IN RE: THE ARBITRATION BETWEEN:

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

FOP/Goyos,and,

CITY OF MIAMI, FLORIDA,DEPARTMENT OF POLICE,

City/Employer._____________________________________/

OPINION AND AWARD

Arbitrator: Martin A. Soll

For FOP/Goyos: Mr. Eugene G. Gibbons, Esq.Buschel Gibbons, P.A.100 S.E. Third Avenue, Suite 1300Fort Lauderdale, Florida 33394

For City/Employer: Ms. Victoria Mendez, City AttorneyBy: Ms. Iliana Forte, Esq., Assistant City AttorneyBy: Ms. Diana Vizcaino, Esq., Assistant City Attorney444 S.W. 2nd Avenue, Suite 945Miami, Florida 33130-1910

Witnesses called by City:Detective Desreen Gayle; Detective Odney Belfort; Detective AlejandroGutierrez; Detective Joaquin Perez; Deputy Chief Medical Examiner Dr.Emma Lew; Police Officer Walter Byars; Assistant Chief of Police RodolfoLlanes; Assistant Chief of Police Roy Brown; Major Raul Herbello; Chiefof Police Manuel Orosa

Witnesses called by FOP/Goyos:Mr. Jose Arrojo, Esq.; Retired Chief of Police Miguel Exposito; LieutenantRichard Gentry; Sergeant Altar Williams; Grievant/Detective ReynaldoGoyos

Applicable Collective Bargaining Agreement (“CBA”):Agreement Between City of Miami, and Fraternal Order of Police, Walter E.Headley, Jr., Miami Lodge No. 20, dated October 1, 2012, through September30, 2014.

JURISDICTION & BACKGROUND

In this matter Walter E. Headley, Jr., Miami Lodge 20, Fraternal Order of Police (“FOP”),

on behalf of Mr. Reynaldo Goyos protests and grieves Goyos’ January 31, 2013-discharge as a City

of Miami (“City”), Department of Police (“Department”), detective/police officer. Goyos has been

employed by Department since May 31, 2005. Since February 2010, and at all times relevant to this

matter, Goyos was assigned to Department’s Gang Unit.

As more specifically discussed below, City’s termination of Goyos’ employment results from

his approximate 11:05 p.m., Thursday, February 10, 2011-shooting/discharge of his 40 caliber Glock

firearm which killed Mr. Travis McNeil (DOB August 6, 1982), and twice wounded McNeil’s

cousin, Mr. Kareem Williams (DOB May 4, 1980). The shooting took place at the intersection of

North Miami Avenue and 75th Street in Miami, while both McNeil and Williams were sitting in the

front seat of McNeil’s burgundy Kia Sorrento SUV.

The record, in short, shows that just minutes prior to the shooting, the burgundy Kia (being

driven by McNeil, with Williams in the front passenger seat), was observed by undercover police

officers driving out of the parking lot of the Take One Lounge (located at 333 N.E. 79th Street in

Miami) at a high rate of speed going through a red light and weaving, and then chased and eventually

stopped/boxed in by three police cars manned by Goyos and other Miami and City of Hialeah police

officers, and Department of Homeland Security Investigations (“HSI”) special agents. Each of the

police officers and agents which stopped the Kia were part of a joint federal and local police task

force called Operation Southern Tempest. On the evening of February 10, 2011, the task force was

targeting local gang members believed to frequent the Take One Lounge.

City contends, argues and insists that its discharge of Goyos’ was for just or proper cause on

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the grounds that his shooting of McNeil and Williams was “an unjustified use of deadly force” which

patently violated Department’s Deadly Force Policy and eight other below quoted City and

Department rules and regulations. Thus, it requests the undersigned deny the instant grievance.

Goyos, on the other hand, vehemently denies City’s charges. Thus, he requests the

undersigned award the instant grievance, and further order his return to his former detective/police

officer position with all lost back pay and benefits.

The grievance/arbitration procedures set forth in the parties’ Collective Bargaining

Agreement (“CBA”) failed to bring about a satisfactory settlement of the grievance. Accordingly,

it was submitted to the undersigned, as the agreed neutral arbitrator, for final resolution. Transcribed

arbitration hearings were held at City’s downtown Miami offices on November 18, 19, 20, and

December 9, 2013, wherein, the parties were accorded the full opportunity to call, examine and

cross-examine witnesses and submit all evidence and argument in support of their opposing

positions. Written closing briefs were received by the undersigned on or about February 3, 2014.1

APPLICABLE CBA LANGUAGE

Article 4.1 - Management RightsThe rights of the City, through its management officials, shall include, but not be limited to,the right to . . . suspend, demote, discharge, or take other disciplinary action againstbargaining unit members for proper cause; . . . and to establish rules, regulations and rulesof conduct.

APPLICABLE FLORIDA CRIMINAL STATUTES

Florida Statutes Sections 776.012 and 776.032:776.012 Use of Force in Defense of Person. — A person is justified in using force,except deadly force, against another when and to the extent that the person

1 Additional time for the undersigned to complete this Opinion and Award was mutuallyagreed to by the parties.

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reasonably believes that such conduct is necessary to defend himself or herself oranother against the other’s imminent use of unlawful force. However, a person isjustified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to preventimminent death or great bodily harm to himself or herself or anotheror to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to s. 776.013.

776.032 Immunity from Criminal Prosecution and Civil Action for Justifiable Useof Force. —

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s.776.031 is justified in using such force and is immune from criminalprosecution and civil action for the use of such force, unless theperson against whom force was used is a law enforcement officer, asdefined in s. 943.10(14), who was acting in the performance of his orher official duties and the officer identified himself or herself inaccordance with any applicable law or the person using force knewor reasonably should have known that the person was a lawenforcement officer. As used in this subsection, the term “criminalprosecution” includes arresting, detaining in custody, and charging orprosecuting the defendant.

(2) A law enforcement agency may use standard procedures forinvestigating the use of force as described in subsection (1), but theagency may not arrest the person for using force unless it determinesthat there is probable cause that the force that was used was unlawful.

(3) The court shall award reasonable attorney’s fees, court costs,compensation for loss of income, and all expenses incurred by thedefendant in defense of any civil action brought by a plaintiff if thecourt finds that the defendant is immune from prosecution asprovided in subsection (1).

AGREED ISSUES 2

Whether or not City had just or proper cause for terminating the employment of Grievant/PoliceOfficer Reynaldo Goyos? And, if not, what should the remedy be?

2 While not determinative of the agreed issues in this matter, the undersigned takesnotice that the Office of the Miami-Dade County State Attorney (“MDCSA”) investigatedGoyos’ February 10, 2011-shooting, and on June 5, 2012 (as stated in MDCSA’s Police ShootingCloseout Memorandum (“Closeout Memo”) (Joint Exhibit #5), found his actions a “justifiableuse of deadly force” under the above quoted Sections 776.012 and 776.032 of Florida’s CriminalStatutes.

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SUMMARY OF CITY’S GROUNDS AND REASONS FORDISCHARGING GOYOS

City’s specific grounds and reasons for terminating Goyos’ employment are recited in

Department’s below stated December 5, 2012-Reprimand (a/k/a disciplinary charging letter) #13-009

(“Reprimand #13-009”) (Joint Exhibit #3). In relevant part, it states and concludes:

[Page 1] On December 5, 2012, The City of Miami Firearms Review Board 3

convened and concluded that Officer Reynaldo Goyos discharge of his City ofMiami Police Department issued Glock firearm on February 10, 2011, under I.A.case number 11-035, was unjustified. The Firearms Review Board ruled that whenOfficer Goyos discharged his firearm, nor he or another person present was inimminent danger of death or serious physical injury and therefore his discharge wasin violation of the [Department’s] “Deadly Force Policy.”

On February 10, 2011, at approximately 2300 hours [11:00 p.m.], Officer ReynaldoGoyos was the front passenger in an unmarked Chevrolet Suburban with interiorpolice emergency lights. The Suburban was being driven by a special agent of theU.S. Department of Homeland Security Investigations (HSI) [i.e., Special AgentTimothy Scott]. Officer Goyos and the two other law enforcement officers in theSuburban [i.e., the driver, Agent Scott and Special Agent Kevin Deslauriers whowas sitting in the back seat], were participating in multi-day sweeps and arrests aspart of Operation Southern Tempest. On this particular evening, law enforcementofficers from HSI, The U.S. Bureau of Alcohol, Tobacco, Firearms & Explosives(ATF), the Hialeah Police Department, and the City of Miami Police Department'sGang Unit, were targeting gang members believed to frequent the Take OneLounge located at 333 N.E. 79th Street [in Miami].

* * *[Page 2] During the course of the evening detail, undercover [City of Miami GangUnit] surveillance officers positioned within the parking lot of the Take One Loungeobserved Mr. Travis McNeil [DOB-August 6, 1982], and Mr. Kareem Williams [DOB-May 4, 1980], exit the Take One Lounge and walk over to a burgundy Kia Sorrento[SUV] that was parked on a side street. Mr. Williams was physically directed out ofthe Take One Lounge by security personnel. Video surveillance revealed that Mr.McNeil and Mr. Williams appeared to be intoxicated.

Upon observing Mr. McNeil and Williams exit the lounge, an undercover surveillanceofficer positioned within the parking lot [i.e., City of Miami Gang Unit DetectiveDesreen Gayle], alerted what she observed and [her] concern [that] both males [i.e.,both McNeil and Williams] might return to the lounge, attempt to re-enter, and

3 The Firearms Review Board was comprised of Assistant Chief of Police RodolfoLlanes, Assistant Chief of Police Roy Brown, Assistant Chief of Police Ricardo Roque, MajorRaul Herbello, and Mr. George Wysong, III, Esq.

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create a disturbance. It was transmitted over the police radio to the field units thatthe two men had entered a burgundy Kia (Sorrento) sport utility vehicle parked ona side street. Officer Goyos responded that he had the Sorrento in sight, and waspursuing it. Ultimately, after officers reported observing an erratic driving pattern,the Kia Sorrento driven by Mr. McNeil and occupied in the front passenger seat byMr. Williams was stopped by three undercover police vehicles at the intersection ofN. Miami Avenue and N.E. 75th Street [in Miami].

