Robert Warshaw Report Points Mayor Of Oakland, Police Department Faults In Shooting Of Joshua Pawlik

Oakland Police Department
(Last Updated On: August 18, 2020)

The Joshua Pawlik Shooting is the focus of the just released report by Robert Warshaw, the Thelton E. Henderson court-appointed monitor of the in the wake of the events of The Riders Case. Below, is a digitized version of the report. You can also download it here. You can also read former Oakland Police Chief Anne Kirkpatrick’s response, here.

The March 11, 2018 Shooting of Joshua Pawlik
by Oakland Police Officers:

A Report of the Monitor/Compliance Director

Chief (ret.) Robert S. Warshaw

Monitor/Compliance Director

August 17, 2020

Table of Contents

Section 1: Introduction
3

Section 2: The Death of Joshua Pawlik
5

Section 3: Our Initial Concerns
7

Section 4: The Video Evidence
8

Section 5: The Criminal Investigations Division (CID) Investigation
12

Section 6: The Internal Affairs Division (IAD) Investigation
19

Section 7: The Executive Force Review Board (EFRB) Process
25

Section 8: The Community Policing Review Agency (CPRA) Investigation
32

Section 9: Developments Following the Executive Force Review Board
34

Section 10: The Role of the City Administration
42

Section 11: The Failures of Departmental Policy
43

Section 12: The Role of the Chief of Police…
46

Section 13: Summary of Significant Findings…
49

Section 14: Conclusion
51

Section 1: Introduction

In the United States, police accountability, particularly when deadly force is
used, has a long and
pain-filled history. The March 2018 death of Joshua Pawlik at the hands of the
Oakland Police
Department is now part of that history. Mr. Pawlik’s death is marked by
failures of policy,
planning, supervision, City Hall oversight, and the Department’s ability to
critically examine
itself. Most of all, it is marked by the failure to understand and appreciate
the humanity that we
all shared with Joshua Pawlik, a young man who died in a hail of 22 bullets
fired by four officers
as he gained consciousness, with a handgun by his side, in a residential
neighborhood of
Oakland. One officer fired seven times; another, six times; another, five
times; and another, four
times – all in a total of 2.23 seconds.

Our shared humanity should have ensured, at the least, that the Oakland Police
Department
would have taken better care to avoid the death of Mr. Pawlik. Failing that,
the Department
should have conducted a more thorough and honest review of this event to
provide a foundation
for reform. Instead, for Joshua Pawlik, for the Police Department, and for the
Oakland
community, there has been only a tragic litany of failures.

This report will be read against the background of recent killings by police
across the country
and the widespread demonstrations that have followed. Although there are
differences across
these events, the nature of these deaths provide an important context from
which to examine the
death of Mr. Pawlik. 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.

Only recently has this backdrop been available to the public. In 2015, The
Washington Post
began to log every fatal shooting by an on-duty police officer in the United
States. The file now
contains over 5,000 cases. Many academics and others have been surprised to
see that each year,
over 1,000 people die after being shot by police. The importance of this issue
cannot be
overstated.

Since 2003, the has been under oversight as a result
of Delphine
Allen et al. v. City of Oakland (commonly known as the Riders case), a civil
rights lawsuit filed
in the United States District Court that began under Judge Thelton E. Henderson
and is now
overseen by Judge William H. Orrick. The City of Oakland and its Police
Department continue
to be monitored under the terms of a Negotiated Settlement Agreement (NSA).
The NSA
mandates the Department to achieve compliance with 51 requirements, or Tasks,
relevant to
Constitutional policing, data collection, and a variety of internal
accountability processes. Under

the NSA, the Police Department has been monitored by an independent team of law
enforcement
and criminal justice specialists. Retired Chief Robert Warshaw has served as
the Monitor since
2010; and in 2014, he assumed additional authorities as Compliance Director.
Chief Warshaw
and the Monitoring Team members assess compliance with the Tasks set forth in
the NSA.
When acting in his capacity as Compliance Director, Chief Warshaw has other
authorities:
among them, to require that the take those actions he
deems
necessary for the organization to achieve compliance with the requirements of
the NSA.

The Oakland NSA is, in many ways, similar to Consent Decrees that are rooted in
Section 14141
of Title 41 of the Violent Crime Control and Law Enforcement Act of 1994. The
law prohibits
police from engaging in “a pattern or practice” of conduct that deprives
persons of “rights,
privileges, or immunities secured under the Constitution or laws of the United
States.” In
Oakland, however, the underlying case was brought by private Plaintiffs’
attorneys – rather than
the U.S. Department of Justice.

Police departments are empowered with extraordinary authorities – the greatest
of which is the
use of deadly force. There is no greater responsibility for an individual
police officer, and those
to whom officers are accountable, than ensuring that a use of force comports
with policy
requirements and with the law.

In this incident, the City of Oakland and the failed.

Organization of this Report

This report reviews the events surrounding Mr. Pawlik’s death on March 11,
2018, after a
passerby reported the presence of an apparently unconscious man who may have
had a weapon.
We discuss the ’s initial response to the incident;
and the
investigations, reviews, and reports that followed. These steps involved OPD
and other
components of City government, including OPD’s Criminal Investigations Division
(CID),
OPD’s Internal Affairs Division (IAD), the City of Oakland’s Community Police
Review
Agency (CPRA), and the City administration.

Following an officer-involved shooting in Oakland, both the Criminal
Investigations Division
and the Internal Affairs Division play crucial roles: The Criminal
Investigations Division (CID)
is responsible for investigating officers’ potential criminal conduct and
forwarding a completed
criminal investigation report to the Office of the Alameda County District
Attorney, which
ultimately makes prosecutorial decisions. The Internal Affairs Division (IAD)
is responsible for
determining whether or not officers violated Departmental policy.

In this report, we also review the Department’s Executive Force Review Board
(EFRB), which
heard presentations from both CID and IAD, examined this incident, and provided
recommendations to the Chief of Police. We provide commentary on the Chief’s
overall
management of this incident and also consider the responses of other City
officials.

For purposes of clarity, Sections 2-12 each begin with a statement of our
conclusions based on
the analysis of the material that is presented in the paragraphs that follow.

This report is not intended to serve as an exhaustive summary of everything
that occurred during
and following the incident. Rather, we identify the numerous individual,
organizational, and
systemic failures that occurred throughout the investigative phases, as well as
the people and
processes responsible for reviewing those investigations.

Section 2: The Death of Joshua Pawlik

Joshua Pawlik died when
Rifle Officers fired 22 shots at him from behind a
large, armored, bulletproof police vehicle known as a
BearCat.

On March 11, 2018, at approximately 6:15 p.m., a man walking his dog on a
residential street in
the City of Oakland called 911 to report that he observed an unresponsive man,
who was
possibly holding a firearm, lying on the ground between two houses.

The first (OPD) officer, Officer Josef Phillips,
arrived at 6:19 p.m.
and located the man lying in the side yard between the two houses. Officer
Phillips stepped onto
the front porch of one of the residences to gain a better view. He then
reported to the OPD
Communications Division that he observed what appeared to be a semiautomatic
handgun in the
man’s right hand; and that the man appeared to be either sleeping or
unconscious, or possibly
intoxicated or under the influence of narcotics. The man was later identified
as Joshua Pawlik, a
31-year-old white man who was experiencing homelessness and living in San
Francisco.

Several officers and at least two supervisors arrived and secured the scene, by
blocking vehicle
and pedestrian traffic and setting up a perimeter. Lieutenant Alan Yu also
responded and
assumed the role of incident commander. At approximately 6:29 p.m., Sergeant
Frank Negrete,
Officer Brandon Hraiz, and Officer William Berger arrived on the scene. All
three were
designated as Patrol Rifle Officers and arrived armed with their patrol rifles.
Sergeant Negrete
requested that a specialized armored police vehicle, the BearCat, be sent to
the scene. Another
Patrol Rifle Officer, Craig Tanaka, drove the BearCat to the scene.

Prior to the arrival of the BearCat, Sergeant Negrete assigned several officers
to serve as a
Designated Arrest Team (DAT), and the DAT and other officers remained behind
police vehicles
on the scene. Once the BearCat arrived, Officer Hraiz positioned himself in
the turret of the
vehicle. Sergeant Negrete, Officer Berger, and Officer Tanaka took positions
of cover behind
the passenger side of the BearCat. All were armed with patrol rifles. An OPD
sergeant placed
his body-worn camera, known as a Portable Digital Recording Device (PDRD),
facing Mr.

Pawlik, on the hood of the BearCat.

After a short time, according to the officers’ statements, Mr. Pawlik appeared
to awaken and
began to move. Several officers shouted verbal commands at Mr. Pawlik. As Mr.
Pawlik began
to sit up, Sergeant Negrete, Officer Berger, Officer Hraiz, and Officer Tanaka
all fired their AR-
15 patrol rifles. They fired a total of 22 shots in 2.23 seconds, just two
minutes after the BearCat
arrived. In addition, Officer Phillips, the first officer on the scene, fired
one less-than-lethal,
drag-stabilized “beanbag” shotgun round at Mr. Pawlik. Officers approached and
immediately
handcuffed Mr. Pawlik, who was pronounced dead at the scene at approximately
7:13 p.m. That
was just under one hour from the time the initial call came into the Oakland
911 emergency
communications center, and 44 minutes after the Patrol Rifle Officers arrived
on the scene.

A link to a video of this incident, as it was shown on the news, can be found
at:

Section 3: Our Initial Concerns

OPD’s initial press releases and our early
conversations with Chief Kirkpatrick and others raised
serious concerns that the Department had concluded
that the shooting was justified even before its
investigations were complete.

In the early stages of all critical incidents, including officer-involved
shootings, the long-
standing practice has been that the Chief of Police and the Internal Affairs
Division (IAD)
Commander notify members of the Monitoring Team and provide them with
information on the
incident. On the evening of March 11, 2018, OPD’s Chief at the time, Anne
Kirkpatrick, called
the Monitor to advise that there had been an officer-involved shooting that
resulted in a death.
The Chief told the Monitor that the subject had “pointed” a firearm at the
officers, and she
reported that the shooting “looks good.” The Monitor strongly cautioned the
Chief that she
should not reach conclusions so early in the process. The following day, the
then-Commander of
IAD called Commander John Girvin of the Monitoring Team to provide an overview
of the
incident, during which he indicated that Mr. Pawlik “pointed” a firearm at
officers, prompting
officers to shoot Mr. Pawlik in self-defense.

Despite the similar phrasing used by the IAD Commander and Chief Kirkpatrick,
there was no
reference to “pointing” of the firearm in the Department’s initial press
releases related to this
incident. The first press release, issued on March 12, 2018, indicated,
“Uniformed Oakland
police officers arrived on scene and observed the man was armed with a hand
gun. Officers
began giving verbal commands. The man did not comply with the officers [sic]
commands and
officers discharged their service weapon.”

We were concerned that this press release implied that officers may have shot
Mr. Pawlik for
non-compliance with their commands. The Monitor shared this observation with
Chief
Kirkpatrick in a telephone conversation on March 13, 2018, during which she
also expressed
unease with the press release. However, the Department’s second press release,
issued on March
14, 2018, only added to our concern. The second press release stated, in part,
“It was reported
that Officers believed Pawlik’s actions posed an immediate threat to the
officers with the risk of

death or serious bodily harm. Multiple Officers discharged their service
firearms, striking
Pawlik.” We believed these press releases contained veiled attempts to
articulate a justification
for the shooting.

At this point, although we had yet to review any video footage of the incident,
we were
concerned that the parsing of words in these press releases indicated that the
incident did not
occur as initially described to us. Our first viewing of the available video
verified these
concerns.

Section 4: The Video Evidence

The Department failed to take advantage of the
quality video it had of this incident. Specifically, the
Department failed to challenge the involved officers’
claims of what occurred when it is clear that what the
officers asserted was not supported by the video
evidence. OPD hired two professional outside
vendors to enhance the video, but relied on a
deficient analysis conducted by an OPD sergeant.

Many police incidents are recorded on body-worn cameras where video quality is
often mitigated
by the physical movements of the officer. In contrast, this incident was
recorded on a stationary
camera that captured the actions of the involved officers and Mr. Pawlik in the
moments before,
and during, the use of force. An OPD sergeant had placed his body-worn camera,
or PDRD,
facing Mr. Pawlik, on the hood of the BearCat shortly after the vehicle arrived
on the scene.

In this section, we provide an overview of the video evidence and OPD’s
internal and external
efforts to enhance it. The analyses of video were critical to our assessment
of this shooting.

OPD contracted with two outside vendors to enhance the quality of the video.
At the request of

the Department, one of the vendors provided its analysis of what the video
showed by
responding to a series of questions posed by OPD. In addition, an OPD sergeant
attempted to
enhance the video and provided his interpretation of what the video showed.

OPD first contracted with Precision Simulations, Inc. (PSI) of Grass Valley,
CA, to provide
enhancements to the available video. The Internal Affairs Division (IAD) did
not request that
PSI provide any analysis with these enhancements, and PSI offered no opinions
or analysis as to
what the video showed.

PSI’s video enhancement resulted in a cropped and enhanced version of the video
that is
approximately one-minute-and-30-seconds long, and begins
one-minute-and-eight-seconds
before officers fired the first shots. PSI also included a version zoomed to
200% magnification;
a 10-second cropped and enhanced version, which captures just the actual
shooting in slow
motion; and a frame-by-frame breakdown. Among the three separate video
enhancements, PSI’s
provided the clearest depictions of what occurred.

