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Last week, a federal judge decided that five Oakland police officers who were fired after killing a homeless man two years ago should remain fired. The officers have attempted several times to overturn the city’s termination of their jobs.
U.S. District Judge William Orrick’s ruling is the latest twist in a complicated and controversial police misconduct case that has pitted Oakland’s Police Commission—a civilian body created by Oakland voters in 2016 to oversee the police department—against the Oakland Police Officers’ Association, the city’s police union.
Kelly Pawlik, the mother of Joshua Pawlik, the homeless man killed by the officers in 2018, told The Oaklandside the judge’s ruling is a win for police accountability in Oakland and beyond. The ruling comes against the backdrop of a growing national movement to rethink when and how police can use deadly force, and what should happen when their decisions are called into serious question.
“This case proves how hard it is to actually have police officers fired,” Pawlik said. “There must be strong, independent civilian oversight over police discipline policies and rulings.”
Attorneys who represent both the Oakland police union and the five fired police officers—Sergeant Francisco Negrete, William Berger, Brandon Hraiz, Craig Tanaka, and Josef Philips—did not respond to a request for comment about the judge’s Friday ruling.
According to attorneys involved in police reform efforts in Oakland, the ruling is noteworthy because it rejects an attempt to weaken the powers of the Oakland Police Department’s compliance director, who can order the city’s police chief to fire officers that violate department rules.
“It was like they were trying to hijack authority,” said civil rights attorney John Burris, who helps oversee the Oakland Police Department’s reforms.
The civilian chair of the Oakland Police Commission, Regina Jackson, said the federal judge made the right call. “This decision is a victory on behalf of the Oakland Police Commission and the discipline committee,” Jackson said.
Investigating the shooting
The five officers were fired for killing Pawlik, a 31-year-old man who struggled with homelessness and drug addiction much of his adult life. When OPD initially responded to a call about Pawlik, on March 11, 2018, he was lying unconscious in a narrow alleyway between two West Oakland homes, holding a pistol in his hand.
Oakland police surrounded the entire block, and Sergeant Negrete led a team of four other officers tasked with devising a plan to arrest Pawlik. But when Pawlik awoke, Negrete and officers Berger, Hraiz, and Tanaka shot and killed him. Officer Phillips fired a beanbag round at Pawlik from a shotgun.
The officers claimed that Pawlik raised up his gun and pointed it at them while they were standing behind an armored vehicle, but video of the shooting, captured on another officer’s body camera and analyzed by several experts, did not show that Pawlik posed a definite threat.
The killing did not spark massive public outcry at the time, but it did trigger the city’s complex police discipline process, starting with an investigation by OPD’s internal affairs unit.
Eight months after the shooting, an Executive Force Review Board, made up of three Oakland police commanders, was created to examine the internal affairs record and determine if any of the officers violated department policies. The commanders decided the five officers’ use of deadly force was appropriate.
But the commanders also ruled that Negrete was “grossly derelict” in his duty to supervise the arrest team, and determined that he could be fired for negligence. The board also determined that Tanaka improperly armed himself with a rifle without advising anyone, a suspendable offense.
In January 2019, then-Oakland Police Chief Anne Kirkpatrick received the commander’s report and made her final decision. Kirkpatrick agreed with the board that the officers should face no discipline for killing Pawlik.
But Kirkpatrick rejected what the board had concluded about Negrete. She reduced his discipline to the level of a demotion, saving him from termination. She also rejected the finding that Tanaka improperly armed himself with a rifle.
Yet another oversight body stepped in. The civilian Oakland Police Commission’s investigative agency, the Civilian Police Review Agency, opened its own independent investigation into the Pawlik shooting seven months after the incident, but CPRA staff did not conduct any of their own interviews with the officers.
Instead, the civilian investigators relied on OPD’s documents and recorded interviews. In April 2019, CPRA filed its report. The agency reached the same conclusions as Kirkpatrick.
Enter the ‘compliance director’
This could have been the end of the story, and the five officers could have simply kept their jobs, given that the police chief and the Civilian Police Review Agency were in agreement.
But, in February 2019, Robert Warshaw, the OPD’s compliance director, also weighed in on the department’s investigation of the shooting.
Warshaw was appointed by a federal judge in 2014 to ensure that the Oakland Police Department follows the terms of a 17-year-old court-enforced agreement to reform the department following earlier allegations of police misconduct.
Warshaw was not pleased. He wrote that he found multiple serious problems with OPD’s investigation, including the fact that OPD’s internal affairs investigators chose not to use video footage of the shooting to challenge statements made by the five officers about why they killed Pawlik.
“Their assertions are contradicted by the raw and enhanced versions of the video,” Warshaw wrote.