During the course of the traffic stop, Detective Goyos approached the driver's sideof the Sorrento, and was heard to command the driver, Mr. McNeil, to “show him hishands” and [Goyos was] further heard to utter “don't do it.” Thereafter, DetectiveGoyos discharged his firearm three times, striking Mr. McNeil once, and fatallywounding him. Mr. Williams was struck twice, and survived his injuries. [A] [s]earchof the [Kia] revealed two cellular phones on the drivers’ side floor board of thevehicle, but no weapons located in the vehicle.

The aforementioned [firearm] discharge was presented to the Firearms ReviewBoard which ruled that the [firearm] discharge was in violation of the “Deadly ForcePolicy,” because nor Officer Goyos, or another person present, was in imminentdanger of death or serious physical injury when the discharge occurred. They foundthat the evidence was not consistent with Officer Goyos’ [November 14, 2012-Garrity] statement because Mr. McNeil was struck in the rear left shoulder bladearea, inconsistent with Officer Goyos’ [November 14, 2012-Garrity] statement thathe saw a black object on Mr. McNeil. The Firearms Review Board also ruled thatOfficer Goyos should have never approached the vehicle, but instead should haveretreated and followed all training protocols regarding “felony stops” involving armedsubjects or vehicles.

Therefore, Officer Reynaldo Goyos is found to be in violation of the following City of MiamiPolice Departmental Orders:

Departmental Order 6, Chapter 21, Sections;21.1.2 Deadly Force:

The most serious act in which a police officer can engage is the use ofdeadly force. The authority to carry and use firearms in the course of publicservice is an enormous responsibility. Respect for human life requires that,in all cases, deadly force be used as a last resort, and then only to protect anofficer or another person from imminent danger of death or serious physicalinjury. Officers should use only the minimal amount of force necessary toprotect human life. Where feasible, and consistent with personal safety,some warning, such as “POLICE-DON’T MOVE,” should be given. Ifappropriate, officers should employ non-lethal alternatives prior to utilizingdeadly force. Deadly force is never justified in the defense of property. Aboveall, the safety of the public and officers must be the overriding concernwhenever the use of deadly force is considered. Therefore, it is the policy ofthe Miami Police Department that officers are prohibited from using deadlyforce against any person, including fleeing felons, except as necessary inself-defense or the defense of

[page 3]

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another person when those officers have reasonable belief that they oranother person are in imminent danger of death or serious physical injury.When the decision is made to use deadly force, officers must cease itsapplication when they no longer have a reasonable belief that they or anotherperson are in imminent danger of death or serious physical injury.

21.4.7 Procedures for the Use of Deadly Force: 4

1. Police Officers are prohibited from using deadly force against anotherperson unless they have an objectively reasonable belief that theymust protect themselves or another person present from imminentdanger of death or serious physical injury.

2. Police Officers are prohibited from discharging their firearms whendoing so will unnecessarily endanger innocent persons.

3. Police Officers are prohibited from discharging their firearms in thedefense of property.

4. Police Officers are prohibited from discharging their firearms tosubdue a fleeing felon who presents no imminent danger of death orserious physical injury to them or to another person present.

5. Police Officers are prohibited from firing warning shots.6. Police Officers are prohibited from discharging their firearms to

summon assistance except in emergency situations when someone’spersonal safety is endangered and no other reasonable means isavailable.

7. Police Officers are prohibited from discharging their firearms at orfrom a moving vehicle unless deadly force is being used against thepolice officer or another person present, by means other than themoving vehicle.

8. Police Officers are prohibited from discharging their firearms at a dogor another animal except to protect themselves or another personfrom imminent danger of death or serious physical injury and there isno other reasonable means to eliminate the threat.

9. Police Officers are prohibited from discharging their firearms whenthe circumstances are clearly obvious to the officer that he/she has

4 The undersigned also takes notice of the below quoted Departmental Order 6, Chapter21, Section 21.4.1.16, and particularly the “retreat” language stated in its fourth sentence.

In properly determining the appropriate response to a subject’s resistance, severalfactors must be evaluated by an officer. For instance, an unarmed small framed,female, juvenile subject may be displaying Level 5 resistance, but would probablyonly require a Level 3 response by the average officer. On the other hand, a singleofficer faced with a very large professional wrestler or football player may very wellfind that his/her response to even mild resistance must be escalated to a relativelyhigh point on the matrix. It must be remembered that by law, an officer need notretreat in his/her efforts to lawfully control a subject, but may utilize the amount offorce necessary to accomplish his/her task. This is not to say that a tactical retreatin the face of overwhelming odds may not be a wise choice. . .

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lost visual sight of the subject or has no identifiable imminent threat.10. Police Officers shall not unreasonably place themselves in a position

where a threat of imminent danger of death or serious physical injuryis created when attempting to approach, pursue, and/or stop a motorvehicle or armed subject. Police Officers will follow all trainingprotocols regarding “felony stops” involving armed subjects orvehicles.

[page 4]11. Police Officers are reminded of the potential danger while

encountering emotionally disturbed individuals. For the protection ofpolice and such persons, officers will be guided by DepartmentalOrder 11, Chapter 11.

21.4.20 Unauthorized Discharge of Firearms Penalty Schedule:The following is the recommended minimum discipline schedule fora first offense, unauthorized discharge of firearms by departmentpersonnel. A second offense will automatically double therecommended discipline in the category it falls, except Subsection21.4.20.6 where dismissal will be recommended.

21.4.20.6 Unreasonable Action - Careless Someone Injured: DISMISSAL.

Departmental Order 1, Chapter 11, Sections:11.6.28.3 Members and Civilian Employees to Conform:

Members and civilian employees shall be required to conform to andabide by the Rules and Regulations, Departmental Orders and otherdirectives of the Police Department, the Ordinances of the City ofMiami and the County of Miami- Dade, and the laws of the State ofFlorida and the United States of America.

CIVIL SERVICE RULE 14, Section 14.2 - Grounds for Dismissal, Suspension andDemotion.

The following are declared to constitute a breach of duty and to be groundsfor dismissal or suspension from the classified service or grounds fordemotion, though charges may be based upon causes other than thoseenumerated: viz, that any employee who has been guilty of conductunbecoming any employee of the City of Miami, who:

* * *(d) Has willfully violated any of the provisions of the Civil Service

law or rules of the Board; or (e) Has violated any lawful and reasonable official regulation or

order, or failed to obey any lawful or reasonable directionmade and given by his/her superior where such violation orfailure to obey amounts to:

* * *(2) A serious breach of proper discipline; or(3) resulted, or reasonably might be expected to result, in

loss or injury to the City or the public or to the

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prisoners or wards of the City; . . .* * *

(k) Is incompetent, negligent, or ineffective in the performance ofthe duties of the position held; or . . .

* * *The City of Miami Firearms Review Board concluded that Officer Goyos’ dischargeviolated the “Deadly Force Policy” and/or the Miami Police Departmental Orders andCity of Miami Civil Service Rules and Regulations. As a consequence, Officer Goyosis to receive this written reprimand, and his employment with the City of Miami Policebe Terminated in accordance with the Unauthorized Discharge of Firearms PenallySchedule.

BURDEN OF PROOF

This being a disciplinary matter, for City to sustain its discharge of Goyos, it must prove its

case by at least the preponderance (i.e., more than 50%) of the evidence. Goyos’ specific actions or

conduct, and/or inactions stated in Reprimand 13-009 which City contends violated its Deadly Force

Policy and other rules and regulations are listed below as Charges One, Two, Three, and Four.

Charge One:That Officer Reynaldo Goyos violated Department’s Deadly Force Policy on the grounds:That the evidence of the case was not consistent with Officer Goyos’ [November 14, 2012-Garrity5] statement because McNeil was struck in the rear left shoulder blade area.

Charge Two:That Officer Reynaldo Goyos violated Department’s Deadly Force Policy on the grounds:That when Goyos discharged his firearm, nor he or another person present was in imminentdanger of death or serious physical injury.

Charge Three:That Officer Reynaldo Goyos violated Department’s Deadly Force Policy on the grounds:That the evidence of the case was inconsistent with Goyos’ [November 14, 2012-Garrity]statement that he saw a black object on Mr. McNeil. And,

5 The undersigned observes that the only “statement” given by Goyos in this matter washis sworn “Garrity Statement” taken by IA Investigator/Sergeant Jesus Ibalmea on November 14,2012, submitted as Joint Exhibit #10.

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Charge Four:That Officer Reynaldo Goyos violated Department’s Deadly Force Policy on the grounds:That Goyos should have never approached the Kia, but instead should have retreated andfollowed all training protocols regarding felony stops involving armed subjects or vehicles.

SUMMARY OF THE RELEVANT EVIDENCE

Goyos’ discharge directly results from his charged unjustified use of deadly force by shooting

and killing Mr. Travis McNeil, and shooting and wounding Mr. Kareem Williams at or about 11:05

p.m. on Thursday, February 10, 2011, just after the burgundy Kia driven by McNeil, with Williams

in its passenger seat, was chased and then stopped by an unmarked Chevrolet Suburban police car

driven by HSI Agent Timothy Scott and two other unmarked police cars. The record is undisputed

that once the Kia had stopped, Goyos immediately exited the right/front passenger seat of the

Suburban and then (as stated in paragraph 3, on page 2 of Reprimand 13-009/Joint Exhibit #3), he:

[a]pproached the driver's side of the Sorrento, and was heard to command the driver,Mr. McNeil, to “show him his hands” and [Goyos was] further heard to utter “don't doit.” Thereafter, Detective Goyos discharged his firearm three times, striking Mr.McNeil once, and fatally wounding him. Mr. Williams was struck twice, and survivedhis injuries. [A] [s]earch of the [Kia] revealed two cellular phones on the drivers’ sidefloor board of the vehicle, but no weapons located in the vehicle.

