CHIEF ANNE KIRKPATRICK’S ADDENDUM to
EXECUTIVE FORCE REVIEW BOARD REPORT
Use of Force No.: 18F-0067

I.

EFRB Findings re Use of Force

My charge is to analyze all the facts and circumstances in this matter to determine whether there is
sufficient evidence to determine that a member’s conduct was in violation of law or policy. Absent a
preponderance of evidence that the conduct is out of compliance with law or policy, there is no
violation.
The policy that governs this matter is Department General Order K-3: Use of Force. The relevant sections
of this 12-page policy are the definitions of Reasonable Force (Section II.A), the definition of Immediate
Threat (Section II.B) and Discharging a Firearm at a Person (II.D).
Starting with the authority to discharge a firearm, the policy states that lethal force … “is authorized only
when there is reasonable cause to believe there is an immediate threat of death or serious bodily
injury.” Thus, in determining whether there was reasonable cause to use lethal force, my threshold
question is whether the facts and circumstances in this case meet the criteria of an “immediate threat.”
The policy states:
“An immediate threat is considered to exist if a person has demonstrated actions that would lead one to
reasonably believe the suspect will continue to pose a threat of death or serious bodily injury if not
apprehended without delay. A person is an immediate threat, if the person is reasonably perceived by a
member or employee to have present intent, means, opportunity and ability to complete the threat,
regardless of whether the threatened action has been initiated.” (Emphasis added.)
If the threshold for what constitutes an immediate threat is met, then the next analysis, under both law
and policy, is to determine if the amount of force used was “objectively reasonable to affect a lawful
police purpose and protect the safety of members or others based upon the totality of the
circumstances.” (Emphasis added.)
The evidence in this case is vast: it includes hours of PDRD video and audio (including subject and
witness interviews), and hundreds of pages of documentary evidence. The Internal Affairs Division (IAD)
Report of Investigation, including its analysis and recommended findings, is more than 830 pages long.
The Executive Force Review Board (EFRB or the Board) took three separate hearing days to evaluate
both IAD’s and CID’s evidence and presentations, and to make their findings. In evaluating the Board’s
conclusions and recommendations, I personally reviewed the underlying evidence, including, but not
limited to, the PDRD footage (including the enhanced video and expert report), subject and witness
statements, and the autopsy report. For the reasons described below, I accept the analysis and
unanimous findings by both IAD and the EFRB that the lethal force used in this case was within law and
policy.

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 Each of the four officers who used lethal force stated that they did so only after they saw Pawlik begin to
raise his arm and hand off of the ground and point the gun in their direction. The video analysis was
inconclusive regarding the specific movement of Pawlik’s lower arm, hand and the gun just prior to the
shooting. However, it is not inconsistent with the officers’ statements that Pawlik looked at the officers,
raised his arm and pointed the gun toward them. Also, other evidence corroborates the statements.
For example, the statement that he gripped the gun is supported by the fact that the gun was flung
behind Pawlik when he was shot. Moreover, the evidence shows that Pawlik did not comply with
numerous (12) commands to take his hand off the gun as he looked toward the officers and moved in a
rocking motion to sit up. Despite Pawlik’s movement and failure to comply with numerous commands,
the officers did not initially fire their weapons. Thus, the evidence does not contradict the officers’
statements that they fired only after perceiving a lethal threat, when Pawlik raised his arm and pointed
the gun in their direction.
The most compelling evidence of a reasonably perceived threat was that the five officers shot almost
simultaneously at Mr. Pawlik, with all shots fired within 2.23 seconds. I find this evidence persuasive and
corroborative of the officers’ statements regarding their perceptions of an immediate threat. In other
words, the evidence supports that this was not the perception of just one officer, with sympathetic fire
trailing the initial shot after a delay; this was the perception of multiple officers. The evidence shows
the individual shots occurred too closely together to be sympathetic fire. This is illustrated in a frame-byframe analysis of the shooting. There are at least three rounds distinguishable in the PDRD video which
was recorded at a rate of 30 frames per second. The first shot is captured at frame #1714 and the more
visible bean bag contrail is captured at frame #1731.1 There are also several shots between the first
shot and the bean bag round. The video analysis was not able to discern which shots came from each
particular officer. However, we know that the first rifle shot and the bean bag were two different
officers. They occurred just over a half second apart. These shots are so close together that they are
not likely sympathetic fire. Based on my training and experience, I know that studies in the field of
human factors teach that firing a weapon at a threat or other stimulus takes time to perceive and react.
Accordingly, sympathetic fire generally includes a sufficient delay for the second officer firing to perceive
and react not to a lethal threat – but to the sound of the first weapon firing. Here, at least three of the
shots took place within 0.5 seconds, and all 22 lethal rounds and one less-lethal bean bag round were
fired within 2.23 seconds. The multiple shots fired almost simultaneously and the incredibly short
period of time between the first shot and the bean bag deployment (.567 seconds), suggest that (at
least two of) the officers perceived and reacted to the same stimulus or threat. Also compelling is the
fact that the officers stopped their fire almost simultaneously. The video evidence that the officers
started and stopped their fire almost simultaneously is persuasive to me that the five officers
independently perceived a lethal threat and independently perceived when that threat no longer
presented itself.
Lethal force analysis requires an assessment of the reasonableness of the officers’ perceptions under
the totality of the circumstances without the benefit of 20/20 hindsight. Based on the evidence, I find
that there is not a preponderance of evidence of a violation of policy or law. Indeed, the greater weight
of the evidence shows that each officer independently concluded that Pawlik posed a lethal threat. I
find that the evidence shows that the officers’ perceptions of an immediate threat were reasonable
under the circumstances.

