Free Appendix - District Court of Delaware - Delaware

Case 1:04-cv-00956-GMS
Price, et al. Christopher D. Foraker, Volume 1

Document 191-4

Filed 06/19/2006

Page 1 of 200
Chaffinch, et al. December 13, 2005
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bullet trap and you diagnosed that it was a bad pump, what would you do? A. We would have to unplug the pump, reach into the water trough, pull the pump out, disconnect it from the tubing, reconnect it to another, reconnect another pump to the tubing, plug it in and put it back in the water-oil mixture and see if that would repair it, if that would correct the problem. Q. Is what you've just described to us the process of replacing the pump? A. Yes. Q. Did you actually replace pumps yourself? A. Yes. Q. You were at the firing range when it first opened in 1998, weren't you? A. Yes. Q. During the time between 1998 when it opened and 2001 when you became the NCOIC, did you perform the task of replacing the pump that you just described? A. Between what dates? Q. Between the time the range opened in '98 and the time you became the NCOIC in 2001, did you perform the task of replacing the pump like you just described to me?
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for that, right? A. No. Q. Now, facilities management was clearly responsible for the HVAC system, correct? A. Correct. Q. During the time that -- let me back up a second. I want to refer back to what Mrs. Homer has said here on the first page of Exhibit No. 5. A. Can I qualify something? Q. Yes. A. But I do believe it's facilities management's responsibility to let us know what environment we're working in with that bullet trap. Q. What do you mean by that? A. What type of hazards we're being exposed to in that water. No one is testing the water. No one is keeping an eye on it to make sure it doesn't have any pathogens growing in it. No one is keeping up to tell us what levels of contamination is behind the bullet trap that we're working in. No one is testing it to see what we're being exposed to. No one is giving us respirators, Tyvek suits to protect us from hazards. Q. Do you know what information was provided by
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A. Yes. Q. How about filters, did you change filters during that time period? A. Yes, I did. Q. Did you clean the like shotgun waddings out of the tank that's below the bullet trap? A. Yes, I did. Q. And you did all of these things yourself? A. I did them, yes. Q. Did Corporal Price do it? A. I believe so. Q. How about Corporal Warren? A. I believe he did also. Q. How about Eddie Cathell? A. Yes, sir. Q. When you became the NCOIC, did you continue to perform the maintenance of the water system in the bullet trap? A. Yes. Q. Now, would you agree with me that the firearms training unit personnel were responsible for the maintenance of the water system in the bullet trap? A. Those parts that I mentioned, yes. Q. And facilities management was not responsible

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the State Police to facilities management as to what the projectiles are composed of that are being shot into the bullet trap? A. I didn't understand your question. Q. What does facilities management know about what's going into the bullet trap in terms of bullets? A. They should know everything of what's going on in that building. It's their building. Q. Well, I guess maybe you can say they should, but my question to you is: Do you have any information as to what anybody at the State Police told them? A. (Pause). Q. Do you understand the question? A. No, not yet. Q. Did you ever tell anybody at facilities management whether you were the NCOIC or at any time what was in the bullets that were going into the bullet trap? A. I would think that they already knew from prior to me taking over. Q. I understand that's what your position is. I'm simply asking whether you ever told them. A. No. But I also think that it's incumbent upon

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Price, et al. Christopher D. Foraker, Volume 1

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them to know what's going on. Q. It may well be. I'm just trying to establish the facts and the question is whether you ever told anybody at facilities what was in the bullets. I take it the answer is no? A. Eventually, yes. I provided them with an MSDS sheet of the bullets. Q. And that would have been when? A. January of 2004, a month after I took over. Q. At any point prior to that, and you were the NCOIC in 2001 and 2002, at any point prior to 2004 did you provide an MSDS to the folks at facilities? A. No, I did not. Q. You have talked to people at facilities while you were working at the range, right? A. Yes. Q. Like people like Mark D'Allesandro? A. Correct. Q. Who else did you deal with from facilities? A. Doyle Tiller. Q. Who else? A. Mark DeVore. Q. Did you deal with Tiller and DeVore prior to December 2003?
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Q. Elliott Harding? A. Yes. Mr. Bell. Q. Is that B-e-l-l? A. Correct. I can't think of the other guy that was a maintenance guy before Tom Faison. I can't believe it. I can see him in my mind. Q. So there was another, your routine maintenance guy you referred to him as? A. Correct. Q. Did Mark D'Allesandro replace Tom Faison? A. No. Q. They were working at the same time? A. Correct. They have two different job functions. Q. What's Faison's job? A. Like I said, I believe he's the everyday maintenance guy. Q. What is your understanding of D'Allesandro's job? A. I believe he's like a supervisor, a level above him. Q. Going down again on the first page of MacLeish 5, there is a statement "'The people who have
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A. Yes. Q. When would that have been? A. Back when I was in charge the first time. Q. What was your purpose for having interaction with Doyle Tiller back in 2001-2002? A. Ventilation problems. Q. How about DeVore? A. Same thing. He's the engineer. Q. I'm sorry if I asked you this question already. But at any point prior to January 2004 did you provide to anybody at facilities the MSDS's for the bullets you were using at the range? A. No, I did not. Q. Is there anybody else that you dealt with from facilities other than the three names we already have mentioned during the period prior to December 2003? A. Tom Faison. Q. What was his job? A. I don't know what his title was, but he was kind of like the everyday maintenance guy. Q. Okay. A. Give me just a minute. Q. Take your time. A. An electrician by the name of Elliott.

