAND JUROR: Okay.
7 THE WITNESS: -- right? I'm not a
8 psychologist and I don't know how the mind works, but
9 without looking at a clock, I mean, I believe if we
10 ask everyone in this room how long we've been sitting
11 here, I think it might feel a lot longer 'cause I'm
12 sitting here in this seat.
13 To me, it felt like 40 -- 40 seconds to a
14 minute. It was very quick. Four minutes, in my
15 opinion, it did not feel that way. I also not -- I
16 also know from what we're trained is stress -- which
17 this was an extremely stressful situation -- people
18 perceive things differently. Sometimes people, time
19 slows down. Sometimes people, time speeds up.
20 Sometimes it -- the time is about accurate.
21 I mean, this -- this conversation about, like, a Major
22 League Baseball player seeing a baseball and can see
23 the seams as it comes towards him. And, anyway,
24 everyone perceives things a little differently. So I
25 don't know why he said that. That's what he Examination of Richard Bailey 421
1 perceived, I'm assuming.
2 A GRAND JUROR: Okay.
3 THE WITNESS: It seemed like 45 to 60
4 seconds at the most.
5 A GRAND JUROR: But you just kept doing it
6 as fast as you can, like, as far as less lethal before
7 the lethal was shot?
8 THE WITNESS: Yeah. We deploy our first
9 round; and, I mean, I'm trying to get that thing
10 operational. I deploy that first round at the doorway
11 as we moved in in between each successive round
12 between the first and third round.
13 I mean, it's maybe -- in the time for me to
14 -- it's on -- you know, I deploy a round, I bring it
15 down, open it up, put another one, bring it back up,
16 on target and deploy another round. And that's maybe,
17 at the most, five to ten seconds at the most.
18 A GRAND JUROR: You're kind of alternating
19 between the two?
20 THE WITNESS: Yeah.
21 A GRAND JUROR: Okay.
22 THE WITNESS: I think four minutes is --
23 A GRAND JUROR: How -- how often are the
24 non-lethal weapons effective? I mean, what's the -- I
25 mean, I -- I realize distance has something to do with Examination of Richard Bailey 422
1 it and if they're moving or -- but -- and -- and you
2 didn't aim at his torso.
3 THE WITNESS: No. It's --
4 A GRAND JUROR: 'Cause it's --
5 THE WITNESS: -- we're trained not to aim at
6 the torso. It's -- there's a lot of organs. And
7 again, it's a less-lethal tool. We don't -- if I hit
8 the guy in the abdomen or -- I wouldn't say abdomen,
9 but, like, in the chest area, I don't know if it's
10 going to break a rib. And that's not how we're
11 trained.
12 I mean, these -- your thighs, like they're
13 big, large muscle groups. There's no organs in your
14 thigh. And we're trained, if they're facing towards
15 us, the waist area and below. If we aim above that,
16 we target the head area, the neck area, that's
17 considered lethal force.
18 And that's not my intent. My intent was not
19 to use this platform, this tool when I deployed it, as
20 lethal force, so I was targeting his waist area and
21 below. I also noticed that he was wearing a jacket
22 and the split second when I thought of it, I thought
23 that the jacket would act as, like, padding.
24 I don't know if that -- if it would have or
25 not. So I targeted his -- his thighs where he's Examination of Justin Damerville 423
1 wearing jeans. And that's how we're trained.
2 MR. REES: Any other questions, folks? No?
3 All right. If there's no further questions,
4 thank you, Officer Bailey, for coming in.
5 THE WITNESS: You're welcome.
6 MR. JACKSON: All right. Let's wait for
7 just a second here. All right.
8 JUSTIN DAMERVILLE
9 Was thereupon called as a witness; and, having been
10 first duly sworn, was examined and testified as follows:
11 MR. REES: Okay. You can have a seat.
12 Could you please state and spell your name?
13 THE WITNESS: Officer Justin Damerville.
14 Last name is D-a-m-e-r-v-i-l-l-e.
15 EXAMINATION
16 BY MR. JACKSON:
17 Q Okay. Do you work for the Portland Police
18 Bureau?
19 A I do.
20 Q And were you working as a police officer on
21 April 7th of 2018?
22 A Yes, I was.
23 Q Did you respond to the Cityteam Ministries
24 that evening?
25 A I did. Examination of Justin Damerville 424
1 Q Okay. Very briefly, could you explain for
2 us your understanding of the call as you were
3 responding there and some of the events that
4 transpired.
5 A I can. Leading up to the call, heard
6 numerous calls coming out over the radio, one of which
7 was a crashed car that was identified as a car taken
8 in a carjacking. There was another mention of a call
9 with suspect holding his knife to his own throat or
10 someone else's.
11 Due to all the different calls coming out
12 pretty quick sequence, I had a trainee, I was trying
13 to explain to her those, so I missed some bits of
14 information as we were responding.
15 Then I heard another call directly across
16 the street from the Cityteam Ministries at the old
17 Shleifer furniture store, which is now the Columbia
18 shelter, with a guy holding a knife to his own throat.
19 I heard an officer that he was nearby, so
20 we -- my trainee and I initially respond to that
21 location to assist that officer. We get there, no one
22 was there. So as I --
23 Q Now, when you say "there," do you mean --
24 A At the Shleifer furniture location.
25 Q Okay. All right. Examination of Justin Damerville 425
1 A Or the Columbia shelter, as it's now called.
2 No one's outside the Columbia shelter that was
3 involved with any of the calls.
4 As I am unloading my less lethal because of
5 that call, I'm putting it back in the car. As I'm
6 doing so, my trainee says, "Hey, he's across the
7 street, has a knife to his throat."
8 At that point, I take my less lethal back
9 out of my car, started getting it prepared, wait for,
10 you know, oncoming traffic to pass. I cross over. I
11 can see --
12 Q Let me -- let me jump in with another
13 question --
14 A Okay.
15 Q -- for you before we get --
16 A Okay.
17 Q -- up to the Cityteam --
18 A Absolutely.
19 Q -- Ministries. So was it your understanding
20 that all of the calls that you just described involved
21 the same person --
22 A Yes.
23 Q -- that you are looking for?
24 A They all had the same general description of
25 a medium to large build male, no shirt, tattoos, with, Examination of Justin Damerville 426
1 I think, blue or black pants. And then there was also
2 mention that a shelter had provided the suspect with
3 a coat.
4 And I missed the call -- another call that
5 came down the street at the Jacksons gas station.
6 There was another call with a similar description that
7 came out as an unwanted. I missed the details of what
8 was making him an unwanted at that location, but there
9 was another call with a similar description.
10 Q Okay. So when you got to the Columbia
11 shelter, which is across the street --
12 A Correct.
13 Q -- from Cityteam, that you took your
14 less-lethal platform with you?
15 A Yes.
16 Q And so are you certified to operate that
17 system?
18 A I am.
19 Q Okay. And why did you decide to take that
20 tool with you?
21 A Because there was a mention of him holding a
22 knife to his own throat. And then the connection with
23 the previous carjacking with the knife; the -- there
24 was a brief mention of a gun in one of the other
25 calls, which was dispelled by one of the East Precinct Examination of Justin Damerville 427
1 officers over the radio, but confirmed that it was a
2 knife.
3 Q Okay. That there was a knife involved?
4 A Correct.
5 Q Okay. And that's why you brought the
6 less-lethal platform with you?
7 A Correct.
8 Q Okay. So I interrupted you as you were
9 describing coming up to Cityteam.
10 A Yes.
11 Q You had your less-lethal --
12 A I did.
13 Q -- system with you?
14 A I did.
15 Q Okay.
16 A I know there was, at that point, Officer
17 Phifer was there. There was another officer in the
18 doorway as well. I don't know who that was. I wasn't
19 really focused on who the other officer was. I took
20 position next to Officer Phifer, who had his rifle. I
21 immediately start giving commands to Elifritz to drop
22 the knife.
23 The reason I went straight to commands is
24 because he's in -- he's now inside of a shelter with,
25 I don't know, 30-plus people inside the shelter. Examination of Justin Damerville 428
1 There had been mention of, you know, some active
2 aggression towards others during the carjacking, so
3 opposed to, you know, trying to establish a dialogue,
4 we have, you know, unrestricted access to numerous
5 victims.
6 So I go straight to the commands of, "Hey,
7 drop the knife or you're going to be beanbagged." At
8 that point, he's still kind of backing away from us,
9 which means he's going in the general direction of
10 most of the people who were in the room. They're kind
11 of spread out throughout the whole room.
12 Q And you said you gave him a warning that he
13 needed to drop the knife or he would be beanbagged?
14 A Correct.
15 Q But you didn't actually have beanbag rounds
16 with you?
17 A Correct. It's a --
18 Q Why did you say that?
19 A -- terminology. We often use that
20 terminology because we just recently changed from our
21 old shotgun beanbag rounds to this new 40 millimeter
22 less-lethal launcher platform. It's a -- it's more of
23 a foam-impact weapon. It's about two inches long, 40
24 millimeters in diameter.
25 I opted to continue using the term "beanbag" Examination of Justin Damerville 429
1 because it's more recognizable. It's -- you know, if
2 just -- if I tried to explain this before. I thought
3 if it was in a static environment where I wasn't on a
4 call and going through the terminology of, "Stop or
5 drop the knife or you're going to be less-lethaled,"
6 it just doesn't flow right.
7 So I stuck with beanbag. Generally, people
8 know what a beanbag round is, so I -- I opted to stick
9 with that terminology.
10 Q Okay. How did Mr. Elifritz respond to your
11 commands?
12 A There was a -- he continued to back away. I
13 believe he said no, but the room was so loud and
14 chaotic, I -- I can't say for sure that's what he
15 said, but that's what it seemed like he said.
16 Q Okay. In response to you saying, "Drop the
17 knife"?
18 A Yeah.
19 Q Okay. What happened then?
20 A At that point, he was somewhat behind a
21 chair. Our less-lethal platform, we aim for below the
22 belly button, generally. I end up beanbagging him in
23 the left thigh. He's somewhat behind of a chair.
24 He's never stationary. He's always moving. His
25 movements are pretty sporadic. Examination of Justin Damerville 430
1 So at one moment he's standing behind the
2 chair. He moves just enough that it opens up that
3 kind of target area on the left thigh and I beanbag
4 him for the first time.
5 Q Okay. And where were you positioned at
6 that point?
7 A I was still in the doorway.
8 Q Okay.
9 A So from the door, you have a desk on the
10 right and amid all of the room, there's, like, a half
11 wall that's a stairwell going down. So he's kind of
12 between the corner of the stairs and the corner of the
13 desk, kind of at an angle.
14 They -- I mean, obviously, they're not
15 perfectly 90 degrees. They're more at an angle. He's
16 midway kind of between the two. I'm --
17 Q Were you aware --
18 A -- beanbagging him.
19 Q Go ahead.
20 A I saw the knife in his right hand up to his
21 right -- his left side of his neck. I could see what
22 was either a laceration or a puncture wound on his
23 left neck and there was blood on the floor as he was
24 backing away.
25 Q Okay. You saw all that? Examination of Justin Damerville 431
1 A I saw all that.
2 Q Were you aware of whether there were other
3 less-lethal operators --
4 A At that --
5 Q -- nearby or around?
6 A At that moment, I was the only one in the
7 doorway. I had beanbagged him the first time and as
8 soon as I beanbagged him the first time, I knew there
9 were tons of officers behind me.
10 I didn't know how many or who they were or
11 if there was another less lethal, so I immediately
12 yelled, "Hey, get me another less lethal." Because
13 with the new system, we -- it's a 40 millimeter tube.
14 It only holds one, so after each deployment,
15 you have to open the tube, manually remove it, drop
16 it, grab the next one, reload it, reclose it, which
17 can take, you know, anywhere from two to five seconds,
18 depending on how smooth or if you stumble with the
19 pouches or anything else. So I immediately wanted a
20 second less lethal there.
21 Q And did one arrive?
22 A Officer Bailey arrived.
23 Q Okay. How did things progress from that
24 point?
25 A At that point, I'm not sure if the second Examination of Justin Damerville 432
1 less lethal was me or if it was Officer Bailey. There
2 was another deployment of a less lethal. Well, there
3 were two more in pretty quick succession from each
4 other. And it was either Bailey then me or me and
5 then Bailey for the second and third. And there, I'm
6 not quite sure.
7 Q Was it your impression that the rounds were
8 impacting him?
9 A Yes. So the first one, I saw kind of a
10 little forward movement of his upper body, an auditory
11 groan or a word.
12 Again, it was loud and pretty chaotic, so I
13 couldn't understand what it was; but there was an
14 auditory reaction as well of my first round. My
15 second round, generally the same target area. I don't
16 remember an auditory reaction on that one, but I did
17 see the upper body movement.
18 And then Officer Bailey's round, either
19 being the second or the third, I don't recall any
20 reaction at all. I wasn't paying attention. I was
21 probably in the process of reloading, so I didn't
22 actually see his round impact.
23 Q Okay. At any point, did Mr. Elifritz drop
24 the knife?
25 A He did not. Examination of Justin Damerville 433
1 Q Okay. So, at some point, did you and other
2 officers move into the room?
3 A Correct. That would be after the third less
4 lethals. I don't -- I don't know who said it. I
5 think it was Officer Phifer who said, "Hey, we need to
6 push forward. We need to get those people out."
7 At that point, we kind of pushed forward,
8 kind of fanned out from what would be the desk to the
9 northern side of the stairwell, 'cause he is more on
10 the southern end of the room generally, kind of
11 creating a egress route for all the people in there.
12 And I know that a lot of the officers that
13 would be on the northern end of kind of that fan were
14 giving commands and getting people out. And that was
15 their primary focus based on what I could hear, the
16 commands being given and, you know, the people moving
17 behind us and getting out of the building.
18 Q Okay. And what was your focus on?
19 A My focus was on Elifritz. He was still kind
20 of moving back and forth, still had the knife in his
21 hand. At one point, he starts actually moving towards
22 the group of people in what would be the northeast
23 corner of the room.
24 The -- the citizens or witnesses that'd were
25 in the room there, they actually start creating a Examination of Justin Damerville 434
1 little barricade with chairs to keep Elifritz back,
2 'cause he's moving towards them generally. Elifritz
3 stops at one point, either behind a pillar or behind
4 that half wall with the stairwell. I don't remember
5 which.
6 I know there was the stairwell and then
7 behind it was a pillar. So my -- my depth perception
8 in that moment, I -- I can't recall if he was behind
9 the pillar or the wall. That point, I attempt a third
10 less lethal. He's behind the wall.
11 I have a very small target area of his right
12 hip -- sorry, his left hip. I attempt to beanbag him
13 there with a less lethal, used my less lethal at that
14 moment. And that round I'm not even sure makes
15 contact with him.
16 It either skips off of his hip or skips off
17 the corner that he was behind, so I end up seeing the
18 round impact the back wall. So it ricocheted either
19 off of Elifritz or off the wall, I'm not -- not sure
20 which. The -- the impact round's moving at 300 feet
21 per second, so it's really hard to see exactly where
22 it impacts beyond a general idea.
23 Q Mm-hmm.
24 A But I -- I couldn't tell.
25 Q Okay. What -- what's going through your Examination of Justin Damerville 435
1 mind as you're deploying these rounds and they aren't
2 having any effect on this person?
3 A That moment, my priority is getting the --
4 the citizens, you know, the bystanders out of that
5 room, 'cause once we can remove them from the
6 equation, we can slow things down.
7 We can, you know, go more into our
8 conversational piece. But when there's, you know, an
9 act of aggression towards, you know, innocent
10 bystanders, we have to address that piece first.
11 And so that was my -- my priority was
12 getting them out, obviously trying to get Elifritz to
13 drop the knife with the less-lethal impact rounds.
14 You know, and historically, they -- there are numerous
15 deployments of those that get compliance.
16 I mean, I know of numerous cases where, you
17 know, four or five are used before compliance is
18 reached. So we were evaluating that. I had had -- we
19 had some brief conversation on the line prior to
20 moving in after the first or second round that they're
21 not effective.
22 We're going to have to try to use it again,
23 but we need to move people out. And I think that was
24 Officer Phifer saying that, but I'm -- I'm not a
25 100-percent certain. Examination of Justin Damerville 436
1 Q Okay.
2 A There were a lot of voices going on at the
3 moment.
4 Q So you're in the room. You guys have kind
5 of fanned out. Your focus is on Mr. Elifritz. Other
6 officers are trying to move these citizens out. What
7 did you see happen then?
8 A At that point, Elifritz then moves kind of
9 in a southwest direction. Generally in our direction,
10 but not directly at us. More of a southern with a
11 slight westward tendency to it.
12 There's a pillar on the south end of the
13 wall. He kind of takes position behind that. While
14 he's moving, I can still see the knife in his hand.
15 Again, I believe it's his right hand.
16 As he's moving across, I aim midline just
17 above the belt line, kind of between the belt line and
18 the belly button and I bean -- less lethal him for the
19 fourth time, for my fourth deployment. That point,
20 I -- I don't recall a physical or an auditory
21 reaction.
22 I do see the round impact him, but I don't
23 recall a reaction. At that point, he moves kind of
24 behind a small one-foot pillar, maybe a
25 foot-and-a-half pillar that's up against the wall. I Examination of Justin Damerville 437
1 lose my angle there. Officer Bailey's on my left. So
2 that point, I go to move.
3 I actually go to move toward the other end
4 of where the officers are fanned to get a better
5 angle. As I'm moving, I see Elifritz make a pretty
6 deliberate movement towards officers back kind of in
7 the position I was at originally with Officer Phifer,
8 Bailey and then whoever else was next to him in -- in
9 that little fan.
10 At that -- at that moment, I hear, you know,
11 several gunshots within -- you know, within a second
12 of him making a pretty deliberate movement towards
13 them.
14 MR. JACKSON: Okay. Any questions? Do you
15 folks have any questions? I see none.
16 All right. Thank you very much.
17 THE WITNESS: All right. Thank you.
18 MR. JACKSON: So let's go off the record.
19 (Recess taken, 9:32 a.m. - 11:09 a.m.)
20 MR. JACKSON: All right. We're back on the
21 record with our next witness.
22 Raise your right hand.
23 AARON SIECZKOWSKI
24 Was thereupon called as a witness; and, having been
25 first duly sworn, was examined and testified as follows: Examination of Aaron Sieczkowski 438
1 MR. JACKSON: You can have a seat.
2 Could you please state and spell your name?
3 THE WITNESS: Certainly. Name's Deputy
4 Aaron Sieczkowski. The first name's A-a-r-o-n, the
5 last S-i-e-c-z-k-o-w-s-k-i.
6 EXAMINATION
7 BY MR. JACKSON:
8 Q And where are you employed?
9 A The Multnomah County Sheriff's Office.
10 Q How long you been a sheriff's deputy for the
11 Sheriff's Office?
12 A For almost seven years. I've been employed
13 since July 11th, 2011.
14 Q Okay. And what have been your positions in
15 the Sheriff's Office?
16 A I worked patrol on the onset and then I was
17 assigned to the Transit Police Division about 2013.
18 It's a specialty position. And I've spent about five
19 years at the Transit Police Division with another year
20 back on patrol on night shift.
21 Q Okay. And so as a member of the Transit
22 Division, are your patrol areas kind of all over
23 the --
24 A Yes.
25 Q -- metropolitan area? Examination of Aaron Sieczkowski 439
1 A Exactly. Anywhere in the three counties.
2 So, like, I guess the easiest way to explain TriMet
3 for those that don't know is it's a number of agencies
4 that work together that take 9-1-1 calls for service
5 on -- anywhere on the line.
6 And the line is anywhere the bus goes,
7 anywhere the light rail goes. So it's -- it's pretty
8 huge territory in Clackamas, Washington and Multnomah
9 Counties.
10 Q Okay. And where are you currently assigned?
11 A I'm assigned out to East Precinct, which is
12 generally, like, 82nd all the way up and down
13 Clackamas out to Troutdale.
14 Q Okay. Gresham area?
15 A Yeah, certainly.
16 Q Yeah.
17 A East Portland.
18 Q East Portland.
19 A Yeah.
20 Q Okay. Do you have a partner?
21 A I do, yes.
22 Q Who's that?
23 A It's Deputy Tyler Simpkins.
24 Q How long have you two been together?
25 A We're not set partners. We kind of rotate Examination of Aaron Sieczkowski 440
1 based on our availability. We're really short staffed
2 right now, just like anyone else is, but so usually if
3 someone's off, we'll jump in the car with someone
4 else, so that's how we kind of work.
5 Q And is Deputy Simpkins with the Clackamas
6 County Sheriff's Office?
7 A He is, yes.
8 Q Is it common for you guys to be partnered up
9 with members of other agencies?
10 A Certainly, yeah. I've had West Linn
11 partners, I've had Washington County partners, I've
12 had Clackamas County partners. It's kind of like the
13 -- it's a weird position where you kind of go
14 everywhere within the city limit sprawl and then you
15 work with a number of agencies to kind of accomplish
16 what you're trying to do.
17 It's -- because we don't have that many
18 calls on -- on TriMet for service, we also help out
19 the agencies in the jurisdictions that we're kind of
20 currently in if they need help on a call. Because
21 everyone across the board is short staffed
22 police-wise, we'll kind of help them on calls. And
23 that was kind of the scenario with this incident.
24 Q Okay. So let's move to this incident.
25 April 7th, 2018, you were working? Examination of Aaron Sieczkowski 441
1 A Yes, I was.
2 Q Okay. And what were the hours of your
3 shift?
4 A It's from 2:00 in the afternoon to midnight.
5 Q Okay. And when did you first become aware
6 of John Elifritz?
7 A It was about 2:30 in the afternoon. At
8 TriMet, we listen to -- I -- I generally work in East
9 Portland, between 82nd and 182nd -- or 162nd. And so
10 I -- I usually am monitoring east net.
11 And I think in this -- in this scenario, it
12 was broadcasted that east dispatch, which is -- which
13 is East Portland, had nonemergency off the air, which
14 means that they're holding the air because of a
15 critical situation with a person involving a knife in
16 a potential stabbing.
17 And that's when I became privy to all the
18 information that was broadcasted in that call out at
19 Lents Park with a person holding the knife to his
20 throat and a bunch of officers canvassing the area
21 looking for bodies.
22 Q Okay. And was it your understanding that
23 they did not find any crime scene or any bodies, as
24 you put it?
25 A We listened to the whole thing and they -- Examination of Aaron Sieczkowski 442
1 they didn't. And so, therefore, they disengaged from
2 Mr. Elifritz at that time.
3 Q Okay.
4 A Who we determined to be Elifritz.
5 Q Later on in your shift, did you actually
6 respond to a call at Cityteam Ministries in the Stark
7 and MLK --
8 A Yeah.
9 Q -- area?
10 A We did, yes.
11 Q Okay. And prior to arriving there, what
12 additional information, if you could just briefly
13 summarize, did you learn?
14 A Sure. Again, because of, like, this
15 position of being an officer able to go through all
16 these different precincts and stuff, we were able to
17 go to all the nets. And on this particular day, it
18 was a super stormy day. It's kind of more of an
19 administrative day for me. I had a search warrant
20 to write.
21 I had a couple other cases to review video
22 on. And with the weather being so bad, we weren't
23 going to get a lot of calls for service, so I was just
24 able to kind of monitor the different nets. And after
25 hearing the disengagement out at Lents Park, I'd heard Examination of Aaron Sieczkowski 443
1 numerous other calls going on regarding Mr. Elifritz
2 and his behavior at that point.
3 Other citizens calling in 9-1-1 because I
4 knew at that time that Lents Park was having a rugby
5 game and there was a lot of people in that area. So
6 we kept on hearing these other calls come in before we
7 switched back to our regular net. And then we went to
8 lunch over in North Portland.
9 And I think the time we went to lunch about
10 6:30 in the afternoon. It was my partner and I. We
11 were with our sergeant. And I was listening to the
12 north net when we got back into our car. On my
13 computer, we have message that go out to everyone's
14 BOLO, right, be on the lookout.
15 And the information on there was the
16 carjacking information, that John Elifritz was
17 suspected to be involved in this carjacking by force.
18 And there was probable cause to arrest him for robbery
19 and the, what we call UUMV, which is Unauthorized Use
20 of a Motor Vehicle. It's basically a robbery
21 involving a car.
22 And as we were reading this information --
23 mind you, we're listening to the north net -- we heard
24 dispatch say that there was a road rage incident
25 coming out in North Portland where the person driving Examination of Aaron Sieczkowski 444
1 the same Honda CRV -- they had the same license plates
2 -- had pointed a gun at another citizen as they were
3 driving, just kind of this erratic behavior.
4 We listened to this call, and as soon as the
5 plates come out, my partner and I are able to stitch
6 it together and we were like, it's the same guy. He's
7 without a shirt on, he's heavily tattooed, he's
8 driving a stolen vehicle and now pointing a gun at
9 someone. So immediately, we're like, this guy's crime
10 spree is continuing.
11 This incident at Lents Park wasn't just
12 isolated. His behavior is now propagated to -- you
13 know, all the way to North Portland. I mean, that's,
14 like, two opposite sides of the metropolitan area.
15 As we're listening to this information here,
16 I believe it was K9 officer come on and say, "Hey,
17 we're going to make contact with this victim of the
18 road rage incident." We get some more details about
19 the gun, firearm.
20 We knew that he was at least armed with a
21 knife based on the Lents call. Now, we have a firearm
22 involved. As that K9 officer's contacting that person
23 and broadcasting the information about that, we -- our
24 dispatcher kind of simultaneously said, "Hey, Central
25 has that car crashed on MLK and Stark," the downtown Examination of Aaron Sieczkowski 445
1 Portland inner southeast corridor.
2 And, at that point, I turned to my partner.
3 We were -- we were right at like 60th and Sandy at
4 that point. I'm like, "Hey, we -- we're right here on
5 the freeway. Let's -- let's go help out Portland with
6 catching this guy."
7 Q Okay. So you decided to go and assist the
8 Police Bureau?
9 A Correct, yes.
10 Q All right. And let me just take one step
11 back. Prior to starting your shift that day, was
12 there anything unusual going on in -- in your personal
13 life?
14 A No. It was -- it was a normal day. I
15 helped coach an endurance class up in Vancouver and I
16 had that. So I was -- I was, you know, definitely,
17 like, pretty energized to go to work and came in
18 realizing what the weather was doing. It was just any
19 day -- it was any other day other than the weather
20 being just fraught, so --
21 Q Okay. And prior to starting your shift or
22 at any time during your shift, did you consume alcohol
23 or drugs that would affect your ability to do
24 your job?
25 A No. Examination of Aaron Sieczkowski 446
1 Q Okay. So you hear that the car is crashed
2 down inner southeast corridor. You decide to respond
3 in there. What function were you planning to perform?
4 A We're going to assist in the apprehension of
5 this guy and see -- contact him. I knew that area
6 really well. I'd worked Central for two-and-a-half
7 years at TriMet, so I'm really familiar with that
8 southeast area, that inner southeast area, Grand, MLK
9 area. And I knew that I had pretty good knowledge of
10 this.
11 We're a two-man partner car, which is an
12 advantage. Most -- most officers, Portland officers
13 don't operate two-man partner cars, so we have that
14 added ability of having two officers on scene to help,
15 and, like, deal with an incident. We have more
16 resources available.
17 And in addition to that, he can operate the
18 computer and piece this case together while I'm
19 driving, focusing on lights and sirens coming down --
20 downtown.
21 Q Okay. And were you in uniform?
22 A I was, yeah.
23 Q And the vehicle you were driving was a
24 marked patrol car?
25 A Yeah. Examination of Aaron Sieczkowski 447
1 Q Okay. So you get into -- into the area and
2 what happened?
3 A We drive in. We see that there's other
4 Portland vehicles in that -- in that vicinity. We
5 start kind of just doing an area check for him.
6 Should stand out. He doesn't have a shirt on. And
7 the weather was so bad.
8 I'm sure all this -- I don't know if you
9 guys recall that day, but it was -- I just remember,
10 like, sideways rain. Getting out of my car, I'm like,
11 oh, man, I really don't want to be outdoors and this
12 guy's walking around, you know, this highly populated
13 area without a shirt on. He should stand out.
14 And we -- we had a picture of him on our
15 MBT, so we knew what he looked like. And we had
16 his -- his physical descriptors, which stood out.
17 He's a large -- large human being.
18 So we're driving around for a while and we
19 get a call that comes out at the Jacksons, which I'm
20 really familiar with that location as well down there
21 off of, I believe it's like Washington and Grand, that
22 the person matching this description was acting
23 erratically, standing in front of that store for a
24 while with a knife in his hand.
25 And to me and my partner at least, like, Examination of Aaron Sieczkowski 448
1 that's him for sure. We now know that -- and it's
2 very close to the proximity where that -- that vehicle
3 crashed.
4 Q Mm-hmm.
5 A So, like, let's swing by that Jacksons and
6 see if he's still there, see if we can maybe just get
7 an indication from someone at the gas station where'd
8 he go, so we can contact him.
9 We drive up to the gas station and the
10 attendant's outside. I believe it was an attendant,
11 nice lady. She's just pointing south, which is, "That
12 way, light blue jeans, light blue pants. That's him."
13 So I broadcast, "Hey, this is good
14 information. He's still in this area, still has the
15 knife and he's last seen southbound." Where he --
16 where he turned out to be is just north of that
17 location.
18 So we continue to look for him. Very soon
19 after that, within I'd say just a few minutes, the
20 ambulance, which we could see right when it was being
21 broadcasted, it said, "Hey, there's a -- there's a
22 person standing outside of the -- the homeless shelter
23 on the west side of the street with a knife in his
24 hand."
25 This is him. He's now migrated up north. Examination of Aaron Sieczkowski 449
1 Somehow, he's up there. So we -- we believe the
2 information was good. And we see the ambulance is
3 right there, so my partner and I, we drive up real
4 quick to there. We stack up between. There's another
5 Portland officer, Portland officer and myself behind
6 this ambulance.
7 We're thinking he's on the west side of the
8 street facing us. And one of the Portland officers
9 runs up and contacts the ambulance operators.
10 Determined that it was kind of older information, but
11 the description, everything fit.
12 And immediately, I'm like, "Hey, let's go
13 back to this area search thing." I start walking back
14 to my car and I see him. And it was -- I'll never
15 forget it. It was -- it was just insane to me.
16 I guess in the cop world at least, you know,
17 you try to go into every situation thinking you can
18 handle whatever it is, right, 'cause, like, who else
19 you going to call, you know?
20 And I just remember, like, saying, like,
21 this is no big deal. We'll find him, we'll arrest
22 him, we'll take him to jail, hold him accountable for
23 what he's done, get him the help he needs.
24 And as I'm walking back to my car, I see
25 him, and he's just gushing blood from his neck and Examination of Aaron Sieczkowski 450
1 he's staring at me from the window across the street,
2 the east side street.
3 Which was alarming me because we had thought
4 that he would be on the west side of the street, the
5 homeless shelter. There's also a homeless shelter on
6 the opposite side of the street with big storefront
7 windows. And it was really well lit. And he's
8 just -- he's just standing there like -- like this.
9 He's got that knife in his hand. He's just
10 looking at me, just fixed. And I'm like, oh, Jesus.