While not stated in the Reprimand, the record also shows and, thus, the undersigned further

finds as follows:

1. That the shooting was witnessed by, among others, HSI Special gent Scott (who drovethe unmarked Suburban police car which initially stopped the Kia), HSI Special AgentKevin Deslauriers (the back seat passenger in the Suburban), HSI Special AgentBenjamin Fargo (the driver of an unmarked black Dodge Durango police car whichparticipated in stopping the Kia), Miami Gang Unit Detective Alejandro Gutierrez (theback seat passenger in the Dodge Durango), and Miami Gang Unit Detective JoaquinPerez (the driver of an unmarked Ford Taurus police car which also participated instopping the Kia). (Joint Exhibit #5, pages 8-14).

2. That when both the Kia and the Suburban stopped, the Kia was facing westbound withits diver’s side window open; whereas, the Suburban was south and west of the Kiafacing west, and at its closest point, the Suburban’s right/front passenger door from

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which Goyos exited was three feet from the front driver’s side quarter panel of theKia. (Joint Exhibit #5, page 3).

3. That from the start of the incident (i.e., when Goyos exited the right/front passengerseat of the Suburban at or about 11:05 p.m.), to its conclusion (i.e., when Goyos firedhis weapon three times at McNeil), encompassed no more than seconds. (Joint Exhibit#5, page 9; Tr. pp. 1194, 1238).

4. That when Goyos discharged his weapon he was approximately one to no more thantwo feet from the open widow of the Kia and could see both McNeil’s and Williams’laps and hands. (Tr. pp. 1205-1206, 1210-1211, 1218.)

5. That Department has no retreat policy, nor does it teach its officers to retreat,however, the officer may tactically move for cover. (Tr. p. 394).

6. That the fourth sentence of Department’s Order 6, Chapter 21, Section 21.4.1.16 statesand advises its officers, “It must be remembered that by law, an officer need notretreat in his/her efforts to lawfully control a subject, but may utilize the amount offorce necessary to accomplish his/her task.” (Joint Exhibit #9, page 4).

7. That two cellular telephones were recovered from the Kia’s driver’s side floor, onewas a black Metro PCS Samsung, and the other was a white Sprint HT cell phone.(Joint Exhibit #5, page 4).

8. That DNA subsequently taken from the black Metro PCS Samsung phone recoveredfrom the Kia’s driver’s side floor matched McNeil’s DNA. (Joint Exhibit #5, pages4-5,14).

9. That unbeknownst to Goyos at the time of the shooting, McNeil and Williams had nofirearms or weapons in their possession. (Joint Exhibit #5, page 4).

10. That Goyos rapidly fired three times at McNeil, however, it remains undetermined which of the three bullets hit and killed McNeil, and which bullets hit and woundedWilliams. (Tr. pp. 337-338).

11. That McNeil was not shot in the back or through his shoulder blade. The one bulletwhich struck and killed McNeil entered the left side of his upper torso directly underhis left axilla/armpit, and then traveled downward through his left lung, through hisheart and then to his right lung. (Tr. pp. 331, 379, 1214, 1220, 1222-1223).

12. That while the Firearms Review Board (“FRB”) ruled that Goyos discharge of hisweapon on February 10, 2010, violated Department’s Deadly Force Policy:

A. Page 7 of the FRB’s report submitted as Joint Exhibit #13, states:

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• The [HSI] [A]gent [Scott] that conducted the traffic stop [of the Kia] infront of the suspect’s [i.e., the Kia’s driver/McNeil’s left/front] doordidn’t give Officer Goyos options to take cover, etc.

• That Officer Goyos reasonably believed he saw what appeared to bea weapon (black object).

• That [the] Subject [i.e., the Kia’s driver McNeil] apparently reacheddown causing Goyos to make a calculated decision. This decisioncaused the passenger Williams to be shot while his hands were in hislap and fatally wounding McNeil. And,

B. Page 5 of the FRB’s January 28, 2013-report submitted as Joint Exhibit #5,similarly states:Concerns by the Firearms Review Board:The Firearms Review Board had numerous concerns which included thefollowing:1) Officer Goyos was not the driver of the unmarked vehicle driven in

the operation. (Poor planning as he was officer most familiar witharea).

2) Officer Goyos did not conduct the traffic stop.3) (Miami Police Department doesn’t teach how other agencies (agents)

conduct their traffic stops.) Poorly executed felony stop.4) Although our deadly force policy holds officers accountable, the agent

didn’t give Officer Goyos options to take cover, etc. where he stoppedthe unmarked vehicle.

5) Agent stopped vehicle while conducting a felony stop in front ofsuspect’s vehicle placing Officer Goyos in a frantically poor position.

6) Although Officer Goyos reasonably believed he saw what appearedto be a back object, Officer Goyos made statements, “Don’t move,etc.” Subject apparently reached down causing Officer Goyos tomake a calculated decision.

7) Evidence was not consistent with Officer Goyos statement:a. McNeil was struck in the rear left shoulder blade area.b. Inconsistent with Goyos’ statement that he saw a black

object.c. There was a black object on floorboard (cell phone).

8) Officer Goyos discharged three rounds. Two (2) striking thepassenger Williams and one (1) fatally wounding McNeil.

• That following the shooting, McNeil’s blood alcohol level was tested and found to be .19, which is over twice the legal limit for driving in Florida. (Joint Exhibit #5, pages6, 17; Tr. pp. 365-366).

The undersigned also finds the above referenced Miami-Dade State Attorney’s June 5, 2012-

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Closeout Memo accurately summarizes the overall relevant facts of the case, and particularly the

eyewitness statements of HSI Agents Scott, Deslauriers and Fargo. As relevant to this matter, the

Closeout Memo stated as follows:

Summary of the Events During the week of February 6, 2011, Prior to Approximately11:05 p.m. on Thursday, February 10, 2011

During the week of February 6, 2011, City of Miami and other local law enforcement officers

were participating in a Homeland Security Investigations (HSI), U.S. Bureau of Alcohol, Tobacco,

Firearms & Explosives (ATF) and local law enforcement task force called Operation Southern

Tempest aimed at removing illegal handguns and other weapons from Miami street gangs. On the

night at issue/February 10, 2011, numerous law enforcement officers from HSI, ATF, City of Hialeah

and City of Miami’s Gang Unit (including Goyos and, among others, Detectives Desreen Gayle,

Odney Belfort, Alejandro Gutierrez, and Joaquin Perez) were specifically targeting local gang

members believed to frequent the Take One Lounge located at 333 N.E. 79th Street in Miami.

During the course of the evening on February 10, Detectives Gayle and Belfort while

“UC/undercover,” were parked in unmarked City police cars in and about the Take One Lounge’s

entrance while other unmarked police cars driven by, among others, Miami Detective Perez and other

HSI federal officers patrolled up and down 79th Street near the lounge. Detective Gayle and Belfort’s

main assignment was to observe any suspicious behavior by lounge patrons, and to immediately

report the same by radio to the unmarked police cars who would then stop/“takedown” the suspicious

individuals.

Staring at approximately 10:00 p.m. on February 10, 2011, Goyos was in the front passenger

seat operating the police radio in an unmarked dark blue Chevrolet Suburban police car driven by HSI

Agent Timothy Scott, with HSI Agent Kevin Deslauriers in the vehicle’s back seat. At approximately

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10:50 to 10:59 p.m., Detective Gayle radioed to the unmarked police vehicles requesting that a

burgundy Kia Sorrento be stopped. She advised that two then unidentified intoxicated black males

had been physically removed/pushed out of the lounge by its security personnel, that both “staggered”

to a parked four door burgundy Kia Sorrento SUV, and were then driving out of the lounge’s parking

lot at a high rate of speed west on 79th Street.6

A short time later, Goyos responded by radio advising they had the burgundy Kia in sight, and

were pursuing it. The record then shows that the unmarked Ford Taurus police car driven by Miami

Gang Unit Detective Perez joined the pursuit directly behind Goyos’ vehicle followed by the

unmarked Dodge Durango police car driven by HSI Agent Fargo.

Summary of the Events Just after 11:04 p.m. on February 10, 2011

1. HSI Agents Timothy Scott and Kevin Deslauriers’ Eyewitness Observations

Agent Scott recalled that he initially spotted the burgundy Kia traveling at a high rate of speed

swerving slightly onto oncoming lanes of traffic. He also observed the Kia drive through a red light

and later drive onto a driveway kicking up dirt.

Agent Scott followed the Kia until two other unmarked police cars were in position to assist

in stopping the Kia. Thereupon, he activated his emergency red and blue lights and overtook the Kia

as it approached the intersection of North Miami Avenue and 75th Street. Scott then pulled in front

of the Kia causing it to stop.

Detective Goyos was the first to exit the Suburban through the right/front passenger’s door

while Scott exited through the left/driver’s door followed by Agent Deslauriers. As Scott ran around

6 At arbitration, Detective Gayle stated that she requested the Kia be stopped since shewas concerned the then two unknown males would later come back and “shoot up the club.” (Tr.p. 53).

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the back of the Suburban on the driver’s side, he heard Goyos identify himself as a police officer and

order the Kia’s then unknown driver (McNeil) to show him his hands several times followed by three

gunshots. Scott estimated that approximately one and a half to two seconds elapsed between Detective

Goyos’ commands and the gunshots.

At the time of the Kia’s traffic stop, Agent Deslauriers exited the rear left side door of the

Suburban, heard Goyos instruct the driver of Kia to show him his hands three to four times, and, as

the agent walked around the rear of the Suburban, he heard several gunshots.

Agent Deslauriers also described the Kia’s driving pattern as erratic and noted that just prior

to stopping the Kia, he witnessed it drive off the side of the road onto the swail and fail to stop at a

red light.

