orangeleader.com (Orange, Texas)

Local News

November 18, 2010

Suspension letter to Capt. Robert Arnold

ORANGE — Page 1 of 38

TO: Captain Robert Arnold

FROM: Sam Kittrell, Chief of Police

RE: Indefinite Suspension

Date: November 17, 2010

 

As a result of your actions at O’Reilly’s Auto Parts, located at 2947 16th Street in

Orange, Texas on Monday July 26, 2010, you are hereby indefinitely suspended from duty

with the Orange department. Pursuant to Sec. 143.052 of the Local Government Code, you

are entitled to a written statement giving the reasons for your suspension.

On Monday July 26, 2010 you were off duty at O’Reilly’s Auto Parts on 16th Street in

Orange, Texas when you had an encounter with a customer by the name of James

Whitehead. This customer was creating a disturbance inside of the Auto Parts store.

Some time between 5:04:04 p.m. when store Manager Ray Hebert Jr. called 9-1-1 to report a

disturbance and 5:08:08 p.m. when Ray Hebert Jr. again called 9-1-1 again a series of

events occurred during those four minutes and four seconds that ended with your firing your

weapon that resulted in the death of James Whitehead.

The criminal investigation was led by Texas Ranger Ken Parks. Ranger Parks

conducted much of the investigation himself and he was also provided investigative, forensic,

and scientific support from other professionals throughout the investigative process. Upon

Ranger Parks completion of the investigation the case in its entirety was presented to the

Orange County District’s Attorney’s Office.

After a review by the District Attorney’s Office on November 10, 2010 the case was

presented to the regular term of the September 2010 Orange County Grand Jury. The Grand

Jury heard and reviewed evidence relating to this incident. After due consideration of the

facts as presented the Grand Jury returned a “No-Bill” relating to your actions associated with

the shooting of James Whitehead.

I have the utmost respect for the Texas Rangers and for the investigation by Ranger

Parks. I also am appreciative and supportive of the efforts put forth by the District Attorneys

Office and the investigators who assisted in the investigation of and the presentation of this

case before the Grand Jury. I also completely support the Grand Jury, their review of this

matter, and for their findings related to this incident.

As Chief of Police it is my duty to review issues beyond the scope of the legal issues

related to the event. Issues considered by the Grand Jury are generally more narrowly

defined and more strictly relate to the legality or non-legality of the actual use of deadly force.

My duties and responsibilities require that I consider a broader spectrum in order to

determine if rules, regulations, policies, and procedures have been followed. It is also my

responsibility to insure that you acted professionally and appropriately as an individual who is

an officer and especially as one who holds the rank of Captain with the Orange Police

Department. There are situations where we may be legally right but that does not necessarily

mean that an officer conducted himself or herself in a professional manner, that they adhered

to established rules and regulations, or that they conducted themselves appropriately

throughout the event. While the actual use of deadly force was a component of my review it

was not limited to that one component.

Approximately 5:04 p.m. on Monday July 26, 2010 the Orange police department’s

9-1-1 dispatcher received a phone call reporting a disturbance between the employees of

O’Reilly’s Auto Parts, located at 2947 16th Street and a customer whose name was not

known at the time of the original call. Ray Hebert Jr., Manager of O’Reilly’s Auto Parts was

the person who made the call to 9-1-1.

In the opening paragraph, I mentioned the four minutes and four seconds between the

initial call to 9-1-1 reporting the disturbance to the call to 9-1-1 reporting that James

Whitehead had been shot. The sequences of event during that time have been evaluated

based on the information available. Where appropriate, things other than those that took

place at that time were also considered in order to assist in the making any determinations or

findings in this matter.

Individuals identified as being at O’Reilly’s Auto Parts at time of the event:

Before continuing with the information related to this event I will list those identified as

witnesses so that references made to different people might be easier to understand:

Witness Inside/Outside

1. Ray Hebert Jr. Manager of O’Reilly’s Auto Parts O

2. Jared Kilbourn Commercial Manager / O’Reilly’s I

3. Christopher Lopez Employee of O’Reilly’s I / O

4. Glen Dorrell Employee of O’Reilly’s I

5. Randy Edwards Accompanied James Whitehead to O’Reilly’s I / O

6. Robert Frankin Accompanied James Whitehead to O’Reilly’s O

7. Charles Bosarge Customer from Lafayette, LA O

8. Colton Bosarge Customer from Lafayette, LA O

9. Dexter Gibson Customer (Local but helping Bosarge’s) O

10. Marlin McMullen Customer (Local) I

11. John Rushing Customer (Local) I / O

12. Dayja Arnold Daughter of Capt. Robert Arnold I

13. Capt. Robert Arnold Orange Police Officer – Off-Duty I / O

At this time I will list the facts or determinations made relating to the event at O’Reilly’s

Auto Parts on Monday July 26, 2010.

Arrival of James Whitehead to O’Reilly’s Auto Parts around 5:00 p.m. Monday July 26, 2010

There was a general consensus of all witnesses that James Whitehead arrived at

O’Reilly’s sometime just before or around 5:00 p.m. James Whitehead was reported have

been a passenger in a 2004 Ford pick-up truck driven by Randy Edwards and also occupied by Robert Frankin. There was a consensus that Robert Frankin remained in the truck but

that both James Whitehead and Randy Edwards went inside of O’Reilly’s Auto Parts.

Purpose of James Whitehead visit to O’Reilly’s and his initial demeanor in the store.

The witnesses seemed in agreement that James Whitehead had previously purchased

an EGR (Exhaust Gas Recirculation) valve for his vehicle. When James Whitehead came

back into the store, he had the recently purchased EGR valve and he also had a used starter

from his vehicle. James Whitehead asked that the starter be tested to see if it was defective.

Manager Ray Hebert Jr. had another employee utilize some type of analyzer available in the

store that determined that the starter was defective.

James Whitehead apparently inquired as to the cost of the starter as he borrowed a

cell phone from another customer to compare the price of a starter from O’Reilly’s with the

price of a starter from Auto Zone. Until that time the witnesses described Whitehead’s

behavior and demeanor as cordial and polite. At least one witness even described James

Whitehead as bragging on the service and prices at O’Reilly’s. It seems from all that was

said that James Whitehead indicated to store employees that he wished to purchase a new

starter from O’Reilly’s but he wished to return the recently purchased EGR valve and for the

cost of the EGR valve to be credited toward the price of the new starter.

Change in Demeanor of James Whitehead

When James Whitehead informed O’Reilly’s employees of his desire to return and/or

obtain credit for the recently purchased EGR, he learned of the O’Reilly’s company wide

policy relating to the return of new parts. The policy for O’Reilly’s Auto parts as specified on

literature in the store and on the company website reads in part…. “Products qualify for

New Return, if they have not been installed, are in their original packaging, unopened,

including all original materials supplied with the product.” Store Manager Ray Hebert Jr. was

very certain that the EGR had in fact been installed on a vehicle and therefore it was not

eligible for return. James Whitehead’s demeanor switched very quickly from docile to angry,

loud, vulgar, and combative.

Exchange between James Whitehead and Ray Hebert Jr. that led to the first 9-1-1 call.

After some discussion between Ray Hebert Jr. and James Whitehead about whether

or not the EGR valve had in fact been installed on a vehicle, James Whitehead’s language

and demeanor denigrated to the point where he was referring to store manager Ray Hebert

Jr. in terms such as “Bitch”, “Whore”, and “Fagot”.

At no time did Ray Hebert Jr. use any loud or vulgar language in his dealings with

James Whitehead. Mr. Hebert did sense a need to request assistance from law enforcement

so at 5:04:04 p.m. he picked up a phone, in James Whitehead’s presence, and dialed 9-1-1

to report James Whitehead’s disruptive behavior in the parts store. The initial call lasted 55

seconds. A transcript of that call is as follows:

5:04:04 Start of call:

Disp. Melton: 911 what is the emergency?

Ray Hebert: This is Ray at O’Reilly’s Auto Supply. I need an officer down here please.

J. Whitehead Overheard in background: I want my fu--ing money back and I’ll fu--ing be gone.

Disp. Melton To Disp. Dobson: Rachel, disturbance at O’Reilly’s Auto Parts

Disp. Melton: They are on there way sir. What was your name?

Disp. Melton: Ray?

Page 4 of 38

Ray Hebert: Uh huh

Disp. Melton: Is it just one male subject in there Ray?

Ray Hebert: Yes

Disp. Melton: Black male white male Ray?

Ray Hebert: It’s a white male.

Disp. Melton: Can you give me a description?

Ray Hebert: About 6 foot 3.

J. Whitehead: Overheard in background: “Two hundred and thirty pounds”.

J. Whitehead: Overheard in background: “This is bullsh-t man, I just bought this man.”

Disp. Melton: Okay, white male about 230 pounds?

Ray Hebert: Yes

Disp. Melton: 60'ish

Ray Hebert: Oh no, young guy

Disp. Melton: Young guy?

Ray Hebert: Yes

Disp. Melton: Uh black male white male, what does he have on?

Ray Hebert: I’m sorry what’s that?

Disp. Melton: What does he have on?

Ray Hebert: Shorts and a gray t-shirt.

Disp. Melton: Alright sir, we have them on the way.

Ray Hebert: Thank you.

5:04:59 End of Call:

A review of the transcript and in listening to the recording of the actual call does not

indicate that there is not a sense of profound urgency in Ray Hebert’s tone as he talks to

Dispatcher Melton. The call was typical of the many calls for police service that the

department receives. That is not to say that the call did not warrant a prompt police response

but there was nothing that was indicative of an individual who was high on drugs, out of

control, and threatening physical harm to the employees or customers in the store. It

sounded as if there was a customer in the store who was upset that he could not get a

refund. James Whitehead even provided a portion of his own physical description as Ray

Hebert was providing it to Dispatcher Melton.

Dispatcher Kathy Melton answered the initial call from Ray Hebert Jr. at O’Reilly’s.

When she realized there was a disturbance at O’Reilly’s she called out to her partner,

Dispatcher Rachel Dobson to let her know of the call. Dispatcher Dobson works

approximately eight feet from Dispatcher Melton so they can communicate in a normal voice

without any problems. The original call came in at 5:04:04 and seven seconds later

Dispatcher Melton advised Dispatcher Dobson (whose primary duties that day was to

dispatch police calls) of the disturbance.

Six seconds after receiving the information from Dispatcher Melton, Dispatcher

Rachel Dobson contacted Officers Caleb Davis and Kelly Griffin to alert them to the call.

The call, as shown in the transcript below:

Page 5 of 38

5:04:17 Start of call

Disp. Dobson: 455 - 419

Officer C.R. Davis: 455

Officer Griffin: 419

Disp. Dobson: If you can be enroute to O’Reilly’s, 2947 16th disturbance inside

O’Reilly’s 2947 16th.

Officer C.R. Davis: Received 11th and Scholars.

Disp. Dobson: Received

Officer Griffin: 419 from Camellia and 37th.

Disp. Dobson: That’s clear

5:04:44 End of call

As often happens in our work, especially at this time of day, a second call came in

around the area of 11th and Sholars Streets in reference to “shots fired”. A call of “shots

fired” generally also requires a very prompt police response. One of the primary units that

had been dispatched to O’Reilly’s (Officer C. Davis) happened to have been in that very area

when he was dispatched to O’Reilly’s call. Given his proximity to the “shots fired” call he

was diverted from O’Reilly’s and an additional unit was sought to respond with Officer Griffin

to O’Reilly’s. Officer Griffin was responding from the Roselawn area so her response time

would not have been optimal.

Dispatcher Melton reported to all units that the call at O’Reilly’s involved a “very irate

customer” that she could hear “yelling and screaming” at the persons waiting at the desk.

Officer Matt Reeves acknowledged the call and responded from the area of 10th and Burton.

Officer Reeves was the first unit to arrive at O’Reilly’s at 5:08:19. His arrival was

approximately four minutes from the time the initial call was received. While he was arriving

Dispatcher Melton was taking the second call from the O’Reilly’s store manager (Ray Hebert

Jr.) who advised that you had shot James Whitehead.

Your encounter with James Whitehead INSIDE of O’Reilly’s after original 9-1-1 call.

In your statement you said that when you first observed James Whitehead inside of

O’Reilly’s that he was not loud but at some point later that he became louder. You said that

you could tell that either James Whitehead or Randy Edwards had purchased a part earlier

and there was some dispute over the return of that part. You said that they were initially

talking to a clerk but the clerk had asked for a store manager to talk to them.

You said that James Whitehead got into a verbal altercation with Ray Hebert Jr.,

Manager of O’Reilly’s. You said that you heard Ray Hebert Jr. say “What’s the problem?

You’re trying to bring this back?” You said you did not get all of the conversation but that

you heard James Whitehead say “I’m trying to bring this back, yes”.

