Legally Speaking With Pamela Price

Pamela Y. Price, Attorney at Law

Tag: Robert Warshaw

Attorney Larry White Opinion: OPD Reform Was Not Possible Under Chief Kirkpatrick

Coalition for Police Accountability Logo
Coalition for Police Accountability

The following editorial by Larry White, Attorney for the Coalition for Police Accountability was originally published in the Mercury News on March 13, 2020.

Larry points out how former OPD Chief Anne Kirkpatrick’s actions after she was fired confirm that police reform was not possible under her leadership. 

Anne Kirkpatrick was fired from her job as Oakland Police Chief last month by Mayor Libby Schaaf, on recommendation of the independent Oakland Police Commission. The Coalition for Police Accountability called for her dismissal a year ago and the Police Commission had been considering it for months.

Kirkpatrick is not happy; it’s not my fault, she says, it was that greedy Robert Warshaw, the Monitor appointed by the federal judge who oversees the Negotiated Settlement Agreement. He held us back, just so he could make more money.

Essential Background

Some background is essential. The City of Oakland gave to a federal judge ultimate oversight over the city’s police department when it agreed to the NSA in 2003. The arrangement was to last no more than five years and result in real reform of the Oakland Police Department. It’s still going on but the OPD under Kirkpatrick actually went backward in compliance and is doing worse than it did three years ago.

None of it is my fault, Kirkpatrick says. What we really need, is the (Bill Barr and Donald Trump) U.S. Department of Justice to investigate Warshaw, she asserts, because it’s all his fault.

So many things are wrong with this that it’s hard to know where to begin. First, in any well governed city, a police chief, even a former chief, does not involve herself in politics. That’s a dangerous road for a city’s chief law enforcement officer to go down.

And then there’s the fact that the Monitor is not in charge of the NSA, he’s not even a party to the NSA; he’s just an employee of the federal court. But even more alarming is that Kirkpatrick (who has a law degree) doesn’t seem to understand that the judiciary is a separate and independent branch of government.

Calling on the Department of Justice, part of the executive branch, to “oversee the overseer” and to investigate a federal court is directly out of some extreme right wing playbook, something that perhaps Trump might do in the terrifying event that he gets reelected. The Department of Justice cannot “oversee” a federal court–at least not while we still have a democracy.

The parties to the NSA are the City of Oakland, a group of plaintiffs represented by two civil rights attorneys, Jim Chanin and John Burris. They have called for the firing of Warshaw and the City has not tried to end the NSA. At this point the only way it can be ended is if the parties agree that the OPD has complied with the NSA requirements. In order to do that, we need an effective police chief who is actually committed to reform.

Oakland Police Department Chief of Police Anne Kirkpatrick is sworn in by Mayor Libby Schaaf at City Hall in Oakland, Calif. on Monday, Feb. 27, 2017. (Kristopher Skinner/Bay Area News Group)

Oh and one more bit of demagoguery that needs to be called out. Kirkpatrick says that Warshaw had been accused of sexual harassment “yet he was allowed to keep his job.” These charges were investigated and Warshaw was fully exonerated.

Reform Wasn’t Possible Under Chief Kirkpatrick

The NSA process is far from perfect and the sooner it is history the better. But first its goal -reform of the Oakland Police Department – must be met. That could never have happened under Anne Kirkpatrick.

“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.

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