Deslauriers recalled that the traffic stop of the Kia was initiated as it was traveling westbound

approaching the intersection of North Miami Avenue and 75th Street, and that the Kia began to slow

down as the police cars activated their emergency lights. The Suburban then overtook the Kia on the

Kia’s left/driver side which caused it to stop.7

Deslauriers saw Detective Goyos exit the Suburban’s right/front passenger’s door with his

weapon in hand and immediately instruct the Kia’s driver to show him his hands. Deslauriers then

heard Goyos repeat his commands several times prior to hearing gunshots.

2. HSI Special Agent Benjamin Fargo’s Observations

On the night of February 10, 2011, HSI Agents Fargo and Geoffrey Goodwin, and City of

7 As noted above, the record shows that when both the Suburban and the Kia had finallystopped the actual distance between the right/front door of the Suburban driven by HSI AgentScott, and the left/front drivers side quarter of the Kia driven by McNeil was only three feetapart.

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Miami Gang Unit Detective Alejandro Gutierrez were patrolling on 79th street in an unmarked black

Dodge Durango police car. Fargo was driving, Goodwin was in the front passenger seat, and Gutierrez

in the back seat.

Agent Fargo spotted the Kia traveling westbound at a high rate of speed in the area of 79th

Street and 2nd Avenue being followed by the unmarked Chevy Suburban driven by Agent Scott. Fargo

estimated the driver of the Kia was driving approximately twenty to thirty miles an hour over the

posted speed limit. He described the Kia’s driving pattern as “absolutely erratic” and noted that the

driver was weaving onto the shoulder of the road several times and was unable to maintain control

of the vehicle within a single lane of travel.

Agent Fargo recalled that as the Kia approached a red light at the intersection of North Miami

Avenue and 75th Street, the Suburban accelerated past the Kia’s left/driver’s side and cut off its

forward movement. Fargo then stopped his vehicle approximately half a car length behind the Kia,

exited his vehicle and then saw and heard Goyos yelling at the Kia’s driver to “let me see your

hands,” “show me your hands.” Fargo also noted that Goyos’ tone and pitch increased with each

series of commands and that Goyos seemed distressed.

Agent Fargo further recalled he was standing near the rear of the Kia on its left/driver’s side

when he heard someone say “don’t do it,” and then saw Goyos, from a high-ready position, fire three

to four times in rapid succession into the Kia from approximately two feet away from the Kia’s

driver’s door.

SUMMARY OF DETECTIVE GOYOS’ TESTIMONY

Goyos denies that his February 10-actions violated Department’s Deadly Force Policy, nor

any other City or Department rule, regulation or order. In his November 14, 2012-sworn Garrity

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Statement before IA Investigator/Sergeant Jesus Ibalmea (Joint Exhibit #10), and repeated in his

December 9, 2013-testimony here, Goyos explained the facts and circumstances, and, as he contends

and insists, the lawful and justified reasons he discharged his weapon on February 10, 2011, as

follows:

[W]hen I got out of the [Suburban], I got out with my weapon drawn, Iacquired the targets. There was two black males in the [Kia]. I approached the [Kia]at a low ready stance, giving loud verbal commands, “Show me your hands. Showme your hands.”

At that time, I looked at the driver. He was staring right at me. He looked likehe wasn't paying attention, like he’s very incoherent, [he] was disobeying my -- mycommands.

I also observed the passenger was wearing a white T-shirt. He has -- I sawhim looking, also, at me. His hands were both -- his hands were on his -- on his lap,both hands, and the other -- and the driver, who was wearing the black shirt with thecargo shorts, his hands were both also in his lap.

When I approached the [Kia], I got closer. I observed [the driver] was just --started staring at me. I continued to give him loud verbal commands, “Show me yourhands. Show me your hands.”

At that time, I had a feeling -- I -- you know, I was pretty much -- I know thisis not going well, and I was in fear, ‘cause he [the driver] wasn't listening to what Iwas saying. So I believed he [the driver of the Kia] was up to something.

At that time, when he -- he [the driver] made a sudden movement to -- he dugdown, and he reached towards his waistband pocket area. At that time, I said, “Don'tdo it.” [I] [g]ave him a loud verbal command, “Don't do it,” and at that time, I saw ablack object coming up, and that’s when -- from his right side of his leg, and thatswhen I -- I was in fear for my life, in fear for my partner's life, and that’s when I firedthree shots at the driver, and when he [the driver] -- when -- you know, when he --when he when I shot, those three shots were in his direction, he kind of laid back inthe car.

The driver -- the passenger -- like I said, I don’t know if I hit him [thepassenger] or not, but I -- I know I was trying to neutralize the -- the driver, 'causehe [the driver] was the one that was presenting the -- you know, the harm at thattime, which [the driver] was not listening and reaching into his waistband.

And then when I saw the black object, that’s when I -- I reacted and I was --you know, my training kicked in. You know, I might -- I was -- you know, I had thetarget acquired. I was -- I was -- like I said, I was in fear for my life, ‘cause I believedI saw a firearm coming out of there, which was that black object, and I fired the threeshots. (Joint Exhibit #10, pp. 9-11).

* * *Q. (By IA Investigator/Sergeant Jesus Ibalmea)

From the vehicle [i.e., the Suburban] positioning, if at some point there wasa -- you needed to seek cover, did you have the capabilities, based on theway the position was - the vehicle [i.e., the Suburban] was positioned, to beable to seek cover, if you needed to do so?

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A. (By Detective Goyos) No. I was pretty much thrown out there. I didn’t have any cover.Q. I know you mentioned earlier about Mr. McNeil, which is the gentleman that

ended up -- the decedent in this case, in regards to his actions when hereached a pulled out a black object. . . . The object that he pulled out or thatyou observed him pull out, was pulled out from what side of his pants?

A. From his right side.Q. And at that point is when you’re yelling at him, “Don’t do it, don’t do it,”

correct?A. Correct.

* * *Q. And what was his [the driver’s] response or reaction to you?A. He disobeyed my command and basically just continued with the motion.

(Joint Exhibit #10, pp. 28-29).* * *

Q. Okay. The black object that he [the driver] pulled out, I know you hadmentioned that you were – you felt that it was a weapon?

A. Correct.Q. Could you tell if there was a firearm at the time?A. Like I said earlier, as soon as I saw an object coming out, and I noticed it was

black, it was dark, I -- I fired at that -- at that moment. I was in fear for my life.I thought it was a firearm.

Q. And how many times did you discharge your weapon?A. Three times. (Joint Exhibit #10, pp. 29-30).

* * *Q. Could you describe that?A. Oh, yeah, as soon as I -- I saw what I believed was a firearm, and I was in

fear for my life, I took my target and I -- it was three shots in -- you know,right -- back to back to back. It was -- if you want me, I could -- it was pah,pah, pah, just like that.

Q. And at this point, where was it that you were aiming at?A. I was aiming at the driver's chest. (Joint Exhibit #10, p. 30).Q. And did you have a clear and unobstructed line of site on the driver?A. I had a clear shot in.Q. Okay. Approximately -- I know you mentioned you were by the driver's door.

Approximately how many feet, would you say you were from him?A. I would say, maybe a foot away from the [Kia]. A foot or two, maybe. So I

was pretty much right up on it.Q. At any time, did you point your firearm at Mr. Williams, who was the

passenger?A. No. .Q. Okay. Mr. Williams was subsequently shot twice as a result of this incident.

Can you explain to me, how did that occur?A. It occurred ‘cause when the driver lunged -- I was aiming at him. When he

lunged forward, he basically moved up -- moved forward, so my -- my -- my-- my site changed and I had to redirect those rounds, and obviously he[Williams] was sitting behind -- behind him [McNeil] the driver, and that'swhen he [Williams] got struck.

Q. So you -- what you're saying is that as you - when you shot at the driver --

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A. Oh-huh.Q. -- he shifted?A. Correct. He [the driver] was moving. (Joint Exhibit #10, pp. 31-32).

At arbitration, Goyos further detailed his actions just after the Kia and the Suburban driven

by Agent Scott had finally stopped. On his direct and cross, he testified in relevant part as follows:

Q. (Direct By Mr. Gibbons, Esq.)So you stop, thinking the Kia is going to hit [the Suburban], but [the Kia] alsostop[s] simultaneously, right?

A. (By Detective Goyos)Correct.

Q. Okay. And who made the decision for everybody to just get out or did thatjust happen?

A. That just happened. I mean, like I said, I can only speak for myself, and Ifelt, where I was put -- the position I was put in, I felt that wasn’t a safeposition for me. I was kind of in the line of fire. The front part of the [Kia] waskind of close to my [front/right passenger] door. So I felt that I was in a badposition. . . . As soon as we stopped, I exited the vehicle, with my gun drawn,at the low ready, approaching the vehicle, yelling “police” . . . “Police, showme your hands,” loud verbal commands. I said it several times, four to fivetimes, approaching the [Kia]. At this time, I’m seeing Mr. McNeil kind of leanback in his car -- basically, you know, the chair was a little bit leaned back. He’s making eye contact with me. His hands are sort of around his lap, waistarea. As soon as I get close to the vehicle, I saw his hands, where theywere.

* * *Like I said, I saw [McNeil’s] hands down towards his waist, thigh area, bothhands were down in that area. I had my gun drawn. I was acquiring, youknow, the target, giving loud verbal commands, “Show me your hands, showme your hands.” He was making eye contact with me. As soon as I got alittle closer to the vehicle, and I’m pretty much on the [Kia’s left/driver] door,maybe a foot or two away, he [McNeil] made a sudden and aggressivemovement towards -- he kind of leaned forward, turned like this, reachedtowards his right waist. (Tr. pp. 1147-1150).

* * *Q. And what were you doing at that point?A. Well, at that point, I saw [McNeil’s] movement. My training, my experience

led me to believe -- I had reason to believe that he was reaching for aweapon. I saw a black object that he was grabbing, and then he made it --

Q. Did you make verbal commands at that time? A. Yes, I told him, “Don’t do it, don’t do it,” and then he [McNeil] came up with

it [the object], sort of like this . . . It was like a quick jolt, quick movementcoming back up with the object, trying to --

The Arbitrator: Where are the hands of this individual [i.e., McNeil]?

