Attorney to Oakland: Hire back fired cops
A new internal review finds that five former Oakland police officers appeared to be justified when they shot and killed a homeless man in 2018, and recommends that the city hire them back.
The officers’ conduct in the case has escalated a dispute between the Police Department and a federal court monitor, whose authority stems from an agreement the city made 18 years ago to adopt meaningful reforms.
Jeffrey Sloan, a Berkeley employment law attorney whom Oakland paid $160,000 to complete the review, concluded that former officers Josef Phillips, William Berger, Brandon Hraiz and Craig Tanaka, and former Sgt. Frank Negrete, did not violate the department’s use of force policies on the evening of March 11, 2018, when they found Joshua Pawlik, 31, lying between two houses in West Oakland with a semiautomatic handgun in his right hand.
Police blocked traffic around the armed but apparently unconscious man on the 900 block of 40th Street. Negrete requested an armored vehicle from which he, Hraiz, Berger and Tanaka took position with AR15style rifles. Several officers shouted commands at Pawlik, and when he began to move, the sergeant and the three officers fired 22 shots from the BearCat armored truck.
The other officer, Phillips, filed a lessthanlethal “beanbag” round at Pawlik.
The five officers were cleared of excessive force violations in four separate internal investigations by the Police Department, as well as in criminal probes by the Alameda County District Attorney’s Office and the investigative arm of the Oakland Police Commission.
However, two critical oversight bodies — a federal courtappointed compliance monitor and the Police Commission — rejected those decisions, deciding instead that the officers’ use of force was unreasonable. The reversal triggered a power struggle between the Police Department and the court officials who have held it under a microscope since 2003, the year the city settled a landmark civil rights case over four West Oakland officers known as the Riders, who were accused of beating residents and planting evidence on them.
As part of that settlement, Oakland was given dozens of reforms to complete. After 18 years, it still has not complied with all of them.
“Deaths of the disenfranchised — be they people of color, those affected by mental illness, or those experiencing homelessness — at the hands of the police are a stain on our national character,” compliance monitor Robert Warshaw wrote in a report filed on Aug. 17, 2020. He added that police have extraordinary power to use deadly force, as well as an obliga
tion to comply with department policies and the law.
“In this incident,” Warshaw wrote, “the city of Oakland and the Oakland Police Department failed.”
In May 2020, an interim city administrator signed termination notices for the officers.
The officers and their attorney, Michael Rains, contested the firings, prompting the city’s employee relations department to hire Sloan to conduct a review in what is known as “Step 3” of the grievance process. In an 80page opinion obtained by The Chronicle, Sloan rejected the Police Commission and federal monitor’s excessive force findings and recommended that the officers be allowed to return to work, with back pay.
“Nobody will ever know why Pawlik did not drop the firearm,” Sloan wrote in his review. “Absent a known intent, it is inconceivable to replace it with a finding that he did not intend harm unless he pointed the weapon squarely at the officers and discharged it. A requirement that the officers wait until the gun was squarely pointed at
them would wrongly place them in harm’s way.”
In a later paragraph, Sloan all but called the officers’ actions reasonable, writing, “the evidence is clear that given all the circumstances that are ascertainable, including Pawlik’s gun movement, a reasonable officer in the position of the four officers herein would have concluded that Pawlik posed an imminent threat, justifying a lethal response.”
Sloan sustained one allegation against Negrete, for failing to properly supervise the officers. He recommended that the discipline for this violation be a 30day suspension.
Former police Chief Anne Kirkpatrick, who was fired last year in a joint action by the mayor and commission, called Sloan’s report “a vindication” of her assessment of the officers’ conduct. Warshaw had criticized Kirkpatrick for rushing to defend the officers before the shooting had been investigated. In August, Kirkpatrick sued the city over her ouster.
Karen Boyd, a spokesperson for the city administrator’s office, said that
Sloan’s reports are not final.
“It has become clear that the grievances cannot be resolved at (the) employee relations level, and that allowing these matters to proceed to the next and last step in this process is in the best interests of everyone involved, including the decisionmakers and other stakeholders, the officers, and the community in general,” Boyd wrote in a statement to The Chronicle.
That next and last step would be a hearing before Oakland’s civil service board or in front of a thirdparty arbitrator. Sloan’s opinion could be influential in binding arbitration, given that he was handpicked by the city, said Alison Berry Wilkinson, a police defense attorney in San Rafael who is not associated with the case.
Rains, the officers’ attorney, accused the city of trying to disavow the decision of its retained hearing officer. He said the courtappointed compliance monitor, Warshaw, “has no right to interfere with this pro
cess, but he has been charging the city millions of dollars to bully city officials around so long, he feels invincible.”
Police Commission Chair Regina Jackson said Sloan’s report demonstrates the need for broad reform in law enforcement — including a process to hold officers accountable.
At one point in the report, Sloan described Pawlik’s death as “a serious aggravating factor” in previous decisions to terminate the officers, language which, to Jackson, seemed to downplay the taking of a human life.
She and attorney Jim Chanin, who represented plaintiffs in the civil rights suit that led to the negotiated settlement, also cited concerns that former Oakland police Chief Howard Jordan works as an investigator for Sloan’s law firm.
Jordan said he did not know about Sloan’s report.