2017 IPA Year End Report

The Office of the Independent Police Auditor was established by the San José City Council in 1993 with the enactment of a city ordinance codified in the San José Municipal Code. Thereafter, on November 6, 1996, the voters of San José amended the City Charter to establish the Office of the Independent Police Auditor as a permanent arm of city government. (Please see Appendix A for Municipal Code section 8.04.010 and City Charter section 809.) In the 24 years that the IPA office has existed, there have been six Independent Police Auditors: Teresa Guerrero-Daley (1994-2005); Barbara J. Attard (2005-2008); Shivaun Nurre, Interim IPA (2009-2010); Judge LaDoris Cordell (Ret.) (2010-2015); Shivaun Nurre, Interim IPA (2015); Walter Katz (2016); Shivaun Nurre, Interim IPA (2017); and Aaron B. Zisser, the current IPA, appointed in October 2017.

The mission of the Office of the Independent Police Auditor is four-fold: (1) to provide independent oversight of and instill confidence in the complaint process through objective review of police misconduct investigations; (2) to conduct outreach to the San José community; (3) to propose thoughtful policy recommendations to the San José Police Department; and (4) to strengthen the relationship between the San José Police Department and the community it serves.

Pursuant to San José Municipal Code section 8.04.020, the Independent Police Auditor shall, at all times, be totally independent such that requests for further investigations, recommendations and reports shall reflect the views of the Independent Police Auditor alone. No person shall attempt to undermine the independence of the Police Auditor in the performance of the duties and responsibilities set forth in San José Municipal Code section 8.04.020. (Please see Appendix A for Municipal Code section 8.04.020.)

Dear San José Community

We routinely hear from community members: What is any of your work actually going to change? For me, as the new IPA – I started in October 2017 – this is the central question. Now helming an agency that is often criticized as being “toothless” to accomplish any real change, I have a background – as a former U.S. Department of Justice (DOJ) civil rights attorney – that had allowed me to apply enormous resources, access, and authority to ensure broad-based systemic reforms in response to constitutional concerns.

Especially as a South Bay native, I am just as committed to furthering real change at SJPD, though civilian oversight simultaneously lacks the enforcement power and access of DOJ, on the one hand, and benefits from ongoing collaboration with SJPD, City leaders, and community stakeholders, on the other hand.

Transparency, accountability, and change at SJPD

The cliché about independent civilian oversight of police is that it seeks transparency and accountability. While those may be laudable ends in and of themselves, more is nonetheless required. Civil rights work does not end at exposing or identifying the problem – presenting and implementing solutions is the more challenging task.

Ultimately, transparency and accountability both serve as vehicles for substantive change in an agency. While disciplining an individual officer provides some measure of justice and can improve that officer’s conduct going forward, the police agency and its leadership should be identifying common issues among officers and making necessary changes to policy and training. And while transparency can win trust among community members, it can also provide tools for the public to advocate for improvements. After all, the IPA office audits Internal Affairs investigations and reports publicly at least every year, but we also issue policy recommendations, based on our own observations and what we learn from our community engagement, aimed at broader systemic change in police practices.

Arm’s-length collaboration

Of course, the IPA office has to work differently than the U.S. Department of Justice to accomplish needed reforms. There is more need for collaboration with the police department, but it must be, as I often say, “arm’s-length collaboration.” The San José Police Department is not an agency in constitutional crisis like the various agencies my DOJ colleagues and I tended to encounter. In some ways, SJPD is not only not in crisis but is in fact a leader in promoting community trust and policies directed at ensuring constitutional policing practices. As a native of the South Bay– born in San José and raised in Campbell – I am proud of the police department and the City’s commitment to meaningful oversight and reforms. It is incumbent on us at the IPA office to ask lots of questions of and listen closely to the in-house experts: the police officers and leadership.

Still, the job of the IPA office is to identify areas of concern or areas for improvement, communicate our concerns and those of the community, and work towards solutions. That means tough, uncomfortable, honest conversations with SJPD officials, City leaders, and community members. It means showing up at SJPD’s worst moments, while trying to acknowledge SJPD’s progress and successes.

Changes to IPA practices

In addition to bringing experience with scrutinizing government agencies, I worked most recently as a consultant for oversight agencies. So I also came into the IPA position with ideas about how to improve the IPA office’s own practices, always with the goal of making the IPA office as effective as possible at serving its aims of accountability, transparency, and substantive improvements in SJPD practices as they relate to ensuring constitutional and fair treatment of San José residents and visitors. Among the changes I have made are how we have structured and presented this annual report. I hope this new structure enhances the way we promote accountability, transparency, and actual change in police policies and practices.

Accountability: We are making sure we utilize all of the tools in our tool belt. While we always seek to exercise our authority respectfully, it is important that we use the full range of our authorities. This includes:

• Appealing any disagreements we end up having with IA about their investigations to the Chief of Police and any disagreements with the Chief of Police to the City Manager.
• Ensuring officer-involved shootings receive the attention and scrutiny they deserve, including responding to the scene for in-person SJPD briefings and conducting community outreach following an officer-involved shooting. Such attention is especially important in light of the impact of these incidents on San José families and the broader community and the extent to which SJPD’s investigations and our office’s auditing require confidentiality.
• Participating meaningfully and candidly in the ongoing conversation about how much oversight SJPD should be subject to with respect to the accountability process, including IA investigations of officer-involved shootings and investigations of possible officer misconduct that did not come to the attention of SJPD by way of a citizen complaint.

Transparency: We have also taken steps to strengthen our role in ensuring transparency by the SJPD. These steps include:

• Recommending additional IPA authorities that are in line with national best practices on broad access to records, including body-worn camera footage, as a means of conducting systemic reviews to identify trends and policy issues. We are also seeking a formalized role in reviewing proposed or draft SJPD policy changes.
• Modernizing and expanding our outreach with the goal of reaching more people and speaking to the issues that matter most to the community.
• Modernizing and restructuring our annual reports. This year’s annual Report will have a dedicated website that makes it much easier to navigate looks quite different from previous years’ reports. We have restructured the Report to address various substantive topic areas of interest to the community. The Report weaves in relevant case examples, data, and policy recommendations as they relate to each substantive topic.