A. They’re still in his mid section, right around his stomach area.Q. Lap area?

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A. Lap area, around here. He wasn’t leaning forward, like people are saying. He was leaning back in the [Kia]. So when he came up -- obviously, he wasleaning back, so he had to come up. He didn’t reach down like people weresaying.So [McNeil] reached towards -- he moved forward, but he reached kind of likethis, and he gave me his left side of his body. (Tr. pp. 1150-1152).

* * *Q. Yeah. . . . You said, “Don’t do it?”A. Correct. I said, “Don’t do it,” twice.Q. And at that time, what did you believe [McNeil] was doing?A. I believed he was producing a firearm.Q. Okay. And what did you do?A. I fired three rounds at the subject.Q. Okay. And at what part of his body -- A. I was aiming toward his center mass area, chest area. . . . Center mass is

basically his torso. His torso.Q. And why did you shoot him?A. I felt my life was in danger. I felt I was in imminent danger, that he wasn’t

complying, and then he made that movement and he was -- and I had reasonto believe that he was producing a firearm, he was going to shoot me, andI was in fear for my life.

Q. What color was the object you saw?A. It was black.Q. Okay. And consistent with a firearm?A. Correct. Could be the butt of a gun, the rail of a gun.Q. Okay. Were you intending to shoot Mr. Williams, the passenger?A. No, I was not. (Tr. pp. 1152-1154)

* * *Q. Okay. Now, you heard the testimony in this case about seeking cover? . . .

Why didn’t you seek cover?A. Well, when I initially got out of the [Suburban], there was no threat. I didn’t

feel like -- I had to assess the situation, before, you know -- I didn’t feel I hadto take cover. There was no imminent threat to me -- . . . -- imminent danger.(Tr. p.1156).

(Cross by Ms. Forte, Esq.)* * *

Q. (By Ms. Forte, Esq.)Okay. So this shooting happened within seconds of you getting out of the[Suburban]? Would it be fair to say?

A. (By Detective Goyos)Yes, it happened fast. (Tr. p .1194).

* * *Q. Okay. And I understand that the reason why you didn’t take cover and

retreat to the back of the vehicle or do something different was because youdidn’t feel, at that point, that you were in any danger and you could approachthe car with your gun drawn?

A. Correct.

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Q. But if you didn’t -- if you weren’t in imminent danger and you weren’t reallytoo concerned or fearful about this guy, why would you come out with yourweapons drawn like that, because you’ve pointed them as being basically infront, kind of looking down, but they’re completely in front of you?

A. That’s how we are trained. That’s how we’re trained when we -- when we dotraffic stops, we’re trained to approach the vehicle and assess what’s goingon. We’re not trained to retreat or take cover.

* * *From the training and from the stuff that we’ve done, I’ve never been told totake cover when you get out of the vehicle or retreat. That’s the not the waythey do things. We approach the vehicle, in a tactical approach, and youassess the situation, and then you act according to what happens after that.(Tr. pp.1200-1201).

* * *Q. Okay. So you come out of the [Suburban], and based on your testimony, you

say, “Show me your hands, show me your hands,” and Mr. McNeil is notshowing you his hands; is that correct?

A. Correct.Q. You couldn’t see his hands? A. From the time I exited the vehicle, I didn’t have -- all I could see was from his

torso -- kind of mid torso up. When I got closer [to the Kia], I can see where[McNeil’s] hands were positioned.

Q. How close did you get to the [Kia], because your hands are extended?A. I would say, a foot or two from the [Kia]. (Tr. p.1205).

* * *Q. Okay. Now you’re a foot away from [McNeil], and then he makes a sudden

movement and moves to the left from you?A. To the right.

* * *Q. So [McNeil is] giving you his left side?A. Correct. He gave me -- like he opened up like this – The Arbitrator:

You’re seeing [McNeil’s] shoulder, is that correct, and are you seeing part ofhis back?

A. A little bit of his back, but it’s mostly all shoulder -- shoulder.Q. Okay. Now, which hand did [McNeil] use to reach to his waist, his right hand

or his left hand?A. His right hand. It went with his right hand. His hand was right on it [the

object].Q. So his hands went from being on his lap, to then him moving his body to the

right and putting his right hand on his waist, right?A. Yes.Q. And that’s when you said [to McNeil], “Don’t do it, don’t do it?”A. I said it right before he did that. Right when he was -- when he started

reaching for it, when he started making the movement toward it. When hestarted reaching for something, and obviously at that time I didn’t know it wasa cell phone, and I saw something black that he grabbed, when he wasmaking that movement, and then he started -- he did this turn, coming back.

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* * *Q. Okay. So [McNeil] goes to the right. He has his hands on his lap and then

he makes a movement to the right, but with his right hand, he puts his handon his waist, right?

A. Yes.Q. Okay. When did you see the object?A. When he was grabbing it, when he was pulling it back up.

* * *Q. Okay. So was [the object] in the pocket or the waist?A. It was in that vicinity. I couldn’t tell you it was his waist. Like I said, it was the

waist area, right side of his leg. I never said a specific area. I said it was onthe right side, in that vicinity. (Tr. pp. 1211-1213).

* * *Q. Okay. Now, you saw [the black object] when [McNeil] moved back and you

said, “Don’t do it, don’t do it,” and where did you shoot [McNeil]?A. In his torso.Q. In the back? In the back part of his body, did you not? A. It wasn’t [McNeil’s] back. It was on the side of his body. (Tr. pp. 1213-1214).

* * *Q. Okay. And according to you, you didn’t shoot [McNeil] in the back?A. No I did not . . . On the left side of [McNeil’s] body. (Tr. p. 1223).

* * *Q. And I think we all safely assumed that it was -- if it was an object that you

saw, it was a cell phone?A. It ended up being a cell phone. (Tr. p. 1223).

* * *Q. Okay. So where that officer [i.e., HSI Agent Scott] placed you at was really

not that relevant to you, was it?A. It was relevant, because I didn’t have -- to me, I didn’t feel I had any options.

I felt I had one option, and my best option was to approach the [Kia] andassess what was going on. . . . To assess what was going on. I didn’t feel Iwas in danger. I didn’t feel I had to take cover. I didn’t feel I had to retreat. We’re not trained to retreat . . . So I felt my best option was - from where Iwas placed [by HSI Agent Scott], was to approach the [Kia]. (Tr. pp. 1233-1234).

SUMMARY OF OFFICER WALTER BYARS’ ARBITRATION TESTIMONY

City Police Officer Walter Byars has been one of Department’s training instructors for more

than twenty-one years. On direct, he testified, in relevant part, that Department’s officers are trained

on Department’s Deadly Force Policy, and how to approach stopped vehicles during routine and

containment stops. (Tr. pp. 392, 395-398). He also testified that Department’s officers are not trained

to shoot civilians simply because the officer’s commands are not followed. (Tr. pp. 401-402). As

22

specifically relevant to the facts and circumstances in this matter, and particularly City’s Charge that

Goyos should have retreated and not approached the Kia, Officer Byars further testified as follows:

Q. (By Ms. Forte, Esq.)Do you teach [City of Miami] officers to retreat, in certain situations?

A. (By Officer Byars)We will advise them to move in a situation that is safe for them. You know,we don't teach [officers to] actually retreat. There's no policy that you haveto retreat, but what we do -- you can do a tactical movement, where it wouldbe, if you run into cover. (Tr. p. 394).

In the course of Officer Byars’ cross examination, when asked by Mr. Gibbons, Esq., if,

hypothetically, a subject has a cell phone in their hand, which the police officer perceives to be a

weapon, is the officer “justified” in using deadly force? Officer Byars responded “Yes [the officer

is] justified.” (Tr. p. 416). Officer Byars further testified on cross as follows:

Q. (By Mr. Gibbons, Esq.)

Okay. Now, Detective Goyos, at the time [he] got out of the [ChevroletSuburban driven by HSI Agent Scott]. Now, you don’t -- you’re not sittinghere saying that that’s a [Department] policy violation, is it, that [Goyos] gotout of this vehicle, this [i.e., the right/front] door [of the Suburban]?

A. (By Officer Byars)No, it’s not a [Department] policy violation.

* * *Q. Now, you can sit here all day and say, “Well, if I was him, I would have gone

out the back” or “I would have climbed over the back and came out the backof the [Suburban]” or “I would have ran around here,” but you weren’t there,right?

A. Correct.Q. Okay. So it was up to Goyos as to what to do, right? It’s not a policy violation

that he [Goyos] didn’t run behind the [Suburban], that he didn’t run in front ofthe [Suburban], that he didn’t go out the [Suburban’s left/front] driver’s door,that he didn’t go out the back and out this door or out the back and out thevery back [of the Suburban]?

A. No, it’s not a policy violation.* * *

Q. All right. So if Detective Goyos got out [of the Suburban], and having his gundrawn at the low ready [position], that would be appropriate, given thecircumstances now that you know of, right?

A. Correct.Q. Okay. And as he [Goyos] scanned and moved towards the driver [of the Kia],

it was appropriate for him to yell, “Let me see your hands, let me see yourhands, show me your hands,” something to the effect, right?

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A. Right.* * *

Q. Okay. The [Department’s] deadly force policy says that you should give loudverbal commands, right?

A. Yes.* * *

Q. Okay. As he [Goyos] moved to the side of the [Kia], you didn’t see what hesaw, right?

A. Correct.Q. So if he [Goyos] saw what he [the driver] had just displayed, with the driver

sitting down and going towards his front right pocket area, retrieving a blackobject which he [Goyos] thought was a gun, and Officer Goyos, in fact, thenengaged him [i.e., the driver], that would be a justified shooting, wouldn’t it?

A. Yes.* * *

Q. Okay. Okay. I just want to clear up, because -- personal knowledge, youdon’t have to personally know that that’s a firearm? If you perceive it [i.e.,the black object] to be a firearm, and a threat to you and your other officers,you’re justified in using deadly force, aren’t you?