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complained about the facility are also the same people who are in charge of the facility.'" At this point, and this is April 6th when this discussion with the press occurred, who was complaining about the facility? A. We have. We spoke out about problems with the range. We spoke about problems and we brought them to the forefront. Q. Who is the "we," Sergeant Foraker? A. Myself and my men. And I explained this in my interrogatories. Q. Is it accurate what Mrs. Homer says is that the people who are complaining are the same people who are in charge of the facility? A. Yes. She's indicating myself, my men and Captain Warren. Q. Go over to the next page, please. The fourth paragraph down is a paragraph that you said you thought was defamatory and it has to do with I think blood lead levels. Would you agree with that? A. Yes, I do. Q. Do you know what Gloria Homer meant, do you have any idea what she meant when she uses the

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Price, et al. Christopher D. Foraker, Volume 1

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phrase "higher than standard lead levels"? A. I believe the standard is a 4 or a 5. Q. My question is: Do you know what she meant? A. No matter what our levels were, she's saying that they're okay, they're standard. Q. Okay. When you were the NCOIC in 2001 and 2002, is it true that you tried to keep the blood lead levels somewhere between 6 and 12? A. Correct. I actually wanted to be below a 10 because that's what Johns Hopkins, Dr. Schwartz from Johns Hopkins according to Major Swiski, he wanted us to stay a 10 or below. Q. Dr. Schwartz said 10 or below would be desirable, right? A. That's what you want to shoot for. You want to stay below a 10. Q. Didn't he also say to Major Swiski that none of the blood lead results that the Delaware State Police had shown him, other than Eddie Cathell's, presented any sort of danger to the troopers? A. I don't know that he said that. Q. So you do know that he said that he wanted it under 10, but you don't know anything else that he said?
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scattered on the floor or on shelves." Do you know whether there was, in fact, material scattered on the floor or on shelves the day that Mrs. Homer and Mr. Furman went through the range? A. I believe that I went there a day or two after that to pick up some weapons and, like I explained, there were many people in and out of that range and there were things there that I didn't leave there and my men didn't leave there. So there had been other people in that building in and out and there were other things around. There was ammunition that wasn't even our ammunition, some of which wasn't what we use on a regular basis, here and there. We didn't leave it in that condition that they're saying. Q. Okay. I understand that and you have said that before, but my question is: Do you know whether the statement that is made in this article that there was material scattered on the floor and shelves is correct or not? A. I think it's false what she's saying. I didn't do that. We didn't do that. We didn't leave it that way. Q. The article doesn't say anything about who put
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A. I'm telling you what Major Swiski told me. I never talked to Mr. Schwartz. Q. Okay. Did you receive test results for blood lead levels in April of 2004 for you and your men? A. Yes. Q. Were any of them higher than a 12? A. I don't believe so. Q. Were any of them higher than 10? A. I don't believe so. Q. Two paragraphs down from the paragraph I was just asking you about is one that begins with the phrase "'Ventilation can only do so much. The hygiene of the facility is just as important.'" Why do you believe that that statement is defamatory? A. Because it's indicating that the closing of that range was due to our lack of upkeep, which is totally a fabrication and is totally false. Q. Okay. That's what you believe she means by that? A. That's exactly what she means by that. Q. In the next paragraph down you have stated that you found the following statement defamatory, and I'll quote: "Mrs. Homer and Mr. Furman pointed to material

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the debris or material there. A. It's insinuating that it was me and my men. Q. Okay. That's what you believe to be defamatory about that statement? A. Yes. Q. Now, you said that there was ammunition there that wasn't your ammunition? A. Not that we were using, no. Q. Do you know how it got there? A. I have no idea. Q. What kind of ammunition was it? A. A different caliber, I believe. It was either a different caliber or a different make. Q. Did you have an educated guess as to how the ammunition got there that wasn't yours? A. I don't. Q. Was it there the last time -- well, was it there when the range was in operation in February of 2004? A. No. Just like I said before, there were things there that weren't there when my men and I left the range. Q. So you believe that at some point between the time the range stopped operating and the point that

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Case 1:04-cv-00956-GMS
Price, et al. Christopher D. Foraker, Volume 1

Document 191-4

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this tour occurred in April of 2004 somebody came in and put ammunition there that didn't belong to the Delaware State Police? A. I don't know that it belonged to the Delaware State Police. It wasn't what we were using at the time. Q. Are you saying that that ammunition that you were not using at the time appeared at the firing range between the time that you stopped operating there and the time of this story? A. Correct. I don't know how it appeared there. I don't know how it got there. Q. That's fine. But your deduction is it appeared at some point between the last time you were using it and the time that the cabinet secretary went through for the tour? A. Correct. Q. Going farther down on page 2 of Exhibit MacLeish 5 is the paragraph that says, "'The bullet trap wasn't cleaned properly. The back, where the track is, was so poorly maintained that it became unworkable.'" At the point that you stopped using the range -- and I gather this is sometime in February
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A. Because the technician that came in January discovered that. Q. Okay. So had the belt stopped operating in January? A. It stopped operating in December. Q. At any point from December to the time the range closed was the belt operating? A. I don't believe on a regular basis, no. Q. Maybe this would be a good time to ask you some questions about that. I'm going to show you a document that has been marked D-1. MR. NEUBERGER: Excuse me? MR. ELLIS: D, as in defendant, 1. MR. NEUBERGER: Are you saying this is in the record or we're going to make it in the record? MR. ELLIS: No. It's already in the record. It was in -- I forget -- one of the other plaintiff's deposition. MR. NEUBERGER: All right. BY MR. ELLIS: Q. Sergeant Foraker, I would like you to take a look. The document I have shown you is actually three e-mails in a chain. The first one is the one in the
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2004 -- and by "stopped using" it I mean stopped shooting in the building, was the bullet trap working? A. (Pause). Q. That's a bad question. Was the conveyor system or the drag chain, whatever you call it that operated in the tank of the bullet trap, was that functional? A. No. Q. Do you know why not? A. Because I believe the pivot shaft they called it was pulled out of its socket. Q. Is the pivot shaft on the motor end of the belt or on the far end? A. It's the far end. Q. And I take it that's the piece of equipment that holds the end of the belt in place so that it can turn around it, turn from going in one direction to back going the opposite direction? A. That's my understanding. Q. You have watched it operate, right? A. I've seen the belt move. I haven't seen that end. I have no idea what that end looks like. Q. How did you know that it wasn't working properly?