11 And immediately I see just this, you know, the red.
12 Blood that comes from your neck is arterial red. You
13 know it's pretty serious stuff.
14 And I was working when the -- the slaughter
15 happened on the MAX train last summer where the guy
16 with the knife came, murdered two people on the train
17 and darn near killed the other guy. And I saw all the
18 videos in that. And, God, it's horrific what -- what
19 a knife can do in a close situation like that.
20 And it really just flashed back to me
21 immediately in that moment, hey, you know, this guy's
22 bleeding from his own throat. No doubt it's him,
23 right? He's huge. And everyone around him, 'cause
24 the place was full of people, you know. It was a
25 shelter. It's full of people. Examination of Aaron Sieczkowski 451
1 They're backing away from him like, what --
2 what is going on? And -- and he's just staring me
3 down. And I -- I hear, "Hey, I -- I got him right
4 here." And -- and everything in that moment to me
5 becomes really serious.
6 It's not this, like, hey, we're the police,
7 we're going to go, we're going to go do our thing
8 and -- and we're always in control of the situation.
9 At that moment, I had that -- that kind of, like,
10 fleeting worry. This is really, really serious. He's
11 bleeding from his neck and he's got a room full of
12 people in this -- in this building.
13 I've been in that building before. It's not
14 big, you know. And it -- with the amount of people
15 inside, the fact that he was actively bleeding, I knew
16 that this was going to be like -- this is going to
17 be -- like, this is -- this is a big deal.
18 Q Okay. So you get up to the door.
19 A Yeah. I immediately run across the street.
20 I think I get into my car. So, I mean, Grand is a big
21 street. I'm focused on him. He's focused on me,
22 staring at me. And I -- I (indiscernible) the door
23 and I remember just flinging that door open.
24 The door's not easy to open, but I think I
25 had, you know, just like -- that immediacy to me, that Examination of Aaron Sieczkowski 452
1 adrenaline. Just opened the door. I remember the
2 door, like, flying out of my hand. Oh, geez, you
3 know.
4 I pulled the door and I see that there's
5 even more people that I thought originally in there.
6 And they're kind of, like, cowering in the -- in the
7 back zone, scared of this guy and what's going on.
8 I come in and immediately he -- he -- he's
9 standing at me in this, like, kind of, like, stance.
10 And he starts backing -- backing up away from me, you
11 know. And as he does that, he comes into contact with
12 this older gentleman and immediately grabs him and he
13 brings his arm around him with the knife like this,
14 you know, like, over his shoulder.
15 And I'm like, oh, Jesus, Jesus. And it's
16 happening so fast. It's like I'm -- I -- I tell you,
17 I have dreams and stuff like that. I feel like my
18 legs are like jello at this point. I'm --
19 fortunately, you know, dreams -- this situation did
20 not play out like the way I kind of -- you know, like,
21 I dreamt about in the past.
22 But he holds him up with this knife and I'm
23 thinking, wow, we have a hostage situation now. I put
24 it out over the air, "Hey, we might have a hostage
25 situation." As that's happening, I have more Portland Examination of Aaron Sieczkowski 453
1 officers kind of, like, coming up behind me, helping
2 to hold these doors open.
3 And he's -- he's -- I swear, he's just
4 staring right at me when this happens. As soon as I
5 see this hostage situation, he sheds away from the guy
6 and starts kind of backing up and retreating back into
7 this -- if you're looking into the -- into the -- the
8 room, he starts going off to the looker's right.
9 There's some chairs scattered about. He's
10 fumbling with the chairs. And I yell immediately,
11 'cause, you know, it's -- it's one thing if he's in
12 here alone, you know, if it's just him with a knife;
13 but now it's something else, 'cause there's people
14 that are trapped to me.
15 And it -- and I just think, in recollection,
16 I'm like, why couldn't they get out, why couldn't they
17 get out? Well, there was no way out for them. They
18 were stuck in this room with this guy in this closed
19 thing with this -- it's just like this -- this
20 stinking TriMet incident, right?
21 You know, there's people trapped on a train
22 and a guy with a knife can do so much damage and
23 they're just stuck in a corner. And these people are
24 panicking. It's -- it's chaos. It's -- it's easy to
25 talk about it now in this room where it's -- it's Examination of Aaron Sieczkowski 454
1 nice, air conditioned, it's quiet. In there, it
2 was not.
3 It was screaming. It was pandemonium.
4 People are yelling. They just saw a guy gut himself
5 in the neck with a knife, you know. And he's huge.
6 He's a big, intimidating guy and he's in control. And
7 all these people have to defend themselves with are
8 wood chairs.
9 And we're -- we're stuck in this doorway
10 trying to figure out what we're going to do with this
11 guy because we have some immediacy going on here and a
12 whole lot of moving parts that are rapidly evolving
13 right in front of our eyes with limited options. I
14 yell out, "Everyone get out of the room."
15 And I think that kind of clicked for a lot
16 of people. "Yes, police are here. We can move." And
17 some people were able to immediately run and we were
18 able to get them out of the doors. But some people
19 were really focused on the terror that was going on
20 inside of this -- this room and they -- and they kind
21 of, like, sheltered in that location.
22 I know there's bathrooms back in there. I'm
23 sure they had people in the bathrooms, probably, like,
24 15 to 25 people. And he comes in. We get less lethal
25 -- we call them operators, but they're just people who Examination of Aaron Sieczkowski 455
1 have beanbag guns. We get them up front because he
2 has a knife.
3 And we're like, hey, we're going to be able
4 to beanbag him. You're thinking, okay, now we're
5 going to -- we're in control of the situation. We
6 have some things that are not going for us here, but
7 it's something we definitely can't walk away from.
8 Why can't we walk away from it?
9 Can't walk away from it 'cause this guy's
10 actively bleeding from his neck, he's going to die.
11 And we have potential hostages in here. One guy who
12 was already taken hostage for -- if it was just
13 moments, it doesn't matter to me.
14 Obviously, this guy's definitely
15 demonstrated his -- his willingness and his ability to
16 use this knife and to threaten other people with it.
17 He's done a carjacking. You know, he's had the
18 standoff with the police out in Lents Park.
19 He was driving erratically across all of
20 Portland. We can't walk away from it. We got people
21 in here. If we walk away from it and he goes and
22 attacks these people, I can't live with it.
23 And if he just bleeds and just dies there
24 because we walked away from him -- his throat, I can't
25 live with that either. You got to do your job as a Examination of Aaron Sieczkowski 456
1 cop at that point and -- and deal with the situation
2 and hopefully we're able to get him to come to his
3 senses and drop this knife and surrender peacefully to
4 us and have a great outcome for it. But that's not
5 what happened.
6 Q Okay. So, at some point, do you guys move
7 into the room?
8 A We did. It wasn't -- we didn't move in
9 until after we'd beanbagged him with this 40 -- 40
10 millimeter impact round. It's kind of like a Nerf-tip
11 thing, but it hits hard. It's like a potato gun.
12 That's kind of the way I explain it to my wife.
13 What is this, you know? You ever been hit
14 by a spud gun? Well, my wife's not. I grew up in --
15 in the country. She doesn't know what that is. She
16 grew up in a nice place. And it hurts. It really --
17 it -- it really does. And I'm trained to use the
18 thing, so I've hit targets with it. I've seen what it
19 does to the targets.
20 It's -- it's a -- it's -- you know when you
21 get hit with the thing, but the weird thing was in
22 this case is he's just staring. He's not reacting.
23 We're just pleading with him to drop the knife and he
24 gets hit with these things.
25 And I remember just, like, mentally saying, Examination of Aaron Sieczkowski 457
1 he's getting hit and he's not even flinching. These
2 rounds that would knock me to the ground in the fetal
3 position. You'd need to haul me off, man, and I'd be,
4 like, limping for a few days, not even phasing him.
5 He's upright. He's moving around.
6 He's in this athletic stance with this knife
7 still locked in his hands, staring intently at us.
8 It's a showdown. And we're hitting him with, I -- I
9 think, in terms of less-lethal options, probably,
10 like, the most -- the greatest deterrent to using
11 something other than lethal force is this
12 40 millimeter thing and -- and it's not even working.
13 We hit him more than once. We hit him
14 twice. We're like, hey, we have people in the back
15 running back and forth, you know, crazily trying to --
16 frantically trying to get out of this -- this cage
17 that they're trapped in.
18 And I'm like, hey, we need to take this room
19 and we need to make a fence, a protective fence
20 between us and this guy, because if he runs into this
21 crowd of people, there's no way we're going to be able
22 to stop him. I'm serious. We're going to have to run
23 directly up onto him and do something, you know,
24 really drastic. And we didn't want it to get to that.
25 In the meanwhile, he's just shuffling back Examination of Aaron Sieczkowski 458
1 and forth, not responding, getting hit with this --
2 with these impact rounds. So we come in, we fan out.
3 I have Officer Nutting with me. He's got an AR15, so
4 he's a little bit more accurate than my handgun. So
5 he takes in --
6 Q Was your handgun drawn at that point?
7 A Yes, it was.
8 Q Okay.
9 A You know, the funny thing is, I couldn't
10 tell you when I pulled my handgun out. I -- I don't
11 know why, but I -- I had my gun in my hand when we
12 were dealing with the situation.
13 I just -- it's almost, like, it's magic. It
14 happened, but it's just -- you're thinking so --
15 you're so intent on what's happening in front of you,
16 it's so -- it's such a critical situation, you just --
17 anyway, I fan out to the -- the left.
18 If you're looking in this room, I fan out to
19 the left, which is orientation-wise, the north side of
20 this thing. And my thought was, if he runs to this
21 crowd of people that are kind of trapped in the
22 corner, I'm going to run and put myself between him
23 and them. I'm going to deal with it with my firearm.
24 And he stays over on this right side of the
25 room. We're giving lots of commands. We have a bunch Examination of Aaron Sieczkowski 459
1 of force. We had this -- this huge show of force. We
2 had lots and lots of cops here, right? It's obvious
3 we want you to drop the knife, you know.
4 I couldn't tell you how many times "drop the
5 knife" was said in all manners and tones. He
6 wasn't -- he wasn't going to drop the knife. There's
7 no doubt in my mind he's going to drop the knife and
8 he didn't. And he shuffles back and forth and he
9 starts getting closer to the -- where we're kind of
10 lined up.
11 And I -- I have, like, this banister thing
12 between me and -- and him. I'm not worried, really,
13 directly about me. I'm worried about these people and
14 my Portland friends over here on my right. And he --
15 as he's shuffling forward, he gets in this, like,
16 hunched down kind of athletic position.
17 And he's close. I -- you know, I'm worried
18 now because he's now really close to these officers
19 and he's in a position where he can move quickly
20 forward. And it's almost like in my mind -- I'm sure
21 he paused for maybe nanoseconds; but, in my mind, it
22 was a clear and defining moment for me.
23 If he gets any closer, he's going to be in
24 that -- in a -- in a lethal range where he can get up
25 on these people before they have a chance to react to Examination of Aaron Sieczkowski 460
1 what he's doing. I've been trained in reaction gap
2 stuff. It's real.
3 The ability to see something -- if someone's
4 initiating an action upon you -- I'm not sure you guys
5 have heard about it -- but you're behind the ball.
6 We're reacting to what this guy's doing.
7 And we didn't just walk in and -- and shoot
8 him immediately because he hadn't presented himself in
9 a situation that was this direct, imminent threat.
10 But now he was on the threshold of that where if he
11 had started charging forward, he was going to be able
12 to get to the officers before we're able to react to
13 see what he was doing.
14 But if he was going to go back and react
15 and -- and go backwards, we're going to reassess.
16 Reassess, you know, we're fine, just continue what
17 we're doing. Hopefully something changes in his mind
18 or he just drops the knife and we all go home.
19 And he didn't. He lunged and he started
20 propelling his feet under him and he started charging
21 directly at those officers. And I knew in that moment
22 of time that if I had -- I had great -- great sight on
23 him and everything.
24 And it's -- it's crazy to talk about, so if
25 I talk too fast, slow me down. I knew that, like, he Examination of Aaron Sieczkowski 461
1 was moving at them. He was charging at them. And I
2 knew in my mind that he was going wade into those
3 officers with that knife.
4 And your ballistic vest counts for nothing
5 against a knife. Your throat counts for nothing
6 against a knife. And I took the shot. I saw him
7 moving forward, saw him charging and I knew he was
8 going at those officers and I shot him. And I -- I'm
9 sure I shot him once.
10 I can't be a hundred-percent certain,
11 because, man, I -- I don't even -- I couldn't even
12 tell you what it sounded like. I thought I was the
13 only one that shot when I did. And it was almost,
14 like, as soon as I started tracking with my pistol and
15 I shot him, he hit the ground. That was it.
16 He hits the ground and -- and I -- I'd never
17 forget, like, the sound that he made when he hit the
18 ground. It was -- it was just gut wrenching to me,
19 and I'm sure to everyone else in that room. He was
20 done immediately.
21 I turned to make sure that everyone is
22 starting to get out of his room because he's not
23 moving. And I hear on the radio that we're getting --
24 we're getting him medical aid immediately. And I
25 knew -- I knew that they were -- that they had been Examination of Aaron Sieczkowski 462
1 staging on that location, so it was going to be
2 relatively quick to where we could get him help.
3 Q So you fired one time?
4 A Yes, I believe so.
5 Q Okay. As -- as far as you recall?
6 A Yes.
7 Q And did you feel like in making that
8 decision, you were operating within the Sheriff's
9 Office policy on use of force?
10 A Absolutely.
11 Q And deadly use of force?
12 A Yes.
13 Q Okay. Why did you -- as you recall only
14 shooting once, why did you only shoot once?
15 A Because when I fired and to me, I recall,
16 like, seeing -- I don't recall, like, pulling the
17 trigger, but I recall seeing what I believe my round
18 impacting, like, his side.
19 Like, this -- he had a poncho on at this
20 point, some kind of -- some kind of coat. I remember
21 it pushing in. I'm like, that's -- that's a hit. But
22 it was, like, as soon as it happened, he went down.
23 And he wasn't a threat anymore.
24 He was down on the ground, proned. He
25 wasn't going to -- you know, he -- he didn't have his Examination of Aaron Sieczkowski 463
1 feet under him anymore. He wasn't charging forward
2 anymore. No need to keep shooting. That was my -- my
3 thought process.
4 MR. JACKSON: Okay. Questions?
5 BY MR. REES:
6 Q Do you just -- so is your training at the
7 Sheriff's Office that you stop shooting when the
8 threat stops?
9 A Yes.
10 Q Okay. You have a college degree?
11 A I do.
12 Q Right. You went to University of Nevada and
13 Reno?
14 A Correct.
15 Q What did you major in?
16 A Criminal justice. I was going -- going for
17 a dual degree in psychology and criminal justice.
18 There was just so many credits to -- ten more credits
19 to -- it would have cost me another semester to do the
20 dual degree, so -- and I was out of money. I was a
21 poor college student.
22 Q Okay. But you studied some psychology
23 and --
24 A No. No, because it'd change everything I
25 could get. I -- I'd have a double major in Examination of Aaron Sieczkowski 464
1 psychology. But I taught psychology at the -- at the
2 college.
3 Q Oh. So I just wanted to -- you had that
4 background prior to being a police officer. You --
5 you obviously -- I -- I think from your presentation
6 it's clear, you've thought a lot about this -- this
7 incident.
8 A Yeah. I mean, it's just dominated. How
9 could you not? It's -- it's, like, as bad as it gets
10 for being a cop, you know, just taking someone else's
11 life.
12 Q So -- so when thinking about it over the
13 last 30 days or so, do you -- do you see any other
14 option to using deadly force in this case?
15 A No. No. There was no other way. I --
16 again, we couldn't walk away from him. We just
17 couldn't walk away from him. It was just -- the
18 amount of people that were trapped inside that place
19 and him bleeding profusing from his neck and the
20 felonies, the multiple felonies he committed
21 throughout the course of the day.
22 His behavior was not going to stop. If we
23 left and someone was going to -- I, in my mind,
24 someone else was going to die if we left. There's a
25 point where you have an obligation to deal with it and Examination of Aaron Sieczkowski 465
1 we were at that. And that continued when we
2 entered in.
3 And we used the tools that we -- people
4 think that the Taser's this amazing tool. It's not.
5 And maybe he was tased. I don't recall someone
6 shooting a Taser at that thing, but, to me, I don't
7 even use a taser when I'm dealing -- it would be such
8 a small thing, but it doesn't -- it doesn't -- it
9 doesn't work on a -- it hardly ever works on people.
10 And that wouldn't -- he wasn't feeling
11 anything. It was -- he's staring through us and these
12 impact rounds are hitting him with no effect. And
13 I -- for me, the -- the 40 millimeter is a bigger
14 use-of-force option than the Taser.
15 And it -- that had no effect. We were at
16 the ceiling of what we could do in terms of taking
17 him. And we just needed an ounce of cooperation of
18 from him, you know. So it was just dropping the
19 damn thing -- excuse my language -- just dropping the
20 knife would be -- would have changed everything about
21 the scenario.
22 And when he started charging at my fellow
23 officers, I knew in my mind that he was intent on
24 killing them and ending everything violently. And I
25 believe that he was -- he was an imminent danger to Examination of Aaron Sieczkowski 466
1 their lives and that's why I fired my weapon.
2 And I've thought about this a million times.
3 And there's no other way that we would have been able
4 to do it. Not with people in there. Not with him
5 bleeding out of his neck. Not with him still armed
6 with a knife.
7 MR. JACKSON: Do you folks have any
8 questions?
9 All right. Thank you, Deputy. Thanks for
10 your time.
11 THE WITNESS: Thanks.
12 MR. JACKSON: Okay. So that's our final
13 witness before the noon lunch break. So why don't we
14 go off the record.
15 * * *
16 (Noon Recess taken at 11:39 a.m.)
17
18 AFTERNOON SESSION
19 (Grand Jury No. 1, 1:07 p.m.:)
20 MR. JACKSON: All right. We're back on the
21 record following our lunch break. The next witness is
22 Eleizar Hernandez Ramirez.
23 Come on in. Stand right here.
24 And could you please put your name on the
25 record, ma'am? Examination of Eleizar Hernandez 467
1 THE INTERPRETER: Good afternoon. My name
2 is Courtney Acostagrates, A-c-o-s-t-a-g-r-a-t-e-s.
3 I'm Oregon court certified for the Spanish language.
4 MR. JACKSON: Okay. And could you please
5 raise your right hand, sir?
6 THE WITNESS: This one, right?
7 MR. JACKSON: Yeah.
8 ELEIZAR HERNANDEZ
9 Was thereupon called as a witness; and, having been
10 first duly sworn, was examined and testified as follows:
11 MR. JACKSON: Okay. You can have a seat.
12 Will you please state and spell your name.
13 THE WITNESS: My name is Eleizar Hernandez,
14 E-l-e-i-z-a-r.
15 MR. JACKSON: Okay. And your last name.
16 THE WITNESS: H-e-r-n-a-n-d-e-z.
17 EXAMINATION
18 BY MR. JACKSON:
19 Q Okay. I want to take you back to April 7th
20 of 2018. At around 7:25 that evening, were you
21 shopping with your family?
22 A Yes.
23 Q Where were you?
24 A We were at the Walmart in Delta Park.
25 Q Okay. And who was with you? Examination of Eleizar Hernandez 468
1 A My wife and three children.
2 Q How old are you kids?
3 A 14, 11 and 8.
4 Q Okay. When you left the Walmart, how did
5 you leave?
6 A Normally. We were driving the car.
7 Q Okay. And what did you notice as you were
8 leaving in your car?
9 A I noticed that a car was following me very
10 closely. And when we got to the stoplight, he pulled
11 up next to me and he started to say bad words to me.
12 But even when that happened, I continued driving
13 forward.
14 I ignored him. But when I took another
15 right, I noticed that he continued driving very
16 closely to me. And that was when I started to
17 record him.
18 Q Okay. And did you record him or did one of
19 your kids record him?
20 A It was one of my children. I took my cell
21 phone out. I put it to record and then I passed it to
22 her so that she could start recording.
23 Q Okay. At some point, did this individual
24 actually try to hit your car with the car he was
25 driving? Examination of Eleizar Hernandez 469
1 A Yes. He tried to do it three times.
2 Q Where -- was that before you started
3 recording or during the recording or after?
4 A Well, the first time was when, as I
5 mentioned, we got up to the first traffic signal. He
6 pulled up very close behind me and he almost hit me.
7 There's a -- there's a street and I'm not sure which
8 one it was, but it's off Columbia Boulevard and he
9 tried to do it again there.
10 And the third time around, he was even
11 closer and that time we were able to record him when
12 he was trying to hit us.
13 Q Okay. Why did you decide to start recording
14 this person?
15 A So that I could call the police and let them
16 know that I was being followed.
17 Q Okay. Did you get the license plate of the
18 vehicle?
19 A Yes.
20 Q And did you provide that license plate
21 number to the police?
22 A Yes. It seems to me they told me that he
23 had stolen that license plate as well, that it wasn't
24 the original plate on the car.
25 Q Okay. And at any point, did you or any of Examination of Eleizar Hernandez 470
1 your family members see him with a weapon in the car?
2 A My daughter saw that he was holding
3 something in his hand. He was using it to hit against
4 the window to try to get us to stop. And because it
5 was so windy and rainy, I wasn't able to see what it
6 was that he had in his hand, but he was hitting it
7 against the window to try to get us to stop.
8 Q Okay. Did you tell the police about that?
9 A Yes.
10 Q And did you have a guess about what that
11 item was?
12 A It seems that perhaps it was a knife.
13 Q Okay. Do you or any of your family
14 members -- well, do you recall you or any of your
15 family members saying anything about a gun to the
16 police?
17 A My daughter was the one who was recording
18 and because she was nervous and out of fear, she
19 lowered the phone and wasn't able to record what it
20 was, but she saw something and she said it looked like
21 a weapon.
22 Q Okay. But not a gun?
23 A My daughter mentioned that it may have been
24 a gun, but she wasn't certain that that was what it
25 was. Examination of Eleizar Hernandez 471
1 Q Okay. And was that information provided to
2 the police?
3 A Yes.
4 Q Okay. The video that your daughter took of
5 the individual, was that provided to the police as
6 well?
7 A Yes.
8 MR. JACKSON: Okay. Do you folks have any
9 questions?
10 Okay. That's it. Thank you very much.
11 THE WITNESS: Thank you.
12 MR. JACKSON: Thank you.
13 Our next witness is going to be Officer
14 Martiniuc.
15 Officer.
16 THE WITNESS: Hello.
17 MR. REES: Hi. Can you please raise
18 your hand?
19 ALEXANDRU MARTINIUC
20 Was thereupon called as a witness; and, having been
21 first duly sworn, was examined and testified as follows:
22 MR. REES: And, sir, please be seated.
23 And when you're ready, if you could state
24 and spell your first and last names.
25 THE WITNESS: My first name is Alexandru. Examination of Alexandru Martiniuc 472
1 You spell that A -- sorry -- A-l-e-x-a-n-d-r-u. Last
2 name of Martiniuc, M-a-r-t-i-n-i-u-c.
3 EXAMINATION
4 BY MR. REES:
5 Q All right. And are you a Portland police
6 officer?
7 A Yes, I am.
8 Q How long have you been a police officer?
9 A I was employed February 2nd of 2012.
10 Q And prior to that, I understand you had a
11 background in construction and --
12 A Yes. I worked 12 --
13 Q -- tending --
14 A -- years of construction --
15 Q 12 years.
16 A -- and I was a bartender for 12 or 13 years.
17 Q Okay.
18 A Customer service.
19 Q And you and your -- your family came to the
20 United States when you were in high school?
21 A After I finished high school.
22 Q After high --
23 A We moved to the United States when I was 20.
24 Q Oh, okay.
25 A And worked for Carnival Cruise Lines for Examination of Alexandru Martiniuc 473
1 about two years as a waiter.
2 Q And what -- what country did you come from?
3 A Romania.
4 Q From Romania. Okay. And -- and then you
5 became a United States citizen?
6 A Yes, sir.
7 Q All right. And so I assume English is a
8 second language for you?
9 A Second language, yeah.
10 Q All right. What -- what made you want to
11 become a police officer?
12 A It's a -- it's a great job. You get to help
13 people. And it's -- it's still customer service. And
14 you -- it's just a great career and it's one step
15 further I could embark on, you know, my whole life.
16 So I wanted to move on and do something that matters,
17 make a difference, so -- so, I guess.
18 Q All right. And you've been through the CIT
19 training, I believe?
20 A Yes, sir.
21 Q Have you also worked as a field training
22 officer?
23 A Yes.
24 Q Where you train other new police officers?
25 A Yeah. Examination of Alexandru Martiniuc 474
1 Q Okay. And are you assigned to Central
2 Precinct?
3 A Yes, I am.
4 Q And what shift do you work?
5 A I work afternoon, which starts at 4:00 p.m.
6 and ends at 2:00 a.m.
7 Q On April 7th, 2018 when this incident
8 occurred, was that a regular shift for you?
9 A Yes. It was (indiscernible) my Monday.
10 Q And were you assigned a recruit that day?
11 A Officer Scott Kyle.
12 Q All right. And so were you working as -- as
13 a field training officer with Officer Kyle?
14 A Yes, sir.
15 Q Okay. Prior to beginning that shift, had
16 you consumed any drugs or alcohol that would affect
17 your -- your abilities to perform your job?
18 A Absolutely not.
19 Q And prior to your shift, was anything
20 unusual about -- going on in your -- in your life or
21 anything?
22 A No.
23 Q No. Okay. The grand jurors have already
24 heard quite a bit about the various calls an April 7th
25 regarding the suspect, John Elifritz, so I'm not going Examination of Alexandru Martiniuc 475
1 ask you to repeat everything you did unless the grand
2 jury wants me to, which I don't think they do at this
3 point.
4 But can you just very briefly tell the grand
5 jury what your understanding was that day of events
6 that you heard about regarding John Elifritz?
7 A Absolutely. The first piece of information
8 that -- when I tuned in to the call was officer was
9 being dispatched to MLK and Stark area for a silver
10 Honda CRV that had crashed. Out of that call, the
11 caller reported that a male running out who was
12 wearing no T-shirt.
13 He described as a white male, six -- 275,
14 285 pounds, someone six-foot tall covered in tattoos
15 who was wearing a light -- light-colored jeans or
16 light-colored pants.
17 It was later relayed to us via dispatch,
18 via radio that the car -- the plate of the car was
19 the same plate that was reported to -- to have been
20 carjacked in East Portland by -- by a -- a similar
21 suspect.
22 And then we later learned that East Precinct
23 had some other run-ins with a same individual who was
24 threatening to cut himself with a knife, made
25 statements about his wife and daughter being dead, Examination of Alexandru Martiniuc 476
1 being murdered.
2 Over the entire incident, I think, if I
3 recall correctly right now, through the entire
4 accumulation of information, it was six incidents all
5 throughout the day involving the same -- the same
6 male; the same male, Mr. Elifritz.
7 Q All right.
8 A Yeah.
9 Q And when did you become involved directly in
10 the calls related to John Elifritz?
11 A Myself and Officer Scott were just finishing
12 a call when the -- this -- the call came out over the
13 radio of the crashed CRV. And then once additional
14 information was relayed, we had already started
15 towards the area of Grand and Stark to try to do an
16 area -- an area search for the suspect.
17 We learned that the carjacking was done by
18 force, which, to me, implies either words, some sort
19 of a conduct, weapon, something typically to force a
20 person out of a car. And on that note, we started to
21 build up more and more interest in this person who was
22 victimizing people, citizens throughout the city.
23 So we attached to the call. We kept quiet
24 over the radio. We tried to maintain that radio
25 discipline, so we get as much information as possible. Examination of Alexandru Martiniuc 477
1 And then we drove from, if I recall correctly, 21st
2 and Division. We went to Southeast 12. We drove
3 northbound on Southeast 12 until we got to Belmont.
4 Based on the time that had elapsed since the
5 CRV had crashed and the time that we got to the area,
6 myself and Officer Scott were discussing how far could
7 the suspect had -- had went, had gone. And we checked
8 the area of 12 and Belmont.
9 I'm -- I estimate more than two minutes
10 until we got there, so he could have covered quite
11 some ground. He had been reported going eastbound on
12 Stark, leaving the crash of the scene. And we did an
13 area search for -- for the suspect.
14 Q Any -- any sign of the suspect?
15 A No.
16 Q No?
17 A No, we couldn't find him.
18 Q Okay. So what did you do after that?
19 A We started to cue on -- or we had been cued
20 in, you know, to the call. We listened to the
21 information that was relayed to us over the radio and
22 we started to puzzle in the fact that the same -- the
23 same suspect with the knife was reported at Jacksons
24 in front of the store wielding a knife, menacing,
25 threatening. Examination of Alexandru Martiniuc 478
1 So then we -- we started to realize that all
2 these calls coming in are referring to the same -- the
3 same individual. Six feet tall, 285, white male
4 covered in tattoos. At some point, someone said that
5 he had, like, a clear poncho on him. Maybe, maybe
6 not. It was -- it was 8:00 p.m.
7 It was kind of, you know, getting a little
8 dark outside, too, so I could see how the information
9 that we were getting maybe was a little unclear on,
10 you know, him being white or Hispanic, yet I knew that
11 if we were going go to the area to search for a
12 suspect that doesn't wear a T-shirt in that kind of
13 weather -- it was pretty cold -- I mean, he would
14 stick out like a sore thumb, so we should have been
15 able to see if he was in the area still.
16 The Jacksons call got two other cars
17 dispatched thinking, I'm assuming that dispatch
18 believed that there was another incident. So they
19 just wanted to maybe sure that we still had adequate
20 cops for the crash.
21 And then the Jacksons call, which later
22 officer, I heard over the radio that Officer Mel
23 somehow obtained a picture from somebody who
24 substantiated that it was the same suspect that ran
25 out of car that was in front of Jacksons with -- Examination of Alexandru Martiniuc 479
1 wielding a knife and yelling and menacing.
2 Q All right. You, ultimately, got information
3 that the suspect was inside Cityteam Ministries on
4 Grand Avenue, correct?
5 A Yes.
6 Q And how -- how did you receive that
7 information? Was that via radio or --
8 A The information came over the radio, yet it
9 was -- it was still unclear to me where -- where the
10 suspect was.
11 Q Okay.
12 A I'm pretty familiar with -- with Grand
13 Avenue, with the fact that there's two shelters on
14 Grand Avenue because I went inside the both of them on
15 previous calls.
16 So there's one on the east side of Grand
17 Avenue, which is kind of mid-block, in between Stark
18 and Washington. And then there's one more right on
19 the northwest corner of Grand and Stark. I'm sorry.
20 It would make it -- Grand and Stark, it would be
21 the -- the southwest corner.
22 So we drove to that. I asked Officer Scott
23 to drive through the Jacksons parking lot as soon as
24 the information came from -- medical personnel was
25 reporting seeing -- again, seeing a male with a knife. Examination of Alexandru Martiniuc 480
1 I recall -- if I recall correctly at this --
2 at this point, they said that he -- he's cut --
3 cutting himself, covered in blood. So as soon as
4 Officer Scott drove through the parking lot of
5 Jackson, I had him stop mid-block on Washington, left
6 the lights on.
7 I always carry a shotgun with me and I
8 grabbed the shotgun and we started to run towards
9 where all the officers seemed to have been
10 focusing on.