Change: Which brings us to the final piece of the oversight process: the change itself. I hope this new approach to our reporting allows readers to better understand how the IPA office’s efforts, including the recent changes in our approach, moves the needle toward more and more constitutional and respectful policing.

Sincerely,

Aaron B. Zisser

This annual Report identifies some of the issues of interest to the community. We do not purport to address every important topic. Indeed, we plan to take on new issues future reporting. Nor do we pretend that we fully address those issues that we do cover in this report. We have limited access to information and limited resources. In some cases, we are starting the conversation and plan to continue and build on it in the next report or reports. But the lack of all relevant information should not keep us from presenting what we do have and continuing to ask questions to flesh out the discussion in the future.

In Chapters 3 and 4, we provide an overview of the IPA’s functions, including our efforts to enlist the views and concerns of community members and our process for reviewing citizen complaints and the Internal Affairs Unit’s investigation of such complaints.

Our office has conducted extensive and varied community outreach and engagement with the goals of (1) informing people about the availability of the complaint process to address concerns they may have about an officer’s conduct, (2) listening to people about their experiences with SJPD and their suggestions about how to improve SJPD’s practices, and (3) building trust within the community so that we can continue to partner on important issues. In 2017, the Office of the IPA participated in over 140 presentations and events, reaching 5,889 individuals in our community. Our outreach informs our policy recommendations and discussions with police and City leadership.

While complaints are down, complaints about arrests and force are down even more, while complaints about – and the number of sustained findings of officer misconduct in cases involving – searches and bias-based policing are up. Officer discipline is up overall.

We address a number of important developments in SJPD’s use-of-force policies and practices in Chapter 5 of this Report:

• Complaints: Complaints regarding force are down dramatically, though much of this decline may track the overall decline in use of force during the same general period of time.
• SJPD’s publication of data on use of force: Chief Garcia rolled out a new data dashboard for the public to learn about various facets of SJPD’s use-of-force practices. While this is an enormously positive undertaking, greater transparency is required regarding the limitations of the data. Some findings from the dashboard include:
  • SJPD has a much lower rate of using force overall than the average among other jurisdictions employing the same type of data analysis, but injuries, including serious injuries, make up a larger percentage of the force that is used. This is probably largely attributable to the fact that SJPD officers use impact weapons and projectile weapons more frequently than officers in other jurisdictions analyzed using the same protocol (as a percentage of force incidents).
  • The data on racial disparities in uses of force is mixed, though force is used on African Americans and Latinos at overall higher rates than on Whites as compared to the demographic representations in San José.
• Officer-involved shootings: Finally, after a dip in 2016 in the number of officer-involved shootings (five such incidents) – 2015 saw a recent high of 12 such incidents – SJPD officers were involved in eight such incidents in 2017, half of them fatal, five involving persons of color, and all but two involving no weapon or weapons other than a firearm. Six of the shootings involved persons with a history of mental health needs. We identified the fact that SJPD has not been issuing required public annual memos regarding lessons learned from such shootings in terms of policies, equipment needs, and training needs.
• New policy on review of serious uses of force: In our 2016 annual report, we recommended that SJPD implement a policy requiring review by high-level Command staff of serious uses of force. In October of 2017, SJPD implemented just such a policy.
• De-escalation practices: Under a 2016 policy, SJPD officers are required to take measures to de-escalate situations and avoid the need to use force. In our auditing of IA investigations, we are reviewing IA’s attention to this requirement and officers’ compliance.

We conducted substantial outreach to learn about the various ways that local agencies address the needs of individuals with psychiatric disabilities who become involved with SJPD. The need for attention to this set of issues was highlighted by the comparatively high number of officer-involved shootings in 2017 that involved individuals with a history of mental health needs. We encountered cases involving allegations of excessive force, improper use of involuntary mental health holds, rude conduct, and bias-based policing.

SJPD is making important progress on ensuring its officers receive crisis-intervention training to reduce negative interactions based on assumptions or misunderstandings about this population, but, by the end of 2017, a third of officers had not undergone this critical training.

Of the ten policy recommendations we issued this year, three of them relate to SJPD interactions with individuals experiencing mental health crises or in need of mental health services and are detailed in Chapter 6 of this Report. These include

1. For individuals requiring psychiatric evaluation because they may pose a danger to themselves or others, SJPD should transport them to the emergency psychiatric hospital, not to jail, even when such individuals commit the crime of resisting officers’ efforts to detain them for such an evaluation.
2. SJPD should ensure that officers receive periodic follow-up crisis intervention training.
3. SJPD should provide individuals they encounter in the field with a guide that lists various mental health agencies and resources.

We continue to study other possible policy recommendations on this issue.

Bias-based policing can manifest both in officers’ identification and treatment of suspects and in decisions about which people to protect.

• Race/national origin: This year saw a case that closed with a number of sustained findings relating to officers’ failure to provide language assistance services and bias-based policing, and we summarize this case in Chapter 7. San José communities are also rightly concerned about whether SJPD cooperates with federal immigration officials, and it would behoove SJPD to clarify its policies. The Report also includes a recommendation that SJPD incorporate the Language Access Plan into its Duty Manual and make some modifications to the policy to ensure officers access meaningful translation services.
• Gender-based violence: This Report (Chapter 8) includes a policy recommendation regarding the proper way in which officers should receive reports of sexual violence. Domestic violence has been a topic of interest, and SJPD has cut back its enforcement and support services due to the loss of outside funding. Staffing is a significant challenge – just three specially dedicated sworn officers handle thousands of cases each year. We encountered cases in which officers fail to properly respond as required to domestic violence cases.

Allegations of misconduct that have constitutional contours merit particular attention. Sustained allegations of unlawful arrests or detentions remain, as in previous years, at zero. Meanwhile, 2017 saw an increase in sustained allegations for unlawful search and seizure. Given the gravity of this conduct, we summarize a number of cases in Chapter 9.

