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Ninth Circuit revives fired police officers’ lawsuit against Oakland

The five officers, fired after fatally shooting a homeless man in 2018, will have the chance to fight their terminations again in state court.

OAKLAND, Calif. (CN) — Five Oakland police officers who were fired after fatally shooting an unarmed homeless man in an alleyway will be able to challenge their termination in state court after an appellate panel threw out a federal judge’s 2020 ruling upholding the city of Oakland’s decision to fire them.

The panel's Friday ruling marks the latest turn in a tortuous case that largely hinges on who has the authority to fire police officers in Oakland.

It all started in a West Oakland alley on the evening of March 11, 2018. Officers were dispatched to the 900th block of 40th Street near the MacArthur BART station, where they found 31-year-old Joshua Pawlik sleeping with a gun at his side.

Police blocked off the street and surrounded Pawlik, who was lying between two buildings. Officers William Berger, Brandon Hraiz, Josef Phillips, and Craig Tanaka were on the scene along with their supervisor Sgt. Frank Negrete. They brought in an armored vehicle, which Negrete, Berger, Hraiz and Tanaka used for cover as they took positions with AR-15 rifles. Officers shouted commands at Pawlik, and as he began to sit up the sergeant and three officers unloaded 22 rounds in less than 3 seconds. A fifth officer, Phillips, shot less-lethal beanbag rounds at Pawlik.

Video from the shooting disputed the officers’ claims that Pawlik was alert and aggressive, and that he had reached for his gun when they fired on him.

Four internal investigations and two criminal probes by the Alameda County District Attorney’s Office and the investigative arm of the Oakland Police Commission cleared the officers of wrongdoing, though it also found Negrete had been “grossly derelict” in his supervisory duties.

Then-Police Chief Ann Kirkpatrick agreed with the outcome of the internal reviews and recommended no disciplinary action, a decision that led to a clash with federal monitor Robert Warshaw.

Warshaw, who oversees the department's compliance with court-mandated reforms arising out of a police brutality and corruption scandal from 2000, blasted Kirkpatrick’s premature assessment of the tragedy.

“Our shared humanity should have ensured, at the least, that the Oakland Police Department would have taken better care to avoid the death of Mr. Pawlik. Failing that, the department should have conducted a more thorough and honest review of this event to provide a foundation for reform,” Warshaw wrote in a scathing report in 2020.

The five officers were eventually fired on Warshaw’s recommendation, but appealed the decision as part of a “Step 3” grievance procedure pursuant to the city's memorandum of understanding with its police union.

The city then retained Jeffrey Sloan, a Berkeley-based employment lawyer, to review the incident. His report found the officers did not violate the department’s use-of-force policies when they opened fire on Pawlik, but Sloan faulted Negrete for not taking steps to ensure that a single speaker was giving commands to Pawlik as officers took positions around an armored vehicle. This resulted in “many different and somewhat contradictory, potentially confusing commands to Pawlik,” said Sloan’s report, which concluded that they should still keep their jobs.

The officers fought their termination in Alameda Superior Court, where Judge Frank Roesch ruled the city should follow Sloan’s recommendation and that the officers should be reinstated.

The officers also challenged Warshaw's authority in a separate federal lawsuit before U.S. District Judge William Orrick, who sided with the city in a ruling where he said Warshaw has “the last word on discipline” as compliance monitor.

In the latest development in the case, a three-judge Ninth Circuit panel overturned Orrick on jurisdictional grounds. The panel found it did not have the authority to consider the merits of the officer’s claims, but determined that the case belongs in state court because the officer’s claims “exclusively assert state law causes of action.”

Writing for the majority, U.S. Circuit Judge Clifford Wallace said federal law doesn’t apply to the officer’s claims since they’re not bound by the consent decree arising out of the 2000 civil rights lawsuit that led to Warshaw’s appointment as compliance monitor.

The Richard Nixon appointee found the officers’ claims also fall outside the “special and small category” of state law causes of action that arise under federal law.

“This is a case arising under state law that properly belongs in the state courts,” Wallace wrote. “We recognize our decision today does not resolve the parties’ dispute and it has been nearly three years that the parties have been before federal court. But we are not free to disregard or evade” the limits of federal jurisdiction.

In an emailed statement, the officers' attorney Zachery Lopes with Rains Lucia Stern said the officers are pleased that the Ninth Circuit vacated Orrick's ruling.

"Although not decided by the court, we still believe that the city failed to comply with its charter in the manner in which it terminated out clients. We will review the 9th Circuit’s decision and evaluate how to proceed," Lopes said. "There can be no doubt, however, that our clients’ conduct has been vindicated by multiple independent reviewers, including the city’s retained lawyer who overturned the police commission’s terminations of our clients."

U.S. Circuit Judge Daniel Collins, a Donald Trump appointee, joined Wallace's opinion. In a brief dissent, U.S. District Judge Jed Rakoff, sitting on the panel by designation from the Southern District of New York, said he thought the case plainly raised a federal issue because “In order to prevail on their claims, the officers must establish that the federal consent decree did not obligate the city to adopt the procedure it did.”

Oakland City Attorney Barbara J. Parker declined to comment Friday.

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