From: SF Chronicle
By: Rachel Swan, 4/13/2022
An Alameda County Superior Court judge issued an order mandating that the city of Oakland adhere to the findings of an internal review last year, which concluded that five police officers appeared to be justified when they shot and killed an unhoused man in 2018, and recommended that the city hire them back.
The order, issued this month by Judge Frank Roesch, said the city “improperly manipulated” reports submitted by its hired attorney, Jeffrey Sloan, who concluded that Oakland lacked “just cause” to fire Officers William Berger, Craig Tanaka, Brandon Hraiz and Josef Phillips, and their supervisor, Sgt. Francisco Negrete.
In a report submitted Feb. 9, 2021 — the third step in a grievance process for police officers — Sloan “exonerated” Berger, Tanaka, Hraiz and Phillips in alleged violations of the Police Department’s use-of-force policies on the evening of March 11, 2018, when they found Joshua Pawlik, 31, lying between two houses in Oakland’s Longfellow neighborhood with a semiautomatic handgun in his right hand.
Police blocked traffic around Pawlik, who was armed but apparently unconscious on the 900 block of 40th Street. Negrete requested an armored vehicle from which he, Hraiz, Berger and Tanaka took position with AR-15-style rifles. Several officers shouted commands at Pawlik, and when he began to move, the sergeant and the three officers fired 22 shots from the armored truck.
The other officer, Phillips, fired a “beanbag” round at Pawlik.
After four separate internal investigations, the Police Department ruled that the five officers had not violated any policies related to excessive force. They were also cleared in criminal probes by the Alameda County District Attorney’s Office and by the investigative arm of the Oakland Police Commission.
However, two critical oversight bodies — a federal court-appointed compliance monitor and the Police Commission — rejected those decisions, concluding instead that the officers’ use of force was unreasonable. The reversal intensified a power struggle between the Police Department and the court officials who have held it under a microscope since 2003, the year the city settled a landmark civil rights case over four West Oakland officers known as the Riders, who were accused of beating residents and planting evidence on them.
Sloan’s report became a new flashpoint in that tense relationship, determining that the four officers were entitled to return to work with back pay, excluding any earnings they had made in the interim, and provided they follow the department’s procedures.
“Nobody will ever know why Pawlik did not drop the firearm,” Sloan wrote in his review. “Absent a known intent, it is inconceivable to replace it with a finding that he did not intend harm unless he pointed the weapon squarely at the officers and discharged it. A requirement that the officers wait until the gun was squarely pointed at them would wrongly place them in harm’s way.”
Rather than provide those findings to the officers, city employees directed Sloan to “recast” his determinations as “recommendations,” add a “draft” watermark to his reports, and leave them unsigned, the judge’s order said. Sloan complied and delivered amended reports to the city, with a separate one for Negrete that exonerated the sergeant of improper force but concluded Negrete had violated his supervisory duties, necessitating a 30-day suspension rather than termination.
The city then sent notices to the officers and their lawyers, saying it was “unable to resolve” their grievances. Roesch ordered the city to rescind that language and follow the process laid out in Oakland’s contract with its police union.
Mike Rains, lead attorney for the fired officers, criticized Oakland officials in a statement for repudiating “the well-reasoned and amply supported decision made by the person it paid” $160,000 to handle the duty, and for their “deceitful attempt to avoid the consequences of the decision.” He said the city’s conduct “demonstrates the hypocrisy of a municipal government which expects its employees to follow the law, but manages its own affairs with a total disregard of the law.”
Karen Boyd, a spokesperson for the city administration, said officials are disappointed by the court’s order, and contend they did nothing wrong.
“We believe we adhered to the letter and spirit of the labor agreement, and believe the Court erred in finding otherwise,” Boyd said in a statement. “We remain committed to ensuring our employees are afforded due process in all disciplinary processes.”