You indicated that the next thing you heard was Ray Hebert Jr. telling James

Whitehead “If this is wrong then you shouldn’t be messing with this”. You said that James

Whitehead responded in a very loud voice saying “I’m just going by this”. You said he was

referring to a paper that he had in his hand. You indicated that Ray Hebert Jr. picked up the

part and told James Whitehead “This has been on a car or your car”. You said that James

Whitehead responded by saying “I just purchased it. It hasn’t been on my car”. Ray Hebert

Jr., according to your statement, told him “Well, it’s been on someone’s car”.

Page 6 of 38

You said that James Whitehead started getting louder and he was cursing even more.

You indicated that James Whitehead grabbed the part and slammed it back on the counter.

You said that James Whitehead cursed Ray Hebert Jr. You said that he said “I just bought

this fu--ing part, I can’t believe you ain’t gonna take this mother fu--er back”. You said that

James Whitehead then started pointing at different sales people saying, “You just seen me

and this motherfu--ker buy this part this is bull sh-t”.

You said that Ray Hebert Jr. tried to get James Whitehead to calm down. Ray Hebert

Jr. told him that he could not take the part back. You said that you were still standing at the

counter with James Whitehead to your left. You said you were not saying anything, just

listening. You said that all transactions in the store had stopped because the sales people

were watching to see what James Whitehead was going to do next.

You indicated that James Hebert Jr. then started walking to the left of where he was

standing swinging his arms and saying “this is f--king bull sh-t, I hate this f--king store! The

part cost f--king $160.00! “. You said that James Whitehead then went back to the register in

front of Ray Hebert Jr. and continued to use very profane language. You said that you saw

Ray Hebert Jr. step away from the counter and pick up the phone. You assumed that he was

calling the police as he said “This is Ray at O’Reilly’s, I need an officer for an irate customer”.

You said that Ray must have been asked for a description as he said he was a white male,

6’3” in height. You said that while he was talking to the dispatcher James Whitehead is still

cursing and he yelled to Ray Hebert Jr. “I’m f--king 220 pounds”.

You said that James Whitehead continued yelling and cursing for approximately two

minutes. Even after that amount of time you said that James Whitehead had not calmed

down and the situation was in fact escalating. You said that the person with James

Whitehead (Randy Edwards) did not do anything to try to calm James Whitehead down or to

get him to leave the store.

You indicated that at this time you had your first verbal contact with James Whitehead.

You said that you asked him “Sir, would you please refrain from vulgarity? My daughter is

right here.” You said that you were being polite and professional as you asked him. You

said that James Whitehead walked over towards you quickly and aggressively. You said that

the two of you were face to face and chest to chest as he said “Nigga, I’ll bust you in the f--

king face”. You said that as he approached you his hands were balled up in a manner

where he could have thrown a punch at you. You said that you identified yourself as a police

officer, asked him to be quiet, and to wait for the police officer to get there. You said that he

said something to the effect of “What you gonna do f--king arrest me or something?” You

said he kept using the word “Nig--r”.

You said that you then told your daughter to stay in the store and that you walked out

to your vehicle to get a pair of handcuffs. You said that you did this because you had seen

James Whitehead becoming physically aggressive with store personnel and with yourself.

You said you wanted your handcuffs to restrain him in the event he “got physical”.

What other witnesses stated they saw INSIDE of the O’Reilly’s store.

Ray Hebert Jr.:

Ray Hebert Jr. Manager of O’Reilly’s stated that he has been the Manager of

O’Reilly’s Auto Parts on 16th Street in Orange since 1986. Mr. Hebert Jr. stated that he was

working on July 26, 2010 around 5:00 p.m. when the person later identified as James

Whitehead came in with a used automotive starter, an old EGR valve, and a new EGR valve

that the same customer had purchased the day before. James Whitehead told Mr. Hebert Jr.

that he was trying to diagnose and electrical problem and Mr. Hebert Jr. agreed to help him

by having the starter placed on a diagnostic machine. The starter was determined to be bad

and James Whitehead indicated that he wanted to purchase a new starter. James

Whitehead indicated that he wanted credit from the EGR valve that he had purchased the

day before to be applied toward the new starter.

Until they got to this point, the exchanges between James Whitehead and the

employees of O’Reilly’s was cordial. Once James Whitehead was told the EGR valve was

not eligible for a credit he became angry toward Mr. Hebert Jr. According to Mr. Hebert Jr.,

James Whitehead was loud and verbally abusive. James Whitehead used terms such as

“damn little fagot” and “pu- - y”. Mr. Hebert Jr. stated that James Whitehead leaned over

the counter in what he felt was an aggressive manner that caused him to feel threatened.

Mr. Hebert Jr. called 9-1-1 and reported James Whitehead’s behavior and requested

police assistance. Mr. Hebert Jr. stated that while he was on the phone talking to the police

dispatcher he noticed that you were in the store. He recognized you as a being a police

officer but he could tell that you were off duty. Mr. Hebert Jr. stated that while he was still

on the phone with the dispatcher you walked over to James Whitehead and spoke to him.

Mr. Hebert Jr. stated that he could not hear what you said to James Whitehead but he heard

James Whitehead, in a loud voice yell out “get away from me nig--r”.

Mr. Hebert Jr. stated that even though he could not hear what you said to James

Whitehead that it appeared that you were trying to calm him down. Mr. Hebert Jr. stated that

he heard you say to James Whitehead “I’ll be right back”. Mr. Hebert Jr. sated that as you

walked away that James Whitehead started yelling profanities at Mr. Hebert Jr. again.

Mr. Hebert Jr. said that James Whitehead then gathered his parts from the counter

and started walking toward the door to leave. Mr. Hebert Jr. stated that it has always been

his policy to follow irate customers out the door to insure the safety of his employees and

customers.

Jared Kilbourn:

Jared Kilbourn, Commercial Manager of O’Reilly’s and has been employed at

O’Reilly’s Auto Parts for three and a half years. He stated that he was coming back from the

outside of the store where he had loaded a part on a truck when he heard the loud voice of a

customer who was later identified as being James Whitehead. He said the customer was

shouting at the Manager, Ray Hebert Jr. but Mr. Hebert Jr. was calm and he never raised his

voice. Mr. Kilbourn said the customer was repeatedly saying “F--k you” to Ray Hebert Jr..

Mr. Kilbourn stated that another customer, believed to be you, went over to the irate

customer and identified yourself as a police officer. He said that you asked James

Whitehead to stop cursing as you had your daughter with you. Mr. Kilbourn said you did not

show James Whitehead a badge. He said that James Whitehead got into your face, getting

within three inches of your face. Mr. Kilbourn said that you went outside to get your badge

and that James Whitehead said “go ahead you f--king coon”.

Christopher Lopez

Christopher Lopez, a Counterman at O’Reilly’s Auto Parts said that he was working

the second cash register from the door when he became aware that Manager Ray Hebert Jr.

was waiting on a customer, later identified as James Whitehead, at the rear of the store.

James Whitehead was attempting to return an electrical part. Mr. Lopez said that when Ray

Hebert Jr. told James Whitehead that he could not return the part that James Whitehead

became upset and was calling Ray Hebert Jr. “bad” names. He said that James Whitehead

used terms such as “bitch”, “fagot”, and “whore”. Mr. Lopez said he heard James

Whitehead tell Ray Hebert Jr. “I’ll whip your ass”. Mr. Lopez said that Ray Hebert Jr. called

the police

Christopher Lopez said that a black male customer, believed to be you, had been in

the store when the initial confrontation between Ray Hebert Jr. and James Whitehead took

place. Mr. Lopez said that you took your daughter to the back of the store when the

disturbance started. Mr. Lopez said that you walked out of the store before James

Whitehead left the store. Mr. Lopez said that James Whitehead continued to yell at Ray

Hebert Jr. as he (James Whitehead) walked out of the store. Mr. Lopez said that Ray Hebert

Jr. then walked outside.

Glen Dorrell:

Glen Dorrell, Employee of O’Reilly’s Auto Parts stated that he was working at

O’Reilly’s Auto Parts on Monday July 26, 2010 when a white male, later identified as James

Whitehead, walked in with an EGR valve and a starter. James Whitehead, according to Mr.

Dorrell, wanted to purchase a new starter and to return the EGR valve. The store manager,

Ray Hebert Jr., told James Whitehead that he could not return the EGR valve as it had been

installed on a vehicle.

According to Mr. Dorrell, James Whitehead became very angry at Ray Hebert Jr.. He

(James Whitehead) slammed his fists on the counter and began cursing. According to Mr.

Dorrell you identified yourself to James Whitehead and you asked him to calm down as your

daughter was with you.

Mr. Dorrell said that you went outside to get your badge and that James Whitehead

walked out behind you calling you names like “Coon” and “Ni--er”. Mr. Dorrell asked your

daughter to stay behind the counter until you came back in. Glen Dorrell said that was when

he heard the gunshot.

Randy Edwards:

Randy Edwards, who was with James Whitehead at O’Reilly’s stated that his girlfriend

is Christella Callahan and that she is James Whitehead’s Aunt. Mr. Edwards described

James Whitehead as Marine Corps veteran who served in Operation Desert Storm. He said

that James Whitehead “was a loner and kept to himself”.

Mr. Edwards stated that just before five o’clock on Monday July 26, 2010 James

Whitehead came to his house asking for a ride to O’Reilly’s Auto Parts. Randy Edwards

drove, James Whitehead was in the right front passenger seat and Robert Frankin was

seated in the back seat directly behind Randy Edwards.

At O’Reilly’s, both Randy Edwards and Robert Frankin initially stayed in the truck while

James Whitehead went inside. After a couple of minutes Randy Edwards exited the truck

and went inside. According to Randy Edwards, as he walked into O’Reilly’s he saw James

Whitehead standing at the far end of the counter and a Hispanic employee was on the

opposite side of the counter waiting on James Whitehead.

Mr. Edwards said he saw and talked to a friend by the name of John Rushing. He said

that all was quiet with James Whitehead and with the employees of O’Reilly’s. Randy

Edwards said that James Whitehead wanted to borrow his cell phone to call Auto Zone. John

Rushing let James Whitehead use his cell phone to call Auto Zone. Mr. Edwards stated that

James Whitehead had purchased a part earlier for his truck but that he had learned on the

internet that it was the wrong part. Mr. Edwards said that James told him that he never put

the part on his truck. According to Mr. Edwards, Ray Hebert Jr. told James Whitehead that

he could not return the part as it had been installed on a vehicle. Randy Edwards said that

James Whitehead became angry with Ray Hebert Jr. He said that James Whitehead

slammed the part down on the counter and said “This is bulls--t”. Mr. Edwards said that

James Whitehead called Ray Hebert Jr. a “punk” and a “fagot”. Randy Edwards said that

James Whitehead then turned and walked toward the door.

Mr. Edwards said that he was walking on James Whitehead’s right side when they

were confronted by a black male, believed to be you. Edwards said that you told James

Whitehead that he needed to settle down. James Whitehead reportedly told you that you

needed to stay out of his business. According to Mr. Edwards you told James Whitehead

“wait right there, I’ll be right back”. Mr. Edwards said that James Whitehead responded by

saying “I ain’t got to wait no where, what are you a police officer?” Mr. Edwards said that you

never responded and that you started walking out the door of the store. Randy Edwards

said that James Whitehead then called you a “coon”.

Robert Frankin:

Robert Frankin, at O’Reilly’s with James Whitehead, stated that he was the uncle of

James Whitehead. He said that on Monday July 26, 2010 around 4:45 p.m. he rode with

James Whitehead and Randy Edwards first to Auto Zone and then to O’Reilly’s Auto Parts on

16th Street. He said that at O’Reilly’s he remained in the truck while James Whitehead and

Randy Edwards went inside.

Marlin McMullen:

Marlin McMullen, a customer at O’Reilly’s Auto Parts, stated that he was in O’Reilly’s

Auto Parts store on 16th Street looking for parts when he heard a white male, believed to be

James Whitehead, bragging about the parts being cheaper at O’Reilly’s. To Mr. McMullen it

sounded as if things were going okay and that everyone was “happy”.

Mr. McMullen stated that a few minutes later James Whitehead was getting loud and

shouting at Ray Hebert Jr., the manager of O’Reilly’s. Mr. McMullen said that James

Whitehead was calling everyone in the store a “son of a bitch”. Marlin McMullen thought

that James Whitehead was upset as he wanted to return a part and the store would not

accept it. He said that James Whitehead was shouting curse words at everyone in the store.

According to Mr. McMullen there were three employees and four customers in the

store when the disturbance started. He said there was a black male, believed to be you, and

a black female, believed to be your daughter, at the counter. Mr. McMullen said that you told

James Whitehead “You know what, that’s enough”. James Whitehead, according to Mr.

McMullen, cursed at you and told you to stay out of it because you were “not a cop”.

Mr. McMullen said that you told James Whitehead to “wait right here” and you told

your daughter to wait in the store. He said that you then went outside. He said that as you

walked toward the door that James Whitehead called you a “Fu--king coon”.

Marlin McMullen said that James Whitehead did not calm down but got louder as he

cursed everyone in the store. Mr. McMullen said that before you left the store that James

Whitehead slammed something down on the counter causing a “loud bang” sound. He

believes that is when you told him that was enough. He also remembers James Whitehead

telling you “I’ll whip your ass”.