1

Taking into consideration that the PDRD footage is 30 frames per second (FPS), the bean bag round
was fired 17 frames after the first round (.567 seconds).
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 The EFRB report contains extensive assessment of the level of risk the officers were exposed to
considering they had the benefit of the Bearcat for cover. The SMEs on Bearcat use and the Patrol Rifle
Officer program stated that the protocols and training for use of the Bearcat do not anticipate that
everyone will be completely covered and entirely protected from the threat of gunfire. The Bearcat does
have portholes in the side armor of the vehicle but according to the SME, these do not allow for a
conventional shooting position and are not ideal platforms for proper rifle use. Accordingly, officers are
trained to use the body of the bearcat for cover. While the Bearcat provides enhanced cover, officers
will still be partially exposed. It is not so much their choice to be exposed as much as it is their training.2
As I step back and reflect on the totality of the evidence presented at the EFRB, I am mindful of the
Supreme Court’s language in Graham v. Connor, 490 U.S. 386 (1989) regarding proper perspective and
the balancing and analysis required in evaluating the force. The test of reasonableness under the Fourth
Amendment requires careful attention and weighing of the totality of the facts and circumstances of
each individual case. The “reasonableness” of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The
Supreme Court noted that officers are forced to make split-second judgments in circumstances that are
tense, uncertain and rapidly evolving.3
The loss of an individual’s life is a tragic outcome that OPD trains extensively to avoid—a fact borne out
by the tremendous reduction in the number of the Department’s officer involved shootings in recent
years. I am committed to supporting and continuing this trend, and to holding officers accountable
when they use unreasonable force. In this case, however, after a careful review and analysis of all of the
evidence and the application of the Fourth Amendment’s objective reasonableness test, I agree with the
recommendation of IAD and the unanimous decision of the EFRB that the force used was within law and
policy.
II.

Findings re Other Allegations, Including Supervisory Failures

Officer Tanaka, Allegation: Violation of MOR 314.39-2, Performance of Duty-General for failure to
advise the Communications Division of his rifle deployment in violation of DGO K-06 and for selfdeploying as lethal cover.
IAD’s initial recommendations in this case did not address a potential failure for Officer Tanaka, but after
IAD’s initial presentation to the Board, the Board asked IAD to consider whether Officer Tanaka engaged
in misconduct for failing to advise the Communications Division of his rifle deployment. IAD returned
with a recommendation of Exonerated. The Board had a split vote on this issue. Two of the three
members of the Board voted to sustain Officer Tanaka for this failure. I reviewed the issue of Officer
Tanaka’s deployment in detail, including a review of the relevant PDRD footage. The purpose of the
policy is to put one’s supervisor on notice that a rifle has been deployed. It requires an officer to advise
Communications when it is practical to do so in order to keep one’s supervisor informed of resources. I
find this a technical violation given the exigency of the circumstances. When Officer Tanaka selfdeployed his rifle while next to his Sergeant, it was reasonable to assume that his supervisor was on
notice that he had deployed his rifle. Therefore, on this question alone relating to Officer Tanaka’s
deployment, I would come to a finding of Exonerated.
2

