OAKLAND (CN) — The Oakland Police Department and its former chief handled the 2018 death of a homeless man in a hail of police gunfire with “an appalling measure of incompetence, deception, and indifference,” the department’s independent monitor said in a withering report released Monday.
The report skewered the police department and former chief Anne Kirkpatrick for prematurely defending the five officers who fired 22 rounds at 31 year-old Joshua Pawlik, found sleeping with a gun at his side in a West Oakland alley on March 11, 2018.
“One officer fired seven times; another, six times; another, five times; and another, four times — all in a total of 2.23 seconds,” federal police monitor Robert Warshaw wrote in his report.
After the shooting, Kirkpatrick called Warshaw to tell him that the officers were justified in fatally shooting Pawlik because he had pointed a gun at them, saying it “looks good.”
But Warshaw was critical of Kirkpatrick’s premature assessment of the tragedy, cautioning her at the time “that she should not reach conclusions so early in the process.”
Kirkpatrick’s position was unwavering as the investigation progressed, despite video evidence that did not support the officers’ claims that Pawlik was “alert and awake,” and “appeared agitated and upset” before “scanning from side to side” and “purposefully and intentionally pointing his weapon at officers” according to Warshaw.
“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. “Instead, for Joshua Pawlik, for the police department and for the Oakland community, there has been only a tragic litany of failures.”
The department has been under the supervision of a court-appointed monitor for 17 years, as a condition of a settlement in the 2003 civil rights lawsuit Delphine Allen et al. v. City of Oakland. The case arose from the “Riders” scandal, where four police officers were accused of kidnapping, beating, robbing, and planting evidence on residents of an impoverished neighborhood in West Oakland while the department turned a blind eye.
The settlement was supposed to last five years with no more than one additional two-year extension, but U.S. District Judge Thelton Henderson extended it several times as the department failed to meet reform benchmarks like reducing officer-involved shootings and racially motivated traffic stops.
Warshaw was appointed monitor in 2010 and elevated in 2014 to the additional position of compliance director by Henderson, who has since retired. U.S. District Judge William Orrick has taken over the case.
“The shooting of Mr. Pawlik exposed an appalling measure of incompetence, deception, and indifference,” Warshaw wrote, characterizing the department’s investigation as tainted from the start, including the “incomplete and deficient investigations” conducted by its criminal investigations and internal affairs divisions that failed to challenge the officers’ accounts of what happened.
“Too many persons charged with the responsibility of internal review and oversight quickly, and ultimately, described this tragedy as a ‘good’ shooting and one that was consistent with law and policy,” Warshaw wrote. “It was not a ‘good’ shooting.”
The officers responsible for Pawlik’s death, William Berger, Brandon Hraiz, Craig Tanaka, Josef Phillips and Francisco Negrete, were fired in 2019.
They fought their termination in court after Warshaw overrode Kirkpatrick’s decision not to discipline them and a separate tribunal made up of members of the civilian Oakland Police Commission agreed with him. They were briefly reinstated in April, but Orrick upheld their termination in June.
An executive force review board of two captains and a deputy chief reviewed the CID’s and IAD’s findings. The deputy chief seemed dismayed that the officers used an armored vehicle as a shooting platform and found Negrete’s supervision of the arrest team “outrageous” and grossly negligent. But Warshaw’s report said one of the “captains placed the entire blame for the shooting on Mr. Pawlik,” and mentioned that the discussions between the captain and deputy chief were extremely tense. Ultimately the board sided with Kirkpatrick that the officers used appropriate force and should not be disciplined.
“It is especially disappointing that the chief did not seem to be an honest broker here,” said Oakland civil rights lawyer John Burris, whose offices represented Pawlik’s family in a wrongful death action against the city.
“I knew the outcome of the case, but I didn’t realize there was this kind of discourse within it indicating that the officers were literally given a break and were not critically evaluated. And there was this sense of the old boys’ network which was employed,” he said, adding Kirkpatrick set the whole tone for the investigation with her initial statements about the shooting looking “good.”
“There’s always an effort to justify shootings as quickly as they can,” Burris said. “They don’t want the public to have a positive view of the victim.”
