Legally Speaking With Pamela Price

Pamela Y. Price, Attorney at Law

Tag: Police Misconduct

“I Reject the Chief’s Conclusions”

“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.

Robert Warshaw 2016 – Credit: Darwin Bond Graham

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 video of 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.

Oakland police Chief Anne Kirkpatrick greets officers as she arrives to the Ascension Greek Orthodox Cathedral of Oakland to attend a department promotion ceremony in Oakland, Calif., on Friday, July 14, 2017. The promotions of Roland Holmgren to captain, John Lois to assistant chief and Kirk Coleman to captain has raised eyebrows after the trio were referenced in a damning report about how OPD mishandled the Celeste Guap investigation. (Anda Chu/Bay Area News Group)

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.

Hypocrisy in Alameda County

Credit: Alameda County Sheriff’s Dept.

Former Livermore Police Officer Daniel Black is on trial.  He is one of dozens of Bay Area police officers who allegedly abused their power to sexually exploit my former client, Jasmine.  Black admits that he had multiple sexual encounters with 19-year-old Jasmine.  He claims the sex was part of “a private relationship” with Jasmine.  Black’s alleged conduct took place in April 2016 while the Oakland Police Department was trying to cover up Jasmine’s sexual exploitation by OPD officers.

In September 2015 OPD Officer Brendan O’Brien committed suicide and left a note “naming names.”  O’Brien’s suicide exposed the commercial sex trafficking of young women by law enforcement throughout the Bay Area.  Daniel Black was not one of the men named in the note.  Apparently he was not aware of the ongoing OPD cover-up and investigation. He is accused of going to Richmond to get Jasmine in April 2016, and using food and alcohol to compensate her for having sex with him.

Felonies and Misdemeanors

Penal Code Section 266i (a)(2) provides that any person who “[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute” is guilty of pandering. Dan Black’s sexual exploitation of 19-year-old Jasmine was “pandering” her under the law.  The fact that someone has previously engaged in prostitution is not a defense to the charge.  Penal Code Section 266 is a felony.

Dan Black is on trial for five (5) misdemeanors.  He is charged with engaging in prostitution, engaging in lewd conduct in public and giving alcohol to a minor (under age 21).  Misdemeanor charges carry far less severe punishment than felony charges.  Misdemeanor convictions can include unsupervised probation or no jail time.  Felonies usually include some type of prison or jail time and significant restrictions of your constitutional rights, including the right to vote.  Dan Black is not charged with any felonies.  He is not charged under California’s human trafficking law.  This is very strange.

Proposition 35 – Californians Against Sexual Exploitation Act

In 2012, California voters passed Proposition 35.  The law passed by a huge margin. 81.3% of voters said yes.  Prop. 35 is intended to fight commercial sex trafficking, particularly as it affects minors.  It changed the law to include more crimes in the definition of human trafficking, increase penalties for trafficking, provide more services for victims, change evidence rules in trafficking cases, require law enforcement training in human trafficking, and expand requirements for sex offenders.  As a result of the voters, Prop. 35 includes a violation of Penal Code Section 266.

Alameda County District Attorney Nancy O’Malley was a major supporter of Prop. 35.  Yet, none of the Bay Area police officers who sexually exploited Jasmine face charges under Prop. 35.  Not a single one.  This is the worst sex scandal to ever rock Bay area police departments.  This scandal cost Oakland 3 police chiefs in nine days.  These crimes will cost the City of Oakland and the County of Alameda millions of dollars.  Yet, none of the police officers charged in Alameda County are facing sex trafficking charges.  Not a single one.  It is as if Prop. 35 does not even exist.

Prosecutorial Discretion and Overcharging Crimes

What makes this situation even more bizarre is that prosecutors routinely overcharge defendants.  The practice of overcharging has become one of the hallmarks of our criminal justice system – a way to ensure that the system can actually function.  The only way the Courts can handle the number of cases charged by prosecutors is by getting plea bargains.  If every criminal defendant insisted on going to trial and refused to “take a deal”, the system would totally collapse.

In his book Why Innocent People Plead Guilty, Jed S. Rakoff writes that “our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.”

There are no written regulations controlling the prosecutor’s exercise of his charging power in California or anywhere else in the United States.  There is no established or meaningful process for appealing the prosecutor’s exercise of his charging power. The result is that an estimated 95% of all criminal cases end with a plea bargain.

