From: SF Chronicle
By: Megan Cassidy, 4/10/2020
Five Oakland police officers are one step closer to termination after a disciplinary hearing officer determined that improper force was used in the fatal 2018 shooting of a homeless man.
The decision — released this week in a report by Skelly Officer Michael Gennaco — sustained the findings of the Oakland Police Commission and opens the door for city officials to take the officers off payroll after their role in the fatal shooting of Joshua Pawlik, a 32-year-old homeless man. The officers have spent more than a year on paid administrative leave.
“Each member of the team who used force had an individual responsibility to ensure that their own use of force was reasonable,” Gennaco said in his report. “Because each member allowed a flawed deployment to move forward ... each should be held accountable for the unreasonable use of force that resulted.”
Gennaco’s findings complete a crucial stage in disciplinary proceedings for Officers Brandon Hraiz, Craig Tanaka, William Berger and Sgt. Francisco Negrete, all of whom shot Pawlik, as well as Officer Josef Phillips, who discharged a beanbag gun. The decision, however, is not yet final.
Harry Stern, an attorney for the five officers, questioned Gennaco’s political motives and said the officers will continue to fight for their jobs.
“We’re going to pursue every legal remedy possible to keep these guys on the street, particularly in these very challenging times,” Stern said.
Oakland Police Commission Chairwoman Regina Jackson said the panel will meet Monday to discuss the report and lay out directives on termination steps to Oakland’s interim police chief, Susan Manheimer.
“I really appreciate the thorough analysis and the findings of the Skelly officer,” Jackson said.
In California, police and other civil servants are afforded what’s known as a Skelly hearing to rebut allegations against them before recommended discipline is imposed. Skelly hearings apply to employees facing termination, a demotion, suspension or reduction in pay.
The officers can now argue their case through arbitration, and they have already filed a lawsuit claiming the city violated city code in deciding to fire them.
Gennaco’s report is the latest chapter in a contentious series of investigations with conflicting findings about the shooting of Pawlik on March 11, 2018.
Pawlik was discovered unconscious and armed in a yard between two homes in West Oakland. Police deployed a Bearcat armored vehicle for cover and yelled orders at Pawlik before unloading a torrent of gunfire just after he began to stir.
At the heart of the debate is whether Pawlik pointed his gun at officers before they opened fire. The officers involved said Pawlik’s arm movements showed he was pointing the weapon in their direction and posed an immediate threat to their safety. Critics, however, say video footage of the incident shows otherwise.
Internal investigators, former Police Chief Anne Kirkpatrick, the district attorney’s office and the Community Police Review Agency all issued findings that essentially exonerated the officers involved. However, Oakland’s federal police monitor, Robert Warshaw, found some of these investigations incomplete, and he argued that the video told a different story than the one given by officers.
Warshaw’s decision overrode Kirkpatrick’s, leaving the findings of the Community Police Review Agency, which is the investigative arm of the Oakland Police Commission, at odds with the department. The dispute allowed the commission’s disciplinary panel to act as the the city’s final word on the case, and in July the board recommended the firing of the five officers.
The committee also recommended the demotion of Lt. Alan Yu for failing “to properly perform his duties as the Incident Commander.”
Gennaco, the Skelly officer, disagreed with the discipline committee on this final point, and he instead recommended a five-day suspension for Yu.
In his report, Gennaco said the officers should have never found themselves in a position of vulnerability after deploying their armored vehicle.
“The Bearcat is one of the few devices where a safely positioned law enforcement officer could virtually negate the threat of an armed subject — and even receive a firearm round — before needing to respond with deadly force,” he wrote.
The Pawlik case widened a rift between the Police Commission and the department, and Kirkpatrick’s handling of the case was ultimately cited as one reason for her firing in February.
Stern suggested that Gennaco was specifically chosen by the city attorney’s office to uphold the firings of the officers involved in the shooting.
“Gennaco is a paid consultant who was hand-selected to rubber stamp the monitor’s incorrect decisions,” he said.