Introduction

Creation of the IPA

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.

Mission of the IPA

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.

Independence of the Police Auditor

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.)

Letter from the IPA

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

 

Independent Police Auditor & Staff

Aaron B. Zisser
Independent Police Auditor
Shivaun Nurre
Assistant Independent Police Auditor
Vivian Do
IPA Senior Analyst
Telina Barrientos
IPA Analyst II
Jessica Flores
Office Specialist
Erin O'Neill
IPA Senior Analyst

Executive Summary

Introduction

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.

IPA community engagement and auditing process

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.

Use of force

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.

Crisis intervention / interactions with individuals with psychiatric disabilities

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.

Equal treatment: race, language access, and sex

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.

Arrest, detention, search, and seizure

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

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.

Neglect of duty

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.

Systemic issues

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.

Accountability Process

Introduction

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.

Methodology

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.

Discussion

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”.

Illustration 12-A: Percentage of Audits the IPA Agreed with SJPD—Five-Year Overview

The IPA office tends to express concerns about IA’s investigation regarding use-of-force cases more often than it does in other cases.

Illustration 12-B: Percentage of Audits of Force Complaints the IPA Agreed with SJPD — Five-Year Overview

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

Case Summary

Case Summary
Allegation: Withdrawing Service Weapon IPA Concern: Accuracy in Characterizing Body-Worn Camera Footage
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The complainant sped through a traffic light, and an SJPD officer followed him to a residence. Despite officers’ commands to stop, the complainant and his passenger nevertheless got out of the car and started walking from the driveway towards the house. The complainant and his passenger then exited the house as the first back-up officer arrived.

An officer asked the complainant to show him his hands, and the complainant complied. That officer nonetheless then removed his gun from its holster and held it alongside his right leg. The complainant alleged, among other things, that the officer improperly displayed his firearm.

IA initially indicated that the officer claimed during his interview with IA that the complainant did not comply with the order to show his hands and that the officer therefore withdrew his weapon. The IPA communicated to IA that body-worn camera footage seemed to indicate quite clearly that the complainant immediately complied with the command to show his hands to the officer. In response, IA amended its investigation to include an acknowledgment that the complainant did in fact comply with the order to show his hands. IA also provided additional analysis explaining that, even with the complainant’s immediate compliance with the order, the officer’s withdrawal of the firearm was still appropriate under the totality of the circumstances.

Case Summary

Case Summary
Allegation: Improper Use of Chokehold IPA Concern: Applying Deadly-Force Analysis
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The complainant described several types of force, including a choke hold. The analysis identified a number of Duty Manual sections pertaining to use of force. The force allegation was deemed exonerated. IA’s rationale was that, in light of the threat posed by the complainant, even if Officer D inadvertently choked the complainant, the force used would still be reasonable because the situation could have escalated into a deadly force encounter. Officer D attempted to de-escalate the incident and apply the carotid restraint.

The investigation failed to identify and apply Duty Manual sections L 2627 Use of Carotid Restraint and L 2628.1 Chokehold Use Prohibition; both sections require a deadly-force analysis. Per L 2628.1, a chokehold may only be used by an officer as a deadly-force option. A chokehold can only be used if deadly force can be used, not where the situation could have, but has not yet, escalated into a deadly-force encounter. This threshold for chokehold use is higher than that governing the use of the carotid restraint, which allows the restraint if deadly force may become objectively reasonable. The analysis on the use of the chokehold, however, must include an examination on whether the officer was authorized to use deadly force at the moment.

IA agreed to re-open and re-analyze the case. It applied the heightened standards demanded by the applicable sections governing the use of carotid restraints and chokeholds. The finding remained exonerated but the finding was now supported by an analysis of the facts and the applicable policies.

Case Summary

Case Summary
Allegation: Failure to Take Report of Violation of Domestic Violence Restraining Order IPA Concern: Identifying the Applicable Policy
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The complainant had a Domestic Violence Restraining Order against her ex-husband that required him to stay 300 yards away from her house. The complainant lived across the street from a shopping center, which she alleged is a maximum of 50 yards away from her house. She saw her husband at the store across the street from her house and therefore believed him to be violating the restraining order.

She called SJPD, and an officer arrived. The officer then called the complainant’s ex-husband, who admitted to being at the shopping center but said he was not there to see the complainant. The officer told the complainant that, because the shopping center was open to the public, her ex-husband could legally be there. The officer refused to take a report.

Initially, IA stated that, because the complainant’s ex-husband did not show a willful disregard for the restraining order, a violation did not occur and therefore a report was unnecessary. However, the IPA pointed to Duty Manual section L 1404, which states that a report must be taken whenever there is a violation or an alleged violation of a domestic violence restraining order. IA agreed and came to a finding of “Sustained” for the Procedure allegation, and the IPA agreed after further.