A. Yes.Q. Under the [City of] Miami [deadly force] policy, as well, right?A. Yes. (Tr. pp. 428-431).

* * *Q. Okay. Now, in the circumstances I just related to you, the hypothetical, the

Goyos' case, all of the facts of this case -- start to finish, we went through,from the start at the [Take One Lounge], to the shooting, based on his [i.e.,Goyos’] perception of Mr. McNeil having a weapon in his hand – . . . -- thatwould be -- if it's found to be justified, based on the facts as you know it, doyou know of any other reason it would be unauthorized?

A. No.Q. Now, I just want to walk through real quickly -- you're familiar with this

[definition of reasonable belief]? I'm sure you are . . . You teach this right?A. Yes.

* * *Q. Okay. So the reasonable belief of Officer Goyos, under the hypothetical I

just ran with you and the facts -- you're a reasonable police officer -- wouldyou have shot, as well?

A. If threatened with a gun, yes.Q. If threatened with what you believe -- perceived to be a gun?A. Yeah. If I was threatened with a gun -- with what I perceived to be a gun, yes.

(Tr. pp. 437-438).

SUMMARY OF DETECTIVES GUTIERREZ & PEREZ’SARBITRATION TESTIMONY

Detective Alejandro Gutierrez’s Eyewitness Testimony

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As noted above, Miami Gang Unit Detectives Alejandro Gutierrez and Joaquin Perez were

both present at the scene of the shooting and witnessed Goyos’ actions. At the November 18, 2013-

arbitration hearing, Detective Gutierrez, in relevant part, testified as follows:

Q. (By Mr. Gibbons, Esq.)Okay. Now, Officer Goyos' position [as he exited the front passenger door ofthe unmarked Chevrolet Suburban driven by Agent Scott], do you have anopinion on whether or not he was in a real good spot there?

A. (By Detective Gutierrez)No, this was not a great spot to be in.

Q. Okay. Why?A. Because any threat that we would have would be here, and he [Goyos] was

basically placed [by the Agent driving the Suburban] within the danger zone.If we have -- this would be our hot zone, which is why we conduct our stopsback here. [H]e [Goyos] basically came into the hot zone from the beginning.(Tr. p. 230).

* * *Q. Okay. Now, Officer Goyos, being in the --I think you called it, the danger zone

that he [Goyos] was placed in --A. Correct.Q -- when he [Goyos] got out [of the Suburban], it would have been appropriate

for him to point his gun at the driver, would it not?A. Yes.Q. Okay. And you heard him give loud, verbal commands, right?A. From the moment [he] exited the vehicle.Q. Okay. And you heard the commands were something to the effect, "Show me

your hands. Let me see your hands," something to that effect, numeroustimes?

A. Correct.Q. Okay. And did you hear him also then say, shortly after that, "Don't do it.

Don't do it?” Did you hear that?A. I vaguely recall that, correct.Q. Okay. And then you heard three successive shots?A. Yes. (Tr. pp. 231-232).

* * *Q. Okay. Now, was there anywhere for Goyos to run and hide, here, at this point

[i.e., where Goyos exits the Suburban]?A. No, not in this facility. There was no cover at all there.The Arbitrator:

Didn't he have his door [of the Suburban]? He could stay behind his door?Mr. Gibbons:

The door [of the Suburban] opens up and [Goyos is] right next to the driverof the [Kia].

A. Basically this is where the door --The Arbitrator:

So the door [of the Suburban] was already further than the front of the

25

suspect's vehicle?The Witness:

Once again, it was in that general vicinity. I can't tell you --The Arbitrator:

So he [Goyos] lost his cover?The Witness:

Yes.The Arbitrator:

He's [i.e., Goyos is] more or less, parallel with the driver [of the Kia]?The Witness:

Once again, in that general vicinity, yes. (Tr. pp. 235-236).* * *

By Mr. Gibbons:Q. Okay. What I'm asking you is, in your mind, when you hear the words, "Don't

do it, don't do it," from a fellow officer, on a traffic stop, what does that meanto you?

A. In that agitated voice, it's that basically the subject is doing the opposite ofwhat we are lawfully asking him to do or her, and they're in a motion to dosomething incorrectly, whether it's grab a knife, a grenade, a rifle, a handgun,something that can possibly be a threat to us.

Q. Okay. Now, you mentioned, as soon as he [Goyos] got out of the [Suburban],his voice, since you've known him for quite some time, was in an immediateheightened level of alertness, and I think you used the word, distressed,right?

A. Correct.Q. Because he's [i.e., Goyos is] in the kill zone, right?A. Correct.Q. His [Goyos’] kill zone, right?A. Yes. Particularly his. (Tr. pp. 239-240).

Detective Joaquin Perez’s Eyewitness Testimony

At the November 18, 2013-arbitration hearing, Detective Perez, in relevant part, testified as

follows:

Q. (Direct By Ms. Forte, Esq.)Okay. And as he’s [i.e., Goyos is] getting out of the car [i.e., the Suburbandriven by HSI Agent Scott], which direction does he go?

A. (By Detective Perez) [Goyos] goes towards the driver [of the Kia]. He tells him [the Kia’s driver],

“Let me see your hands. Let me see your hands,” and the last thing I hear[Goyos] say is, “Don't do it. Don't do it,” and then he discharges his weapon.

Q. At all times, were you able to see Mr. Goyos?A. Yes.Q. So you saw everything that happened?A. Everything. (Tr. p. 262).

* * *

26

Q. (Cross By Mr. Gibbons, Esq.)Okay. Now, in your training and experience and since you've been on thestreet, the fact that somebody is intoxicated or under the influence of alcohol,that concerns you, doesn't it, as a police officer?

A. (By Detective Perez)Of course.

Q. Okay. Because they don't act correctly, right?A. Correct.Q. And they might get violent quicker, right?A. Correct.Q. And they may not listen to you, right?A. Correct.Q. And in this case, he [the driver of the Kia] wasn't stopping, right?A. Right.Q. We know that, the [Kia] was actually running from you, right?A. Yes.Q. And then ultimately a decision was made to stop the [Kia] by doing some kind

of boxing, right?A. Correct.Q. Okay. Do you know who made that ultimate decision?A. I don't remember who called it on the radio, but it would have been the lead

car [i.e., the Suburban].Q. Okay. And the people who would have made the decision to pull that

Homeland Security vehicle up in front of [the Kia], on an angle, would havebeen the driver [Agent Scott], right?

A. Yes.Q. It wasn't Detective Goyos, was it?A. No, he wasn't driving.Q. Okay. And then the other [police] vehicles came in behind, right, to box [the

Kia] in?A. Correct. (Tr. pp. 293-294).

* * *Q. And when they turned the vehicle [i.e., the Suburban], that put Detective

Goyos almost parallel with that driver [of the Kia], right?A. Correct.Q. And in your opinion, and with your training and experience, what kind of

position is that to be in?A. Ugly.Q. Ugly? What do you mean by that?A. He's [i.e., Goyos is] wide open.Q. Okay. Explain why.A. He has no cover. I mean, he -- you can't stay inside the car, and you have to

come out and engage the threat.Q. Okay. So Detective Goyos decided to engage the threat, right?A. Correct.Q. Okay. And you had your weapon out, right, when you got out [of your

unmarked police vehicle]?A. Correct.

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Q. Because that's what you do on felony stops, right, in these types ofsituations?

A. Correct.Q. Especially when they're not listening to you and they're fleeing, right?A. Correct.Q. Okay. And you heard him [i.e., Goyos] give loud, verbal commands, right?A. Yes, he did.Q. “Show me your hands,” right?

* * *A. Yes.Q. And you also heard [Goyos] say, twice, “Don't do it, don't do it?”A. Correct.Q. Back to back?A. Correct. (Tr. pp. 295-296).

* * *Q. Okay. And when [Goyos] was yelling, "Don't do it, don't do it," would you say

that his voice was elevated, at least?A. Yes.Q. Or stern?A. Yes. (Tr. pp. 296-297).

* * *Q. Okay. Those words, “Don't do it, Don't do it,” as a law enforcement officer,

they could indicate to you that the man [i.e., the Kia’s driver] is going for aweapon of some sort?

A. Correct.Q. “Don't do it,” don't grab that?A. Correct.Q. Now, the City has made mention over and over and over again here that

Goyos had a choice when he was placed in that position [i.e., when he exitedthe Suburban driven by Agent Scott]. Do you believe he had a choice?

A. No.Q. Okay.The Arbitrator:

Would you elaborate what you mean by a choice, for the record? I think Iknow, but I don't want to speculate. (Tr. pp. 297-298).

By Mr. Gibbons:Q. Well, as far as his [i.e., Goyos’] positioning [when he exited the Suburban],

where he [Goyos] was positioned with this [the Kia] vehicle.A. No, he had no choice.Q. Okay. That wasn't his call, right? He [Goyos] wasn't driving the [Suburban]

car, right?A. No.Q. He [Goyos] had to deal with what the driver [of the Suburban, Agent Scott]

did to him, right?A. Correct.Q. And that was a Federal agent, right?A. Correct.Q. Okay. And they [i.e., federal agents] don't work with the Miami Police

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Department every day, right?A. Correct.Q. Now, isn't it also true that the only person with the best point of view on the

driver [of the Kia] was Goyos?A. Yes, sir.Q. Now, just because a driver is impaired or drunk, doesn't mean he can't hurt

you, right?A. Correct.Q. And it doesn't mean he can't also go for a weapon, right?A. Correct. (Tr. p. 298).

SUMMARY OF THE ARBITRATION TESTIMONIES OF ASSISTANT CHIEF/FRBMEMBER ROY BROWN, ASSISTANT CHIEF/FRB MEMBER RODOLFO LLANES,

MAJOR/FRB MEMBER RAUL HERBELLO & CHIEF OF POLICE MANUAL OROSA

On January 28, 2013, Department’s Firearms Review Board (“FRB”) unanimously concluded

that Goyos’ February 10, 2011, shooting was “unjustified” and, thus, in violation of Department’s

Deadly Force Policy. Based upon the above quoted Section 21.4.20.6/“penalty language” of the

Deadly Force Policy (which authorizes the first offense dismissal for officers violating the policy

where, as was the case here, someone is injured), the FRB recommends to Chief of Police Orosa that

Goyos be discharged. Thereafter, Chief Orosa concurred, and then discharged Goyos on January 31,

2013, for the reasons stated in the above quoted Reprimand 13-009.

