OAKLAND — Four Oakland police officers who fatally shot a homeless man who they said pointed a gun at them last year have been exonerated by the investigative arm of the city police commission of allegations of improperly using lethal force, according to a report.
“Force was used, but it was justified under the Fourth Amendment and (Oakland Police Department) rules,” the report said.
The findings by the Community Police Review Agency (CPRA), contained in a report released Friday, contradict those of Oakland Police Compliance Director Robert Warshaw, who earlier had found the officers had violated department policy.
The agency’s findings still have to be finalized by a three-member panel of the police commission.
The four exonerated officers — Sgt. Francisco Negrete and Officers William Berger, Brandon Hraiz and Craig Tanaka — have been on administrative leave since Warshaw’s finding and have been recommended for termination. Warshaw has criticized the police department’s overall investigation into the shooting.
A CPRA investigation over more than six months did find that Negrete failed to properly perform his duties as the supervisor of the police action and that Lt. Alan Yu, the patrol watch commander the day of the shooting, failed to properly perform his duties as the incident commander. But the CPRA said none of those findings should result in termination.
The CPRA investigation stemmed from the fatal shooting March 11, 2018, of Joshua Pawlik, 31, in the 900 block of 40th Street. Officers responded to the scene about 6:17 p.m. after a caller said a man, later identified as Pawlik, was passed out or asleep between two houses with a gun in his hand. Numerous officers responded and a police armored vehicle was brought to the scene. Their initial plan was to detain and arrest him.
Pawlik woke up just after 7 p.m. and was shot by officers who said he had refused numerous commands to drop the gun before pointing it at them.
In its review, the CPRA noted the officers involved in the shooting may have had different perceptions of the incident, but there was nothing that indicated they were untruthful.
The report says the facts in the case include that Pawlik had a gun in his hand at the time he was shot, that he raised the gun off the ground at the time he was shot, that the gun was facing in the general direction of the officers when he was shot, and that it could be perceived there was an objectively reasonable immediate threat under the law, “which would allow officers to use deadly force.”
Prior to the CPRA report, the Alameda County District Attorney’s Office had found the officers had not committed any crimes in the fatal shooting. Also, an internal police investigation found the fatal shooting was in compliance with department policies regarding use of force, including lethal force.
In February, Pawlik’s mother, Kelly Pawlik, retained famed civil rights attorney John Burris to represent her in a civil suit filed last month seeking a jury trial and alleges that officers violated her son’s civil rights.
Burris said he had not followed the CPRA finding, but said “The decision made by the group has no impact or effect, and is of no consequence to me. I’m really focused on the idea of the shooting being justified, which I don’t believe it was, and the officers.”
Citing his law firms’ experience with previous cases like the June 6, 2015 shooting of Demouria Hogg in Oakland and the current lawsuit against Vallejo police in the Feb. 9 shooting of Willie McCoy, Burris said he was concerned about whether such shootings represent a lack of training and policy development to assist officers.
“There have been prior shootings like this where a person sleeping was awakened by police and shot under questionable circumstances,” Burris said. “With two prior cases, we should not have a case like this now. When you yell and scream at a person who’s asleep, you don’t allow for the situation to deescalate. If they make any movement, they get shot and killed.”
Sgt. Barry Donelan, president of the Oakland Police Officers Association, said Monday the CPRA exoneration finding should result in the officers being returned to active duty as soon as possible.
“For over a year this incident has been the subject of public debate that resulted in the unfair criticism and ridicule of these officers,” Donelan said. He noted the district attorney and police department’s previous findings and said despite that “These officers who risked their lives, suffered the public abuse of critics, cooperated with multiple investigations and have been completely vindicated, inexplicably they have not been returned to duty.”
The police commission could not be reached for comment.