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back, which is dated Friday, December 19, 2003 at 7:20 p.m. and it goes from you to Thomas MacLeish and Paul Eckrich with copies to Greg Warren and Ralph Davis. There is then Colonel McLeish's reply on January 5th and then you reply to that on January 5th later in the day. I'm going to ask you a number of questions about this exhibit, but for present purposes if you could just look at the earliest of the e-mails which is the one that begins on the second page and that's the one that starts on Thursday, December 18, 2003. Do you see that? A. Yes. Q. This states that on December 18 you discovered that the clutch pulley sprocket of the conveyor drag or dredge system has been damaged and the drive chain has been broken. And then you then go on to say that this has brought the dredging system to a complete stop. When you refer to the dredging system, is that the same thing as we have been talking about here today calling it the belt? A. The drag belt, yes. Q. The drag belt, okay.

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Case 1:04-cv-00956-GMS
Price, et al. Christopher D. Foraker, Volume 1

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As I understand it, as of December 2003 the belt that was in use was a metal belt with cleats on it that were designed to drag the residue of the ammunition down towards the end of the tank? A. Yes. Q. Is that right? A. Yes. Q. So as of December 18 this drag system was not working, right? A. Correct. Q. Now, if you go to the first page of this exhibit, D-1, and this is your January 5th e-mail to Lieutenant Colonel MacLeish, you also talk, you talk in this one about repair work that was done on the clutch pulley and chain. You were present to see that work done, right? A. Yes. Q. And it was done by a guy named Toplack from the Mayfran Corporation? A. Yes. Q. After Mr. Toplack completed his repair, was there a point when the system was working correctly? A. It was running when he left.
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Q. And the third, the paragraph numbered 3 on the second page of Exhibit D-17 says the drag conveyor has failed once again. You don't indicate here what day it failed. Do you recall it failing on the date that you sent this e-mail or was it someday prior to that? A. I don't recall at this time if this was the actual day that I discovered it or not. Q. Well, according to Exhibit D-1 it would have been fixed as of December 29, right? A. Correct. When he left it was running, it was working at that particular moment. Q. Now, am I correct that between Christmas and New Year's that you were not doing any shooting on the range, it was basically shut down? A. Correct. Q. So the first day of operation after the holidays would have been Monday, January 5th, right? A. Correct. Q. Did shooting start on Monday, January 5th or was it someday later in that week? A. I believe recruit training started on that Monday, the 5th, and depending on where they are in the curriculum that particular day, they may start
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How long did it stay running? Not very long. A matter of I mean days, weeks? Days, I believe. MR. ELLIS: I'm going to ask the reporter to mark this as D-17. I think that's what we're up to. (Defendant's Deposition Exhibit No. 17 was marked for identification.) THE WITNESS: Did you want me to read this? BY MR. ELLIS: Q. Yes, please. I'm particularly interested at this point in you reading the second paragraph, the paragraph that has the number 2 in front of it. This is an e-mail from you to Greg Warren, copied to Ralph Davis dated January 9, 2004. And also paragraph 3 on the next page. Sorry. A. (Reviewing document) Okay. Q. Now, does this e-mail document, this is dated January 9, document that the conveyor is, once again, no longer working? A. That's correct.

Q. A. Q. A.

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shooting in the afternoon. Q. So at some point between Monday, the 5th and Friday, the 9th the conveyor belt broke down again. Is that a fair statement? A. That or maybe it broke down prior to us coming back. I don't know. I'm not 100 percent sure at this point in time. Q. Was it running when the range was closed, the conveyor system I mean? A. Yes. They said it had to run continuously. Q. So as of December 29th it got turned on even though there was nobody in the building? A. Correct. Both Savage and Mayfran said that they had, they requested that the water system and the conveyor belt continue to run 24/7. MR. ELLIS: Let me mark this as Exhibit D-18. (Defendant's Deposition Exhibit No. 18 was marked for identification.) BY MR. ELLIS: Q. Now take a look at the bottom. This is two e-mails, the first one being January 23, 2004 from you to Greg Warren and Ralph Davis and then Greg Warren's response of January 26 to you.

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Case 1:04-cv-00956-GMS
Price, et al. Christopher D. Foraker, Volume 1

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And I really only want to ask you about the earlier of the two e-mails on the 18th and ask you if this documents the fact that the conveyor system was not operational as of Friday, January 23rd? A. (Reviewing document) Your question again? Q. I think the question was whether this January 23rd e-mail documents the fact that the belt, the conveyor system, in other words, is not operational as of that date? A. Correct. That's fair to say. Q. I recognize there are other things in that e-mail. But can we take it from the e-mail that by the 23rd it's not working again? A. Correct. Q. Do you remember whether it was working at any point between January 9th and January 23rd? A. It was working when Mr. Toplack left. The next time I viewed it I believe it was broken again. It had ceased operation. Q. When you say that when Mr. Toplack left, that's December 29th, correct? A. I believe so, thinking back. Q. That's based on Exhibit D-1? A. Yes.
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Q. Was there any shooting that occurred at the range, in training that occurred at the range that occurred between February 11th and the time it was shut down? A. Not that I'm aware of. Q. Now, between the 23rd, which is the date of your e-mail to Greg Warren and Ralph Davis, between the 23rd and the day of the shoot of the SORT team, February 11th, was there shooting going on? A. Yes. Q. Was that the completion of the training class at the academy? A. Yes. Q. So from the beginning of January to sometime in the beginning of February, the range was in use every day? A. Monday through Friday, I believe so. Q. At the time all this is going on, and I'm talking January and early February 2004, did you have a belief as to what the effect was of the conveyor system going down, what the effect that would have on the environment in the shooting range? A. The dredge system? Q. Yes.
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Q. Now, when was the next time you looked at it, if you remember? A. At this point in time I don't recall exactly when I looked at it. It was sometime that week when we came back. I don't know whether it was actually Monday or Tuesday. Q. That would be the week that ended with Friday, January 9th? A. Correct. Q. Are you able to tell me whether between the 9th and the 23rd it was ever operational? A. I don't believe that it was. Q. Now, D-18, which I think is still in front of you, has in the second paragraph of the January 23rd e-mail a reference to air quality testing that's to occur on February 10th or 11th. Do you see that? A. Yes. Q. Am I correct that the testing that occurred on the 10th or 11th was done with the SORT team? A. Correct. Q. And that the SORT team shot in the range and while they were shooting the air testing went on? A. That's correct.