Community policing is one of the key focuses of modern policing and seeks to build trust between police and communities. We discuss a number of issues in Chapter 10.

• Defining “community policing”:“Community policing” can mean a lot of different things: outreach, procedural justice, crisis intervention, implicit bias training, and a myriad of other concepts and initiatives. This Report includes a policy recommendation that SJPD clarify for its officers the responsibilities involved in engaging in community policing. While SJPD has prioritized community events, everyday interactions between officers and members of the public under strained circumstances require equal focus.
• Staffing: Foremost among the various ingredients, however, is adequate staffing. 2017 was a significant year in terms of SJPD’s ability to get its staffing back up to where it needs to be. In addition to having public safety implications, short-staffing also undermines officers’ ability to take time to get to know the community, to engage in non-enforcement activities that are aimed at building trust and goodwill with community members.
• Policing in schools: SJPD also rolled out a significant new policy and series of memoranda of understanding with school districts regarding the proper role of school resource officers: to address crime, not school discipline issues. This is commendable and in line with some of our 2016 policy recommendations. It will be important for SJPD to measure the impact of these new policies. SJPD did not adopt our 2016 recommendation about enhanced training for school resource officers.
• Juvenile crime: There has also been concern among some stakeholders that violent juvenile crime has spiked. It is critical that SJPD leadership accurately characterize the problem so as not to unnecessarily incite fear that may lead to unwarranted rollbacks in successful efforts to promote interventions for youth that reduce recidivism.
• Courtesy: Finally, as we do every year, we received complaints regarding officers’ failure to engage with community members in a courteous fashion, and SJPD sustained some of these allegations.

A new complaint/allegation classification protocol implemented by the new IPA has resulted in more accurate data on the number of complaints related to officers’ failure to take enforcement action or to investigate an alleged crime. A policy recommendation seeks to reinforce and institutionalize this change.

A number of such cases resulted in sustained findings, including in cases involving police responses to domestic violence and a hate incident. We detail several cases in Chapter 11.

Many of the issues discussed in Chapters 1-11 include systemic issues that underlie in-the-field interactions between police and members of the public. These include the early intervention system (Chapter 4); transparency in the form of SJPD’s important roll-out of its data dashboard on uses of force and public reports memorializing the shooting review panels held within 90 days of each officer-involved shooting (Chapter 5); training for officers on how to engage with individuals experiencing a mental health crisis (Chapter 6) and on how to engage with youth (Chapter 10); resources for pro-active enforcement efforts to address domestic violence (Chapter 8); staffing levels (Chapter 10); and the need for new or clarified policies on a range of issues.

We also discuss, in their own chapters, the following underlying systems that can help SJPD continue to improve in its efforts to ensure constitutional policing:

• Accountability procedures: The IPA office is especially well-positioned to recommend improvements to the Internal Affairs investigations process, and this Report (Chapter 12) includes a policy recommendation regarding application of the proper standard of proof and the proper approach to weighing witness credibility. We also discuss examples of cases in which we conveyed concerns to IA about the quality of its investigation or analysis, as well as examples of those rare instances in which we had to appeal to the Chief because IA did not make the requested changes to its investigation or analysis. Both processes – conveying concerns and appealing – have proven meaningful. The IPA office has had concerns in 17% of IA investigations overall and 27% of IA investigations of use-of­force complaints.
• Body-worn cameras: We discuss, in Chapter 13, the frequency with which cases that come to our office for review involve officers who have not properly activated, or who have improperly de­activated, their body-worn cameras, which are an essential tool in ensuring accountability. This Report includes a policy recommendation that body-worn cameras should be activated in the SJPD lobby when officers are interacting with members of the public.
• Scope of independent oversight: The community has led substantial public dialogue about the scope of the IPA office’s authority and whether the IPA office should have additional authority to review Internal Affairs of officer-involved shootings, other critical incidents, and other cases even when the conduct at issue has not been the subject of a citizen complaint. The IPA office has issued recommendations in previous years on these same topics. There is also discussion about whether our office should be able to access a broader set of records and data about use-of-force incidents and other police interactions as a means of conducting systemic reviews to identify trends, patterns, and policy issues. The Report (Chapter 14) includes a policy recommendation regarding the IPA office’s access to draft SJPD policies so that we can provide feedback before SJPD issues a final policy.

The IPA office’s core oversight function is to review Internal Affairs’ investigations. We have routine interaction with the IA unit and review hundreds of IA investigations. We reported concerns in a number of cases and were able to resolve our concerns in most of those cases. The Chief has been receptive to our concerns in the small number of cases we have had to appeal from IA to the Chief.

The kinds of issues we identified ranged from the completeness of the investigation to the failure to identify or properly interpret the applicable policies. We have issued a policy recommendation to ensure IA properly evaluates witness credibility and other evidence.

We have ongoing opportunities to speak with IA officials about individual cases, issues that come up periodically in multiple cases, and IA’s approach and perspective. The IPA is permitted to sit in on IA’s interviews of officers as part of the IA investigation, and the IPA has done this in a number of cases.

The primary means by which the IPA office measures IA’s performance, however, is through our auditing of IA investigations. Each case goes through at least two reviews:

1. First, one of the four members of the IPA office’s auditing team reviews the completed IA investigation, including officers’ reports, the IA write-up, body-worn camera footage, recordings of interviews, and other documentation.
2. Then, that member of the IPA office staff presents his or her initial impressions to the rest of the auditing team, including the IPA. The team provides feedback, asks questions, and may review relevant portions of body-worn camera footage, officers’ reports, and IA’s write-up.

In those cases in which we have concerns regarding some aspect of the IA investigation, the IPA will often discuss those concerns with the IA Commander.

The majority of the time, we notify IA that we have not identified any material concerns with the conduct of the investigation. However, in 17% of cases we audited in 2017, we identified “concerns” with the IA investigation or IA’s analysis, though this percentage goes up when looking only at Force complaints.

