OAKLAND, Calif. (KTVU) - The Oakland Police Commission is recommending that the officers involved in the fatal shooting Joshua Pawlik be fired, adding that a video showing police shining a light in the sleeping homeless man's face as if to confuse him was the defining moment in helping them make their decision.
In public records released on Thursday, following a request by media organizations including KTVU, the commission members found that officers Brandon Hraiz, William Berger and Craig Tanaka as well as Sgt. Francisco Negrete, all discharged their rifles resulting in Pawlik's death on March 11, 2018, in violation of police policy. They also found that Officer Josef Phillips discharged a bean bag at Pawlik, which they said was a violation of the department's use-of-force policy.
The commissioners, who comprise a civilian-led body to oversee the police department, wrote that termination was the recommended "appropriate discipline" for all the officers. In addition, the commission recommended a demotion for Lt. Alan Yu, who was found by Oakland police superiors as well as the department's federal monitor, to have "failed to properly perform his duties" as the incident commander that day.
In a statement, Barry Donelan, president of the Oakland Police Officer's Association, said: "The commission's decision is obviously born from a politically driven need to prosecute police officers regardless of the facts."
Civil rights attorney Jim Chanin called the decision "historic" and the "wave of the future," where the newly formed police commission, will be vested with the power of making the "ultimate decision."
Still, the terminations are not a done deal. By law, officers are allowed to fight the recommendations.
Oakland police referred comments to city spokeswoman Karen Boyd, who issued this statement:
"The findings of the Police Commission's Discipline Committee are the next step in the discipline process. Under State law, the officers will be afforded their due process rights, including the opportunity to attend a Skelly hearing prior to final imposition of discipline. The City of Oakland supports the due process rights of all employees."
The chair of the commission also acknowledged this process.
"The end is far away," Police Commission Chair Regina Jackson said in an interview. "But we handled our responsibility thoroughly and in a timely manner." She along with commissioners Jose Dorado and Edwin Prather comprise the commission's discipline committee.
The commissioners' findings are most aligned with what the court-appointed federal monitor Robert Warshaw hinted at in March, although on Thursday it was also made public that he believes all the officers except Tanaka should be fired. Warshaw also wrote that he feels Yu should face a five-day suspension.
But the commissioners' findings are in stark contrast to what Police Chief Anne Kirkpatrick, the Oakland Police Internal Affairs unit, and the Community Police Review Agency found and recommended. The CPRA, for example, advised that most of the officers should be exonerated. The police commission rejected these findings, calling them "tainted."
Seperately, Kirkpatrick found that the officers acted reasonably and used their weapons because they felt they were in imminent danger. "I accept the analysis and unanimous findings…that the lethal force used in this case was within the law and policy," Kirkpatrick wrote earlier this year. Warshaw had called Kirkpatrick's view "disappointing" and "myopic."
Oakland Police Commissioners have been seeking answers into Pawlik's death for months, and subpoenaed all communication between CPRA investigators and the police department starting from the day Pawlik was killed until the present day. To make their determination, they reviewed all the investigative files already conducted, video evidence, witness interviews and forensics.
According to their 8-page report made public under a new police transparency law, commissioners described the situation as they saw it: Pawlik was either sleeping or drunk on the ground in between two houses in the 900 block of 40th street. He had a .22-caliber handgun in his hand. Police established a perimeter and called in a Bearcat, a bulletproof armored vehicle.
Negrete then came up with a plan: "Officers would challenge Mr. Pawlik if he woke up prior to the Bearcat's arrival and order Mr. Pawlik to drop the firearm," the report states. If he didn't wake up, officers would deploy bean bags at his shins, and then possibly Tase him if necessary.
The Bearcat arrived at 7:04 p.m. Several officers took positions on the vehicle. They tried to wake Pawlik up by shouting, though no sirens or loud noises were used. As he roused, Pawlik lifted his head and tried to sit up by using his right elbow, the report states.
At 7:06 p.m., officers fired on Pawlik, using the Bearcat as a "shooting platform." He died.
The most crucial piece of evidence for the commissioners came from video taken from the vantage point of Oakland Police Sgt. Herbert Webber. According to the commissioners, the video shows officers shining a bright light on Pawlik in an attempt not only to wake him, but to "blind and confuse" him, the report states.
"The committee does not find persuasive officer testimony that Mr. Pawlik lifted or moved or pointed the handgun in a threatening manner toward officers," the commissioners wrote. "The …video clearly shows that Mr. Pawlik did not lift, move or point the handgun in a threatening manner toward the officers."
The commissioners also referred to something Berger said to Phillips: "If that gun moves….bag him."
According to the commissioners, "this statement shows, at minimum, Officer Berger's desire to fire a bean bag at Mr. Pawlik based on any movement, not just threatening movement, or at worse, Officer Berger's desire to shoot a rifle round at Mr. Pawlik killing him."