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In other words, did you believe that it was bad for the bullet trap system to have the dredge belt inoperable? A. In the shooting range itself would it be bad? Q. Well, was it bad for the bullet trap system to have the conveyor belt inoperable? A. I don't know that I can answer it as to whether it would be bad or not. Q. As to the environment in the area where the shooters were, do you think the conveyor belt being inoperable had any effect on that environment? A. On the shooters? Q. Yes. A. No. Q. Do you believe there was any effect on the environment of the building by the bullet trap conveyor system not being operable? A. No. Q. What was your understanding as to what the purpose of the bullet trap conveyor system, what was the purpose of it? A. It's to transport leaded projectiles and dump them into a barrel. Q. What purpose does it serve if you're not

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shooting leaded projectiles? A. To drag the debris, leaded projectiles from shotguns and whatever else debris that you have from the frangible, dredge it out and dump it into a barrel. Q. Do you have an understanding of why that's necessary? A. It's a convenient way to get rid of the spent rounds. Q. Do you understand that it prevents the pumps from getting clogged? A. No. I don't believe it does that, no. Q. Did you ever talk to any of the Mayfran personnel that were sent to the State Police range, did you ever discuss with them the purpose of the conveyor system? A. There's two different systems that you're talking about. There's a conveyor system that originated. The conveyor system transports solid projectiles. A dredge system drags debris and to me that's two different, two different systems, two different animals. Q. I'm really referring to the dredge system that
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the sprayer jet heads. It says it causes the filter screens and the sprayer jet heads to do something and I can't see what that is because there was a hole in the paper when it was photocopied. Do you believe that word might be "clog"? A. It could be. Q. The filter screens and the sprayer jet heads clogged because of the frangible ammunition, right? A. Correct. Q. And what was the effect of them clogging? A. It would become dry on the other side. Q. And do you believe that that caused a problem with air quality? A. We didn't shoot in the dry ramps. We shot in the wet ramps. We would locate our shooters in front of wet ramps. Q. In this e-mail you sent to Greg Warren you said, "The air quality problem is surely compounded by the fact that the wet ramp is dry in some areas." Did you believe that to be a problem at the point you sent Greg Warren this e-mail? A. There may at certain times be a round that may hit there, just like it would hit the upper ramp that is also dry. It's permanently dry, the upper ramp.
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was in effect, in place in January 2004. Did you ever talk to any of the Mayfran people about what the purpose of it was? A. Not what the purpose of it was, no. We know that it was to dredge the debris and dump it into a barrel. Q. Go back to D-17, please. Look at paragraph 2, please, for a minute. I would like you to read the first sentence to yourself. A. (Reviewing document) Okay. Q. In this sentence you're reporting to Captain Warren that the wet ramp was dry in some areas, right? A. Right. There were three areas when I arrived there December 1, there were three points that were dry. Q. Well, this is January 9th. Were there more than three? A. It was the same. Q. It was the same three? A. Correct. Q. And did it ever happen that there were more than three places that were dry? A. Not during this time frame, no. Q. This sentence refers to the filter screens and

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Q. Right. A. But what I do go on to say and I described it in my interrogatories is that when we witnessed the dust cloud that was from the rounds being fired from the gun, the muzzle blast itself was traveling backwards in our faces. Q. That's the subject of paragraph 1 of this e-mail, right? A. Correct. Q. Did the circumstances that you described in this e-mail that's D-17 exist at the range throughout the entire month of January when shooting was going on? A. Yes. MR. NEUBERGER: Why don't we take our break now? MR. ELLIS: That's fine. (A brief recess was taken.) BY MR. ELLIS: Q. Sergeant Foraker, did you believe in January 2004 that you had the authority to shut down the range if the circumstances, excuse me, if the environment was not safe for the people working there? A. Absolutely not. That is five or six pay grades

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above me. That's at the secretary level, cabinet secretary level or at the colonel of the State Police level. Q. Why do you say that? A. Because it's not our building. It's a facility that's owned by the State of Delaware, not by the Delaware State Police. And I am trained -- I'm a trainer. I'm responsible for the safe operation of training. Q. Well, do you believe that it was safe to train in the circumstances that were present in the range in January 2004? A. From my standpoint from a trainer, things were safe as a trainer. Q. Do you believe that the people that you were training were in danger of inhaling contaminants during January 2004? A. I had a suspicion that it could be a problem and once we found out, and that was January 8th that we found out what the bullet, the frangible bullet was made of, which was copper dust, I contacted the engineer from the manufacturer of the bullet, got that information. He said that "You don't want to eat it" and my response to him was "If we have a penny taste
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actually it came out of the budget. Instead of coming out of the budget of facilities management, it came out of the budget of the firearms training unit to pay for sampling to see what we were being exposed to and at what rate we were being exposed to it because there's limits on exposure. Q. I guess my question to you is: Do you believe that you and the people in the firearms training unit were in harm's way as a result of the environmental conditions at the range in January 2004? A. I believed that the possibility existed at that time. Q. Do you believe that the students, the people you were teaching were in harm's way as a result of the environmental conditions at the range in January 2004? A. At that particular time I believed that the possibility existed. That's why I wanted facilities management to test the environment. Q. Now, at any point before February 11, 2004 did you recommend to anyone in the State Police that the range be shut down? MR. NEUBERGER: I'm sorry. What was the date?
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in our mouth, then aren't we eating it?" And he said, "Well, don't walk into the dust cloud." So from that point on we would shoot and once the cloud was starting to form, we would cease fire and back off the line. It caused a significant interruption in our training program. Q. At the point that you -- well, in January 2004 given the observations you made of physical conditions in the facility, did you believe that your subordinates in the firearms training unit were being placed in harm's way? A. From what? Q. From the conditions you just described, the clouds of dust, the smoke from the discharge of the weapons, the circumstances that you described in Exhibit D-17 in your e-mail to Captain Warren. A. I suspected that there were contaminants. I don't know how dangerous it was. I'm not a chemist. I'm not an industrial hygienist. And that's the responsibility of facilities management. We asked for them to conduct testing. We asked for them to conduct swipe samples of the facility, and they refused to do that. So then myself and my men, we brought in Environmental Solutions and

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MR. ELLIS: February 11, 2004. MR. NEUBERGER: But before you said from this date to that date. I'm sorry. MR. ELLIS: At any point prior to February 11, 2004 I think is what I said. MR. NEUBERGER: Thank you. BY MR. ELLIS: Q. Do you understand the question? A. Can you read it back to me? Q. I will just say it again. At any point prior to February 11, 2004 did you recommend to anybody above you in the State Police hierarchy that the range be shut down for shooting purposes? A. No. I asked for it to be tested. I believe that we needed to test the facility to see what was going on in the facility before we could, before anybody at that cabinet level secretary position would make that call because they needed more information. Colonel MacLeish came up on January 21st and he saw the same environment that has all been described here. He had the authority to shut it down, but he did not. Q. How do you know he had the authority?