11 Q And why did you grab your -- your shotgun?
12 I -- you also carry a sidearm pistol, right?
13 A We -- on -- on situations that are rapidly
14 evolving, we try to bring everything that we can.
15 Every officer that carries either a less lethal or a
16 shotgun or any other tool given to us by the Bureau,
17 we typically bring them. More resources. You never
18 know exactly what you're looking at.
19 At some point, the suspect was reported,
20 verified or not, having a handgun; that handgun being
21 seen on video. Later on, the handgun was taken away.
22 It was just perceived. So I was definitely thinking
23 he's armed.
24 Q Yeah.
25 A Up until we get the verify that he's not, Examination of Alexandru Martiniuc 481
1 he's -- he's armed.
2 Q All right. And so sounds like you are
3 moving towards this location where you see a number of
4 other police officers also, you said, sort of --
5 A Focusing on --
6 Q -- focusing. Yeah. What do you see
7 happening?
8 A At that point, we had a lot of police
9 vehicles coming in, information that you're perceiving
10 and understanding over the radio, still -- still
11 coming in.
12 At that point, it had been verified that it
13 was the same -- the same suspect that East Precinct
14 had disengaged with at the park on some similar
15 situation that had him threatening to kill himself,
16 making statements that his wife and daughter were
17 dead, had been murdered.
18 So as I -- as I jumped out of the car, I
19 started running towards the door, I could not tell you
20 exactly how -- if it was radio information that was
21 being said or I was so close to the police officers at
22 the door, I could hear the commotion inside.
23 I'd been inside the Cityteam Ministries a
24 few times on different calls. I have somewhat of an
25 understanding of -- of how the inside is. As I'm Examination of Alexandru Martiniuc 482
1 running towards the door, one officer yells, "This is
2 a hostage situation now."
3 As I peek through the door and start to
4 assess who was creating all that commotion, I started
5 to pick up on the six-foot male, who, at the first
6 glimpse I got of him, he was wearing a jacket.
7 He had some sort of a puffy jacket on. Yet
8 I could tell that it was -- it was him that was
9 creating all the commotion because he was covered
10 in -- he was covered in blood.
11 As I -- as I approached the door, I get to
12 see a whole -- a few -- I'm seeing two or three
13 officers were already tucked in, coming inside the
14 door towards the northeast corner of the entire
15 hallway, of the entire room, right?
16 Then I cue in on the suspect for a split
17 second and he does one of these numbers, motioning
18 with his knife across his chest. He was already
19 covered in blood, so I couldn't tell if he, like, did
20 a new cut on himself or not.
21 But, at that point, you are realizing
22 exactly who everyone's afraid of because you have
23 20 or so people trying to grab their stuff, run
24 around.
25 There's the gentleman, as I peeked right Examination of Alexandru Martiniuc 483
1 through the door that, in all honesty, seemed like he
2 was diving into a swimming pool away from him, trying
3 to get himself to a -- in a safe spot. My mind made
4 that connection right there.
5 I'm like, that's probably the guy that was
6 being held at knifepoint, since the officer at the
7 door said, "This is a hostage situation right now."
8 And just the scene was -- was very, very chaotic, a
9 lot -- a lot of officers arriving, a lot of officers
10 that were already inside were yelling, "Drop the
11 knife, nobody needs to get hurt. Drop the knife."
12 Beanbag rounds started to be fired at the --
13 at the suspect. The officers that were ahead of me
14 and officers pouring in behind us started to create
15 this barrier, this -- this officer barrier that was
16 funneling northeast-ish through the room to allow
17 people to funnel out who were yelling and -- and
18 screaming and trying to gather their -- their property
19 and just run away from Mr. Elifritz, who was in the
20 south -- in the southeast corner of the room pacing up
21 and down right in the corner, trying to do something
22 with that knife.
23 A GRAND JUROR: Did he seem mad?
24 THE WITNESS: To me, he seemed like he was
25 on some form of a stimulant. He was just -- his body Examination of Alexandru Martiniuc 484
1 language. He -- scary, scary individual.
2 BY MR. REES:
3 Q Did you think at that time that
4 disengagement was an option? In other words, for you
5 to walk away, get out of the situation and just leave
6 this person alone?
7 A Absolutely not. There was no way we -- we
8 were going to leave all the -- all the people inside
9 the shelter with -- with an individual with a knife
10 who is cutting himself, attempting to take hostages.
11 Q How -- so if you could explain what -- why
12 did you think someone who's holding a knife to their
13 throat, how is he a danger to the other people in the
14 shelter?
15 A I mean, he's showing that he has no problem
16 whatsoever using that knife. He's using that knife
17 on him -- on himself.
18 My perception of -- my perception of the
19 officer at the door who yelled, "This is a hostage
20 situation now," and seeing people diving away from
21 him, my mind made that connection to where, at some
22 point, the -- the suspect, Mr. -- Mr. Elifritz, must
23 have done something to someone.
24 Otherwise, I've -- I've observed humans my
25 entire life. No one runs away from one individual Examination of Alexandru Martiniuc 485
1 unless there's a perceived threat of -- of -- you
2 know, nobody wants to get hurt. I know that. I know
3 that much. I don't want to get hurt. I know that
4 much.
5 Q So was -- so based on what you're seeing,
6 what is your perception that the homeless people in
7 the shelter were running away from this person --
8 A Absolutely.
9 Q -- and diving away?
10 A They were terrified. They were -- people
11 were yelling, "Grab your stuff. Don't go behind him,"
12 you -- you name it.
13 Q You mentioned you heard commands, officers
14 yelling, "Drop the knife, drop the knife;" is that
15 correct?
16 A Yes, sir.
17 Q Were you yelling commands?
18 A At -- at first, I was not. I was pretty far
19 away. There was a lot of yelling inside the room and
20 I heard a whole lot of officers giving a lot of
21 commands. "Drop the knife. Nobody needs to get
22 hurt."
23 There's -- I didn't feel like, at that
24 point, myself yelling would have made a difference.
25 We typically try to assign one person to attempt Examination of Alexandru Martiniuc 486
1 communication because you're confusing people when you
2 have a million officers yelling at them. So I think
3 enough was being said for me to not necessarily yell
4 anything anymore.
5 Q Okay. Did -- did you ever yell commands?
6 A I think so. I had, yeah.
7 Q Okay. Could you see whether the suspect was
8 responding to any of the commands?
9 A No, he was -- he was -- he was not. I
10 couldn't -- there was so many people yelling and
11 running that I couldn't really tell you if the suspect
12 said something at some point, but just his -- his body
13 language and the way I perceived them, I heard nothing
14 out of his -- out of his mouth.
15 Maybe at some point, I was too far away to
16 even hear it with everyone else around yelling and the
17 radio going at the same time. But, no, I don't
18 remember him saying anything to us.
19 Q Did you hear any officers warning the
20 suspect that he would be hit with a beanbag or a
21 less-lethal round --
22 A Yes.
23 Q -- if he did not drop the knife?
24 A Yes.
25 Q And did you -- did you see beanbags or Examination of Alexandru Martiniuc 487
1 less-lethal rounds being used?
2 A Yes. Yes, I seen them. I'm -- I'm not
3 exactly sure where they hit, but he wasn't responding
4 to any of the beanbags. I could distinguish the
5 sound. The sound of a beanbag is different than the
6 sound of a firearm.
7 There's that muffled -- how would I describe
8 it? If you -- if you recall the World War II movies,
9 when they dropped the -- the little thing in the -- in
10 the little short cannons and it goes (descriptive
11 sound), almost like there's a suction sound to it.
12 And you could tell that those were beanbag
13 rounds and he wasn't responding to any of the beanbag
14 rounds that he was -- that he was taking. My mind
15 made that connection with him being on drugs. I've
16 seen people being beanbagged in the past.
17 And regardless of how amped up they are,
18 regardless if they are mental, regardless if whatever
19 the situation is, the majority of the people I've
20 seen, you can tell the pain on their face.
21 You can tell their body gets hit and they
22 just go. They just slouch to the side. And they'll
23 typically guard that area that -- that gets hurt.
24 Well, Mr. Elifritz wasn't -- he was still up
25 and standing and getting ready to do something with -- Examination of Alexandru Martiniuc 488
1 with his knife and nothing -- the beanbag rounds were
2 not doing anything, so --
3 Q Now. At this time, was anyone using lethal
4 force?
5 A No.
6 Q No. And -- and including yourself?
7 A Including myself, yeah.
8 Q And why -- why not?
9 A Because Mr. Elifritz was all the way in the
10 southeast corner and then we seemed to understand that
11 everyone was kind of running away from him, yet he was
12 still isolated 20-plus feet away --
13 Q All right.
14 A -- from -- from all the officers that were
15 lining up coming into the room still.
16 Q And so what did you -- what did you think
17 was going to happen at that point? You're -- 'cause
18 you're inside now. You're inside the Cityteam
19 Ministries --
20 A Yes.
21 Q -- right?
22 A Yeah.
23 Q And you're -- you're seeing the suspects?
24 A I'm seeing the suspect. At -- at -- once I
25 observed the entire room up until the moment that I've Examination of Alexandru Martiniuc 489
1 tried to explain to you so far, everything was about
2 absorbing as much information as possible. At some
3 point, my body, my physiology did -- I don't know what
4 it is, it's psychology or whatever, whatever happens.
5 My mind went from seeing everything to
6 seeing him. Like, he got singled out in my -- in my
7 head. And I think -- I'm -- I'm assuming it's his
8 body language and that knife that was being pumped up
9 and down that I -- just kind of losing ground being in
10 the corner by -- by himself trying to -- I'm not sure
11 if he was looking for people, avenues out or -- I
12 couldn't really tell what his intentions were.
13 Q And so what -- what happened?
14 A So I advanced up into the room and I found
15 the pillar that was about, I'm assuming 12 by 12 that
16 kind of sits right in the middle of the room. It's --
17 it's further -- it's further west of the little
18 stairway that goes downstairs if -- have you seen
19 pictures of the inside yet?
20 Q Uh-huh.
21 A Yeah. And so I posted by that pillar with
22 my -- with my shotgun at low ready. And we were still
23 trying to assess what he was -- what Mr. Elifritz was
24 about to -- was about to do.
25 Q Can you explain what that means? You said Examination of Alexandru Martiniuc 490
1 your shotgun was at "low ready"?
2 A Oh, I'm -- I'm sorry. Yeah. So when --
3 when we bring a weapon and we think that we happen
4 going to absolutely use it, it's right up on what
5 we're firing at.
6 Q Pointing --
7 A Pointing --
8 Q Pointing at the person.
9 A -- at -- at the person, at the -- yeah,
10 subject, right?
11 Q Yeah.
12 A And when we hold it down at low ready, it's
13 a precautionary safety. It's a safe -- it's a safe
14 way of holding that shotgun, you know, like that. You
15 know, but if by mistake, it discharges the round will
16 hit the ground, so -- 'cause you're not trying to hurt
17 anybody with that, so --
18 Q All right. And so, for the record, you --
19 you were gesturing with your hands, pointing down. So
20 you have the barrel of --
21 A Yes.
22 Q -- the shotgun pointing down at that
23 point --
24 A Yeah.
25 Q -- just in case, but not pointed at Examination of Alexandru Martiniuc 491
1 Mr. Elifritz; is that correct?
2 A Yes. Yeah.
3 Q Okay. And so I just wanted to make sure we
4 understood that.
5 And so then what -- what happens?
6 A So the line of officers that were advancing
7 into the room allowing people -- citizens to run out,
8 the -- the officers that were bridging up
9 northeast-ish into the room were just as focused as I
10 was on Mr. Elifritz.
11 I brought my shotgun up as I came up around
12 the -- the pillar since Mr. Elifritz was still in the
13 northeast corner, not doing -- not responding to any
14 of -- any of our commands.
15 He -- officers were yelling, "Drop the
16 knife. Nobody needs to get hurt. You're going to get
17 beanbagged if you don't drop the knife" and -- and so
18 forth. And I just stood by the pillar and brought my
19 shotgun up.
20 Q All right. And go ahead, if you would,
21 please, and describe what -- what yeah saw after that.
22 A Mr. Elifritz was in the -- in the southeast
23 corner by himself. There was, if I recall correctly,
24 he had some obstacles in front of him. He must have
25 had either chairs or tables, something, 'cause he was Examination of Alexandru Martiniuc 492
1 trying -- you could tell he was serpentine to objects
2 in -- in the northeast corner.
3 At some point, as we -- as the officers
4 advanced in the room, he started to tune in towards
5 the -- the front door and the line of officers that
6 were formed next to me, to my left and my right. And
7 right behind me, the -- I'm assuming the door was
8 there.
9 Now, I couldn't tell you what his frame of
10 mind was. All I could tell you is that my psychology
11 just got fixated on him. And his shoulders slouched
12 forward. He's got the knife the way he's holding it,
13 he's got that (indiscernible) on the blade, you could
14 tell. He's just pumping his arm up and down,
15 motioning -- motioning like something was about to
16 happen.
17 He starts moving chairs and tables out of
18 his -- out of his way with his -- with his left hand
19 and starts charging towards the line of officers that
20 were formed by the pillar around me and -- and the
21 front door.
22 And, at that point, I remember someone right
23 over my shoulder cuing in to the same fact that he's
24 advancing on us, and then I heard somebody yell, "No,
25 no, no," towards him. And I could hear the lethal Examination of Alexandru Martiniuc 493
1 rounds starting to go off on my left side.
2 And Mr. Elifritz must have taken six, seven
3 steps through objects to get to us and then when he
4 moved on the southeast wall coming charging towards us
5 with his knife, I discharged three rounds out of my --
6 out of my shotgun.
7 Q And why did you -- you said you heard other
8 firearms going off --
9 A Yeah.
10 Q -- immediately before that. And I guess it
11 would be just split --
12 A It was milliseconds, yeah.
13 Q -- milliseconds before. Why did you decide
14 to also use your shotgun?
15 A I did not want to get stabbed. The --
16 Mr. Elifritz is a big individual. He's a big
17 individual. And that knife, the way he was holding
18 it, I -- I can't -- how do I explain this?
19 I'm not going to underestimate what a knife
20 does. I know what a knife does. I know that, you
21 know, the only way to survive that is to get lucky.
22 If someone knows what to do with that knife, you are
23 going to get split open.
24 So, yeah, I figured either myself or an
25 officer next to me or whoever next was going to get -- Examination of Alexandru Martiniuc 494
1 was going to get stabbed, was going to get cut open.
2 Q And why did you stop shooting?
3 A The suspect fell, went down.
4 Q How -- how close, if you know -- if you have
5 an estimate, how close was he, do you think, when he
6 fell to ground, from you?
7 A I'm going to say about six to eight feet.
8 He was very far away at first, but then when, "No, no,
9 no," started over my shoulder and then officers
10 started firing, including myself, he must have had --
11 you know, he must have been, like, six, eight feet
12 from me, from the (indiscernible) with his body.
13 A GRAND JUROR: So, like, from there to this
14 table?
15 THE WITNESS: I'm going to say --
16 A GRAND JUROR: It was, like, that close?
17 THE WITNESS: -- from here to you.
18 A GRAND JUROR: Yeah.
19 THE WITNESS: From myself to where you're --
20 to where you're sitting.
21 A GRAND JUROR: Is that shotgun an automatic
22 weapon?
23 THE WITNESS: It is not, no.
24 A GRAND JUROR: So it's -- it's a pump.
25 A GRAND JUROR: 12-gauge shotgun? 12 gauge? Examination of Alexandru Martiniuc 495
1 THE WITNESS: Yes.
2 BY MR. REES:
3 Q Officer, I've got two --
4 A You want me to stand up?
5 Q You -- probably so, to get a look at this.
6 But there are two exhibits and they're frames grabbed
7 from surveillance video --
8 A Okay.
9 Q -- inside the shelter. So this -- and
10 they're from different perspectives. And according to
11 the time stamp, they're one second apart. Although
12 I'm sure there's some variance in the timing, but at
13 least we know there's a sequence. So this is the
14 first in the sequence at 02.
15 And you can see here in the lower-right
16 corner, Mr. Elifritz -- I guess this is his hand --
17 coming forward around the table. Do you see where you
18 are in the -- in the lineup of officers at the top of
19 that frame?
20 A Right here (indicating).
21 Q So you're indicating next to the pillar as
22 described.
23 A (No audible response.)
24 MR. REES: Okay. Did everyone see that?
25 A GRAND JUROR: Mm-hmm. What is that light? Examination of Alexandru Martiniuc 496
1 A GRAND JUROR: The one on the left there.
2 A GRAND JUROR: By the Saturday.
3 A GRAND JUROR: No, that's a --
4 A GRAND JUROR: What is that?
5 MR. REES: You mean these -- these lights
6 here?
7 A GRAND JUROR: Yeah. What's that?
8 THE WITNESS: Flashlights. Flashlights,
9 lights on the handguns.
10 A GRAND JUROR: Are you -- is that -- so
11 you're to the left of that?
12 THE WITNESS: I -- I would be -- if you --
13 right at the tip of my finger, those are -- those
14 would be my legs. I remember wearing a beanie that
15 day.
16 A GRAND JUROR: Okay.
17 THE WITNESS: So that's -- yeah, that's me
18 right there.
19 BY MR. REES:
20 Q Okay. And in the second photo -- and -- or
21 I'm sorry.
22 BY MR. JACKSON:
23 Q Are those handguns and rifles equipped with
24 flashlights?
25 A Yes, they are. Examination of Alexandru Martiniuc 497
1 MR. JACKSON: Okay.
2 BY MR. REES:
3 Q This is from a different camera, obviously,
4 behind the officers. And this shows 03 as the time.
5 And so this is later. This is obviously -- I'm sorry.
6 So then can you point out where you are in this photo?
7 A Yeah, I'm right here.
8 Q You're pointing to --
9 A Still to the left of the pillar if you're
10 looking at it --
11 Q Okay.
12 A -- from behind.
13 Q Now, this is you --
14 A Yes.
15 Q -- and looks like you're really kind of
16 squeezed right up against that -- that pillar?
17 A Yeah.
18 Q And, in this perspective, do you see
19 Mr. Elifritz in the upper-left corner --
20 A Yes.
21 Q -- facing the officers now. And is that at
22 the moment when he's coming towards you, in that -- in
23 that picture?
24 A Yes.
25 Q And have you -- you -- have you seen this Examination of Alexandru Martiniuc 498
1 surveillance video previously?
2 A I've seen the video that was posted on -- on
3 Twitter.
4 Q Okay. Which is not this video, so you --
5 you have not been shown this surveillance video?
6 A I have never seen any surveillance or video
7 footage or pictures of that. That shows -- that shows
8 me right here.
9 Q Okay. And is this the moment when you begin
10 firing, do you -- do you think?
11 A I'm going to -- I'm going to say so, yes.
12 MR. REES: Okay. All right. Before he sits
13 down for additional questions, any -- any questions
14 about the -- the photo?
15 All right. So go ahead, please, and you can
16 resume your seat.
17 Did you have any questions?
18 Are there any questions from the grand jury
19 for Officer Martiniuc?
20 A GRAND JUROR: Hmm-mm.
21 MR. REES: All right. In that case, I'm
22 seeing no response from the grand jury, so we'll
23 excuse Officer Martiniuc. Thank you very much for
24 coming in today.
25 (Pause in proceedings, 1:52 p.m. - Examination of Kameron Fender 499
1 1:53 p.m.)
2 MR. REES: Okay. All right. Good
3 afternoon.
4 THE WITNESS: Good afternoon.
5 MR. REES: Officer, if you'd please raise
6 your right hand.
7 KAMERON FENDER
8 Was thereupon called as a witness; and, having been
9 first duly sworn, was examined and testified as follows:
10 EXAMINATION
11 BY MR. REES:
12 Q And then when you're situated there, if you
13 would please state your name and spell your first and
14 last names.
15 A Sure. My name is Kameron Fender. That's
16 spelled K-a-m-e-r-o-n. And my last name is
17 F-e-n-d-e-r.
18 Q All right. And are you a Portland police
19 officer?
20 A Yes, I am.
21 Q How long have you been a police officer?
22 A I've been a police officer for 12-and-a-half
23 years, eight-and-a-half years here in Portland. And
24 prior to that, I was a police officer in Las Vegas,
25 Nevada. Examination of Kameron Fender 500
1 Q We're here talking about an officer-involved
2 shooting that occurred on April the 7th, 2018. And
3 the grand jury has already heard quite a bit of detail
4 about the series of calls regarding John Elifritz on
5 that day, so I'm not going to ask you to -- to repeat
6 all of that --
7 A Okay.
8 Q -- at the request at this point of the grand
9 jurors. But having said that, if I could just -- just
10 very, very briefly, very briefly, if you're able to,
11 just summarize what was your understanding of what was
12 going on in terms of the actions of John Elifritz
13 prior to your arrival at the Cityteam Ministries?
14 A Sure. So without going too in detail,
15 'cause I'm sure you got that, I was aware of a series
16 of events that spanned almost every corner of the city
17 over the course of a couple hours. I was aware of
18 the -- the carjacking incident in East Precinct.
19 Just prior to my arrival at the Cityteam
20 Ministries, I was -- I became aware of the -- the call
21 earlier in the day where police had encountered him
22 where he had put a knife to his throat.
23 I was aware of the -- the call in North
24 Portland-- or North Precinct, rather, of a road rage
25 incident possibly involving a gun, as well as then the Examination of Kameron Fender 501
1 car crash that happened at MLK and Stark, which is
2 what -- the incident that I initially responded to.
3 And then during -- while responding to that,
4 there was a couple of incidents at the Jacksons market
5 and then the shelter that's right across the street.
6 So I guess -- and, at that point, I was on the call
7 and responding to that call.
8 Q Okay. And so -- and does that -- can you
9 explain, does that make a difference to you as a
10 police officer, having that kind of information versus
11 coming up on a situation where you really don't have
12 any idea of what's happening or any background on a
13 subject?
14 A Sure. And, certainly, it -- it is
15 significant. We are aware of just a series of events,
16 some of those involving violent crimes, incidents that
17 are giving us information that this person is armed,
18 both with a knife and then there's a call about a gun.
19 So those are various and significant. Also
20 just as it -- as it seems to be just escalating, if
21 you were, to a point where it was -- it was certainly
22 of concern that -- that more people would be
23 victimized, I guess.
24 Q And so unless there's a request for more
25 information on the background, we'll -- okay. Shaking Examination of Kameron Fender 502
1 their head no.
2 What immediately brought you to Cityteam
3 Ministries?
4 A It was -- I was in the area doing an area
5 check for Mr. Elifritz from the car crash. And so
6 what brought us right up to Cityteam Ministries was
7 the call across the street where somebody had called
8 in -- called 9-1-1 saying that he was there with a
9 knife to his throat.
10 And so right as I arrived there, officers
11 were saying -- officers that had arrived before me
12 informed us that he was no longer there. And it was
13 within just a short few seconds of my -- me and my
14 partner that night, our arrival, we learned that he
15 had crossed the street and officers could see him now
16 inside the Cityteam Ministries.
17 And so that information was broadcast over
18 the radio, at which point, we got out of our car and
19 walked over there.
20 Q And who's your partner?
21 A My partner is Officer Andy Polas.
22 Q Okay. And when you got out of your car, did
23 you take any special weapons with you?
24 A Yes. I am trained and equipped with an AR15
25 patrol rifle. And so as I exited my car, I brought Examination of Kameron Fender 503
1 along with me that rifle.
2 Q Why did you do that?
3 A The rifle is a -- a unique tool that offers
4 law enforcement some -- some advantages in -- I guess
5 in dealing with a -- a threat. It allows us to kind
6 of keep more distance, if possible.
7 It -- the specific round that -- that is in
8 the AR15 is more effective at -- at stopping a threat
9 if you were to use it. And so with the information
10 that this person was -- was armed with a weapon,
11 that's why I decided to deploy the -- the AR15.
12 Q And so can you describe approaching Cityteam
13 Ministries and -- and whether it was -- was that kind
14 of with your partner or independently of
15 Officer Polas?
16 A Yeah. We both exited at the same time. I
17 just remember -- I think he was a little ahead of me.
18 But we both just kind of walked up right at the -- the
19 same point.
20 Q Right. And what was happening in terms of
21 what you could see or hear at Cityteam Ministries?
22 A Sure. So what initially I guess brought my
23 attention to Cityteam Ministries was the radio
24 broadcast. And I -- I don't know what officer it was
25 that broadcast it. I just remember hearing Examination of Kameron Fender 504
1 information being relayed that he had crossed the
2 street, he was inside this shelter.
3 And in that same radio transmission, I
4 believe it said something to the effect of, "He has a
5 knife," that he has cut his throat and -- and
6 mentioned something about hostages.
7 Q Okay. And so what did you do?
8 A So that -- I mean, that's -- I'm hearing
9 that right as we're kind of getting out of the car.
10 And so I -- I hustled.
11 I mean, it wasn't a full run, but, I mean,
12 I -- I moved quickly just across the street, across
13 Grand Avenue, and approached the front of the building
14 where I -- I saw there was already maybe four or five
15 other police officers at the doorway to the shelter.
16 Q And from that location, could you -- could
17 you see into the shelter or could you hear what was
18 happening?
19 A I -- I could see and -- and hear. The -- as
20 I approached, I was -- I was behind a few police
21 officers. I saw there was officers equipped with --
22 there was one officer with a less-lethal launcher, one
23 officer with an AR15 and maybe two other police
24 officers at that doorway.
25 And as I approached, I'm basically standing Examination of Kameron Fender 505
1 in the middle of the doorway, but I'm -- I'm three
2 police officers back, I guess. But I could still see
3 what was through the open doorway.
4 And I -- that -- that was the first time I
5 saw Mr. Elifritz. He was -- he was maybe 20, 25 feet
6 into the room, standing kind of squared off, looking
7 directly at our grouping of police officers.
8 Q And you were in uniform, correct?
9 A Yes, I am.
10 Q At this point, is anyone yelling any
11 commands to Mr. Elifritz?
12 A Yes. I -- I could hear numerous commands.
13 It was the officers that I -- I believe were kind of
14 on the right-hand side of the doorway were, you know,
15 shouting at -- to drop the knife. I heard -- I heard
16 numerous requests for him to drop the knife, warnings
17 that if he didn't, he could be shot.
18 I heard -- I don't remember the exact
19 phrasing, but something to the effect of he -- you
20 know, they would use the -- the less-lethal launcher.
21 That was kind of continuous from even before I walked
22 up until, you know, throughout, I guess, the duration.
23 Q And so, obviously, this is -- this is
24 happening much more quickly than it's taking to
25 describe it. This is happening -- Examination of Kameron Fender 506
1 A Yes.
2 Q -- in a matter of seconds. It's a very
3 dynamic situation, so I don't know whether you had any
4 thought or not, but if you did have a thought at this
5 point or did you -- did you have any thought as far as
6 is this going to resolve peacefully or is this going
7 to end, you know, in a fatal shooting at this point?
8 Or did you have a thought about, like, what was
9 happening?
10 A Well, so, in seeing him, I immediately saw
11 the knife. It was in his right hand. And what I
12 immediately also saw was a group of people inside that
13 shelter, many of whom were just, like, huddled in a
14 corner.
15 To me, they -- and as this kind of was
16 happening and it was just -- it all happened really
17 quickly; but, like, I got the impression they were all
18 scared for their life.
19 And so I absolutely thought, like, from the
20 moment I walked up and saw his -- his posture with the
21 knife in relatively close proximity to us, but also
22 with -- with access to all these people inside there,
23 I did think from the moment I walked up, like, oh, my
24 God, this guy's going to do something crazy, do
25 something horrible and we're going to have to Examination of Kameron Fender 507
1 shoot him.
2 That was my -- one of my first thoughts,
3 just in -- in -- in seeing his -- I guess, his
4 demeanor and -- yeah, I mean, and seeing him armed
5 with that knife, that was like -- that was one of my
6 first thoughts.
7 And that's -- not that that's what happened
8 right then, 'cause obviously more transpires, but --
9 but that was one of my first thoughts was, oh, my God,
10 this guy's going to -- going to maybe kill somebody
11 in there.
12 Q Did you see or hear the less-lethal rounds
13 that were used from outside of the Cityteam
14 Ministries?
15 A I did. I -- I saw a few of them.
16 Q And could you see whether they had any
17 effect on Mr. Elifritz?
18 A I know at least the -- the first -- I saw
19 the first one and I saw the second one make contact
20 with him. At least the first one, I remember it
21 hitting him, like, maybe in the leg or, like, just the
22 waistband area. And it had absolutely no effect,
23 which was -- I have seen, in the past, a beanbag
24 shotgun used and I am trained on that tool as well.
25 That was the first time it, I guess, in real Examination of Kameron Fender 508
1 life I had seen, I mean, other than on video, I had
2 seen the 40-millimeter less-lethal launcher be used.
3 And I was -- I -- to be completely honest, I was
4 floored at how it didn't do a thing.
5 Q So what would you expect would happen?
6 A I -- I would expect -- I mean, they are --
7 they are designed to be, like, a less-lethal tool, but
8 they absolutely would hurt. There would be -- I mean,
9 that thing -- it would be like getting hit with a -- I
10 mean, I'm just giving my own approximation here, like
11 getting hit with a hundred-mile-an-hour fast ball.
12 Like, it is not going to feel good.
13 And that's the design of it is to -- to
14 inflict some -- some pain to elicit some cooperation,
15 right, so that higher degrees of force don't have to
16 be used. And it did -- it did nothing.
17 Q At some point, did you push up the sidewalk,
18 through the door and inside of the building?
19 A We did, yeah. And, I mean, that -- so
20 when -- when the launcher was used, it kind of -- it
21 kind of moved Mr. Elifritz's position. So he was --
22 he was 20, 25 feet, kind of almost, like, directly in
23 front of us when that was used.
24 I guess the only -- the only reaction that
25 I -- that I noticed or remembered was it wasn't any Examination of Kameron Fender 509
1 like, oh, that hurt. It was more of just him -- his
2 position moving.
3 And so there was a moment where he moves
4 towards where this crowd of people are, which, again,
5 I -- I mean, pardon my language, the only thing I
6 could think of was like, oh, fuck, he's going to kill
7 somebody because he -- he moves towards all these
8 people.
9 And, like, me being in my position, I -- I
10 wasn't trying to give commands or -- or warnings, just
11 'cause that was already being done and it would have
12 just added to chaos rather than, I guess, help.
13 But as I'm in the doorway, I -- I remember
14 shouting to one of the officers on the left-hand said
15 that we need to get all these people out. It wasn't
16 an ideal situation, nor would we normally just go
17 storming into that room, but -- but it was a
18 100 percent what we needed to do given the
19 circumstances of all these people that were -- that
20 were definitely at risk.
21 And so once his -- and -- and I should say
22 the officers are -- on the left-hand side are yelling
23 at all these people with no kind of -- they're just,
24 like, frozen.
25 There was maybe one or two or three that Examination of Kameron Fender 510
1 kind of started moving towards us, but there's still
2 10 or 15 back there not moving. So once Mr. Elifritz
3 moves kind of from where those -- pretty close to
4 where those people are standing, he moves to the back,
5 far right-hand corner of the room.