OPD also contracted with Imaging Forensics of Fountain Valley, CA, to provide
an enhanced
version of the video. Imaging Forensics delivered three products from the
enhancement. The
first is a three-minute video which begins approximately
one-minute-and-47-seconds before the
officers fired the first shots. The second is a 37-second enhanced version of
the video, which
begins approximately 30 seconds before the shots were fired. This version
contains added
notations regarding when the shots were fired; when it appears that Mr. Pawlik
raised and
lowered his head; and when it appears that Mr. Pawlik moved his left hand, left
arm, and right
arm. It also contains notations on the commands given by the officers on scene
and when the
shots were fired. Finally, Imaging Forensics delivered a 743-page document in
which each page
depicts a frame of the 37-second video, but without the notations or audio
information.

After discussions with the Monitoring Team, OPD asked Imaging Forensics to
address several
specific issues. While it is not in dispute that Mr. Pawlik had access to a
firearm with his right
hand, Imaging Forensics was unable to discern if Mr. Pawlik had the firearm in
his hand at the
time he was shot. Similarly, Imaging Forensics was unable to determine the
movement of Mr.
Pawlik’s right hand in the 30 seconds before the shooting. Imaging Forensics’s
report noted,
“Because of the resolution, compression, low contrast light, distance from
camera and the angle
of view, small, subtle movements cannot be discerned. The right hand is not
visible in the video
prior to the shots being fired. There is some movement of the subject’s head,
and possibly his
left arm and hand as well as his right arm during the 30 seconds prior to the
first shot.”

At the request of OPD’s Criminal Investigations Division (CID), an OPD sergeant
completed a
third enhancement of the video. The sergeant was not assigned to any
specialized video forensic
unit. As noted in the sergeant’s report, he identified video footage that he
believed “possibly

captured images that would provide more detail.” He used forensic video
software to
decompress the video, reviewed the decompressed video footage frame-by-frame,
and attempted
to enhance the video by identifying areas of high contrast. He also took his
own video footage of
the scene, well after the incident, to create a “control video” that contained
a vertical stick with
six-inch spaces marked with lights starting at the bottom on the ground at the
area where he
believed Mr. Pawlik originally lay.

The sergeant concluded that just prior to the shooting, Mr. Pawlik attempted to
sit up by
“rocking.” The sergeant noted that there was not enough information to clearly
see the gun or its
exact movement, but he concluded that there was some “slight movement,” and he
believed that
the movement was in an upward direction.

The sergeant first briefed the Monitoring Team on his conclusions on July 9,
2018, during our
monthly site visit, and he provided us with a draft of his report. During that
meeting, he said that
he concluded Mr. Pawlik’s gun moved about six inches vertically just prior to
the shooting. That
conclusion, however, is absent from the final version of his report, dated
August 3, 2018. When
we met again, on August 14, 2018, the sergeant cautioned that even with his
video
enhancements, the movement that he concluded took place was “not clear, not
super clear,” and
he added, “It’s not going to be like, oh, there it is.”

Chief Kirkpatrick apparently first viewed this sergeant’s briefing at the time
the Monitoring
Team received it. As noted in the Compliance Director’s Addendum to the
Executive Force
Review Board (EFRB) Report, issued on February 19, 2019, “In the aftermath of
the sergeant’s
presentation, the Chief discounted its usefulness, quality, and accompanying
analysis. In fact,
the Chief informed me [the Compliance Director] that the Department would not
consider this
analysis in the investigation of this case as she considered it substandard and
an embarrassment.
Nevertheless, it was prominently referenced in the IAD investigation, which was
presented to the
EFRB.” Though Chief Kirkpatrick had made her views known about the inadequacy
of the
sergeant’s analysis and expressed her embarrassment about it, she nonetheless
allowed it to be
used to support the conclusions of each investigation.

OPD has considerable experience viewing and interpreting police video,
including video from
PDRDs. The Department has generally had little problem reaching conclusions –
even with
suboptimal-quality videos. By contrast, the video of this incident was
captured in daylight
conditions from a stationary platform continuously focused on Mr. Pawlik.
Despite this, IAD,
CID, the Executive Force Review Board (EFRB), and ultimately Chief Kirkpatrick,
allowed the
involved officers’ assertions to go unchallenged even though their statements
were not supported
by what the video showed.

The Monitoring Team has reviewed all of the available video which captures this
incident – in its
raw and enhanced forms – dozens, if not hundreds, of times. It is clear that
Mr. Pawlik was lying
on the ground completely unresponsive for a significant period of time. When
the BearCat
arrived on the scene, Mr. Pawlik began to move.

Unlike the involved officers and investigators, we do not draw any conclusions
regarding Mr.
Pawlik’s emotional state (e.g., anger, annoyance). In the video, Mr. Pawlik
appeared
disoriented. He attempted, with some difficulty, to sit up. He moved to
a sitting position, using
his right hand for support. Then he was shot. His right hand was clearly on
the ground when the
shooting started. It snapped up from the ground in reaction to his being shot.
As he raised his
right hand, its starting point is clear: It was on the ground. He appeared to
use his right hand
and arm for support as he struggled to sit up. It also appears from the video
that, at the time of
the shooting, Mr. Pawlik was looking straight ahead and not to his right, in
the direction of the
involved officers. This directly conflicts with some officers’ assertions.

The involved officers contended that Mr. Pawlik raised and pointed the firearm
in their direction.
One officer estimated that he raised the firearm up to 14 inches. However,
this is not supported
by the video. As noted, the video does show Mr. Pawlik’s right hand moving
upward from the
ground in reaction to being shot – that is, it starts from the ground. If Mr.
Pawlik’s hand was
raised before the shooting, as several officers contended, it would have had to
move down
rapidly prior to it moving up rapidly. The video does not show that.

All of the video enhancements, including the discredited enhancement conducted
by the
sergeant, conclude that, at best, there may have been slight movement of Mr.
Pawlik’s right
hand. In CID’s presentation to the EFRB, the investigators noted, “Two
separate analyses
concluded that there is ‘movement’ from Pawlik’s right arm or hand area prior
to the officers
discharging their firearms; however, the degree/amount of movement is not
measurable.” But
this is inaccurate. Imaging Forensics noted that small, subtle movements
cannot be discerned,
and Mr. Pawlik’s right hand is not visible in the video prior to the shots
being fired.

Exhaustive reviews of the raw video footage, and extensive efforts to enhance
it, do not support
the involved officers’ assertions about Mr. Pawlik’s actions at the time of the
shooting.

Standards of Proof

In this report, we discuss the Department’s criminal (Criminal Investigations
Division, or CID)
and administrative (Internal Affairs Division, or IAD) investigations of this
incident. It is
important to recognize that criminal and administrative investigations have
different
requirements regarding standards of proof. The burden of proof in a criminal
investigation is
“beyond a reasonable doubt.” For an administrative investigation, the
burden of proof is much
lower: It is a “preponderance of the evidence.” This standard has been
variously described as
“more likely than not,” or “a slight tipping of the scales,” or “greater than
51%.” In these
investigations, there seemed to be confusion about these standards.

Section 5: The Criminal Investigations Division Investigation

The Criminal Investigations Division failed to conduct
a thorough and competent investigation of the
shooting of Joshua Pawlik. CID’s work was replete
with errors and inadequacies. Subject officers were
not properly sequestered and their interviews were
deficient. CID asked leading questions and did not
investigate contradictory statements. CID command
staff improperly inserted themselves into the process.

Best practices for the investigation of an officer-involved shooting (OIS)
dictate that law
enforcement agencies have clear policies and protocols in place to conduct fair
and impartial
investigations. The U.S. Department of Justice, through its Bureau of Justice
Assistance, and
other organizations such as the International Association of the Chiefs of
Police and the Major

Cities Chiefs Association, have published relevant materials that have been
available to the
’s senior leadership, many of whom have been regular
participants in
forums sponsored by these organizations.

At the time of the officer-involved shooting (OIS) of Mr. Pawlik, OPD did not
have a specific
OIS protocol. Departmental General Order (DGO) K-4, OPD’s policy for the
reporting and
investigation of use of force, contains limited direction for the Department’s
response to Level 1
(most severe) incidents. Further, the Department’s Criminal Investigations
Division (CID)
Policy and Procedure Manual devotes less than one page to “Critical Incident
Protocols,” and it
primarily covers administrative directions for notifications and review of
completed
investigations. However, neither of these documents provides sufficient
directives to fully
address officer-involved shootings. After the shooting of Mr. Pawlik, in
response to an inquiry
from the Monitoring Team, OPD acknowledged the need for such a written protocol
– though as
of yet, the Department has not finalized such a directive.

Conditions of CID interviews

The fact that OPD did not have a specific written OIS protocol at the time of
this incident
contributed to CID’s deficient investigation. To begin, CID’s initial criminal
interviews of the
involved officers were conducted in the office of the then-Commander of CID.
While OPD’s
facilities may not have had available a more appropriate place to conduct these
types of
interviews, the CID Commander’s office is an unsuitable venue for interviewing,
video-
recording, and observation by Internal Affairs Division (IAD) personnel. As
with any other
criminal investigation, interviews should be conducted in a room designed for
such purposes and
equipped with both video-recording equipment and the ability for IAD or other
appropriate
personnel to monitor the interview from outside the interview room. The
setting contributed to
the disorganization and confusion in the process.

The CID sergeant with primary responsibility for the investigation conducted
the interviews of
each involved officer. A second CID sergeant, a CID lieutenant, the CID
Commander, an
attorney and an investigator from the District Attorney’s Office, the subject
officer’s attorney,
and an OPD employee responsible for recording the interviews were also in the
room. With the
exception of the employee operating the recording equipment, those present all
appeared to
actively participate in some part of the interview processes. The criminal
investigators also
noted that personnel from IAD were monitoring the interviews via telephone.

The presence and involvement of eight people in a criminal interview is
excessive, and the active
participation of command personnel in criminal interviews is inappropriate.
These problems led
to disruptions in the flow of the interviews, particularly when participants
interrupted lines of
questioning by the primary investigator to ask their own questions, or to seek
clarification of
something that had been said. As an example, five different people, including
the CID
Commander, asked questions of Officer Berger during the primary portion of his
interview.

Inadequate sequestering of officers

As is common in OIS investigations, the subject officers were initially
sequestered after the
shooting to ensure that their recollections of the incident were not affected
by other personnel,
including the other subject officers. However, after the primary investigator
interviewed the first
two officers who used lethal force, and with agreement from the subject
officers’ counsel, the
investigator postponed the interviews of the two remaining officers who had
also used lethal
force. Consequently, from that point on, the purpose of sequestration was
nullified. The fifth
involved officer, who had fired the beanbag round, was interviewed by other
criminal
investigators the night of the incident.

The reasons the two interviews were delayed were the lateness of the hour, and
the decision by
the primary investigator to conduct all of the subject officer interviews
himself. We are
concerned that these interviews appear to have been postponed without any
consideration of the
need to sequester the subject officers until they could be interviewed. There
also is no
documentation indicating that CID gave these officers verbal warnings not to
discuss the case
prior to their interviews. The interviews of the first two officers took less
than one-and-one-half
hours each. Despite the lateness of the hour, CID should have conducted the
additional two
interviews. Although we do not know if the non-sequestered officers had
inappropriate
conversations with anyone prior to their interviews, the possibility of that
having occurred
remains a concern.

Failure to challenge discrepancies among officers’ statements

For the most part, the CID investigators accepted the officers’ statements,
even when their
assertions contradicted other officers’ statements. The investigators did not
follow up to clarify
these statements, attempt to resolve discrepancies, or challenge initial
interview statements that
were not supported by the facts of the investigation. While CID conducted
follow-up criminal
interviews with several of the witness officers to clarify what they had or had
not observed, it

appears that, with the exception of the interview with Sergeant Negrete, CID
did not request or
conduct any second interviews with the involved officers. For a case of this
importance, this was
highly unusual.

The investigators did not initially have all of the information to challenge or
seek clarification of
some statements made by the subject officers. However, they did have that
information after the
completion of the initial interviews of both subject and witness officers.
They also had the
reviews of all the PDRD video, including from the PDRD that had been placed on
the BearCat.
CID’s failure to conduct follow-up interviews of subject officers left
unaddressed several critical
discrepancies – particularly officers’ statements on Mr. Pawlik’s position just
prior to and at the
time of the shooting. Simply put, OPD had access to video evidence of what
occurred, yet the
Department made no effort to use it to challenge statements made by involved
officers.

Ordinarily, the use of a single primary investigator to conduct the interviews
of all subject
officers provides opportunities to identify and assess any discrepancies in the
statements of the
officers. In this incident, there was no benefit derived from having the
primary investigator
conduct all of the subject officers’ interviews, because he never addressed
discrepancies between
officers’ statements during their initial interviews.

In the criminal interviews, investigative personnel consistently accepted the
subject officers’
statements as factual reports of what occurred – even when their statements
were not supported
by the other evidence. For example, when asked for examples of commands
he heard at the
scene, Officer Berger claimed that he heard, “Please (done) [sic] move. Get
your hands up.