Mr. McMullen was at the counter when James Whitehead got all of his parts and left

the store. He said that Ray Hebert Jr. was being nice to James Whitehead and even told him

that he left one part behind. He said that Ray Hebert Jr. had already called 9-1-1 and he

could remember James Whitehead saying at that time that he was 28 years old.

John Rushing:

John Rushing, a customer at O’Reilly’s Auto Parts stated that he was a self employed

carpenter and he was in O’Reilly’s Auto Parts store on 16th Street around 4:45 p.m. on

Monday July 26, 2010 to pick up some brake fluid and transmission fluid.

Mr. Rushing said that while he was in the store he saw his ex-brother-in-law, Randy

Edwards. He started talking to Randy and someone with Randy, believed to be James

Whitehead, needed to use a cell phone. Randy asked Mr. Rushing if James Whitehead could

borrow his cell phone. John Rushing loaned his cell phone to James Whitehead.

Mr. Rushing said that while James Whitehead was on the phone he asked Randy to

look at a bottle of transmission fluid and make sure it was the one he needed to purchase.

Mr. Rushing said that an employee of O’Reilly’s walked towards him and he thought he was

going to wait on him but he waited on a black male, believed to be you as Mr. Rushing later

found out that you were a police officer.

While the O’Reilly’s employee was waiting on you James Whitehead started getting

belligerent with Ray Hebert Jr., Manager of O’Reilly’s. James Whitehead was cursing Ray

Hebert Jr. and calling him names. Mr. Rushing saw Ray Hebert Jr. pick up the telephone

and he heard him tell the person on the other end that he needed an officer at O’Reilly’s. He

even heard Ray Hebert Jr. give a description of James Whitehead. At the same time he

heard James Whitehead calling out to Ray Hebert Jr., “I am 230 pounds” and he said “I’m 28”.

A store employee directed John Rushing to the other end of the counter where he

would help him. Mr. Rushing was by the front door of the store. Mr. Rushing paid for his

purchase and then turned back towards where James Whitehead was now close to you. He

heard James Whitehead tell you “if you are a cop, then you arrest me”. According to Mr.

Rushing you replied to James Whitehead “you called it”. Mr. Rushing said that you then

turned around and walked out of the store. He said that Randy Edwards and James

Whitehead walked out of the store after you left.

Dayja Arnold:

Dayja Arnold, Daughter of Captain Robert Arnold stated that she went to O’Reilly’s with

you to get a battery for her four wheeler. Dayja Arnold was able to provide a precise

description of where her dad parked that day. She said that you parked parallel to 16th

Street and next to a white truck with purple at the bottom. She said they were parked about

thirty feet from the front door of O’Reilly’s. As the two of you walked into the store she

noticed the people working underneath a truck that was parked facing the front of the store.

Dayja Arnold said that they at first looked for a battery but could not find one on their

own so they walked up to the counter so you could ask about a battery. She said that you

were at the register closest to the door. She said there was a white male, believed to be

James Whitehead, that was at the register farthest away from the front door and he kept

getting louder and louder and he was cursing and yelling at the clerk.

Dayja Arnold said that the clerk at O’Reilly’s, believed to be Ray Hebert Jr., was telling

James Whitehead that he could not give him a refund for a part. She heard Ray Hebert Jr.

telling James Whitehead that the part had been installed on a vehicle. Dayja Arnold said

that James Whitehead and Ray Hebert Jr. kept arguing for about three minutes. The clerk

that was waiting on you went and obtained a battery that you wanted. All of this time James

Whitehead was “arguing, cussing, and screaming”. She heard Ray Hebert Jr. say that he

was going to call the police. She said she heard him as he did call the police department

and ask that a police officer be sent to the store. After Ray Hebert Jr. hung up, James

Whitehead continued his arguing and yelling.

Dayja Arnold said that you stepped around her and told James Whitehead that you

were a police officer and he needed to calm down. James Whitehead started yelling and

cursing you. She did not recall everything that he said but she new he was using the

“F-word” and other profanities. Dayja Arnold said that you said out loud that you were going

to get your badge. Dayja Arnold said that you walked out the front door and a few seconds

later James Whitehead started to walk out the door. Ray Hebert Jr. asked James Whitehead

if he wanted his part back as he had left it on the counter. James Whitehead was still

cursing and said “yes”. James Whitehead walked over, picked up his part, and then

walked out of the store.

Your encounter with James Whitehead outside of O’Reilly’s.

After the encounter with James Whitehead inside of O’Reilly’s you stated that you felt

that you needed to go to your vehicle and retrieve your handcuffs and your flashlight. You

told me that the handcuffs were to contain James Whitehead until other officers arrived and

the flashlight was to be used as an impact weapon if James Whitehead physically assaulted

you. You stated that you told your daughter to stay in the store and that you walked out to

your vehicle to get a pair of handcuffs.

You said that as you started to walk back to the store that James Whitehead and

Randy Edwards exited the store. You said that you did not say anything to James Whitehead

due to his being in the process of leaving the store. You said you were just going to leave it

at that. You said that James Whitehead walked directly towards you instead of going to his

vehicle that was to the left of the front door of the store. You said that as he approached

you he began raising his hands in an aggressive manner saying “You gonna arrest me nig--r,

you gonna arrest me coon?” You said that this encounter occurred within a few feet of your

vehicle and that your vehicle was parked out in the parking lot away from the truck that

James Whitehead had arrived in.

You said that you were about fifteen feet from the front door of the store when James

Whitehead approached you. You said that James Whitehead was waving his arms in a

threatening manner and that you felt physically threatened due to what he did in the store and

to his size. You said that James Whitehead came within five inches of you and you believed

he wanted to fight as he continued cursing and he was using racial slurs.

You said that at that point James Whitehead was face to face with you. You said you

were silent but he was yelling and cursing. You indicated that he made some type of

physical contact with you by pushing you in your right shoulder with a chest bump or some

kind of physical contact. You said that he then walked to the right behind his vehicle. You

indicated that you pulled your police department identification out while you were walking.

You said you “verbally and physically showed him” your identification.

You said that James Whitehead then walked to the passenger side of the vehicle as

you followed him. You said that you followed him because he had assaulted you and you

knew that other officers were on the way. You said that you were unsure where he was

going. You did not know if he was going to walk back into the store or if he may be going to

his vehicle to retrieve a weapon.

You said that you were five to ten feet behind him but you had not said anything. You

were just following him. You said that at that time you did not know which vehicle was his.

You said that you saw him reach for the passenger front door so you told him he needed to

stay on the scene and wait for the officers to arrive. You said you thought that he was

getting ready to leave or he was going for some kind of weapon. You said that he then

charged you again and he was face to face with you. You said he told you “I’ll bust you in

the face. I’ll kick your ass”.

You said that once again you felt threatened. You said that after he charged at you

that he went back to his vehicle to the passenger front door. You said that without making

contact with him that you put your hand toward the outside door of the vehicle to give him a

physical indication to not open the door to enter the vehicle because it appeared that he was

trying to leave the scene. You said that at this time he made physical contact with your left

arm and pushed your arm away with his hand.

You said that he got into your face and started yelling racial slurs again and making

physical threats of harm to you. You said he told you that he was “going to kick my ass and

bust me in the face” and he was physically aggressive.

You said that he reached for the door again and you put your hand toward the door.

You said you identified yourself as a police officer verbally again to him. You said that he

jerked the door open and again came at you face to face and chest to chest. You said that

he nudged you in an aggressive manner.

You indicated that you perceived him as a danger as he was becoming more

aggressive. You said he was making more physical contact with you and that he put his

head against yours. You said that he did not head butt you but he intentionally forced his

head against yours. You said he continued to use racial slurs. You said that the continued

contact caused you to perceive him as a threat and you were in fear for your safety. You

said that you pulled your off duty firearm (a Taurus .380) from your right front pocket. You

said that you pointed it in James Whitehead’s direction and advised him not to push you

anymore. You said that the two of you were about a foot apart. You said that you had the

gun up toward his chest area as you told him not to touch you anymore.

You said that when James Whitehead saw the gun he said “What the F--k you gonna

do shoot me? Go ahead, shoot me mother F--ker”. You said that he then reached towards

you with one of his hands and struck your left arm. You said that you had your gun in your

right hand. You said he then began walking towards you but you stepped back as he came

forward. You said that he again made contact with your left arm in a grabbing motion. You

said it appeared that he was getting ready to throw a punch with his right hand.

You said that you took his actions of coming toward you and grabbing you and his

other behaviors as a threat so you fired one round from your weapon. You said that after the

shot was fired that James Whitehead said “he just shot me”. You also said that you

perceived a threat by a male that was with James Whitehead. You said that person had

gone from the driver’s side of the truck and he had circled behind you. You said the other

male had also moved closer so he was also considered a threat.

You said that when James Whitehead got into the passenger seat of the truck you no

longer saw him as a threat so you put your gun back into your pocket. You said that time

“his two buddies approached me”. You said they were talking loudly and said something to

the effect of “you just f--king shot him”.

You said that you then walked toward the front of the store away from the two

subjects. You said you made contact with Ray Hebert Jr. and advised him to call the police

department back and advise them that we needed an ambulance. You said that you then

waited in front of the store for emergency personnel to arrive.

You closed your statement by saying “As a police officer I do make it a routine to carry

a firearm with me when I am off duty for the following reasons: I live where I patrol so I come

into contact with persons I have arrested. I have also read literature and heard fellow officer’s

accounts of being approached or confronted with a situation in which an off duty firearm was

needed. On this date I carried my off duty weapon on me in my right front pocket while I was

out and about today picking up parts for my four wheeler”.

What other witnesses stated they saw OUTSIDE of the O’Reilly’s store.

Ray Hebert Jr.,

Ray Hebert Jr., Manager of O’Reilly’s stated that he saw James Whitehead then

gather his parts from the counter and he saw him walking toward the door to leave. Mr.

Hebert Jr. stated that it has always been his policy to follow irate customers out the door to

insure the safety of his employees and customers.

Mr. Hebert Jr. stated that when he walked out the front door of the store he saw you

and James Whitehead near the passenger side of a truck. He stated the truck was parked in

the second space away from the door towards Interstate 10. Mr. Hebert Jr. said that he

heard James Whitehead yell “you’re not even a cop” and he heard him once again call you

“nig--r”.

Mr. Hebert Jr. stated that he saw you hold up what appeared to be your police

identification in your left hand. He said he could not be sure if it was actually our police

identification. Mr. Hebert Jr. stated that he was about ten feet away from you and James

Whitehead. Mr. Hebert Jr. stated that he was on the sidewalk by the store near the

passenger side of the truck.

Mr. Hebert Jr. stated that the passenger side door of the truck came open and you

were holding your handcuffs in your right hand. Mr. Hebert Jr. stated that he heard you tell

James Whitehead “I am going to have to arrest you”. Mr. Hebert Jr. said he thought that

James Whitehead was still holding his parts in his hands at that time but they may have fallen

into the passenger side of the truck during the struggle. Mr. Hebert Jr. stated that the

incident seemed to escalate more once James Whitehead realized that you were trying to

arrest him.

Mr. Hebert Jr. stated that he saw you trying to grab James Whitehead’s arms while

Whitehead was yelling things such as “you are not a cop”, “ni--er”, and “coon”. Mr. Hebert

Jr. stated that during the struggle you remained calm and you were still trying to stop James

Whitehead from getting into the truck.

Mr. Hebert Jr. stated that James Whitehead continued to struggle by using his larger

size and weight to push you off of him. Mr. Hebert Jr. said that during the struggle he saw

you back up and you were holding a small gun. Mr. Hebert Jr. said that you told James

Whitehead “If you hit me I am going to have to shoot you”. According to Mr. Hebert Jr.,

when you told this to James Whitehead he moved you and said “I want you to put a bullet in

my head, you coon”.

Mr. Hebert Jr. said that both of you were partially behind the passenger door of the

truck and he could not see the gun any longer. He said he heard a loud “pop” and then he

saw an empty shell casing hit the concrete of the parking lot. He said that James Whitehead

stood where he was for a second and then said “that fu--er shot me”. James Whitehead

then lay across the seat of the truck and you backed away from him. You reportedly told Mr.

Hebert Jr. to call the police.

Once back inside the store Mr. Hebert Jr. once again called 9-1-1 to report what

happened. That call was received at the police station at 5:08:08 p.m. and ended at 5:08:49

p.m. After completing the call Mr. Hebert Jr. went back outside the store. He said that you

were standing on the sidewalk and you appeared to be calm. Mr. Hebert Jr. said you asked

him if your daughter was still inside the store. He stated that James Whitehead was still lying

inside the truck but he was not saying anything. He said that other police officers began

showing up on the scene.

Even the second call from Ray Hebert Jr. was placed in a calm manner and not in and

excited and adrenalin charged tone that our dispatchers are accustomed to receiving. A

transcript of that call is as follows:

5:08:08 Start of call

Disp. Melton: 911, where is the emergency?

