Joshua Pawlik. Credit: Courtesy of Mary Howe

Sign up for our free newsletter

Free Oakland news, written by Oaklanders, delivered straight to your inbox.

The Oakland Police Department’s independent monitor ripped OPD leadership, in a report to a federal judge made public Monday, for failing to properly investigate the deadly police shooting of a homeless man. 

The monitor, former Rochester, N.Y., police chief Robert Warshaw, who was appointed by a federal judge ten years ago to oversee Oakland’s police reforms, found that OPD investigators were biased and steered the department’s internal probe of the controversial shooting to exonerate the involved officers.

Warshaw blamed command staff, including former Police Chief Anne Kirkpatrick, for a long list of missteps during the investigation that resulted in the officers not being held accountable for what Warshaw—and later the city’s civilian-led Oakland Police Commission—determined to be a violation of department policy in their use of deadly force.

“The five officers involved in the shooting of Joshua Pawlik were responsible for his death,” Warshaw determined. “Those who investigated, oversaw, and reviewed what followed in its aftermath compounded this tragedy–and for this, they bear responsibility.”

Warshaw was also highly critical of Oakland Mayor Libby Schaaf for not providing adequate guidance to the police chief.

“The Mayor characterized the episode as ‘lawful but awful,’” Warshaw wrote about Schaaf’s response after Kirkpatrick showed her a video of the killing. Warshaw wrote that this “trivialized an avoidable tragedy,” and said Schaaf took no other steps to ensure Kirkpatrick properly handled the incident.

Kirkpatrick, who left Oakland after she was fired in February by the Police Commission and the mayor, issued a statement through her publicist, Sam Singer, in response to Warshaw’s report. She defended her actions and the work of OPD investigators in the Pawlik case and alleged that Warshaw’s incentive to criticize her and the police department are financial.

“He is charging the Oakland taxpayers millions of dollars a year as “Monitor” and “Compliance Director” of the OPD. His interest is not in Oakland, its citizens, or the police department. Mr. Warshaw cares about Mr. Warshaw and protecting his annual seven-figure fees,” Kirkpatrick said in her statement. She added that she still plans to sue the city over her firing.

“Mr. Joshua Pawlik’s death at the hands of police on March 11, 2018, was a devastating loss of life for his family and friends, and for our entire community,” said Justin Berton, a spokesperson for Schaaf. Berton noted that Warshaw did not interview Schaaf for his report and said 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.”

Warshaw’s report is a setback for the Oakland Police Department, which has been under federal oversight since 2003 when the city settled a civil rights lawsuit brought by victims of “the Riders,” a group of West Oakland cops who beat and framed suspected drug dealers. The settlement required OPD to complete a list of 51 reforms under the watchful eye of an independent monitor. Warshaw took the job of monitor in 2010, and he reports directly to U.S. District Judge William Orrick. 

OPD has successfully completed most of the reforms, but several remain on the list, including the proper investigation of officer-involved shootings.

Problems with the investigation

Warshaw’s new report focuses on the fatal police shooting of Joshua Pawlik, a homeless San Francisco man, and how Oakland police investigated his death. 

On the evening of March 11, 2018, a man walking his dog spotted Pawlik lying unconscious on the ground between two West Oakland houses. Pawlik was holding a handgun, so police surrounded Pawlik and a team of five officers, led by Sergeant Francisco Negrete, was tasked with disarming and arresting him. 

The officers, including William Berger, Brandon Hraize, and Craig Tanaka, took cover behind an armored vehicle, but as Pawlik woke up and began to move his head and shoulders, they shouted for him to drop the gun and then shot him 22 times. A fifth officer, Josef Phillips, shot Pawlik with a beanbag round fired from a shotgun.

The independent monitor had concerns from the start. 

According to Warshaw, Kirkpatrick told him on the night of the shooting that Pawlik “pointed” a gun at the officers, and that Kirkpatrick said the shooting “looks good,” meaning that the officers were justified. This was before an investigation had been opened.

The next day, the head of OPD’s Internal Affairs Division, which investigates allegations of misconduct, called a member of Warshaw’s team and said the officers shot Pawlik “in self defense,” though the investigation was just getting started.

According to Warshaw, these and other statements showed that OPD leaders were more concerned with helping to quickly exonerate the officers of wrongdoing than investigating what happened.

OPD criminal investigators eventually cleared the officers of any criminal wrongdoing, and District Attorney Nancy O’Malley declined to press charges. Internal affairs investigators also found the use of deadly force to be within department policy. 

But according to Warshaw, these investigations suffered from numerous flaws. Not all the officers who killed Pawlik were properly interviewed the night of the shooting; command staff improperly inserted themselves into the questioning of officers; and investigators asked numerous “leading and suggestive” questions.

“It is unacceptable for an interviewer to suggest a defense to an officer who is under investigation in any event—let alone in an officer-involved shooting,” Warshaw wrote in one of many scolding passages in his report.

Warshaw’s report highlights the repeated failure of anyone in the department to examine discrepancies between what the officers who shot Pawlik said happened that night, and what was captured on body camera video. The officers told investigators that Pawlik raised the handgun toward them before they shot him, but three separate analyses of the video, including two by independent contractors, didn’t show this.

OPD responded to the report with a short statement on Monday: “The Department is currently reviewing the report and will be discussing the report at the next Case Management Conference with the Federal Judge on September 22, 2020.”

Former OPD Chief Anne Kirkpatrick in 2018 with then City Administrator Sabrina Landreth. Credit: Darwin BondGraham

Warshaw on Kirkpatrick’s missteps

Much of Warshaw’s report focuses on the actions of then-Police Chief Anne Kirkpatrick who, according to Warshaw, failed to correct mistakes at every level of OPD’s investigation. He said she compounded these errors with mistakes of her own.