Oakland Police.” It is clear from a review of the PDRD footage that one of the
officers on the
scene faintly used the word “police” – but it is unlikely that Mr. Pawlik was
able to hear that.
There was no loud declaration of “Oakland Police.” When asked how high off the
ground the
weapon was, Officer Berger responded, “a little over 14 inches.” His statement
regarding the
weapon’s position is significantly different from those of other subject
officers, one of whom
described the weapon as being raised only a couple of inches. Despite these
discrepancies, CID
never made any attempt to clarify or reconcile any of the officers’ statements
regarding the
position of Mr. Pawlik, or the weapon, at the time of the shooting. We found
similar
inconsistencies during other subject officers’ interviews, and investigators
failed to address these
inconsistencies.

Leading and suggestive questions

During their interviews, CID investigators asked leading questions. As an
example, during
Officer Berger’s initial interview, what was described in the transcript as an
“unknown voice”
asked, “And how long did the commands last until you –you believe you were
forced to use
lethal force? How much time since he is sitting up to you were forced to use
lethal force? How
much time went by?” A review of the recording suggests that in this instance,
the unidentified
voice belonged to the CID Commander, who asked numerous questions. In another
subject
officer’s interview, the CID Commander asked, “[H]ow much time passed by till
when you – –
you – – were forced to use the – – you were forced to use the lethal force or
use your force – –
using the lethal force.” In both cases, the Commander’s questions suggested
that not only was
the lethal force justified, but that the officers had been compelled to use
lethal force.

Other questions seemed to suggest a defense if the justification for the
shooting was questioned –
or they suggested that the questioner accepted, at face value, that the
shooting was justified. One
such example was, “Um, so this – this is, uh, a pretty serious incident, right,
and there are going
be people who may look at this and go, you know what, hey those officers were
behind an
armored vehicle, right? And this – they could have just stayed behind there.
What would you
say to that?” Later, the CID Commander asked, “What would you say if somebody
said, hey you
know what? This person was just startled and woke up?” It is unacceptable for
an interviewer to
suggest a defense to an officer who is under investigation in any event – let
alone in an officer-
involved shooting.

We also found the same line of justification and defense questions in other
subject officers’
interviews. In one case, the questions were attributed to IAD, though we were
able to establish,
from a review of the recordings, that the questions were not asked by IAD, but
by someone else
who was present in the interview room. These types of questions are
inappropriate, regardless of
who asks them. Yet it is particularly disturbing that the CID Commander, in
the presence of the
primary investigators, would insert himself into the interview process and
engage in this type of
questioning. The CID Commander’s doing so unquestioningly set a tone for his
subordinate
investigative personnel that these types of questions were acceptable.

After the initial criminal investigation interviews, each officer was allowed
to view his own
body-worn camera video. Yet CID did not ask additional clarifying questions
after the officers’
reviews. Instead, CID personnel merely asked them if they had anything they
wished to add –
and none of them did. That would have been the appropriate time for CID
personnel to ask
clarifying or probing questions, but they did not.

CID conducted only one follow-up interview with a subject officer who used
lethal force in this
incident. CID’s follow-up interview of Sergeant Negrete occurred in August
2018, more than
four months after the incident. By this time, investigators should have
already reviewed all
officers’ interviews as well as all of the evidence, including the PDRD videos.
In Sergeant
Negrete’s follow-up interview, investigators did ask some questions regarding
his decision-
making and supervision of the incident. However, they failed to use this
opportunity to address
inconsistencies among his and the other officers’ statements and discrepancies
with the PDRD
video – inconsistencies and discrepancies about which by then they surely would
have known.
During the interview, the CID Commander again actively participated as an
interviewer and
asked questions regarding how Sergeant Negrete would respond if “some people”
questioned
what had occurred in this incident. The CID Commander’s leading questions and
his insertion
into the investigative process were inappropriate.

Transcript issues

In addition to the serious problems with the criminal interviews, there were
significant issues
with the interview transcripts. There were numerous instances in the
transcripts where the names
of participants who asked questions during the interviews were either
misidentified, listed only
as “unidentified voice,” or noted inaccurately. All criminal investigations,
and certainly
investigations of this importance, must contain accurate information and
documentation. In this
investigation, transcripts were not reviewed for accuracy.

Conclusion of CID’s investigation

CID’s investigative report provided summaries of officers’ interviews that
contained information
about what the officers said, instead of an investigative conclusion as to what
had actually
occurred. Yet we are most concerned with CID’s failure to adequately
investigate or even
attempt to resolve discrepancies or to ask probative questions. Simply put,
this was not a
thorough or impartial investigation.

As CID’s investigation moved forward, Chief Kirkpatrick expressed reservations
about her role
in approving it. In a meeting with the Monitoring Team and in the presence of
Department
personnel, she stated that, when the report was completed, she would be
disinclined to either
review or sign it, arguing that it would cause a conflict for her in future
decisions related to this
matter. The Monitor reminded her of her executive responsibilities as the
Chief of Police to
review the investigation.

CID concluded its investigation in October 2018. In the report, the
investigator wrote, “All
known evidence has been obtained during this investigation. This investigation
was reviewed
through the chain of command up to Chief Kirkpatrick for approval to submit to
the Alameda
County District Attorney’s Office for possible criminal charges.” Despite this
assertion, there
was not a full review, as it was the CID lieutenant, who participated in the
interviews of the
initial subject officers, that signed the report as the reviewing supervisor.
In other words, the
lieutenant approved his own work and that of the Criminal Investigations
Division. There is no
indication of approval by the CID Commander, nor any explanation why the CID
Commander
did not participate in the review and approval chain. The report also does not
contain a signature
of approval by the Deputy Chief for the Bureau of Investigations or the
Assistant Chief.

Therefore, contrary to what the primary investigator wrote, the CID
investigation was not subject
to a full chain of command review.

Forwarding to the District Attorney’s Office

The Alameda County District Attorney’s (DA) Officer-Involved Shooting (OIS)
Team is
authorized, by agreement with each local law enforcement agency in Alameda
County, to
conduct a separate, parallel investigation into officer-involved shooting
incidents that lead to
death. The District Attorney’s OIS Team typically responds to the scene of an
officer-involved
shooting incident, as it did in this event. It was evident from our reviews of
OPD’s reports that
the District Attorney’s Office also participated with CID investigators in
their interviews of the
subject officers.

On October 31, 2018, Chief Kirkpatrick approved CID’s investigation and signed
the
investigative report. Chief Kirkpatrick failed to question and correct the
numerous deficiencies
and omissions in the investigation prior to finalizing and forwarding the
report to the District
Attorney’s Office.

On March 6, 2019, the District Attorney issued a report on the shooting of Mr.
Pawlik in which
she declined to prosecute any of the involved officers. The report notes that
the DA’s Office
“focuses exclusively on the question of whether there is sufficient evidence to
prove beyond a
reasonable doubt that a law enforcement official committed a crime in
connection with the
shooting death.” The report states that the “OIS Team does not examine
collateral issues such as
whether law enforcement officials complied with internal policies, used
appropriate tactics, or
any issues that may give rise to civil liability.” The report continues,
“[T]his report should not
be interpreted as expressing any opinions on non-criminal matters.”

Section 6: The Internal Affairs Division (IAD) Investigation

The Internal Affairs Division’s investigation was replete
with failures. IAD’s failure to expeditiously pursue the
administrative investigation resulted in the loss of
potentially valuable information. IAD investigators
asked leading questions, provided information to the
subject officer regarding what they believed the
subject officer was trying to say, and failed to address
many serious discrepancies and inconsistencies.

Unlike a criminal investigation of an officer-involved shooting, an
administrative investigation
conducted by OPD’s Internal Affairs Division (IAD) is not intended to explore
whether officers
engaged in criminal conduct. Instead, it is intended to focus on the actions
or inactions of
officers based on the policies and procedures of the agency. The
administrative investigation,
therefore, should not be viewed as a continuation of the criminal
investigation, but as a separate
investigation into potential misconduct or policy violations by subject
officers whether or not
any criminal misconduct occurred. Best practices recommend that police
agencies direct their
investigators to conduct administrative interviews as soon as possible and
without unnecessary
delays.

In this incident, IAD personnel appropriately responded to the scene. They
also monitored the
initial criminal interviews of the subject officers telephonically.

The IAD investigators had the same information from the scene that the CID
investigators had,
including the raw video footage. IAD also monitored the initial interviews of
subject officers.
However, IAD investigators did not conduct their administrative interviews of
the subject
officers until August 2018, five months after the incident. Not surprisingly,
during their
administrative interviews, several officers attributed their inability to
recall some information
about the incident by noting that it had occurred five months prior. Well
before August 2018,
IAD investigators had the information they needed to conduct thorough
interviews and address

any inconsistencies, discrepancies, or concerns they had. Although the
analysis of the PDRD
footage from the camera placed on the hood of the BearCat, conducted by OPD’s
vendor
Imaging Forensics, was not completed until September 2018, IAD investigators
did have the raw
video footage, as well as the enhanced versions provided by OPD’s vendor
Precision
Simulations, Inc. Those should have been sufficient for purposes of
considering inconsistencies
in officers’ statements. IAD’s failure to expeditiously pursue the
administrative investigation
could have resulted in the loss of potentially valuable information.

Suggesting responses to subject officers

As with the CID investigators, IAD investigators inappropriately made
suggestions to elicit
certain responses. This practice is inconsistent with OPD’s Internal Affairs
Division Policy and
Procedure Manual. One example was in Sergeant Negrete’s interview. At one
point, the
investigator said, “[O]kay it sounds like even, uh yourself, a longtime member
of the swa—uh
SWAT team, has used the vehicle many times, you didn’t, uh, feel probably
confident enough
even in your own skills shooting through a porthole, where you felt that was
appropriate thing to
do.”

In another example, the IAD investigator questioned Sergeant Negrete by stating
that “a nay
sayer [sic] might say, well how could he see everything if he��s right there on
his gun and–and he
must be totally focused in on the guy and he just said that he didn’t even know
that a guy was
standing right next to him for 30 seconds, boy it just sounds like he was so
engaged in the threat
that he- -he didn’t know what was going on around him.” Sergeant Negrete
responded that he
would say that he was “absolutely engaged in the threat.” The practice of an
IAD investigator
querying a subject officer as to how he might respond to a hypothetical critic
in these
circumstances is wholly inappropriate. The internal investigatory process is
not intended to
create opportunities for officers to make exculpatory utterances for a later
defense.

The credibility of an investigation is also mitigated when investigators
provide both the
questions and the answers to subject officers. IAD’s use of leading questions,
as well as its
attempts to prompt a specific response, are most apparent in the interview
of Officer Phillips,
who was armed with the less-than-lethal shotgun during this OIS. In Officer
Phillips’s interview,
IAD asked him why he did not “initially consider just walking up to the guy and
disarming him
yourself?” Officer Phillips responded, “Because I could clearly see that he
was armed with the
handgun, and I’ve never seen anybody, um, armed with a gun on duty with their –
with their, uh
actually holding.” Officer Phillips continued, “[W]ith them actually holding
it and gripping, uh,
the weapon.” The investigator then asked Officer Phillips, “It – it’s – you
didn’t approach it

because that was the first time you saw an individual with a gun in his hand.
An individual with
a gun in his hand is dangerous, correct?” After Officer Phillips answered,
“Yes,” the investigator
continued, “[I]t’s a threat, correct?” After another affirmative response, the
investigator said,
“Okay. So did you fear for your safety?” Officer Phillips confirmed that he
did.

In Officer Phillips’s interview, the investigator also said, “One might say,
hey, boy, this guy was
out cold, you know. Why didn’t you just walk right up and grab the gun? I
mean it would have
been simple. It – what threat is he posing? What would you say to that?”
Officer Phillips
responded, “And who is this asking?” One investigator responded, “it’s – it’s
a hypothetical,”
and another investigator responded, “Joe Citizen.” The second investigator
continued by
clarifying that he was referring to anyone who might “critique or criticize
what you did.” The
leading questions; attempts to elicit specific answers; and questions that are
framed to provide a
justification, should anyone ask, are completely inappropriate.

In another example, IAD asked Officer Phillips to explain a statement he made
in his initial
criminal interview, when he was asked if he thought that Mr. Pawlik knew that
the police were
there. The IAD investigator told Officer Phillips that in his CID interview,
when asked by CID
investigators if he believed that Mr. Pawlik had known police were on scene, he
had responded
that he “didn’t think so.” In his IAD interview, investigators asked Officer
Phillips multiple
questions about why he “didn’t think so,” and if it could just be that he did
not know if Mr.

Pawlik knew police were there. Even when Officer Phillips said that he did not
believe that Mr.
Pawlik appeared to be sleeping, the investigator said, “So did, just to
clarify, uh, you weren’t real
sure.” And then later, the investigator continued, “You – you’re saying you
don’t know,” to
which Officer Phillips responded “Uh, yes, sir.”

These are examples of the numerous inappropriate leading questions that
attempted to elicit
exculpatory responses from subject officers. The IAD Commander should have
rejected the IAD
investigators’ tactics or insisted that the interviews continue with an
additional series of objective
questions. Further, the IAD Commander should have refuted the factual value of
the responses
derived from leading questions.