Ray Hebert: Hey this is Ray at O’Reilly’s. The officer hadn’t made it yet and I guess I had an off

duty officer here and he actually shot the customer, so I’m going to need a meat

wagon with that too please.

Disp. Melton: Okay, somebody shot who?

Ray Hebert: The customer that was causing all the disturbance.

Disp. Melton: Okay, the customer was shot?

Ray Hebert: Yes, I have an officer here, I guess plain clothes and they got into it.

Disp. Melton: Okay and who is the officer, what officer?

Ray Hebert: Gee I don’t know.

Disp. Melton: Ask them the name, I need a name, Ray, I need a name.

Ray Hebert: Okay, let me go check but I need an ambulance too is why I was calling okay?

Ray Hebert: Robert Arnold.

Disp. Melton: The customer was shot by Robert Arnold?

Ray Hebert: Yes.

Disp. Melton: Alright sir, I’ll get the ambulance on the way.

5:08:49 End of Call

Jared Kilbourn

Jared Kilbourn, the commercial Manager of O’Reilly’s said that James Whitehead then

went outside to get into a truck on the passenger side. He said that he saw you standing in

front of James Whitehead. Mr. Kilbourn said that he saw James Whitehead lunge toward you

and then he heard a gun shot. He said that James Whitehead then said “you shot me”. He

said that Whitehead then fell into the truck on the passenger side.

Mr. Kilbourn said there were two other men with James Whitehead and he heard them

say “Why did you shoot, you did not identify yourself?” He said that you stated that you did

identify yourself.

Christopher Lopez,

Christopher Lopez, a Counterman at O’Reilly’s Auto Parts said that James Whitehead

was riding in a cream colored Ford 4-door pickup truck with two other white males. He said

that one male was in the driver’s seat of the truck and the other was in the back seat directly

behind the driver.

Mr. Lopez said that he went outside to check on Ray Hebert Jr. and he saw you

standing near the front passenger door speaking to James Whitehead. He said that you

identified yourself as a police officer by telling James Whitehead “I am a police officer. Stay

put until the unit gets here.” Mr. Lopez said that James Whitehead was attempting to get

into the truck. He said that James Whitehead began bumping you with his body trying to

knock you out of the way so he could get into the truck. He said at one time it appeared as if

James Whitehead tried to “elbow” you in order to get you out of the way. Mr. Lopez said he

was not sure if James Whitehead hit you.

Mr. Lopez said that the other two males got out of the truck. The driver stayed near

the front of the truck but the passenger walked around the truck as if he were trying to sneak

up behind you. He said that you ordered him back to the other side of the vehicle.

Mr. Lopez said that James Whitehead “was eventually able to get the vehicle door

open”. He said that Whitehead got inside of the truck. Mr. Lopez said that you told James

Whitehead that he needed to stay and you were holding your handcuffs. He said that you

and James Whitehead continued to struggle as Whitehead was trying to get inside of the

truck. Mr. Lopez said that the door was open and that James Whitehead was facing you. It

appeared to Mr. Lopez as if you were trying to place handcuffs on James Whitehead but that

you may have missed his arm as you tried.

Christopher Lopez said that James Whitehead continued to resist by trying to use his

body to push you away from him. Mr. Lopez said he thought you then placed your handcuffs

back into your pocket. He said you then pulled a gun and “pointed it kind of low in front of

him”. Mr. Lopez said you told James Whitehead “Don’t try to go no where, stay right here”.

James Whitehead then reportedly told you “Shoot me, shoot me in the head”.

According to Mr. Lopez, the driver of the truck stated “You can’t pull a gun on him, he

is unarmed”. Mr. Lopez said that James Whitehead then started walking toward you with his

chest “bowed out”. He said that you and James Whitehead were about two feet apart when

you yelled “Stop” but that James Whitehead continued towards you. He said you told him to

“Stop” twice more but James Whitehead failed to follow your command. Mr. Lopez heard

the gun go off. Mr. Lopez said it did not appear that the gun had been pointed directly at

James Whitehead but it was at more of a 45 degree angle. James Whitehead then

reportedly yelled, “You shot me”. According to Mr. Lopez, James Whitehead then fell back

into the front seat of the truck. Mr. Lopez believed that you then put your gun in your pocket

and you asked Ray Hebert Jr. to call the paramedics.

Mr. Lopez said that other officers began arriving and that you asked them if an

ambulance was on the way. He said you made a call on your cell phone and he believed that

you called the police department as he heard you say that it was your gun involved in the

shooting. Mr. Lopez said that you then asked if your daughter was okay.

Randy Edwards:

Randy Edwards, who was with James Whitehead at O’Reilly’s stated that after you

went outside that he and James Whitehead walked outside and proceeded to the truck they

came there in. Mr. Edwards said that you were coming from a vehicle that was parked near

their vehicle. Randy Edwards said that you were carrying a dark colored flashlight in one

hand and a pair of handcuffs in the other.

Mr. Edwards said that he and James were standing between the front door of

O’Reilly’s and his truck when you told James to “put these handcuffs on”. He said that

James Whitehead asked you again if you were a police officer and you still did not answer

the question. He said that James Whitehead walked around the back of the truck around to

the right side of the truck then toward the front passenger door. He said that James

Whitehead again asked you if you were a police officer and you pulled out a card that

resembled a credit card and said “Do you see this?” He said that James Whitehead ignored

you and never looked at the card. He said that James Whitehead then said “I don’t have to

listen to you, coon, you are not a police officer”.

Randy Edwards said that he then opened the driver’s door and that James Whitehead

opened the passenger door and started to sit down. Randy Edwards said that the next thing

he knew you were pointing a gun at James Whitehead. He described the gun as a black

semi-automatic. Mr. Edwards said that you were waving the gun around and that you

pointed it in his direction, toward Robert Frankin’s direction, and toward people behind Mr.

Edwards.

Mr. Edwards said that you were angry as you pointed the gun at James Whitehead’s

chest and said “I’m going to kill you”. Randy Edwards said that James started to get out of

his seat. According to Mr. Edwards, when James Whitehead started to get out of the truck

you shot him. According to Mr. Edwards, James Whitehead said “You shot me” and you

replied with “Yes, I did”. He said that James Whitehead then fell back in to the seat.

Randy Edwards said that you then started walking in circles and he believed that you

used your cell phone. Mr. Edwards said that you never identified yourself as a police officer

and that James never threatened you or anyone else. He said that James never put his

hands on you and the worst thing he did was to call you “coon”.

Note: Randy Edwards also completed a Witness Statement form that was provided by Officer Reeves

immediately after the event and while Randy Edwards was still at O’Reilly’s Auto Parts. In that

statement Randy Edwards wrote:

“We left to get in the truck and black male charged him with handcuffs and flashlight. Never

once said he was a police officer. Just held a card up. The black male pulled a gun out and

said I’ll kill you, I couldn’t believe it. I told him you gonna shoot him for yelling & cussin. He

said I sure am. And he did, he said he was gonna kill him.”

Robert Frankin:

Robert Frankin, at O’Reilly’s with James Whitehead, stated that three to five minutes

after James Whitehead and Randy Edwards went into O’Reilly’s they walked out followed by

a black male, believed to be you. Robert Frankin said it appeared that you were “trying to

get some respect” from James Whitehead. He said that he heard you tell James Whitehead

that you were a police officer. He said that James Whitehead had gotten into the truck and

tried to shut the door. He said you showed James Whitehead something that looked like a

credit card. Mr. Frankin said that James Whitehead told you the card did not prove that you

were a police officer.

Robert Frankin stated there was a scuffle between you and James Whitehead and he

saw you pull out a pistol. He said he heard James Whitehead say “Oh, man you shot me”.

He said that you replied “You g--d-mn right I shot you”.

Charles Bosarge:

Charles Bosarge, a customer from Lafayette, LA stated that he and his son, Colton, on

Monday July 26, 2010 were traveling to Orange from Louisiana when they had car trouble.

Another motorist, later identified as Dexter Gibson, stopped and offered to help. Dexter

Gibson towed the Bosarge’s to O’Reilly’s Auto Parts where used his tools to help repair the

Bosarge’s vehicle.

Mr. Bosarge said that they had been working on the vehicle since about nine o’clock

that morning. Charles Bosarge stated that while they were working on his truck he heard

someone say “Are you going to hit me with that flashlight?” He looked up and saw a white

male who was about 6’4” tall and who weighed about 250 pounds talking to a black male. It

was later determined that the white male was James Whitehead and you were the black

male.

Charles Bosarge said that he saw you were walking from the roadway side of the

parking lot. According to Mr. Bosarge, James Whitehead had walked from the front door of

O’Reilly’s to the driver’s side of a pick up truck that was two spaces over from his truck. He

said that you stopped at the rear door of the truck on the driver’s side. It was at this time that

he heard James Whitehead repeating “are you going to hit me with that flashlight?”

Mr. Bosarge said that James Whitehead then turned, walked to the front of the truck

and then around to the passenger side of the truck. According to Mr. Bosarge, James

Whitehead then opened the right front door of the truck. Mr. Bosarge said that you then

walked around behind the truck and closed the door before he, James Whitehead, could

enter the truck. He said that James Whitehead then opened the door of the truck and sat

down in the right front passenger seat. Mr. Bosarge said that you then pulled James

Whitehead to his feet and told him that he was not going anywhere.

Charles Bosarge said that James Whitehead then sat down for a second time and you

again pulled him to his feet and said that he was not going anywhere. He said that James

Whitehead asked you if you were going to hit him with the flashlight. Mr. Bosarge said that

he saw the flashlight in your right front pocket of your trousers. Mr. Bosarge said you again

told James Whitehead that he was not going anywhere. At this time James Whitehead

“bowed up with his chest out and his hands back and towards the ground”.

Mr. Bosarge said that you backed up about five feet and pulled out either a .380 or

9mm caliber automatic pistol and pointed it at James Whitehead. He said that you told

James Whitehead “I will shoot you”. Mr. Bosarge said that he shouted to “a big guy with a

burr hair cut, wearing an O’Reilly’s shirt” to call 9-1-1.

Charles Bosarge said that you then put the gun back into your pocket and you got your

wallet out of your pocket. Mr. Bosarge said that you pulled a “Chase Bank” card out of your

wallet, put it back in, and then pulled another card from your wallet. He said that you

approached James Whitehead and put the card in his face so that he could read it. He said

there was a pause and then James Whitehead said “What is that?” He said that you then

backed up, put your wallet up, and once again pulled your gun out.

According to Mr. Bosarge, James Whitehead once again “bowed up” and stated “are

you going to shoot me?” He said that James Whitehead repeated this several times.

According to Mr. Bosarge the next thing James Whitehead said was “shoot me monkey”. Mr.

Bosarge said that he then heard a gunshot and saw James Whitehead slump over the seat of

the truck.

Mr. Bosarge said that he walked up to you after other emergency personnel arrived

and asked you if you were a police officer and if you had a badge that you could have shown

to James Whitehead. He said that he asked you what your identification was and you

reportedly told him that “it was as good as a badge”.

Colton Bosarge:

Colton Bosarge, son of Charles Bosarge stated that he and his father, Charles

Bosarge, on Monday July 26, 2010 were traveling to Orange from Louisiana when they had

car trouble. Another motorist, later identified as Dexter Gibson, stopped and offered to help.

Dexter Gibson towed the Bosarge’s to O’Reilly’s Auto Parts where he used his tools to help

repair the Bosarge’s vehicle.

Colton Bosarge stated that while he, his dad, and Dexter Gibson were working on their

truck he saw a black male, believed to be you, leave O’Reilly’s Auto Parts and walk to a

green SUV in the parking lot. Colton Bosarge said that he saw you put a flashlight in your

back pocket, put something in another pocket, and that you had a pair of handcuffs. He said

that you then walked back toward the store.

Colton Bosarge described a white male, believed to be James Whitehead, as walking

from the store and the two of you met just behind James Whitehead’s truck. He said that

James Whitehead had some kind of auto parts in his hands. Colton Bosarge said that you

said something to James Whitehead but he could not hear what you said. James Whitehead

responded by yelling something to the effect of “What, you going to hit me with your

flashlight?” According to Colton Bosarge you responded by saying like “No, I’ll kill you”.

He said the two of you were chest to chest, bumping chest and pushing on each other.

Colton Bosarge said that James Whitehead went around the front of his truck toward

the passenger side while you went around the back of the truck to the passenger side. He

said the two of you continued yelling at each other and pushing each other. James

Whitehead reportedly opened the door and, according to Colton Bosarge, you slammed the

door shut. Colton Bosarge said that you had the handcuffs in your hand but that you put

them away.

According to Colton Bosarge, James Whitehead told you “I’ll whip your fu--ing ass”.

Colton Bosarge said that you kept coming up to James Whitehead with your gun out and

touching him with it. Colton Bosarge indicated there was a “Mexican guy” on the driver’s

side of the truck who yelled “What you going to do, shoot him? For hollering?” Colton

Bosarge said that neither you nor James Whitehead would back down. He said there was an

O’Reilly’s employee outside the store and that his dad told the employee to call 9-1-1. He

said the employee did not do it but said “We will”.