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Price, et al. Christopher D. Foraker, Volume 1

Document 191-4

Filed 06/19/2006

Page 9 of 200
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A. He's the lieutenant colonel of the State Police. Q. Any other reason you think he had the authority? A. He has a whole lot more authority than I do. I'm a sergeant. Q. I understand that. A. But he even waited until test results came in and even when the test results came in, he waited till a piece of paper, a report came in from Art Nielson of Nielson Associates making the statement that the facility is not fit for occupation and in that he also said that it is not a hygiene issue; it is a mechanical issue that's the problem here in this facility. Q. When you met with then Lieutenant Colonel MacLeish -- when did you say it was? January 21st? A. 21st, I believe. Q. How long did you meet with him? A. A short period of time. Q. Less than an hour? A. Yes. Q. Less than a half hour? A. I believe it was.
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A. I tried to have a conversation with him. Q. So what did you say to him? A. I started to explain to him about the ventilation problem. And he said, "I'm not here for that." Then I started to explain to him about the bullet trap and the conditions of the bullet trap. And he said, "I am not here for that. I just came here to see the recruits." And then I also asked him about the headsets because we needed new headsets. And he said, "Contact Bill Carroll from communications and see if you can get those retrofitted. That sounds like an awful lot of money to buy new ones." Q. At the point Lieutenant Colonel MacLeish came to the range on January 21st, 2004 were you aware that Captain Warren was preparing a report for Lieutenant Colonel MacLeish on the conditions of the range? A. I know that he was and he did prepare a report for him. I'm not exactly sure on the exact dates. Q. Go back to D-1, which should be in front of you someplace. It may be underneath that. MR. NEUBERGER: Here you go. Q. Again, go to the second page of this exhibit,
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Q. Less than fifteen minutes? A. I would be guessing. Q. Where did you talk to him? A. I talked to him when he entered the building at the front office area. I talked to him while we walked up to the control booth. I talked to him in the control booth and then we walked back out into the hallway and back into the office and then he left. Q. Was there anybody present during the conversation other than you and Lieutenant Colonel MacLeish? A. At one point in time when we walked into the control booth I believe it was Corporal Price in the control booth. Q. Anybody else? A. I don't recall at this time. Q. What was the purpose, do you have an understanding of why Lieutenant Colonel MacLeish was present at the range that day? A. He said he had stopped by to see the skid pad and then he just dropped by and wanted to just see how the recruits were doing. Q. Did you have a discussion with him about the environmental conditions in the range?

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the Friday, December 19 e-mail you sent to MacLeish and Eckrich got a response from MacLeish on January 5. Do you see that? A. Yes, I do. Q. Do you see the third sentence where he says, "Captain Warren, please prepare a written report that addresses the concerns that Sergeant Foraker has presented and propose possible solutions"? A. Yes. Q. And you got a copy of that e-mail, right? A. Yes. Q. Actually, it was directed to you and Captain Warren, right? A. Yes. Q. So you knew in January of 2004 that Colonel MacLeish was expecting a report from Captain Warren on conditions at the range? A. Yes. Q. Did you have any input into what Captain Warren prepared? A. I believe that there was a good bit of information that we had, that I had given the chain of command, put up the chain of command to him through these various e-mails and we talked many times over

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Price, et al. Christopher D. Foraker, Volume 1

Document 191-4

Filed 06/19/2006

Page 10 of 200
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Page 60

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the phone. So from those conversations and these e-mails I believe that he probably incorporated a good bit of that information in his report. Q. Take a look at Exhibit D-18. Do you have that in front of you? A. Mm-hmm. Q. Referring now to the top of D-18 which is an e-mail from Greg Warren to you of January 26th, 2004, the second sentence says, "I want to review some items with you, prior to submitting my final report to MacLeish." Do you see that? A. Yes. Q. Did you actually have a meeting with Captain Warren on January 27th to discuss certain items? A. We had a lot of meetings. I'm not sure exactly if the 27th we did. I'm not sure at this point in time. Q. Did Greg Warren show you his report to MacLeish before he submitted it to MacLeish? A. He may have. I don't recall at this time. Q. Did you have a pretty good idea what it was going to say before Captain Warren submitted it to Lieutenant Colonel MacLeish?
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Lieutenant Davis to handle while Captain Warren worked on this project. Q. When you say, "this project," you're referring to the report that we have in front of you as Exhibit D-2? A. I'm talking about anything to do with the range. Q. When Tom MacLeish was at the range on January 21st, did you tell him that you thought the range should be shut down until the environmental problems could be fixed? A. No. Because we didn't know exactly what the environment was that we had. We didn't know how contaminated it was, whether it was dangerous or not. We assumed, we had thought that it may be, but we weren't sure. And we were going to provide him with as much information because facilities management wasn't doing it. So we brought in Environmental Solutions to get the samples done to see just what we were being exposed to. That way we could provide that information to the lieutenant colonel and the colonel and the secretary so they could make a decision on what to do.
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A. I believe so. Q. Let me show you what's previously been marked D-2. That's a copy of Captain Warren's report dated January 30, 2004, right? A. Right. Q. Did you write any part of this report? A. I don't believe so. Q. Did you discuss with Captain Warren the contents of the report? A. Yes, I believe I did. Q. At any point prior to February 11 did you have a discussion with Greg Warren about the possibility of shutting down the range until the environmental conditions could be fixed? A. I don't recall at this time. Q. Did you ever have such a discussion with Ralph Davis? A. I don't believe so. Q. Ralph Davis was your immediate supervisor, right? A. Yes. But Captain Warren took the lead on this particular project, so I was dealing directly with Captain Warren. I believe that the academy and the academy class that was in that that was left for