Failure to address discrepancies

In its report, IAD documented only one discrepancy involving an officer’s
statements or actions.
Officer Hraiz claimed in his interview that he “assessed between each round
fired,” and IAD
explained that impossible claim as a “perception discrepancy based on the
stress of the incident.”
However, IAD failed to address far more critical discrepancies and
inconsistencies in statements
made by subject officers. These included: Mr. Pawlik’s state of consciousness
as described by

witness and subject officers; the degree to which Mr. Pawlik was moving just
prior to and at the
time of the shooting; and how, and to what degree, Mr. Pawlik allegedly raised
the gun just prior
to the shooting.

The IAD investigation also identified other troubling issues but did not
examine them closely.
For example, during his interview, Lieutenant Yu asserted that the officers on
the scene were
prepared to deal with Mr. Pawlik prior to his awakening. Lieutenant Yu claimed
that he
confirmed this by asking, “[A]re we set?” to which he received an affirmative
response. He said
that he could not recall if he attempted this confirmation over the radio, or
in person – or who
provided the response. Lieutenant Yu attributed his limited recall to the
incident having
occurred five months prior. When the IAD investigator verified for him that
this actually
occurred after the BearCat arrived, Lieutenant Yu indicated that it had, and
that he “did get a
confirmation that it was a yes. We were good to go.” It appears from the
transcript that
Lieutenant Yu was referring to Sergeant Negrete as having responded “yes” to
his question. He
continued to explain that OPD attempted to “wake” Mr. Pawlik with announcements
such as
“Hey, . Do you – – whoever you on the street.” He
referred to these
announcements as “the usual – – like the announcements we make to announce to
police presence

– – and – – that we’re there.” Lieutenant Yu then said that almost
immediately, “either after the
announcements or during the announcements, the announcements changed to
commands.” He
explained this to mean that instead of announcing “Hey, Oakland Police
Department,” officers
began issuing commands to Mr. Pawlik, “things to the effect of drop the gun or
uh, or – get your
hands up.”

Subject officers said in their interviews that they were not all “in position”
and ready to address
the situation, but that Mr. Pawlik awoke unexpectedly, forcing them to do so.
In his IAD
interview, Sergeant Negrete said that he had not been able to brief the officer
who arrived with
the BearCat because “it went active.” He explained that to mean that Mr.
Pawlik “woke up.”
The statements by the subject officers are inconsistent with Lieutenant Yu’s
statement that they
were, in fact, ready to address Mr. Pawlik – and IAD did not explore these
inconsistencies.

In another example of IAD’s failure to address critical investigative issues,
in both his criminal
and administrative interviews, Officer Phillips said that he believed that he
had been the first
officer to fire at Mr. Pawlik. In his IAD interview, Officer Phillips said
that he fired after he saw
Mr. Pawlik’s head and the gun move. When asked by IAD what he remembered
specifically, he
responded, “I remember his head coming up. Him looking around. Him putting
his head back
down, and then, if I’m not mistaken, his legs moved a little bit, and then, his
right hand, which
was gripping the handgun, uh, it appeared to be moving up a little bit, and his
– I could see that
his head was starting to come up, and that’s when I fired the bean bag round.”
When asked if he
had fired his less-lethal round before the other officers fired their lethal
rounds, he responded,

“[T]o my recollection, I believe it was before.” He added, “I believe that I
shot the bean bag
round, and as I went to re-rack the round the person was already shot.” While
it does not appear
from our review of the PDRD footage that Officer Phillips did, in fact, fire
first, IAD never
identified, pursued, or challenged his statement as a discrepancy in its
report.

Even with video evidence that did not support the subject officers’ statements,
IAD investigators
failed to identify or reconcile the discrepancies regarding the manner in which
Mr. Pawlik
purportedly raised the weapon, at whom he allegedly pointed it, and the alleged
height at which
the weapon was raised. In IAD’s interviews of subject officers who used lethal
force, officers’
descriptions of the actions of Mr. Pawlik varied from his raising the gun from
a couple of inches
to his raising the gun as much as 10 or 14 inches. Officer Hraiz, who was in
an elevated position
in the turret of the BearCat, said that Mr. Pawlik pointed the gun directly at
him. He said, “[I]t
looked like the gun was being pointed, barrel, it looked like I was looking
right down the barrel.”
From Officer Berger’s position on the ground and to the side of the BearCat, he
too said that the
gun was pointed directly at him. Sergeant Negrete also said that the weapon
was pointed directly
at him, and said, “I remember looking down straight at the barrel of his
pistol,” and then added
later, “It looked like that he was pointing it directly at me.” Officer Tanaka
described the actions
of Mr. Pawlik as, “He raised the firearm to, like, a contact ready, uh.” When
asked to clarify
what he meant by “contact ready,” Officer Tanaka said, “Uh, where he would be
pointing the
gun directly at us.”

During their interviews, subject officers described their observations of Mr.
Pawlik just prior to
the shooting as “alert and awake;” “appeared agitated as if the officers were
bothering him;”
“appeared agitated and upset;” and “appearing like he knew what was going on.”
Subject
officers also described him as “annoyed, bothered, analyzing the situation;”
“scanning from side
to side;” and “purposefully and intentionally pointing his weapon at officers.”
Officer Phillips
said that prior to firing the beanbag round, Mr. Pawlik appeared “to look like
he was initially
trying to figure out what was going on,” and then described him as “kinda
waking up.”

In addition to the subject officers, IAD identified five additional officers on
scene who were
apparently able to observe Mr. Pawlik in the seconds prior to the shooting.
These witness
officers described Mr. Pawlik as “having a dazed look;” “appearing drowsy;”
“like anyone
waking up from a sudden loud noise;” “startled from a deep sleep, extremely
drunk or passed
out;” “not really getting it in regards to commands;” and “like he was under
the influence and did
not appear lucid, or unconscious.” While in their interviews, these witness
officers said that they
had looked away, or could not directly see Mr. Pawlik’s face or hands at the
exact moment of the
shooting. These observations contrasted with the subject officers’ statements
– and IAD should
have further explored these discrepancies.

Intent, Means, Opportunity, and Ability

IAD considered the “intent,” “means,” “opportunity,” and “ability” of Mr.
Pawlik in its
investigation, and circuitously reached conclusions on these elements.
However, IAD never
established that Mr. Pawlik knew what was occurring or understood the
officers’ commands. To
support that the severity of Mr. Pawlik’s behavior justified the officers’
actions, IAD employed a
variety of arguments, including that Mr. Pawlik had himself committed a crime,
in that he “was
in possession of a loaded firearm in a public place” and that he “ignored the
officers’
commands.” IAD investigators, however, had the benefit of the best evidence in
this case: the
PDRD footage from the camera placed on the hood of the BearCat. Yet the IAD
investigators
did not pursue or challenge any line of questioning regarding what the officers
said to justify
their actions.

IAD’s findings

IAD sustained only one violation against an officer in its investigation of the
shooting of Mr.
Pawlik. IAD concluded that Sergeant Negrete was “singularly focused on Pawlik
and lost
effective control of his DAT in the crucial half-minute leading to the
shooting,” and sustained
him for Manual of Rules violation 285.00-2, Supervisor Responsibilities.
Interestingly, this
finding is inconsistent with IAD’s determination that “the involved member’s
actions leading up
to the use of force did not aggravate the situation, or make the use of force
more likely to occur.”

It is clear that officers’ decisions made in the more than 40 minutes prior to
this shooting –
including a lack of appropriate contingency planning, and failure to
appropriately manage the
Designated Arrest Team – were critical factors in the tragic outcome.
Nonetheless, IAD’s report
notes, “[T]he actions also did not create the circumstances that lead to, or
contributed to the use
of force.”

IAD failed to identify and address numerous discrepancies and inconsistencies
in officers’
statements; failed to adequately consider the PDRD footage captured from the
hood of the
BearCat; and in so doing, failed to support its investigative findings. The
IAD Force
Investigation Team Commander and the IAD Commander then failed to address the
serious
deficiencies and omissions in this investigation prior to allowing it to be
finalized and forwarded
to the Executive Force Review Board.

Section 7: The Executive Force Review Board (EFRB) Process

OPD’s Executive Force Review Board (EFRB) failed in
its primary responsibility to conduct a detailed review
of the shooting – and in doing so, it compounded the
numerous failures associated with this entire matter.

Like CID and IAD, the EFRB accepted what the officers
asserted at face value and without regard for any
inconsistencies with available video evidence.

Departmental General Order K-4.1 (Force Review Boards) requires that an
Executive Force
Review Board (EFRB) be convened “to analyze and assess the factual
circumstances during and
proximate to all…Level 1 UOF incidents and investigations” and to “[e]stablish
concluding
recommendations to the COP from those circumstances.” Negotiated Settlement
Agreement
(NSA) Task 30 (Executive Force Review Boards) and Departmental policies place
the burden on
OPD to convene EFRBs consisting of high-ranking OPD personnel to review Level 1
(most
severe) uses of force.

External EFRB

As the criminal and IAD investigations neared conclusion in the fall of 2018,
Chief Kirkpatrick
and the Monitor discussed the prospect of establishing an EFRB comprised of
non-OPD
personnel. While the Monitor initially thought that the concept had some
merit, as OPD’s plans
progressed, Chief Kirkpatrick’s interactions with the Board members proposed by
the
Department became problematic. Specifically, prior to the convening of the
Board, Chief
Kirkpatrick had conversations with the proposed external Board Chair, a retired
U.S. Magistrate
Judge, in which the Chief apparently discussed her own position on the
justification of the deadly
force used by the officers. When, on October 17, 2018, the Chief informed the
Monitor that she
had had conversations with the retired Magistrate, the Chief suggested that the
Monitor might
wish to talk to the retired Magistrate directly. When the Monitor spoke with
the retired

Magistrate, she confirmed that she had had conversations with the Chief, and
she expressed
concerns to the Monitor about the appropriateness of such discussions prior to
the convening of
the Board. The retired Magistrate told the Monitor that Chief Kirkpatrick had
told her that the
Chief was personally “fifty-fifty” on the shooting. She expressed concern that
her participation
could make it “murky,” and she offered to withdraw from consideration.

Chief Kirkpatrick advised the Monitor that she had also spoken with the other
proposed external
Board members. In addition, the Monitor had concerns with the special training
and
investigative materials the Chief was planning to give to the panel, and the
proposed
compensation for each external board member.

For these reasons, it became clear that the idea of an outside board – one
whose members had
already heard the Chief’s opinions of the case – had become inappropriate.
Though an EFRB
comprised of persons external to the Department was perhaps a progressive and
innovative idea,
it was tarnished by Chief Kirkpatrick’s contacts with its potential members.
This raised serious
ethical questions. The Monitor called the City Administrator to inform her
that the manner in
which the Chief had briefed the retired Magistrate and others compromised the
integrity of the
process, and that the City would be ill-advised to proceed. Ultimately, and in
consideration of
certain legally defined time considerations, the Monitor determined that the
EFRB should
proceed in its customary manner.

Convening of the EFRB

OPD convened an EFRB, chaired by a Deputy Chief, and with two captains as
voting members.
The Board met on November 28 and 29, 2018, and on January 8, 2019. In addition
to the
Department personnel who regularly support the Board’s activities, the meetings
were attended
by the then-Chair of the City’s Police Commission and members of the
Monitoring Team. The
retired Magistrate who was initially slated to serve as the Chair of the
outside EFRB also
observed the proceedings.

The shortcomings with both the CID and IAD investigations carried into their
presentations to
the EFRB. Neither CID nor IAD rectified their investigations’ serious
omissions, and both
presentations relied heavily on conclusions that were not supported by the
facts. Both CID and
IAD took what the involved officers asserted at face value, and without regard
for any
inconsistencies with available video evidence. Unfortunately, the Board, for
the most part,
adopted the same stance. Additionally, the Board also relied on the
discredited internal video
analysis that was completed by an OPD sergeant and was criticized by Chief
Kirkpatrick as an
“embarrassment” when it was first presented.

In addition to the many flaws in IAD’s presentation to the Board, it was
delivered at breakneck
speed. The investigator read nearly non-stop from densely packed PowerPoint
slides. At the
presentation’s conclusion, Board members asked some probing questions of the
investigator, but
inexplicably failed to explore apparent inconsistencies.

During the questioning, the IAD investigator said that he had hoped that the
video evidence
would either prove or disprove what the officers had asserted. According to
the investigator,
when he determined that none of the three video analyses conclusively supported
the officers’
assertions, IAD had to defer to what the officers claimed.

The IAD investigator’s logic and conclusions were troubling for several
reasons. First, the video
was only analyzed twice; and one analysis, completed by an OPD sergeant, should
have been
discounted because the Chief had already acknowledged that its quality was
inferior and an
“embarrassment.”

Second, the video did not support what the officers asserted. The IAD
investigator, both in his
investigation and in his presentation to the EFRB, failed to explore the
inconsistencies between
the video and the officers’ statements. He was certainly not compelled to
defer to the officers’
statements; he simply chose to. In other words, it was the position of IAD,
that absent proof to
the contrary, officers involved in a deadly shooting were deserving of the
benefit of the doubt.
This kind of thinking – deferring to officers’ accounts, by default – must be
rejected. It is at the
core of the community’s historical distrust of OPD – and nationally, of
policing in general.

Third, when the IAD investigator could not answer questions with specificity,
he indicated that
some content in officers’ answers was “implied.” That is, the investigator
made assumptions
regarding the officers’ views. During questioning by the Board, the
investigator even posited
that there had to be “implied intent” on the part of Mr. Pawlik. In analyzing
justification for any
use of force, the intent of the subject is one of the factors to be considered,
as demonstrated by
his actions or words. However, “implied intent” appears to be a contrived
standard which has no
basis in an analysis of justification.