Credit: New York Review of Books

Jed Rakoff cites the case of Brian Banks from Long Beach, California.  Banks, who had been a high school football star with a scholarship to USC at the time of his arrest, served five years in prison for rape and kidnapping charges.  Brian did not actually commit the crime.

 

Brian Banks accepted a plea bargain under the advisement of his original lawyer.  He was freed in 2012 through the efforts of the Innocence Project.

Comparing Brian Banks’ case to Daniel Black’s case may seem like comparing apples to oranges.  But the real difference is that Brian Banks was charged and convicted of a crime he did not commit, while Dan Black is not charged at all with crimes he admits he committed.  Is this a case of “white privilege” or “badge privilege?”  Something is definitely wrong with this picture.  The artist in Alameda County is our District Attorney.

The Jasmine Freedom Trust Fund

JASMINE.V2Since May 2016, the citizens of the Bay Area have been shocked and appalled by revelations of the abuse of power by Bay Area police officers.  The accused officers are in 6 different law enforcement agencies.  The central figure caught in the eye of the storm is a teenage girl.  She says that she has worked in the Bay Area’s commercial sexual exploitation marketplace since she was 12.

On September 1, 2016, we learned that this young victim had been shipped to a so-called “rehab” facility in Florida where she was promptly arrested, charged with a felony and carted off to jail.

Three horrifying truths have emerged in this crisis of corruption: (1) her sexual exploitation was cultivated, condoned and encouraged by law enforcement officials; (2) she is not the only child caught up in the Bay Area’s network of police sexual predators; and (3) her swift transformation from rape victim to felony assailant sends a clear message to all commercially sexually exploited youth in the Bay Area that you best not say anything to anybody.

Say Goodbye to “Celeste Guap”

For months, the teenage girl who was raped and exploited by police officers was the highlight of the news.  “Celeste Guap” was everywhere – from CNN to Youtube.  Some reporters demanded answers from police officials and focused on the lack of accountability and the pervasiveness of the problem.  Others elevated “Celeste Guap” to a Kardashian-like celebrity status.  Almost every interviewer seemed to ignore the obvious facts that she was a victim who was robbed of her childhood and that she needed a lawyer bad.  The obvious came crashing into everyone’s reality with her arrest in Florida.  While some of us were standing in front of the Richmond Police Department demanding transparency and accountability in her case, her carefully orchestrated transition from victim to felon had already taken place.  As part of her criminalization, her real name, Jasmine, was revealed as well as her home address, details about her medical treatment, her arrest and her transport to the jailhouse with her hands and feet shackled together in a hobble, a device that ties a suspect’s hands to their legs.

Was It A Set-Up?

Even before the proverbial SH– hit the fan, no one in law enforcement was taking responsibility for “the brilliant idea” to send 19-year-old Jasmine to Florida for “rehab.”  The Richmond Police Department has denied any involvement in sending her to Florida.  The Alameda County District Attorney’s office responded to inquiries with a “no comment.”  The story out of Florida is that Jasmine, at 5 feet, 130 pounds, was being subdued by two security workers, both of whom are described as 6 feet tall and one weighing 230 pounds, and the other at 240 pounds.  The 6 foot, 230 pound security officer is identified as the victim of the aggravated battery felony charge.  His injury is a bite on the arm.  Jasmine was taken from the alleged rehab facility where she was allegedly detoxifying from heroin to jail, where she has been since August 29th.  She has no family there or any ties to Florida, or any reason to be there, other than someone in Bay Area law enforcement thought it would be a good idea for her to go there.  It will be very interesting to learn who persuaded Jasmine that this was a good idea and what law enforcement agency that person actually works for.

The Bracelet Freedom Fund

     BRACELET IMAGEIn 2009, Attorney Charles Bonner published a novel called The Bracelet.  It is based on a case he handled where at least four young women were kidnapped and held as sex slaves in Syracuse, New York.  The case and the story highlights the pervasiveness of sex trafficking in our country and around the world.  Jasmine has hired Attorney Charles Bonner to represent her.  Attorney Bonner insists that I assist him with the case.  Together, we have set up a freedom trust fund for Jasmine’s legal and medical expenses, and to assist any other commercially sexually exploited youth who have been preyed upon by the police or other traffickers.  We know that Jasmine is not the only one.  We know that her tragic story is not unique or unusual.  Indeed, as a former foster child who walked away from an obviously dysfunctional system, I can truly say “there for the grace of God go I!”

