OAKLAND, Calif. (CN) --- A new report concludes that four Oakland police officers were justified in shooting a homeless man in 2018 and that they should be rehired, despite contrary findings by a court-appointed monitor and the city’s police commission.
The city hired Jeffrey Sloan, a Berkeley-based employment lawyer, to review the incident in which officers fired 22 rounds at 31-year-old Joshua Pawlik, a homeless man found sleeping with a semiautomatic gun in his hand in a West Oakland alley on March 11, 2018.
The report was commissioned by the city’s human resources director as part of a “Step 3” grievance procedure pursuant to the city of Oakland’s memorandum of understanding with the police union.
Sloan, who was paid $160,000 to conduct the review, found former officers William Berger, Brandon Hraiz, Josef Phillips, and Craig Tanaka did not violate the department’s use-of-force policies when they opened fire on Pawlik.
The report found the four officers were following the orders of former police Sgt. Frank Negrete, who was also fired for the shooting. It 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,” the report stated.
The report also notes that Negrete shared his plan with his supervisor, Lt. Alan Yu.
“The officers were situated based on their sergeant’s decision and direction --- one approved (actively or implicitly) by his lieutenant,” the report stated. “The officers were not in a position to challenge the plan, because the set-up was not inconsistent with policy, and had they wished to do so, things were moving too fast.”
The Oakland Police Department did not respond to requests to make the report available Wednesday, but Courthouse News obtained the report from another source. Details of the review were first reported by the San Francisco Chronicle on Tuesday.
According to a prior review by a court-appointed monitor, police had blocked off the street and surrounded Pawlik, who was laying between two buildings. Police 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.
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. Former Oakland Police Chief Ann Kirkpatrick agreed with the outcome of the internal reviews and recommended no disciplinary action.
But Robert Warshaw, the court-appointed monitor overseeing the department’s compliance with an 18-year-old settlement agreement, reached the opposite conclusion. He criticized Kirkpatrick for prematurely assessing the shooting as justified. He said video evidence contradicted 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.”
Warshaw overrode the police chief’s decision and recommended that the officers be fired. The Oakland Police Commission, a six-member citizen oversight board, concurred with Warshaw’s conclusion and voted to terminate the officers in July 2019.
Kirkpatrick came under fire for her handling of the Pawlik shooting. She was later fired without cause by Mayor Libby Schaaf after the police commission unanimously recommended her termination. Kirkpatrick sued the city in August last year, claiming she was fired for blowing the whistle on police commissioners whom she accused of abusing their power and demanding special treatment.
In a statement Wednesday, Kirkpatrick welcomed the new report on the Pawlik shooting as vindication of her decision to clear the officers of wrongdoing. She noted that multiple investigations reached the same conclusion.
“The fact is, all who viewed the facts in their entirety and dispassionately agreed that the officers acted within department policy,” Kirkpatrick said.
In a phone interview, Oakland Police Commission chair Regina Jackson said she found it “problematic” that the city did not inform the commission that it was spending $160,000 on another review of the incident.
She also suggested the report may have been biased in favor of police officers because former Oakland police chief Howard Johnson works as a private investigator for the Sloan’s firm, which conducted the review.
“That sounds like the most huge conflict of interest I could ever imagine,” Jackson said.
The five fired officers challenged their termination in a state court lawsuit. But the case was moved to federal court, where U.S. District Judge William Orrick oversees Oakland’s compliance with a 2003 settlement of a civil rights lawsuit.
The former officers argued the police commission can only impose discipline when there is a disagreement between the police chief and the commission’s investigative arm, the Community Police Review Agency (CPRA).
Judge Orrick rejected that argument in a June 2020 ruling. He found the city agreed to let the federal monitor overrule the chief’s decisions on disciplinary actions, and in this instance, the monitor was “acting in the shoes of the Chief.”
“The commission was within its rights and obligations to convene its disciplinary committee to resolve the conflict between the CPRA’s decision and the final decision of the department, which in this instance was the compliance director’s decision that stood in the place of the overruled determination made by former Chief Kirkpatrick,” Orrick wrote in his 14-page decision.
The officers appealed that decision to the Ninth Circuit. Oral arguments for the appeal are scheduled for May 10 in San Francisco.
The four former officers --- Berger, Hraiz, Phillips and Tanaka --- are represented by Michael Rains of Rains Lucia Stern. Rains did not immediately return an email and phone call seeking comment Wednesday.Follow @NicholasIovino
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