6 And that's when kind of it -- it presented,
7 like, an opportunity to -- to isolate him from these
8 people, to kind of contain him, I guess. And so
9 that's when an officer made a decision to move in and
10 -- and I kind of followed suit, just kind of forming a
11 single-file line pushing into the room, basically
12 putting us between this group of people and
13 Mr. Elifritz.
14 Q So when -- so were you thinking that --
15 that, potentially, you could separate out the people
16 in the shelter, either -- either physically separated
17 or even out of the building away from the suspect?
18 A I think -- and, again, this -- we were only
19 in there for mere seconds, but I remember thinking as
20 kind of like my back is to where these people are, at
21 least that wall.
22 Like, I remember thinking if we push in and
23 are just kind of in between and then -- and there was
24 a lot of police officers that were -- that were there
25 and then kind of shuffling in behind where myself and Examination of Kameron Fender 511
1 maybe -- there was four or five police officers ahead
2 of me that -- that went in.
3 I remember, kind of my first thought was we
4 got to get these people out and then we got to get
5 out. And that was my -- and that -- that never
6 happens 'cause -- because we -- we just didn't have
7 enough time.
8 But that was at least my -- my thinking as
9 far as going in, putting -- you know, basically
10 isolating him, being in the middle of the room to kind
11 of protect those people. And then my thought was we
12 would -- once we get them out, we get out. If that
13 makes sense.
14 Q I think so. But what happened?
15 A Within a very -- I don't know, five, ten
16 seconds maybe when -- when we moved into the room,
17 I -- I eventually came to a stop, maybe 15, 20 feet
18 into the doorway and I had a direct line of sight of
19 Mr. Elifritz. He had moved to the southeast corner of
20 that room.
21 And there's -- there's kind of, like, an
22 alcove there and he is -- he's kind of just, like --
23 almost, like, kind of, maybe not hiding, but he's just
24 like -- he's moved into that corner.
25 And it was -- so it was within five or ten Examination of Kameron Fender 512
1 seconds that he just turns that corner and just heads
2 directly towards us, still holding the knife. And the
3 way he turned, it was, like, very intentional and
4 motivated that he was -- he was coming right for us.
5 There was -- there was a chair that was kind
6 of near where that -- I guess, where he turned. And
7 I -- I think I remember seeing his hand like on it or
8 just like as he goes around that -- that chair, seeing
9 that, I guess, just very intentional, like -- like,
10 it's an obstacle in his way, kind of.
11 So to, like, to make that corner and then
12 he's just taking -- I think he took maybe -- maybe
13 five or six just steps, not running, but, like --
14 like, very quick steps directly towards us. From
15 where I was standing and he's -- when he's in that
16 alcove, he was probably 30, 35 feet from me.
17 And I'm kind of just guessing. I've never,
18 like, seen the actual dimensions. But I would guess
19 he was probably 30 feet. In just a matter of a second
20 and a half, two seconds, he -- he makes it probably
21 half -- he closes half the distance between us, I
22 would say.
23 Q And when he's closing distance, you --
24 'cause you haven't really mentioned this -- do you
25 have your rifle pointed at him or -- or not at that Examination of Kameron Fender 513
1 point?
2 A I -- I do. From the moment I moved into the
3 room, once I kind of came to a stop, I had pointed --
4 I -- I had my rifle up, pointed at Mr. Elifritz.
5 Q Okay. Did you have the safety on or off?
6 A As I -- as I entered into the room, it
7 was -- it was on, meaning it's -- the weapon is safe.
8 Q Yeah.
9 A I actually -- I never have any recollection
10 of turning the safety off.
11 Q But, obviously, you did at some point, but
12 you don't remember?
13 A I don't remember.
14 Q Okay. And so -- but -- and so before I
15 interrupted you, you said that he and -- and whatever
16 it would be, a split second, he's closing the distance
17 towards you. You remember that happening?
18 A Yes, I do.
19 Q And what -- what are you thinking then?
20 A I -- I knew he was coming -- coming for us.
21 Like, it was just such a -- the way he made that
22 corner, like, he was -- he was charging right towards
23 us. And I -- I believed if he got to us, he would --
24 he would have stabbed one of us.
25 Q And so what did you do? Examination of Kameron Fender 514
1 A I -- I -- like I said, he was probably
2 15 feet, 20 feet from me, still moving. And that's
3 when I made the conscious decision to fire. I -- I
4 remember pulling the trigger, I think two times.
5 And, I mean, immediately -- I remember
6 hearing other gunshots happening, like, it seemed to
7 me like it all happened in maybe a matter of, like,
8 one second. And as soon as I remember firing, I -- I
9 don't think he took another step. He -- he fell
10 directly to the ground.
11 Q All right. And why did you stop shooting?
12 A Like I said, I -- I think I fired twice.
13 And in seeing just -- I mean, I -- I was shoot -- I
14 fired because we had to stop his advancement. And --
15 and like I said, as soon as I fired my rifle, he -- he
16 kind of just did a face plant. And so I -- I -- he
17 wasn't -- he was no longer a threat at that point, so
18 I --
19 Q Is that pursuant to your -- the training and
20 Bureau policy?
21 A That's correct, yes.
22 Q To stop when the threat ends?
23 A Certainly. Like, if any -- any use of force
24 that we use, we are -- we are trained to constantly
25 reassess the need for it or if it can be -- you know, Examination of Kameron Fender 515
1 can be lowered.
2 So, I mean, at that point, it's, like --
3 I -- I 100 -- 100 percent believe he was -- he was
4 charging at us to -- to stab us; but the moment that
5 he's falling to the ground, I -- I no longer thought
6 he was a threat.
7 Q I imagine you have sort of run this over in
8 your mind since it happened?
9 A Pretty much nonstop.
10 Q Nonstop.
11 A Yeah.
12 Q Have you thought that there was some other
13 option other than what you did in this situation?
14 A You know, I -- I guess -- like I said,
15 I've -- I've thought about it. It's been a month.
16 And, honestly, no. I -- I can't help but replay it
17 and think, well, what if -- what if we had done this
18 different.
19 And, honestly, I don't know that that
20 wouldn't have led to somebody else in that room
21 getting stabbed or dying and I know that didn't
22 happen. So I don't think there is anything that we
23 could have done that would have protected those
24 citizens and -- and really preserved life. I don't.
25 Any -- any better, I guess. Examination of Kameron Fender 516
1 MR. REES: Any questions from the
2 grand jury?
3 A GRAND JUROR: I'm curious, how does the
4 AR15 work when you -- when you pull the trigger?
5 THE WITNESS: It's --
6 A GRAND JUROR: How many bullets come out?
7 THE WITNESS: Just one.
8 A GRAND JUROR: Just one?
9 THE WITNESS: Yeah, it's just like the
10 handguns we carry.
11 A GRAND JUROR: It's a semiautomatic?
12 THE WITNESS: It's a semiautomatic, so,
13 yeah, it's not a fully --
14 A GRAND JUROR: Okay.
15 THE WITNESS: -- automatic weapon, so just
16 one. Each time you pull the trigger, one round
17 comes out.
18 A GRAND JUROR: Okay. And it's probably the
19 most accurate gun you think --
20 THE WITNESS: Yeah, that -- that we --
21 A GRAND JUROR: -- that you guys carry?
22 THE WITNESS: -- carry on -- on patrol,
23 certainly. Yes.
24 A GRAND JUROR: Well, how many do you think
25 is necessary to stop a threatening person? I mean -- Examination of Kameron Fender 517
1 THE WITNESS: Well, I guess you don't.
2 A GRAND JUROR: -- it seems one would do.
3 THE WITNESS: Well, I guess every -- I don't
4 know the answer to that because I -- I guess I -- I'm
5 not God. You know, like, one -- one round may do
6 something to a person where -- where another person
7 could just continue on.
8 You know, we -- the -- it's not like the
9 movies where somebody just immediately is
10 incapacitated. I think, you know, you don't truly
11 know if --
12 A GRAND JUROR: I imagine most of the police
13 are pretty skilled at shooting. They're --
14 THE WITNESS: Some --
15 A GRAND JUROR: -- pretty practiced --
16 THE WITNESS: Some are.
17 A GRAND JUROR: -- I would imagine, yeah.
18 MR. REES: Now, are you -- are you asking --
19 A GRAND JUROR: I'm just wondering why there
20 were so many.
21 BY MR. REES:
22 Q Right. Was there -- was there a way -- if
23 she's asking the question, you know, where somebody
24 would just say, "Hey, Officer Fender, you know, why
25 don't you by the guy with the gun" -- and then Examination of Kameron Fender 518
1 everybody else kind of stands down, right?
2 A GRAND JUROR: Two or -- not --
3 BY MR. REES:
4 Q Or whatever. Two, three, whatever. Okay.
5 So is -- is it possible to answer that?
6 A Absolutely. Certainly. In 12-and-a-half
7 years, I've been on a lot of really high-risk calls,
8 really dynamic calls. I-- I don't think I've ever
9 been on a call like this that was -- was kind of
10 happening so fast and dealing with an armed person
11 where I believed, like, lives were at risk.
12 And we didn't have the luxury of time and
13 planning, which -- which, I mean, is always to our
14 benefit and to everybody's benefit that we can have a
15 coordinated approach to -- to resolve a situation the
16 best way possible. That -- that wasn't possible in
17 this.
18 And so we certainly, as we are responding
19 to -- to an incident, we will -- we're constantly
20 adapting and -- and looking at how we can, I guess, be
21 effective utilizing tools and not -- and not overdoing
22 it, right?
23 In this case, with the threat that was
24 happening and the immediacy of -- of -- of a person in
25 that room being stabbed to death, it required just Examination of Kameron Fender 519
1 action. Not -- not a lot of dialogue happened between
2 us in that doorway.
3 And -- and I wish we had that time, but it
4 just -- it just wasn't possible. So what we had was a
5 bunch of police officers that were going into that
6 room to try to isolate him.
7 And we were -- most of us were all armed
8 with guns because what we were facing in that moment
9 was somebody that was -- was armed with a weapon that
10 could -- I mean, one stab can -- can also kill you
11 just like a gunshot.
12 And so we never had enough time to really, I
13 guess, decide roles or a custody team or any --
14 even -- any other less-lethal option other than the
15 less-lethal launcher that gave us the ability to -- to
16 use it from a distance, which was completely
17 ineffective.
18 So -- and those were in the room as well
19 with us when the shooting happened, but, again, it --
20 we -- we had seen nothing, no -- no sign that that was
21 going to work. And so there was nothing -- I guess
22 there was no other tool I really would have banked my
23 own life on in that moment.
24 A GRAND JUROR: All hands on deck.
25 THE WITNESS: Yeah. Examination of Kameron Fender 520
1 MR. REES: Okay. Were there any other
2 questions, folks?
3 A GRAND JUROR: No.
4 MR. REES: All right. I see no further
5 questions. We will end the testimony of Officer
6 Fender.
7 Thank you for coming in this afternoon.
8 And, ladies and gentlemen, let's go off the
9 record for our afternoon break.
10 (Recess taken, 2:21 p.m. - 2:48 p.m.)
11 MR. JACKSON: All right. We're back on the
12 record following our afternoon break. Ready for our
13 next witness.
14 Would you raise your right hand, sir?
15 LELAND SAMUELSON
16 Was thereupon called as a witness; and, having been
17 first duly sworn, was examined and testified as follows:
18 MR. JACKSON: All right. You can have a
19 seat.
20 And would you please state and spell your
21 name.
22 THE WITNESS: It's Leland Samuelson,
23 L-e-l-a-n-d, S-a-m-u-e-l-s-o-n.
24 ////
25 //// Examination of Leland Samuelson 521
1 EXAMINATION
2 BY MR. JACKSON:
3 Q All right. Where are you employed?
4 A I'm a forensic scientist with the Oregon
5 State Police. I work at the Portland Metro Forensic
6 Laboratory. And within our laboratory, my primary
7 duties are as a firearms examiner.
8 Q Okay. And what education and training do
9 you have for that position?
10 A In general, I have a bachelor of science
11 degree in chemistry with a minor in physics from the
12 University of Portland. So that's kind of the -- the
13 minimum degree requirement to be a forensic scientist
14 is you have to have a degree in one of the -- the
15 physical or life sciences.
16 And then within our different specialized
17 areas we work in, whether it's as a chemist or a DNA
18 analyst or a latent print or in the case of a firearm
19 examiner, we all have specific training related to
20 that discipline we work in.
21 And so that's usually as a firearms
22 examiner, it's about a year-long training program.
23 It's where you're assigned a journeyman that works
24 kind of as an apprentice for that year.
25 And the training is a combination of Examination of Leland Samuelson 522
1 training by the Oregon State Police, different firearm
2 manufactures, ammunition manufacturers. And we also
3 attend specialized courses by the -- the FBI, Alcohol,
4 Tobacco and Firearms Bureau.
5 And then I'm also a member of the
6 Association of Firearm Tool Mark Examiners. That's
7 kind of the international association that publishes a
8 journal and promotes annual training seminars, which I
9 regularly attend.
10 Q Okay. And were you assigned to examine the
11 firearms and casings used in the officer-involved
12 shooting from April 7th of 2018?
13 A I was.
14 Q All right. And so what were the types of
15 guns that were submitted to you for review?
16 A There was several guns submitted, but, in
17 general, there was -- there was some rifles, a shotgun
18 and two handguns that were submitted to me to test.
19 Q Okay. So starting with the handguns, could
20 you briefly explain how those guns operate?
21 A Yeah. Both -- both of the firearms I
22 received were Glock, semiautomatic pistols. And I
23 have an example of just one here that I can just show
24 up or hold and then pass around as well. But a
25 semiautomatic pistol is a -- a hand-held firearm, so Examination of Leland Samuelson 523
1 it's a handgun.
2 Pass that around.
3 So a semiautomatic handgun is designed to
4 be -- the ammunition is loaded into a magazine, which
5 is -- it usually is then fed into the grip of the
6 firearm. The top of the firearm has a -- a mechanism
7 that slides back and forth.
8 So the way the firearm works is -- is
9 physically, you will pull the slide to the rear and it
10 has a serrated top, meant to -- meant to be grabbed.
11 You pull that to the rear and release it and that's
12 going to chamber the first cartridge ready to be fired
13 in the gun.
14 So a cartridge is an individual unit of
15 ammunition that's loaded. And I have an example of
16 what -- what we talk about when we're talking about
17 cartridges. So this would be a blowup of a cartridge.
18 It has a cartridge case with a bullet on top of it and
19 inside would be gunpowder.
20 So -- so a magazine holding, in this case of
21 this Glock pistol, 17 cartridges would be loaded into
22 it. So the first time the gun is fired, the bullet is
23 going to come out the barrel.
24 And then the gun will automatically operate
25 itself and then it will actually extract this Examination of Leland Samuelson 524
1 cartridge case out, eject it from the gun and that
2 slide is going to come backwards under recoil and as
3 it comes forward, it's going to pick up the next
4 cartridge out of the magazine and it's going to have
5 the gun ready to fire.
6 So, at that point, you would release the
7 trigger, squeeze it again to fire the next trigger.
8 And that cycle will continue to operate each time the
9 trigger is pulled. Only one bullet is fired each pull
10 of the trigger, but -- and each time it'll reload
11 itself automatically.
12 Q Okay. And each time a bullet comes out the
13 end, the cartridge is ejected before the next one is
14 loaded in?
15 A That's correct.
16 Q Okay.
17 A Mm-hmm.
18 Q And in this case, you said there were two
19 Glock pistols like this. One was a 9-millimeter Luger
20 and one was a Smith & Wesson 40 caliber; is that
21 right?
22 A That's correct.
23 Q And so what's the difference there?
24 A So when we talk about caliber, there's a
25 couple things that kind of -- they kind of relate to Examination of Leland Samuelson 525
1 the size of the ammunition. So the first number,
2 9-millimeter, sometimes it's referred to in the metric
3 system. Sometimes it's referred to in the English
4 system, which is generally in inches.
5 So a 9-millimeter Luger caliber is going to
6 be 9-millimeters in diameter of the bullet. And then
7 that Luger portion gives us the description of the
8 size of the cartridge case. So this kind of gives us
9 a size of the bullet and then the cartridge and how
10 much gunpowder it would hold.
11 The 40 Smith & Wesson is going to be a
12 little bit larger bullet, so it's going to be
13 .40 inches and it's going to have a slightly larger
14 cartridges than that. So -- so you get information on
15 the size of the cartridge and then the diameter of the
16 bullet that it fires.
17 Q And can a 9-millimeter Glock fire a
18 40-caliber bullet out of it?
19 A A 9-millimeter fire a 40?
20 Q Mm-hmm.
21 A No.
22 Q Okay.
23 A It physically would not fit in the gun.
24 Q Okay. And so how do the rifles that you
25 examined operate differently than these handguns? Examination of Leland Samuelson 526
1 A Sure. The rifle is meant to be fired. It's
2 a -- it's a little bit larger gun. It's meant to be
3 fired from the shoulder.
4 So, typically, a rifle is going to have a
5 couple features that are -- well, one, they're
6 physically bigger, so in this case, this barrel is
7 16 inches long. It has a -- a butt stock and a grip
8 here, so it's meant to be fired from the shoulder.
9 So -- but it works in a similar fashion in which a
10 magazine is loaded into the bottom of the frame.
11 Q Yeah.
12 A Okay. Pass it around. So a magazine is
13 inserted into the bottom of the frame. In this case,
14 there's a handle. This actually is pulled and
15 released.
16 So, now, the gun has -- has physically,
17 manually been loaded the first round into the chamber.
18 So as I pull the trigger, the bullet is going to come
19 out. In this case, it uses some of the gas from the
20 burning gunpowder is going to cause the action to
21 cycle, extract the cartridge case and then come back
22 forward, loading the next one.
23 In this case, it would again be repeated
24 each time I pull the trigger. One shot gets fired,
25 but it automatically ejects the cartridge and it's Examination of Leland Samuelson 527
1 going to load the next one into it.
2 Q Okay.
3 A So rifles typically are going to be -- they
4 have a larger cartridge case, so they're going to have
5 more gunpowder and they typically will have a higher
6 velocity of a projectile.
7 Q And what was the caliber of the rifles that
8 you examined in this case?
9 A These are all 223-Remington caliber. So
10 again, it's the -- 223 is approximately .22 inches in
11 diameter, so it's pretty small bullet in diameter.
12 And then the Remington, it's approximately a
13 45-millimeter long cartridge casing, a longer
14 cartridge case.
15 Q Okay. And then what about the shotgun?
16 A And then the shotgun's a slightly different
17 action. Again, it's meant to be fired from the
18 shoulder. In this case, we have a barrel about
19 18 inches long. The magazine is actually a tube along
20 the bottom of it.
21 So a shot shell, if you think of it as a
22 large cartridge, much larger, they're -- they're
23 approximately three-quarters of an inch in diameter.
24 And they're designed to fire multiple projectiles out
25 of each shot shell. So they can be as small as small Examination of Leland Samuelson 528
1 little BBs.
2 It could be sometimes a little larger balls,
3 but each shot shell will fire, you know, anywhere from
4 9 to maybe 20 individual projectiles. And they come
5 out in a pattern. So, in this --
6 Q Is that -- is that commonly referred to as,
7 like, buckshot?
8 A Yeah. Buckshot would be one example of
9 that, yeah.
10 Q Okay.
11 A Yep. And then so in this case it would
12 hold -- in this case, it would hold six shot shells in
13 this tube. And then this is called the fore-end. And
14 it slides back and forth.
15 So each time I want to fire the gun again, I
16 would actually pull the fore-end back and then push it
17 forward. And that does that cocking, loading,
18 extracting, ejecting operation. So it -- it doesn't
19 do it automatically. I actually have to cycle it,
20 like, manually each time.
21 Q Okay. And I think you may have mentioned
22 this already, but going back to the -- the rifle, each
23 trigger pull is going to eject one round; is that
24 right?
25 A That's correct. Examination of Leland Samuelson 529
1 Q Okay. And same for the shotgun? Each time
2 you perform that function you just described, pull the
3 trigger, one round is going to come out?
4 A That's correct.
5 MR. JACKSON: Okay. Are there any questions
6 about that?
7 A GRAND JUROR: How long would it take to
8 fire off three rounds in a shotgun?
9 THE WITNESS: Oh, probably -- maybe two
10 seconds, probably. Very, very fast.
11 A GRAND JUROR: So I have a question. So
12 the medical examiner, if he said there was three
13 shotgun wounds, would that just relate to one of those
14 little, like, balls that are inside the shell or three
15 separate? Does that make sense?
16 THE WITNESS: In my experience, when they
17 describe wounds like that, they're going to talk about
18 three separate projectiles, so it could be from one
19 shot. He might have been struck with three pellets
20 from one shotgun shell.
21 A GRAND JUROR: Okay. Thank you.
22 BY MR. JACKSON:
23 Q Let me just ask you another question about
24 the shotgun round itself. You said it's -- it has a
25 cartridge that holds multiple smaller projectiles. Examination of Leland Samuelson 530
1 How does that actually function to hit a target or
2 does it just spray all over the place?
3 A Yeah. So the-- the manufacturers, they all
4 have different -- shot shells will have different
5 usages. So if it's, for example, for bird hunting or
6 duck hunting or something you can think of, they want
7 to control how far that -- those pellets spread.
8 If they want to -- sometimes they want a
9 tight group, 'cause that's going to travel farther
10 with fewer pellets. Say, buckshot pellets have maybe
11 only nine. They want that to be kind of controlled,
12 that -- that spread.
13 So inside the shot shell is -- is a wad.
14 Typically, it's made out of plastic. And it's kind of
15 a little cup that holds those shot pellets together in
16 this little cup.
17 And so once they -- the wad that contains
18 the pellets exits out of the barrel, it's going to
19 hold it together for a little while. It depends on
20 the shot shell. I can't give an estimate, but maybe
21 10, 20 yards.
22 And then that pellet -- that -- that wad,
23 plastic wad will separate from the pellets. It'll
24 fall away and the pellets will continue on and then
25 they'll start their spread. Examination of Leland Samuelson 531
1 Q Okay. And the rounds that you examined in
2 this case, shotgun rounds, were they of that type with
3 the wad?
4 A Well, I did not -- I did not have a wad
5 submitted, but they would have -- typically would have
6 been loaded with a plastic wad in them --
7 Q Okay.
8 A -- originally.
9 Q Okay. And you said that it's 20 yards or so
10 before that wadding would kind of fall away and the --
11 the projectiles would go on downrange to a target?
12 A It can get to that far, yeah, depending on
13 the -- the wad -- type of wad that was used.
14 Q So if you can answer this, what kind of
15 spread would you expect for a target that's ten feet
16 away from you?
17 A At that point, I wouldn't expect any spread
18 that close. I would expect most of the -- especially
19 a buckshot wad, typical of the ones I -- I had
20 submitted to us, they will stay together for that
21 first ten -- ten feet. I would expect it to create
22 one -- one hole, large hole.
23 MR. JACKSON: Okay. Okay. All right. So
24 are there any other questions about how the firearms
25 work? Examination of Leland Samuelson 532
1 BY MR. JACKSON:
2 Q All right. So did you -- so did you perform
3 a function check on the firearms that were submitted
4 to you?
5 A Yes, I did.
6 Q Could you describe what that is.
7 A Yeah. So we, basically, when we -- when we
8 receive a gun, any gun, any case, we go through a --
9 kind of a -- a detailed examination of that. We want
10 to make sure that the gun is safe to fire for our --
11 for our own safety and that it's going to function in
12 a, you know, a reliable manner.
13 Was -- are there any known defects or issues
14 with the gun. So we -- we document the -- the make,
15 the manufacture, the model, the serial number of the
16 firearm. We examine any safeties, internal or
17 external, to verify that they're working.
18 And we have a -- what we call a recall list,
19 where we actually look up the firearms in a database
20 to see if there's any known defects we should be aware
21 of or the manufacturer said, "Hey, this is a broken
22 part that you should be aware of that should be
23 swapped out."
24 At that point then, we -- we take them to
25 our range and we test fire them multiple times, either Examination of Leland Samuelson 533
1 into a water tank, if we want to capture the bullets,
2 or we will shoot them on a range where we just test
3 them multiple times.
4 Another thing we'll do is we'll -- we'll
5 test the trigger pulls of the firearm, which just
6 gives us an indication of how much force it takes to
7 squeeze the trigger to get the gun to fire as well.
8 Q Okay. And you performed those function
9 checks on all these firearms?
10 A Yes, I did.
11 Q And what was the result of your check?
12 A I found that all of them functioned as
13 designed by the manufacturer, so there was no
14 operating issues or concerns I found with any of them.
15 They all functioned in a normal manner.
16 Q Okay. And we're talking about the two Glock
17 pistols, one shotgun and three rifles?
18 A That's correct.
19 Q Okay. So, now, if you're going to try to
20 match cartridges that are found at a scene to the gun
21 that actually fired them, how do you go about doing
22 that?
23 A Yeah. So the basic premise is that when
24 firearms are manufactured, whether it's a shotgun or
25 handgun or -- or rifle or, actually, any tool-type of Examination of Leland Samuelson 534
1 object that goes through a machining process, the --
2 the steps that go into making that object are going to
3 leave unique marks on that.
4 So, for example, in the case of a -- of a
5 semiautomatic pistol like this one, the firearm
6 manufacturer is going to -- when they -- they're going
7 to make a barrel, they're going to drill that barrel,
8 drill a hole through the barrel. There's going to
9 be -- they're going to carve the rifling in it, which
10 is -- would cause the bullet to spin.
11 The back of the firearm, the slide, is
12 called the -- the breech. So that's -- that's a part
13 that has a machine cutter that cuts this flat steel
14 surface on it that's going to hold all that pressure
15 in the gun at a safe level until the -- the bullet
16 exits.
17 The firing pin that actually would strike
18 the base of the primer, so that's going to have
19 machining steps on that. So when all these parts are
20 made and machined, they're all unique to that
21 particular firearm.
22 And we've -- we've done studies where we've
23 looked at consecutive manufactured tools, firing pins,
24 breechfaces that have -- one right after another and
25 each one of those, under a microscope, are going to be Examination of Leland Samuelson 535
1 unique to each other.
2 So they -- they all look alike, but the --
3 the premise of a uniqueness is that it's those steps
4 that go into making that are unique. It's kind of
5 like if you think about it, if you and your friend
6 bought the exact Toyota Camry car, all red, the exact
7 same interiors.
8 And then you started looking (indiscernible)
9 you'd see there's maybe some scratches or defects in
10 this one that was made in the paint or this one has
11 some tears in the seat that you looked at. Then you
12 took the cars and used them for a year and you brought
13 them back.
14 Just the wear and the abuse on those,
15 similar to a wear and abuse of guns, are going to
16 cause those to have their own unique marks to that.
17 And so what we do in the case of a firearm comparison
18 is that we will take our known cartridges, load in the
19 gun, shoot those in a range and then we're going to
20 look at all the marks that are left behind.
21 So some of them are going to be the base,
22 the primer, the machining marks of the breechface.
23 And we're going to look at those unknowns under a
24 microscope compared to our knowns that we see. And
25 we're looking at -- at patterns of striations and Examination of Leland Samuelson 536
1 unique marks from that gun under a comparison
2 microscope.
3 So the microscope lets us look at, you know,
4 two cartridges at the same time, side by side with a
5 dividing line, about anywhere from 10 to 80X
6 magnification.
7 So once we render an opinion that two
8 cartridges came from the same firearm, we will give
9 the evidence to another firearm examiner that then
10 will do their own comparison to confirm the -- or --
11 or refute the opinion at that point.
12 Q Okay. Do you have an example of what that
13 looks like, that comparison?
14 A Sure. So this would be a photograph -- and
15 here's a little bit larger one -- would be of two
16 cartridge cases looking at under the microscope. So
17 what we're looking at is actually on this markup would
18 be -- so these striations -- if you think about kind
19 of like, you ever played with Silly Putty?
20 You remember how you would stick that on an
21 object and you'd peel it away and it would actually
22 take up the surface of the object that you pulled it
23 away from? Well, that's kind of how these firearms
24 are made out of hard steel surfaces that have been
25 machined. Examination of Leland Samuelson 537
1 The cartridge cases are typically a lot
2 softer metal, so they're made out of a brass or a lead
3 alloy that's going to be a lot softer metal. So when
4 that gets pressed into the firearm and then ejected,
5 it's going to leave these machining marks on the
6 cartridge cases themselves.
7 Q Okay. And so does this actually contain two
8 different cartridges that you're comparing?
9 A Yes. In this case, it's the 40 caliber
10 unknown cartridge case on the left and this would be
11 my known test fire cartridge cases on the right.
12 Q And this line down the middle here and then
13 over on this side, that's where the -- the two are
14 lining up?
15 A Right. That's correct.
16 Q And so what is it that you're looking for?
17 A Well, in this case, these are markings from
18 the breechface, so these are striated marks. So as
19 the cartridge is ejected out of the gun, that is going
20 to go through a shearing process. It's going to leave
21 these markings on here.
22 So, in this case, we're looking for a
23 pattern of striated marks that are -- that are going
24 to line up. In this case, they line up almost like a
25 barcode here, so -- Examination of Leland Samuelson 538
1 Q Okay. And is this from an unrelated case or
2 is this from this case?
3 A This is from this case.
4 Q Okay. And do you know which -- which round
5 we're actually looking at?
6 A That would be my Exhibit 30 and I can cross
7 reference to the -- the (indiscernible), but this
8 would be the unknown 40-caliber cartridge case that
9 was found at the scene.
10 Q Okay.
11 A To the 40-caliber Glock.
12 Q And is this another series of examples of
13 what -- what it looks like when you were are doing
14 your comparison?
15 A Yeah. These are examples of the
16 9-millimeter Glock pistol compared to 9-millimeter
17 cartridge cases found at the scene.
18 Q Okay. Is it all right if I pass this
19 around?
20 A Sure. Yeah.
21 Q So while that photograph is being passed
22 around, could you describe for us what evidence was
23 actually submitted to you for review, what you did
24 with it and what your conclusions were.
25 A Sure. So I can give a cross reference to Examination of Leland Samuelson 539
1 the agency case number if it's needed as detailed,
2 but, in general, there was two Glock pistols that were
3 submitted to us. One was a 9-millimeter caliber and
4 the other -- Luger. And the other one is the 40 Smith
5 & Wesson caliber.
6 So from that, I identified the one 40 Smith
7 & Wesson cartridge case at the scene was fired in the
8 submitted Glock pistol. There was six 9-millimeter
9 Luger cartridge cases that were at the scene that were
10 collected and submitted and those were all identified
11 as being fired in the submitted 9-millimeter Luger
12 Glock pistol.
13 Q Okay. What else did you examine?
14 A I received the Remington pump-action shotgun
15 that was -- belonged to one of the officers. At the
16 scene was three fired shot shells that were collected
17 and submitted to me. And I identified all three of
18 those shot shells were fired in the Remington shotgun.
19 Q Okay. And what-- what did you get submitted
20 with regard to the rifles?
21 A And so we actually received three Colt AR15
22 A2 -- model A2 rifles. And then with that, we
23 received a total of -- let me just quick count --
24 seven, 223-Remington caliber-fired cartage cases.
