Visiting Judge Elizabeth Ray has thrown out an arbitrator’s ruling that instructed the city of Orange to reinstate ousted Orange Police Captain Robert Arnold, who was relieved of his civil service duties after fatally shooting an unarmed Marine veteran July 26, 2010.
John Cash Smith, attorney for the city of Orange, said a date for Arnold’s arbitration rehearing has not yet been set. Arnold also filed an EEOC complaint against the city of Orange alleging that he is the victim of racial discrimination. That case is pending in federal court.
Smith said he was pleased with the ruling – for the most part. According to Smith, the judge did not grant the city’s motion to exclude arbitrator/fact-finder Leroy Bartman from the forthcoming arbitration rehearing.
“I’m very gratified with the judge’s ruling, and we expected we would win from the beginning. The facts, and case law, were on our side,” Smith said. But, he added, “I’m going to recommend that we appeal the ruling not to exclude (Bartman).
“It would be very nice if he’d just resign. I’m not going to keep him if we don’t have to. A court will have to make me.”
Smith said Bartman was paid $18,000 to deliver a report based on the facts brought out in arbitrated mediation, but failed to do so. If used for the arbitration rehearing, Bartman would stand to gain another $18,000, Smith added.
“You don’t think that puts a sour taste in my mouth?” Smith asked. “We are of the feeling that he can’t be fair.”
Smith said he is now readying to re-defend the city of Orange’s interests in keeping Arnold off the streets as a city officer. Smith estimated that the first hearing cost the two parties in excess of $100,000.
The culmination of the first hearing was the result of Arnold challenging his termination from the Orange Police force following an incident wherein Arnold, while off-duty, became entangled in an altercation that resulted in the former police captain shooting and killing James Whitehead at the O’Reilly Auto Parts store in Orange. Exactly one year after the homicide, arbitrator Bartman ruled that Arnold should be placed back on the Orange Police Department payroll based on claims that Arnold was unaware he was being investigated for shooting Whitehead.
According to testimony presented by city of Orange attorney Smith during the civil hearing, the lawyer stated, “We presented a very clear and convincing case that Chief Sam Kittrell’s decision to terminate Robert Arnold was entirely justified.
“This whole incident is a human tragedy. A 28-year-old man was deprived of the rest of his life, a 3-year-old daughter doesn’t have a father, two parents have lost their son, and a police officer’s career has been ruined — all because of an incredible lapse of judgment in less than four minutes of time.”
Smith alleges that in the four-minute event, Arnold used poor judgment when he killed a man a point-blank range as the man was attempting to leave the scene of a heated verbal altercation.
“This whole thing has been a nightmare,” said Whitehead’s sister, Brandy Boyett. “I don’t want (Arnold) to … kill somebody else’s brother, somebody else’s father. I’ve got family all over the state. I don’t want to see them killed by this rogue cop.”
Michael Grossi, an out-of-state police officer trainer and Arnold’s expert witness for the arbitration hearing, told the arbitrator in 2011, “I was surprised to see that he wasn’t terminated for excessive force” but concluded, based on reading statements, that Arnold was justified in shooting Whitehead that July day in 2010. Grossi was paid between $7,500 and $8,000 for his testimony, he said. Grossi was the only witness to say Arnold had acted correctly.
Forensic pathologist and medical examiner Tommy Brown said Arnold was no more than 8 inches, possibly even less than 6 inches, from Whitehead when the fatal shot was fired.
“Arnold used incredibly bad judgment, and because of that, lives were ruined,” Smith said on behalf of the city. And because of Arnold’s actions, Smith said, Whitehead “had his life snuffed out.
According to an eyewitness at the scene of the shooting death, Randy Edwards, Whitehead was shot in cold blood.
“I could see Arnold was out of control,” Edwards recounted of the events July 26, 2010, when Whitehead was killed. “He came at James with the intent to kill him, and that is exactly what he did. It was all just so crazy to get to that point. There was a yelling; then there was a shooting. Then (Whitehead) was dead.”
Whitehead, a decorated Marine called a “hero” by the men whose lives he saved on the battlefield, was shot once at point-blank range and succumbed to his injuries almost instantaneously. His last words, said Edwards, were directed at the man who pulled the trigger to end the young soldier’s life.
“James stood up and said, ‘You shot me,’ while looking Arnold in the face,” Edwards remembered in detail. “Arnold just looked at him and said, ‘I damn sure did.’ Then James just fell back in the truck and died.”
Smith said, “We believe, by more than a preponderance of the evidence, that it was a killing, not what police call a good shooting.”