The assertions of the patrol procedures subject matter expert (SME) who
appeared before the
EFRB regarding the BearCat were also troubling. This SME, who made his
presentation prior to
the BearCat SME, presented an illogical argument regarding the value of the
cover afforded by
the armored vehicle. In essence, the SME’s position was that as long as any
part of an officer is
exposed from behind the BearCat, the threat is the same as if the armored
vehicle was not there
at all, and that the officer should react accordingly. According to the EFRB
Report, “The Board
asked how this guidance about protecting oneself would apply if the officers
were behind cover

and/or concealment. [The SME] replied that the training is still that officers
must protect
themselves and other officers; while cover and concealment might lower the risk
of being struck
if the subject opens fire, they do not entirely negate it.”

The BearCat was described by another SME who appeared before the EFRB as a
“large piece of
cover that we can manipulate wherever we need it.” It is indisputable that
this vehicle could
have created a significant barrier between the officers and Mr. Pawlik; yet
officers did not fully
exploit this option. Any barrier can diminish the prospect of harm to a police
officer: a key
component of any analysis of force justification. The SME asserted that any
exposure was
tantamount to full exposure; and unfortunately, the Board adopted this flawed
position in its
analysis of the justification. According to the EFRB Report, “While the
officers were behind a
piece of cover, subject matter expert…testified that a piece of cover may
lower, but does not
entirely negate, the chance of an officer being struck by a round, and that
officers are trained
accordingly.” However, in the EFRB’s discussion of supervision and tactics,
some members of
the Board appeared to discount this position.

In the end, the Board voted twice on the appropriateness of each use of force:
first, on November
29, 2018; and second, on January 8, 2019. On November 29, 2018, when the
Deputy Chief
asked if there was any discussion regarding the vote on the first officer to be
considered,
specifically Sergeant Negrete, one of the captains said “no,” but also noted
that he felt
uncomfortable because there were others in the room – which we presume was a
reference to
either a member of the Monitoring Team or the Police Commission. We found this
comment
troubling from an agency that has consistently asserted it values transparency.
The remaining
votes were held only one to two minutes apart, also without any substantive
discussion. On
November 29, 2018, the Board’s discussion and vote on the officer-involved
shooting of Joshua
Pawlik took only 10 minutes – from 1:41 p.m. to 1:51 p.m.

After these votes, the Board members determined that they needed additional
information before
they could reach a conclusion on the allegations related to supervisory
responsibility and
accountability. They directed IAD to conduct further investigation and
analysis of these issues,
and decided that the Board should reconvene for yet another day.

The Board members voted again on the uses of force when they reconvened on
January 8, 2019.
This time, their discussions were only slightly more substantive. For example,
when they
referred to specific slides in IAD’s PowerPoint presentation, the members
generally accepted the
information at face value. The captain who expressed discomfort with the first
vote indicated
that to the “naked eye,” he did not see the gun move, and noted that the video,
as viewed on
YouTube, did not look good. While this is the closest the Board ever came to
noting
inconsistencies between the officers’ statements and the video, it nonetheless
did not factor into
the Board’s ultimate finding.

The summary of the Board’s deliberations regarding force in the EFRB Report
largely consists
of material copied from the officers’ statements. The Report also appears to
have been premised
on some information that had no factual basis. For example, the Report
indicates,

“All four of the officers who shot Pawlik gave statements attesting to the fact
that
Pawlik pointed the handgun at the officers (a violation of Penal Code §417(c)),
as
did Officer Philips. All of the officers were found credible by IAD, and the
Board
discussed that no evidence contradicts the officers’ statements that Pawlik
raised
the gun and that it was pointed in their direction after failing to comply with
commands to drop the gun. The Board noted that the video forensic analysis
presented by CID and IAD confirmed that Pawlik lifted the handgun up and
pointed it towards the officers, after he had been told to drop the gun.”

As noted throughout this report, the video evidence does not support the
officers’ statements, and
there is no video forensic analysis that confirms that Mr. Pawlik lifted and
pointed the handgun
at officers – yet the EFRB, in its report of its findings, said that he did.

Further, not even OPD’s own discredited analysis makes such a definitive
conclusion. Yet
according to the EFRB Report, “The Board noted that all the involved officers
reported seeing
Pawlik raise the handgun and point it towards them, but that the un-enhanced
PDRD video of
Pawlik’s movements was not clear enough to discern whether this occurred.
However, the OPD
video forensic analyses showed Pawlik’s arm and body moving in a manner
consistent with him
pointing the handgun at the officers.” And later, the Report continues,
“…Pawlik made a sudden
movement which was captured on [a sergeant’s] PDRD and appeared to be Pawlik
attempting to
sit or get up. Video forensic analyses showed further evidence that Pawlik’s
hand, containing
the handgun, was moving upwards from the ground…” However, none of the video
analyses is
as definitive as asserted in the EFRB Report.

In another example of the Board’s failure to question the veracity of the
involved officers’
statements, the Board members appeared to accept, without question, at least
three officers’
stated ability to see Mr. Pawlik’s face clearly and interpret his emotions. In
analyzing Mr.
Pawlik’s intent for the individual uses of force, the Board noted, “As officers
continued to give
commands to drop the gun, Officer Berger reported that Pawlik sat up and
appeared ‘agitated’, as
if the officers were bothering him.” In another example, the Board noted, “As
officers continued
to give commands to drop the gun, Officer Hraiz reported that Pawlik appeared
‘agitated’ and
‘upset’, and appeared to know what was going on around him as he glanced back
and forth
between the officers.” And finally, the Board noted, “Officer Tanaka reported
that Pawlik was
frowning and appeared ‘irritated’, but appeared to understand the situation.”

The Board, as was the case in the CID and IAD investigations, never questioned
these
characterizations by the officers, but nonetheless accepted them. None of the
officers’ rifle
scopes contained magnification, and officers needed binoculars to ascertain the
details of the gun
near Mr. Pawlik’s hand. Yet the Board accepted at face value the officers’
assertions that, at the
time of the shooting, they were able to discern Mr. Pawlik’s facial expressions
and decipher their
meaning. At the time the shots were fired, however, it does not appear that
Mr. Pawlik was even
looking at the officers. No investigating body, including CID and IAD, or
reviewers of the
investigations – including the EFRB and the Chief of Police – noted any
skepticism regarding
the obvious similarities of the officers’ accounts.

The Board spent a considerable amount of time discussing supervisory issues
associated with
this incident. That discussion consumed much more time than was devoted to
discussing the
actual uses of force. The Board’s initial inability to reach a conclusion on
the supervisory issues
necessitated an adjournment and referral to IAD for additional work.

We concurred with the Board’s determinations in finding fault with the
supervisory actions of
Lieutenant Yu and Sergeant Negrete. However, the Board members’ votes on the
use of force
contrasted with many of their statements during their deliberations. The
Deputy Chief was the
most outspoken in his criticisms of the supervisors on the scene, and in
particular, Sergeant
Negrete. He indicated that Sergeant Negrete “acted with gross negligence,” and
that Sergeant
Negrete took control in a manner that was problematic and led to the eventual
outcome of this
event. He described Sergeant Negrete’s decisions as “outrageous,” and
indicated that Sergeant
Negrete did not consider the importance of the preservation of life. The
Deputy Chief expressed
dismay that the officers did not, in fact, use the BearCat as cover – but
instead used it as a
platform from which to shoot.

The Deputy Chief clearly recognized the value of the cover afforded by the
BearCat. Yet, the
Board completely discounted this in its analysis of the use of force. At one
point, apparently
taking into account the cover available and the superior firepower possessed by
OPD officers,
the Deputy Chief noted that the officers were not going to be “outshot.” He
said that the mere
fact that Mr. Pawlik rose up “does not cross the threshold.” While this
occurred during the
discussions relevant to supervisory accountability, these opinions were not
consistent with the
Board’s votes on the force itself.

On the other hand, one of the captains placed the entire blame for the shooting
on Mr. Pawlik.
He reiterated throughout the discussion that, in his view, the outcome was
determined by Mr.
Pawlik and not the officers. The EFRB Report captures some of the exchange
between the
captain and the Deputy Chief, but it does not do justice to the tension in the
discussion. The
Deputy Chief appeared to be uncomfortable and troubled by the positions the
captain was taking.
We share his dismay.

We disagreed with the Board’s findings with respect to the uses of force.
During its
deliberations, the Board did not review any of the available iterations of the
video; and there was
no extensive discussion of the video evidence. As we have seen in other cases,
there was some
useful and insightful discussion regarding the non-force-related allegations,
and some Board
members were highly critical of the officers’ actions that preceded the use of
force. Nonetheless,
the Board did not give that same thoughtful consideration to the use of force
analysis. The Board
failed in its primary responsibility, and its final EFRB Report compounded the
tragedy of the
March 11, 2018 event.

Section 8: The Community Policing Review Agency (CPRA) Investigation

Instead of conducting a thorough, independent
investigation, the Community Policing Review Agency
(CPRA) simply reviewed OPD’s investigation and
rewrote it, leaving the same questions and concerns
unresolved. Following this case, the Police
Commission brought in new leadership to the CPRA.

The Community Police Review Agency (CPRA) is a component of the Police
Commission of the
City of Oakland, and is independent of the Police Department. The CPRA is
responsible for
investigating misconduct complaints brought directly by community members or
falling within
certain categories – including uses of force. On April 22, 2019, the CPRA
submitted its two-part
Report of Investigation (ROI) on the shooting of Mr. Pawlik. The CPRA’s
mandate gave the
agency the authority to initiate its own investigation shortly after the
incident. The CPRA
investigator noted, however, that when the case was assigned in July 2018, the
CPRA only
received the PDRD footage and scene photos. The investigator claimed that it
was not until
January 2019, three months after the fact, when OPD advised the CPRA that the
criminal
investigation had been completed, that the CPRA was able to obtain the
remainder of OPD’s
materials and initiate a full investigation. It is unclear why this delay
occurred, since Chief
Kirkpatrick approved the CID investigation on October 31, 2018; and the Chief
had reported to
the Police Commission that the criminal investigation had been forwarded to the
Alameda
County District Attorney’s Office on November 7, 2018, and to OPD’s Internal
Affairs Division
(IAD) on November 9, 2018. For the CPRA to be effective, it must receive
investigative
materials in a timely manner.

The CPRA’s responsibility was to conduct an independent administrative
investigation into any
policy violations by OPD personnel – not to identify or address potential
criminal misconduct.
The burden of proof in an administrative misconduct investigation is the
preponderance of
evidence; and while CPRA acknowledged this, its analysis does not display an
understanding of
that standard. Much of CPRA’s report addressed legal arguments more relevant
to criminal
behavior than to administrative misconduct.

The CPRA criticized IAD’s investigation as inadequate, but it took no other
action. In its report,
CPRA wrote, “Unfortunately, there were important details to be elicited at the
time of the initial
interviews of the officers immediately following the incident, yet these topics
were not
thoroughly explored through questioning to the satisfaction of the CPRA
Investigator. The
officers should have been asked to describe in complete detail what they saw,
how Mr. Pawlik
was holding the gun before and at the time of the shooting, the angle of his
right arm at all times,
if the placement of the gun changed from when Mr. Pawlik was sleeping with it
to when the
allegedly lifted it up, exactly how far he lifted it up, the angles of the gun
as it moved in more
detail, any problems seeing the gun, the movement of the gun as he was shot,
and the location of
the gun after the shooting.” Despite this assessment, the CPRA did nothing to
address or rectify
the deficiencies it identified in OPD’s investigation. Although the CPRA
investigator questioned
the credibility and truthfulness of some of the involved officers, the
investigator conducted only
one independent interview and made no attempt to resolve the inconsistencies
the CPRA found
in OPD’s investigation.

The CPRA investigator simply reviewed OPD’s investigation and left the same
questions and
concerns unresolved. The then-Director of CPRA, who also failed to identify
and address the
discrepancies in the report, approved the investigation. The Police Commission
was highly
critical of the work of the CPRA in this investigation, and has since
readjusted its personnel
assignments and brought new leadership to the helm of the CPRA.

Even after identifying numerous concerns with IAD’s investigation, and
documenting its
insufficiency, the CPRA still relied on it to arrive at its findings when it
exonerated all subject
officers for the use of force. By OPD’s definition, which is also used by the
CPRA, the standard
for a finding of exoneration is “The investigation clearly established that the
actions of the police
officer that formed the basis of the complaint are not violations of law or
departmental policy.”
The CPRA sustained findings against Sergeant Negrete for failure to properly
supervise this
incident and against Lieutenant Yu for failure to properly supervise – but
recommended no other
sustained findings. In the shooting death of Joshua Pawlik, the CPRA failed as
an investigative
agency.

Section 9: Developments Following the Executive Force Review Board

Following the EFRB, our Team met with the Chief of
Police to share our assessment and observations. A
few days later, the Chief issued an addendum to the
EFRB Report. The Chief’s addendum was primarily
focused on legal issues, and not the application of
relevant Departmental policies – as was her charge.

As outlined in OPD Departmental General Order (DGO) K-4.1 (Force Review and
Executive
Force Review Boards), the EFRB provides recommended findings to the Chief of
Police. The
Chief has the responsibility to determine the final disposition of each
recommendation. The
policy requires that if the Chief “does not concur with any of the Board’s
findings or
recommendations, the basis for such disagreement shall be documented as addenda
to the
report.”