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Q. Did it ever occur to you that it might be a good idea to remove your men from the contaminated area, from the possibly contaminated area until you could figure out whether it was, in fact, contaminated? A. Well, we know that they went back to clean the pumps and sprayer heads and those things, the screens back behind the bullet trap, we knew that they were getting contaminated that way. And we found out from Dr. Green from Health Works about how the water and oil mixture, the oil acts as a penetrator into your bloodstream. So I tried to keep them away from that because we knew that in February we would have downtime because we didn't have any shooters coming in after the recruit class was done. We would have downtime where we could, in turn, have either Savage or another company come in and we could decide on what we're going to do with this facility, with this bullet trap. Q. Well, did it ever occur to you during that time that it might be a good idea to remove your men and the trainees from an area that might be contaminated? A. I knew that back behind the bullet trap was a

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Case 1:04-cv-00956-GMS
Price, et al. Christopher D. Foraker, Volume 1

Document 191-4

Filed 06/19/2006

Page 11 of 200
Chaffinch, et al. December 13, 2005
Page 64

v. C.A. # 04-956-GMS
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problem because of that situation. So we didn't, I didn't have them go back there. Q. I'm really referring to the front of the range where the trainees were and where your men were supervising the trainees in the shooting process. Did it ever occur to you to get people out of there because it might be a dangerous condition? A. I'm not an industrial hygienist and the state has one and I'm asking him, I'm asking him what do we do? And he doesn't do anything. Q. All I'm asking you is whether that thought ever occurred to you, whether it ever occurred, not whether -- I understand that you talked to people at facilities and I understand that you ultimately had the place tested. But my question is whether it ever occurred to you as the NCOIC at the firing range to remove the students and your instructors from a circumstance that might be hazardous to their health? A. I'll put it to you this way: I did not have the authority to shut that range down and I didn't have the authority to stop without some sort of evidence that the place is a problem, that it's a contaminated facility where we should not be training.
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recertification training going on -- let me back up a second so I will make the record clear. Every member of the State Police has to qualify twice a year on their weapons, right? A. Correct. Q. Do you call it qualification or certification? A. Qualification. Q. That means that all the lieutenants and all the captains and all the majors have to come and shoot, right? A. Correct. Q. When they come into the facility are they under your supervision? A. They're under the supervision of all of us, yes. Q. All of you meaning you and your staff at the firearms training unit? A. Yes, strictly as a firearms training environment. Q. That's what I mean. So that if someone who is higher ranking than you is doing something unsafe or what you believe to be unsafe in the range, you can have them removed, can't you?
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Q. My question to you though was whether -- I recognize that you said what you believed to be your authority. And I'm simply asking you whether the thought ever crossed your mind that you should remove your people and the students from what might be a contaminated area? A. I don't recall if it did at this time. Q. As I understand it, you never made that recommendation to Captain Warren, right, that the place be shut down prior to February 11th anyway? A. No. I wanted to get information to fully inform people that had that authority to shut it down or not. Q. I understand. When you are running qualification training for active members of the State Police, what is your authority over higher-ranking officers while they're in the facility? A. I'm in charge of conducting the training that they receive. Q. You're in charge of conditions and procedures on the shooting range itself, right? A. I'm in charge of the curriculum and the training that they receive. Q. When, say, there's a requalification or

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A. You would have to paint that picture pretty clear for me to answer that correctly. I'm not going to try to exercise my authority over someone who is higher ranking than me. If they're doing something unsafe, then we will correct them. But as far as removing them, that would have to be something very extreme for me to remove somebody. Q. Very serious? A. Very extreme. They would have to be a danger to themselves and to others. Q. And if they were, you would remove them, right? A. I would cease fire at that particular time. And since it's never happened to me before, I would have to consult with other ranking officers there at the time to see what we would do. That wouldn't be a sole decision by me. Q. Now, when you say that you would correct the higher-ranking officer, what do you mean by that? A. We would stop their action, per se. Q. So that if the -A. And counsel them and say, "Hey, this is what you did. Please don't do that." Q. The firing range has been described to me as a

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Price, et al. Christopher D. Foraker, Volume 1

Document 191-4

Filed 06/19/2006

Page 12 of 200
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Page 68

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very Democratic environment. Would you agree with that characterization? A. I guess it would be your interpretation of Democratic. What do you mean? Q. I mean that when officers of the State Police are undergoing firearms training, regardless of their rank they all submit to the authority of the person in charge of the range? A. They submit to the authority of the instructors, not just one in particular, but whoever is calling the line, whoever is standing behind them giving them direction. Q. And that would be you and the people that work on your staff? A. That's correct. Q. Could you go back, please, to the MacLeish 5 Exhibit, which is the newspaper article that we started out with this morning. On the second page of Exhibit MacLeish 5, I want to ask you about the paragraph about three quarters of the way down that begins with the phrase "'The bullet trap wasn't cleaned properly,' Mrs. Homer said. 'The back, where the track is, was so poorly maintained that it became unworkable.'"
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hands-on, daily cleaning. Sergeant Ashley was willing to do that.'" Do you believe that because of the frangible ammunition the bullet trap required hands-on, daily cleaning? A. By a trained professional, yes. Q. Do you agree that Sergeant Ashley was willing to do hands-on daily cleaning? A. What I can say about that is the bullet trap had three dry ramps, dry points when I arrived on December 1st. The conveyor system was a problem. He tweaked and tinkered with it that very day and the place was an utter mess everywhere throughout the facility. So I would have to say that Sergeant Ashley didn't do that. Q. He didn't do what? A. He didn't do what they're claiming he did here. And I believe -- interviewing and interrogation 101 when we're trained as police officers, you have an idea of how to read someone, their body language. If you're in their house and you question them if they have any dope or any drugs and their eyes glance to a certain area, you know that's where they're hiding
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Is it correct that the track was unworkable as of April 6, 2004? By "the track" I would assume she means the conveyor system or the drag system as you call it? A. I'm not exactly sure what she means by that. Q. Well, there's only one track on the bullet trap, isn't there? A. Is it a track? Q. Pardon me? A. Is it a track? Q. Doesn't it look like a tank track? Isn't the belt that we have been talking about, isn't it metal? A. Yeah. Okay. So you're saying it looks like a tank track? Q. Yes. Doesn't it? A. I guess you could say that, yes. Q. It was not workable at the point Mrs. Homer saw it, right? A. That's correct. It had failed again. Q. Go over to the third page of the document. Now, I want to ask you down in the middle of the page there's a statement attributed to Colonel Chaffinch and it says, "'Because of the frangible ammunition we were using, the bullet trap required

