In February 2011, Attorney John Burris called me and asked me to help him with a police misconduct case. It was the Oscar Grant case. There were 4 motions to dismiss the case filed by Bart and the numerous officers that John’s firm had sued. My firm’s assignment was to oppose the motion to dismiss Anthony Pirone. We did so successfully and kept him in the case.
Anthony Pirone was one of the first officers to arrive on the Bart platform in response to a call. Pirone immediately focused on Oscar and his friends, racially profiled them, punched and kneed Oscar repeatedly, and finally jumped down on Oscar with his full, 250-pound body weight, pushing Oscar face-down onto the concrete platform and pressing his knee on Oscar’s neck; all the while taunting Oscar by calling him a “nigger” and a “bitch-ass nigger.”
Anthony Pirone committed a hate crime against Oscar Grant. He is the one who literally set into motion the action that caused Johannes Mehserle to kill Oscar Grant. Yet, then District Attorney Tom Orloff made a decision not to charge Anthony Pirone with anything. Bart fired Pirone but he walked away a free man.
Everyone who saw the videotapes of the events on that Bart platform knew what Pirone did. Everyone included me, my staff, the judge and all of the lawyers involved, including then Chief Assistant District Attorney Nancy O’Malley. The civil lawyers were subject to a protective order in 2009 (meaning we could not talk publicly about everything we saw and knew) but DA Nancy O’Malley was not.
DA Nancy O’Malley knew in 2009 that Anthony Pirone was a liar. When she became the DA in September 2009, she did not re-open the case. Instead, she chose to turn a blind eye to Pirone’s racist torture of Oscar Grant because Oscar Grant was just another Black kid whose life did not matter.
Just like Jody Woodfox’s life did not matter. Jody Woodfox was shot in the back by an OPD officer in July 2008, and O’Malley’s office covered up the murder for 12 years. Just like Alan Blueford and Kayla Moore and so many others, including brown, white and indigenous people like Andrew Moppin, James Greer, Joshua Pawlik, Jacob Bauer and Elena Mondragon.
I live in Oakland California about 3 miles from San Leandro California. San Leandro is what some call a “bedroom community” to Oakland. It’s a City where restrictive covenants and land use permits were used to stop Black people from moving from Oakland to San Leandro. Local celebrity Brian Copeland tells the story of how he grew up in San Leandro when it was 94% white. Copeland wrote a play and a book about it.
Most folks in the East Bay know San Leandro’s history. So when San Leandro police shot and killed Steven Taylor in a Walmart store on a Saturday afternoon, it was not a surprise. Steven Taylor was allegedly mentally ill, with a diagnosis of schizophrenia and bipolar disorder. He appears to be in a mental health crisis when 2 San Leandro police officers approach him. He refused to put down a bat and pulled away as the officers tased him. They then shot and killed him in front of dozens of shoppers. The video shows that an officer actually tased Steven Taylor as he lay on the floor bleeding to death.
This is the second recent police killing in San Leandro. On June 11, 2019, San Leandro police shot Anthony Gomez, an unarmed allegedly intoxicated Latino man. An officer shot him from the street as he stood alone on his mother’s front porch. Officers claimed he had a block of wood in his hand that looked like a gun.
Mental Illness Should Not Be A Death Sentence with Police
There is an increasing recognition that mental illness is a reason to spare people not from responsibility for their crimes but from the ultimate sanction of death. Simply put, a mental health crisis should not be a death sentence.
The same month that San Leandro police shot and killed Anthony Gomez, Walnut Creek police shot and killed 23-year-old Miles Hall. Walnut Creek is another almost all-white enclave in Contra Costa County. Hall’s family members reportedly sought mental health assistance from police in the days before he was shot by two officers who came to his home. Miles Hall was Black.
California’s New Law
In California, a new law changed the standard for use of deadly force, effective January 1, 2020. The law is based in part, on the recognition that “individuals with physical, mental health, developmental, or intellectual disabilities are significantly more likely to experience greater levels of physical force during police interactions, as their disability may affect their ability to understand or comply with commands from peace officers. It is estimated that individuals with disabilities are involved in between one-third and one-half of all fatal encounters with law enforcement.”