Meeting with the Chief

The Executive Force Review Board submitted its report to Chief Kirkpatrick at
the end of
January 2019. Prior to the Chief’s final determination, we met with the Chief
to provide her with
our assessment based on our review of the material we had received up until
that point, as well as
our observations of the EFRB and its deliberations. On February 5, 2019, the
Monitor, the
Deputy Monitor, and another member of the Monitoring Team met with Chief
Kirkpatrick and
an attorney from the Office of the City Attorney who was at that time assigned
to the Police
Department.

During our meeting, we reiterated that we had been concerned with this case
since the evening it
occurred. The Monitor recounted his conversation with the Chief on the evening
of March 11,
2018, when she had told him that the shooting “looks good.” The Monitor
reminded the Chief
that he had cautioned her about committing to such a conclusion so early. We
also noted our
concern with the Department’s two initial press releases regarding the
incident, which appeared

to show a predisposition to find that the use of force was justified. We
reminded the Chief of our
conversation regarding the video analysis completed by an OPD sergeant. She
had told us that
she considered it an “embarrassment;” and we expressed dismay that CID, IAD,
and the EFRB
relied on that analysis in coming to their conclusions.

We also noted that the Chief had told the Monitor that she had shared the video
with the Mayor
in the fall of 2018, and that, according to the Chief, the Mayor had no
follow-up questions,
commentary, or direction. The Chief’s silence on this point during our meeting
suggested to us
that this was accurate. We also expressed disappointment that one of the EFRB
members – who
was formerly the Commander of the Department’s Office of Inspector General –
placed the
entire blame for the outcome of this incident on the deceased, Mr. Pawlik. We
told the Chief
that we found the captain’s statements reminiscent of troubling attitudes and
values historically
attributed to OPD and police departments nationally.

We reminded the Chief that, regarding body-worn camera footage, OPD had video
of the event
that was not plagued by either sudden movements or obscurities. We shared our
views with the
Chief as to how the video might inform her thinking. We contrasted the video
(in both its raw
and enhanced forms) with the involved officers’ assertions about what occurred
– and we
elaborated on the obvious discrepancies between the two. We noted that no
investigating entity
within OPD ever explored or resolved these discrepancies.

We also shared some of our observations from the EFRB and the apparent
disconnect between
some of the highly critical comments made by some Board members, including the
Chair, and
the members’ votes on the force itself.

In our meeting, Chief Kirkpatrick indicated that, for her, the most compelling
evidence was that
it appeared that all five officers fired at “pretty much the same time.” She
concluded that they all
must have perceived the same threat and reacted to it at the same time, and
therefore, the threat
must have been real. We raised the prospect of “sympathetic fire” – that is,
one or more officers
firing in reaction to hearing other officers fire, rather than in reaction to a
threat. During one of
our Team’s many conversations with IAD concerning its ongoing investigation, we
had
suggested that investigators explore that possibility, and IAD assured us that
it would. Yet, we
noted that IAD’s investigation did not include any examination of this issue
despite the Chief’s
assertions that IAD investigated the possibility. In fact, after our meeting
but before she
rendered her decisions on the case, on February 7, 2019, IAD produced an
Internal Affairs Case
Update addressing this issue, which would not have been necessary if the
initial investigation
had been comprehensive.

Chief’s findings

Three days after our meeting, on February 8, 2019, Chief Kirkpatrick signed the
EFRB Report
and indicated in a handwritten note, “I agree in part and disagree in part. My
findings are
attached along with an addendum.” Chief Kirkpatrick, concurring with the EFRB,
determined
that each use of force was within law and policy. Similarly, she concurred
with the EFRB in its
Sustained finding for Lieutenant Yu for a violation of Manual of Rules (MOR)
234.00-2, for
failure to fulfill his command responsibilities.

Chief Kirkpatrick disagreed with the EFRB on two findings. She determined that
the finding for
MOR 314.39-2, Performance of Duty-General, regarding Officer Tanaka’s
self-deployment of
his patrol rifle was Not Sustained, whereas the EFRB had sustained this
violation. She reached a
lesser finding of Sustained for the violation of MOR 285.00-2, Failure to
Supervise, for Sergeant
Negrete. The Board had reached a finding of Sustained for the more serious
Class I MOR
violation.

Consistent with what she had said in our February 5, 2019 meeting, Chief
Kirkpatrick wrote in
her addendum, “The most compelling evidence of a reasonably perceived threat
was that the five
officers shot almost simultaneously at Mr. Pawlik, with all shots fired within
2.23 seconds. I
find this evidence persuasive and corroborative of the officers’ statements
regarding their
perceptions of an immediate threat. In other words, the evidence supports that
this was not the
perception of just one officer, with sympathetic fire trailing the initial shot
after a delay; this was
the perception of multiple officers. The evidence shows the individual shots
occurred too closely
together to be sympathetic fire.”

Chief Kirkpatrick’s analysis on sympathetic fire relied heavily on the Internal
Affairs Case
Update assembled after our meeting on this issue, and after she received the
EFRB Report. The
Department did not even consider the possibility of sympathetic fire in any of
its investigations
or deliberations – a significant organizational omission. Chief Kirkpatrick
accepted, without
question, that five individuals can react simultaneously to a perceived visual
cue, a slight
movement by Mr. Pawlik, but dismissed the possibility that they can react
similarly to an audio
cue, the sound of gunfire from other officers.

We disagreed with Chief Kirkpatrick’s characterization of the available video
evidence when she
wrote, “The video analysis was inconclusive regarding the specific movement of
Pawlik’s lower
arm, hand and the gun just prior to the shooting. However, it is not
inconsistent with the
officers’ statements that Pawlik looked at the officers, raised his arm and
pointed the gun toward
them.” In fact, no video enhancement or analysis – even the Department’s own
discredited video
analysis – supports the officers’ statements, even under the preponderance of
evidence standard
which applied to this case.

Chief Kirkpatrick was responsible for reviewing this case in her role as the
chief executive of the
Department. Accordingly, with the responsibility for assessing her officers’
actions, she was
required to consider Departmental policies, her own professional expectations,
and community
values. The standard for administrative investigations is “preponderance of
evidence,” but the
Chief’s document focused more on legal considerations more typically found in
criminal
investigations rather than administrative investigations intended to determine
compliance with
Departmental policies.

Compliance Director’s addendum

The Monitor, acting in his capacity as Compliance Director, disagreed with
Chief Kirkpatrick’s
findings. On February 19, 2019, he issued an addendum to the EFRB Report. It
reviewed the
deficiencies in the report and overturned Chief Kirkpatrick’s conclusions. As
noted in the
Compliance Director’s addendum,

An essential part of any investigation is the resolution of discrepancies. IAD
and
CID are required to do this by Department policy, by the Negotiated Settlement
Agreement (NSA), and by responsible police practices. However, in the matter at
hand, the investigators – both in their questioning and analysis – failed to
address
the inconsistencies between officers’ statements and the video evidence. The
involved officers’ descriptions of Mr. Pawlik’s movement of his right hand range
from a few inches to two feet. In both the CID and IAD investigations, the
Department failed to challenge the officers on these inconsistencies. In
addition,
the questioning in both investigations was deficient, non-invasive, and replete
with leading questions that served as attempts to support the justification of
the
officers’ actions.

Likewise, despite having access to the officers’ statements and all versions of
the
video, the EFRB members did not address the apparent discrepancies between the
statements and the video. With respect to the uses of force, the EFRB members

appeared to accept IAD’s recommendations at face value. The board was duty-
bound to resolve those discrepancies if IAD did not. However, the board failed
to
do so.

The Compliance Director concurred with the Deputy Chief who served as the EFRB
Chair in his
assessment that Sergeant Negrete’s conduct constituted gross dereliction of
duty. The Deputy
Chief had cited multiple failures on the part of Sergeant Negrete, as outlined
in the EFRB Report
and subsequently in our addendum. The most important point that the Deputy
Chief made is that
the outcome of this incident was so severe that it needed to be considered when
determining
whether Sergeant Negrete’s conduct rose to the level of gross negligence.

The Compliance Director’s final determinations were as follows:

• Sergeant Negrete, Officer Berger, Officer Hraiz, and Officer Tanaka;
Allegation:
Violation of MOR 370.27-1 (Level 1) Use of Force – Sustained.

• Officer Phillips, Allegation: Violation of MOR 370.27-1 (Level 2) Use of
Force –
Sustained.

• Officer Tanaka, Allegation: Violation of MOR 314.39-2, Performance of
Duty-General
for failure to advise the Communications Division of his rifle deployment in
violation of
DGO K-06 – Sustained.

• Officer Tanaka, Allegation: Violation of MOR 314.39-2, Performance of
Duty-General
for self-deploying as lethal cover – Not Sustained.

• Lieutenant Yu, Allegation: Violation of MOR 234.00-2, Failure to fulfill
his command
responsibilities – Sustained.

• Sergeant Negrete, Allegation: Violation of MOR 285.00-1, Failure to
Supervise –
Sustained.

Convening of the Police Commission Discipline Committee

On April 22, 2019, the Community Police Review Agency (CPRA) submitted its
investigative
report on this incident, in which it found all uses of force to be Exonerated.
Additionally, CPRA
reached a finding of Not Sustained for the allegation that Officer Tanaka
failed to notify the
Communications Division of his rifle deployment. CPRA reached findings of
Sustained for the
supervision allegations for both Sergeant Negrete and Lieutenant Yu. In each
case, CPRA
recommended demotion as the resulting discipline.

On June 12, 2019, in the aftermath of CPRA’s findings, the Compliance Director
issued
discipline determinations. For all officers using force, the Compliance
Director recommended
termination. This recommendation also included Sergeant Negrete’s violation of
MOR 285.00-
1, Failure to Supervise; and Officer Tanaka’s violation MOR 314.39-2
Performance of Duty-
General, for his failure to advise the Communications Division of his rifle
deployment. For
Lieutenant Yu’s violation of MOR 234.00-2, for failure to fulfill his command
responsibilities,
the Compliance Director recommended a five-day suspension.

Both the Oakland ballot measure (Measure LL) and the enabling legislation that
established
Oakland’s Police Commission outline a process for resolving disagreements
between OPD and
the CPRA with respect to findings and recommended discipline in administrative
investigations.
In the matter of Joshua Pawlik, the Compliance Director’s findings stood as
those of the
Department. The Chair of the Police Commission was, therefore, required to
establish a three-
member Discipline Committee to resolve the differences between the CPRA’s and
OPD’s
findings. The Discipline Committee convened, and issued its findings on July
9, 2019. The
Discipline Committee reached Sustained findings for all uses of force; and in
each case,
recommended termination. The Discipline Committee further determined that
Sergeant Negrete
be Sustained for a violation of MOR 285.00-1, Failure to Supervise, and
recommended
termination. In addition, the Discipline Committee reached a finding of
Sustained for Lieutenant
Yu for MOR 234.00-2, for failure to fulfill his command responsibilities, and
recommended
demotion.

Skelly hearings

Pursuant to California law, prior to the imposition of sanctions, including a
suspension of one
day or greater, officers are entitled to a hearing, known as a Skelly hearing.
Officers can
participate in person or opt to respond in writing. In this case, the City of
Oakland retained an
outside hearing officer (Skelly officer) to provide an impartial review and
render recommended
findings and proposed discipline. The City selected as the Skelly officer,
Michael Gennaco, Esq.
Mr. Gennaco is a former federal prosecutor and former Chief of the Civil Rights
Section at the

U.S. Attorney’s Office for the Central District of California. Mr. Gennaco
also served as the
Chief Attorney of the Office of Independent Review for Los Angeles County.

All involved officers declined to participate in an in-person Skelly hearing
and instead provided
written responses through their legal counsel.

Mr. Gennaco submitted his Skelly report on April 3, 2020, and reached findings
based on his
independent review of the evidence. He determined that Sergeant Negrete should
be Sustained
for the Class I violation of MOR 285.00-1, Failure to Supervise, agreeing with
the Compliance
Director’s finding, and that of the EFRB. Mr. Gennaco wrote:

This Skelly officer finds the analysis of the EFRB sound. Most compelling in
support of a finding of gross negligence and dereliction of duty was the
articulation of the series of supervisory mistakes by Sergeant Negrete
that left him
and his team poorly prepared to address the challenges presented – and the
consequential loss of life that emanated from those poor decisions. Moreover,
by
his unprompted statements to team members immediately after the incident (that
the subject pointed a gun at them and that they had to use deadly force),
Sergeant
Negrete corrupted the investigative process before it could even begin by
undermining the ability of each involved officer to relate their observations
and
actions free from outside influence.

Notably, Mr. Gennaco also determined that all officers should be Sustained for
unreasonable use
of force in violation of OPD’s MOR and use of force policies. He wrote, “For
this reviewer, the
critical question was not limited to the ‘split second’ decision the officers
made about whether to
discharge their weapons when they perceived what they claimed was an immediate
threat to
them and others. Instead, the analysis also encompassed whether the involved
officers
performed reasonably after responding to the call and observing an individual
apparently not
conscious with a gun in his hand.”