25 So in this case, we had seven cartridge Examination of Leland Samuelson 540
1 cases as unknowns, but we had three rifles all of the
2 same caliber submitted to those. So from that, we was
3 able to microscopically do a comparison similar to
4 what's shown here as I described and identify: One of
5 the rifles fired four of the cartridge cases. One of
6 the rifles fired one cartridge case. And then another
7 rifle fired two cartridge cases.
8 Q Okay. And did that account for all of the
9 case -- the cartridge casings that were submitted
10 to you?
11 A Yes, it did.
12 Q Okay. So there were no unknown casings
13 found at the scene?
14 A That's correct. And so when we have
15 cartridge cases and we do the comparison, we have
16 three conclusions we can come to. We can form an
17 identity, which we believe that that evidence was
18 fired from that gun.
19 We can do an exclusion, where we say these
20 were not fired from any of these firearms. Or we have
21 just an inconclusive, where we say, you know, these --
22 the caliber's the same. It has a lot of the same
23 features that it could be from a Glock or it may be
24 another type of firearm.
25 But it doesn't have enough of those Examination of Leland Samuelson 541
1 individual characteristics that are unique to that gun
2 to say that it matches this evidence to the exclusion
3 of the evidence.
4 Q And just to be clear, what were the
5 conclusions you reached with regard to the casings and
6 firearms you just described?
7 A Yeah. I -- I matched the evidence submitted
8 to me to all of -- well, of the evidence that was
9 submitted to me, I was able to match those to the
10 firearms. I did not have any inconclusives or
11 exclusions.
12 MR. JACKSON: Okay. Do you folks have any
13 questions about that? Okay. I see no questions.
14 That's it. Thank you very much. And that
15 concludes our testimony for today.
16 * * *
17 (Court adjourned, Volume 3, 5-8-18 at 3:13 p.m.)
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3 REPORTER'S CERTIFICATE
4 I certify, by signing below, that the
5 foregoing is a correct transcript, of the audio record
6 in the above-entitled cause, as recorded on CD and
7 transcribed to the best of my ability and in accordance
8 to the quality of the audio CD.
9
10 ______Katie Bradford, CSR 90-0148 11 Court Reporter (503) 267-5112 12
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25 1 IN THE CIRCUIT COURT OF THE STATE OF OREGON
2 FOR THE COUNTY OF MULTNOMAH
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6 GRAND JURY No. 1 PROCEEDINGS
7 Case No. 28
8 Conducted by:
9 Don Rees, Chief Deputy District Attorney
10 Todd Jackson, Deputy District Attorney
11
12 - - -
13 May 9, 2018
14 - - -
15 DA Case No. 2380019
16 Re: PPB Case No. 18-114856
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21 Katie Bradford, CSR 90-0148 Court Reporter 22 Portland, Oregon (503) 267-5112 23
24 Proceedings recorded on wma audio recording; transcript provided by Certified Shorthand Reporter. 25 Index 544
1 GENERAL INDEX
2 VOLUME 4
3 Page No.
4 May 9, 2018 Proceedings 545
5 Case Called 545
6 Examination of Erik Kammerer 545
7 Examination of Joshua Howery 550
8 Examination of Gaberi Hertzler 595
9 AFTERNOON SESSION 642
10 Examination of Andy Polas 643
11 Reporter's Certificate 663
12 * * *
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25 Examination of Erik Kammerer 545
1 (Volume 4, Wednesday, May 9, 2018, 10:31 a.m.)
2 P R O C E E D I N G S
3 (Whereupon, the following proceedings were
4 held in Grand Jury No. 1:)
5 MR. REES: All right. We're back on the
6 record DA 2380019, Grand Jury No. 1, Case No. 28. And
7 after we broke yesterday I believe our alternate
8 foreperson had a question about distance and
9 measurement at the shooting scene, so we're going to
10 recall Detective Kammerer to answer that question.
11 (Pause in proceedings, 10:32 a.m.)
12 MR. REES: Swear him in again.
13 ERIK KAMMERER
14 Was thereupon called as a witness; and, having been
15 first duly sworn, was examined and testified as follows:
16 EXAMINATION
17 BY MR. REES:
18 Q Okay. Just for the record, Detective, if
19 you could state your name again.
20 A Erik, E-r-i-k; Kammerer, K-a-m-m-e-r-e-r.
21 Q All right. And, Detective, one of the
22 questions from the grand jury yesterday was as to the
23 dimensions of the room at Cityteam Ministries at
24 526 Southeast Grand Avenue.
25 And I understand that you have the -- the Examination of Erik Kammerer 546
1 blueprint for that location and you have the -- the
2 dimensions for the location; is that correct?
3 A I do.
4 Q Okay. And could you go ahead, please, and
5 state for the record the dimensions of the room?
6 A It's roughly 50 feet wide by about 77 feet
7 deep for that portion of the room.
8 Q All right. And is that the room -- and
9 this, of course, behind you is not to scale, but is
10 that the -- the room depicted on the -- on the
11 diagram?
12 A Yes. So it'd be about 50 feet wide here and
13 then about 77 feet to the back wall here.
14 MR. REES: All right. Are there any
15 questions about that?
16 A GRAND JUROR: Why is it not to scale?
17 THE WITNESS: The diagram?
18 The diagrams aren't done to scale because it
19 quickly becomes exceedingly difficult to get to exact
20 scale, so they're done to a -- a rough scale.
21 A GRAND JUROR: Okay. So it's more of a
22 square -- not a square room, but it's, like, wider
23 than -- than it appears on that?
24 THE WITNESS: Yeah, it's -- it's
25 rectangular. Examination of Erik Kammerer 547
1 A GRAND JUROR: 55 -- or 50 by 77.
2 BY MR. REES:
3 Q All right. And then there's another
4 question about measurements and, as I understand it,
5 you used two known, fixed positions and then measured
6 using the -- the Leica scan of the room to -- to get
7 a -- a fixed distance; is that correct?
8 A That's correct, yes.
9 Q All right. And so could you explain to us
10 what you used as your positions for the measurement?
11 A So this pillar right here --
12 Q And, Detective, if I could have you stand to
13 the side of the --
14 A Sorry.
15 Q -- board and -- so you don't block
16 everybody. Okay.
17 A So this -- this pillar right here, it's most
18 likely a load-bearing pillar. So it's fixed, it
19 doesn't go anywhere. It stays there as long as the
20 building is upright.
21 So we measured off of that to the location
22 of this table, which is -- from the east side of this
23 pillar to the west side of this table is roughly
24 30 feet. And then, again, from the east side of this
25 pillar to the location where Mr. Elifritz was on the Examination of Erik Kammerer 548
1 ground to roughly his belt line was 14 feet.
2 MR. REES: Sir, did you have any additional
3 questions about that or --
4 A GRAND JUROR: Yeah. And there's really no
5 way to determine the actual location of the -- the
6 deceased when the first shots were fired, right?
7 THE WITNESS: No.
8 A GRAND JUROR: Okay.
9 THE WITNESS: Between 30 feet and 14 feet.
10 A GRAND JUROR: So he traveled roughly 16
11 feet from the time when he's coming around that table
12 to the point he dropped?
13 THE WITNESS: That's correct.
14 MR. REES: All right. Any other questions
15 for Detective Kammerer?
16 A GRAND JUROR: I -- I've got one.
17 MR. REES: Okay.
18 A GRAND JUROR: Just -- this is your
19 experience on a situation like this, you know,
20 obviously, this guy's coming at you pretty fast. Out
21 of the 19 shots fired, there were 9 hits -- 17 shots
22 fired, sorry.
23 THE WITNESS: Mm-hmm.
24 A GRAND JUROR: There was nine hits. So,
25 you know, fortunately, in my mind, there was 17 shots Examination of Erik Kammerer 549
1 fired because, I mean, there was a number of those
2 that were no hits. So would that be typical? I mean,
3 this is, obviously, not a very typical situation, but
4 would that seem reasonable that out of the 17 shots
5 fired --
6 THE WITNESS: Yeah. I mean, I -- in my
7 experience -- I can speak to my experience. In a
8 stressful environment, you don't have a lot of fine
9 motor control.
10 I know when I've been through scenarios
11 where it quickly becomes very chaotic and you have to
12 address a threat, you know, you lose your fine motor
13 skills. So unless it's something you constantly train
14 on, it could be an issue for you to actually, you
15 know, acquire a target and strike it with a bullet.
16 It's hard enough to do it on a consistent
17 basis when there's no stress involved. So when you
18 inject the stress, then it becomes even more
19 difficult. But that's -- that's my experience.
20 A GRAND JUROR: Sure.
21 BY MR. JACKSON:
22 Q And, Detective, is that in part why
23 consideration of the backdrop or what is behind your
24 target becomes so important, in case there's a miss or
25 a pass through? Examination of Joshua Howery 550
1 A Absolutely.
2 MR. REES: All right. I see no further
3 questions. We will excuse Detective Kammerer. Thank
4 you.
5 (Pause in proceedings, 10:39 a.m.)
6 THE WITNESS: Good morning.
7 MR. REES: Could raise your right hand,
8 please.
9 JOSHUA HOWERY
10 Was thereupon called as a witness; and, having been
11 first duly sworn, was examined and testified as follows:
12 EXAMINATION
13 BY MR. REES:
14 Q And I'm going to grab a cup of water, but
15 I'll ask you to state and spell your name.
16 A All right. My name is Joshua Howery,
17 J-o-s-h-u-a, H-o-w-e-r-y.
18 A GRAND JUROR: Can you say that again?
19 H-o-w --
20 THE WITNESS: E-r-y.
21 A GRAND JUROR: E-r-y.
22 BY MR. REES:
23 Q And what's your occupation?
24 A I'm a police officer with the Portland
25 Police Bureau. I am currently assigned to our Examination of Joshua Howery 551
1 Training Division full time. I've been there since
2 2012. I am the lead control tactics instructor.
3 Q How long have you been a police officer?
4 A I've been a police officer for 17-and-a-half
5 years.
6 Q All right. What's your educational
7 background?
8 A I have a bachelor of arts from George Fox
9 University.
10 Q And as a police officer, prior to your
11 current assignment, did you have various assignments
12 in the city?
13 A Yes. I worked regular patrol shift on night
14 shift, afternoon shift and day shift. I was assigned
15 to the prostitution coordination detail for a certain
16 amount of time.
17 I was also assigned to detectives for
18 juvenile sex trafficking, the Human Trafficking
19 Division. And then I'm assigned to SERT, our Special
20 Emergency Reaction Team.
21 Q What do you do in your current assignment?
22 A With my -- at the Training Division, my
23 current assignment, what I'm supposed to -- what --
24 what I do is I teach the advanced academy, which is an
25 academy that we bring all of our new recruits through. Examination of Joshua Howery 552
1 It's about ten weeks right now.
2 After they've done the basic academy in
3 Salem they do some time on the street and then we
4 bring them back for another ten-week academy. I teach
5 the control tactics discipline there, which has to
6 do -- it's formally called defensive tactics.
7 And so all of our hand-to-hand control,
8 takedowns, handcuffing and then up to and including
9 lethal force.
10 Q All right. And is the training a
11 combination of classroom instruction and
12 scenario-based, hands-on type --
13 A It is.
14 Q -- activities?
15 A It is. I teach also, like, our -- several
16 blocks of lecture for use of force because we
17 integrate use of force, the policy, the law and then
18 -- then with the physical tactics.
19 Q All right. And at what stage in their
20 career are police officers run through this -- this
21 program that you teach?
22 A The advanced academy, the officers are in
23 the first 18 months of their careers. So their first
24 18 months, they're on probation. They're required to
25 complete the basic academy in Salem and the advanced Examination of Joshua Howery 553
1 academy that we run them through.
2 Q Now, these topics are also covered in the
3 initial basic academy in Salem as well, right?
4 A That's correct.
5 Q Before we get into some of the -- the
6 questions I think the grand jurors may have about use
7 of force and use of deadly force, are you familiar
8 with the concept of duty to act?
9 A Yes.
10 Q What -- what is that?
11 A The -- the concept would be that, hey, the
12 police are here to help people, right? We have the --
13 in life, in society, there's confrontations that need
14 to be resolved.
15 Part of what - why we exist is because
16 people are not always able to resolve those
17 confrontations themselves. Some -- some of those
18 situations are dangerous. And so as part of our jobs,
19 it's -- that's part of our job, is to actually stand
20 between some people and protect other people.
21 Q So that's the duty to act, the legal duty
22 that police officers have to move towards danger
23 instead of away from danger --
24 A Yes.
25 Q -- is that right? Examination of Joshua Howery 554
1 A That's correct.
2 Q All right. Does the Portland Police Bureau
3 have a component in its training regarding the value
4 and the sanctity of human life?
5 A Yes.
6 Q What -- what is the -- what's the core
7 principle?
8 A The core principle is that all -- all life
9 is valuable. That we have due regard for -- for life.
10 And that, you know, whenever possible, our job is to
11 protect life. That's why we are there.
12 Q And what about a duty to avoid creating a
13 situation or precipitating a situation that would lead
14 unnecessarily to the -- the loss of life?
15 A Right. Our -- in our policy, it's -- it's
16 actually expressed in the policy that a member should
17 not precipitate a use of force by placing themselves
18 in jeopardy, using bad tactics or anything outside of
19 the training, right, that would cause them to use --
20 use force when they don't have to.
21 Q I -- I know in some departments nationwide
22 they've had situations where officers have reached
23 into vehicles, for example, and the driver speeds
24 away, officers arm is caught inside the window, and
25 they use deadly force. And so some departments have Examination of Joshua Howery 555
1 taught officers don't reach into cars.
2 Or officers have been killed chasing
3 suspects, coming around a corner and being shot by a
4 suspect. So some departments have said don't -- don't
5 chase people around a corner because you -- you might
6 get killed. Are those -- are those types of scenarios
7 or situations that Portland is addressing?
8 A Correct. We would -- our training would be
9 consistent with that. We would -- we -- our goal
10 would be to give officers tactics to be able to still
11 accomplish a goal, still, in some cases, catch a
12 suspect who's running away, or, you know, keep -- keep
13 a person there at a traffic stop, whatever it would
14 be, without placing themselves in extra danger.
15 We understand that some of our job is
16 dangerous; however, you know, if we can do things a
17 little bit better to keep ourselves safe to do that,
18 we shouldn't place ourselves in danger and that's in a
19 place that we would have to then use force to get
20 ourselves out of that situation.
21 Q As part of the training that you provide, is
22 there any discussion about trying to -- the term being
23 used now is deescalation, like --
24 A Mm-hmm.
25 Q -- by -- but, generally speaking, you know, Examination of Joshua Howery 556
1 trying to calm people down as opposed to kind of
2 amping them up?
3 A Yes. You know, and that's one of the things
4 that goes through a lot of our different training, not
5 just defensive or control tactics, but it's also
6 control tactics, all of our CIT training. You know,
7 we -- we're -- we're integrating that, you know?
8 It's like, hey, if we can do some things, if
9 we can make some decisions early on when we have time
10 and then use some of those tactics, right, a
11 deliberate attempt, if you will, to try to reduce the
12 amount of force used or the necessity of force used,
13 you should do that.
14 Now, on the other hand, we also teach
15 officers that, hey, you do that when you have time to
16 do that. In the middle of the confrontation when
17 things are rapidly evolving and they are happening to
18 you right now, you may not have time to do that.
19 There -- there is a time that you need to
20 act, both to protect yourself and to protect other
21 people. But, again, if we have the time and we can
22 try to, you know -- sometimes those are words,
23 sometimes that's position. If we can use some of
24 these things to calm the situation down, then that's
25 what you should do. Examination of Joshua Howery 557
1 Q And are you -- are you familiar with the
2 U.S. Supreme Court case of Graham v. Connor that talks
3 about the reality, recognized by the U.S. Supreme
4 Court, that police officers often make split-second
5 decisions about the amount of force necessary in a
6 particular situation?
7 A Yes.
8 Q And so then in terms of the use of deadly
9 force --
10 A Okay.
11 Q -- what -- what are officers trained in
12 terms of when deadly force may be reasonably used?
13 A Officers are trained, per our policy, that
14 they may use deadly force to protect themselves from
15 what they reasonably believe -- that's the legal
16 standard, reasonable belief -- reasonably believe to
17 be an immediate threat of death or serious physical
18 injury to themselves or another person.
19 Q And is that concept or policy actually more
20 restrictive than what the U.S. Supreme Court has
21 recognized as justified use of deadly force?
22 A Yes.
23 Q And why -- why has the Bureau set a standard
24 that is actually short of the -- the absolute legal
25 limit? Examination of Joshua Howery 558
1 A I believe that the -- the Bureau set that
2 standard so that -- we didn't have any -- we don't end
3 up with the deadly force situations that are right on
4 the edge of, well, that could be legal, that could not
5 be legal, but that we want to stay well within the
6 legal area.
7 And so the -- that -- if an officer is
8 trained to the policy, to a certain way, and they are
9 following the policy a certain way, then there's not
10 even any question whether their actions were legal or
11 not, it would be a matter of whether it was in policy
12 or not.
13 Q And you could have an officer go outside of
14 policy who would nonetheless be acting legally?
15 A Yes, absolutely.
16 Q Okay. You teach the policy in the Training
17 Division?
18 A Yes.
19 Q Okay. Does the training cover, the training
20 that you do, how to deal with a person armed with a --
21 with a knife?
22 A Yes, it -- it covers some of that, yes.
23 Q And, well, so what do you teach the officers
24 about that? What's the -- what's the danger posed by
25 a knife? Examination of Joshua Howery 559
1 A The danger posed by a knife is -- can be
2 real and can be a deadly -- deadly threat. You know,
3 distance plays a part in knives, right? If a person
4 is really close to you with a knife they are, you
5 know, that -- that threat is right there in front of
6 you. It's very, very immediate.
7 The further you get away from a person with
8 a knife, we start to get some options there, right?
9 And so maybe we're able to have some stand-off
10 distance and start to employ -- it gives us more time
11 and so we can employ different options there.
12 However, just based on how humans are able
13 to physically move, a distance can be covered rather
14 quickly. And so while some distance gives us some
15 options, more distance would give us better options.
16 Q Okay. Would -- would an officer ever be
17 trained to go, you know, hand to hand with a person
18 armed with a knife? I mean, we've seen in the movies,
19 you know, Steven Seagal or James Bond just grabs
20 somebody and twists and then they drop the knife. But
21 do you teach that? Is that real life?
22 A No, that's -- that's based on fiction.
23 Those are -- those are very highly choreographed moves
24 in a movie. Real life, things happen very violently,
25 they happen very quickly. Knives are very, very Examination of Joshua Howery 560
1 dangerous. They're designed to cut. They cut through
2 flesh very easily.
3 I believe we had an incident a year ago
4 where three people on the MAX were stabbed and two of
5 them died and it happened in a split second. They
6 were all three stabbed in the neck and two of them
7 died there and the other person was safe, but time was
8 of the essence there as well. And, you know, that
9 attack happened with a very small knife and it
10 happened very, very quickly.
11 Q Are you familiar with a concept called
12 action, reaction?
13 A Yes.
14 Q And do you teach that in the Training
15 Division?
16 A I do.
17 Q Well, what is that?
18 A The way we define the action-reaction
19 principle is that in a contest of time the initiator
20 of an action has an advantage over a person who has to
21 react. Do you want me to go into how -- how I teach
22 that?
23 Q Yeah.
24 A Explain it a little bit?
25 Q Yeah, if you could. Examination of Joshua Howery 561
1 A Okay. So, again, it -- it's a matter of
2 time and it's a matter of human performance. Just
3 physiologically, what can a human accomplish when they
4 actually see something happen and they have to react
5 to it? And some -- sometimes the example we use is a
6 stoplight, right?
7 If you're driving down the road, down a
8 highway and you come toward a stoplight and you see
9 that green light turn to yellow, right, legally you're
10 supposed to stop for a yellow light, right? We know
11 that.
12 There's some time lag built in by the
13 engineers of -- that -- that have put that streetlight
14 in for how long that yellow light is going to last
15 before it turns red. And there's a reason that that
16 yellow light exists.
17 If it just turned red and you were expected
18 to stop, it takes some time for the mind to, one,
19 process that something has changed. And then it takes
20 more time for the mind to tell the body what to do.
21 In this case, take your foot off of the accelerator
22 and put it on the brake.
23 And, typically, they -- they give about
24 two-and-a-half or more seconds for that to happen,
25 right? Your mind, as you see something change, it Examination of Joshua Howery 562
1 just takes at least a quarter second to be able to
2 recognize that that happened.
3 And then the -- the motion to tell -- tell
4 the body to make a decision what to do can take up to
5 a second before the foot actually even goes to the
6 brake. It can take up to one-and-a-half seconds just
7 for you to start to put your foot on the break when
8 you see that the light has changed.
9 Conversely, if you're -- if you're sitting
10 at a red light and the -- and you're waiting for the
11 light to turn green, you don't go as soon as the light
12 turns green. Even if you look at the side lights and
13 you're waiting for it to turn red and you're
14 anticipating that your light is going to turn green,
15 you still wait for that light to turn green and when
16 you do, there's still -- there's some time before
17 you're able to actually react to that.
18 And the same things with humans. If -- the
19 person who is making the first action, they don't have
20 to react to anything. They're the person that makes
21 the action. They start everything in motion. The
22 other person, in many cases the police officers,
23 they're waiting for the -- the subject to make the
24 action and then they have to react to it.
25 And it takes some amount of time. Sometimes Examination of Joshua Howery 563
1 it's as quick as a half -- half a second, depending on
2 what they're reacting to and what they're waiting for,
3 up to one and a half to two seconds, to actually
4 process what's changed and how to properly react
5 to that.
6 Q So -- so the basic phenomenon, we've all
7 been at a traffic light, obviously. I mean, we've all
8 had that anticipation of the light turning green, but
9 you see it turn green and then you think, okay, it's
10 green, and then you put your foot on the gas and then
11 you go. And that -- that all takes a moment of time,
12 right?
13 A Correct.
14 Q You can't just do it instantaneously, even
15 if you're focused.
16 A Right.
17 Q And so how does that concept translate then
18 to officer safety and the training that you're doing?
19 How -- how does that relate to what you're -- what
20 you're doing?
21 A So what we tell officers is that you don't
22 use action, reaction just blanket, just knowing that,
23 oh, I'm reacting to something so I'm behind. That's
24 not a justification to use force.
25 But it should get into their mind of Examination of Joshua Howery 564
1 thinking, hey, I know that I'm at a disadvantage based
2 on this principle, so what are some things I can do to
3 try to work that advantage back in my favor, right?
4 And in some cases get more distance, right? That'll
5 give me more time to react.
6 In some cases, putting something between me
7 and the subject and so then that -- again, maybe they
8 can't see as well, maybe they have -- they would have
9 obstacles to get around before they were to be able to
10 get to me. Those type of things to, again, try to get
11 that advantage back.
12 Q And so how -- how does it relate to a person
13 who's armed with a -- with a weapon?
14 A Mm-hmm.
15 Q And who -- who may or may not be about to
16 use that weapon against a police officer?
17 A In some cases, I would advise an officer to
18 draw their own weapon and have it ready to use, versus
19 having to make a decision and then take the time to
20 draw weapons, right, 'cause those -- those actions
21 also take time.
22 And so, again, we -- if we can, if we have
23 time in the beginning, we make plans. If we don't, we
24 see that there's a potential threat and there's no way
25 to get further away, I may say, "Hey, you know, go Examination of Joshua Howery 565
1 ahead. Yes, please be ready, you know, with your
2 tools, your weapons, whatever you need to -- to do to
3 make sure that you and other people are safe."
4 Q So, again, I think the -- the Hollywood
5 movie depiction is, you know, that the good guy
6 doesn't pull their weapon until maybe the weapon's
7 been pointed at them or they've even been shot at. Is
8 that -- is that realistic?
9 A No. Because, again, if the -- if the
10 weapon's already pointed at them and they have to
11 react to that, if they have to wait for a shot to be
12 fired at them, those are -- those are actions that --
13 to process that in the mind, it would take time. The
14 bullet's already there.
15 The bullet is already at its target by then.
16 And then the officer may not even have a chance to
17 respond to that if they wait for a bullet to be fired.
18 Same thing with the -- somebody pointing a gun at you
19 already, that person has a decided advantage if you're
20 trying to react to what they're going to do next.
21 Q Is an officer required to be shot or stabbed
22 before they use deadly force, given those realities
23 and given the policy and the law?
24 A No. Because if that was the requirement,
25 the -- the officer -- in -- in some cases, the officer Examination of Joshua Howery 566
1 would already be dead. They would not be -- or have
2 received a fatal wound. They would not be able to use
3 any amount of force to actually protect themselves or
4 anybody else. It would have -- the damage would have
5 already been done.
6 Q You -- you mention that distance is a factor
7 in confronting someone armed with a knife?
8 A Yes.
9 Q Obviously, because the person has to be
10 close to stab someone?
11 A Correct.
12 Q Unlike a gun that can be used to cross a --
13 a further distance, right?
14 A That's right.
15 Q So is there a set distance that you teach
16 that's safe or not safe? How does that -- how does
17 that work?
18 A No, we don't teach a set distance. We have
19 not taught a set -- a set distance since before I came
20 to the Training Division.
21 What we have been teaching is a reactionary
22 gap. And the idea that, hey, when you have time to
23 plan, you need to plan in a reactionary gap before you
24 just go charging in to deal with whoever you're
25 dealing with, especially with a knife, with a threat. Examination of Joshua Howery 567
1 And the way we -- we look at reactionary
2 gap, and I've already explained it a little bit, is
3 distance equals time equals options. And so if I can,
4 in general, get more distance, it will give me more
5 time to react. It will give me more time to come up
6 with a plan and get options, right?
7 Now, if something changes and they have to
8 react, all the planning in the world may not help that
9 and they may have to actually start to act before the
10 plan's fully in place. But, in general, we -- we try
11 to get more distance if we can.
12 Q Okay. So given that there's no set
13 distance, how -- how's an officer supposed to judge
14 the point where they'd be justified in using deadly
15 force or not against someone armed with a knife?
16 A Well, and, again, that can change based on
17 how ready they are, right? If their gun's in their
18 holster and their hands are in their pockets, that's
19 going to, you know -- that person's going to be a
20 threat a little bit further away if they have to
21 react.
22 You know, we -- there's -- there's been
23 studies done about how far a person can move in a set
24 amount of time, and then there's been studies done how
25 fast it takes an officer to draw their weapon and Examination of Joshua Howery 568
1 fire. But, on the other hand, if the officer already
2 has their weapon out, then that -- that distance may
3 be shorter for them to be able to react.
4 Q Okay. So it just depends on a lot of
5 different factors?
6 A Everything. Yeah, it depends on the -- the
7 entire environment and the situation at hand.
8 Q Now, of course, you weren't part of this
9 response on April 7th, 2018, that led to officer use
10 of deadly force, correct?
11 A That's correct.
12 Q And you're here testifying as an expert
13 witness?
14 A Yes.
15 Q You -- you have an understanding that in
16 this case, generally, the officers were confronting a
17 suspect armed with a knife who was known to have
18 committed a carjacking and had held someone at knife
19 point later. And there's a crowd of people in the
20 room and there's one primary entrance and -- and exit.
21 Is that a scenario, situation that you
22 cover? Probably not specifically, but how -- how
23 would address that in training to then try to deal
24 with this unfolding situation?
25 A Okay. Lots of factors going into this Examination of Joshua Howery 569
1 situation, right? Large room full of people; person
2 with the knife committed the crime, carjacking;
3 actually threatened somebody else with a knife
4 earlier. All those things play into what do the
5 officers have to do? What are the officers trying to
6 accomplish there, right?
7 They go in -- if they're going into this
8 room, right, it -- does it make sense, is it
9 reasonable for them to go into the room and confront
10 this person? Yes, because if there's people in that
11 room, they -- there's a duty for them to protect those
12 people, too, right?
13 And so they go into the room to try to
14 keep -- get people out of the way, try to keep --
15 maybe try to get people to start filtering outside so
16 they're not in danger of this person who's already
17 committed a crime and holding everybody back with a
18 knife, which -- in the manner it's used as a deadly
19 weapon, definitely a dangerous weapon.
20 The officers go in, they have to do
21 something. They can't just stay outside and let
22 everybody not be able to get out, if that makes any
23 sense.
24 Q Mm-hmm. And so what would be the -- what --
25 what would be the -- the means for training of Examination of Joshua Howery 570
1 addressing the -- the person with the knife?
2 A Well, so, the training would be to try to
3 isolate that person in a part of the room where, one,
4 they couldn't hurt anybody, right? They would -- the
5 officers would be making plans at a very rapid rate in
6 their minds, of how are we going to keep this person
7 away from the other people and if they do -- and start
8 to come up with other plans.
9 What happens if this person goes towards a
10 person with a knife? What happens if they come toward
11 us with a knife, right? We would start thinking about
12 less lethal munitions, right?
13 Trying to keep the person at bay with a
14 less-lethal tool such as a 40 millimeter sponge round.
15 Because, again, that still gives them distance without
16 having to get so close where using some of the other
17 tools such as a Taser, which they have to be a lot
18 closer for, right?
19 Because, again, if they close that distance
20 then that person becomes a higher amount of threat,
21 right? The officers, as they go into the room, they
22 want to keep as much distance as they can, but they
23 still have to get into that room to actually
24 accomplish what they're trying to accomplish.
25 So, you know, they're using some of these Examination of Joshua Howery 571
1 munitions, some of these other tools to keep this
2 person at a further distance so they maybe don't have
3 to use force and they can start to get their plan in
4 place to get people out of that -- out of that room.
5 So, again, in some cases trying a different
6 tool, right, which may not be as effective, may not be
7 effective at all as well. But also that causes the
8 officers to have to close distance, may actually raise
9 the amount of threat, which may lead to them having to
10 use more force.
11 We're trying to keep that from happening
12 without, you know, in -- in this case, unfortunately,
13 there was a higher level of force used, but not
14 because the officers decided to close the distance
15 and -- and raise that threat. That was based on
16 something else.
17 Q Again, in the movies we've all seen this,
18 like, 100 times.
19 A Yeah.
20 Q You know, police would shoot somebody in the
21 hand and foot or shoot a gun or a knife out of
22 somebody's hand.
23 A Mm-hmm.
24 Q Is that realistic? Is that trained?
25 A No, we don't train that. When we talk about Examination of Joshua Howery 572
1 deadly force, using deadly force is to stop an
2 immediate threat of death or serious -- serious
3 physical injury. The -- the main part of using deadly
4 force is that you need to make a hit to use deadly
5 force.
6 And so in times of non-stress, when
7 somebody's standing on a range, they're trying to hit
8 center mass of the target, which is the highest chance
9 of making a hit on that target.
10 Q When you say center mass, do you mean the
11 upper body --
12 A I --
13 Q -- the middle part of the body?
14 A I mean the middle of the target.
15 Q Okay.
16 A Like, actually, whatever you have as a
17 target, trying to hit the center of that because if --
18 the smaller area that you try to hit, if you miss,
19 right, that round is -- again, shooting a handgun,
20 shooting a rifle, shooting in a static situation can
21 be challenging to even hit a smaller target anyway.
22 And then you start throwing in stress and
23 movement and all the other things that are happening
24 here, right? This is a tense, uncertain and rapidly
25 evolving event, then hitting a smaller target, the Examination of Joshua Howery 573
1 accuracy becomes much more difficult, right?
