Five Oakland Police Officers Involved In Fatal Shooting Of Homeless Man Seek Reinstatement

Five Oakland, California, police officers involved in the fatal shooting of a homeless man are asking a state judge to reinstate them to active duty after they were fired.

On March 11, 2018, the officers encountered Joshua Pawlik, a 31-year-old homeless man, lying unconscious and holding a pistol in an alleyway between two houses in West Oakland. Sgt. Francisco Negrete and officers Brandon Hraiz and William Berger called in a Bearcat, a bullet proof armored vehicle driven by officer Craig Tanaka, and then took positions around the vehicle.

The officers then shouted at Pawlik to wake him, but when he raised his head and tried to sit up, four officers shot and killed him. A fifth officer, Josef Phillips, shot Pawlik with a shotgun beanbag round.

In January, Oakland Police Department investigators concluded that the officers did not violate any policies regarding use of force. On Feb. 8, Chief Anne Kirkpatrick agreed and signed off on the investigation. 

But Kirkpatrick’s decision wasn’t the final word in the case.

Oakland’s police monitor, Robert Warshaw, conducted an independent review of the Pawlik shooting and concluded that the five officers violated department policy when they shot and killed Pawlik. He informed Kirkpatrick of his findings in February.

Shortly after, the department placed the five officers on administrative leave. 

If a judge decides to reinstate the officers, it could upend Oakland’s ability to comply with a federal consent decree it entered into in 2003 to settle the “Riders” civil rights lawsuit. The Riders were a squad of Oakland officers accused of racial discimination, brutality, and filing false police reports; the city paid $11 million to 119 people who claimed their civil rights were violated by its police. Since then, Oakland has spent tens of millions of dollars on consent decree compliance. But the process of reforming the department is far from complete.

During federal court hearings this year, Kirkpatrick told Judge William Orrick that “reasonable people” can disagree on whether Pawlik’s killing was justified. In April, the Oakland Police Commission’s investigative arm issued a report concurring with Kirpatrick’s opinion that the officers did not violate any use of force policies. In accordance with the city’s laws, this should have closed the case, allowing the officers to keep their jobs.

But Warshaw, who a federal judge appointed in 2010 to monitor the Oakland police’s consent decree compliance, has sweeping powers that include the ability to “direct” the city and its police regarding “findings and disciplinary actions in misconduct cases and use-of-force reviews.” 

Kirkpatrick did not respond to an email from The Appeal seeking comment, and an Oakland police spokesperson directed questions to the city attorney’s office. The city attorney’s office did not respond to The Appeal’s questions. Warshaw did not respond to an email seeking comment.

The Oakland Police Commission’s report stated that Warshaw’s findings overrode Chief Kirkpatrick’s decision on the officers. Faced with contradictory findings from the police chief and their own investigators, the commissioners followed the city’s disciplinary rules mandating the establishment of a “discipline committee” of three commissioners to make a final decision in the Pawlik case. On July 18, the committee issued its report concurring with Warshaw’s findings and then ordered the firing of the officers.

Attorneys for the five officers contend that the police commission violated the city charter by substituting Warshaw’s findings for Kirkpatrick’s. The officers argue that the monitor’s findings cannot “stand in the place of” the police chief’s, and because Kirkpatrick never changed her findings to be consistent with Warshaw’s there wasn’t any difference that needed to be resolved by forming a discipline committee.

On Aug. 12, the officers filed a lawsuit in state court suit challenging their firing. The city subsequently filed a motion in federal court with Judge Orrick requesting that the lawsuit be removed from state court and heard before him because the officers are contesting a matter that involves the city’s compliance with the federal consent decree.

In an affidavit filed in federal court on Sept. 23, Oakland civil rights attorneys Jim Chanin and John Burris described the officers’ lawsuit as a “collateral attack” on the federal reform efforts and an “affront” to the federal judiciary. Chanin and Burris wrote that Warshaw has the power to fire the officers without relying on the police department or police commission.

Harry Stern and Zachary Lopes, the attorneys who represent the five officers, contend that they’re only seeking an order that would require the city to follow the letter of its own laws regarding officer discipline. Stern and Lopes did not respond to emailed questions from The Appeal.

In an interview with The Appeal, Chanin said the legal challenge by the officers would not be significant if they were merely asking the court to nullify the police commission’s decision to form a discipline committee based on the narrow question of whether the city can substitute the monitor’s findings for the police chief’s. 

But Chanin insists that the lawsuit seeks an injunction that would stop the city from firing the officers based on Warshaw’s powers as an agent of the federal court, as well as a judicial declaration that the monitor’s decisions can never supersede the police chief’s. According to Chanin, such a decision from a state judge would undermine federal reforms of the department. 

The “petitioners essentially seek to void the Monitor’s discipline and to eviscerate the powers of the compliance director,” Chanin and Burris wrote in a brief to Judge Orrick.