Colton Bosarge said that James Whitehead kept yelling “You ain’t got no fu--ing

badge, you got no badge.” He said that you pulled out a card, looked at it, put it back, then

pulled out another card and then pushed it toward James Whitehead’s face. James

Whitehead responded by saying “F--k you, you monkey mother fu-- r.” Colton Bosarge said

that at that time the two of you were separated somewhat and that James Whitehead opened

the door of the truck and sat in the truck. He said that you went toward James Whitehead

and that you yelled “F--k you”. He said that the two of you were shouting at each other as if

you two had a grudge against each other.

According to Colton Bosarge, James Whitehead stood up and the two of you once

again went chest to chest and were “throwing words at each other”. Colton Bosarge said

that you kept pointing your gun at James Whitehead. He said of the gun that you were

“putting it down and putting it up” in the direction of James Whitehead. Colton Bosarge said

that the “bumping chests and pushing” continued and that you told James Whitehead “I’ll shoot

you in the fu--ing head”. He said that James Whitehead became more hostile and then got

in your face and said “Shoot me in my fu--ing head. Shoot me in my fu--ing head. Kill me.”

Colton Bosarge said that you then told James Whitehead “You’re under arrest”.

James Whitehead responded by saying “F--k you, I’m leaving”. James Whitehead then

reportedly sat down in the truck. Colton Bosarge said that you walked toward James

Whitehead and said “You ain’t going anywhere”. Colton Bosarge said that you said

something to James Whitehead and that he responded by saying “Then touch me again”.

Colton Bosarge said that you then touched James Whitehead on the shoulder “trying to

provoke him or whatever”.

Colton Bosarge said that James Whitehead stood up there were no words exchanged

and that you then shot James Whitehead. Colton Bosarge said that you were “taunting him,

provoking him”. He said that James Whitehead said “He shot me. I’m done”. James

Whitehead then reportedly took a deep breath and sat in the truck. Colton Bosarge said that

you called someone and he believed it to be your wife as you told her to come get your child.

He said that you made one more call and then a police car arrived.

Dexter Gibson:

Dexter Gibson, at O’Reilly’s helping the Bosarge’s stated that he saw two people who

were broken down at the store at the end of Simmons Drive and Interstate 10. He was

asked for his assistance by Charles and Colton Bosarge in repairing their vehicle. He used

his vehicle to tow the disabled vehicle to O’Reilly’s Auto Parts on 16th Street.

Dexter Gibson stated that they spent all day there working on the Bosarge’s vehicle.

He said that later in the day, he was under the vehicle working when he heard an argument

going on outside of the store. He said that at first he thought it was someone playing

around. He said he got out from under the truck and saw a white male, believed to be

James Whitehead, and a black male, believed to be you, on the passenger side of a gold and

tan truck that was parked two spaces over from where he was.

Mr. Gibson said that James Whitehead opened the passenger door of the truck and

that you shut the door. According to Mr. Gibson you told James Whitehead that the police

were on the way and that he could not leave. He said that you reached into your wallet and

pulled out a “Chase card” and then pulled out your Identification card to show that you were a

police officer. Mr. Gibson said that while you were looking for your identification card James

Whitehead stated “You’re not a cop, you monkey mother f--ker”.

Dexter Gibson said that James Whitehead knocked the card out of your hand and then

attempted to get back into the truck. Mr. Gibson said that you put your wallet up and that

you had a pair of black and silver handcuffs in your left hand. It appeared to Mr. Gibson as if

you were trying to handcuff James Whitehead but he kept pulling away from you.

According to Mr. Gibson you then stepped back and James Whitehead said “What are you

going to do, hit me with that flashlight?”

Mr. Gibson said that you then pulled a small gun that looked to him to be a .380 caliber

automatic from your right front pocket and you pointed it at James Whitehead. Dexter

Gibson said that you told James Whitehead “I’ll shoot you”. Mr. Gibson said that James

Whitehead started pushing your arms as you were pointing the gun at him. During this time

James Whitehead reportedly stated “You won’t shoot me, go ahead and fu--king shoot me in

the head”. Mr. Gibson said that you told James Whitehead that you would shoot him.

Dexter Gibson said that when James Whitehead “went at the officer again the officer

shot once and hit the guy on the right side of his chest.” Mr. Gibson said that James

Whitehead then fell back into the truck and stated “he shot me” and then lay back in the

truck. Mr. Gibson said that you then put your gun back into your pocket and waved another

officer over who was arriving at the store.

Mr. Gibson said that he heard you tell James Whitehead that you were a police officer

at least three or four times. He described James Whitehead’s actions as “hostile” towards

you. He also described you as “in control and attempting to control the situation”.

Marlin McMullen:

Marlin McMullen, a customer in O’Reilly’s said that after James Whitehead left the

store he looked outside and he saw James Whitehead trying to push his way past you. As

he was doing that he was telling you “that’s not a real badge”. He could not understand all

that was being said. He did not see the actual shooting but he heard the shot. He said at

that time he looked outside and saw James Whitehead seated in the passenger seat of a pick

up truck that was parked in front of the store. Mr. McMullen thought he remembered that

when he looked outside before the shooting that there were two other people in the truck.

John Rushing:

John Rushing, a customer of O’Reilly’s, stated that he left the store and he saw Randy

Edward’s truck in the parking lot by the front door. Mr. Rushing was walking towards his

own truck and was near Randy Edward’s truck when he saw you walking towards Randy

Edward’s truck with a pair of handcuffs in your hand. James Whitehead was at the back of

Randy Edward’s truck and he started walking towards Randy’s truck.

Mr. Rushing said that James Whitehead met you at the back of Randy’s truck and you

told James Whitehead that he was under arrest. Mr. Rushing heard James Whitehead tell

you “you never showed me any identification”. Mr. Rushing then saw you reach in to your

back pocket and pull out your wallet and hold it up. He said he saw some documents fall out

of your wallet and then James Whitehead got into your face.

Mr. Rushing said that you then pulled a small pistol and hold it up to James Whitehead

and tell him that he was under arrest. James Whitehead then walked towards the

passenger side of the truck. He got in and tried to shut the door. Mr. Rushing did not think

you had put your gun away but you tried to handcuff James Whitehead and you tried to keep

him from shutting the door. He said that James Whitehead tried to shut the door but that you

held onto the door to keep it from closing.

James Whitehead, according to Mr. Rushing, “jumped out of the truck very quickly”

and then moved towards you very quickly. He said he then saw you shoot James Whitehead

in the left side of the stomach.

Mr. Rushing said that after you shot James Whitehead that he saw you on your cell

phone. He said that after you got off the phone you asked about an ambulance. James

Whitehead was now sitting in the truck. He said that James Whitehead was about two feet

from the door when he was shot.

Dayja Arnold:

Dayja Arnold, your daughter, stated that after you and James Whitehead were both

outside Dayja could not see either of you but she could hear that the two of you were still

arguing. She could hear James Whitehead’s voice as he was very loud but she could barely

hear your voice. Dayja Arnold said that Ray Hebert Jr. walked outside and the clerk that

was waiting on you earlier told her to get behind the counter. She said that two other people

and some customers were standing inside the front door looking out. Dayja Arnold said that

about a minute passed and she heard a gun shot. She said she heard people outside saying

“He didn’t deserve to get shot”. She said she did not know who had been shot but she heard

your voice and she knew that you were okay.

Dayja Arnold said that the clerk who had waited on you made her walk to the back of

the store. She said she never looked outside. She said a few minutes later a man with an

O’Reilly’s uniform on came and told her that her mother was there to pick her up. She said

when she got outside she saw her dad as he pointed to the car where her mom was parked.

She said she got in the car with her mom and they went home.

Follow up Interview with Captain Robert Arnold – Nov. 9, 2010

This interview was conducted by Chief Sam Kittrell and Captain Wade Robinson.

On November 9, 2010 Captain Wade Robinson and I met with you and I asked you some

questions relating to this incident. I asked you why you did not call the dispatcher when you

went outside to alert them as to what you were dealing with. You told us that you did not

believe there would have been any difference in the response time of the officers even if you

had called. I asked you if you truly believed that if you called as a Captain or Officer that it

would not create a quicker response knowing that you were needing assistance and of your

assessment of James Whitehead. You said you did not think it would have made any

difference.

I asked you if you had tried to get James Whitehead’s two companions to intervene to

calm him down. You told me that you did not as you did not believe they would be on your

side and it would agitate Whitehead even more.

You had made a statement that James Whitehead was going to try to take your life. I

asked you how he was going to do that and you responded “He was going to take my gun and

shoot me with it”. I asked you if James Whitehead had ever struck you with his hands, fists,

or anything else. You said that he had not but he had bumped you “chest to chest” and he

had “head bumped” you.

I asked you if you thought a Taser® would have been effective in subduing James

Whitehead and you told me that you did not. You told me that because he was so “amped

up” that the jolt from the taser or even a small amount of the same drug that he was on would

have killed him. I asked you how you knew that to be a fact and you told me that you had

“read up on it”. You cited a recent case in the Dallas area where a suspect died after being

tased and the ruling was that he died from the drug and not the tasing.

I asked you if you had said earlier that Officers Reeves and Griffin would have been

hurt if they had encountered James Whitehead. You stated that you said that because of

their (the officer’s) “demeanor”. You said that they would not have been at the proper “alert

stage” and they “would have ended up being in a training video”.

Initial Police, Fire, & Ambulance Response:

First Officers on the Scene:

Officer M. J. Reeves was the first on-duty officer to arrive at O’Reilly’s at 5:08:19 p.m.

This was approximately four minutes from when the call was dispatched. Upon arrival

Officer Reeves learned upon his arrival that you were the off-duty police officer who had shot

the person creating the disturbance. Officer Reeves stated that he was directed to James

Whitehead (the person who had been creating the disturbance) who was in a 2004 Ford

Truck. According to Officer Reeves, Whitehead appeared to be unconscious and he was

bleeding from what appeared to be a gunshot wound to his chest. In his report Officer

Reeves stated that upon his arrival you were inside of the O’Reilly’s Auto Parts store. Officer

K. Griffin arrived at 5:10:49

Fire and EMS Response:

The Orange fire department and Acadian Ambulance Service medical responders

arrived at 5:15:55 p.m. and immediately began tending to James Whitehead. James

Whitehead was transported by Acadian Ambulance to St. Elizabeth Hospital in Beaumont,

Texas where at 6:04 p.m. he was pronounced to be dead.

My involvement at scene on July 26, 2010 (Chief Sam Kittrell):

Major Lane Martin called my cell phone and told me of this incident. I immediately left

my residence and drove the approximately 2.5 miles to O’Reilly’s Auto Parts. I was on the

scene before the ambulance left with James Whitehead but I never saw or spoke to him. As I

looked into the ambulance he was surrounded by medical personnel and it appeared they

were making final preparations to begin the actual transport to the hospital.

I did meet with and speak with you and Detective Sergeant Robert Estrello. The two

of you were seated in Det. Sgt. Estrello’s detective unit. At the time of this incident you were

not on duty. You told me that you and your daughter had gone to O’Reilly’s Auto Parts to

purchase a four wheeler battery.

Before speaking to you I waited as you conferred on the phone with your legal

representatives on your cell phone. After you finished your phone call I inquired as to the

location of your daughter so we could insure that she was taken care of. You told me that

your wife had arrived earlier and she had taken your daughter home. I advised you that we

would need to obtain a statement from you pursuant to the investigation. I asked you if you

were okay with someone from the District Attorney’s office taking your statement and you told

me that you had no problems with that. District Attorney’s Investigator Rebecca Joiner was

on the scene and she agreed to take your statement.

There were numerous people that were believed to be witnesses or who may

otherwise have information relevant to the situation. The witnesses consisted of employees

of O’Reilly’s Auto Parts, customers of O’Reilly’s Auto Parts, and at least two people who were

at O’Reilly’s Auto Parts with James Whitehead. Most of the witnesses were transported to or

traveled to the Orange police station or other law enforcement facilities for the purpose of

obtaining statements.

In talking to Major Lane Martin, I asked him to initiate a call out of the Homicide

Investigation Team (H.I.T.) of Orange County. That activation was done and within minutes,

investigators from all law enforcement agencies in Orange County were arriving on the scene

to assist in the investigation. The H.I.T. team consists of investigators and Crime Scene

Technicians from all of the full time law enforcement agencies in Orange County. The

investigators from this team (also consisting of all investigators and Crime Scene Technicians

of the Orange Police Department) conducted the on scene investigation and analysis and

they obtained statements from all of the persons identified as having knowledge or

information relating to the incident. You did meet with District Attorney Investigator Rebecca

Joiner who took your statement relating to this incident. You also met with Texas Ranger

Ken Parks who was designated as the lead investigator in the case.

