Oakland Police Shooting of Homeless Man to Get New Independent Review

In an unusual decision Thursday, U.S. District Judge William Orrick appointed Edward Swanson, an independent attorney, to re-examine an officer-involved shooting of a homeless man in Oakland last year.

The judge's order indicates that there are differences of opinion between the Oakland Police Department and its court-appointed monitor regarding whether or not police officers involved in the shooting violated department policies or the law and whether any of them should face discipline.

The department has yet to disclose its final findings.

On March 11, 2018, Joshua Pawlik, 31, was lying on the ground between two houses in West Oakland when a police officer spotted him. Pawlik was reportedly unconscious and holding a pistol; several officers surrounded him and took cover behind an armored vehicle.

When Pawlik woke up, officers repeatedly shouted commands to drop the gun. According to body-camera video released by OPD eight months after the shooting, Pawlik attempted to lift himself off the ground when four officers opened fire, killing him.

The police response to Pawlik was similar to other recent fatal shootings of people who were unconscious or sleeping and were shot when they awoke. Willie McCoy, who was sleeping in a car at a Vallejo fast food drive-through on Feb. 9, was surrounded by police after they spotted a gun in his lap. Police say McCoy woke up and moved his hands toward his lap when they shot him.

Demouria Hogg was also asleep in his car on an Oakland street in 2015 when officers surrounded him and attempted to wake him up. Hogg, according to the police, came to and made a motion toward the gun. An officer responded by shooting and killing him.

Family members of the deceased and civil rights attorneys have questioned police tactics in each case.

“It's despicable that an unconscious man awakens by the police with loud shouts and bullhorns, and before he could gather himself, is shot and killed,” attorney John Burris said about Pawlik. Burris is representing Pawlik's mother in a civil lawsuit against Oakland.

Orrick wrote in an order Thursday that he was briefed recently about the Pawlik shooting by Robert Warshaw, whom the court appointed to enforce OPD’s compliance with the Negotiated Settlement Agreement — a 16-year-old court-enforced reform program.

It's unclear what Warshaw told Orrick about the shooting, but Orrick's appointment of an independent attorney to assist with a review of the case is highly unusual.

The city of Oakland has yet to make public investigative records or disciplinary reports regarding the Pawlik case. Under new law SB 1421, Oakland police must release the investigative files of officer-involved shootings and records showing whether any officers were disciplined.

In response to a public records request, OPD spokeswoman Officer Johnna Watson wrote in an email that “the case is not finalized.”

The police department, city attorney and city administrator did not respond to questions about the case.

But during a meeting of the Oakland Police Commission on Thursday evening, Oakland Police Chief Anne Kirkpatrick said she made a final decision on Feb. 8 as to whether or not any officers will face discipline.

On Feb. 15, Warshaw made his own findings which, Kirkpatrick said, “did not align” with her own.

Oakland’s Police Commission, an independent oversight body created by voters in 2016, is also investigating the shooting, but it hasn't reported its findings. Under the city charter, the commission’s investigators are directed to “make every reasonable effort” to complete investigations within 180 days.

The police commission’s chair, Thomas Smith, also said at a recent commission meeting that he attended the police department’s Executive Force Review Board, where videos, photos, officers’ statements and other information about the shooting were reviewed.

The independent attorney, Swanson, has been appointed by the federal court on two previous occasions to look into OPD's handling of investigations and disciplinary procedures. Both times, he issued scathing reports about the OPD and the city’s failures to hold police officers accountable for misconduct.

In 2017, Swanson and another attorney, Audrey Barron, examined how the young woman known as “Celeste Guap” was treated by Oakland police after evidence surfaced that multiple cops sexually exploited her, including while she was under the age of 18. Swanson and Barron's final report found that OPD commanders, including then-Police Chief Sean Whent, made it clear to investigators that the case, and Guap's allegations, weren't a priority. The result was that evidence showing police officers had broken the law and violated department policies was ignored until Warshaw discovered the allegations on his own.

In 2015, Swanson released his final report examining Oakland's system of arbitration, by which police officers are allowed to seek a reduction or reversal of discipline. He found that the Oakland City Attorney's Office was poorly prepared to uphold discipline cases in arbitration and concluded that it was “a broken and inadequate system that has evaded the public’s scrutiny for too long.”

Orrick appears to be keeping an open mind as to what Swanson may discover when he examines the Pawlik shooting. Orrick, using the police department’s internal affairs case number, wrote that “the Court expresses no opinions on any matters related to Case No. 18-0249.”

But at Thursday's police commission meeting, Kirkpatrick acknowledged the need for the police to change their policies regarding how they approach unconscious and armed people.

Mar. 1 : This post has been updated to include information from Thursday's Oakland Police Commission meeting.