IA has been very receptive to our concerns and has made changes in their investigation or analysis in the vast majority of cases in which we had expressed “concerns”.

IA investigation

Concerns related to the thoroughness or completeness of the IA investigation in some cases include:

• IA did not complete necessary interviews
• IA did not gather all necessary records
• Improperly framed interview questions
• Omitted interview questions
• Failure to investigate some of the allegations

IA’s analysis

Concerns related to IA’s analysis in some cases include:

• Failure to evaluate the evidence against the applicable Duty Manual section
• Failure to apply the correct standard of proof or failing to properly weigh the credibility of witnesses
• Mis-application of the correct Duty Manual section or another applicable standard

IA’s responsiveness to concerns

As discussed above, IA routinely accepts our recommendations for additional investigation or analysis. In some cases in which we disagreed with the investigation, our disagreement was not with IA but with the subject officer’s chain of command, which, based on the chain of command’s own investigation or analysis, sometimes disagrees with IA’s recommendation to sustain an allegation.

We encountered cases in which either an officer did not adequately document his or her use of force or a supervisor did not conduct the required review of the reported use of force.

We respond to the scene, participate in the 90-day review panels, and review other information about officer-involved shootings. However, we receive very few citizen complaints regarding officer-involved shootings and therefore audit very few IA investigations of such incidents. Duty Manual section L 2646 mandates that the Chief of Police provide, on an annual basis, a public summary of the Panel’s deliberations and recommendations to the Mayor and City Council. These annual summaries have not been provided.

In October 2017, SJPD announced a new policy that was directly responsive to a 2016 IPA recommendation that SJPD’s Command staff review all serious uses of force. We reiterate our earlier recommendation that the new policy requiring Command-level review of serious uses of force also include in their purview officers’ de-escalation efforts.

New SJPD policy: The new policy identified four categories of force based on the type of force option used or the resulting injury. Immediate supervisors would continue to be responsible for assessing incidents in which the use of force causes only a minor injury or complaint of pain.

Now, however, Command officers would be directly involved in the investigation and review of incidents in which the use-of-force results in non-minor injuries. Higher categories of force will receive greater scrutiny by the Department’s chain of command.

De-escalation: Part of the IPA’s 2016 recommendation was that SJPD examine officers’ efforts at de-escalation as part of the Command-level review. SJPD’s response to that portion of the recommendation was that the new policy need not explicitly require review of de-escalation efforts because the Duty Manual’s de-escalation requirements would be incorporated into the new policy. Our office does not have access to the Command staff’s memoranda memorializing the reviews under the new policy, so we cannot substantiate whether de-escalation is included in the process.

The San José Police Department’s command staff regularly engages the community. The Duty Manual makes mention that all officers should engage in community policing. However, it fails to provide a sufficient definition for such activities. SJPD employs various community engagement strategies aimed at building trust between the community and the police. These events include Coffee with a Cop, media and community meetings, and coaching youth sports.

Police interactions with youth is of particular immediate interest in light of current concerns about a potential spike in juvenile crime and the risk of rolling back successful intervention and criminal diversion efforts.

Finally, simple discourtesy also undermines community-police trust and gave rise to a number of sustained allegations in 2017.

In 2011, the San José Police Department had to eliminate their community services division due to a decrease in budget. SJPD moved forward with outreaching to the community with its limited resources and utilized its Crime Prevention Unit to help support community outreach efforts, such as attending neighborhood meetings, helping educate community members about neighborhood watch, and participating in National Night Out events. Over the last several years, the Crime Prevention Unit and command staff have worked to reinvent community engagement through new programs, such as Coffee with a Cop and other events and community oriented services directed at increasing public safety and building trust in the community.

SJPD continues to implement new and innovative approaches to engage the community.

• In 2017, SJPD piloted a community engagement program in District 10 –Hoffman Via Monte Area. The short-term program sought to increase police presence and trust, decrease blight, and build a stronger and safer neighborhood.
• Other engagement strategies used in 2017 included the consistent presence of the Chief of Police at community meetings and events
• Command staff have consistently attended neighborhood meetings and community events throughout the city.
• SJPD has enlisted studies of its stops and its use of force and made this data public.
• SJPD engages its Community Advisory Board, which includes community leaders from organizations that represent communities of color and at times have been openly critical of SJPD.

21st Century Policing Implementation Guide: “Trust and legitimacy grow from positive interactions based on more than just enforcement interactions. Law enforcement agencies can achieve trust and legitimacy by establishing a positive presence at community activities and events, participating in proactive problem solving, and ensuring that communities have a voice and seat at the table working with officers.”

21st Century Policing Implementation Guide: “Be sure that the implementation mechanism adequately represents groups most affected by law enforcement and those who have the capacity, authority, and resources to make the changes proposed happen. Err on the side of inclusion when designing implementation strategies. . . . Set up a method to measure and monitor what is taking place. Be sure to include a feedback loop that can identify unintended consequences in order to be responsive to community concerns. Transparency and regular communication are essential to this process. Keeping the community and all key stakeholders informed about progress and key learnings can build trust and increase collaboration.”

SJPD’s low staffing has been a barrier to robust community policing as part of officers’ everyday patrol duties. As SJPD begins staffing up again, there may be renewed opportunities for this type of positive officer interaction with community members.

The Duty Manual does not explain what “community policing” entails. It simply provides that an officer or sergeant “[a]ctively participates in the Department’s community policing efforts.” SJPD provides “procedural justice” training to all its officers, and content and concepts from that training could likely be incorporated into policy.

In other Chapters of this Report, we address police interactions with Limited English Proficient individuals, persons of color, individuals experiencing a mental health crisis, and other populations. We also discuss de-escalation. All these interactions, when executed properly, are a part of community policing. Officers receive training on Community Policing, Fair and Impartial Policing, Procedural Justice, and Crisis Intervention. SJPD has begun to assign officers to a beat for one year rather than for six months, so that officers can better get to know the neighborhoods and residents. Community Service Officers and the civilian Crime Prevention Unit specialists supplement officers’ in-the-field efforts to build trust and relationships in the community.

