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Police In California Are Killing Sleeping People

The fatal shooting by Oakland police of an unconscious man as he woke is putting pressure on the California department to rethink its deployment of force.

Photo illustration by Elizabeth Brown. Photo by Mary Howe.

On March 11, 2018, a man was lying motionless on his back, eyes closed, alone in a narrow walkway between two houses on a residential street in West Oakland, California. He clutched a .22-caliber pistol in his right hand. The first police officer to arrive couldn’t tell whether the man was injured, had overdosed, or was asleep. Unwilling to approach the man alone, the officer called for backup.

Although they didn’t know the man’s identity—he was later identified as Joshua Pawlik, a 31-year-old homeless San Francisco resident with a history of mental health and addiction problems—dozens of Oakland police officers surrounded him in the alley in the 900 block of 40th Street.

Francisco Negrete, the sergeant who led the designated arrest team that was  responsible for disarming and cuffing Pawlik, directed two officers, Brandon Hraiz and William Berger, to aim rifles on Pawlik. He had another officer, Josef Phillips, cover Pawlik with a shotgun loaded with less-lethal beanbag ammo. According to police reports, Negrete discussed other non-lethal ways to make the arrest with Lt. Alan Yu, the commander in charge of the operation.

But just as the police finished maneuvering a Bearcat armored truck in front of the alley to provide cover for the arrest team, Pawlik stirred from sleep. The officer behind the wheel of the Bearcat, Craig Tanaka, armed with a rifle, hurriedly hopped out of the vehicle and took cover. Negrete, who was supposed to be directing his officers, also armed himself with a rifle and put a bead on Pawlik.

“Hey, do not move,” Negrete yelled. “Get your hand off that gun.”

Suelta la pistola,” drop the gun, shouted Berger.

Phillips asked for a command to fire a beanbag round at Pawlik. “That gun moves, bag him,” replied Berger.

Gaining consciousness, Pawlik slowly raised his head and lifted his torso. The officers screamed about 10 more commands to drop the gun. Pawlik’s shoulders lifted and in an instant, four officers—Negrete, Berger, Hraiz, and Tanaka—fired 22 rounds, killing Pawlik. Phillips also fired, but the beanbag round was superfluous.

Sleeping people killed by police in Oakland, Vallejo

Pawlik was one of several people who in the last few years were killed by Northern California police after they were found unconscious and unresponsive with firearms. On Feb. 9, 2019, Vallejo police surrounded Willie McCoy and an officer fatally shot him after he fell asleep with a gun in his lap in a car parked in a Taco Bell drive-thru.

According to Oakland police, over the last few years officers have encountered at least nine other cases of armed, sleeping people, most of them in vehicles. Most of them survived their encounters with officers, but still, the odds of dying after waking up are high.

The problem of how to respond to an armed, unconscious person is an old one for Bay Area cops.

On July 4, 2000, 28-year-old Maurice Esters was unconscious in his car near the intersection of 35th Avenue and MacArthur Boulevard in East Oakland. The car was running, and its brake lights were on, When a police officer approached the car, he noticed a revolver on Esters’s lap.

More than two dozen police officers then surrounded Esters. The lieutenant commanding the scene ordered officers to stay away from the car in order to prevent a shooting if Esters suddenly woke. For half an hour, the police shouted commands at him, but officers couldn’t determine if Esters was sleeping or wounded.

The police eventually decided to break one of the vehicle’s windows with a beanbag round. The window shattered. The officers yelled at Esters to surrender, but then the car  began to roll forward slowly, and Esters appeared to regain consciousness and straighten up.

Despite orders to stay back, officers Michael Yoell and Anthony Centeno ran alongside the car as it rolled through the intersection. Yoell fired his Glock handgun multiple times and Centeno fired his rifle, killing Esters.

Yoell had several previous complaints filed against him for excessive force, and he shot an unarmed man in 1995.

A review board later accepted Yoell and Centeno’s statements that Esters raised the gun just before they shot him, even though other officers did not corroborate that claim. Attorneys for Esters’s family later alleged that the chairperson of the review board, Deputy Chief Peter Dunbar, could not have been an impartial judge of Yoell and Centeno’s conduct because he was a close friend, former partner, and drinking buddy of Yoell. In 2002, the city settled a lawsuit brought by Esters’s family for $166,000.

Missing from the review of the shooting was any effort to devise new tactics that could be used to approach armed and unconscious people.

Fifteen years later, a similar scenario unfolded near Oakland’s Lake Merritt. On June 6, 2015, Oakland police officers surrounded and shot Demouria Hogg after he fell asleep behind the wheel of a car that was parked with a gun visible on the passenger seat.

In Hogg’s case, officers broke a window with a plan to order him to surrender and fire a Taser, if necessary. But officers said that when Hogg was startled awake, he moved toward the weapon. Officer Nicole Rhodes shot through the windshield, killing Hogg.

Oakland police and the district attorney ruled that the shooting was justified. In 2016, however, Oakland’s City Council approved a $1.2 million payment to Hogg’s family to settle two lawsuits brought in the wake of his death.