2 And now, if we aim for a small -- a small
3 target that's off the main part and there's a miss
4 that happens there, where does that bullet go, right?
5 And are we -- you know, then that can cause other
6 problems and so -- and it can fail to be effective in
7 a use of deadly force.
8 And so if the officer decides to use deadly
9 force, we want to give them the best chance for that
10 deadly force to be effective, meaning they have to
11 make it hit to get them -- to get that subject to stop
12 doing what they're doing.
13 Q This is the last time I'll refer to the
14 movies, it's just --
15 A Sure, no --
16 Q -- always so vivid, I think --
17 A Yeah.
18 Q -- we've seen, right, people, like, blown
19 back very dramatically through windows and things when
20 they get hit by bullets.
21 A Right.
22 Q Do bullets really do that, do they force
23 people back?
24 A They don't. So, you know, when we talk
25 about the -- like, the -- the energy that a bullet Examination of Joshua Howery 574
1 carries into the body, you know, physics still
2 applies, right? So the amount of recoil of the gun,
3 right, is about equal to the amount of force that the
4 person on the receiving end of that bullet would --
5 would be feeling as well.
6 If the bullet was -- had enough energy and
7 momentum to actually shove a person backwards and
8 knock them off their feet, the person firing the gun
9 would also be feeling that same amount of energy and
10 they wouldn't be able to shoot the gun. They -- they
11 would be knocked down themselves.
12 Q So do you know, based on shootings in -- in
13 the line of duty, what -- what the percentage of
14 accuracy is for officers, if they -- I think you asked
15 that question earlier, but -- in -- in other words,
16 how often officers, under stress, shooting at a moving
17 target -- you know, how often are they actually
18 hitting a suspect?
19 A I believe nationally it's about 30 percent.
20 Q You mean, they're missing 70 percent of the
21 time?
22 A Yes. Because of the stress involved; and,
23 you know, just lighting; ranges; movement, I believe
24 it's about 30 percent nationally.
25 Q So if an officer makes the decision to use Examination of Joshua Howery 575
1 deadly force, do you teach a -- a number of times that
2 they are to pull the trigger?
3 A No. There's not a set number of times that
4 we teach to shoot. If an officer needs to use deadly
5 force, again, and the reason would be because that
6 person poses an immediate threat of death or serious
7 physical injury, we expect the officers to constantly
8 assess what -- where that threat is, what is happening
9 with that threat.
10 And so if that threat is still there and
11 they need to continue using deadly force, then they
12 should continue to use deadly force. But we also
13 expect them to also keep assessing what's happening.
14 And as that person becomes less of a threat,
15 then they should think about not using deadly force
16 and transitioning to something else or stopping
17 whatever force they are using.
18 Q You -- you know that in this case there --
19 there are six officers using deadly force at the same
20 time?
21 A Yes.
22 Q Is there training about that type of
23 situation and -- and, you know, maybe just saying,
24 okay, we'll just have one -- one officer will be kind
25 of the shooting guy and everybody else will do Examination of Joshua Howery 576
1 something else or how is that addressed?
2 A In some cases, if there's time to make a
3 plan and time to make, like, a directed plan with less
4 factors, we may set up a -- a team where we have
5 somebody designated as less lethal, somebody
6 designated as a lethal cover, somebody designated as
7 hands on.
8 In some cases there are so many other people
9 around, there are so many other things going on
10 that -- like in this situation, the officers go in,
11 they're almost forming a wall of protection for the
12 other people to be able to get out behind them.
13 In that case, the plan to -- to go and make
14 custody, that's not the plan right now. The plan is
15 to -- is to create that safety corridor for people to
16 be able to get outside of that -- that room. Once
17 that person's truly isolated, now, maybe we can start
18 to make other plans to back out and slow this -- slow
19 this situation down.
20 But as they go in and as they spread out to
21 start to kind of form walls and, you know, just kind
22 of, like, protect other people, those folks in the
23 front, they end up having their guns out.
24 And I think that that would be appropriate
25 because, again, a -- with multiple people, now there's Examination of Joshua Howery 577
1 multiple potential victims and so we want to start
2 angling off and getting different angles to be able to
3 protect people from different -- from different
4 positions.
5 Q What are the officers taught to make an
6 independent decision as to the use of deadly force
7 versus sort of a group decision?
8 A Absolutely. There's never -- we don't teach
9 that, hey, if one person shoots, you're going to
10 automatically shoot. That's not how we train. We --
11 Q What do you teach?
12 A We train that each individual officer --
13 that they are responsible for using deadly force under
14 the policy. That that individual officer reasonably
15 believes that the person all of a sudden becomes an
16 immediate threat of death or serious physical injury
17 to either themselves, or another person.
18 Which could be another officer or it could
19 be another -- it could be a citizen, it could be
20 anybody else other than themselves or it could still
21 be themselves.
22 Q Do you know how quickly a -- a trained
23 person, under stress, can pull the trigger on a -- on
24 a gun, on a semi-automatic gun?
25 A Yes, it's about a quarter-second per shot, Examination of Joshua Howery 578
1 .25 per shot.
2 Q So about -- you -- potentially, someone
3 could fire a gun four times in one second?
4 A That's correct.
5 Q And do you know -- yesterday, Leland
6 Samuelson said -- kind of off hand, I think, but he
7 said, "Well, a shotgun maybe" -- I think he said,
8 "Once every two seconds," or something. But does that
9 sound right to you or not?
10 A No, I would think that you could -- you
11 could fire a -- a shotgun still within once every half
12 second or -- or faster.
13 Q Including racking the gun?
14 A Including the racking the gun.
15 Q Which is a very -- a very, very rapid
16 process?
17 A Yes, that's -- that's correct.
18 Q And so -- and does that tie into the kind of
19 action, reaction, perception? I assume, right, if
20 you're pulling the trigger that quickly and then
21 you're looking --
22 A Yes.
23 Q -- and then you have to make a decision and
24 you stop, but you may have fired several shots in
25 rapid succession? Examination of Joshua Howery 579
1 A Yes. Just physiologically, it takes some
2 time for the brain to process what they -- what it
3 sees and then to tell the body to stop doing an action
4 that it was doing. And so in some cases, that can be
5 another half-second to a second.
6 And then -- you know, so it takes some time
7 to judge what happens, start to shoot, and then to see
8 what the reaction is and then stop shooting.
9 Q You -- you saw the surveillance video from
10 the cameras inside --
11 A Yes.
12 Q -- the building when the shooting happened,
13 in this case April 7th, right?
14 A Correct.
15 Q Were you able to observe the sort of action,
16 reaction, reactionary gap process occurring on
17 the video?
18 A Yes.
19 Q And -- and can -- what did you see?
20 A At the time of the shooting, it appeared the
21 suspect was further back in the room, off to the right
22 from where the officers were at the door. And they
23 weren't all the way back at the door, they were just
24 slightly forward. They were letting some people start
25 to get out that door. Examination of Joshua Howery 580
1 But the officers are not, like, charging in
2 toward him. At some point the -- the suspect -- or
3 subject decides to run at the officers with a knife.
4 And what was telling to me about that reactionary gap
5 and the fact that there was some action, reaction
6 going there, the officers are ready.
7 They're -- they're -- they're there for
8 protection, to protect themselves, to protect other
9 people. That person gets up to quite a bit of speed
10 before the officers are able to react with deadly
11 force, right? That person actually covers some amount
12 of ground.
13 It wasn't that as soon as he just started to
14 move his foot the first step that any officers fired,
15 but it was actually -- it looked like at least seven
16 to ten feet that he was able to start running before
17 anybody even reacted to that.
18 And then there was -- the officers perceived
19 the threat, they shoot, the person goes down and each
20 individual officer is still -- they're -- they're
21 responsible for assessing that situation and assessing
22 that threat. And on their own, all within a very
23 short amount of time, they fired and then they all
24 stopped.
25 And what I know about being on the firing Examination of Joshua Howery 581
1 line, having done a lot of training on -- on a range
2 with other officers next to you when you fire, you
3 can't tell when somebody else stops shooting because
4 if you're shooting, it's too loud. And so there's not
5 that indication, oh, everybody stopped shooting, I
6 better stop shooting.
7 The officers aren't looking to see what
8 their -- what the other officers are doing. They're
9 making individual assessments of threat for
10 themselves, each -- each one of them. And each one of
11 them that fired processed the threat in that -- in the
12 amount of time that was very close to each other.
13 And they processed the fact that that threat
14 had actually ceased and stopped firing, all within a
15 very, very short amount of time.
16 MR. REES: Are there any questions from the
17 grand jurors?
18 A GRAND JUROR: I have a question about
19 the -- the policy or the training with the foam
20 rounds.
21 THE WITNESS: Okay.
22 A GRAND JUROR: The foam. You said that
23 it -- it's less accurate if you're -- it's more
24 accurate to aim at the center --
25 THE WITNESS: Yes. Examination of Joshua Howery 582
1 A GRAND JUROR: -- of the person, the
2 torso --
3 THE WITNESS: That's correct.
4 A GRAND JUROR: -- than arms and legs
5 because that would be less effective.
6 THE WITNESS: That's correct.
7 A GRAND JUROR: So would the training --
8 what would the policy or the training be in this
9 situation where a person armed with a knife is lunging
10 towards police? Should they be shooting at his torso
11 or just any -- is it -- what would the training say to
12 do in that --
13 THE WITNESS: I'm sorry, as far as the foam
14 rounds?
15 A GRAND JUROR: Yeah.
16 THE WITNESS: Or as far as the --
17 A GRAND JUROR: Yeah.
18 THE WITNESS: -- lethal rounds?
19 A GRAND JUROR: No, the foam.
20 THE WITNESS: The foam rounds. So the foam
21 rounds are used in a less-lethal capacity, right, when
22 a person is not necessarily posing a lethal threat at
23 the time.
24 A GRAND JUROR: Mm-hmm.
25 THE WITNESS: And so to use a -- use that Examination of Joshua Howery 583
1 tool in a less-lethal manner, there are certain target
2 areas that we -- that we train are preferred to
3 accomplish that goal of less-lethal force.
4 A GRAND JUROR: And what are those target
5 areas?
6 THE WITNESS: It's typically below the
7 waist. And then the -- so any -- and -- and then the
8 extremities.
9 A GRAND JUROR: Even if he has a knife and
10 he's got potential hostages?
11 THE WITNESS: And -- and, in that case, that
12 would be a lethal -- a lethal situation, if he has
13 hostages and a knife and that sort of thing. But,
14 again, we're trying to use less force when we can and
15 so with the lethal -- with -- with the -- I'm sorry,
16 with the less-lethal rounds going ahead of time,
17 right?
18 A GRAND JUROR: Mm-hmm.
19 THE WITNESS: Maybe to keep him back, keep
20 him at a distance, get him to comply, get him to put
21 the knife down, right? We're trying to lengthen out
22 this -- this process so we don't have to use deadly
23 force if we don't have to, right?
24 At the time that he starts to run and
25 becomes a lethal threat, right, the -- the less lethal Examination of Joshua Howery 584
1 option is -- that may be still going on, right, the
2 person that has the less-lethal tool in their hands.
3 However, officers are -- have also made a decision
4 that, hey, this person now poses a deadly threat to me
5 and I'm going to use deadly force.
6 A GRAND JUROR: So if -- if an officer uses
7 the less lethal, shoots at legs, thighs --
8 THE WITNESS: Uh-huh.
9 A GRAND JUROR: -- and it doesn't work --
10 THE WITNESS: Uh-huh.
11 A GRAND JUROR: -- would the training say,
12 now try going towards his torso because he's not
13 complying, he's not --
14 THE WITNESS: No. We would not -- we would
15 not immediately say --
16 A GRAND JUROR: It's not effective.
17 THE WITNESS: -- start using that in a more
18 lethal way, right?
19 A GRAND JUROR: So we should use the lethal
20 guns instead?
21 THE WITNESS: But that's not what happened
22 here. They -- they didn't use lethal guns up until
23 the person actually charged them and became a lethal
24 threat. The threat actually changed at that point.
25 A GRAND JUROR: Okay. Examination of Joshua Howery 585
1 THE WITNESS: When the person is back and
2 not charging the officers, yeah, we can still use
3 less-lethal means to try to accomplish a goal there.
4 However, when he becomes a lethal threat, the -- the
5 situation changes.
6 And then -- I mean, the time to be able to
7 say, "Now try it a different way before I try this," I
8 mean, we're talking a matter of split seconds.
9 There's no way to communicate that between officers.
10 There's just not enough time when the person's
11 charging at that -- at that speed.
12 A GRAND JUROR: Okay. And I have one more
13 question. So what's the training for suicidal people,
14 people that are -- have a knife to their neck and the
15 police are talking to them and -- what would -- what
16 -- what would police be trained to do with suicidal
17 people?
18 THE WITNESS: This --
19 A GRAND JUROR: And there's plenty of time
20 to -- you know, there's no imminent threat to police
21 or anyone else at that moment --
22 THE WITNESS: If --
23 A GRAND JUROR: -- it's just that person
24 with the knife.
25 THE WITNESS: So if there was a person in a Examination of Joshua Howery 586
1 building by themselves, isolated, and we had all the
2 time in the world, the -- the training would be to try
3 to talk to that person, try to get different resources
4 there, try to get more distance from that person.
5 But, again, each situation is different and
6 every -- every change in a situation dramatically
7 changes the situation and the response.
8 A GRAND JUROR: So a man walking down the
9 street with a knife up to his neck, the police
10 encounter him, is there, like, partner agencies to
11 call? Like, this guy seems like he needs help or --
12 THE WITNESS: We would certainly be calling
13 other resources to -- to try to help with that. And
14 we would be doing what we could do to try to lengthen
15 out that event, if that makes any sense, right? Try
16 to give us time to get options to safely resolve
17 that -- that confrontation.
18 A GRAND JUROR: Would -- I mean, is that
19 part of your training? You're -- you're the trainer,
20 so is that part of your teaching? Do you -- do you
21 get -- do you have anything to do with the mental
22 health resources or is it mostly the arm -- the -- you
23 know, your -- the weapons and how to use them?
24 THE WITNESS: Well, our training has become
25 very, very integrated. And so, yes, we -- we tried -- Examination of Joshua Howery 587
1 you know, we used CIT skills, right --
2 A GRAND JUROR: Mm-hmm.
3 THE WITNESS: -- in situations. We use
4 tool-based solutions in some cases, too, right? But
5 those are integrated options; and so, again, yeah,
6 we -- we would call --
7 A GRAND JUROR: So who would be called in
8 that kind of situation?
9 THE WITNESS: We would call some of our ECIT
10 folks.
11 A GRAND JUROR: Would that --
12 THE WITNESS: We would call --
13 A GRAND JUROR: -- be, like, the next day or
14 would it be, like --
15 THE WITNESS: No, we would call them on --
16 A GRAND JUROR: -- while the person's
17 walking around the street?
18 THE WITNESS: -- on duty.
19 A GRAND JUROR: Okay.
20 THE WITNESS: We would ask on the radio for
21 other resources, "Can I get, perhaps, an enhanced --
22 enhanced crisis intervention team" --
23 A GRAND JUROR: Mm-hmm.
24 THE WITNESS: -- here, member. Can I get a
25 behavioral health unit here," right? At the -- as Examination of Joshua Howery 588
1 long as we can, right? If we can keep that scene
2 safe, right, for other people, right, we would
3 absolutely try whatever we could to calm that
4 situation down.
5 But, again, the -- the trick is that
6 isolation part. If we can isolate that person to
7 where nobody else is in danger, absolutely.
8 A GRAND JUROR: Is it easier to just let
9 them go?
10 THE WITNESS: In -- in some cases that's
11 happened.
12 A GRAND JUROR: And they wouldn't be a
13 danger to society walking around with a knife with --
14 THE WITNESS: And it --
15 A GRAND JUROR: -- blood on their neck?
16 THE WITNESS: -- it absolutely can be.
17 A GRAND JUROR: Yeah.
18 THE WITNESS: Which is, typically, like --
19 again, each situation is different.
20 A GRAND JUROR: Well, do you know if in this
21 situation anyone was called?
22 THE WITNESS: In this situation I believe --
23 A GRAND JUROR: Earlier in the day?
24 THE WITNESS: In this situation, I believe
25 that the police had actually contacted this person Examination of Joshua Howery 589
1 once or twice before. They -- then this person
2 actually escalated their behavior and committed a
3 carjacking, threatened a person with a knife and then
4 ran into a building full of people.
5 A GRAND JUROR: Mm-hmm.
6 THE WITNESS: That person wasn't isolated,
7 right? At that point, the immediate response is to
8 try -- or the immediate goal would be to try to
9 protect all those other people that are inside that
10 building. And so the police go in there and they --
11 that's -- that's the immediate goal.
12 Now, once they can stabilize that scene and
13 I believe have had -- you know, if that person hadn't
14 caused that use of force, right, by their actions, by
15 trying to charge the police with a knife, had that --
16 had that been able to be a stalemate a little bit
17 longer, I think that we -- the police would have been
18 able to isolate that individual and then form a
19 different plan to try to change the nature of the
20 engagement.
21 A GRAND JUROR: Yeah. I just have -- I
22 think it -- it's an observation, a personal
23 observation that I had. I mean, I don't think for a
24 minute that this would have changed the outcome of
25 that particular situation. Examination of Joshua Howery 590
1 You know, I -- I think it's interesting you
2 talk about a controlled situation versus uncontrolled.
3 And -- and, you know, obviously, this room is chaotic.
4 But you might want to consider future training -- I --
5 and, again, I don't think this would have changed the
6 -- the outcome at all, but I think having that barking
7 dog in that room --
8 THE WITNESS: Hmm.
9 A GRAND JUROR: -- only added to the
10 confusion.
11 THE WITNESS: Okay.
12 A GRAND JUROR: Just something to consider.
13 'Cause I don't know whether he had an actual purpose
14 in that, what he could have -- at what point during
15 that whole event, what that dog could have possibly
16 added to the -- as a tool to the situation.
17 THE WITNESS: Okay.
18 BY MR. REES:
19 Q Is that -- if -- if I could ask just a
20 followup to your question, some of the officers have
21 mentioned, like, not yelling commands because they
22 didn't think that would really help. That everyone's
23 -- so do you -- do you kind of address that situation
24 of, like, how many -- how many people should yell,
25 "Drop the knife"? Examination of Joshua Howery 591
1 A Yeah, we train about -- you know, hey, you
2 know, you have a subject and he's one person, if
3 everybody yells commands and all the commands are a
4 little bit different, the person doesn't hear
5 anything. They just hear a bunch of yelling.
6 So, you know, the point is certainly taken
7 as far as the barking dog. I -- I -- you know, I can
8 only speculate, but I would imagine that the dog went
9 in there to provide that extra option, right, if they
10 were going to be able to -- as another -- as another
11 means to resolve this, again, if the opportunity
12 arose.
13 Q Sure.
14 A And then they wouldn't have to wait for it,
15 it would be right there. But, yeah, we -- you know,
16 we teach that, hey, you know what, one person giving
17 commands would be ideal.
18 You know, you'd get officers in there -- if
19 we -- again, if we have the time initially to make the
20 plan and go in and say, "Hey, you're going to be the
21 guy that talks," that's great, right?
22 But about the time that you -- your hand is
23 forced, if you will, to say, hey, you need to take
24 action here to start -- you know, to be able to ensure
25 safety for other people. Examination of Joshua Howery 592
1 Sometimes little -- sometimes those check
2 boxes, if you will, get missed and officers go in and
3 then they have to start dialing it back and still
4 adapting to the situation and understanding, oh, yeah,
5 yeah. I'm not going to give commands right now.
6 Somebody else is already giving commands and I'll -- I
7 could add to the confusion.
8 I think it -- it shows that if, you know,
9 there's other officers that have -- that are going in
10 there saying that, it's -- I think that's evidence
11 that our training is starting to -- is taking some
12 effect, right?
13 That -- that officers are thinking about
14 this kind of stuff. They've -- they've gone through
15 training scenarios. They're like, "Oh, yeah. Not
16 everybody needs to be yelling and screaming right
17 now."
18 A GRAND JUROR: And that was the case in
19 this situation?
20 THE WITNESS: Mm-hmm.
21 A GRAND JUROR: Do you provide training for
22 area check public procedures?
23 THE WITNESS: Area checks?
24 A GRAND JUROR: Yeah. When -- when you have
25 a number of policemen circumnavigating an area looking Examination of Joshua Howery 593
1 for a subject or suspect?
2 THE WITNESS: We do provide some of that
3 training, yes.
4 A GRAND JUROR: So it seems like in this
5 situation all the officers -- I mean, we're -- we're
6 talking about a couple square blocks over five to ten
7 minutes this whole thing was happening.
8 THE WITNESS: Uh-huh.
9 A GRAND JUROR: And there's a number of
10 officers in that area cruising. Do they ever -- are
11 they trained to ever get out of their vehicles and
12 start to, you know, walk the streets at all when
13 they're trying to find somebody?
14 THE WITNESS: Ah, yeah. Usually, you know,
15 when you have that many officers, they're scanning the
16 streets, they -- they're trying to stay mobile. And
17 so the -- when they're in their cars, when somebody
18 finds something they're able to converge on that and
19 help out a little bit quicker.
20 A GRAND JUROR: Right.
21 THE WITNESS: But, yeah, I mean, depending
22 on the circumstances, right? "Hey, this -- there's a
23 alley. I can't get my car back here. I want to check
24 around back here." I might grab another person and
25 actually go look behind some dumpsters or trash cans, Examination of Joshua Howery 594
1 whatever it may be.
2 Yeah, there's -- there's places that you
3 can't see with the car and there -- there -- in some
4 places get out and look.
5 BY MR. JACKSON:
6 Q Oh. Aside from some of the tools that
7 you've described, what protective gear do police
8 officers wear when they're out on patrol?
9 A On patrol we issue just a basic
10 bullet-resistant vest, body armor, soft body armor.
11 It's rated to stop basically handgun bullets. That's
12 the rating of it. It is not designed to stop sharp --
13 sharp weapons, (indiscernible) weapons. Knives and,
14 like, ice picks and those things will actually
15 penetrate through that -- through that armor.
16 Q So is there any actual protective gear or
17 equipment that police officers wear against knife
18 attacks?
19 A No.
20 A GRAND JUROR: And no body cams at all on
21 any of the officers?
22 THE WITNESS: I don't believe any of them
23 did, no.
24 MR. REES: Okay. Any other questions? All
25 right. Examination of Gaberi Hertzler 595
1 Thank you, Officer.
2 (Pause in proceedings, 11:33 a.m.)
3 MR. JACKSON: Just stand right here. We'll
4 wait for, like, just one moment.
5 All right. Could you raise your right hand,
6 please?
7 GABERI HERTZLER
8 Was thereupon called as a witness; and, having been
9 first duly sworn, was examined and testified as follows:
10 EXAMINATION
11 BY MR. JACKSON:
12 Q Okay. You can have a seat.
13 Can you please state and spell your name.
14 A Gaberi Hertzler, G-a-b-e-r-i. And then
15 Hertzler is H-e-r-t-z-l-e-r.
16 Q Where are you employed?
17 A The Portland Police Bureau.
18 Q What do you do for the Police Bureau?
19 A I am a police officer and am currently
20 assigned to the Police Bureau's Training Division.
21 Q And how long have you been a police officer?
22 A Ah, 14 years.
23 Q And how long have you been in the Training
24 Division?
25 A Coming up on five years. Maybe just shy of Examination of Gaberi Hertzler 596
1 five years.
2 Q And what's your educational background?
3 A I ended up going to Western Oregon
4 University and have a degree in criminal justice and a
5 minor in forensic chemistry.
6 Q And aside from your standard training to
7 become a police officer, what additional training did
8 you receive for your current position?
9 A My current position, I'd gone to a number of
10 classes and instructor schools on rifle instruction,
11 teaching people how to shoot patrol rifles. Some
12 conferences on less-lethal impact munitions, which is
13 the area of my speciality within the Training
14 Division.
15 In addition to that, ones of note, I am
16 assigned to the Bureau Special Emergency Reaction
17 Team, so with that comes a host of other things. I'm
18 an instructor in -- in work -- our work group there,
19 so different rescue rote trainings. Once the -- yeah.
20 Q Okay. A variety of things.
21 A Correct, yeah.
22 Q And are you actually in charge of the
23 Portland Police Bureau's rifle program?
24 A Correct.
25 Q And what does that mean? Examination of Gaberi Hertzler 597
1 A So I'm the lead instructor and program
2 developer for the Police Bureau's patrol rifle program
3 as well as the impact munition program.
4 Q Could you describe what the program is for
5 the Portland Police Bureau.
6 A Sure. The -- the patrol rifle program is
7 a -- it's a volunteer program that people request or
8 put in to become a member or a part of. As part of
9 that they are -- they go through kind of a vetting
10 process, internal vetting process, where people do --
11 or, like, the Training Division staff in attendance
12 there will do an evaluation based on, you know, their
13 work product history, any complaints they've had,
14 anything like that, and just kind of do a 360
15 evaluation of the candidate prior to coming to the
16 training.
17 After they're accepted and they get a
18 recommendation from the unit they're assigned to, for
19 -- for example, like East Precinct would say, "Yes,
20 this is an employee that works out of here. We think
21 they'd be a good fit for this program." Then they'd
22 go to a patrol rifle school.
23 And that school is 60 hours long. It is a
24 mix of a classroom. Obviously, the actual functioning
25 or the use of using a rifle, functioning a rifle, Examination of Gaberi Hertzler 598
1 learning to shoot it, and then scenario-based training
2 for part of that.
3 At the culmination of that, if they pass the
4 class and pass the written test and everything
5 associated with that, then they're -- or part of their
6 normal job while on patrol would be to carry an extra
7 piece of equipment, which would be a patrol rifle.
8 Q So it's a selective process that not every
9 police officer would be certified and qualified to
10 carry?
11 A Correct.
12 Q Okay. And do you have a sense on a typical
13 shift, patrol shift, how many rifle operators would
14 be out?
15 A Yeah, that can vary. It range depending on
16 who's working that day, days off. We always try to --
17 from the -- you know, the Training Division side, make
18 sure there's adequate number of rifles on a shift
19 (indiscernible) of having a tool out there.
20 The problem with a bureau as large as we are
21 is people switch shifts. They switch days off. And
22 so it does vary. There's time where I know there are,
23 you know, a limited number, maybe one or two, or, you
24 know, a handful throughout the city.
25 And there's other times where, depending on Examination of Gaberi Hertzler 599
1 how the individual officers, what their assignments
2 are, days off align, someone's not on vacation, there
3 may be, you know, a handful of them available.
4 Q Okay. And do patrol officers who are out
5 generally know who the rifle operators are so they can
6 call them in if they're needed?
7 A Yeah. It's -- it's something that people
8 normally keep for a good amount of time. It's not
9 something that -- you know, a fleeting tool that they
10 have for a while. When people ever go through the
11 process, it is -- it requires a lot of effort from
12 them. So, you know, it's something that they have.
13 So amongst the shift, you would know who
14 would have a -- certain select tools and one of those
15 tools would be a patrol rifle.
16 Q Okay. And you said that you're part of the
17 Training Division.
18 A Correct.
19 Q So what is the training that you provide
20 with regard to the use of rifles?
21 A So, you know, with -- with any tool comes
22 pros and cons for their use. You know, the rifle,
23 some -- we talk a lot about, you know, advantages and
24 disadvantages of this system. It is a rifle, so it's
25 a larger tool than, say, some other -- like, a Examination of Gaberi Hertzler 600
1 handgun.
2 So it requires two-hand operation. So a
3 downside of that would be your ability to, say,
4 effectively take physical control of a person while
5 utilizing a patrol rifle would be -- would be limited
6 or it would encumber your ability to do so. Same with
7 things like when you're jumping a fence or a lot of
8 the other things.
9 You know, some of the pros of the tool is it
10 is a far more accurate tool than a handgun. And so
11 your ability to shoot with a very high level of
12 precision is greatly elevated by the deployment of a
13 rifle as opposed to a handgun.
14 Another part about the patrol rifle which is
15 an advantage is the ballistic characteristics of the
16 actual bullet that it's firing. It fires a very
17 lightweight round. It's a 55-grain round. And grain
18 being a weight measurement, opposed to a handgun
19 round, which is 147 grains for the Bureau's handgun
20 round.
21 And so it's a very lightweight round, but it
22 is going at a very high velocity, more than twice the
23 speed of a handgun round. And what that equates to is
24 a round that has -- it -- upon impact it has less
25 over-penetration or less penetration characteristics Examination of Gaberi Hertzler 601
1 than a handgun round would.
2 What that translates to for -- for a rifle
3 operator deploying a rifle would be that, you know,
4 things that we're obviously concerned of when pushed
5 into a position where a member is using deadly force,
6 would be, you know, concern about, like, what is the
7 backdrop?
8 Like, are we worried about this, like,
9 projectile penetrating, going somewhere where we don't
10 want it to go? And so a very accurate system, but
11 also the ballistic characteristics of the round make
12 it a round we wouldn't -- that would not be as large
13 of a concern. Always a concern, but not as large of a
14 concern with the -- a handgun round.
15 You know, another downside to the rifle is
16 they are very loud. It's a -- you know, different in
17 report and how the volume is. And so, you know, when
18 the shooting those or we -- you know, at the indoor
19 range at the Training Division and, you know, shooting
20 those indoors is very loud, to the point that I'd
21 rather shoot outdoors in the rain than indoor in the
22 dry just because of the nature of how loud they are.
23 That would be another thing we're talking to them
24 about would be a disadvantage of the system.
25 Q Okay. What is the training in terms of when Examination of Gaberi Hertzler 602
1 a rifle operator is going to respond to a call and
2 what their purpose is going to be?
3 A Sure. So, you know, we give them the
4 information on the pros and cons of its use. There's
5 no, "Hey, you can only bring a rifle out in these set
6 scenarios." We don't lay that out.
7 We -- you know, we try to train our officers
8 to make good decisions on understanding the
9 capabilities of a tool and then bring it out when
10 appropriate. So there is no hard and fast rule on why
11 we bring it out.
12 We hope that they would make a decision
13 based on, "Hey, this is a scenario where I think that
14 there's going to be a degree of precision may be
15 needed with this tool, that I would potentially bring
16 that."
17 Another thing and one of the big emphases on
18 having, you know, rifles in patrol and where it kind
19 of came from is we can think back to the North
20 Hollywood bank robbery. That video -- I think it was
21 in '97 -- and so that's been around for a while now.
22 And it's, like, you -- that's kind of where
23 a lot of the emphasis in that came to, you know,
24 dealing in a scenario where there's precision needed.
25 And also another advantage of the -- a patrol rifle is Examination of Gaberi Hertzler 603
1 the fact that it -- it does have the ability to defeat
2 body armor.
3 Q Okay. And so just in -- in case we're not
4 familiar with --
5 A Sure.
6 Q -- that North Hollywood --
7 A Yeah.
8 Q -- incident, what -- what -- what happened
9 there?
10 A He was a -- two bank robbers who went into a
11 North Hollywood bank robbery. They were armed with
12 automatic rifles themselves, fully automatic rifles
13 themselves as well as a body armor that was -- it
14 ended making it very limited for the police officers
15 to end up using force against them.