More run-of-the-mill interactions can also be frustrating but nonetheless demand professionalism and tact. In 2017, we closed 106 courtesy allegations, seven which were sustained.

Data indicates that youth aged 14-24 tend to have significant contact with police. However, the 2016 Santa Clara County Probation department’s annual report concluded that juvenile citations are decreasing and indicates the decrease is likely attributable to juvenile justice reforms. How SJPD employs force on youth, addresses youth crime, and polices in schools has a significant impact on broader efforts to divert youth from the criminal justice system and engender trust in the community.

Juvenile crime: 2018 has begun with much attention to juvenile crime and concerns that juvenile crime, particularly violent crime, may be spiking. There has been robust discussion among various local agencies, including SJPD, the District Attorney’s Office, County Probation, and the Public Defender’s Office regarding what the data actually shows. SJPD has expressed concerns about the violent crimes committed by juveniles but has also maintained they will continue to follow the policies and reforms that have been set in place. This is an issue we are actively discussing with SJPD and community stakeholders and for which we will have additional information in future reports.

Schools: Police interactions in the schools affect both students and their families. SJPD has taken important steps to build greater trust of officers assigned to schools and ensure these officers do not overstep and take on the role of administrators or disciplinarians.

In 2016, the Independent Police Auditor issued a policy recommendation on SJPD’s School Resource Officer Program. The policy recommendation was developed because of national attention on school resource officers as part of the broader set of concerns regarding the “school to prison pipeline” disproportionately impacting youth of color, the role of officers on school campuses, and complaints stemming from on-campus police interactions. A local investigation documented that San José Police Department responded 1,745 times to a local school district in one year and that, in many instances, officers were called in simply to manage discipline issues.

The IPA recommendations laid out a six-point guideline that included, among other things:

• Developing a MOU with the school districts
• Enhancing training for school-based officers, including trauma-informed approaches to working with adolescents
• Data collection
• Supplying schools with complaint forms

In 2017, SJPD entered into MOUs with the local high school districts to address the role of and limitations on officers on school campuses. The MOU’s primary focus is ensuring that officers will not be involved in student disciplinary matters. However, the MOU and related Duty Manual policy omit items we recommended, including mandatory enhanced training for officers on trauma-informed practices and data collection. The IPA has discussed with the Chief the challenges around data collection, but the Chief has noted that the existing data collection method may help SJPD identify schools that should be prioritized.

SJPD has ensured that nearly every officer has received Fair and Impartial Policing training. Because these cases are difficult to prove, however, we are currently studying the impact of the routine “unfounded” outcome in these cases on the Department’s Early Intervention System, which involves non-disciplinary interventions with officers who receive five complaints, or three of the same type of allegation, within a 12-month period. “Unfounded” allegations are excluded, however.

We are actively engaged regarding concerns that many in the community have regarding the extent of SJPD’s collaboration with federal immigration officials. SJPD has publicly committed to not cooperating with ICE’s civil enforcement which focuses entirely on violations of immigration laws. And the Chief of Police has conducted extensive outreach to reassure immigrant communities.

However, SJPD continues to work with ICE’s criminal enforcement efforts through ICE’s Homeland Security Investigations (HSI) unit.

We have initiated discussions with the Chief of Police regarding whether the Duty Manual policy could be further clarified to indicate this important distinction and enumerate the limits of SJPD cooperation with federal authorities, particularly those limitations required under the California Values Act (SB 54), which was signed into law in October 2017 and took effect January 1, 2018. The Duty Manual nonetheless does indicate some prohibited conduct:

[M]embers of the Police Department will not initiate police action where the primary objective is to discover that the person is an undocumented immigrant or to discover the status of the person under civil immigration laws. Otherwise law-abiding, undocumented immigrants should not fear arrest or deportation for coming forward to members of the Police Department to report a crime as a victim or a witness. At the same time, the Department will continue to cooperate with the U.S. Immigration and Customs Enforcement in matters involving serious crimes, the protection of public safety, and as required by statute, federal regulation, or court decisions.

The policy of the Police Department in relation to undocumented immigrants is as follows:

• Officers will not detain or question a person for the purpose of discovering either the person’s citizenship or status under civil immigration laws.
• Officers will not detain or arrest any person on the basis of the person’s citizenship or status under civil immigration laws.

We will continue to closely study this pressing set of issues and analyze whether additional guidance should be included in the Duty Manual.

Currently, Duty Manual section C 1317 states that “Department members will take reasonable steps to provide language assistance services to Limited English Proficient individuals whom they encounter or whenever an LEP individual requests language assistance services.

In 2017, 15,076 calls made to 911 were made with translation services; 73% (11,069) required Spanish translation and 18% (2,684) required Vietnamese translation.

Through the auditing process, the IPA has reviewed several cases in which the officer(s) claimed to have undertaken reasonable steps and yet did not properly arrange for an interpreter when language assistance was required. In some cases, the officers declared that the person’s language skills did not create a barrier. In other cases, officers turned to the individual’s family members, other officers, or witnesses to provide translation services. In some instances, officers assert that there was an exigency so that they need not have followed the LAP.

The case discussed above illustrates that as currently worded, it is unclear if it is compulsory for officers to avoid using family, friends, or bystanders for interpretation. For example, language stating that officers “should avoid” using family, friends, or bystanders for interpretation services, or stating that the officer “may then call” the contracted language interpretation services, is ambiguous. In the absence of clearer direction, officers may believe it is reasonable to use non-certified officers, family members, or strangers to provide interpretation. We also recommend that officers should never turn to minors for translation services.

Gender-based violence is an area the IPA office is continuing to study, but we have identified some initial concerns.

• Our auditing highlighted issues with how SJPD receives reports of sexual violence, leading us to make two policy recommendations.
• SJPD reported the loss of funding and short staffing in the Family Violence Unit of SJPD, leading to the scaling back of some enforcement efforts and support services. Just two officers and one sergeant are tasked with investigating domestic violence cases, of which there were more than 3,300 in Fiscal Year 2016-2017, the majority of them felonies.