Chief Brown’s Testimony

Chief Brown, in short, testified that based on the evidence presented from Homicide and IA’s

investigation of the case, the witness statements and Goyos’ inconsistent statements, that Goyos

violated the Deadly Force Policy. According to Chief Brown, as Goyos was approaching the Kia, he

“placed himself in a position that gave him no choice but to make a decision, a decision that could

very easily have been the wrong decision, because he [/Goyos] placed himself in a position where

there was no room to . . . make an objective decision.” (Tr. pp. 590-591).

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On cross, Chief Brown further testified in summary and in relevant part as follows:

• That City police officers have a duty to retreat, adding “but I think our policy uses theterm, last resort. Now, last resort can be interpreted as, if you have an option toretreat, instead of taking somebody’s life. That’s the intent of the Department’spolicy.” (Tr. p. 610).

• That when Goyos exited the Suburban he was not placed in an extremely dangerousposition,

because when [Goyos] got out of the [Suburban], if it was anextremely dangerous situation to him, the option that he had was toback away and take cover, if he felt that that person [McNeil] had agun or he was placed in a bad situation. There was an option -- whenhe stepped out of the [Suburban], there were other options, otherthan drawing [his] weapon and approaching the window of the [Kia].(Tr. p. 616).

• That as stated in Joint Exhibit #13, the FRB agreed that Goyos “reasonably believedhe saw what appeared to be a weapon, a black object.” (Tr. p. 647).

Chief Llanes’ Testimony

Assistant Chief Rodolfo Llanes testified he found Goyos’ discharge of his firearm unjustified

on the grounds that:

Detective Goyos, in his [November 14, 2012-Garrity] statement [Joint Exhibit #10],stated that he observed Mr. McNeil reach to the floorboard and then come up withan object in his hand and then he fired. [Goyos] felt an imminent threat at that time,and he fired his gun. The physical evidence that was presented at that Board wasinconsistent with that statement. The physical evidence indicates that Mr. McNeilcouldn't have come up from his slumped stance, so to speak, and so it wasinconsistent for me to be able to rule that it was a justified shooting, based onDetective Goyos' statement, because it wasn't -- it didn't jibe with the physicalevidence, that he actually came back up. The evidence showed that [McNeil] stayedslumped in that position. (Tr. pp. 516-517).

Major Herbello’s Testimony

Major Raul Herbello, in summary, found Goyos’ shooting unjustified on the grounds he failed

to see a weapon, and that:

. . . [Goyos] had time to basically retreat, if he felt that something was wrong.If he felt that the subject [McNeil] was reaching into the carpet, into --

somewhere on the seat or whatever, he [Goyos] had enough time to retreat and puthimself in somewhat of an advantage of a tactical position to confront this individual[the driver McNeil] and the passenger [Williams]. At the time, he didn't know what

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was going on inside that [Kia’s passenger] compartment. (Tr. pp. 678-680).

On cross, Major Herbello further testified in relevant part:

Q. (By Mr. Gibbons, Esq.)But sometimes, Major, officers are put in positions where they're just in poortactical positions, right? The circumstances fall that way?

A. (By Major Herbello)They could change from one second to the other.

Q. Right. Because the dynamics of police work can change from any givensecond, right?

A. Yes, sir.Q. So you would also agree with me that the decision to employ deadly force

could form in almost an instant, right?A. Depending on the case.Q. Depending on the facts, right?A. Depending on each individual case. And, then, again, I felt that based on the

evidence [in this case], he [Goyos] had enough time to retreat, and time wason his advantage, just to give verbal commands to get [the driver of the Kia]out of the car.

Q. Okay. And you base -- is there a duty to retreat in the Miami PoliceDepartment?

A. No.Q. There's no such theory or duty to retreat, is there?A. No, sir. (Tr. pp. 693-694).

Chief of Police Orosa’s Testimony

On direct, when asked by City’s counsel, Ms. Forte, Esq., his basis or grounds for determining

the FRB’s recommendation to discharge Goyos was correct, Chief of Police Orosa replied:

. . . my basis was the fact that when [Goyos] exited the [Suburban] -- the first thingwe teach an officer is, when you're in the open, seek cover, go and get cover,because you don't want to be a target, and instead of that [Goyos] approached the[Kia], which eventually led to the shooting. (Tr. p. 757).

On cross, Chief Orosa further explained his grounds for discharging Goyos as follows:

Q. (By Mr. Gibbons, Esq.). . . As a result of [Goyos] not immediately seeking cover, you say iteventually led to the shooting and the death of Mr. McNeil, correct?

A. (By Chief Orosa)Correct.

Q. And that's the basis for your termination [of Goyos’ employment]; is thatright?

A. Yes, that's part of the basis . . . The fact that -- that by not seeking cover[Goyos] was in a situation where he was giving orders to an individual, andeventually shot at the individual . . . without any real threat to him at that

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time.Q. Okay. So I just want to make it clear, because [Goyos] didn't seek cover, and

because he engaged Mr. McNeil with lawful commands, that was part of thereason for [Goyos’] termination?

A. Yeah. You have to add the final twist of the story, which is [Goyos]unjustifiably shot a couple of people in the [Kia]. (Tr. pp. 771-772).

THE PARTIES OPPOSING POSITIONS & ARGUMENT

The party’s comprehensive opposing positions and argument are attached and incorporated

as Attachment A/City’s Brief, and Attachment B/FOP’S Brief.

FINDINGS

City’s four charges against Goyos stated in Reprimand 13-009 as its grounds for discharging

him are repeated below:

Charge One:That Officer Reynaldo Goyos violated Department’s Deadly Force Policy on the grounds:That the evidence of the case was not consistent with Officer Goyos’ [November 14, 2012-Garrity] statement because McNeil was struck in the rear left shoulder blade area.

Charge Two:That Officer Reynaldo Goyos violated Department’s Deadly Force Policy on the grounds:That when Goyos discharged his firearm, nor he or another person present was in imminentdanger of death or serious physical injury.

Charge Three:That Officer Reynaldo Goyos violated Department’s Deadly Force Policy on the grounds:That the evidence of the case was inconsistent with Goyos’ [November 14, 2012-Garrity]statement that he saw a black object on Mr. McNeil. And,

Charge Four:That Officer Reynaldo Goyos violated Department’s Deadly Force Policy on the grounds:That Goyos should have never approached the Kia, but instead should have retreated andfollowed all training protocols regarding felony stops involving armed subjects or vehicles.

For the following reasons, the undersigned finds that City failed in its burden of proving its

above four charges, thus, Goyos’ grievance shall be awarded/sustained.

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Resolution of City’s Charge One

City’s Charge One, simply put, is flawed on its face since the record shows that McNeil was

not struck in the rear left shoulder blade area of his body as alleged. As both Goyos and Medical

Examiner, Dr. Emma Lew testified here, the bullet which killed McNeil struck him on the left side

of his torso just below his axilla/armpit. Dr. Lew specifically testified that the entrance of the bullet

was “on [Goyos’] side . . .” (Tr. p. 379). At arbitration she also testified in relevant part:

A. (By Dr. Lew). . . It's [i.e., the entry of the bullet which killed McNeil] on the side . . . , alongthe posterior axillary line, which means that you take the [left] armpit [ofMcNeil], and the line that goes directly down the armpit will sort of divide thefront of the body from the back of the body. The line that is at the front of thearmpit is the anterior axillary line and the line that is at the back end of thearmpit is the posterior axillary line.

The entrance wound [of the bullet which killed McNeil] was right alongthat posterior axillary line, at the back of the axilla [i.e., McNeil’s left armpit].

* * * The Arbitrator:

[Dr.] [y]ou were looking on the left side, and that would have been -- the leftside of the victim [McNeil], and that would have been the driver's side, as youlook forward in the [Kia]?

The Witness:Correct. (Tr. pp. 379-380).

The undersigned also credits the following language under the heading “Medical Examiner

Findings” in the MDCSA’s June 5, 2012-Closeout Memo (Joint Exhibit #5), which recites in relevant

part that,

Dr. Lew determined . . . [t]he projectile [that killed McNeil] entered [McNeil’s] bodyapproximately thirteen inches from the top of the head, and nine inches to the leftof the thoracic spine, alone the victim’ left side. (Emphasis added). (Joint Exhibit #5, p. 50).

The undersigned also finds no compelling or actionable “inconsistency” in Goyos’ sworn

Garrity Statement with the evidence of the case since at no time did Goyos state, nor was he asked

what part of McNeil’s body the bullet entered. Goyos’ arbitration testimony, on the other hand, is

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entirely consistent with Dr. Lew’s above stated arbitration testimony that McNeil was shot just under

his left side arm pit. Indeed, on pages 1213-1214 and 1223 of Goyos’ cross examination - which the

undersigned credits - he testified as follows:

Q. (By Ms. Forte, Esq.)Okay. Now, you saw [the black object] when [McNeil] moved back and yousaid, “Don’t do it, don’t do it,” and where did you shoot [McNeil]?

A. (By Detective Goyos)In his torso.

Q. In the back? In the back part of his body, did you not? A. It wasn’t [McNeil’s] back. It was on the side of his body. (Tr. pp. 1213-1214).

* * *Q. Okay. And according to you, you didn’t shoot [McNeil] in the back?A. No I did not . . . On the left side of [McNeil’s] body. (Tr. p. 1223).

On the record as submitted, and for the above reasons, accordingly, the undersigned finds

City’s Charge One unfounded, and, thus, insufficient grounds to discharge Detective Reynaldo Goyos.