16 So they were being shot with handgun rounds
17 with having no effect. Towards the end of this,
18 fortunately, no one was killed, but a lot of rounds
19 were fired during this. And at the end -- at the end
20 of this a North Hollywood group who had rifles ended
21 up showing up and ended up getting them into custody
22 at that point.
23 And it involved an officer-involved shooting
24 related to that. That was kind of some of the
25 emphasis on patrol rifles translating into law Examination of Gaberi Hertzler 604
1 enforcement, just seeing the need for a precision
2 system with a limited penetration characteristics and
3 the ability to defeat body armor.
4 Q But is the presence of body armor on a
5 suspect a preliminary requirement or a condition
6 precedent to the rifle coming out and being used?
7 A Absolutely not.
8 Q Okay. And why is the training not to wait
9 for that type of a situation?
10 A There's a -- many more scenarios where the
11 use of a rifle would be advantageous not just related
12 to body armor. That's one of the things that it does
13 or potentially can do, but that's not the only thing
14 that would make the deployment of a rifle to be an
15 advantage.
16 Q Okay. Are you familiar with the events the
17 evening of April 7th of 2018 at the Cityteam
18 Ministries?
19 A Yes.
20 Q Okay. Is it your understanding that
21 multiple police officers responded to that location,
22 including a number of rifle operators?
23 A (No audible response.)
24 Q What would the training be in terms of how
25 many rifle operators would respond to a scene Examination of Gaberi Hertzler 605
1 like that?
2 A I think it's going to depend based on the
3 scenario. So in a -- in a general training point, we
4 want everyone to be looking for a job, to have a role
5 to fill. And something that I would be concerned
6 about was if there was, say, two -- two officers and
7 two rifles and no one else to do anything else.
8 Because we know there's some limitations on
9 its ability to, say, take physical control of someone.
10 But if you have -- there's no limitations on how many
11 we would -- say, "Hey, we only take this many to this
12 scene or this many to this scene."
13 It's going to get the officers to look at
14 the scenario, try to figure out, you know, a good
15 solution for dealing with that. And then making sure
16 they had the adequate number of tools there to do it.
17 Q Okay. And have you actually seen some of
18 the videos from the incident itself?
19 A Yeah.
20 Q As you watched that, were you aware or could
21 you see that there were multiple rifle operators in
22 the room?
23 A I did see that.
24 Q And from a training perspective, what did
25 you think about the presence of those multiple Examination of Gaberi Hertzler 606
1 operators, given the scenario and the scene?
2 A In looking at the scenario, definitely
3 chaotic. Things that just jumped out immediately.
4 There's a lot of people in the room and so in looking
5 at that, things like foreground issues, like
6 potentially having someone between you or something
7 between you and a potential target.
8 It could be a problem as well as the
9 backdrop issues could be a -- a problem for sure
10 for -- once again, worried that if I'm in a position
11 where I'm forced to use deadly force and now I have a
12 -- someone in the backdrop would be a concern for me.
13 I think, you know, when you -- when you
14 think about bringing those officers in there, I think
15 the more you could have in there in that instance --
16 and seeing there's other people there to take on
17 different roles, those three -- three rifle operators
18 could be formally in a plane.
19 Or be in a position where they could move
20 into a -- move into a location in order to -- a spot
21 within the room where one person maybe would be
22 limited based on the terrain or something in front of
23 them and another one would be in a position where they
24 would potentially be able to use deadly force if
25 called upon. Examination of Gaberi Hertzler 607
1 Q Okay. And how would that coordination
2 occur?
3 A You know, that's something that I -- you
4 know, would be communication. If we, you know, move
5 into a room, you're evaluating a scene which is
6 obviously chaotic and then just working through some
7 communication on trying to figure out, you know, hey,
8 what's the best place, where are we on the scene.
9 And sometimes that's something that evolves
10 over time. You may move into an area, start to figure
11 out what's going on, get a lay of the land and then,
12 at that point, you know, as things change, have the
13 ability or the tools or people there to move into
14 other -- you know, to accomplish different goals.
15 Q And does that type of coordination take
16 time?
17 A Absolutely.
18 Q And so what -- from a training perspective,
19 what would you expect the officers to do if there
20 isn't that time to coordinate and set up a plan with
21 designated roles and things like that?
22 A I think -- you know, you're always -- in a
23 scenario like this, you're always moving in with --
24 you know, especially this one when you're looking at
25 it, well, you know, a bunch of limited time. I think Examination of Gaberi Hertzler 608
1 you move in, you fall into a role.
2 You try to do -- if you haven't had time to
3 make that communication, start to get that really
4 established plan, just start to, you know, look at
5 your surroundings, making decisions based on what you
6 see and -- and what you're evaluating in front of you.
7 And then as time goes on, as we have more time to
8 coordinate a plan, then we can maybe, you know, better
9 that plan.
10 But as we move in, it's like we'll start out
11 with, say, you know, Plan A. And as we have time to
12 establish it and make that better, maybe move to
13 Plan B. That does take time and it does take -- or
14 takes communication.
15 Q Okay. You're also in charge of the
16 less-lethal program?
17 A Correct.
18 MR. JACKSON: For the Portland Police
19 Bureau. So I'm going to transition to that topic.
20 But before we do, is there any questions
21 about rifle operation or the training associated with
22 that?
23 A GRAND JUROR: Oh, you said the role zone,
24 so if somebody has, like, one of the special tools,
25 are they automatically supposed to go up front and Examination of Gaberi Hertzler 609
1 take, like, that wall? 'Cause it seemed like
2 everybody that had, like, the AR or the shotgun were
3 all up front.
4 THE WITNESS: I think, you know, if -- if
5 your goal when you're deploying a rifle in a scenario
6 like that and you're trying to put yourself in the
7 position where you'd be able to deploy it. And so you
8 would not -- you know, you wouldn't want to be further
9 back with people in front of you.
10 So if your goal was to deploy that and you
11 potentially put yourself in a position to use a tool,
12 you know, with a rifle, we'd want to make sure that we
13 are in front of everyone else; that there could --
14 people have room to be behind us, not in front of us
15 'cause obviously that would cause some potential
16 problems for us for sure.
17 A GRAND JUROR: All right. So that's --
18 it's not part of the training, but that's just where
19 they move?
20 THE WITNESS: As far as in this individual
21 scenario?
22 A GRAND JUROR: Yeah.
23 THE WITNESS: Well, again, it's -- it'd be,
24 like, what they were thinking, like, as part of that.
25 You know, as they moved up, I think if you had -- you Examination of Gaberi Hertzler 610
1 know, if you're dealing with other officers in there,
2 you would definitely want to make sure that you're
3 forward of them. And then with people behind you, not
4 the other way around.
5 BY MR. JACKSON:
6 Q And just to ask one follow-up --
7 A Yeah.
8 Q -- question on that.
9 A Go ahead.
10 Q It is part of training, though, not to
11 position yourself where you will have people standing
12 in front of you if you're going to be, like, lethal
13 cover, for example?
14 A Yes.
15 Q Okay. And so with that understanding and
16 that training, would a person providing lethal cover
17 position themselves to the front so that nobody is in
18 front of them?
19 A Correct.
20 MR. JACKSON: Okay. Any other questions
21 about -- about that? Do you -- okay.
22 BY MR. JACKSON:
23 Q So could you now explain what the
24 less-lethal program is for the courtroom, please?
25 A Yeah. So the less-lethal program, I'm the Examination of Gaberi Hertzler 611
1 less-lethal impact munitions, so a specific role of
2 the less-lethal program. We could think of
3 less-lethal tools and things like, you know, a baton,
4 pepper spray, Taser and those aren't in my purview.
5 But I am the lead of the less-lethal impact
6 munition, which is the -- our 40-millimeter launchable
7 baton rounds and their launching system there. So
8 that is a -- it's a single-shot, 40-millimeter impact
9 system.
10 And it's a recent transition to that tool
11 from a -- it used to be, as even, you know, four or
12 five months, a 12-gauge shotgun that fired a sock
13 round that was full of a lead shot. The transition to
14 a better tool -- we feel it's a better tool and a
15 safer tool, which is this 40-millimeter impact module.
16 Q How does the launcher operate?
17 A It is a single-shot system, so it's -- if --
18 if you open it, if you're any familiar with, like,
19 a -- a -- an over-under shotgun or -- where you open
20 the breach and you physically open the barrel, you
21 insert a round, close it and then, at that point, if
22 you pulled the trigger, it'd fire.
23 You'd be required to open it again, remove
24 the spent casing or the spent back of the round that
25 you'd fired, insert a new one, close it and then Examination of Gaberi Hertzler 612
1 repeat back through there.
2 Q So in order to fire repeated rounds, you
3 wouldn't even be able to keep the -- the launcher on
4 target? You'd have to actually drop it, open it, take
5 your attention away from whatever was in front of you,
6 be able to reload and then reacquire the target?
7 A Yeah. We try to -- obviously try to keep as
8 much situational awareness as possible, but you would
9 not be able to do that while keeping that at your eye,
10 correct. It'd be some sort of bringing it away from
11 your eye, you know, open it, some sort of manipulation
12 there to get it reloaded to redeploy.
13 Q About how long does that process take?
14 A You know, I think some of that depends on,
15 you know, the situation you're in. I think, you know,
16 a couple seconds probably to do that, to -- a couple
17 to a few seconds.
18 Q Because of that delay in being able to fire
19 repeated rounds, what is the training to deal
20 with that?
21 A Yeah. So one of the transitions we made
22 from the 12-gauge launcher we had before where it
23 carried six rounds, so loading another round was as
24 quick as cycling the action of the 12-gauge. This
25 requires an individual reload of each one of those Examination of Gaberi Hertzler 613
1 rounds. So that's definitely a difference in the
2 systems.
3 So one of the ways we worked around that is
4 working with two less-lethal operators, so people who
5 are certified to carry a less-lethal launcher, and
6 using them in conjunction where, say, one of them
7 would be, say, a primary, would arrive there and --
8 and their plan would be to fire the first rounds.
9 I would maybe have a launcher and acting as
10 a secondary. So I'd be watching the scenario as they
11 do. They'd fire a round if justified to do so. And
12 while they're working through that reload, I would be
13 in position with a functioning launcher so that I
14 could quickly readdress if needed.
15 Q Okay. And are all police officers equipped
16 with these 40-millimeter launchers?
17 A They are not.
18 Q What is the process to become certified to
19 operate one?
20 A Similar to the rifle program, there is an
21 evaluation done at the precinct level and
22 recommendations are made and people who would do a
23 good job at deploying it and taking on the
24 responsibility of learning that different tool.
25 You know, a 360 evaluation is done on them Examination of Gaberi Hertzler 614
1 on use of force and internal complaints and things
2 like that that our lieutenants do at the -- the
3 Training Division level.
4 And once they come -- when you're selected
5 to come to the program, they come for 20 hours. It's
6 a -- you know, again, a mix of classroom; some range
7 time with, you know, understanding how the system
8 works and getting comfortable with the reloads.
9 And then a -- you know, a vast majority of
10 that is the -- that kind of second day -- the first
11 and the second day, it's a lot of scenario-based
12 training where we take them into the scenario village
13 at the Training Division.
14 And -- which is a, you know, mock city, so
15 we have a street and a bunch of buildings there. And
16 they can -- we run scenarios. And so we can, you
17 know, put them into a situation, have them with the
18 tools and then they can deploy them, not with the live
19 rounds, but with a -- you know, a training round,
20 which fires, like, a small paint projectile.
21 So we can use that against -- in, like, an
22 actual scenario mode, so we can evaluate their, you
23 know, ability to target appropriately; and, you know,
24 correct use of force in different scenarios.
25 Q Okay. You are familiar with the Portland Examination of Gaberi Hertzler 615
1 Police Bureau's policy on use of deadly force --
2 A Correct.
3 Q -- right? How is the authorization for
4 permissible uses of a less-lethal launcher different?
5 I guess what I'm asking is how are the scenarios where
6 that would be an appropriate use of force different
7 than a deadly use of force?
8 A Yeah, so there's four times -- excuse me.
9 There's four times we can use less-lethal impact
10 munitions as part of a -- it's in our policy. One is
11 when facing an act of aggression.
12 And are you familiar -- have we talked about
13 act of aggression or I think you said it's, you know,
14 a person who has the ability and the means to cause
15 injury to you, either by physical or verbal means and
16 you believe them to be doing, so would be one of the
17 times to prevent suicide or self-harm if other options
18 are not available.
19 To avoid using a higher level of force would
20 be a time that we would. And then, also, if a person
21 is leaving your span of control or trying to flee from
22 you and you can articulate that their fleeing from you
23 would be a -- would place a person in immediate risk
24 of physical injury, then you could use it then.
25 Or, if based on a person's prior actions and Examination of Gaberi Hertzler 616
1 information you know about them, them fleeing from you
2 would potentially cause a danger of physical injury to
3 someone, then we can use it. So those are the times
4 that we can use less-lethal tools; and, specifically,
5 into the impact munitions to -- during
6 (indiscernible).
7 Q Okay. And because they're being used in a
8 less-lethal capacity as opposed to a lethal capacity,
9 where are officers trained to target?
10 A Yeah. So, you know, these are our
11 less-lethal munitions, so the goal is to not -- not
12 have significant physical injury with them. There is
13 definitely -- I mean, they're an impact munition,
14 which is, you know, a pain-compliance tool.
15 And so we want to make sure that we're
16 impacting people in an area where it is as low or like
17 -- or least -- small likelihood as possible for
18 causing, like, protracted injury. The -- our policy
19 is at seven yards and in. So for seven yards and in,
20 we're aiming at the legs.
21 So areas of the legs, large muscle groups.
22 Seven yard and out, we're aiming at an area below the
23 waist with the exception of the groin. And we're
24 defining waist as, like, anatomical waist, like area
25 below the rib cage and the narrowing of the abdomen. Examination of Gaberi Hertzler 617
1 And so a good reference point for us and
2 what we teach and how our less of the -- or
3 qualifications are conducted is, normally, beyond
4 seven yards we aim at the belt line; area of the belt
5 line that puts us in a good margin below the waist.
6 And then seven and in we'd be looking to impact those.
7 Q Okay. And what are some of the risks
8 associated with those impact rounds hitting other
9 parts of the body?
10 A Yeah. There's been cases in the -- across
11 the country where people have been shot, say, in the
12 upper chest areas. You know, we have more internal
13 organs up high, they're important. So, you know,
14 impacting the chest is something that both the
15 manufacturer and we believe is not a -- a good idea.
16 There's been cases of people with different,
17 you know, surgical implants and things to the chest
18 that caused -- and -- or one of them was a -- like, a
19 post-surgical, like, incision that they had where
20 there have been penetrations through the chest wall.
21 As well as there's been cases of definitely
22 serious physical injury or death related to shooting a
23 person in the head, neck, throat with them as well.
24 So because of that, we want to use this as a
25 less-lethal tool; and, you know, limit the amount of Examination of Gaberi Hertzler 618
1 injury that it's going to cause.
2 We aim, you know, as we do, in the area
3 below the waist, with the exception of the groin, and
4 unless we're at seven yards and in, we're aiming for
5 the legs.
6 Q Okay. And are you -- or is it your
7 understanding that less lethal 40-millimeter rounds
8 were used in the incident on the 7th of April?
9 A Yes.
10 Q And have you reviewed the video concerning
11 the use of the less-lethal rounds?
12 A Yeah. I saw them in the video
13 (indiscernible).
14 Q Okay. And so what is your opinion as a
15 trainer of the circumstances in which they were used
16 there?
17 A I think, you know, it falls within what we
18 would expect them to be doing as far as a less-lethal
19 operator, just based on my watching the video of the
20 scene. A person armed with a knife, you know, causing
21 harm to themselves and also being in the area where
22 there's definitely people who are in danger.
23 That, you know, the use of less-lethal
24 munitions at that point would fall within the
25 guidelines of our training. Examination of Gaberi Hertzler 619
1 Q Okay. And what is the training in terms of
2 rounds or projectiles hitting a person and having no
3 apparent effect?
4 A Yeah. You know, the -- the less-lethal
5 40 millimeter, it's a pain-compliance tool. And so
6 what you're relying on is that, you know, the pain
7 associated with being hit by one is going to, you
8 know, change behavior, deter behavior, gain
9 compliance, which is obviously our goal.
10 And the energy on those, they're -- you
11 know, they weigh only about 26 grams. But they're
12 going about 375 feet per second. And you start doing
13 the math, it gets pretty close to the same energy
14 that's coming from, like, a, you know, upper-90s
15 fastball if you're familiar with baseball.
16 And so, you know, if you've seen baseball
17 and kind of watched the effects, it's, like, so what
18 are some of the reactions that we get when a batter's
19 hit by a pitcher? You know, sometimes you see them
20 crumble into the ground. Sometimes they walk away as
21 if nothing happened and then sometimes they charge the
22 mound.
23 So it -- it -- there just really is --
24 there's no control tool with it. So what we teach is
25 that under -- like, to our operators that would point Examination of Gaberi Hertzler 620
1 it -- is that this is a tool. There's -- we -- we
2 feel it's a really good tool, but it is going to have
3 a limiting effect and prepare for that.
4 So if we hit a person with one of them and
5 don't have an effect, it's -- like, that's not
6 something that would be out of the realm of
7 possibilities.
8 At that point they would, you know, do an
9 evaluation like they would be doing on any force with
10 that where they're continuing to evaluate what's going
11 on and trying to work through if, you know, another
12 round is appropriate.
13 Q And, I mean, if a person is hit with one of
14 these rounds and it doesn't seem to have an effect,
15 could it be appropriate or consistent with the
16 training to fire another round at the person?
17 A Yeah. We've had cases in the city where
18 we've had, you know, upwards of -- you know, our --
19 our average round counts and what we normally see is,
20 you know, about 1.6 to 2, but we've had ones in the
21 city where we've had, you know, upwards of nine. And
22 at some point, we've gained compliance out of that.
23 So -- you know, so the less-lethal operators
24 are continuing to evaluate their justification for use
25 of the tool and feel like there is some sort of Examination of Gaberi Hertzler 621
1 benefit that they're gaining or they're kind of out of
2 other options for, like, just trying to gain
3 compliance, then, you know, firing multiple rounds
4 would be appropriate.
5 Q Okay. Would it ever be consistent with the
6 training to shoot someone in the targeted area -- the
7 thigh or the hip or something -- and see it has no
8 effect and just start kind of working your way up
9 higher and higher, where it -- it could be more and
10 more painful to try to gain that compliance?
11 A Yeah. I think, you know, as -- as we -- you
12 were talking working away outside of our preferred
13 target area?
14 Q Correct.
15 A I think, you know, some of that -- in our
16 training, no. And we would maintain to our preferred
17 target area unless we could articulate that deadly
18 force would be justified. And, at that point, I
19 think, aim for negative impact areas, which would be
20 upper chest, head, neck, throat.
21 And I could do that if I was justified in
22 using deadly force. One of the things with the pain
23 is, you know, it's -- it's all -- it's all relative.
24 You know, what pain is to me could be pain different
25 for someone else. Examination of Gaberi Hertzler 622
1 And, you know, the -- the physics related to
2 this, if I'm standing here and was -- head is mentally
3 strong enough, I could get shot with one of the 40s --
4 40 millimeters right now and walk off.
5 It's -- there's -- it's not enough energy to
6 knock me over. It's not enough energy to -- to cause,
7 like, the inability to use a limb. And as we move up
8 the body, it's, like, just because I say would make a
9 decision to impact in the chest, would not necessarily
10 mean that it hurt more.
11 Q Mm-hmm.
12 A So, you know, we -- we maintain our
13 preferred target areas unless we can articulate that
14 we would be using deadly force and then we would
15 change.
16 Q So, basically, if you're going to aim
17 outside of that preferred target area, you would need
18 the same justification as if you had fired your
19 handgun or a rifle or a shotgun?
20 A If we were targeting -- if we're targeting
21 the head, neck or throat, yes.
22 Q Okay. Let's see. Under the -- the Police
23 Bureau training, somebody who's not complying after
24 being struck with multiple 40 millimeter rounds, would
25 it -- would it be ever appropriate to switch to a Examination of Gaberi Hertzler 623
1 handgun or a rifle or a shotgun and fire warning shots
2 into the ground, in front of them?
3 We see in the movies, you know, firing into
4 the ground to make them jump around and try to gain
5 compliance that way.
6 A No.
7 Q Okay.
8 A That wouldn't be part -- that wouldn't be
9 authorized under our policy to do that.
10 MR. REES: Okay. Excuse me.
11 Any questions?
12 A GRAND JUROR: Yes.
13 MR. JACKSON: Well, okay.
14 A GRAND JUROR: Okay. So I know you said
15 there was a specialized training program for the
16 rifle --
17 THE WITNESS: Mm-hmm.
18 A GRAND JUROR: -- and the less lethal, but
19 I didn't hear anything about the shotgun, if you had a
20 specialized training program for that or how someone
21 becomes authorized to carry that.
22 THE WITNESS: Sure. Everyone in the Police
23 Bureau is authorized to carry a lethal 12-gauge
24 shotgun. It's part of the firearms program from, you
25 know, the -- the -- the new students in the academy Examination of Gaberi Hertzler 624
1 right now, they're -- they'd go through the training
2 program and be trained on the use of the shotgun.
3 And they would be authorized to carry it and
4 it is a system that everyone is required to qualify on
5 during our sessions. And so everyone in the Bureau
6 would be qualified to carry that tool.
7 A GRAND JUROR: Okay. And --
8 THE WITNESS: And that's part of the
9 integrated, like, firearms program.
10 A GRAND JUROR: Oh, okay. So I know you
11 said the AR is more accurate for a longer distance.
12 So what would the shotgun role play, like, in that
13 scenario?
14 THE WITNESS: In the scenario we're speaking
15 of today or in --
16 A GRAND JUROR: Well --
17 THE WITNESS: -- in the --
18 A GRAND JUROR: In -- in this incident.
19 Sorry, that would probably help. So they had the AR
20 there --
21 THE WITNESS: Mm-hmm.
22 A GRAND JUROR: -- for more longer --
23 THE WITNESS: Mm-hmm.
24 A GRAND JUROR: -- accuracy in case the
25 backdrop, you know -- Examination of Gaberi Hertzler 625
1 THE WITNESS: Mm-hmm.
2 A GRAND JUROR: How you said the bullets are
3 lighter. I guess I'm just trying to figure out why
4 would someone need to take a shotgun versus their
5 regular --
6 THE WITNESS: Sure. In general, a -- you
7 know, if we wanted -- if we wanted to kind of work
8 through our most-to-least accurate systems, a rifle
9 would be the most accurate. A shotgun would be behind
10 that. It's a more accurate system than a handgun just
11 based on, like, the points of contact we have with it.
12 The fact that we can brace it against your
13 shoulder, have both hands on it, would lead to
14 increased accuracy of that. Below that would be a
15 handgun where, you know, we -- you're holding it out
16 in front of you. So there's -- it would be a more
17 accurate system than our handgun, but not as accurate
18 as a rifle system.
19 A GRAND JUROR: Okay. There's different
20 levels of accuracy in case of somebody that --
21 BY MR. JACKSON:
22 Q And what -- what about the range of a
23 shotgun as opposed to a handgun? In terms of its
24 accuracy, I guess, are those related?
25 A Yeah. I mean, accuracy and range -- like, Examination of Gaberi Hertzler 626
1 all these -- these rounds are going to go way farther
2 than our ability to accurately control them. But the
3 -- which is why, you know, making sure that we have,
4 you know, good backdrops is there. You know, I think
5 it -- it is going to be a more accurate system.
6 You know, the -- the rifle, by far, like I
7 mentioned, is the most accurate system we have.
8 Shotgun, you know, it is -- it's definitely a
9 different tool than the rifle, but it would have
10 increased accuracy and the handgun generally.
11 A GRAND JUROR: I have a question about --
12 THE WITNESS: Sure.
13 A GRAND JUROR: Back to the launchable foam
14 baton rounds, whatever you call it. So should the
15 head, neck, throat area be targeted before lethal
16 rounds are used -- or it seems that, in this case, it
17 was all or nothing. Like, shoot at his legs. That
18 didn't work, so now we're going in with the guns.
19 Isn't there, like, a protocol or a training
20 that would say, well, like -- like you just said,
21 should you work your way up, that's not working and
22 even though, yes, that's potentially more lethal to
23 hit in the chest, you know, broken ribs are still
24 better than death.
25 I mean, guns will definitely kill you or Examination of Gaberi Hertzler 627
1 more likely to than the beanbag in the chest. So I
2 mean, is -- it seems, from what I've heard, that
3 officers didn't want to go above the belt line.
4 THE WITNESS: So that's restricted. I mean,
5 that's our -- that's our policy. That's what the
6 manufacturers are saying they're used and this is
7 designed to be used. You know, if an officer were to
8 intentionally target the head, that -- there are
9 definitely cases of that causing death or serious
10 physical injury by doing that.
11 And so, you know, per our policy, unless
12 just -- unless deadly force is justified, we would not
13 be authorized to target the head, neck or throat.
14 A GRAND JUROR: Well, would -- at the chest,
15 it could potentially stop and they'd feel it, you
16 know?
17 THE WITNESS: I think if we are talking,
18 like, you -- you believe that it would hurt, you know,
19 to intentionally --
20 A GRAND JUROR: No. I'm just wondering
21 if --
22 THE WITNESS: -- the chest and neck?
23 A GRAND JUROR: Are they supposed to keep
24 going up, in your training?
25 THE WITNESS: No. Examination of Gaberi Hertzler 628
1 A GRAND JUROR: No. So you're only supposed
2 to shoot below the --
3 THE WITNESS: Correct.
4 A GRAND JUROR: -- belt?
5 THE WITNESS: And we target preferred target
6 areas because those are the areas that are the safest
7 to use. They're the safest to deploy these rounds
8 against and --
9 A GRAND JUROR: Are there --
10 THE WITNESS: -- when to --
11 A GRAND JUROR: Are there exceptions to that
12 preferred target area?
13 THE WITNESS: If we -- if we get to the
14 level of using deadly force, then we can target the
15 head, neck, throat. And then, you know, the -- like,
16 when we start talking about the chest and upper-chest
17 area, that -- that would fall outside of our training
18 on where we would be intentionally targeting based on
19 the potential for increased injury related to that.
20 BY MR. JACKSON:
21 Q So just to piggyback on --
22 A Sure.
23 Q -- back on that. If -- if an officer were
24 going to target one of those locations --
25 A Mm-hmm. Examination of Gaberi Hertzler 629
1 Q -- outside of the preferred target area --
2 A Mm-hmm.
3 Q -- would the situation have to change to,
4 now, we're not talking about one of those four
5 justifications --
6 A Mm-hmm.
7 Q -- you spoke of. You know, stop a suicide,
8 stop a fleeing suspect. You know, now we're -- it
9 would require a situation where there is a perception
10 of immediate or imminent risk of death or serious
11 physical injury to the police or another person?
12 A Correct. For -- for the -- when we're
13 speaking of, like, the head, neck, throat for our
14 restricted areas, then, yes. We would -- it would
15 change our -- it wouldn't fall into those four times
16 we're using less-lethal tools.
17 Q So if -- if the situation did not change to
18 where there is this perception of, you know, a risk of
19 death or serious physical injury, would not be an
20 authorized use of the less-lethal launcher to target
21 those areas?
22 A That's correct.
23 MR. JACKSON: Okay. Is that --
24 A GRAND JUROR: Can you repeat that? What
25 you just said. Examination of Gaberi Hertzler 630
1 MR. JACKSON: Well --
2 A GRAND JUROR: Counsel didn't understand
3 my --
4 BY MR. JACKSON:
5 Q Could -- could you repeat that?
6 A Yeah. So --
7 Q Yes. Thank you.
8 A So in order -- if we were to -- the use of
9 less-lethal tools, if we're going to say I'm using a
10 less-lethal tool for the means of using it as a
11 less-lethal tool, we need to fall within our policy on
12 when we're going to do that.
13 If things change and my intent was to target
14 the -- say, the face or the head, then I would need to
15 be able to articulate and justify the use of deadly
16 force. And so that would fall outside of, you know,
17 our -- the -- the times we would -- with our
18 less-lethal policy, using it as a less-lethal tool.
19 We'd be -- now be using a less-lethal tool
20 in the manner to potentially cause death or serious
21 physical injury. And kind of -- and move us into the
22 deadly force.
23 A GRAND JUROR: Well, I think at that point,
24 when those weapons were being used, the non-lethal
25 were being used, it was to stop him, to -- Examination of Gaberi Hertzler 631
1 THE WITNESS: Mm-hmm.
2 A GRAND JUROR: -- have him comply.
3 THE WITNESS: Yes.
4 A GRAND JUROR: Just drop their knife.
5 THE WITNESS: Mm-hmm.
6 A GRAND JUROR: So I would think, if I'm --
7 am I -- I'm asking if they had aimed it higher at his
8 abdomen, might that have been more effective in
9 getting him to comply?
10 THE WITNESS: I -- I have no -- in -- in my
11 training and experience, I have not found that --
12 like, targeting -- you know, and we're talking area
13 below the waist. I mean, targeting an abdomen would
14 be -- fall within that. So that would be an area that
15 you could target.
16 In fact, in my -- in my training and
17 experience, like, targeting the chest is not gaining
18 us any more effectiveness in the tool. Alls it is
19 doing is increasing the potential risk of injury
20 associated with the deployment.
21 A GRAND JUROR: All right.
22 BY MR. JACKSON:
23 Q So kind of the bottom line is if -- if
24 they're going to aim higher up on the body, they could
25 kill him? Examination of Gaberi Hertzler 632
1 A Potentially.
2 Q And so -- and they're not going to do that
3 or put a person at that risk of injury unless they can
4 justify it by the use of deadly force?
5 A Correct.
6 MR. JACKSON: Okay.
7 A GRAND JUROR: Hmm.
8 MR. JACKSON: Is that -- are there any other
9 questions on that? Yes.
10 A GRAND JUROR: So, you know, out -- out of
11 the -- there are about nine -- nine foam shots --
12 THE WITNESS: Mm-hmm.
13 A GRAND JUROR: -- between the two guys and
14 they'd gone and -- well, they reloaded every time.
15 And then you had the old beanbag, which is a -- like a
16 pump --
17 THE WITNESS: Yeah.
18 A GRAND JUROR: -- shotgun. It seems like
19 it's -- you're limited in a situation like this where
20 if you had the old beanbag or they could -- probably
21 would have kept firing at him, right, with the
22 non-lethals?
23 THE WITNESS: I -- I think it depends. So
24 just like the -- the -- just because we had a 12-gauge
25 unloaded six rounds wouldn't mean that we could just Examination of Gaberi Hertzler 633
1 fire six. We're individually justifying each
2 deployment.
3 And so, you know, it's -- it's just, you
4 know, we could all -- or, you know, you can see a
5 person unload six rounds of a shotgun in relatively
6 short order.
7 The big piece of that is the articulation,
8 justification for the use of force. And so, you know,
9 in -- in this instance, would they have fired faster
10 if they had a different system? I don't know.
11 You know, one of the limitations when we
12 look at the pros and cons of a system in making the
13 transition from the 12-gauge to the 40 millimeter is,
14 you know, the pros of the 40 millimeter, they're far
15 more accurate -- as in far more accurate compared to
16 the 12 gauges, which definitely lacks in accuracy.