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their stash. Also, when people say something like to the fact like Lieutenant Colonel MacLeish said to Corporal Price, "I'm not going to fuck you," you know that that's exactly what their intent is. That's interviewing and interrogation 101. And when Major Baylor said when Colonel Chaffinch came back he said he felt like he had been set up, well, that's exactly what he was doing to me. He was setting me up for the fall for the blame for this facility and the condition that was there. And that condition already existed prior to me stepping in the door on December 1st. And by him saying that he felt he was set up, that's exactly what he was doing to me. And I know for a fact that he is friends with Sergeant Ashley. That was established in my first trial. I know that they are friends with Paul Eckrich, who has the control of the budget, and they oftentimes have lunch together. And I'm sure that it will be clear when we gather the evidence from his computer if it hasn't been destroyed that it will show that that was premeditated. Q. Whose computer are you talking about? A. Colonel Chaffinch 's computer.

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Price, et al. Christopher D. Foraker, Volume 1

Document 191-4

Filed 06/19/2006

Page 13 of 200
Chaffinch, et al. December 13, 2005
Page 72

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Q. What is it that you're saying was premeditated? A. I believe that they're framing me right here for this, for the blame of this range being closed. He's using that to blame me and destroy my reputation and my men's reputations. Q. We will get to that. But just for present purposes, do you know what Sergeant Ashley did in terms of maintaining the bullet trap while he was the NCOIC at the range? A. Like I said, apparently he wasn't doing what they're saying he was doing because there were dry ramps, there were problems with the conveyor system. He tweaked and tinkered with that and then come to find out that's what caused the tail shaft to break. Q. Well, all of this are things that you're surmising from -A. No. I think it's pretty clear. Q. Let me ask you this: Between the time you left the range in April, it would have been April 8, 2002, and when you came back on December 1, 2003, did you ever go to the range? A. Yes. Q. How many times? A. The time frame that I wasn't there?
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discussed and that begins with the statement "'I cannot say Sergeant Foraker was willing to do that.'" During the time that is really at issue here, which is December 1, 2003 until April 2004, did you do maintenance of the water system on the bullet trap? I'm referring to you personally. A. We weren't able to. Q. The answer is no, you did not do it then? A. That's correct. We weren't able to. Q. When you say, "we" you're referring to you and -A. Me and my staff. Q. That would be Price, Wayne Warren and Warwick? A. Correct. Q. Is it true that you were interested in instruction and teaching people how to shoot? A. That's my passion and that's our job, yes. Q. Is it true that you did not feel the bullet trap cleaning was part of your purview? A. No. That's an absolute lie. Q. Did you feel the bullet trap cleaning was part of your purview? A. Yes. Q. And did you do any bullet trap cleaning between
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Q. Right. A. I believe it was three times. Q. Would those have been your qualification shoots? A. Yes. Q. Any time other than that? A. I don't believe so. Q. Do you know what Sergeant Ashley was doing in terms of bullet trap maintenance on a daily basis? A. No, I don't. I don't know if he was doing anything at all. Q. I understand. Go to the next paragraph. A. I know that when I took over on December 1st he actually made the statement while we were back there and he was tinkering with it that this is a full-time job just taking care of the bullet trap, which is one thing that I do agree with. It's a full-time job for a professional that knows what they're doing, they're trained, not only in how to operate and fix and clean the equipment but also trained and equipped to protect them against hazardous materials. Q. Go to the next paragraph, please. A. Where are you? Q. The one immediately below the one that we just

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December 1st and April 6th, 2004? A. No. I was unable to. Q. Did you feel that doing bullet trap cleaning was putting you in harm's way? A. I thought the possibility existed. Q. Well, as of April here you know a lot more about the facility than you knew in December 2003, didn't you? A. That's correct. Q. And as of April 2004 you knew what all the chemicals were that were used in the bullet trap, didn't you? A. As of when? Q. April 6, 2004. A. Yes. Q. And did you believe that for you to deal with those chemicals was putting yourself in harm's way? A. Without the proper training and equipment provided to me and my men, yes. Q. Now, you said that you were unable to do the cleaning of the bullet trap between December 1st and the time the range shut down. Why was that? What was it about the circumstances that made it impossible for you to do that?

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Price, et al. Christopher D. Foraker, Volume 1