Warshaw also said OPD investigators ignored the fact that the five officers were shielded from Pawlik by an armored vehicle. He said they glossed over the fact that the officers had roughly 40 minutes to devise a plan about how to respond to Pawlik if he woke up, but didn’t. Instead of using the vehicle as cover as Pawlik finally awakened, Warshaw wrote, “they utilized it as a shooting platform.”
Using the full force of his powers as the compliance director—powers agreed to by the city of Oakland and the police officers’ union in 2012—Warshaw overrode Kirkpatrick’s decisions and ordered the city to fire the five officers for using deadly force. In effect, Warshaw’s decision stood in for the chief’s decision.
The five officers were put on paid administrative leave in March 2019, one year after killing Joshua Pawlik.
Police Commission intervenes
After Warshaw issued his ruling, there were two conflicting decisions on record. OPD’s official position was now that the five officers should be fired, thanks to Warshaw, but the civilian Police Commission’s investigative agency, CPRA, had ruled that the officers should be allowed to keep their jobs.
To resolve this contradiction, the Police Commission formed a “discipline committee,” a group of three civilian commissioners who were tasked with considering both Warshaw and CPRA’s reports, side by side, and making a final decision.
The Police Commission was given the power to form such a committee in 2016, when Oakland residents first voted the Commission into existence. The Pawlik case was the first time the Commission convened a discipline committee.
In July 2019, the Commission’s discipline committee met several times. They ultimately voted to fire the five police officers.
Fired officers sue the city
The five officers filed suit in state court in August 2019, alleging that the Police Commission had no authority to terminate them. Their legal argument was based on a reading of the Oakland city charter, and the fact that then-police chief Anne Kirkpatrick did not back down from Warshaw. She stuck to her decision to not discipline the officers, despite the fact that Warshaw’s decision overrode hers thanks to the power granted to him by a federal court.
Attorneys for the five officers wrote in their lawsuit that the city charter allows the Police Commission to form a discipline committee only if there is a conflict between the police chief and the Civilian Police Review Agency’s findings in a case. Given that Warshaw is not the chief, they argued, the discipline committee should never have been convened.
They asked for a court order reversing the Commission’s decision and reinstating the five officers. In effect, they were asking a judge to block the compliance director’s power to impose discipline on police officers who violate department rules.
But their lawsuit didn’t remain in state court. The city’s attorneys had it moved to federal court under a rule that allows for a dispute that would significantly impact another ongoing case to be heard before the same judge.
Judge William Orrick, who oversees the Oakland Police Department’s compliance with “the Riders” case, a federal civil rights lawsuit filed in 2000 and settled in 2003, was assigned to hear the five officers’ lawsuit. The so-called Riders were four Oakland officers accused of racial profiling, brutality, and more. Some of their victims successfully sued OPD, alleging a wider culture that enabled their misconduct.
During a telephone conference on May 22, Judge Orrick heard arguments from attorneys on both sides. “This is about the primacy of city charters,” said Harry Stern, an attorney for the fired officers.
“The petitioners are treating the court’s orders as if they are simply voluntary,” attorney Gina Roccanova argued on behalf of the city, explaining how Warshaw’s decisions overrode those of Kirkpatrick.
Orrick wrote in his decision that the police officers “misunderstand” the authority of the compliance director, and that the director has “the last word” on police discipline cases in Oakland. He said the Police Commission acted properly when it substituted Warshaw’s findings for former police chief Anne Kirkpatrick’s. (The Police Commission voted to fire Kirkpatrick this February.)
Orrick’s ruling leaves the five officers with few remaining means of contesting the city’s decision to fire them.
Police union attorneys have also alleged that the Police Commission failed to give public notice about several meetings where commissioners discussed and voted on disciplining the officers. They say this was a violation of California’s open meetings laws, and that the decision to terminate the officers is therefore void.
It remains to be seen whether this complaint gains traction. Police Commission Chair Regina Jackson told The Oaklandside that the Commission has already updated its findings to finalize the firing of the five officers.
According to Jackson, the officers were paid around $700,000 from March 2019, when the officers were placed on paid leave, up to when the Police Commission fired them. The officers will also collect an additional two weeks of pay due to the Commission’s failure to properly inform the public about a May meeting when a final vote was taken to fire them.
Mary Howe, executive director of the Homeless Youth Alliance, worked with Pawlik for years and considered him a friend. She said she is pleased by Judge Orrick’s decision to uphold Warshaw’s termination of the officers.
“For over two years, the officers responsible for the unjust and unwarranted killing of Joshua Pawlik have been collecting a salary, at Oakland taxpayers’ expense,” said Howe. “I am hopeful that America is waking up to the dangers of both the great power and lack of accountability we provide police in this country.”