Shortly after the activation of the Homicide Investigative Team I asked that the Texas

Rangers be contacted to see if they would assign a Ranger to lead this investigation. While

I had confidence in our ability, or in any other local agencies ability to investigate this incident

I thought it would be best to have that extra level of detachment to avoid any appearance of

impropriety or cover-up on the part of any local investigators. I was advised that Texas

Ranger Ken Parks would be responding from Hardin County to the scene. Later that

evening I met personally with Ranger Parks in my office and offered the full cooperation and

resources of the Orange police department to assist in the investigation

While I was at O’Reilly’s Auto Parts I saw your father in the area on the south side of

the parking lot just outside of the “Police Line” of yellow barricade tape separating public

access from restricted access to the larger crime scene perimeter. I walked over to him

and spoke to him as a courtesy and to explain briefly the process of the investigation. He

assured me that he was aware of the process as he had been through two similar

investigations during his career as a police officer. He also added “If he shot him with the

loads I gave him I can guarantee you that guy is dead.” I did not comment on that statement.

At that time I knew that James Whitehead had already been pronounced to be dead. At that

time I had not revealed that to anyone other than the lead investigators in the case.

Over the course of this investigation I have been provided copies of and I have

reviewed the reports written by officers of participating agencies, autopsy and laboratory

reports, and statements taken from the witnesses that were identified as having information

relating to this event. I have also reviewed audio and video recordings related to the

investigation and reviewed photographs taken over the course of the investigation.

In reviewing the witness statements, I saw some elements of each that were

consistent with each other, some elements that were slightly different, and some that were

either inconsistent with or contradicted elements of other statements. In my 37 years of law

enforcement experience it has been my experience that witnesses to traumatic events

sometimes recall things with slight differences. Some recollections are also skewed by the

relationship of the person giving the statement to one or more parties to the event. Some

people just have difficulty recalling the events exactly has they happened. Normally the

more witnesses that you have the easier it is to reconstruct the events as they unfolded and

the more “non-biased” witnesses that are available contribute to helping in the recreation of

the actual events. It is not often that we have thirteen witnesses to an event such as this.

It would not be unexpected to see statements of those with a close relationship to any

of the parties involved in the event to have elements of their statements that appeared

somewhat more favorable to the person they were close to. There can also be some who

have a bias in favor of or against a party involved in an event. In my review of the

statements and other information I tried to look for those elements that were relatively

consistent so as to not form a conclusion based on a biased or mistaken recollection.

In addition to the witness statements the various elements of the forensic investigation

provided valuable information in the review of this case. Audio recordings of phone calls to

the police department were also reviewed. Some relevant times of events were also

confirmed utilizing the time stamps on the 9-1-1 or radio systems of the police department.

Areas of Consensus by Witnesses and/or Documentable Facts:

1. On Monday July 26, 2010 around 5:00 p.m. James Whitehead went into O’Reilly’s

Auto Parts with a used starter and an EGR valve that he had purchased from

O’Reilly’s the day before. Manager Ray Hebert Jr. had another employee, Chad

Dorrell, use O’Reilly’s equipment to diagnose the starter to see if it was defective.

2. Upon finding out that the starter was defective James Whitehead indicated that he

wished to purchase a new starter. James Whitehead indicated that he wanted to

return the EGR valve that he had purchased the day before and apply that credit

toward the purchase of the new starter.

3. From the time James Whitehead entered the store until after the diagnosis of the

starter, James Whitehead was calm and no one reported anything unusual about his

behavior. His behavior switched from docile to loud and aggressive when he found

out that he would not receive a credit or refund for the EGR valve that he purchased

the day before.

4. After learning that he would not receive a credit or refund for the EGR valve until the

time he was shot, James Whitehead used loud, indecent, offensive, and racially

derogatory language. His behavior at the very least constituted a breach of the

peace (Disorderly Conduct) and it progressed to assaults, either by threats or by

physical contact. There was a consensus in all statements to this fact and the

statements are supported by the police department’s 9-1-1 recording system. When

O’Reilly’s Auto Parts manager Ray Hebert Jr. called the police department the first

time a person believed to be James Whitehead can be heard in the background using

loud and indecent language.

5. Witnesses have confirmed that two individuals were with James Whitehead at

O’Reilly’s Auto Parts. Randy Edwards and Robert Frankin traveled to the parts store

with James Whitehead. They traveled to the parts store in a 2004 Ford Lariat pick-up

truck. The truck is a four door model. Randy Edwards and James Whitehead were

the only ones of the three to go inside of O’Reilly’s Auto Parts. Robert Frankin

remained in the back seat of the truck while the other two were in the store. The truck

was parked facing the store just directly in front of, and slightly to the right of the front

door of the store.

6. You and your 14 year old daughter, Dayja, were also at O’Reilly’s Auto Parts store at

the same time as James Whitehead. You and your daughter arrived in your Green

Chevrolet Tahoe. You parked parallel to 16th Street between the store and 16th St.

7. O’Reilly’s employees who were on duty and were witnesses to some or all of the

events were Ray Hebert Jr., Jared Kilbourn, Christopher Lopez, and Glen Dorrell.

8. Customers in the store when the disturbance started were Marlin McMullen and John

Rushing.

9. Outside, and working on a disabled vehicle, were Charles Bosarge, Colton Bosarge,

and Dexter Gibson.

10. During Ray Hebert Jr.’s initial phone call to the police department, the dispatcher

asked Ray Hebert Jr. for a description of the person creating the disturbance. As Ray

Hebert Jr. provided a description, a person believed to be James Whitehead can be

overheard in the background saying“Two-hundred and thirty pounds. This is bulls--t

man, I just bought this man“.

11. At 5:04:17 Dispatcher Rachel Dobson begins a radio broadcast by calling out to units

415 (Officer C. Davis) and 419 (Officer K. Griffin ). Officer C. Davis responded with

“Received – 11th and Sholars”. That was acknowledged by Dispatcher Dobson.

Officer K. Griffin responded with “419 from Camelia and 37th”. Dispatcher Dobson

responded with “that’s clear”. This is in adherence to our departmental policy of the

units acknowledging with their location so in the events another unit is closer there

may be and adjustment which unit is assigned the call.

12. After both units acknowledge her attempt to contact them and Dispatcher Dobson

then says “If you can be enroute to “O’Reilly’s, 2947 16th disturbance inside O’Reilly’s

2947 16th.”

13. About the same time the call at O’Reilly’s goes out there is also a report of shots

having been fired in the area of 11th and Sholars. There was some cross traffic with

more than one unit attempting to talk on the radio at one time. The closest unit that

was assigned to the O’Reilly’s disturbance call (Officer Davis) was diverted to the 11th

and Sholars call of “shots fired”. A “shots fired” call would normally take precedence

over a call of a disturbance with an irate customer unless there had been some

extenuating circumstances relating to the irate customer call. This left Officer Griffin

as the only officer enroute to O’Reilly’s and she was coming from across town in the

Roselawn area.

14. At this time Dispatcher Melton came back on the radio at 5:05:48 and said that the

customer at O’Reilly’s was very irate and she could hear him screaming at the person

who was waiting on him at the desk.

15. Dispatcher Dobson then contacted Officer Matt Reeves and advised him that when he

finished fueling that he should be enroute to O’Reilly’s from our service center on Polk

Street near 10th. Officer Reeves advised at that time that he would be enroute from

10th and Burton Streets. Officer Reeves checked out at O’Reilly’s Auto Parts at

5:08:19. Officer Griffin arrived at O’Reilly’s at 5:10:49.

16. Your statement indicated, and statements from others supported that you confronted

James Whitehead at some point after the initial call to 9-1-1. You confronted James

Whitehead in the auto parts store and asked him to refrain from using the language

that he was using. This was a consensus of everyone located who was in the parts

store and who was close enough to hear the exchange. All statements support that

you were courteous and calm during that initial contact with James Whitehead.

17. When you confronted James Whitehead in the store he used derogatory terms in

addressing you. Witnesses, including your own statement, supported the fact that

James Whitehead addressed you or referred to you using racially derogatory names

such as “Coon”, “Monkey”, and “nig--r”.

18. At some point after Ray Hebert Jr.’s first call to 9-1-1, and after your initial

confrontation with James Whitehead, you walked outside of the parts store to your

personal vehicle parked in the parking lot between the store and 16th Street.

According to your statement and other statements, you retrieved at least two items of

a police equipment nature from your Chevrolet Tahoe. According to your statement

and the statements of others you retrieved a pair of handcuffs and a black flashlight.

19. While specific details of what transpired after you retrieved the items from your vehicle

vary from witness to witness there was a consensus, supported by your own

statement, that you encountered James Whitehead again outside of the store and in

the course of a verbal exchange with some physical contact you shot James

Whitehead.

20. James Whitehead was transported by Acadian Ambulance Service to St. Elizabeth’s

Hospital in Beaumont, Texas where at 6:04 p.m. he was pronounced to be dead.

21. An Autopsy was conducted on Tuesday July 27, 2010 by Dr. Tommy J. Brown,

Forensic Pathologist at the Jefferson County Morgue. Dr. Brown listed the cause of

death as “Gunshot wound of right chest”.

22. The toxicology report on James Whitehead indicated that he had four (4) positive

findings in his blood: caffeine, Amphetamine, Delta-9THC (marijuana), and ibuprofen.

The toxicology report showed Whitehead’s blood to have 320 ng/ml amphetamines.

The Amphetamine is a schedule II phenethylamine CNS-stimulant. It is used in

treatment of narcolepsy, obesity and in the treatment of hyperactivity in children. The

caffeine and ibuprofen are over the counter products and are within normal levels to

ingest.

Note: At the time of his death James Whitehead was in possession of Amphetamine

that had been prescribed to him. He had a prescription bottle marked as

Amphetamine Salt CMB 30 MG and containing 65 pills. The prescription was filled on

07-22-10 containing 90 pills when filled.

23. The weapon used to shoot James Whitehead was a Taurus Model PT 738 .380 Semi

auto pistol. Serial number: 03049A. You turned this weapon over to investigating

officers and stated this was your weapon.

24. There were six rounds of Winchester .380 ammunition with the weapon.

25. There was one spent .380 shell casing recovered at O’Reilly’s Auto Parts.

26. At the Autopsy there was one bullet recovered from the body of James Whitehead by

Dr. Tommy Brown.

27. Statements were taken from the persons listed below on July 26, 2010.

Statement – Interview of: Statement taken by: Agency

1. Ray Hebert Jr. Det. Keith Reneau Pinehurst PD

2. Jared Kilbourn Det. Gary Hinton Orange SO

3. Christopher Lopez Chief Fred Hanauer Pinehurst PD

4. Glen Dorrell Det. Joey Jacobs Orange SO

5. Randy Edwards Det. Sgt. Danny Hodges Orange PD

6. Robert Franklin Det. Sgt. Jason Laughlin Orange PD

7. Charles Bosarge Det. Sgt. Robert Estrello Orange PD

8. Colton Bosarge Det. Sgt. G.D. Keaton Orange PD

9. Dexter Gibson Det. Sgt. Robert Estrello Orange PD

10. Marlin McMullen Det. Sgt. L.B. Cupit Vidor PD

11. John Rushing Det. Jimmy LeBouf Orange SO

12. Dayja Arnold Det. Lauren Kemp Orange SO

13. Capt. Robert Arnold D.A. Inv. Rebecca Joiner DA’s Office

14. Capt. Robert Arnold Major L. Martin & Capt. S. Robinson Orange PD

15. Capt. Robert Arnold Chief S. Kittrell & Capt. W. Robinson Orange PD

There were no additional calls for assistance to update responding units:

When Captain Robinson and I interviewed you I asked you why you did not call the

police department to let them know how volatile the subject you were dealing with was so that

other police units could coordinate their response to provide a quick and effective response.

You told us that it would not have made a difference in the response time even if you had

called. You stated that the dispatcher had to know how volatile the subject was based on

what they could hear when the 9-1-1 call was made by Ray Hebert Jr.

As a veteran officer I asked you if you really believed if you called and said that you

were Captain Arnold and I have a very volatile suspect on the scene that it would not have

caused a quicker response. You insisted that it would not have. In my 37 years of

experience I can’t think of a time when the response was not elevated to the highest level in

response to an officer needing assistance. In listening to the 9-1-1 call there was nothing

that indicated an imminent danger to anyone. It was clear that there was an irate customer

but we deal with irate people on a daily basis who seldom pose a physical risk to anyone.

The way this call came in was not in a manner that signaled imminent danger. As a police

officer you should have known that from listening to Ray Hebert Jr.’s calm demeanor as he

talked to the dispatcher.

No effort at alternative Intervention:

You stated that you never asked the two people who were at O’Reilly’s with James

Edwards to assist by helping you to calm him down. You said that it would not have been

effective as they would not have helped you and even if they had that James Whitehead

would have turned on them. That is not even rational for you to have that belief. We

routinely enlist the aid of companions of combative individuals to help with an intervention in

order to prevent things from escalating to the level that things did with James Whitehead that

day. For you to make the assumptions that you did indicate that you had predetermined that

no one could deal with James Whitehead. You had an option that you did not even try. At

the very least all that could have happened would have been that the friends turned you

down. It would not have placed you or anyone else in any greater jeopardy and it possibly

could have prevented you from having to resort to the use of deadly force that day.