Mr. Gennaco further noted that responding officers “had resources and time to
devise a
coordinated response,” and that they were able to “have the Bearcat armored
vehicle summoned
and deployed before Pawlik began to awaken.” Yet they squandered that
resource. Mr. Gennaco
continued, “Despite having an armored vehicle on scene that was specifically
designed to
provide the greatest protection for officers from firearm rounds, the team
chose to use the
equipment as only partial cover. Specifically for reasons of tactical
superiority and safety, the
Bearcat is outfitted with ports and a turret from which officers, fully
protected by the armored
walls of the vehicle, could deploy their firearms. The Bearcat is one of the
few devices where a
safely positioned law enforcement officer could virtually negate the threat of
a an [sic] armed
subject – and even receive a firearm round – before needing to respond with
deadly force. Yet
the responding officers chose to forego this option and continue to place
themselves in positions
of vulnerability.”

Lastly, Mr. Gennaco wrote, “The officers’ response in this case provided few
opportunities for
Mr. Pawlik to escape the application of deadly force and that response can be
relevant –and in
this reviewer’s view is highly relevant – to whether the use of force was
reasonable in keeping
with the dictates of Department policy.”

Mr. Gennaco’s discipline recommendations varied only slightly from those of the
Police
Commission’s Discipline Committee. He agreed with termination for all officers
involved in the
use of force. He recommended that Lieutenant Yu receive a five-day suspension
rather than
demotion. He also noted that the Discipline Committee failed to resolve a
conflict between the
Compliance Director’s finding for Officer Tanaka’s allegation of failure to
advise the
Communications Division of his rifle deployment, and the finding of the CPRA.
The
Compliance Director recommended a finding of Sustained; CPRA recommended that
the finding
be Not Sustained. Mr. Gennaco recommended that the Discipline Committee
address this issue.

Discipline Committee’s findings

The Discipline Committee reconvened, and on May 4, 2020, it issued a memorandum
to resolve
these outstanding issues. The Discipline Committee reached a finding of Not
Sustained for the
charge against Officer Tanaka’s allegation that he failed to advise the
Communications Division
of his rifle deployment. With respect to Lieutenant Yu’s discipline, the
Discipline Committee
noted, “After further review and reconsideration of the evidence, and given the
nature of the
violation and the resultant consequences, the Committee has reconsidered its
prior
recommendation and determined that a suspension of five (5) days is warranted
in this case.”

Section 10: The Role of the City Administration

City leadership was not actively engaged with the
Chief regarding the Joshua Pawlik case. The Mayor
did not provide the Chief with any direction or
request any follow-up. The Mayor characterized the
episode as “awful but lawful,” which trivialized an
avoidable tragedy.

Chief Kirkpatrick advised the Monitor in the fall of 2018 that she had shown
the Mayor the
video of the shooting of Joshua Pawlik. The Chief said that she was not given
any directions or
follow-up requests from the Mayor. Based on our meetings and other
interactions, we saw no
evidence that suggested that the City Administrator had been briefed by the
Department or
shown the video of this event. The City Administrator did, from time to time,
attend meetings
that the Monitoring Team held with the Department about this episode.

As it pertains to the Negotiated Settlement Agreement, it is the City that is
the named defendant.
Police departments must be subject to oversight by the elected officials who
bear responsibility
for the conduct of the agencies they oversee and those whom they appoint to
lead them. The
measure to which the has been held to account by City
leaders has
become part of the public discourse. For far too long, the Department has
functioned with a
sense of autonomy, making few references to its accountability to City Hall.

The Mayor described the shooting of Mr. Pawlik to the Monitor as “awful but
lawful.” The
Mayor should have been more actively engaged and publicly vocal in expressing a
concern. The
Mayor should have insisted on regular briefings and questioned why the Chief
had not placed the
officers on administrative leave. Had she done that, the Chief might have been
more dutiful and
accountable to her superiors in her decision-making. Instead, during this
investigative time
period, the Chief appeared to be more fixated on the status of her contract
with the City, and the
prospects of the Mayor renewing it.

The Mayor knew about the seriousness of this shooting and did nothing. In the
face of this, the
Mayor opted to renew Chief Kirkpatrick’s contract on or about November 8, 2018,
two days
after the Mayoral election, and three months before Chief Kirkpatrick’s
eventual vindication of
the officers.

The Mayor terminated the Chief on February 18, 2020, nearly two years after the
shooting of Mr.
Pawlik.

Section 11: The Failures of Departmental Policy

Among the many problems exposed by this case is a
significant deficit of policy relating to OPD’s response
to critical incidents. Even years after the shooting,
several voids in policy remain.

While the individual failures here are numerous, this incident also brought to
light failures of
policies and procedures. For example, OPD has embraced the concept of
Designated Arrest
Teams (DATs) for years, and training on their use has been incorporated into
both the basic
Academy curriculum and ongoing in-service training. However, the Department
does not
currently have, and has never had, a formal policy governing the composition,
roles, and use of
DATs. Similarly, OPD has used armored vehicles, including the BearCat, for
several years, but
it has not had a policy governing their deployment and usage. The Department
did not have any
specific policies relevant to unresponsive and potentially armed persons.

In May 2019, at the insistence of the Monitoring Team and the Plaintiffs’
attorneys in the
NSA/Allen case, OPD began work on three Department Training Bulletins to
address these
topics. We discussed them during our monthly site visits and provided
final approval after our
October 2019 site visit. Yet, to this day, these critical Training Bulletins
remain unpublished;
and consequently, any training associated with these new policies remains
undelivered. These
are the types of organizational deficiencies for which we have consistently
found the Department
to be not in compliance with NSA requirements.

Both the criminal and administrative investigative processes for Level 1 uses
of force, which
include deadly force, are covered in general terms in Departmental General
Order (DGO) K-4
(Reporting and Investigating the Use of Force). However, DGO K-4 does not
provide specific
direction to those tasked with conducting these investigations. At the
insistence of the
Monitoring Team, the IAD Commander and the Deputy Chief for the Bureau of
Investigations
both committed to updating their Policy and Procedure Manuals. Those documents
would
provide specific direction to personnel assigned to IAD and CID, and they would
address the
deficiencies that came to light as the EFRB reviewed the criminal and
administrative
investigations. We have made repeated inquiries, but the Department has yet to
produce any
updates.

OPD also does not have a clear policy on when it is appropriate to place
officers involved in the
use of deadly force on administrative leave or reassign them to non-patrol
functions within the
Department. Chief Kirkpatrick’s litmus test for considering administrative
leave or reassignment
was premised on whether it was more likely than not that an involved officer
would be
terminated. That standard would require the Department to come to a conclusion
on the
justification of deadly force prior to the completion of criminal and
administrative investigations.
Administrative leave decisions based on “likely outcomes” are unacceptable.

Most law enforcement agencies have standardized policies for addressing the
status of officers
involved in a shooting. Mandatory time off that includes, but is not limited
to, employee
counseling services, is common. This is often followed by temporary
re-assignment, which
might include disarming the officer and limiting contact with the public. OPD
must develop a
policy to address these issues.

At the time of the shooting of Mr. Pawlik in March 2018, OPD did not have a
specific OIS
protocol. The Department’s Criminal Investigations Division (CID) Policy and
Procedure
Manual devotes less than one page to “Critical Incident Protocols,” and it
primarily covers
administrative directions for notifications and the review of completed
investigations. The
absence of a clear OIS protocol at the time of this incident contributed to
CID’s failure to
conduct a fair, thorough, or impartial investigation. During our November 2019
site visit, we

inquired as to the status of the development of this protocol, and OPD advised
that CID was still
working on the OIS policy. More than two years after this event, however, the
Department has
yet to present even a draft of such a protocol.

IAD, as part of its investigation, identified the need for a written policy on
the sequestration of
the on-scene Commander. We concur, and OPD has acknowledged that the on-scene
Commander was not sequestered at the scene, nor was he interviewed on the night
of the
incident.

Sequestering police personnel involved in an episode of this importance is a
generally accepted
practice. Senior Department personnel who arrived on the scene of this
incident, and should
have known better, failed to ensure this. It is one of the most basic of
police investigative
practices.

The need for cultural and behavioral change has been at the forefront of our
concerns and those
of the community. Leadership, as well as policy and training, are required to
bring about
organizational transformation. To this day, our concerns endure.

Section 12: The Role of the Chief of Police

The Chief of Police failed to adequately oversee the
investigations into the officer-involved shooting of
Joshua Pawlik. The Chief formulated her conclusions
on the very night of the event and attempted to
persuade the District Attorney’s Office to render an
expedited finding to support the Department’s
administrative vindication of the officers.

The chief of a police department bears the responsibility for managing all
activities of the
agency, including overseeing the investigations of officer-involved shootings.
The ultimate
responsibility for the management of the investigation into the shooting of Mr.
Pawlik fell to the
Chief. In the months following the incident, the Monitoring Team came to
question both the
Chief’s willingness and ability to oversee the investigative responsibilities
of the Department.

Her reluctance to review and approve the criminal investigation was incongruous
with the duties
expected of a chief of police.

While the Chief often spoke of her open-mindedness, the Department’s early
press releases,
presumably approved by the Chief, suggested otherwise. The first press
release, issued the day
after the incident, without the benefit of any investigative effort,
suggested that officers shot Mr.
Pawlik because he did not follow their commands. The second press release,
issued two days
later, commented that the actions of Mr. Pawlik “posed an immediate threat to
the officers.”
Early on, the Monitor found it necessary to caution the Chief repeatedly about
reaching
conclusions in the absence of investigations and relying on anecdotal reports
from persons who
had been to the scene of the event.

In the aftermath of the shooting, we discussed at length with Chief Kirkpatrick
the need to place
the involved officers on administrative leave pending the outcome of, at least,
the criminal
investigation, if not also the IAD investigation. The Chief responded, on
April 17, 2018, 37 days
after the death of Mr. Pawlik, with a memorandum that read, in part,

…As a point of principle, I place people on administrative leave prior to the
conclusion of an IA investigation when I have enough facts to indicate that it
is
more likely than not that the officer is going to be terminated and the risk is
too
great to leave them in the field until the IA is concluded.

…Before going further, I wish to reset the stage for the sequence of events. In
doing so, I should note that while the facts in this memo represent my current
understanding of the incident, the Department’s administrative investigation is
still in the beginning stages. Neither I nor anyone else involved in this
process are
presupposing the outcome of this investigation…At this stage, I do not think
they
are at risk of termination so administrative leave is not warranted.

…I find it compelling that so many people who have viewed this video – although
all seem to have a similar reaction and response about the tactics and
supervision
concerns – none point to concerns with the shooting itself. At least 12 members
of the sworn staff in CID, IA and the Executive team including [the Department’s
Deputy Director of the Bureau of Services] who, although not sworn, is highly
competent and has been exposed to several OIS’s in her career. I also know that
at least two people in the DA’s office saw the PDRD – the lead senior Assistant
DA and the Chief Inspector and according to [the District Attorney] they did not
relay any concerns about the shooting, although she underscored how early it is
in
the investigation. And lastly, [three Office of the City Attorney
attorneys]…have
all seen the video and they, too, did not think the shooting itself seemed to
be out
of policy.

…All of these factors at this stage of the investigation point to an assessment
that
an administrative leave is not warranted for the shooting officers at this
time.

Chief Kirkpatrick’s April 17, 2018 memorandum contains problematic assumptions
and
contradictions. While the Chief attempted to portray herself as objective and
open-minded, her
words said otherwise. The Chief wrote that the investigative process is
“still in the beginning
stages,” and that “neither I nor anyone else involved in this process are
presupposing the
outcome of this investigation.” However, in referring to the two supervisors,
the Chief also
wrote, “At this stage, I do not think they are at risk of termination so
administrative leave is not
warranted.” The Chief made the same conclusion about the “shooting officers” –
just over one
month after the event, and prior to the completion of either the CID or IAD
investigations, and
nearly 10 months before her final decision of February 8, 2019.

According to the Chief’s accounts, she also made several requests or inquiries
of the District
Attorney. We found these to be inappropriate. In addition to the Chief’s
references to the
District Attorney in her April 17, 2018 memorandum, the Chief advised the
Monitor that she had
called the District Attorney to request a preliminary opinion on whether the
shooting was
justified. The Chief advised the Monitor that she was hoping to solicit from
the District Attorney
an early prosecutorial determination. According to the Chief, it was her hope
that she might be
able to make a more expeditious decision regarding the placement of the
officers on
administrative leave, as well as a finding as to their administrative
culpability. It would still be
months before both the criminal and administrative investigations were
completed.

We found the Chief’s solicitations to be highly inappropriate and irregular.
She raised the issue
of her communications with the District Attorney or the District Attorney’s
Office on several
occasions with the Monitor. According to the Chief’s April 17, 2018
memorandum, the District
Attorney did not provide such a determination.

Initially, the Chief planned to not review the criminal investigation at all,
asserting that her
knowledge of its contents could mitigate her objectivity in her final
administrative
determinations relevant to the involved officers. This position was
implausible and
unprecedented. Choosing to not review the investigation would have been an
abdication of her
responsibilities as the Chief of Police. The Monitor informed her that, as the
Chief, she was
compelled to review and approve the investigation. Far too much time lapsed
after this. Finally,
the Monitor insisted that Chief Kirkpatrick review the investigation prior to
forwarding it to the
Office of the District Attorney. Chief Kirkpatrick approved the CID
investigation on October
31, 2018.

