Officers Who Shot and Killed Armed Homeless Man Take Firings to Ninth Circuit

Five Oakland, California, police officers and the police chief lost their jobs in the wake of the 2018 incident.

Oakland Police officers dressed in riot gear. (Photo via Wikipedia Commons)

(CN) — Five former Oakland police officers who shot and killed an armed homeless man in an alleyway in 2018 say they were fired despite several reviews and investigations that found their actions justified. On Monday, they told a Ninth Circuit panel their terminations by a court-appointed federal monitor did not comply with the city charter.

Oakland police officers 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. Video from the shooting disputed the officers’ claims that Pawlik was alert and aggressive when they fired on him from behind an armored vehicle. But then-police chief Anne Kirkpatrick determined the officers’ actions were appropriate.

The Oakland Police Department has been under the supervision of a court-appointed monitor for the last 18 years, the condition of a 2003 civil rights settlement. Monitor Robert Warshaw overrode the decisions of Kirkpatrick and a separate review board and recommended the city fire the officers involved in the shooting, while blasting the level of incompetence surrounding the shooting and investigations that followed.

Former officers Francisco Negrete, William Berger, Brandon Hraiz, Craig Tanaka and Josef Phillips sued the city of Oakland over their termination. Kirkpatrick also sued the city over her termination.

U.S. District Judge William Orrick dismissed the officers’ case, ruling the city’s actions were consistent with its rights under the charter. Additionally, Orrick found Warshaw has the power to overrule a police chief’s findings or “stand in the shoes of the chief as the last word on discipline.”

The former officers appealed the ruling and made their case before a three-judge Ninth Circuit panel on Monday. According to their attorney Zachary Lopes of the firm Rains Lucia Stern, multiple review bodies found their actions justified, including a report released this March, and Oakland’s city charter supersedes any consent decree.

The 2003 settlement agreement, Delphine Allen et al. v. City of Oakland, and a 2012 order that placed the police department under the federal monitor supervision, is not a state or federal constitutional provision that supersedes the city charter, Lopes told the panel.

“The terms of the city’s charter are in effect the local constitution of the city,” Lopes said, arguing Orrick’s order improperly elevated the terms of the settlement which overstepped the charter.

U.S. Circuit Judge Daniel Collins, a Donald Trump appointee, asked Lopes how his interpretation was possible.

“But it’s a federal court order implementing obligations that arise from federal law and the issues that were resolved in that lawsuit,” Collins said. “So, why isn’t that superseding federal law that trumps any state law that’s in the charter?”

Lopes argued the 2012 consent decree is not a federal constitutional provision.

“The city cannot consent to terms that call for it to act in violation of its charter,” he told the panel.

Collins pressed the issue. “So, you’re saying that if the city enters into a consent decree, which has the force of federal law, then the city can get out of it the next day by changing its charter?” Collins asked, to which Lopes responded: “Yes, they can.”

Collins scoffed. “Doesn’t that make a mockery out of federal supremacy?” he asked.

Lopes sidestepped the question and said the 2012 consent decree was not a review of Oakland’s city charter. Collins kept drilling.

“When the court displaces the authority of the chief of police with a court-appointed officer and gives that court-appointed officer authority over hiring decisions and over investigation and does that to resolve federal civil rights issues, there’s no authority to displace state law?” Collins asked.

Lopes argued Orrick misunderstood the Allen agreement and noted the city still denies the allegations made in that case.

“I don’t understand what you’re saying,” said U.S. Circuit Judge J. Clifford Wallace, a Richard Nixon appointee. “They entered into an agreement, didn’t they? A settlement agreement before a federal judge. And now you’re saying from this day on the civil war continues?”

Lopes argued the legal force behind the order to appoint a federal monitor is only as good as the city’s ability to consent to its terms, and again argued the city cannot violate its own charter. In fact, Lopes said, the order undermines and frustrates Oakland’s charter and, in this case, how the chief of police disciplines their officers.

Arguing for the city of Oakland, attorney Gina Roccanova with Jackson Lewis said there is no conflict between the consent decree, its orders and the city’s charter. Oakland’s police commission, a six-member citizen oversight board, oversees the city’s compliance with the consent decree for as long as its orders are in effect.

“That alone should end the analysis right there,” said Roccanova.

Senior U.S. District Judge Jed Rakoff, a Bill Clinton appointee sitting by designation from the Southern District of New York, rounded out the panel. The judges did not indicate when they would rule.

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