Article 6.06 of the Texas Code of Criminal Procedure also allows for you to enlist the

aid of any citizens of this county to help you in the event you needed assistance in arresting

James Whitehead. That article reads as follows:

Art. 6.06. PEACE OFFICER TO PREVENT INJURY. Whenever, in the presence of a peace officer,

or within his view, one person is about to commit an offense against the person or property of another,

including the person or property of his spouse, or injure himself, it is his duty to prevent it; and, for this

purpose the peace officer may summon any number of the citizens of his county to his aid. The peace

officer must use the amount of force necessary to prevent the commission of the offense, and no

greater.

No consideration of other options:

Other than slight variations in terminology or in specific words spoken most witnesses

have similar versions of what transpired inside the store when James Whitehead had his

initial confrontation with store manager Ray Hebert Jr.

You indicated in your statements that it was during the initial contact with James

Whitehead that you realized that he was under the influence of drugs and he was so volatile

that there was not going to be an effective way of dealing with him. I asked you specifically

when you realized that James Whitehead was so “bad” and you said that it was while you

were in the store talking to him. Your belief seemed to be that he was so high on drugs that

you needed to leave the store to get your flashlight and your handcuffs. You told me if you

had to “get physical” with him that you wanted to have the flashlight as an impact weapon

and your handcuffs to contain him until other units arrived.

Even though James Whitehead did “get physical” with you there was never a time that

you utilized your flashlight as an impact weapon. You have made numerous arrest of

resistive and combative subjects in the past where you have used authorized and improvised

impact weapons but at no time did you choose to use your flashlight, that is also constructed

to serve in that capacity, as an impact weapon on James Whitehead. You told me that

James Whitehead was beyond the point where an impact weapon would have been effective.

When questioned again about when you realized he was beyond that point you indicated that

it was at a point before you secured the impact weapon.

I recognize that in a situation where deadly force is the only viable option that no one

would be expected to use an impact weapon prior to using deadly force. In this case I have

had a difficult time understanding why you chose to get your flashlight when you have

repeatedly told me that even before you got it you realized that James Whitehead was so

“amped up” that neither a flashlight, Taser®, or even the other two officers could have dealt

with him.

In your statements you recalled the strength of Link Roberts when you and another

officer attempted to arrest him. You stated that the drugs gave him “super human” strength

and he was able to lift the two of you off the ground. In that case you picked up a section of

pipe that you found lying on the ground and used it to try to strike Link Roberts. I am not sure

if you ever struck Link Roberts but in the swinging of the pipe you broke the leg of the officer

assisting you in that arrest. In that arrest Link Roberts was subdued after the O.C. Spray

was used on him.

The Mental and Physical State of James Whitehead:

You indicated that James Whitehead was so “amped up” on drugs that he was in

danger of dying if he were to have even a small addition to the drugs that he had in his

system or if he would have received a jolt from being “tased”. The toxicology report did not

return showing drug levels of that concentration in his system and all witnesses, including

you, indicated that James Whitehead was calm until he was told he could not get a refund on

the car part and then he became angry. Had he received a refund on the car part it seems

very likely that he would have left the store without any confrontations with anyone.

It also astounded me when you made the statement that had James Whitehead been

tased that he would have died just as the individual died that was tased by Officer DeVault.

The individual that was tased by Officer DeVault had a lethal dose of cocaine in his system

and his death was ruled an overdose of cocaine. James Whitehead did not have a lethal

dose of any drug in his system. His death was ruled to be a result of his being shot.

I asked you why if you felt that James Whitehead was so volatile and so dangerous

even when you first encountered him why you would leave your daughter and the other

employees and customers in the store just to get a pair of and handcuffs and a flashlight.

You had your handgun in your possession and with that you had the one thing that would

have provided the ultimate level of protection were it to be needed. You removed yourself

and that weapon from the store leaving your daughter and others at the mercy of someone

who you deemed to be out of control and extremely dangerous.

You reiterated that you wanted your handcuffs to contain him in the event he “got

physical”. You had earlier cited your fear of him being in proximity to a “weapon” in the form

of a screwdriver or other tool. Before you left the others in harms way you should have

realized that the same store that had “weapons” such as screwdrivers or other tools also had

automotive wire, tie wraps, and even other people who could help you contain and restrain

James Whitehead should you need to restrain or contain him in some way.

James Kilbourn , Glenn Dorrell, and your daughter stated that you left the store to “get

your badge”. You never indicated that you were leaving to get your badge. Others said that

you told James Whitehead to wait where he was. There was never any indication that as

you told us, that your intentions were to remove him from the store to get him away from any

potential weapons.

Physical Response of James Whitehead:

From your first encounter with James Whitehead in the store through the last

encounter with him, you mention his larger physical size and weight and you mentioned that

his fist were balled up as if he were going to strike you with his fists. But at no time did he

strike you. He was aware early in the confrontation that you were a police officer and that

you were armed. You expressed fear that he would strike you and overpower you but he

never did strike you or use his size advantage to overtake you, disarm you, retrieve your

weapon, and harm you. You said the two of you on more than one occasion went “chest to

chest” and ‘head to head” but he never engaged you in the type of resistance or assault that

we have known as police officers. I can’t say what happened that last time when you felt

as though he was attempting to take your weapon but you described to me that James

Whitehead tried to kill you. I asked you how he tried to kill you and you told me that he was

going to take your gun and shoot you with it. I won’t deny that your belief or perception was

that he was going to do that but he never told you he was going to do that and at no time

previously did he make attempts when you two were “chest to chest” to do that. At that

moment that you used deadly force James Whitehead may very well have been trying to take

your weapon from you. Prior to that moment he had not shown any behavior that was

indicative of that. You repeatedly placed yourself in such close proximity that you increased

the risks of him actually being able to take your weapon, harm you, and possibly harm others.

There are times in our work that we have to analyze the situation in its entirety and to take

actions or steps to reduce the risks to ourselves and to others.

You told me that you thought that James Whitehead knew that you were a police

officer but that because of his drug induced state you were not sure that he could

comprehend it. When we are off duty we should have a greater awareness for issues such

as this. While our official identification is the card that is issued by me, the public generally

recognizes a badge as the symbol of who we are. James Whitehead questioned your

authority and cited the fact that you did not have a badge. While not having a badge did not

alter your authority on that scene it should have created a greater awareness on your part

that the situation could escalate if not handled correctly.

No retreat to place of safety and observation:

You expressed a concern that James Whitehead may try to retrieve a weapon from

the truck he tried to enter. There were two other people with access to that truck and

witnesses have indicated that one of them was in the truck through the majority of the event.

At no time did you seem concerned that they may have or try to retrieve a weapon from the

vehicle. You did order them to stay clear of your immediate area when you were in physical

contact with James Whitehead but you did not seem to have the same level of concern for

what they did as you did what James Whitehead was doing. You had opportunities to

retreat to a place of cover to provide a greater level of protection should someone retrieve a

weapon. That would have also provided a greater level of protection for bystanders in the

area. Witnesses have indicated that James Whitehead did in fact enter the truck even

though you have said that he did not. To have moved to a location to provide you with

some protection would have been the more prudent thing for you to do so that you could

better protect yourself and others from a potential threat of James Whitehead and of those

who were there with him. For you to be in a physical confrontation with someone who you

repeatedly cited as being much bigger and stronger than you actually placed you in greater

danger and posed a greater threat that James Whitehead may have disarmed you.

Your belief that Officers Reeves and Griffin would have been harmed:

I was astounded that you could even suggest that Officers Matt Reeves and Kelly

Griffin lacked the level of professionalism needed to respond to a subject acting as James

Whitehead was acting. You told me that both of them lacked the “proper alert level” to deal

with James Whitehead. Officer Matt Reeves, while a young officer, has received training at

the Lamar Regional Police Academy and training in the Orange Police Department field

training program. He has almost one year of experience as a police officer. But even more

than that he has served our country honorably as a military veteran who has served a tour of

duty in Iraq. His mission in Iraq was listed as “Urban Combat Operations”. To say that he

would not have the “proper alert level” is an insult to his brave and meritorious service to our

country and to the officers who serve on this department with him.

Officer Kelly Griffin is a 20+ year veteran officer with several years prior to that serving

as a paramedic with the Orange County Ambulance Service. She has more years of service

than you do. She has managed to survive to this point and I have to believe that she has

the training and abilities to deal with situations such as this. I have also personally observed

her in the past as she has dealt with combative subjects and with those with mental issues.

I realize that you had no way of knowing which officers would be arriving on the scene.

I realize that how these two particular officers would have dealt with James Whitehead could

not have been a part of your thought process at the time of this event. But for you to have

this feeling or consideration even after the fact causes me to question how you would deal

with a similar situation in the future or even how rational your thought processes were during

this event.

If you could make those judgments about two trained, certified, and qualified officers

then how much confidence can I have in your ability to properly assess the threat level posed

by James Whitehead that day? In the future will you craft your response to a situation based

on some miss-guided ideas that you have regarding the capabilities of the other officers of

this department?

Your phone call to the police department:

In your phone call to the dispatcher it was surprising to me and to other investigators that you

referred to yourself as “the shooter in this deal”. While we were certain that you must have

been under a tremendous amount of stress it just seemed odd that an officer involved in a

situation such as this would refer to himself as “the shooter in this deal” and not “I am the

officer involved in the incident at “O’Reilly’s”. The term “Shooter” is typically reserved for a

suspect in a shooting incident. Phrases such as “alleged shooter”, “active Shooter”, “road

rage shooter”, or “police search for shooter” are most often used in situations where the

shooter is a perpetrator. The “shooter” term while not indicative of anything negative by

itself, did stand out when I heard you say it. A transcript of that call is below:

5:10:02 Start of call:

Dispatcher Dobson: Orange Police Department, this is Rachel.

Captain Arnold: Hey.

Dispatcher Dobson: Yes.

Captain Arnold: Hello.

Dispatcher Dobson: Yes.

Captain Arnold: Hey, this is Arnold.

Dispatcher Dobson: Yes.

Captain Arnold: Hey, who is this?

Dispatcher Dobson: This is Rachel with the Orange Police Department.

Captain Arnold: This is Arnold, I’m the shooter in this deal okay.

Dispatcher Dobson: Okay, we heard that.

Captain Arnold: Okay, I’ll be here when someone gets here.

Dispatcher Dobson: Okay, 459 is leaving the station and we got two other units enroute.

Captain Arnold: Alright.

Dispatcher Dobson: Alright thanks.

5:10:24 End of Call:

Summary:

On Wednesday November 10, 2010 the Orange County Grand Jury met and returned

a “no-bill” relating to this incident. I respect the decision of the Grand Jury but I also have

believe that had you responded in a more appropriate manner that the situation would not

have ever gotten to the point where you felt that you had to shoot James Whitehead.

I can’t second guess your actions at the very moment that you utilized deadly force

against James Whitehead. I will concede that at that moment that you believed that the use

of deadly force was the appropriate action for you to take. My concerns are that you did not

take the appropriate steps before that moment occurred so that we may never have been

faced with the situation where you had to utilize deadly force against James Whitehead.

Based on your length of service with this department you have a higher rate of use of

force incidents than anyone else in the department. Of those in the ranks of Captain and

Police Officer the average number yearly for use of force incidents is 0.34, or one use of

force incident every three years. Over your almost six year tenure with this department you

have averaged 2.59 incidents per year for a total of 14 use of force incidents in your five

years and eleven months of service.

While reviewing your history within the department, there appears to be a pattern

developing where you use force that is questionable. In December of 2007 you responded to

a call of juveniles discharging fireworks. Upon your arrival, a male juvenile ran from you.

According to your statement you accidently struck the juvenile in the head with your flashlight,

causing the juvenile to require stitches to close the wound. No action was taken against you

regarding this incident but in looking at your history in its totality it causes me to question your

reasoning and your tactics. You were counseled regarding the use of force in this incident.

On September 15, 2007 you attempted to arrest an individual who resisted arrest.

During that arrest you picked up a piece of pipe that had been lying on the ground and swung

it at the suspect. You missed the suspect but you broke the leg of the officer on the scene

with you. Once again, your use of force may have been justified but to swing the pipe wildly

does cause me to question your reasoning in crisis situations.

On August 2, 2009 you were arresting a female when her 13 year old daughter

intervened and you struck her in the mouth with your closed fist. You stated that the

daughter got on your back as you were arresting her mother but the daughter denied that

action. While we are authorized to take action as appropriate to defend ourselves and

others it is rare when an officer strikes a 13 year old girl in the mouth with a closed fist.

Taken individually, no action was taken against you in those situations. But as a Chief

of Police I would be remiss if I did not take note that you seem to have a higher number of

use of force complaints filed against you than do other officers in the department. You also

deploy your Taser® or use O.C. spray with a greater frequency than other officers in the

department.

When you were hired, there was a concern about an issue of anger or aggression.

You assured us and after visiting with those who knew you we believed that you did not have

an issue with anger or aggression. I no longer believe that and I no longer have confidence

in your ability to serve as a Captain in the Orange Police Department.