And so my heart bleeds for this child.  If your heart is touched by her ordeal, please go to the Jasmine Freedom Trust Fund and donate whatever you can for her rescue, recovery and redemption.  Help us send a message to the other victims who are still trapped and living in a nightmare of fear, addiction and exploitation that we really will not tolerate sex trafficking in our backyard.  Thank you.

The Jasmine Freedom Trust Fund is established and administered under the non-profit Bracelet Charitable Freedom Fund.  All donations are tax-deductible.

A Crisis of Corruption – Call to Action

A Crisis of Corruption – Call to Action

A broad coalition of local and state advocates are calling upon Governor Jerry Brown to issue an Executive Order directing Attorney General Kamala Harris to take jurisdiction and control over the investigations of all allegations arising out of the involvement of any member of a law enforcement agency with the rape victim identified as Celeste Guap.   

Public Safety Requires Public Trust 

SEX TRAFFICKINGWe find ourselves in the midst of a crisis in public safety. The very police officers that are charged to protect and serve the public have been exposed as engaging in a conspiracy of sex trafficking. For 8 months, local law enforcement and public officials hid this scandalous behavior from the court-appointed monitor in Oakland and the public, while taking no real action against the officers who violated the public trust.  Even today – 11 months later – there has not been a single prosecution of anyone for any violations of law.  Officers who have resigned voluntarily remain uncharged.  Certainly the list of possible offenses include statutory rape, assault with intent to commit rape, obstruction of justice, interference with a police investigation, perjury, just to name a few.

 

We believe the reason for the apparent lack of accountability under the law and to the public trust is that our local officials have a conflict of interest. Every District Attorney’s office, every City Attorney’s office and every County Counsel’s office works closely with local law enforcement on a day-to-day basis.  To ask or expect these law enforcement agencies to diligently investigate and prosecute their partner law enforcement agencies is like asking the fox to guard the henhouse.  

The Call to Action

On September 1, 2016, we will issue a call to action to Governor Jerry Brown.  We believe that the alleged conduct of these law enforcement officers involves an abuse of power and a violation of the public trust that is best addressed by a single and independent law enforcement agency rather than each local law enforcement agency. Six different law enforcement agencies have been implicated to date.  What appears to a lack of communication between Oakland officials and other local law enforcement agencies is startling. It clearly suggests that our concerns about the human trafficking of our daughters, sons, sisters and brothers across county lines in the Bay Area are not being taken seriously.

 

Let us be clear that we understand that “Celeste Guap” is not the only victim of this type of police abuse, and we are not calling for increased criminalization of minors, women or men identified as sex workers in our communities. We understand and appreciate that minors and women engaged in sex work in our communities are extremely vulnerable to the abuse of power by our law enforcement agencies and that “blaming the victim” is not an appropriate response to our crisis.

 

We believe that upon direction by the Governor of California, our Attorney General has the authority to investigate, manage, interpret, prosecute or inquire about any alleged incidents of sexual misconduct by law enforcement officers with “Celeste Guap.” We believe that the Attorney General’s independent investigation of this crisis in our communities is essential to restoring public trust in our law enforcement agencies. We believe that public trust is essential to public safety. We therefore call upon Governor Brown to exercise his authority under Article V, Section 13 of the California Constitution to ensure a comprehensive and independent coordinated investigation of these incidents.

The Signatories:

 

Attorney Pamela Y. Price, Political Education Chair, Black Women Organized for Political Action (BWOPA) Richmond/Contra Costa Chapter, Member Elect, Alameda County Democratic Party Central Committee

Kathleen Sullivan, President, Black Women Organized for Political Action (BWOPA) Richmond/Contra Costa Chapter

Jerilyn Stapleton, President, California NOW

Cheryl Branch, President, CALIFIA NOW

Sarai Smith-Mazariegos, Co-Founder, MISSSEY, Founder, S.H.A.D.E. Project

Cat Brooks, Co-Founder, the Oakland Anti-Police Terror Project

Leigh Davenport, the Take Back Oakland Coalition

Freddye Davis, President, NAACP Hayward/South County Chapter

Kimberly Thomas Rapp, Executive Director, the Lawyers Committee for Civil Rights of the San Francisco Bay Area

Mike Katz-LaCabe, the Center for Human Rights and Privacy

Nola Brantley, Founder & Former Executive Director, MISSSEY

Ben Steinberg, Community Activist, Richmond California

Sign The Petition Calling for An Independent Investigation

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