The new law allows the use of deadly force by a law enforcement officer only when the officer reasonably believes that deadly force is necessary to defend against an imminent threat of death or serious bodily injury to the officer or another person. The impetus for the Legislature to pass the law was the murder of 22-year-old Stephon Clark. Clark was an unarmed Black man shot dead in Sacramento after officers mistakenly thought they saw a gun. He was shot 8 times, including 3 times in the back, in his grandmother’s backyard. Assemblywoman Shirley Weber wrote and pushed for AB392 in response to the murder of Stephon Clark.
Steven Taylor’s murder in my Assembly District 18 provides an early test for the new law. Regrettably, the person in my district who will interpret the new law is District Attorney Nancy O’Malley. DA O’Malley has never prosecuted a cop in Alameda County for murder.
Death in Alameda County
Between 2010 and 2015, at least 6 people died at the hands of police in Alameda County: Hernan Jaramillo, Roy Nelson, James Greer, Kayla Moore, Mark Bennett and Martin Harrison.
Hernan Jaramillo was allegedly having a mental health crisis and begged officers for his life. Video footage was not released by police until 2 years after his death. It shows Mr. Jaramillo pinned to the ground by officers who ignored his cries of “I can’t breathe.” (Sound familiar??) DA O’Malley did not even investigate Mr. Jaramillo’s death because she did not have a policy to investigate in-custody deaths that don’t involve shootings.
While the DA’s investigation was pending, O’Malley accepted a $10,000 donation from the Fremont police union to her re-election campaign. Shortly thereafter, she cleared the shooters – the Fremont police union president and another officer – of any wrongdoing in Ebbie’s death. She ruled that the shooting was “justified.”
2018 Police Killings in Oakland
In January 2018, a BART police officer ran from the West Oakland BART station onto the street and shot Sahleem Tindle in the back. Tindle was unarmed at the time. O’Malley declined to bring any charges. In March 2020, however, a jury found BART liable for wrongful death and awarded Sahleem Tindle’s family $6.34 million dollars.
In March 2018, Oakland police shot and killed Joshua Pawlik. A federal court monitor ruled that the police essentially executed Mr. Pawlik, when they woke him up and shot him as soon as he moved. Again, O’Malley’s investigation exonerated the officers and she released her report a year later in conjunction with OPD. She released her report on the same day that OPD released theirs with the same conclusion – no fault. The fallout from Mr. Pawlik’s murder ultimately led to the firing of former OPD Chief Anne Kirkpatrick. The settlement of the lawsuit by Mr. Pawlik’s family for $1.4 million is pending.**
The Conflict of Interest
Our experience with DA O’Malley in Alameda County is a clear example of the conflict of interest that district attorneys experience when asked to hold police officers accountable. O’Malley’s investigation of Mr. Gomez’ death is not yet finished almost 9 months after police shot him on his mother’s front porch. Clearly, Mr. Gomez’ death and determining whether police acted justifiably or wrongly is not a priority for DA O’Malley.
Maybe if DA O’Malley had taken the San Leandro police shooting of Anthony Gomez seriously, Steven Taylor would still be alive?
Fortunately, there is a solution. I have introduced a resolution to the Alameda County Democratic Party Central Committee to support Steven Taylor’s family’s call for an independent investigation into his murder. The resolution calls upon the California Attorney General to “investigate, manage, prosecute or inquire about any incidents of use of deadly force by law enforcement officers to ensure that the laws of the State are being adequately enforced and in particular, to ensure compliance with AB392 codified as Penal Code Section 835a.”
The Oakland East Bay Democratic Club, Wellstone Democratic Renewal Club, John George Democratic Club and the Coalition for Police Accountability also support the resolution. It is based on Article V, Section 13 of the California Constitution which allows the Attorney General to supervise and supercede the powers of every District Attorney. The resolution was passed unanimously by the Alameda County Central Committee.**
A Test for California Law
Steven Taylor’s murder will be one of the first cases to “test” the enforcement of California’s new law for use of deadly force. If the Attorney General accepts the call, he could create a statewide standard for police accountability when deadly force is used.
The murder of Steven Taylor happened in our Assembly District 18. Therefore, I called upon the leaders of our Assembly District to support the resolution at the Central Committee. Both Assemblymember Rob Bonta and his former District Director and Alameda City Councilmember, Jim Oddie have a vote. Central Committee member and San Leandro City Councilmember Corina Lopez has already pledged her support of the resolution.
I am hopeful that the leaders of our community and Attorney General Xavier Becerra will be found standing on the right side of justice. Hopefully, accountability for police use of deadly force will be established before another person is killed unnecessarily.