Unlike the more recent Pawlik shooting, Oakland police have yet to release their internal investigation records of the Hogg shooting, but like the Esters shooting, Hogg’s death didn’t spur the department to reconsider its tactics to wake armed people.

Oakland chief comes under federal scrutiny

On Feb. 11, the Oakland police determined the officers’ actions in the Pawlik shooting to be lawful and mostly within policy.

Oakland’s police chief, Anne Kirkpatrick, agreed with the Executive Force Review Board (EFRB) that was convened to examine the shooting. Both the EFRB and Kirkpatrick found that all the officers were justified in using deadly force. The only person singled out for serious discipline was Negrete.

The EFRB, which included a deputy chief and two captains, wrote in its Jan. 19 report that Negrete’s leadership was “grossly derelict.” The board recommended he be disciplined for a class 1 violation that could have resulted in his termination.

Kirkpatrick, however, softened the discipline to a class 2 violation.

Other law enforcement authorities view the Pawlik shooting differently. On Feb. 19, Robert Warshaw, the independent monitor of the Oakland Police Department, intervened by reversing the chief’s decisions.

Since 2003, Oakland police have been under a federal consent decree requiring the completion of a comprehensive reform program. A retired Rochester, New York, police chief, Warshaw now runs a business overseeing consent decrees, including Oakland’s. He determined that Negrete, Hraiz, Berger, and Tanaka committed a Level 1 use of force violation that could result in their termination.

Warshaw’s decision to overrule Kirkpatrick has raised questions about whether the Oakland department is falling behind on reforms it has promised to complete.

Warshaw’s decision has also cast doubt on Kirkpatrick’s future at the department. She was hired in the wake of a 2016 police scandal involving a teenage sex crimes victim who used the alias Celeste Guap. Officers from several East Bay departments, including those in Oakland and Richmond, were accused of sexually assaulting and trafficking Guap.  Kirkpatrick pledged that her administration would change the culture at the Oakland police.

Warshaw wrote that Kirkpatrick’s conclusions in the Pawlik shooting were “disappointing and myopic.” In a separate report filed in federal court, he wrote that his team “found the investigation wanting.”

“The questioning lacked inquisitiveness, and served to support the officers’ assertions of justification—rather than being directed towards resolving the inconsistencies between the officers statements and available video evidence.”

According to Warshaw, in the video of the shooting captured by a body camera placed on the stationary Bearcat vehicle, Pawlik’s arm did not rise off the ground and direct the barrel of the gun at the officers before they opened fire. Each of the officers said Pawlik drew up the pistol and pointed it at them.

Despite a public records request filed more than a month ago, Oakland police have yet to release three of the four enhanced frame-by-frame analyses of the video, including the analysis upon which Warshaw based his claims.

In March, Warshaw made a formal finding that the department was no longer in compliance with the consent decree requirement that it properly investigate in-custody deaths and officer-involved shootings because of deficiencies in the way it investigated the Pawlik shooting.

But the killing of Pawlik in March 2018 and Warshaw’s November 2018 finding that Oakland police used force or drew guns on people without properly reporting their actions had already set off a crisis for the department and city leaders.

On March 21, 2019 the Coalition for Police Accountability, an influential community group, called on Warshaw to fire Kirkpatrick over the Pawlik shooting and several other issues, including the backtracking on consent decree reforms, the department’s assistance to ICE during an August 2017 raid that resulted in a deportation, and a March 15 letter from Black police officers that alleged racial discrimination within the department.

Chief Pushes Back

Kirkpatrick and city officials have pushed back against Warshaw and other critics, however, maintaining that the officers who shot Pawlik were within their rights to do so and that the department was reforming itself.

In an April 3 court hearing regarding the department’s compliance with its consent decree, Kirkpatrick told U.S. District Judge William Orrick that “reasonable people can disagree” about whether the shooting was justified and whether supervisors did all they could to prevent a fatality.

“I have been thorough, complete, and intellectually honest in my decision-making,” Kirkpatrick said of her decisions not to discipline the officers and reduce discipline for their sergeant. She pointed to 17 previous EFRB reviews of officer-involved shootings and other in-custody deaths since 2014 (when the monitor first judged the department to be in compliance with the task) that the monitor approved of as evidence that the department can be trusted to hold officers accountable.

City Attorney Barbara Parker wrote in a brief filed in federal court in March that “it is unrealistic to believe that the Department and the Monitor will always agree on EFRB findings, or that complete agreement in all cases should be the compliance standard.”

Nevertheless, Kirkpatrick promised that policy changes were in the works to ensure that the department has better tactics when it responds to unconscious people who are armed.

“Do I understand reform?” Kirkpatrick said. “I can emphatically answer, ‘Yes.’”

Orrick didn’t appear impressed with the announcement.

“This should have occurred after the first incident,” Orrick said. “Outside experts shouldn’t be the force propelling OPD toward constitutional policing. That should come internally, starting from the mayor on down.”