17 These foam rounds are hitting a little bit
18 harder, but are also far safer to be shot with because
19 there's not lead shot inside the -- the actual bag
20 that's flying, which potentially could rip open, cause
21 more penetrating injuries. So we have a lot of pros
22 in the 40-millimeter category.
23 The con there is that it's a single-shot
24 launcher. And that's something we knew going into it,
25 which is why we kind of work through the -- the Examination of Gaberi Hertzler 634
1 training on, hey, we've never talked about two
2 officers deploying together in coordination with the
3 single-shot systems because it's never been a problem.
4 So we're trying to, you know, tailor our
5 response and tailor our training to meet kind of this
6 limitation that we're seeing with the 40-millimeter
7 system.
8 A GRAND JUROR: So do -- they don't make a
9 40-millimeter foam rifle that has multiple -- where
10 you can fire off multiple rounds?
11 THE WITNESS: They do. They make -- they
12 make -- different companies with varying degrees of
13 success make four- and six-shot versions of it. Some
14 of the downsides with those is they are large enough,
15 if you can imagine the -- you know, the cylinder.
16 It's kind of like a large cylinder,
17 revolver-style cylinder that's on these launchers,
18 where it limit your ability to carry them in the cars.
19 And so, you know, we -- they're definitely more
20 expensive than these systems by about threefold.
21 And then an officer cannot have one up in
22 front of the car where it's easily -- easily
23 accessible or easily secured in the trunk. And so you
24 kind of -- our decision to go with the single-launch
25 -- launch system was because it -- it fit the needs, Examination of Gaberi Hertzler 635
1 it fit the kind of infrastructure we had.
2 They do make multiple -- multi-launchers.
3 But we just, on a patrol level, do not deploy
4 (indiscernible).
5 This is a -- a program that we're -- you
6 know, like I mentioned, this is a recent transition to
7 this and it's something that we're -- you know, as we
8 get more deployments out of it, we're continuing to
9 evaluate, you know, kind of the equipment and training
10 needs coming from it.
11 A GRAND JUROR: So in -- in a given year --
12 THE WITNESS: Mm-hmm.
13 A GRAND JUROR: -- how many non-lethal
14 situations are you in where you're actually firing a
15 non-lethal -- lethals here in Portland?
16 THE WITNESS: The less-lethal impact --
17 A GRAND JUROR: Yeah.
18 THE WITNESS: -- munitions?
19 A GRAND JUROR: The less lethal.
20 THE WITNESS: I can -- I pull up the numbers
21 just 'cause I printed off a bunch of reports to read.
22 And I think there was -- and I want to say it was
23 maybe 2016, it was maybe 18 of them. 18 in Portland.
24 So, you know, a relatively limited number.
25 A GRAND JUROR: And the majority of those Examination of Gaberi Hertzler 636
1 are effective?
2 THE WITNESS: I'd say we see the majority of
3 them being effective. And, you know, we see
4 effectiveness -- gauge effectiveness in whether that's
5 a person they could take with one and they, say, stop
6 doing what they're doing, whether it's, like, you hit
7 a person and they stay in an area.
8 For, like, an area denial, like, it's very
9 dangerous for them to move from Point A to Point B, so
10 we can get them -- keep them in a position. So we --
11 we see them in predominantly being effective.
12 MR. JACKSON: Any other questions?
13 A GRAND JUROR: I had one, but I can't
14 really remember what it was. I -- oh. With the less
15 lethal, you said it was (indiscernible) a few months
16 before this incident?
17 THE WITNESS: Mm-hmm.
18 A GRAND JUROR: So do you know how many
19 times it has been used before this incident, if that
20 makes sense?
21 THE WITNESS: Yeah. This -- this specific
22 tool?
23 A GRAND JUROR: Mm-hmm.
24 THE WITNESS: It has been used -- and I --
25 my number's going to be close. Let me think. 'Cause Examination of Gaberi Hertzler 637
1 there's -- in putting them out there, we're kind of
2 keeping track of those. Two. This is probably either
3 the fourth or fifth deployment of the 40-millimeter
4 system.
5 This, like, round itself, the round that
6 we're using has been used within specialty that's in
7 the Bureau for longer than they've been assigned to
8 patrol. So we've had a little more, like, user
9 history with it than just these five engagements.
10 But since the -- excuse me -- the transition
11 to the program form the 12-gauge to the 40 millimeter
12 on the patrol side is about -- I think this is either
13 the fourth or the fifth, I believe.
14 A GRAND JUROR: Okay.
15 THE WITNESS: That's going to be close. It
16 may not be exact.
17 A GRAND JUROR: And in those previous --
18 THE WITNESS: Mm-hmm.
19 A GRAND JUROR: -- deployments, do you know
20 if compliance was gained?
21 THE WITNESS: I do not know the specifics on
22 all the incidents. So I can speak to a couple of them
23 where I -- they say they were effective. One of the
24 incidents ended with a less-lethal deployment, which
25 ended up -- ended being, like, physical -- taking Examination of Gaberi Hertzler 638
1 physical control and custody of the person.
2 The other one, the same thing where it
3 was -- you know, the impact munitions were fired. It
4 ended being still a physical encounter. Like, it
5 wasn't a -- they weren't overly compliant at the end
6 of that, but we're taken -- physically taken into
7 custody.
8 And they said that the -- you know, the
9 experience was that the 40 millimeter allowed them the
10 opportunity to do that. And the other ones I cannot
11 speak to about that. I haven't got reports on all
12 those.
13 A GRAND JUROR: Okay. I guess I'm just
14 trying to figure out how do they it's more effective
15 than the --
16 THE WITNESS: Sure.
17 A GRAND JUROR: -- beanbag?
18 THE WITNESS: Yeah. Yeah. And that's
19 something where it is -- this is such a -- you know,
20 the -- the -- such a specific to the encounter, to
21 the -- to the person you're using against, that
22 it's -- if you are, like, you know, a person who is
23 mentally strong and has a high pain tolerance, this is
24 a pain-compliance tool.
25 So it may work, it may not. If a person's, Examination of Gaberi Hertzler 639
1 you know, impaired to the level that they're not
2 feeling pain, then that can. Or if it's -- you know,
3 it just really -- it -- there's a huge gambit of that,
4 a huge, broad spectrum to that.
5 So it truly is a tool that is a very
6 specific tool and I think it is an effective tool.
7 But whether or not it's going to be, like, effective
8 all the time, it's -- I'd say we train for it not to
9 be effective because we know that there's limitations
10 within the system.
11 It doesn't have the ability, like, you know,
12 a police canine, which would go up and take physical
13 control of a person. Like, this can't do it. You're
14 pretty much hitting them with a foam projectile, which
15 is going to induce some pain and -- and we could hope
16 to gain compliance.
17 But it truly is on the subject to comply.
18 Like, there's no control that we have to force them to
19 do so besides that (indiscernible).
20 A GRAND JUROR: And does clothing -- does
21 that -- is there some factor --
22 THE WITNESS: Yeah, absolutely. Clothing.
23 A GRAND JUROR: -- what they're wearing?
24 THE WITNESS: Yeah. If you -- heavier
25 clothing would -- could be -- definitely would be, you Examination of Gaberi Hertzler 640
1 know, more stuff that the impact round would hit.
2 It -- you know, it's a -- it's a soft foam projectile.
3 (Indiscernible) and squeeze the top of it.
4 A GRAND JUROR: Mm-hmm.
5 THE WITNESS: It looks like half of a
6 racquetball, which is soft. And so, you know, if we
7 had heavy clothing on there, it definitely could
8 reduce the effectiveness or reduce the -- the energy
9 that would transfer to a person being hit by one.
10 A GRAND JUROR: Mm-hmm. So -- sorry.
11 THE WITNESS: No.
12 A GRAND JUROR: So when you guys did the
13 test thing, did you test it against different
14 material, like jeans versus --
15 THE WITNESS: Mm-hmm.
16 A GRAND JUROR: -- jackets versus sweaters?
17 THE WITNESS: We have -- there's been a lot
18 of testing done with this round.
19 A GRAND JUROR: Mm-hmm.
20 THE WITNESS: I have -- the -- the testing I
21 have personally been involved in has been -- we -- I'm
22 trying to think what we shot with it. I've been at
23 testings where we shot ballistic gel with it. We even
24 shot ballistic gel with -- if you don't know,
25 ballistic gel is -- they use it to test ballistics. Examination of Gaberi Hertzler 641
1 It's supposed to be, you know, a -- not an
2 analogue for water content of the human body. So you
3 try to -- it's -- it's more of a control medium to use
4 in testing ballistics.
5 But would put, say, a layer of jeans over
6 the ballistic gel and shoot it with the impact
7 munition and, say, put a piece of -- what else would
8 we use? It was almost -- it was neoprene. Like, a
9 heavier neoprene over that and hit it with that.
10 And just to see what the different
11 effectiveness is of that. If they have any sort of
12 clothing that you put on top of a person, whether
13 that's -- you know, I'm trying to think for -- any
14 tool we have, it's going to, you know, affect the
15 effectiveness of the round.
16 If that answers your question. I'm sorry
17 if --
18 A GRAND JUROR: Okay. Well, yeah. I guess
19 not all my --
20 THE WITNESS: Yeah.
21 A GRAND JUROR: -- I don't know, materials
22 was valid 'cause it's from the belt down. So, like,
23 jeans, sweatpants --
24 THE WITNESS: Mm-hmm.
25 A GRAND JUROR: -- maybe that was a better Examination of Gaberi Hertzler 642
1 comparison.
2 THE WITNESS: And -- yeah. And we talk
3 about that in -- you know, in our -- in our training
4 on, you know, some of the, you know, pros and cons --
5 A GRAND JUROR: Okay.
6 THE WITNESS: -- and some of the limitations
7 to the system for sure.
8 A GRAND JUROR: Okay.
9 MR. JACKSON: All right. Any other
10 questions?
11 All right. I don't see any. And why don't
12 we go off the record for our lunch break.
13 * * *
14 (Noon Recess taken at 12:21 p.m.)
15
16 AFTERNOON SESSION
17 (Grand Jury No. 1, 1:36 p.m.:)
18 MR. REES: Thank you. This is going to be
19 our afternoon session. Our next witness is
20 Officer Polas.
21 Officer, if you'd please raise your
22 right hand.
23 ANDY POLAS
24 Was thereupon called as a witness; and, having been
25 first duly sworn, was examined and testified as follows: Examination of Any Polas 643
1 MR. JACKSON: Please state your name and
2 spell your name for the record.
3 THE WITNESS: Andy Polas, A-n-d-y,
4 P-o-l-a-s.
5 EXAMINATION
6 BY MR. REES:
7 Q How are you employed?
8 A With the Portland Police Bureau.
9 Q How long have you been with the Police
10 Bureau?
11 A A little over 14 years.
12 Q All right. And what's your educational
13 background?
14 A I attended -- I got a bachelor's degree from
15 Western Oregon University.
16 Q All right. And what's your current
17 assignment with the Police Bureau?
18 A I'm currently assigned to the Gang
19 Enforcement Team, which I've been on for eight years.
20 Q Was Saturday April 7th, 2018 a regular work
21 day for you?
22 A Yes.
23 Q And what -- what shift do you work?
24 A I work swing shift, which is 4:00 p.m. to
25 2:00 a.m. Examination of Any Polas 644
1 Q And with the -- the assignment that you
2 mentioned, are you working out of a particular
3 precinct or do you work city-wide?
4 A Our unit is under what's called a Tactical
5 Operations Division. It's, essentially, a precinct
6 within a precinct. Our office is at North Precinct
7 and our unit goes city -- we have city-wide coverage
8 all the way out towards Gresham.
9 Q How did you get involved in this call
10 involving John Elifritz?
11 A So my partner and I, Officer Fender, we were
12 down in the Central Precinct area in downtown
13 monitoring Central Precinct radio net because we were
14 on a followup, doing some follow-up investigation on a
15 previous incident from a few months prior.
16 And we were right down by the PGE Park,
17 where the Timbers play. So we were just on the west
18 side. We were pretty much completing that followup.
19 Q Unrelated to John Elifritz?
20 A Totally unrelated. Normally, at that time
21 of day we wouldn't have been in the Central
22 Precinct --
23 Q Oh.
24 A -- area. And so we were listening to
25 Central Precinct radio dispatch and that's when we Examination of Any Polas 645
1 heard the initial call of the stolen car that was used
2 in a car jacking at knifepoint crash at MLK and Stark.
3 Q And so did you -- did you respond to that
4 call or -- or -- or not?
5 A Yes, we did. And we -- we were pretty much
6 finishing up our -- our followup at the time when the
7 call came out. And when that call came out, it
8 sounded like a pretty serious call. A stolen car
9 crashed in the middle of the street and a suspect was
10 reported to have carjacked somebody at knifepoint.
11 And my partner and I were like, "We're just
12 on the opposite side of the bridge. We're -- as soon
13 as we get over the Burnside Bridge, we'll be right in
14 the area of that call. Like, let's -- let's head to
15 that call and see if we can find that suspect who took
16 off running."
17 So we -- I was driving and we -- we would
18 have been, again, going lights and siren eastbound on
19 Burnside and crossed over the bridge and we're right
20 in the area.
21 Q Okay. So that would have been just a matter
22 of -- of minutes probably --
23 A Correct.
24 Q -- or -- or less than that even to get
25 across the bridge. Examination of Any Polas 646
1 A Correct.
2 Q Did -- what did you see when you -- when you
3 got to the east side of the river?
4 A When we got to the east side, the last
5 update was he had -- was seen running eastbound with
6 no shirt on. We immediately began checking the area,
7 trying to search anywhere we could possibly think to
8 find him. Those blocks are small, industrial blocks.
9 A lot of places people can hide or doorways people can
10 dip into.
11 And so we were -- we were checking as many
12 areas as we possibly could trying to find this guy.
13 And we -- we searched for quite a while with no luck
14 in finding him. But then that's when additional calls
15 kind of started coming in of -- of separate incidents
16 that he was doing that kind of, like, led us in -- in
17 even more of a chase trying to find this guy.
18 Q All right. And do you -- without going into
19 all the details, but do you remember, generally, the
20 types of calls you were hearing related to John
21 Elifritz?
22 A Yes.
23 Q And what -- what -- what -- what was that?
24 A The first one was at the Jacksons mini-mart
25 down on MLK, a little further south on MLK, of him in Examination of Any Polas 647
1 the doorway of the Jacksons holding a knife to his
2 neck. And the employees were scared he was going to
3 hurt himself, hurt customers or hurt them.
4 And so my partner and I are thinking that
5 this -- this has got to be the same guy. So we
6 immediately drive to the south now to try to locate
7 him down there.
8 Q Okay. Any other calls?
9 A While -- once we got down there we began
10 checking all those blocks, looking around as much as
11 we could trying to find him. And while we were
12 checking down there, that's when the next call came in
13 back further up north. Same kind of call.
14 Guy in a doorway of a -- you know, I -- I
15 don't remember the type of business it was. But guy
16 in a doorway holding a knife to his throat. People
17 were scared what -- what -- that he was going to do
18 something aggressive with this knife.
19 So we're like that's -- that's got to be
20 him. So we went -- now, we went back up north and
21 began trying to search for him back north where that
22 call was. Of course that call was right across from
23 the homeless shelter where the incident happened.
24 Q Now, so how -- how did you learn that
25 John Elifritz was actually inside of the homeless Examination of Any Polas 648
1 shelter that's on the east side of Grand Avenue,
2 across the street from the -- the very last call that
3 you got?
4 A Yeah. So once Officer Fender and I got in
5 the area, there was a -- there was two other patrol
6 cars that had beaten us there, so we were -- I think
7 we were the third car there.
8 And so we're checking. We were just slowly
9 going northbound on MLK, looking to the -- to the west
10 in all the doorways when this call had come out,
11 thinking, like, okay, maybe he's tucked in one of
12 these doorways, hiding in here. We're looking and we
13 don't see him.
14 And we get to -- pretty much get to right at
15 MLK and Stark and we -- I stop. I'm driving and --
16 and Fender and I are having a conversation. We're
17 like, "Okay. We've checked so many areas. Where --
18 where should we look next? Where should we try to
19 find this guy? Where do you -- where do you think
20 he went?"
21 So we're kind of trying to, like -- like,
22 decide which way we want to go next. And while we're
23 having that conversation, we both hear on the radio
24 dispatch an officer saying, "I've got him. I've
25 located him. He's in this homeless shelter at MLK and Examination of Any Polas 649
1 Stark."
2 And they said the name of it, but we were
3 like, "That's right -- we're -- that's right here.
4 It's right across the street from us." So I
5 immediately put the car in park, both Officer Fender
6 and I jump out of the car and literally run across the
7 street to where that officer was.
8 Q And what do you -- if you could kind of give
9 us a word picture, what are you seeing and hearing as
10 you cross the street?
11 A Yeah. So as -- as we're jumping out of the
12 car to run across the street, I hear the officer on
13 the radio say, "Start Code 3 medical," which is, you
14 know, immediate medical response. "This guy stabbed
15 himself in the neck. He's bleeding badly and I'm
16 worried he's going to take hostages."
17 So I'm immediately -- my -- my concern level
18 immediately goes up, like, wow, this guy just hurt
19 himself. He's -- he's maybe going to take hostages
20 inside the building.
21 I can see -- when I'm running up, I just see
22 one officer at the time -- I'm assuming the officer
23 who gave out the update -- standing in the doorway. I
24 run up, join up with him. Pretty much simultaneously,
25 multiple other officers join up with us, including the Examination of Any Polas 650
1 less-lethal operator.
2 Q Did -- did you take a particular weapon with
3 you from your patrol car?
4 A I did not.
5 Q And -- and -- and why not?
6 A I don't have any other weapons.
7 Q Okay. So your -- you had your -- your
8 service handgun, that was your --
9 A Yes.
10 Q -- firearm; is that correct?
11 A Correct. That's correct.
12 Q Okay. And so where -- where do you go then
13 to approach the -- the shelter?
14 A Yeah. So I'm -- I'm right at the doorway.
15 It's a -- it's kind of a big double door. There ended
16 up being a row of three or four officers in front of
17 me, including the less-lethal operator, who I was
18 standing directly behind two officers. One kind of
19 directly in front of me and one a little off center to
20 my left, who was the less-lethal operator.
21 So I was -- essentially, had kind of gotten
22 moved to I guess what would be the second row of
23 officers who were all in this doorway now, the front
24 row giving him direct commands to drop the knife and I
25 could see directly -- the officer in front of me was Examination of Any Polas 651
1 shorter than me, so I could see direct -- I had clear
2 line of sight in there what Mr. Elifritz was doing.
3 And I could see all the people hiding in the
4 corner. It -- it just was chaos in the room.
5 Q Did you hear the commands --
6 A Yes.
7 Q -- telling him to drop the knife? Could you
8 see Mr. Elifritz?
9 A Yeah, I could see him the entire time.
10 Q What was he doing?
11 A He was -- he looked extremely agitated. I
12 could see -- I could see he was bleeding everywhere.
13 I mean, there was -- to me, it looked like there was
14 so much blood. Like, just his entire neck was covered
15 in blood. His jacket had blood all over it from the
16 blood dripping down from his neck.
17 And he had what looked just like a really
18 big, jagged, sharp knife in his hand. And he was
19 yelling at us. He was -- he was making sounds that
20 were almost animalistic-type sounds, like growling.
21 And I distinctly hear him yelling, "No," when we were
22 telling him to drop the knife.
23 There was one point in particular where --
24 'cause you -- he was going back and forth. He was
25 pacing back and forth. And there was a group of Examination of Any Polas 652
1 people what I thought was, like, 15 to 20 people who
2 appeared to be trapped in the corner, it would be the
3 northeast corner of this room.
4 Because he kept moving towards them. And I
5 remember seeing two guys specifically who had --
6 they -- there was chairs with legs on them and they
7 both picked up the chairs and were, like -- like --
8 'cause he was getting close to them. And I was
9 thinking, like, oh, my God.
10 This guy's going to try and stab one of
11 these people or this guy's going to take a hostage or
12 do something. He's going to try and kill one of these
13 people.
14 And a couple guys, like, had literally
15 picked up chairs and were, like -- like, ready to,
16 like, fight this guy and, like, defend themselves and
17 defend the group or the rest of the people who were
18 trapped in the room.
19 And so I'm thinking, like, oh, my God, we're
20 going to have a horrible situation here if this guy
21 stabs one of these people or if he starts stabbing
22 them 'cause now our backdrop to shoot him is going to
23 be innocent people. And so I'm thinking we got to --
24 we got to do something to -- to -- to stop this
25 threat. This guy's going to kill somebody. Examination of Any Polas 653
1 Q What was your -- your -- your stress level
2 would you say at that --
3 A At that -- at that point, very high. I was
4 extremely concerned that -- there was a minute where I
5 was -- I was pretty convinced that he was going to go
6 start stabbing people. And so --
7 Q Okay.
8 A Yeah, I was very worried.
9 Q At some point, you went inside the building,
10 right?
11 A Yeah. Yeah. So why -- why --
12 Q What -- what went to that?
13 A Yeah. So while we're in that -- in that --
14 that -- in the doorway, an additional less-lethal
15 operator had shown up on scene. And so now they were
16 alternating rounds, discharging less-lethal rounds at
17 him. And those -- those are -- are pretty painful
18 rounds.
19 And I -- it was, like, I could see -- from
20 my vantage point, I could see every individual round
21 fire from that -- from the less-lethal -- the
22 less-lethal gun. And I could see each round bounce
23 off his body.
24 And like any -- any person who's in their
25 right mind, who's feeling pain, that's going to drop Examination of Any Polas 654
1 them. It's going -- they're going to have some sort
2 of reaction. It's going to be extremely painful.
3 And this guy didn't even blink. I watched
4 every round hit him center mass and he didn't even
5 flinch. And I was, like oh, my God, this guy is not
6 feeling anything. This guy -- this is not good.
7 This is not working whatsoever on this guy.
8 And so at the point when he started, what looked to
9 me, aggressively moving towards that group of innocent
10 people in the corner or the guys with the chairs up,
11 that's kind of when the entire group of officers moved
12 into the room.
13 I think everybody was kind of on the same
14 page. This guy's going for these people. The
15 less-lethal rounds are not working on this guy. We
16 got to get in there to -- to do something to try to
17 get him away from these people, do something 'cause
18 what we're doing right now, these rounds, it's not
19 working. He's going to kill somebody if we don't get
20 in there.
21 Q Did you have any thought that he had
22 something going on as far as being under the influence
23 of drugs?
24 A Yeah. I -- I -- in my mind, I thought for
25 sure that he was high on meth. Examination of Any Polas 655
1 Q What was that based on?
2 A I -- I've seen -- in my career, I've been a
3 cop for over 14 years now and I've seen -- dealt with
4 a lot of people high on methamphetamine. I've dealt
5 with a lot of people who have mental illness. And in
6 my opinion, there's a distinct difference.
7 I've seen people on methamphetamine do
8 things that are so irrational, so out of their mind.
9 Stuff that no mental illness would cause somebody to
10 do. Extremely violent behavior, shredding off every
11 -- every piece of clothing they have, hurting
12 themselves, feeling no pain.
13 Just such high anger levels; and, in my
14 mind, his behavior is -- is very conducive to what
15 I've seen in my experience as a police officer for
16 people who are high on methamphetamine.
17 Q So you -- you move inside; is that right?
18 A Correct.
19 Q And what -- when you go inside, what were
20 you thinking your -- your role is going to be, 'cause
21 -- well, there's a lot of police officers there,
22 right?
23 A Yeah.
24 Q So do you have a thought in mind in what --
25 what you're doing? Examination of Any Polas 656
1 A Yeah. So there -- there was a lot of us
2 there, so -- but then there were just so many moving
3 parts to it. There was such chaos inside. We knew
4 that -- that him as the -- the threat needed to be
5 addressed.
6 And the group of people who seemed to be
7 pinned down in this corner that -- that were scared
8 or, for whatever reason, we're not getting out of this
9 corner. Felt that if they moved, this guy was going
10 to cut them off and attack them.
11 So we needed to -- we needed to have a way
12 to get these people out of this corner, out the door
13 and towards us, towards safety, away from him. So the
14 way -- everything just kind of naturally took a --
15 took a position I guess.
16 Like, when we pushed into the room, officers
17 kind of -- a group kind of went to the left and a
18 group of us went to the right. And the group to the
19 left was yelling at the people like, "Get -- get back
20 here. Come with" -- you know, "Get over towards us,"
21 like, yelling at these people like, "Come towards us."
22 And we could see that by them moving to the
23 left, it kind of flanked this guy, so he was going
24 back and forth on the -- on the east end of the -- of
25 the building. It pushed him away from the people. Examination of Any Polas 657
1 So now, he -- he -- it -- it almost kind of
2 worked, but we -- what -- what the plan was to --
3 like, it -- it made him go to the corner away from all
4 of the people in the -- in the northeast corner of the
5 building. So now he's in the southeast corner of the
6 building.
7 And so that kind of separated -- the
8 officers on the left were now able to continue to yell
9 at these people to -- to bring them back towards us.
10 And the group of us to the right were able to keep our
11 eyes on him. I had my -- my pistol drawn at that
12 point.
13 And we were able to address the threat,
14 continuing to give him commands to drop the knife,
15 ready to react based on what he was doing.
16 Q And did you see additional rounds from the
17 40-millimeter less lethal fired at him?
18 A Once we were to the right --
19 Q Do you recall that?
20 A I don't recall.
21 Q Inside. Once you went inside, did -- did
22 you see that?
23 A I -- I don't recall.
24 Q Okay. And you said you drew your -- your
25 weapon. You didn't immediately begin to -- to fire Examination of Any Polas 658
1 your weapon?
2 A No. No.
3 Q And why not?
4 A There was -- at that point, there was
5 distance between us. He was in the corner. He was --
6 he was -- I mean, he had a very aggressive stance. He
7 had the knife in his hand and he -- he kept yelling,
8 "No, no," and with every -- for every time we yelled,
9 "Drop the knife," it was, "No," and -- and just weird
10 growling noises.
11 And he was very aggressive and angry
12 looking, but he hadn't -- he wasn't, like, charging at
13 us or anything at this point. We had distance in
14 between us. At that point there was no reason to
15 discharge my firearm.
16 Q So, initially, you didn't believe you'd be
17 justified in using deadly force against him at that
18 point?
19 A At that point, no.
20 Q Now, obviously, at some point you did use
21 deadly force?
22 A Correct.
23 Q What -- what changed?
24 A So when he was in that corner, he -- he was
25 still going back and forth. He still had that -- that Examination of Any Polas 659
1 aggressive look in his face, angry. Still had that
2 knife in his hand and he -- and he kind of had it --
3 the way he was holding the knife, he was -- like, he
4 was holding it like -- like, kind of -- like -- like,
5 aggressive, like, almost like a fighting stance.
6 But he had it, like, towards his own neck.
7 And it was, like -- it was, like, this defining moment
8 for me, for him, where, like, it was -- it was like he
9 almost said in his mind, like, F it. Here I -- this
10 is it. And he, like, lowered that knife, like, to,
11 like -- like -- like, an attack position.
12 And he just started coming, like -- like,
13 to -- in my mind, what I saw was big steps. He
14 started coming aggressive towards us. And, in fact, I
15 was like this -- this guy's going to stab us. This
16 guy's going to try to kill me or kill one of these
17 other officers.
18 And I was like this -- this is it, he's --
19 he's coming. And he -- he came aggressively. And, I
20 mean, I remember he was pretty dang close when I fired
21 my duty weapon at him.
22 Q And when you fired, did you do that
23 independently or did you do that, you know, based on
24 what other officers were doing? Were you aware of
25 other officers? Examination of Any Polas 660
1 A No, it was -- my -- my independent action to
2 do that.
3 Q And how many times did you fire?
4 A I fired six rounds.
5 Q And why did you stop shooting?
6 A Because -- I stopped shooting because I saw
7 him fall down to the ground. And once he fell down to
8 the ground I did not perceive him -- he wasn't
9 charging at me anymore. I did not perceive him to be
10 a direct threat that I needed to discharge my duty
11 weapon anymore at him.
12 Q And did you perceive that he was coming
13 towards you or to other persons or both or --
14 A I thought both, but I -- to me, when he --
15 that look in his face and at that -- that defining
16 moment that I described, it looked to me that he
17 looked me right in the eye.
18 That, like, that it was, like, I'm coming
19 for you and I'm -- and it was, like, this, like --
20 we -- it was like we had, like, made eye contact and
21 this -- this evil look that he gave me, that he was
22 coming and he was going to stab me.
23 It was -- it was very personal for me.
24 Like, I thought he was going to -- I thought he was
25 going to try and stab me or maybe stab somebody else Examination of Any Polas 661
1 if he was coming.
2 Q Any thought of waiting another second,
3 another two seconds to see what was going to happen or
4 -- or not?
5 A I -- I -- no. I -- I felt that -- that I --
6 if I waited any longer, he would have -- action,
7 reaction time with -- if -- if he had any more
8 opportunity to advance on us, that he would have been
9 able to severely wound one of us or kill one of us if
10 I didn't do what I -- what I did.
11 Q You've been placed -- as soon as this
12 happened, you were placed under a communication
13 restriction order not to talk to other -- well,
14 witnesses. And you've been on administrative leave,
15 right? You've been off the job?
16 A Correct.
17 Q You have a lot of time to think about --
18 since April 7th -- what happened that night, correct?
19 A Yes.
20 Q Any thought that you could have done
21 something different or -- or would have done something
22 different in terms of using deadly force in that
23 situation?
24 A Yeah. I -- I mean, obviously, like, it's a
25 pretty traumatic incident for all of us to be involved Examination of Any Polas 662
1 in. And I thought about it over and over and over and
2 lost sleep about it. And just, you know, thought
3 about a lot of things.
4 And -- and there is -- there is -- looking
5 back on it and just replaying everything in my head,
6 there's nothing I could have done differently. He --
7 in my mind, he -- he forced our hand. He -- his
8 actions, he was going to try and kill one of us if he
9 -- if we didn't -- if we didn't do what we did.
10 If we would have stood there, I think there
11 would be multiple dead cops and -- and I -- I had no
12 other option to do what I did, after thinking about
13 over and over again.
14 MR. JACKSON: Questions? Any additional
15 questions from members of the grand jury?
16 Okay. I'm seeing no -- no questions.
17 All right. Officer Polas, thank you for
18 coming in this afternoon. We'll excuse you.
19 THE WITNESS: All right. Thank you.
20 MR. REES: Thank you.
21 A GRAND JUROR: Thank you.
22 MR. JACKSON: And that concludes our
23 presentation of evidence, so we can go off the record.
24 * * *
25 (Court adjourned, Volume 4, 5-9-18 at 1:57 p.m.) 1
2 --oOo--
3 REPORTER'S CERTIFICATE
4 I certify, by signing below, that the
5 foregoing is a correct transcript, of the audio record
6 in the above-entitled cause, as recorded on CD and
7 transcribed to the best of my ability and in accordance
8 to the quality of the audio CD.
9
10 ______Katie Bradford, CSR 90-0148 11 Court Reporter (503) 267-5112 12
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