Regarding sexual violence, we reviewed an investigation that is still pending but that involved an individual’s attempt to report a sexual assault. This case prompted one of our policy recommendations regarding activation of body-worn cameras when a member of the public makes a report in the police administration building about an assault.

The same case prompted a second policy recommendation. The SJPD main lobby procedure manual provides a process for taking a sexual assault report at the Police Administration Building (PAB): “The dignity of the victim is of the utmost importance. The victim interview most likely will be conducted in the Witness Center. If possible, a second officer should be present during the interview. Advise the on-duty PPC Supervisor when using the Witness Center. During normal business hours, notifications must be made with SAIU [Sexual Assaults Investigation Unit].”

Duty Manual sections R 1201 and R 1202 address reporting criteria but do not address the specific context of sexual assault reporting at PAB, an environment that may be noisy, chaotic, impersonal, and not conducive to sensitive discussions or privacy.

We will continue to study this issue. We note that SJPD has reported an increase in reports of rape: 571 reports in 2017, compared to 451 in 2016. The number of reported rapes in 2017 is twice the number reported in 2012.

Reports of domestic violence are also up, and three of the 28 homicides in Fiscal Year 2016-2017 involved domestic violence.

Key Statistic
10% of citizen complaints closed in 2017 arose from a domestic violence incident. 

Several cases involving domestic violence calls resulted in sustained findings against SJPD officers.

SJPD funding for proactive enforcement and support services

In November 2017, SJPD submitted its annual report to the City Council’s Public Safety Committee describing its numerous efforts but also acknowledging that, due the loss of outside funding it had been receiving, in September 2017 it had to cut back on some of the proactive enforcement efforts it had been taking and on support services provided to survivors. Staffing challenges have also limited the Family Violence Unit’s capacity in these regards.

Funding for investigations of domestic violence: SJPD reported that it has had to scale back much of its proactive investigative work due to the loss of nearly $900,000 in outside funding (emphasis added):

During Fiscal Year 2016-2017, the [federal] OVW grant funded a prearrest program in which investigators from the [SJPD Family Violence] Unit worked overtime to procure and serve domestic-violence related arrest warrants.

These operations resulted in investigators procuring 251 domestic-violence related arrest warrants and made 137 arrests. The Unit has not continued with the pro-arrest program since the funding ended. Staff will look for other grants in order to continue with this program in the future. To be clear, it appears the Unit would have addressed these cases even without the outside funding; the benefits of the outside funding were twofold: (1) the cases were investigated more expeditiously and (2) the District Attorney’s Office and the court had agreed to address these cases expeditiously, as well.

Funding for services for survivors of domestic violence: SJPD has been similarly unable to continue some of the support services it provided to survivors, again as a result of the cessation of an outside grant (emphasis added):

In addition, the Unit was able to use the OVW grant to fund two YWCA domestic violence advocates at the new Family Justice Center Courthouse. . . .

The OVW grant also provided funding for a domestic violence advocate to be located at the Family Violence Center.

The funding for the grant funded positions ceased at the end of the OVW grant on September 30, 2017. The Police Department applied for, but was not awarded, additional grant funding beyond September 30, 2017. Staff is looking for additional sources of funding or other means to continue funding advocate services.

Short staffing: The Domestic Violence detail, which is one of three teams within the Family Violence Unit, consists of a sergeant and two officers/investigators, including the one female officer assigned to the Family Violence Unit. Each of the officers reportedly carries a caseload of about 140 cases. The detail handled more than 3,300 “received” cases in Fiscal year 2016-2017, though many of these cases are handled primarily by the responding patrol officer before being handed off to the Family Violence Unit for final review and packaging and some of the cases do not become full investigations. In the first six months of 2017, SJPD received 1,624 domestic violence cases:

• 52% of these cases were initially categorized as felonies under Penal Code 273.5(a).
• 30% of the cases came in initially as violations of a restraining order.
• 121 cases involved serious bodily injury or a weapon.

Key Statistic:
The SJPD Domestic Violence team consists of a sergeant and two officers – the handled over 3,300 cases in Fiscal Year 2016-2017.

In the November 2017 report, SJPD also reported that the Unit’s short-staffing has adversely impacted its investigations and outreach efforts:

“Heavy caseloads prevent the investigators from having time do proactive outreach and education to the community on all types of family violence (domestic violence, elder abuse, dependent adult abuse, and child abuse).”

The Department has requested additional civilian staff to help manage the paperwork and triaging process, and the IPA office supports this request.

Excessive use of force is one of the most common complaints regarding police interactions with individuals with psychiatric disabilities or other mental health needs. While SJPD is rolling out CIT training for all its officers, more than a third of officers remain untrained in CIT. We are hopeful that with mandatory CIT training to all officers, and with the Department adopting our recommendation that officers receive CIT refresher training throughout their careers, officers will be better prepared to interact with the mental health community and more comfortable using alternative tactics to de-escalate encounters.

Officer-involved shootings: In San José, nearly one third of the officer-involved shootings over the last ten years involved someone with a psychiatric disability or other mental health history. In 2017, the San José Police Department had eight officer-involved shootings (OIS). Six of these incidents, or 75%, involved civilians who had psychiatric disabilities or a history of mental health treatment.

Key Statistic: 
75% of officer-involved shootings in 2017 involved individuals with a history of mental health concerns. 

In 2017, SJPD received 4,182 calls for service that required CIT-trained officers to respond.

Key Statistics:
More than 1/3 of SJPD officers had not yet received crisis-intervention training by the end of 2017.

Although CIT training has been at SJPD since 1998, Chief Garcia only implemented it as a mandatory course for all officers in 2015. This step is commendable, and the Department is making steady progress in ensuring all officers receive this training. The total number of officers receiving CIT training in 2017 was 153, and the total number of officers who had received training overall is 630.