** This piece was updated to reflect that the Alameda County Democratic Party unanimously passed the resolution on May 6, 2020 and that a settlement payment of $1.4 million by the City of Oakland to the Pawlik family is pending.
“I reject the Chief’s principal conclusions in this matter.”
Those few words summarize the February 19, 2019 report by Oakland’s Compliance Director, Robert Warshaw. Those few words should end the career of OPD Chief Anne Kirkpatrick in Oakland.
The proverbial “straw that broke the camel’s back” should be the OPD cover-up of the murder of one Joshua Pawlik. A year ago, on March 11, 2018, Mr. Pawlik was shot 22 times with AR-15 rifles by four (4) OPD officers. His crime – he had a gun.
I have long come to know that if you have a gun and you encounter a policeman in Oakland you will die. Mr. Pawlik’s case is so very similar to that of Demouria Hogg. Both men were apparently asleep when awakened by OPD officers. Both men had guns in their possession and they were immediately shot and killed when they woke up. A gun is a death sentence.
Or, consider consider the case of Alan Blueford who was alleged to be found near a gun and shot dead. Or the case of Sahleem Tindle, who was also observed near a gun and shot dead.
If you are even near the gun, and there is an OPD or Bart officer present, you will die. If they think you have a gun, you will die.
Mr. Pawlik’s murder, however, disturbed Mr. Warshaw. Mr. Warshaw is the Court-appointed monitor, who for the last 10 years has been getting paid to monitor OPD under the Negotiated Settlement Agreement aka our Consent Decree. What seems to have disturbed Mr. Warshaw is that there is a videoof the murder which OPD ignored. Apparently, the video is inconsistent with the officers’ statements.
According to to Mr. Warshaw, the OPD investigators did not
(a) did not use the video to question the officers;
(b) did not address the inconsistencies between the video and the officers’ statements; and
(c) used their questions to support the justification of the officers’ actions.
According to Mr. Warshaw, the video shows minimal movements by Mr. Pawlik, consistent with someone waking up. The video “does not show an overt threatening action on his part.”
Why Fire the Chief?
According to Mr. Warshaw, Chief Kirkpatrick went “above and beyond” in her efforts to discount the video evidence and exonerate the officers. Chief Kirkpatrick also rejected the disciplinary recommendations of the department’s internal Executive Force Review Board for the officers and the commander in charge of the situation, Sgt. Francisco Negrete. According to Chief Kirkpatrick, Sgt. Negrete’s “errors in judgment” were not significant enough to sustain the recommended discipline even though they likely cost Mr. Pawlik his life.
Chief Kirkpatrick came to Oakland in the midst of one of the worst police misconduct scandals in our history involving the murder of an officer’s wife, sex trafficking and the rape of a minor by police officers. So far, we have 3 lawsuits arising out of OPD’s cover-up of various parts of this criminal activity. Chief Kirkpatrick’s only response to our troubles was to promote the commanders who led the cover-ups and close the promotional ceremony to the public.
These are the men that she has come to rely upon and protect as the Chief.
Chief Kirkpatrick claimed that she came to Oakland as “a reformer.” But she admitted to reporters in her first press conference that she had not even read the Consent Decree and she had no plan for how to comply with it and end Court oversight. Apparently, she still has no plan. And it would appear that Mr. Warshaw has lost all confidence in her judgment.
Where Do We Go From Here?
Whether the Chief goes or stays, the City will pay. We will pay.
The City paid $1.2 million to settle the civil lawsuit for the murder of Demouria Hogg. Mr. Pawlik’s family has already filed suit, and no doubt, we will pay to settle that case. Federal Judge Orrick, upon receiving Mr. Warshaw’s report, appointed his own investigator to take another look at Mr. Pawlik’s murder. His Order directs the City to start paying for this investigation.
We will continue to pay for Mr. Warshaw’s services. Since his appointment in 2009, we have paid his two companies more than $8 million, on average almost $1 million a year. The Chief’s base salary is a whopping $270,000 a year. The four officers who fired 22 rifle shots at Mr. Pawlik are still on the payroll.
On March 6, 2019, District Attorney Nancy O’Malley issued her report simultaneously with OPD’s report, finding no problems with the investigation and exonerating the OPD officers. Nothing new there either.
I say, fire the Chief and let’s hold the monitor accountable for holding our police accountable. He seems to be the only one with any official power interested in doing so at the moment.