These began with statements on the night of the shooting that suggested Kirkpatrick had already reached conclusions about what happened. Press releases sent out by the department after the shooting used language that justified the officers’ actions. One press release stated that Pawlik “posed an immediate threat to the officers,” though video of the incident never showed this.

According to Warshaw, after internal affairs and criminal investigators completed their reports about the killing, Kirkpatrick discussed the possibility of convening a panel of experts who didn’t work for OPD and tasking them with making a final decision as to whether or not the shooting was justified, and what discipline was warranted, if any. But Kirkpatrick spoke to one of the potential members of this panel, a retired judge, and told them that in her opinion it was “fifty-fifty” as to whether or not the officers wrongfully killed Pawlik.

The monitor found that this “compromised the integrity of the process” and rendered a board of outside experts infeasible. OPD then convened an internal board of review called an Executive Force Review Board. This panel of two captains and a deputy chief found again that the use of deadly force was justified.

Warshaw also criticized Kirkpatrick for improperly communicating with the district attorney’s office about the shooting. Shortly after the shooting in 2018, Kirkpatrick told Warshaw that she called the district attorney and requested a “preliminary opinion about whether the shooting was justified,” in order to help her decide whether to place the officers on administrative leave.

“We found the Chief’s solicitations to be highly inappropriate and irregular,” Warshaw noted in his report.

Kirkpatrick signed off on the department’s final decision to not punish the officers for killing Pawlik, but her decisions were quickly overturned by Warshaw, who used his powers as the department’s court-appointed monitor and compliance director to find that the officers were unjustified in using deadly force.

Negrete, Berger, Hraiz, Tanaka, and Phillips were put on leave and eventually fired by the department. They are currently suing the city in federal court, alleging wrongful termination.

‘Unchecked police culture’

Warshaw’s opinion of how OPD handled its investigation of the Pawlik shooting is similar to his findings four years ago regarding OPD’s bungling and coverup of the sprawling “Celeste Guap” sex crimes investigation, which involved multiple OPD officers raping and trafficking an underage girl. Warshaw and another court-appointed investigator, attorney Edward Swanson, found in that case that OPD commanders, including then-police chief Sean Whent, downplayed the importance of the investigation and took steps to ensure officers would not face punishment.

In his latest report, Warshaw also lays blame directly on Oakland’s elected leaders, including the mayor, police chief, and other officials. “The brutality of Joshua Pawlik’s death; the incompetence and dishonesty in its aftermath; and the failure, thus far, for it to result in real change, debase us all,” Warshaw wrote.

He faulted Schaaf for not asking questions or providing direction to Kirkpatrick regarding how the shooting investigation should be handled. “Although in more recent national events, the Mayor has been vocal,” the monitor wrote about Schaaf’s outspokenness regarding problems with policing outside Oakland, “her steadfast silence in this matter was troubling.”

Warshaw wrote that neither Schaaf nor Kirkpatrick, who came to Oakland as a reformer after the 2016 sex exploitation scandal, took steps to check a police culture that was geared toward finding justification for the killing rather than landing on the truth.

“The hallmarks of an unchecked police culture run throughout the investigations and decisions made in this case,” Warshaw wrote in the report’s conclusion.

“The death of Mr. Pawlik could have been avoided if the officers involved had responded differently,” Warshaw wrote. “The officers had other options; the supervisors and commanders had authority to provide on-scene direction and oversight. They all failed.”

Delayed policies

Warshaw was also critical of OPD’s lengthy delay in issuing new policies that could prevent a similar shooting from happening in the future. When Pawlik was killed, OPD did not have policies regarding how to use the type of armored vehicle the involved officers hid behind while shooting Pawlik, how “designated arrest teams” should conduct themselves, and how to respond to armed, unconscious people.

According to Warshaw, the department began working on these policies after Pawlik’s death, but to this day, OPD hasn’t finalized these policies in a bulletin, which is the way OPD creates official policies that officers must follow, and trained its officers accordingly.

Schaaf’s spokesperson Berton said the department has made some progress on how it responds to similar situations.

“As we await an official policy adoption, changes in training and practice have already led to safer outcomes for both residents and officers,” Berton said.

On August 6, OPD surrounded an armed man sleeping in a car near Lake Merritt and arrested him without using force. In February, another man found sleeping in a car with a gun was taken into custody after he rammed police vehicles and tried to escape. No officers fired shots at him.

OPD also lacks a formal policy to decide when officers should be placed on administrative leave. Many other police departments automatically put an officer on paid leave if they’re involved in a shooting. Warshaw criticized the fact that the officers who shot Pawlik weren’t taken off the streets after the killing and during the investigation, and he placed some blame again on the mayor.

“The Mayor should have insisted on regular briefings and questioned why the Chief had not placed the officers on administrative leave,” wrote Warshaw. “Had she done that, the Chief might have been more dutiful and accountable to her superiors in her decision-making. Instead, during this investigative time period, the Chief appeared to be more fixated on the status of her [employment] contract with the City, and the prospects of the Mayor renewing it.”

The mayor’s spokesperson and OPD said they will respond further to Warshaw’s report at the next court hearing before Judge Orrick on September 22.

Update: a quote and information from a statement made by Anne Kirkpatrick was added to this story after its publication.

Before joining The Oaklandside as News Editor, Darwin BondGraham worked with The Appeal, where he was an investigative reporter covering police and prosecutorial misconduct. He has reported on gun violence for The Guardian, and was an enterprise reporter for the East Bay Express. BondGraham's work has also appeared with KQED, ProPublica and other leading national and local outlets. He holds a doctorate in sociology from UC Santa Barbara and was the co-recipient of the George Polk Award for local reporting in 2017.