Oakland Police Commission Recommends Firing Five Officers in Deadly Shooting

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The Oakland Police Commission is recommending firing five officers who shot and killed a man sleeping between two houses with a pistol in his hand in March 2018. (Alex Emslie/KQED)

Updated 7:15 p.m. Thursday

In a stunning double rebuke of Oakland Police Chief Anne Kirkpatrick, both the federal monitor overseeing her department and the city Police Commission have called for the firing of five officers who shot and killed Joshua Pawlik in March 2018, overruling the chief's decision of lighter punishment.

The shooting was captured on multiple police body cameras, and the footage was used by Monitor Robert Warshaw and Oakland police commissioners to determine that the homeless man was not an immediate threat. The recommendations, made last month, are contained in documents Oakland released Thursday afternoon under Senate Bill 1421, the state’s new police transparency law.

Warshaw, who is both the department’s court appointed monitor and its compliance director, had earlier this year criticized Kirkpatrick’s discipline of the officers — which deviated from recommendations of her own senior commanders — calling the chief’s thinking “disappointing and myopic.”

The records released Thursday reveal that Warshaw not only disagreed but also ordered harsher punishment. Likewise, the commission’s decision on the matter was not public until the internal documents were released. Both came to their decisions independently, though the committee of three commissioners determining discipline in the case considered findings from both Warshaw and the police chief.

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Sgt. Francisco Negrete and officers William Berger, Brandon Hraiz, Josef Phillips, and Craig Tanaka face termination and have been placed on leave pending appeals. Phillips fired beanbag rounds, and the other four officers fired their rifles at Pawlik, who was lying on the ground between two houses and stirring awake as the officers shouted commands at him.

Police commissioners split with Washaw on how harshly to discipline Lt. Alan Yu, the commanding officer at the scene of the shooting. Washaw called for a five-day suspension. But commissioners decided that he should be demoted.

Pawlik had his hand on a pistol that was resting on the ground. As officers yelled at him to both not move and to also raise his hands, the videos show Pawlik’s hand moving slightly. The officers, who later said they thought he was about to shoot at them, fired their weapons.

In their report, police commissioners wrote that video from the an officer's body camera placed on top of an armored vehicle brought to the scene “confirms that Mr. Pawlik’s response to Officers attempting to rouse him was to act consistently as a man who was sleeping, unconscious or drunk and being startled and awoken from his slumber.”

Commissioners went on to write: “The video also confirms that at no time did Mr. Pawlik raise the handgun towards the officers or otherwise in a threatening manner towards Officers. Mr. Pawlik attempted to raise his head and sit up by using his right elbow for leverage.”

In May, the Police Commission rejected findings made by investigators for the Community Police Review Agency, which had decided the officers did not violate use of force rules. The agency is the commission’s investigative arm.

Civil rights attorney Jim Chanin, who has been involved in the monitoring the Oakland Police Department for 16 years, said the two decisions are a major development and he cannot remember a case like it.

“It is the first time that we’ve ever had the compliance director, which we’ve had since 2012, overrule the chief of police on a discipline matter,” he said. “And then at the same time, it was the first time that the Police Commission has overruled the chief on a discipline matter. So I think we’re entering a new day.”

Chanin said the commission’s findings are “not good for” Kirkpatrick, noting that the majority of its members were appointed by Mayor Libby Schaaf, who hired the chief following a widespread sexual exploitation case centered in the Police Department.

The commission, “a completely independent body separate from Warshaw, came to virtually the same conclusion that he did which was very, very different from the one that she came to,” Chanin said.

Schaaf was out of the country Wednesday and not available for comment.

“The civilian police commission represents the community’s voice in this issue, and their findings are another step to provide transparency and accountability to all residents,” mayor's spokesman Justin Berton said.

The Police Department directed a request for comment to a statement by a spokeswoman for the City Administrator's Office, who wrote that the officers have the right to appeal the proposed discipline.

“The City of Oakland supports the due process rights of all employees,” Spokeswoman Karen Boyd wrote in the statement.

Pawlik’s mother, Kelly Pawlik, said in a phone interview Thursday that she was pleased with both decisions.

“I am in favor of the officers being terminated,” she said, adding that she hopes that it leads to reforms “for the entire Police Department.” The officers, she said, could have approached her son as he was asleep and “stepped on the gun and kicked it away. They have to take different approaches.”

The head of the police officers’ union ripped the findings, calling them “inexplicable” and an “injustice.”

“These Police Officers responded to a citizen’s call for help concerning an armed suspect in their neighborhood,” union President Barry Donelan wrote in a statement. “The officers tried to defuse the situation but the armed suspect engaged our officers putting their lives and the lives of our residents in danger. The Police Commission ignored these facts and a multitude of investigations to reach a predetermined and unjust outcome.”

Oakland police have been under federal court oversight since 2003, ordered after the “Oakland Riders” scandal in which a rogue band of officers beat and planted drugs on West Oakland residents.

Ali Tadayon of the Bay Area News Group contributed to this report.

This story was produced as part of the California Reporting Project, a collaboration of 40 newsrooms across the state to obtain and report on police misconduct and serious use of force records unsealed in 2019.