Additionally, we noted in our 2016 recommendations that there currently is no mechanism to measure the effectiveness of CIT training. SJPD responded that they intend to collect data to evaluate its program’s effectiveness but have not yet begun that process.

Section 5150 of the Welfare & Institutions Code (5150) authorizes police officers and other professionals to place individuals on an involuntary 72-hour psychiatric hold in a psychiatric facility. In order for this hold to be lawful, a person must, as a result of a mental health disorder, be: 1) a danger to himself/ herself, 2) a danger to others, or 3) gravely disabled.

Decision to place a hold: Oftentimes, complainants do not believe they meet the above criteria and therefore allege the hold was improper. Conversely, family members may believe officers failed to act when an individual clearly met the above criteria, thereby putting the individual and others at risk.

Lack of information about available resources: The behavioral health system can be complicated. Many people who have a diagnosed psychiatric disability know their symptoms and understand where they need to go to get help if a mental health episode occurs. However, many times, these patients do not have the means to transport themselves and request the assistance of SJPD to transport them to the hospital or EPS, though they may not meet the criteria for a 5150 hold. They are left with no information or other resources to address their immediate or ongoing needs.

Another common complaint we receive from those who have psychiatric disabilities is that officers are rude and discourteous in their interactions. Sometimes officers are characterized as being short-tempered and talking to people “like they’re crazy.” Individuals may feel that an officer is making assumptions about them – that none of what they are saying is true or based in reality, that they are being difficult, that they are dangerous – because of their disability.

In the IPA’s 2011 Annual Report, the IPA recommended that the Department should “equip all officers with state-of-the-art cameras and establish procedures for their use.” The Department adopted this recommendation, and by July 2016, all patrol officers were equipped with body-worn cameras.

The use of body-worn cameras has proven to be invaluable. Evidence produced by the cameras can be viewed by IA and IPA staff during the investigation and audit process.

Body-worn camera footage have a significant impact on the findings, as the room for interpretation of facts is minimized. The importance of body-worn cameras has led us to believe more officers, not only the officers on patrol, should be equipped with these cameras.

In cases closed in 2017, the sustained rate in 2017 was 16% – the highest rate since the first year of the IPA office’s operations. We credit implementation of the BWC with many of those sustained findings. The high quality and clarity of the camera footage has led to a better determination of the facts of each case. The body-worn camera footage shows the interaction from start to finish and often shows any context necessary to conclude whether or not the officer acted properly or whether the officer’s conduct was out of policy.

Overall, it appears that most officers in the cases we have reviewed have complied with the BWC policy and have activated their camera when required. However, this is not always the case, and the lack of Body-Worn Camera evidence can present an issue. In these instances, where the officer did not activate his camera and should have, Internal Affairs has proactively added a Procedure allegation for failing to activate his/her Body-Worn Camera or failing to properly document or justify the de-activation.

In other instances, officers have not activated their cameras, but policy does not require the activation. Therefore, their conduct is completely within policy. We find it important that interactions in the Main Lobby be documented on Body-Worn Camera, especially because many times officers speak with victims and witnesses of crimes.

Current practice does not require BWC activation unless there is a disturbance in the PAB.

The complaint process begins when a member of the public files a complaint about a San José Police Department (SJPD) officer(s) or an SJPD policy.

• Complaints can be filed either with the IPA or with the Internal Affairs (IA) Unit of the SJPD.
• Complaints or concerns may be filed in person or by phone, fax, email, or postal mail with either office.
• Anyone can file a complaint regardless of age, immigration status, or city of residence.
• Members of the community may file complaints even if they do not have a direct connection to the incidents or the persons involved.
• Complainants may also remain anonymous.

In 2017, 56% of complainants brought their complaints and concerns directly to the IPA office, while the remaining 44% contacted IA.

Why each complaint matters

Complaints serve a number of important purposes, even when the complaint does not result in a sustained finding against the subject officer(s).

• Holding Officers Accountable: Every time a complaint is filed, the complaint must be reviewed by the Department, regardless of the alleged severity.
• Trends: The IPA can identify trends that point towards problematic police practices.
• Policy Changes: When civilians voice concerns about SJPD policies, the IPA has the unique perspective and opportunity to make policy recommendations to the Department. Many of our recommendations have had a positive impact on policing in the City.
• Intervention Counseling: If an officer receives a certain number of complaints in a 12-month period, or a certain number of similar allegations, the officer will receive mandatory Intervention Counseling by the Department to identify and correct problematic behaviors.

Intervention Counseling Definition and Policy

The Intervention Counseling Program is used as an “early warning system” to track police officers with significant complaint histories for the purpose of identifying potential problems and providing guidance. To receive Intervention Counseling, the subject officers must have received the following:

1. Five or more Conduct Complaints and/or Department-Initiated complaints within a 12-month period.
2. Three or more Conduct Complaints and/or Department-Initiated complaints containing the same allegation within a 12-month period.
3. “Unfounded” cases are excluded.

During Intervention Counseling, the subject officers meet with the Deputy Chief of their assigned Bureau, the IA Unit Commander, and their immediate supervisor for an informal counseling session.

Notably, most Bias-Based policing allegations are closed with a finding of “Unfounded.” In 2017, 86% of Bias-Based Policing allegations were closed as “Unfounded.”

Demographics of complainants

It is important to note that the ethnicity of the complainant does not always indicate the ethnicity of the subject of the officer interaction. Many times complainants are parents of the subjects or anonymous observers of a police interaction.

A total of 569 allegations were included in the complaints received in 2017. This number is down from 742 in 2016.

After intake and classification, IA is responsible for investigating all Conduct Complaints. The IPA office does not investigate complaints. IA investigations include the review of body-worn camera footage and all relevant documentation, such as police reports, medical records, photos, and the Computer-Aided Dispatch (CAD) records. IA may also conduct follow-up interviews with the complainants, witnesses, and officers.

The IPA monitors the IA investigations in order to assess the objectivity and thoroughness of the investigation.