As police officers we have been given a tremendous power and authority to enforce

the law and to maintain justice. We have the authority to arrest suspects, to search and

seize property, and to use deadly force in certain situations. It is imperative that our citizens

have confidence in our ability to protect them. There are times when we must protect them

from each other and at times from themselves. Our mission, complimented by our training,

is to defuse volatile situations where possible and to have an appropriate tactical response so

that we minimize those times where the use of deadly force is required.

The Grand Jury has determined that the actual use of deadly force, when you used it,

was appropriate. From a professional stand point I believe that you could have and should

have handled this situation differently so that you would not have gotten to that moment

where you had to use deadly force. Our rules and regulations dictate that you take steps to

avoid having to use deadly force when possible. In this case I believe that alternative

measures on your part would have prevented the necessity of the use of deadly force.

In accordance to the rules and regulations (see below) of this department a review

board consisting of your immediate supervisor, Major Lane Martin, and the Detective Captain,

Capt. Sparky Robinson, convened to review of this incident.

145:5.02. A departmental Shooting Board is established to conduct expedient and thorough

determination of whether or not there was legal justification for the discharge of a firearm by

any officer of this department.

The Shooting Board will be composed of:

(a) Involved officer's immediate supervisor

(b) Detective Captain

The Shooting Board will prepare a report of the shooting incident using the following format:

(a) Synopsis of the incident.

(b) Facts and circumstances that are pertinent to the question of whether or not the

shooting involved any violation of departmental policy, procedure, or ethic.

(c) Offense reports, witness statements, photographs, diagrams and other related

information will be included as part of the official investigation.

In the period since this incident Captain Sparky Robinson has been promoted to Major

and Det. Sgt. Wade Robinson has been promoted to Detective Captain. Those two as well

as Major Martin completed the review of this incident prior to submitting their report to me on

November 15, 2010.

In the report from Major Martin, Major Robinson, and Captain Robinson they stated:

The review board has reviewed all paperwork associated with this case including but not

limited to: Orange Police Report Case # 1018175, Texas Ranger Ken Parks’ Report and

Investigation, James Whitehead’s Autopsy Report, James Whitehead’s Toxicology Report, All

handwritten and typed witness statements, Texas Ranger Parks second audio interview of

witnesses, Captain Robert Arnold’s affidavit, City of Orange Police Department Rules and

Regulations, Chapter 9 of the Texas Penal Code, all photographs and diagrams submitted in

case.

By reviewing the actions of Captain Robert Arnold in reference to the event at O’Reilly’s Auto

Parts on July 26, 2010, it is the belief of this board that Captain Robert Arnold was in violation

of the following Orange Police Department Rules and Regulations:

3, 62, 70, 78, 95, 145:2.09, 145:2.12, 145:2.15, 145:4.01, 150

Rule 3 - VIOLATIONS OF RULES

Every member of the department shall be thoroughly familiar with the provisions of these rules

and regulations. No member shall fail to conform to and abide by such Rules and Regulations.

Rule 3 was violated on 07-26-10 due to Captain Arnold failing to adhere to the

established Rules and Regulations of the Orange Police Department.

Rule 62 - DISCREDIT UPON DEPARTMENT

No member of this department shall act in official capacity in a manner as to reflect discredit

upon himself or this department.

Rule 62 was violated on 07-26-10 due to Captain Arnold’s actions causing a loss of

credit and reputation to the department.

Rule 70 - CONDUCT UNBECOMING AN OFFICER

Officers shall conduct themselves at all times both on and off duty in such a manner as to reflect

most favorably on the department. Conduct unbecoming an officer shall include that which

brings the department into disrepute or reflects discredit upon the officer as a member of the

department, or that which impairs the operation or efficiency of the department or officer.

Rule 70 was violated by Captain Arnold due to his actions reflecting the Orange

Police Department in an unfavorable manner to the citizens that it serves. Captain

Arnold’s actions have impaired himself as an officer at this department with

coworkers and citizens.

Rule 78 - COURTESY

Officers shall be courteous to the public. Officers shall be tactful in the performance of their

duties, shall control their temper, and exercise the utmost patience and discretion, and shall not

engage in argumentative discussion even in the face of extreme provocation. In the

performance of their duties, officers shall not use coarse, violent, profane, or insolent language

or gestures, and shall not express prejudice concerning race, sex, religion, politics, national

origin, lifestyle or similar personal characteristics. Members of the department shall not fail to

answer any question asked in a careful and courteous manner. Members of the department

shall never be abrupt or brisk in answering questions. Members of the department shall make

friends with all children. They shall be watchful for the physical and moral welfare of all

persons. They shall do everything possible to gain the confidence of teenage boys and girls. A

member shall not intentionally become personally involved in a dispute or quarrel.

Rule 78 was violated on 07-26-10 due to Captain Arnold failing to be tactful in the

performance of his duties as a police officer. After being provoked and called names,

Captain Arnold failed to look for alternative solutions to resolve the issue, other than

arrest.

Rule 95 - ASSISTANCE IN EFFECTING ARRESTS

Officers shall distinguish between foolhardiness and courage in making arrest and investigating

suspicious characters. They shall use such caution as directed by their commanding officer.

While some risk is involved in police service, members of the department shall not

unnecessarily jeopardize their lives and personal safety. Since the police service involves the

apprehension of criminals, assistance shall be called for when needed. Such request for

assistance shall not be considered an act of cowardice or incompetence, irrespective of the

subsequent knowledge surrounding the arrest.

Rule 95 was violated on 07-26-10 due to Captain Arnold unnecessarily jeopardizing

his life and the lives of others by resorting to deadly force in an attempt to resolve a

class C misdemeanor offense, knowing assistance was enroute.

Rule 145:2.09

An officer shall be authorized but not required to carry a firearm while off duty, within the City

of Orange. The weapon must be concealed, while on the person of the officer and conform to

the standard requirements of either the duty uniform or plain clothes personnel. Officers

carrying off duty weapons will be required to fire a qualifying score with the off duty weapon

during firearms qualifications.

Rule 145:2.09 was violated on 07-26-10 due to Captain Arnold failing to properly

qualify with the firearm he discharged during the event.

Rule 145:2.12

Any and all weapons carried by an officer shall be registered with the department. The

registration shall include the following:

A) Manufacturer D) Caliber

B) Model E) Barrel Length

C) Serial Number F) Sample of Fired Projectile

Rule 145:2.12 was violated on 07-26-10 due to Captain Arnold failing to register the

gun carried on/off duty with the department. The registration information should

have included the following information: Manufacturer, Model, Serial Number,

Caliber, Barrel Length and Sample of Fired Projectile.

Rule 145:2.15

An officer has no obligation to retreat or back down before resorting to the approve use of

force, including deadly force. However, if it would not increase the risk to himself or others as

officer should consider retreat or withdrawal where delay(e.g. to secure more assistance) could

make a more peaceable arrest more likely.

Rule 145:2.15 was violated on 07-26-10 by Captain Arnold. Captain Arnold had no

obligation to back down or retreat. However, the rule states that if it would not

increase risk to himself and others, an officer should consider retreat or withdrawal

where delay (i.e. secure assistance) could make a more peaceable arrest more likely.

In Captain Arnold’s case he had the option to withdraw or retreat, which would have

allowed time for help to arrive, so that a peaceful arrest may have been affected.

Rule 145:4.01

To the extent necessary and reasonable (subject to emergency circumstances in accordance

with Rule 3:2.05), and in accordance with this chapter, an officer shall apply deadly force only

by using an authorized weapon.

Rule 145:4.01 was violated in that on 07-26-10, Captain Arnold failed to use an

authorized weapon.

Rule 150 (I) (M)

Reason for Discharge, Suspension or Demotion: Any member of the department may be

discharged, suspended, or demoted for any of the following reason:

I) Conduct prejudicial to good order

M) Violation of any of these rules and regulations

Rule 150 (I) & (M) was violated on 07-26-10 by Captain Arnold due to engaging in

conduct that was prejudicial to good order and violated rules and regulations.

The Orange County Grand Jury reviewed the incident on November 10, 2010. After reviewing

all information related to the case, the Grand Jury returned a “no-bill.” Although the

shooting itself was deemed justified relating to this incident, we believe that some actions

which led up to the deadly encounter were not handled in accordance of Orange Police

Department Rules and Regulations.

Statement accounts indicate that James Whitehead was extremely agitated, made numerous

threats of violence and resorted to “light” physical contact against Captain Arnold. We

believe that Captain Arnold could have used alternative solutions that may have prevented the

need to use deadly force. When James Whitehead was making an attempt to leave, we believe

that it would have been reasonable and prudent for Captain Arnold to have allowed him to do

so.

If Captain Arnold believed that Whitehead’s actions warranted immediate arrest prior to other

officers arriving on scene, he should have attempted to utilize some sort of hand to hand skills

or utilize his flashlight as a defensive weapon prior to resorting to deadly force. Captain

Arnold, being “off duty” at the time of the incident, was not properly equipped to handle the

situation in a safe, proper manner.

Action to be taken

I generally concur with the findings of the review board that consisted of Major Lane

Martin, then Captain and now Major Sparky Robinson, and then Detective Sergeant and now

Detective Captain Wade Robinson. The specific rule violations listed below are listed

above. My comments relating to each violation may or may not differ from those cited by the

review board.

As a result of your actions relating to the incident at O’Reilly’s Auto Parts on July 26,

2010 you will be indefinitely suspended from duty. Pursuant to Sec. 143.052 of the Local

Government Code, you are entitled to a written statement giving the reasons for your

suspension. Therefore, you have been suspended from duty because of a violation of a

specific section and subsection of the Rules and Regulations of the Firefighters and Police

Officers Civil Service Commission adopted by the Civil Service Commission of the City of

Orange, which are hereinafter set out, with the violations set thereunder.

Chapter 15 §15.01 states that “No Firefighter or Police Officer shall engage in, or be

involved in any of the following acts or conduct, and the same shall constitute cause for

removal from the service or suspension of a Firefighter or Police Officer.”

A subsection of that same Chapter 15. being §15.01 (l) reads as follows:

"(12) Violation of any of the rules and regulations of the Fire Department or Police

Department, or of any special orders, as applicable."

It is my belief that you are guilty of conduct prejudicial to good order and the violation of

applicable police department rules. I believe you violated rules 3, 62, 70, 95, 145:2.09,

145:2.12, 145:2.15, 145:4.01, 150 of the Orange Police Department Rules and Regulations

because:

Rule 3 - VIOLATIONS OF RULES

You did violate Rule 3 in that you did violate numerous rules and regulations of the

Orange Police Department.

Rule 62 - DISCREDIT UPON DEPARTMENT

You violated Rule 62 in that on July 26, 2010 at O’Reilly’s Auto Parts store in that your

failure to take actions appropriate for the situation at hand you brought discredit upon the

department, damaged the reputation of the department, and damaged public confidence in

the Orange Police Department.

Rule 70 - CONDUCT UNBECOMING AN OFFICER

You violated Rule 70 in that your failure to take appropriate actions you placed

yourself and others in jeopardy and as such your actions reflected unfavorably on you as a

professional police officer.

Rule 95 - ASSISTANCE IN EFFECTING ARRESTS

You violated Rule 95 in that you should have exercised better judgment in your

dealings with James Whitehead on July 26, 2010. Your failure to alert other officers as to

the severity of the situation, your failure to seek help in effecting the arrest of James

Whitehead, and your failure to recognize the risks of your actions was foolish and reflected

poorly on you as a Captain of this department.

Rule 145:2.09

You violated Rule 145:2.09 in that you, upon taking action as a police officer of the

Orange Police Department, utilized a weapon that you had not registered, qualified with, or

obtained permission to carry in the performance of your duties.

Rule 145:2.12

As in the previous rule you failed to properly register your firearm with the department.

Rule 145:2.15

You violated Rule 145:2.15 in that even though you did not have an obligation to

retreat or back down before using force, the policy encourages you, if it would not increase

the risks to consider a retreat or withdrawal to make a more peaceable arrest. In this case a

retreat to more properly assess the situation probably would have been safer for you and it

may have resulted in James Whitehead leaving and there not ever having been the need to

use deadly force.

Rule 145:4.01

You violated this rule in that you used deadly force with a weapon that you had not

been authorized to carry in conjunction with your duties as a peace officer with this

department.

Rule 150 (I) (M)

You violated Rule 150 (I) & (M) in that you should be discharged because of your

conduct that day that was prejudicial to good order and because of your violations of these

rules and regulations.

A copy of this statement will be filed with the Firefighter's and Police Officer's Civil Service

Commission of the City of Orange. You may appeal this indefinite suspension in writing to

said Commission within ten (10) days after receiving a copy of this statement, or if you

choose, you may, within the same time period, elect to appeal to a hearing examiner instead

of the Commission. If you elect to appeal to a hearing examiner, you will waive all rights of

appeal to a district court, except for certain limited circumstances as detailed in the

subsection (j) of Section 143.057 of the Local Government Code.

 

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