Resolution of City’s Charge Two

City’s Charge Two alleges Goyos’ violation of the Deadly Force Policy on the specific

grounds that when he “discharged his firearm, nor he or another person present was in imminent

danger of death or serious physical injury.” The undersigned finds no merit to the charge in light of

the FRB’s own finding that Goyos “reasonably believed he saw what appeared to be a weapon (black

object)” in McNeil right hand. (Joint Exhibit #13) Moreover, upon seeing the black object - which

again, the FRB found that Goyos “reasonably believed was a weapon” - Goyos then (as he testified

in his Garrity Statement and repeated here) called out to the Kia’s driver stating:

“Don't do it.” [I] [g]ave him [the driver of the Kia] a loud verbal command, “Don't doit,” and at that time, I saw a black object coming up, and that’s when -- from his rightside of his leg, and thats when I -- I was in fear for my life, in fear for my partner'slife, and that’s when I fired three shots at the driver. (Joint Exhibit #10, page 10).

In light of the FRB’s above finding, and since the record shows, nor is it disputed, that Goyos

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loudly and repeatedly called out “show me your hands,” which McNeil failed to comply, and then,

upon Goyos seeing what he believed was a weapon, and then again loudly calling out “don’t do it,”

don’t do it,” and since the entire event was over in just seconds, the undersigned finds no violation

of Department’s Deadly Force Policy as alleged in Charge Two, i.e., that Goyos “discharged his

firearm, nor he or another person present was in imminent danger of death or serious physical injury.”

On the record as submitted, and for the above reasons, accordingly, the undersigned finds

City’s Charge Two unfounded, and, thus, insufficient grounds to discharge Detective Reynaldo

Goyos.

Resolution of City’s Charge Three

City’s Charge Three alleges Goyos violation of Department’s Deadly Force Policy on the

grounds “That the evidence of the case was inconsistent with Goyos’ [November 14, 2012-Garrity]

statement that he saw a black object on Mr. McNeil.”

The undersigned credits Goyos’ repeated and unopposed testimony both here and in his earlier

sworn Garrity Statement that as he approached the Kia’s front driver’s side window, he saw a “black

object” in McNeil’s right hand. Goyos’ testimony, as discussed above, is further and totally

corroborated by the Firearms Review Board’s finding that “Goyos reasonably believed he saw what

appeared to be a weapon (black object).” (Joint Exhibit #13). The evidence of case further

corroborates Goyos’ testimony that he saw a black object, since a “black” cell phone with McNeil’s

matching DNA was retrieved from the driver’s side floor of the Kia.

In summary, contrary to City’s Charge Three, the undersigned finds no evidence in this case

inconsistent with Goyos’ Statement, nor his arbitration testimony here, that he saw a black object on

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Mr. McNeil.

Thus, on the record as submitted, and for the above stated reasons, the undersigned finds

City’s Charge Three unfounded, and, thus, insufficient grounds to discharge Detective Reynaldo

Goyos.

Resolution of City’s Charge Four

City’s Charge Four alleges that Goyos violated the Deadly Force Policy on the grounds that

upon exiting the Suburban, he, “should have never approached the Kia, but instead should have

retreated and followed all training protocols regarding felony stops involving armed subjects or

vehicles.” While differently worded, Charge Four’s text is almost identical to Chief Orosa’s grounds

for discharging Goyos, i.e., that instead of taking cover upon exiting the Suburban, Goyos approached

the Kia which eventually led to the shooting.

In short, the undersigned finds Charge Four and Chief Orosa’s similar grounds for discharging

Goyos fatally undermined by the following evidence of the case.

1. The undisputed fact that no more that seconds elapsed from the time Goyos exited theSuburban to his discharge of his firearm. (Joint Exhibit #5, page 9, Tr. pp. 1194,1238).

2. Page 7 of the FRB’s report submitted as Joint Exhibit #13, which found:

The [HSI] Agent [Scott] that conducted the traffic stop [of the Kia] infront of the suspect’s [i.e., McNeil’s left/front] door didn’t give OfficerGoyos options to take cover, etc.

3. Goyos’ eyewitness testimony and the overall corroborating eyewitness testimony ofboth Detectives Gutierrez and Perez that Goyos was “placed” by HSI Agent Scott ina “hot/danger” zone just three feet from McNeil’s front door, with no cover. (Tr. pp.235-236, 295; Joint Exhibit #5, page 3).

4. Goyos’ testimony that where HSI Agent Scott stopped the Suburban, he/Goyos was

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“just thrown out there” with no cover. (Joint Exhibit #10, page 29).

5. Goyos’ testimony that, when stopping vehicles:

[W]e’re trained to approach the vehicle and assess what’s going on. We’renot trained to retreat or take cover.

* * *From the training and from the stuff that we’ve done, I’ve never been told totake cover when you get out of the vehicle or retreat. That’s not the way theydo things. We approach the vehicle, in a tactical approach, and you assessthe situation, and then you act according to what happens after that. (Tr. p.1201).

6. Officer Byars’ testimony that Department does not teach its officers to actually retreat.(Tr. p. 394). And,

7. The fourth sentence of Department’s Order 6, Chapter 21, Section 21.4.1.16, whichstates, “It must be remembered that by law, an officer need not retreat in his/her effortsto lawfully control a subject, but may utilize the amount of force necessary toaccomplish his/her task.” (Joint Exhibit #9, page 4).

The undersigned, in short, finds the above stated seven factors collectively and fatally

undermine City’s Charge Four. In other words, and particularly since the FRC itself found that Goyos

was “placed” by HSI Agent Scott “with no options to take cover”; and since Goyos was “placed” just

three feet from a vehicle which had just been chased and driven by a then unknown driver who was

possibly armed and dangerous (which, in turn, caused all of the officers on scene to draw their

weapons, as did Goyos); and in light of Goyos’ credible testimony that when stopping a vehicle:

[W]e’re trained to approach the vehicle and assess what’s going on. We’re nottrained to retreat or take cover.

* * *From the training and from the stuff that we’ve done, I’ve never been told to takecover when you get out of the vehicle or retreat. That’s not the way they do things.We approach the vehicle, in a tactical approach, and you assess the situation, andthen you act according to what happens after that. (Tr. p. 1201):

and since the entire event was over in just seconds, the undersigned finds no culpable violation of

Department’s Deadly Force Policy by Goyos on the grounds that he “should have never approached

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the Kia, but instead should have retreated and followed all training protocols regarding felony stops

involving armed subjects or vehicles.”

That being found, the undersigned further finds City’s Charge Four unfounded and, thus,

insufficient grounds to discharge Detective Reynaldo Goyos.

It follows that based upon the record as submitted and all of the above, and since each of the

City’s Four Charges recited in its Reprimand 13-009 as the grounds or reasons for discharging

Detective Reynaldo Goyos are unfounded, the undersigned further finds City failed to prove it had

just or proper cause to terminate the employment of Grievant/City of Miami Detective Reynaldo

Goyos. Accordingly the instant grievance No. 13-01 is sustained/awarded.

REMEDIES AND AWARD

Based upon the entire and voluminous hearing record in this matter and all of the above, the

undersigned further finds, awards and orders the following appropriate remedies:

1. Just or proper cause did not exist to discharge or otherwise discipline City of Miami Detective

Reynaldo Goyos for his charged February 10, 2011-actions or conduct as discussed above.

Accordingly, the instant grievance is sustained/awarded and Goyos’ January 31, 2013-

discharge set aside.

2. Reinstatement and Seniority

a. Unless a later or earlier date is mutually agreed upon by the parties, not later than

Wednesday, August 13, 2014, City/Department shall:

i) reinstate Goyos to his former bargaining unit detective police officer

position with no loss in seniority and, thereafter,

ii) if required by applicable Department rules, regulations or law, etc.,

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provide Goyos at no cost with all training classes and courses needed

for his certification or re-certification as a City of Miami sworn

detective police officer.

b. To the extent allowed by applicable State of Florida laws, regulations and/or Opinions

of the Florida Attorney General, all documents, IA, FRB, or other reports and

references to Goyos’ January 31, 2013-discharge shall be removed or stricken from

the personnel file(s) that City and/or Department maintain pertaining to Goyos.

2. Payment of Back Pay and Benefits

a. City/Department shall further make Goyos whole by promptly computing and paying

him all lost back pay and all lost employee benefits (including, but not limited to

pension, insurance, insurance premiums, medical/dental payments, etc.) as if Goyos

had not been discharged on January 31, 2013, minus all 1099/W-2 income, wages,

unemployment compensation or earnings either paid, received, or payable to Goyos

from other sources by cash or check for the period commencing on January 31, 2013,

up to Goyos’ actual date of reinstatement. And,

b. Restore to Goyos all other City/Department applicable employee benefits and

privileges including but not limited to seniority, unpaid vacation, time in service, sick

leave, contractual pay raises, contractual promotions, etc.

c. In order to accurately compute Goyos’s back pay and benefits, if requested, he shall

promptly provide City/Department with confidential copies of any and all of his

earning statements and income documentation including 1099s, W-2s, unemployment

payments, tax returns, and all non reimbursed and/or out-of-pocket medical/dental

premiums and medical/dental expenses paid by him (including doctor and hospital

bills, co-payments and prescriptions, etc.), commencing on the date of his discharge

up to his reinstatement date.

e. City/Department shall further and timely provide the President of FOP’s Lodge No.

20 with copies of all monetary and benefit computations and all proposed and actual

payments and restored benefits to Goyos.

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3. Retention of Jurisdiction

The undersigned arbitrator retains jurisdiction in this matter only to resolve any reinstatement,

back pay or benefit payment dispute(s). All other issues or argument(s) raised by the parties

or not addressed in this Opinion and Award are deemed moot and/or denied. This Opinion and

Award is otherwise final and binding.

Signed and e-mailed to the parties this August 8, 2014

Martin A. Soll______________________Martin A. Soll, Arbitrator3530 Mystic Pointe Drive, Suite 401Miami, Florida 33180

305/932-0001

Lanmar@AtlanticBB.net

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