Document 191-4

Filed 06/19/2006

Page 14 of 200
Chaffinch, et al. December 13, 2005
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A. Like Sergeant Ashley had said to me, it's a full-time job and being the NCOIC of the firearms training unit is a full-time job. I requested a fifth person when I was there the first time in 2001 to 2002 and that was granted for that unit, but I was transferred away from it. I was illegally transferred out of there by Colonel Chaffinch. Ashley, Sergeant Ashley, who took my place, was afforded a fifth person. Q. Okay. A. Even though he had a fifth person, he still wasn't able to keep up, if he says he was doing the bullet trap maintenance he still wasn't able to keep up with the conditions of that range. The conditions of that range when I walked in there on December 1st were a mess. It was a disaster everywhere. Q. Are you saying that you couldn't do the work on the bullet trap because you didn't have time? A. That's a large part of it, yes. Q. Are there other parts of it? A. We didn't have time. We didn't have enough personnel to do that. Q. That's the same thing as saying you don't have enough time, right?
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full-time position. He said that he would have to talk to his superiors as to whether they could afford to put a technician there full time; they may not be able to do that. So then I went beyond that and contacted mechanical companies in the area to try to get them to come in and give us a price quote of somebody maintaining the bullet trap. Once they found out, once those mechanical companies found out that they would be dealing with lead exposure, they wanted nothing to do with it. Then eventually I contacted Environmental Solutions and talked with them about it. Joe Farrell from Environmental Solutions then came in. He looked at the facility and the bullet trap and he was trying to work out, come up with some idea of how to make this a simpler cleaning process back there with the bullet trap to keep the water clean and fresh because as it stood there now it's not working. And technically it never really did work right. It was constantly being modified over the years. Q. You're referring to the bullet trap now? A. Yes. That's what I was talking about just
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A. If you surmise it that way, yes. Q. Was there any other reason other than the number of people you had working there? A. The fact that Dr. Green had said what was causing their blood levels, my staff's blood levels to rise and spike up, with that that was also an issue that I was thinking about that maybe I shouldn't have them do that. I contacted Captain Warren and told him the circumstances of the bullet trap, that it's far behind on maintenance now; can we look into having either Savage or facilities management putting somebody in this position here to take care of this that's trained in dealing with any type of hazards that they come across in this bullet trap and also be able to take care of the mechanical aspect, a technician that can be trained to take care of this bullet trap because we're unable to do that? And we're also having problems with our lead levels rising. When I talked with him, I then also after talking with him I got in touch with Mark D'Allesandro from facilities management and I brought him in and we talked over the bullet trap problems and all of the issues to deal with that. He agreed that's a

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then. The ventilation system has always been modified and a constant problem. Q. Did you discuss with Rich Ashley on December 1, 2003 the condition of the bullet trap? A. Yes. Q. And what did he say to you about the condition of the bullet trap? A. He said that "We replaced the conveyor system and put a drag belt in and we have had problems with it. We have been trying to get it to work." And then he wanted to explain it to me and we walked back behind it and he showed it to me. And while he's talking about it, he picks up a wrench in hand and there was a plate that was over top of a sprocket and chain assembly. That was removed. He had that off. And while the system was running, the chain was just slapping the edge of a bracket. And he started tinkering with adjustment points for that motor assembly to tighten that chain, slide the sprocket further away to tighten the chain and so forth. And I'm thinking to myself I don't know what you're doing; I know that you're adjusting things, but I'm not a technician. And he said, "Well, I can do this because I have my chicken farm, my

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poultry farm, and I have a lot of equipment that is similar and I work on it and keep it running, so I have been keeping this thing running." Q. Did you discuss while you were back behind the bullet trap with Rich Ashley whether the pumps were working as they're supposed to? A. He said it was a daily, daily issue where the pumps were clogging, where they would become dry on the other side at different locations. I noted that in my mind that there were three spots that were dry December 1st. Those were the same three spots that were dry when we shut the range down in March. We just shot around those dry spots in the wet areas. He actually said that he replaced the original pumps with more super heavy-duty trash pumps and he said that there's so much silt in the water that it's got, it's got to push the silt through the sprayers. Q. Okay. Did you discuss the changing of the filters with Mr. Ashley or with Sergeant Ashley? A. He just said maintaining this is a full-time job in and of itself. Q. After you took over the range on December 1st, 2003, did you replace any of the pumps?
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else. The diagnosis was not -- I didn't finish finding out what exactly it was because that would be labor intensive and time consuming to take the sprayer heads off and try to get them unclogged. Q. Well, fixing a sprayer head that was clogged is something that you had done during your first tour of duty as the NCOIC at the range, right? A. I had done that prior to us shooting frangible ammunition. Since frangible ammunition, that stuff like turns to concrete when it gets dry. Q. I understand that. A. I would imagine that you probably would have to order new sprayer heads and have them reinstalled because they're like a bar and if the silt lays in there and it's blocking it, it's probably turned to concrete at some point in time where it got dry and then dried out and then turned to concrete, so you're not going to be able to get that out of there. Q. During your first tour of duty as the NCOIC were you shooting frangible ammunition? A. Yes. Q. Did the residue from the frangible ammunition clog the sprayer heads at some point or another? A. Sometimes it would, but a lot of times it would
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A. I had checked on one or two of them that were dry and the pump itself was fine. It was running, which would mean that the -- and I think I opened up the canister. And the canister where the -Q. Where the filter is? A. -- where the filter is wasn't completely clogged. I mean, it had debris in it, but it was flowing through it. I put the cap back on. So that would probably have meant that the sprayer head or the valve itself was bad. Q. Did you repair the sprayer head or the valve? A. No, I didn't. It was getting to where it was too time consuming what was going on and there were so many other things, so many other things at the facility that was going on that was wrong or that was broken or that needed attention and so forth. Q. After you returned to the range on December 1st, 2003, from that point until the time the range was shut down did you or the staff working under you replace any pumps? A. I don't believe so because, like I just said, I think I checked on at least one, maybe two of the three that had dry ramps out in front and they didn't need a new pump that I could tell. It was something

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clear itself. Q. Did it clog the filters? A. Yes. Q. This is during your first tour of duty? A. Yes. Q. That would be August 2001 through April 2002? A. Yes. Q. I thought you testified earlier this morning that during that period when you were the NCOIC in 2001 and 2002 that you and the people working under you replaced pumps, cleaned the filters and unclogged the sprayer heads. Was I mistaken in that? Is that what your testimony was? A. No. That was all what occurred, yes. Q. Now, when you came back beginning December 1, 2003 did you and the people that worked under you at the range do those same things, replacing the filters, replacing the pumps, cleaning the sprayer heads? A. When I came back December 1st? Q. Yes. A. No. That had not been done. Q. Was it done during the period from December 2003 to when the range closed?

21 (Pages 78 to 81) Wilcox & Fetzer, Ltd. Professional Court Reporters (302)655-0477

A315

Case 1:04-cv-00956-GMS
Price, et al. Christopher D. Foraker, Volume 1

Document 191-4

Filed 06/19/2006

Page 16 of 200
Chaffinch, et al. December 13, 2005
Page 84

v. C.A. # 04-956-GMS
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A. No, it