In each complaint, the Department must make a finding of whether or not the alleged misconduct occurred. Findings and based on an objective analysis using the “preponderance of the evidence” standard. The standard is met and a Sustained finding is made if the evidence indicates that it is more likely than not that the officer committed a violation of the Duty Manual.

How allegations were closed after IPA audit

If IA determines that the investigation has disclosed sufficient evidence to clearly prove the allegation, it sends the investigation to “Findings and Recommendation.” At this stage, the Lieutenant in the subject officer’s chain of command receives the case. The Chief ultimately imposes discipline.

The Sustained Rate

Key Statistic:
16% of citizen closed in 2017 resulted in sustained findings against an officer, the highest Sustained Rate since 2008. 

We attribute the increase in all sustained allegations, including Procedure, to the implementation of body-worn camera. Camera footage has minimized the room for interpretation of the facts.

After the Department completes its investigation, conducts an analysis, and makes a finding, it forwards the written report to the IPA for audit. The IPA audited 236 complaints in 2017. The IPA is required to audit all complaints with Force allegations and at least 20% of all other complaints. In 2017, the IPA fulfilled this requirement by auditing all completed investigations containing Force allegations (49 complaints) and 79% of all other complaints.

After auditing the complaint, the IPA will make one of the following determinations:

• Agreed with the Department’s investigation of the case after initial review (in 2017, 196 (83%) of audited cases),
• Agreed After Further action, such as receiving from IA a satisfactory response to an IPA inquiry or request for additional clarification or investigation (in 2017, 19 (8%) of audited cases);
• Closed with Concerns, which means the IPA had issues with the Department’s investigation and/or analysis, but the concerns did not warrant a formal disagreement (13 (6%) of audited cases); or
• Disagreed, meaning the IPA determined that the Department’s investigation and/or analysis were not thorough, objective, and fair (8 (3%) of audited cases).

The new IPA has a different approach to the audit process in that the “Closed with Concerns” determination will no longer be used. Instead, the IPA will push back with the IA Lieutenant regarding any deficiencies identified with an IA investigation, then take it to the Chief as an appeal if the Lieutenant disagrees with the IPA. If the IPA disagrees with the Chief, he will appeal to the City Manager. Ultimately, if the IPA disagrees with the City Manager, he will close the case as “Disagree.” We discuss the number and outcomes of our appeals in Chapter 12 (Accountability Process). Appeals account for a small percentage of cases.

The IPA office receives information about the recommended discipline and has initiated a practice of addressing concerns with the level of recommended discipline.

Throughout this report, we summarize cases we review as part of our auditing of complaint investigations. We do not include in those case summaries a description of the discipline imposed. This omission is the result of legal direction to protect confidential information under state law. We regret the need for this vagueness, as the community would benefit from greater information about what conduct leads to what level of discipline. Other oversight agencies do provide this type of information. So, too, does the City, though the information includes investigations that were “Department Initiated,” not just investigations initiated by citizen complaints (it also includes civilian staff throughout the City, not just police officers). The summaries of the incidents provided by the City are also quite vague and, in at least one case, do not fully capture the allegations involved. That said, the report indicates that nine officers received suspensions – ranging from ten hours to 160 hours – whereas only two received suspensions resulting from investigations of citizen complaints.

In light of the fact that only two suspensions resulted from investigations of citizen complaints – note that the City’s report includes many more suspensions of police officers, mostly from “Department-Initiated Investigations” rather than citizen complaints – we decided it would be more beneficial to the community for us to include more detailed summaries without the discipline rather than very vague summaries that include the discipline issued. Sufficed to say, the suspensions issued correspond to cases involving serious allegations.

As with other allegations, Arrest/Detention and Search/Seizure allegations are down in 2017, following a several-year trend. However, more Search/ Seizure allegations were sustained in 2017 than in the previous four years combined.

The IPA office receives a significant number of complaints alleging that officers fail to investigate an alleged crime or fail to take action in response to a crime. Examples include the alleged failure to arrest a domestic abuser or the failure to investigate a reported crime.

Under-classifying allegations: In fact, “neglect of duty” was a seldom-utilized category, making it very difficult to track the incidence of this type of complaint or misconduct. In each year 2013-2016, the IPA office received between zero and 11 allegations categorized as “neglect of duty.” In 2016, the 11 allegations – the highest number during that period 2012-2016 – all arose out of the same incident: SJPD’s alleged failure to protect attendees at a Trump campaign event from anti-Trump protestors. Only one closed allegation was categorized as “neglect of duty” (the officer was exonerated).

The definitions of these terms in the SJPD Duty Manual are vague. “Neglect of Duty” is defined as an instance in which an officer “neglected his/her duties and failed to take action as required by Department and/or City policies or procedures and/or state or federal law.” Typically, such conduct has been combined with the “Procedure” category, defined as “[a]n allegation that an action taken by a Department member did not follow appropriate Department and/or City policies, procedures or guidelines.” The distinction is important for data purposes. In particular, there is substantial community interest in ensuring that police fulfill their primary mission: public safety.

New procedures: In contrast, in 2017, 11 allegations, contained in nine complaints, were categorized as neglect of duty; all but one of these allegations came in during the three months of 2017 after Mr. Zisser started as IPA. The increase is largely due a new screening protocol to ensure that allegations are properly categorized.

Sustained Cases: While no allegations formally categorized as “neglect of duty” were sustained in 2017, we identified some cases that could be considered “neglect of duty.”

Exonerations or “unfounded” cases: We readily acknowledge critical challenges that SJPD and its officers face that may hinder their ability to make all the arrests or respond to all the reports of crime that community members may expect them to do.

Officers are tasked with navigating the line between under- and over-policing. They are asked to exercise discretion in decisions regarding whether to arrest an individual, to avoid unnecessarily entangling an individual in the criminal justice system. The community simultaneously expects officers to be compassionate and sensitive to individual circumstances and wants officers to be responsive and enforcement-oriented.

In fact, officers are granted significant discretion in many circumstances and often simply have to articulate their rationale for deciding against enforcement.

You can download the 2017 Annual IPA report here (PDF)