Warshaw was also unsparing in his criticism of Oakland Mayor Libby Schaaf, who described the shooting as “awful but lawful” — a phrase he said “trivialized an avoidable tragedy.” Warshaw’s report excoriated Schaaf for her silence after reviewing video footage of the shooting.
“Perhaps the most telling act of avoidance came from City Hall. According to Chief Kirkpatrick, in the fall of 2018, as the CID and IAD investigations were underway, the chief showed the video of the shooting to the mayor,” he wrote. “According to the chief, the viewing of the video was met with silence. The mayor did not ask questions or provide direction. Although in more recent national events, the mayor has been vocal, her steadfast silence in this matter was troubling.”
Burris called the report “a real indictment of the mayor.”
“If you don’t have all the political leadership on board, if they’re not all working in the same direction, you cannot bring about robust changes,” he said, adding Schaaf’s perception of the incident may have been influenced by her confidence in Kirkpatrick.
“She had confidence in the chief that many of us did not,” Burris said. “She might have been blinded by the chief’s suaveness. The mayor is a good person. She wants things to work, but she did hire this person and you have to have confidence in the person you hire. Until you don’t.”
The civilian police commission, with Schaaf’s support, fired Kirkpatrick in February. Pawlik’s family settled their lawsuit with the city of Oakland in April for $1.4 million.
Schaaf’s office called Pawlik’s death “a devastating loss” for the community but said Warshaw did not interview Schaaf for the report.
“The mayor was not interviewed for his report and it omits several actions she took, including her immediate direction to the chief of police to create a new policy for officers who interact with unconscious individuals,” Schaff’s spokesperson Justin Berton said. “As we await an official policy adoption, changes in training and practice have already led to safer outcomes for both residents and officers. The city of Oakland administration and Oakland Police Department will respond further to the report at the next case management conference with the federal judge on Sept. 22.”
Kirkpatrick fired back at Warshaw late Monday in a statement through her spokesman Sam Singer. “Mr. Warshaw’s report on the Pawlik shooting is purposely misleading and attempts to hide important issues that should be of public concern,” she said.
Kirkpatrick said she wanted outside experts to evaluate the department’s internal investigation, a proposal Warshaw nixed as unethical because Kirkpatrick had contacts with potential members of the external review board.
“Even without an independent investigation, as I had proposed, at least four review boards or investigative agencies examined the conduct of the OPD officers involved in Mr. Pawlick’s death,” Kirkpatrick said.
Warshaw’s latest report, she said, is an attempt to intimidate her over past criticism of the millions of dollars Oakland taxpayers have forked over for Warshaw’s monitoring services. She also called for his firing in an op-ed published in the San Jose Mercury News in March.
“Mr. Warshaw knows that I have been critical of him and that I have called for him to be removed. This ‘report,’ coming years after the incident and months after I filed my claim, appears to be his effort to defend himself and the City,” Kirkpatrick said Monday.
Kirkpatrick has filed a claim against the city over her ouster. “I will not be intimidated,” she said. “I intend to file my case in court shortly.”
In May, Orrick told attorneys for the police department and the city that he expects to see progress on implementing the reforms demanded by the settlement.
“What’s needed now is results,” Orrick said. “It’s not enough to say good things and pat ourselves on our backs for what we’ve accomplished. It’s to finish the job.”
Burris, one of the lead plaintiff attorneys in the Allen case, said he’s heard it all the before.
“Having been involved this case for almost 20 years. I was hoping that by now that the department would have the ability to police itself. Obviously that’s not the case,” Burris said. Of Warshaw’s report, he said, “It certainly won’t help the judge feel better about the department.”
At the hearing in May, lawyers for police department said its internal culture has changed, touting Susan Manheimer’s appointment as interim police chief in March.
“I’ve seen the parade of chiefs, managers, commanders and consultants. But we have a new culture at OPD. We have a new command culture. We have a chief who is a leader in her industry,” said Rockne Lucia, an employment attorney with Rains Lucia Stern St. Phalle & Silver, PC who represents the police union. “From the union’s perspective, rank and file, we have seen a change from the top to the bottom.”
Burris said that “remains to be seen.”
“I want there to be a new culture I want things to change. I want this department to be a national leader in how it conducts its business. You don’t know how they respond to the crisis until it occurs. I’m always optimistic. I want to be hopeful.”