Federal monitor calls Oakland chief's findings 'disappointing,' 'myopic' after fatal shooting

OAKLAND, Calif. (KTVU) - A federal monitor overseeing the Oakland Police Department had harsh words of the chief's assessments of what happened last March when officers fatally shot a 31-year-old homeless man, according to internal documents released Wednesday under a new police transparency law.

KTVU first reported last week that Independent Monitor Robert Warshaw disagreed with Chief Anne Kirkpatrick's conclusions stemming from the March 11, 2018 death of Joshua Pawlik. A caller tipped police off that a man who was drunk or sleeping was lying in between two houses in the 900 block of 40th Street and was holding a gun. Police said he didn't obey 12 commands to drop his weapon, which is when they fired and killed him. His family has filed a federal civil rights suit.

But a release of records under a new law, SB 1421, which mandates transparency when police use deadly force, paints a fuller picture of both Warshaw’s and Kirkpatrick's points of view, as well as 52 pages of findings made by the department’s Executive Force Review Board; 29 pages from the District Attorney; and 34 slides, frame by frame, showing video at the scene of the evening in question.

2 Investigates filed a Public Records Request for these documents, including similar requests made to dozens of other Bay Area police departments. This is the first detailed release of such documents by Oakland police since the new law took place on Jan. 1. 

The overall conclusion of the police and the District Attorney is that the officers involved 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.

VIDEO: Body camera video of fatal shooting of Joshua Pawlik

Warshaw emphatically disagreed, saying that the investigators took the officers’ words at face value and he recommended harsher punishments for all but one of the officers involved. 

Warshaw said that Kirkpatrick’s assessment was “both disappointing and myopic."

Oakland police did not specifically respond to Warshaw’s criticism, but directed the public to read the trove of documents regarding Pawlik’s death. The Oakland Police Officer's Association on Thursday did not immediately respond for a request seeking comment. 

Civil rights attorney Jim Chanin told KTVU earlier this week noted that Warshaw has been critical of the department before, specially for how Oakland police handled a sex abuse scandal. But he said that the rift between the federal monitor and the police chief is the first of its kind at OPD. 

"It's unprecedented for him, in my knowledge to overrule any chief of police in the 10 years that he's been here, on an Internal Affairs decision," Chanin said.

In a four-page letter, Warshaw said that it appears that the Internal Affairs Unit, the Executive Force Review Board,comprised of police commanders, and the chief did not use any of the video provided at the scene to challenge the officers' assertions that Pawlik had woken up and was about to aim at them.

He wrote that Pawlik was apparently unconscious and was lying on the ground between two houses with a handgun. Despite that, Warshaw said, there was "no information Mr. Pawlik was an immediate threat to anyone or had harmed anyone at that point." 

Pawlik eventually woke up and was "moving minimally," Warshaw noted. "He was a live human being - and any reasonable officer should not have expected him to remain perfectly still."

Warshaw noted that Pawlik's movements, seen on a video professionally enhanced twice by police, "do not coincide with the movements to which the officers claim they reacted." 

Warshaw also said that the investigators, “both in their questioning and analysis, failed to address the inconsistences between the officers' statements and the video evidence. That discrepancy, he noted, was whether Pawlik moved his right hand either a few inches or up to two feet. 

"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," Warshaw wrote.

Warshaw has broad powers over the department and reports to a federal judge. Federal monitoring of the department has lasted now for 16 years.

It’s not as if Kirkpatrick or the Executive Force Review Board found no fault with the officers. 

They concluded the use of force was reasonable and exonerated all the officers for firing their weapons, but they found the officers made mistakes and other technical errors. Specifically, Kirkpatrick and the board found that the on-scene incident commander, Lt. Alan Yu, did not properly fulfill his command duties and Sgt. Francisco Negrete did not properly supervise the team as well as he could have.  

Kirkpatrick also ended up exonerating Officer Craig Tanaka for firing his weapon and not reporting that fact to communications. Warshaw, meanwhile, recommended a Level 1 use of the force violation  — the highest there is — against him, two other officers and Negrete. 

And in Negrete’s case, Kirkpatrick downgraded discipline recommended by her own commanders for deploying his rifle when it was unnecessary and not having a detailed plan as a “Class 2 failure to supervise.” Warshaw, however, found Negrete’s actions to be “grossly negligent.”

Kirpatrick’s assessment was the most lenient of the three reports.

Warshaw has asked court- appointed San Francisco Attorney Ed Swanson for legal advice on what to do next. 

KTVU's Henry Lee contributed to this report.