Also, if a shot were to be fired into the air or past the bearcat, the bearcat would not protect members
of the public or other officers in the area.
3
Graham, 490 US at 396.
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 However, I also evaluated whether it was appropriate for Officer Tanaka to self-deploy as lethal without
being directed to do so by the DAT leader, Sgt. Negrete. While neither IAD nor the Board came to an
explicit finding regarding Tanaka’s decision to self-deploy, both elicited evidence regarding its
appropriateness, and I find it to be an allegation of potential misconduct that should be specifically
addressed. With regard to lethal cover, the Department trains with the objective to minimize the use of
lethal force by, among other things, designating specific officer(s) to the role of lethal cover. Given that
two other officers were designated and positioned as lethal cover, I believe that Officer Tanaka should
not have self-deployed as lethal. However, the question is whether his decision to do so was
unreasonable for an officer of his experience and training. The subject matter expert stated that officers
are trained that they can self-deploy to fill a gap or position in a DAT. The training allows flexibility for
officers to bring their skill and training to bear during a critical incident. When Officer Tanaka arrived on
scene, the situation changed quickly, with the heightened threat of Pawlik, who began moving and
failing to obey commands. Neither the IAD investigation nor the EFRB provided evidence regarding
specific training Officer Tanaka received about the expectations of a utility officer in circumstances such
as those at issue here that would support a Sustained finding. Accordingly, it is unclear whether or not
Officer Tanaka should have known under the circumstances not to self-deploy as lethal. The
appropriate finding for MOR 314.39-2, Performance of Duty-General regarding Officer Tanaka’s selfdeployment is Not Sustained.
Lieutenant Yu, Allegation: Violation of MOR 234.00-2, Failure to fulfill his command responsibilities.
Initially, IAD recommended Lieutenant Yu be Exonerated for his supervision of the scene as the
Commanding Officer. During the first round of EFRB deliberations, the Chair of the Board sent IAD back
for further review of the facts and circumstances, including further exploration of supervisory
responsibilities of incident commanders with an appropriate SME. The Board also directed that an IAD
Commander with Incident Commander experience make the analysis and recommendation. At the
second convening of the EFRB, IAD changed its recommendation from Exonerated to Sustained. The
Board unanimously voted that there were shortcomings in Lt. Yu’s exercise of his command
responsibilities and oversight. In my review, I found Lieutenant Yu took many appropriate actions that I
expect of a commander over a critical incident. His statement revealed his critical thinking skills. For
example, he took command action when he overruled Sergeant Negrete’s assignment of less lethal from
Sergeant Webber to Officer Phillips. He also made sure that his sergeants were dispersed properly
around the perimeter and ensured medical was staged. However, I agree that Lieutenant Yu deferred to
Sergeant Negrete too much and he should have had more firm control of the management of the scene
as articulated by the Board. I also agree that after he was briefed by Sgt. Negrete, Lt. Yu should have
recognized that Sgt. Negrete failed to plan for one of the three basic contingencies all DAT leaders must
consider—i.e., how to react to foreseeable exigencies created by the suspect. Accordingly, for the
reasons stated in IAD’s Addendum Memorandum (dated 8 Jan 19) and the Board’s report, I find
Lieutenant Yu Sustained for a class 2 violation of command responsibilities.
Sergeant Negrete, Allegation: Violation of MOR 285.00-1, Failure to Supervise
Initially, IAD recommended to the Board that Sergeant Negrete be sustained for a class 2 violation for
failures in his supervision. The Chair sent IAD back to further analyze whether the facts and
circumstances surrounding his supervision rose to the level of a class 1 violation. After this review, IAD
returned and reaffirmed its recommendation for a sustained finding of a class 2 violation. The Board

