The court battle over the city’s termination of five police officers for shooting and killing Joshua Pawlik in 2018 took another turn this week.
This complex case pitted the Oakland Police Department’s former police chief against OPD’s court-appointed federal monitor, and the department’s police officers’ union against the civilian Police Commission.
The twists and turns in state and federal court have gone on for more than two years since Oakland fired officers William Berger, Brandon Hraiz, Josef Phillips, and Craig Tanaka and Sgt. Francisco Negrete, the officers’ supervisor, for killing Pawlik, a 31-year-old homeless man.
The terminations amounted to the most police officers fired for a single event in recent OPD history.
On April 6, Alameda County Superior Court Judge Frank Roesch issued an order that said the city of Oakland “improperly manipulated” reports prepared by a city-hired attorney, Jeffrey Sloan. Roesch recommended the city hire the officers back, with back pay.
The city’s complex disciplinary system affords officers several opportunities to appeal discipline
On March 11, 2018, Oakland police were dispatched to the 900 block of 40th Street after finding Joshua Pawlik unconscious and armed with a pistol. The police cordoned off the street and positioned themselves behind an armored vehicle. When Pawlik awoke, Berger, Hraiz, Tanaka, and Negrete shot and killed him. Phillips fired a beanbag round from a shotgun.
The officers claimed Pawlik raised his gun and pointed it at them, but video of the shooting, captured on another officer’s body camera and analyzed by several experts, did not show Pawlik posed a definite threat.
Eight months after the shooting, an Executive Force Review Board of three Oakland police commanders found the officers’ use of deadly force was appropriate. That review, however, also concluded that Negrete was “grossly derelict” in his duty to supervise Hraiz, Berger, Tanaka, and Phillips and determined that he could be fired for negligence. The board also found that Tanaka improperly armed himself with a rifle without advising anyone, a suspendable offense.
Then-Oakland Police Chief Anne Kirkpatrick agreed that the officers should face no discipline for killing Pawlik and went a step further in reducing discipline for Negrete’s failure to supervise, giving him a demotion instead of firing him. Kirkpatrick also rejected the board’s finding that Tanaka improperly armed himself. The Oakland Police Commission’s investigative arm, the Civilian Police Review Agency, or CPRA, reached the same findings.
But this wasn’t the final step in the process. Robert Warshaw, who serves as the monitor and compliance director of the OPD stemming from the 2003 court-mandated reform program, found problems with the department’s investigation and used his powers to override Kirkpatrick’s decision. Warshaw ordered the city to fire the five officers for using deadly force. Warshaw’s decisions overrode Kirkpatrick’s and became OPD’s official findings in the case.
The conflict between OPD’s official findings that the officers should be fired, and CPRA’s findings that the officers could keep their jobs triggered a special hearing of a Police Commission discipline committee to reach a final decision. The commission’s discipline committee, composed of three police commissioners, voted to fire the officers
The officers did not accept the discipline committee’s findings and appealed their firings. Under the Oakland Police Officers Association’s contract with the city, officers are allowed to request what’s called a “Step 3” hearing in which a city “employee relations officer” reviews the case and makes a final decision that can override the Police Commission.
Instead of having a city staffer serve as the Step 3 hearing officer, Oakland took the unusual step of hiring the outside attorney Jeffrey Sloan. In February 2021, Sloan filed his report finding that the officers were justified in using deadly force and that they should be allowed to keep their jobs.
The judge found the city ‘improperly manipulated’ Sloan’s findings
According to Judge Roesch’s order this month, “other city employees instructed Mr. Sloan to amend his report in various ways, the most pertinent being that his ‘determinations’ were to be re-cast as ‘recommendations.’” Sloan was asked to leave a “draft watermark on his reports, and he was to refrain from signing them.” Sloan followed the instructions.
Roesch found that these actions by Oakland violated the police officers’ union contract with the city and he ordered the city to reinstate the officers.
Attorney Michael Rains, of the Rains Lucia Stern St. Phalle & Silver law firm, which represents Oakland police officers, said in a statement that the judge’s decision was a victory for all city of Oakland employees “who expect the city to follow the law and its own written procedures when it disciplines employees.”
“These officers were expected by the City to follow the law when called upon to make a split-second decision to use force—and they did exactly what was expected of them. The city’s repudiation of the well-reasoned and amply supported decision made by the person it paid and entrusted to perform that duty, coupled with its deceitful attempt to avoid the consequences of the decision, demonstrates the hypocrisy of a municipal government which expects its employees to follow the law, but manages its own affairs with a total disregard of the law,” Rains said in a statement.
City spokesperson Karen Boyd said the “city administration is disappointed by the court’s order.”
“We believe we adhered to the letter and spirit of the labor agreement and believe the court erred in finding otherwise,” Boyd said in a statement. “We remain committed to ensuring our employees are afforded due process in all disciplinary processes.”
It isn’t clear if any of the officers will return to OPD now that a judge has ordered their reinstatement. As The Oaklandside previously reported, four of the five officers found jobs in other law enforcement agencies. Hraiz went to the Emeryville police before joining Pittsburg PD, Negrete became a Solano County sheriff’s deputy, and Tanaka and Berger went to the Alameda County Sheriff’s Office. Berger left the sheriff’s office after only a few months.
If the officers did return to OPD, one of them might face an investigation over the so-called “Instagram scandal.” Last year, an outside law firm investigated an Instagram account that spread racist, misogynistic, and anti-police reform content among police officers. The law firm, which was retained by the city, found that the person who created and ran the account was one of the officers fired because of the Pawlik shooting.