Section 13: Summary of Significant Findings

Throughout this report, we have cited numerous issues that should be of concern
to the City of
Oakland and broader Oakland community. Below we have listed our most
significant findings
related to the investigations of the officer-involved shooting of Joshua
Pawlik.

1. Mr. Pawlik was killed when Oakland Police Rifle Officers discharged 22
rounds at him
in a time span of 2.23 seconds from near or behind an armored police vehicle
that had
arrived at the scene just two minutes before the shooting.

2. Chief Kirkpatrick prematurely assessed the shooting on the evening of
its occurrence,
when she told the Monitor that Mr. Pawlik had “pointed” a firearm at the
officers, and
that the shooting “looks good.” Her expressed predispositions of that evening
never
wavered, even as the investigations moved forward.

3. The Department attempted to provide a justification for the shooting
through its initial
press releases describing the incident.

4. Both the Department’s Criminal Investigations Division (CID) and its
Internal Affairs
Division (IAD) conducted incomplete and deficient investigations.

5. CID investigators and IAD investigators consistently accepted the
involved officers’
accounts that Mr. Pawlik pointed his weapon at them – despite video evidence to
the
contrary.

6. CID and IAD investigators failed to use the video footage of the
incident to challenge
the officers’ statements.

7. The Chief accepted the flawed logic that, since the video neither
proved nor disproved
the officers’ statements, the officers’ versions had to be accepted as true.

8. The CID Commander improperly inserted himself into investigative
interviews.

9. The CID investigation, which included leading questions from the CID
Commander
and others, failed to reconcile inconsistencies in the officers’ statements.

10. Chief Kirkpatrick inappropriately attempted to solicit an opinion from
the District
Attorney, who declined the request. The Chief also sought early opinions,
prior to the
completion of the investigations, from at least 15 others, including sworn and
non-
sworn personnel, in order to quickly vindicate the officers and avoid placing
them on
administrative leave.

11. Chief Kirkpatrick failed in her leadership role by seeking to avoid
reviewing and
approving the CID investigation before it was forwarded to the District
Attorney’s
Office.

12. IAD investigators asked leading questions and improperly used
hypothetical scenarios
while ignoring inconsistencies with the video and discrepancies among officers’
statements.

13. The IAD Commander and Chief Kirkpatrick did nothing to mitigate IAD’s
inappropriate investigative practices. Both bear responsibility for the
deficiencies of
the IAD investigation.

14. Chief Kirkpatrick acted improperly when, after considering the use of
external
personnel for the Executive Force Review Board (EFRB), she corrupted that very
process by discussing her views of the shooting with prospective Board
candidates.

15. The EFRB failed as the penultimate Department reviewer of the shooting
when, like
CID and IAD, it took what the officers asserted at face value, without
challenge, and
without regard for any inconsistencies that could have been resolved through a
close
examination of available video evidence.

16. The Community Policing Review Agency (CPRA), under its leadership at the
time, did
not properly investigate the shooting. Instead of conducting its own
independent
investigation, it simply repeated the findings of the IAD investigation in its
report.

17. The Mayor’s lack of engagement, even after viewing the video, provided
tacit support
for the Police Department’s incompetence in this matter.

18. Now, more than two years after the death of Mr. Pawlik, the Department
continues to
struggle with policies relevant to the use of force and other issues.

19. The shooting of Mr. Pawlik exposed an appalling measure of incompetence,
deception,
and indifference. Too many persons charged with the responsibility of internal
review
and oversight quickly, and ultimately, described this tragedy as a “good”
shooting and
one that was consistent with law and policy. It was not a “good” shooting.

20. The five officers involved in the shooting of Joshua Pawlik were
responsible for his
death. Those who investigated, oversaw, and reviewed what followed in its
aftermath
compounded this tragedy – and for this, they bear responsibility.

Section 14: Conclusion

The 17ᵗʰ Century English poet John Donne wrote, “[A]ny man’s death diminishes
me, because I
am involved in mankind…” The question the poet did not answer is whether some
deaths
diminish us more than others. Joshua Pawlik’s death, as well as many others,
mostly Black and
Brown, who have died at the hands of the police, are to be counted among those
that do. The
brutality of Joshua Pawlik’s death; the incompetence and dishonesty in its
aftermath; and the
failure, thus far, for it to result in real change, debase us all.

Sadly, this is not just an Oakland story – but one that continues to afflict
the nation, which reels
in the wake of indefensible officer-involved shootings. In cities across the
country, in every
state, and internationally, people protest to end the debasement implicit in
those deaths – but
their struggle is not new. The history of our country is replete with
commissions and studies
intended to create blueprints to reform the criminal justice system and to hold
to account law
enforcement officers who use excessive force. Yet against that background, and
alongside many
efforts to professionalize policing, problems continue to loom large.

In 1996, the videotaped beating of Rodney King by police in Los Angeles led to
riots and
demands for change. More recently, the Black Lives Matter movement has lent
its voice to
people killed by police – among them Freddie Gray, Philando Castile, Walter
Scott, Tamir Rice,
Eric Garner, Breonna Taylor, George Floyd, Rayshard Brooks, Elijah McClain, and
others. In
Oakland, beatings, unlawful detentions, and the planting of evidence led to the
2003 Negotiated
Settlement Agreement that continues to this day. In 2015, the death of
Demouria Hogg at the
hands of the Oakland Police, under circumstances similar to those that resulted
in Mr. Pawlik’s
death, is another example of a tragic and avoidable outcome.

It must be made clear that the burden for finding the path forward still rests
principally with the
City of Oakland and its Police Department. The death of Mr. Pawlik could have
been avoided if
the officers involved had responded differently. The officers had other
options; the supervisors
and commanders had authority to provide on-scene direction and oversight. They
all failed.

In his report, the Skelly Officer in this case cited the multiple failures at
the scene that shaped the
conclusion of the event. “The critical question,” he noted, “was not limited
to the ‘split second’
decision the officers made about whether to discharge their weapons when they
perceived what
they claimed was an immediate threat to them and others. Instead, the analysis
also
encompassed whether the involved officers performed reasonably after responding
to the call and
observing an individual apparently not conscious with a gun in his hand.”

The Skelly report documents specific failures, including officers’ failure to
individually justify
their use of deadly force. The report continues, “…The mood of so many
officers facing Mr.
Pawlik with his gun in hand, waiting to see him move it, contributed to setting
the response that
took place. An alternate plan or any restraint was never discussed with the
officers on scene who
were facing Mr. Pawlik with their rifles despite the precariousness of the
situation.”

Later, the Skelly report recounts Sergeant Negrete’s argument that, through his
actions, Mr.
Pawlik had dictated the officers’ response. But in the view of the Skelly
Officer, Negrete
“misconstrues the whole point of planning, delegation, and articulation, which
is to ensure that
the subject is not able to dictate the response of law enforcement. A plan
with contingencies on
how to respond allows officers to dictate the outcome of the event.”

While the Skelly Officer provided a critical assessment of the shooting event
itself, this report
extends that focus to the individual and institutional failures tied to that
day. At the top of that
list is what might best be described as the willful avoidance, by some, of
nearly anything to do
with the shooting of Mr. Pawlik.

Perhaps the most telling act of avoidance came from City Hall. According to
Chief Kirkpatrick,
in the fall of 2018, as the CID and IAD investigations were underway, the Chief
showed the
video of the shooting to the Mayor. According to the Chief, the viewing of the
video was met
with silence. The Mayor did not ask questions or provide direction. Although
in more recent
national events, the Mayor has been vocal, her steadfast silence in this matter
was troubling. Her
characterization of the death of Joshua Pawlik as “awful but lawful” was even
more so.

In facing events like the one before us, one should hope – and, perhaps, expect
– that the Chief of
Police would serve as a champion for justice. At the minimum, one should
expect a commitment
to sound and ethical procedures. On these criteria, Chief Kirkpatrick fell
short. Though the
investigations had just begun, Chief Kirkpatrick prejudged the shooting as
consistent with policy
and law. In the process, she consistently referred to the opinions of others
in lieu of her own.

The Chief sought to restructure the EFRB review procedure in ways that
ultimately seemed
manipulative. When she was required to approve the criminal investigation, she
hesitated,
suggesting incorrectly that doing that would conflict with her responsibilities
in the case.

Chief Kirkpatrick’s actions aided an investigative process that distorted the
review of the
shooting. In her findings, she relied on a video analysis which was part of
the EFRB Report but
which she had earlier described as an “embarrassment.” She allowed the
officers’ assertions to
go unchallenged even though they were not supported by the video of the event.
Significant
among those assertions were the claims that Mr. Pawlik had not only raised his
firearm but
pointed it directly at each officer who used deadly force.

The Chief also accepted the argument that, because the video itself could not
prove or disprove
what the officers’ reported, IAD had to accept and defer to the officers’
statements. Those
statements included seemingly impossibly observable details describing Mr.
Pawlik’s state as
agitated, irritated, upset, and frowning.

It is often argued that the most powerful barrier to police reform is a
corrosive police culture,
which embodies unflagging mutual support within the ranks, implicit and
explicit bias, and
resistance to change. Some argue that one exit from that culture is through
promotion into the
command ranks. Chief Kirkpatrick often claimed that changing the police
culture was her goal.
Yet the Chief’s own actions and those of the Department betrayed that stated
goal.

The hallmarks of an unchecked police culture run throughout the investigations
and decisions
made in this case. The officers on the scene told uncannily similar stories –
stories that were not
supported by the video evidence – and stories with details that could not have
been accurate.

Officers claimed that Mr. Pawlik appeared agitated; he raised the gun; he
pointed it at each
officer; they looked right down the barrel of his weapon – yet detailed
analyses of camera
footage did not corroborate those details. Instead, investigators’ leading
questions aided officers
in their descriptions of what happened. In too many instances, investigators’
questions provided
officers with foundations to defend their conduct.

One egregious demonstration of an infected police culture came from high in the
ranks of the
Police Department. A captain, whose duty on the EFRB panel was to probe the
details of the
shooting, asserted that Joshua Pawlik, alone, was responsible for each of the
22 shots that killed
him. His colleagues on the EFRB failed to renounce such conclusions. The
callous indifference
to human life, as expressed by a police captain, can only serve to chill and
harden new officers
and future leaders of the Department who shall be called upon to make difficult
decisions.

The Chief’s failure to rein in this corrosive culture had implications beyond
the Police
Department. The Chief became the bridge between a police culture which sought
to avoid
accountability and a City Hall culture which opted to ignore its oversight
responsibilities. In the
end, reason came only from sources outside these cultures. It was the Monitor,
acting in his
capacity as Compliance Director, and the Police Commission’s Disciplinary
Committee that
intervened. Absent these, no one would have been held to account for the death
of Joshua
Pawlik, and there would be no impetus for change.

There are important lessons to learn from this report. The Oakland Police
Department must
prevent officer-involved shootings like the one that killed Joshua Pawlik. The
Department must
have the courage, commitment, and cadre of leaders with an unwavering
willingness to hold to

account those sworn to uphold the law. Most importantly, the City of Oakland
and its Police
Department must demonstrate that they can establish and maintain community
trust in the
absence of Court supervision and monitoring.

Understanding the facts of this shooting is critical to responding to it, and
there are resources
with which to help grasp the lessons. The first is the Negotiated Settlement
Agreement itself.
The provisions of the NSA set the conditions for Constitutional and effective
policing, and
provide direction toward best practices in the field. While the Department has
made advances
under the NSA, it has repeatedly fallen short in its supervision of officers,
its ability to
investigate itself and bring about change on its own. Those same deficiencies
are the focus of
this report.

There are also important resources that address reform from beyond the limits
of Oakland’s
experience. The most recent comprehensive statement of a direction for police
reform is the
2015 Final Report of the President’s Task Force on 21ˢᵗ Century Policing. The
Task Force was
established to develop recommendations to build greater trust between law
enforcement and
citizens in the wake of the police killing of Michael Brown in Ferguson,
Missouri on August 9,
2014. The report is organized around six main topics which it labels “pillars”
of modern
policing, the first of which is “Building Trust and Legitimacy.” The document
addresses a wide
range of issues – from the need for clear and specific policies on the use of
force, to the
importance of principles of community policing.

Against the background of the Task Force’s proposals for police reform, the
City of Oakland’s
Police Commission was established in 2017 following a vote of broad public
support. The
Commission describes itself as a civilian-run “oversight board, authorized to
oversee the
policies, practices, and customs of the .” The
Oakland Police
Commission is an important voice for police reform at a time when it is clearer
than ever that a
police department cannot function without the support of, and oversight by, the
community it is
presumed to serve.

While the death of Mr. Pawlik is an Oakland event, and one of many tragedies
that have
occurred at the hands of the Oakland Police, it is also an American story. It
is part of a
continuing history of shooting deaths at the hands of the police. To address
this, the Oakland
Police Department must be staffed with officers who have integrity, led by
those who have
courage, and overseen by officials who have both. By all of those criteria,
the death of Joshua
Pawlik, and the City of Oakland’s response to it, are tragic failures.

On April 23, 2020, the Oakland City Council voted to pay the family of Joshua
Pawlik $1.4
million.

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By Zennie Abraham

Zennie62Media, Inc. CEO Zenophon Abraham AKA Zennie62 YouTube Zennie62.com OaklandNewsNow.com Zennie62 YouTube Partner, Oakland California blogger / vlogger Hire @Zennie62Media, Inc to tell your story.

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