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 voted 2 to 1 to sustain Sergeant Negrete for the class 1 violation, finding there was a gross dereliction of
duty.
In my analysis, I reviewed our MOR on gross dereliction of duty, the standard required for this violation
to be a class 1 instead of a class 2.4 Gross dereliction of duty is a high standard. It requires both
carelessness and a reckless disregard for the consequences of the member’s conduct. I took guidance
from case law addressing the standard of recklessness, including the following. In Delaney v. Baker, the
California Supreme Court stated: “‘Recklessness’ refers to a subjective state of culpability greater than
simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of
probability’ that an injury will occur. [Citations omitted.] Recklessness, unlike negligence, involves more
than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions,’ but rather rises to the
level of a ‘conscious choice of a course of action . . . with knowledge of the serious danger to others
involved in it.’ [Citations omitted.] Id., (1999) 20 Cal. 4th 23, 31-32.
Similarly, in Conservatorship of Gregory v. Beverly Enterprises, Inc., the court found that the following
instruction adequately defined “recklessness”: “[T]he term ‘recklessness’ requires that the defendant
have knowledge of a high degree of probability that dangerous consequences will result from his or her
conduct and acts with deliberate disregard of that probability or with a conscious disregard of the
probable consequences.” Id., (2000) 80 Cal. App. 4th 514, 521.
Reckless disregard is a degree of culpability greater that both ordinary negligence and “gross
negligence.” “‘Ordinary negligence”’—an unintentional tort—consists of a failure to exercise the degree
of care in a given situation that a reasonable person under similar circumstances would employ to
protect others from harm. [Citation.] ‘Gross negligence’ long has been defined in California and other
jurisdictions as either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard
of conduct. [Citation.]” City of Santa Barbara v. Superior Court (2007) 41 Cal. 4th 747, 753–54; see also,
e.g., Hass v. RhodyCo Prods. (2018) 26 Cal. App. 5th 11, 32, review denied (Nov. 28, 2018). “‘[G]ross
negligence’ falls short of a reckless disregard of consequences.” E.g., Hass at 32.
In assessing Sergeant Negrete’s conduct under these standards, I find that his decisions, though very
negligent, did not rise to the level (degree) of conscious and deliberate disregard for the safety of
others, including Mr. Pawlik. Although his failures may stem from inadvertence, including a clear failure
to follow his training regarding the three basic contingencies of a DAT and the role of a DAT leader, I do
not see his failure to take precautions as evidence of deliberate disregard for Mr. Pawlik’s safety.
Sergeant Negrete’s actions in taking on multiple roles and not planning adequately for foreseeable
contingencies were supervisory failures. However, his decisions cannot be characterized as being done
with reckless disregard. Instead, the evidence shows that in his planning he sought to resolve the
situation with everyone’s safety in mind, determining that he was the best person for the talker/cuffer
role and believing that he was planning for contingencies with the goal of taking Mr. Pawlik safely into
custody. Sgt. Negrete assigned DAT roles and articulated a detailed plan for two different scenarios,
which he shared with the incident commander. The subject matter expert testified during the EFRB that
the DAT leader takes an overall big picture/strategic view of the incident and sergeants are not taught to
take on one of the more specific roles. Nonetheless, it does not appear that sergeants are explicitly
4

MOR 175.99: GROSS DERELICTION OF DUTY – Failure to use reasonable care to protect life and/or
property and to safeguard the legal rights of individuals. Gross dereliction of duty is characterized by
carelessness and a reckless disregard for the consequences of the member or employee’s conduct.

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 trained they are not to take on a specific team-member role. In fact, the subject matter expert said that
a team leader may take on an additional role such as talker/cuffer depending on the circumstances.
The Board Chair pointed out that Sergeant Negrete’s decision to deploy his own rifle was unnecessary
given the fact that he had two lethal cover officers assigned. Although I do not disagree with this
assessment, I do not believe it supports a finding of gross dereliction of duty under the circumstances.
The subject matter expert told the Board that the DAT team leader’s big picture role does not preclude
the sergeant from defending him/herself or others from a threat. Sgt. Negrete decided to deploy his
rifle in response to what he perceived as a lethal threat to himself and his officers. Moreover, he did not
fire his weapon at Mr. Pawlik when Mr. Pawlik gained consciousness, began rocking back and forth to sit
up and failed to heed multiple warnings. The evidence does not contradict his statement that he fired at
the moment he felt their lives were in danger.
In sum, during the course of the incident, a review of Sgt. Negrete’s conduct in its entirety under the
totality of the circumstances shows errors in judgment and action. Errors that occurred in a very serious
situation with the lives of both Mr. Pawlik and others at stake. However, despite his failures, his
conduct viewed as a whole does not demonstrate gross misconduct carried out with carelessness and
reckless disregard for the safety of others. Instead, there is evidence of his desire to resolve the
situation without harm to anyone, including Mr. Pawlik. Accordingly, I find Sergeant Negrete Sustained
for a class 2 failure to supervise.

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