Policy Recommendation: We also routinely encounter cases in which IA does not make a determination one way or the other in “he-said/she-said” cases. IA often uses the “Not sustained” finding in such cases. Under a preponderance-of-the-evidence standard, assessments of witnesses’ credibility may be a determining factor, as the smallest amount of evidence can tip the scale one way or the other. IA investigators also often indicate that the lack of “independent witness” testimony along with the lack of video evidence requires a “not sustained” finding. In many of these cases, IA has not conducted an assessment of the parties’ or third-party witnesses’ credibility.

Policy Recommendation

Policy Recommendation
Internal Affairs Investigations – Standard of Proof and Weighing Witness Credibility
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  1. The Duty Manual (C 1723) and Internal Affairs Unit Guidelines should be revised to require that Internal Affairs investigations apply the “preponderance-of-the-evidence standard” and therefore determine whether it was “more likely than not” that the alleged conduct occurred. The standard should be applied to both citizen complaints and Department Initiated Investigations (DIIs).
  2. Any language in the Duty Manual or Internal Affairs Unit Guidelines that implies a modification of the preponderance-of-the­evidence standard should be removed. Additional modifiers imply an application of a different standard of proof (i.e., clear and convincing evidence, beyond a reasonable doubt, etc.).
  3. Internal Affairs Unit Guidelines should direct IA investigators to, and provide guidance on how to properly, assess witness credibility and clearly articulate their analysis. Guidelines should make clear that an allegation can be sustained or unfounded even in the absence of witnesses or video evidence, i.e., in “he-said/she-said” cases.
  4. Guidelines should clarify that the fact that a witness is a friend, family member, or colleague of a party does not automatically render that witness’s testimony lacking in credibility; IA investigators should receive guidance on properly assessing witness credibility based on a variety of factors, such as (non-exhaustive list) consistent or inconsistent statements, recollection, ability to see or hear or otherwise become aware of the subject of the testimony, corroboration, etc.

SJPD RESPONSE:

  1. The Department agrees with the IPA that the language in the Duty Manual and Internal Affairs guidelines should be consistent in that the standard of proof used in these administrative investigations is the preponderance of evidence standard.
  2. The Department does not agree with this recommendation. The proper standard of proof in an administrative investigation is the preponderance of evidence standard. The fact that the identified modifiers, “clearly” and “conclusively” are used in the Findings categories refers to the administrative investigation and does not change the standard of proof as no other standard is applied in these types of investigations.
  3. The Department disagrees with this recommendation. Internal Affairs investigators are hand picked by the Office of the Chief of Police and have attained the rank of sergeant. Most, if not all, of these investigators have extensive investigative experience and are well versed in the ability to assess witness credibility. Witness credibility is essential in any investigation, especially an administrative investigation where the preponderance of evidence standard is utilized to determine officer misconduct.
    This issue has been discussed at length with previous Independent Police Auditors. The same assessment of credibility must continue to be evaluated for both civilian and sworn witnesses during investigations to ensure a complete, thorough, fair, and objective investigation.
  4. Refer to C above.

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.

Case Summary

Case Summary
Allegation: Citation for Medical Marijuana IPA Concern: Proper Application of Duty Manual Policy
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The complaint alleged that, following a traffic stop, officers should not have seized medical marijuana discovered in the vehicle and should not have issued a citation for possession of marijuana. Because the SJPD Duty Manual prohibits officers from citing or arresting for possession of medical marijuana, IA recommended that the allegations be sustained; the chain of command disagreed.

The basis for the disagreement appeared to be some confusion around the law under which the driver was cited. The officer cited the driver for possession and only later indicated he cited the complainant for “open container.” However, at the time of the incident, the law under which the officer cited the driver did not cover open container. More importantly, nothing in the officer’s citation or narrative indicated the concern was open container, and the officer acknowledged that he had no basis for disbelieving the driver’s claim that the marijuana was medical marijuana.

The appeal resulted in sustained findings for the citation and seizure. (These were categorized as “Procedure” violations, and the IPA office was satisfied with this categorization in light of the fact that it was the Duty Manual, not the law, that prohibited this type of citation and seizure.)

It should be noted that the IPA office had initial concerns regarding IA’s investigation or analysis of some – though not all – of the other allegations, including search of the vehicle. But these other concerns were resolved through discussions with the Chief and IA.

Case Summary

Case Summary
Allegations: Bias-Based Policing, Language Access, Search/Seizure, Arrest/Detention IPA Concerns: Adding Allegations and Analysis
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Officers responded to investigate an assault and battery incident between a landlord and a tenant. IA sustained a number of findings against the officers, including bias-based policing and improper handling of a civil dispute in the case of Officer L and failure to provide a Vietnamese translator in the case of both officers.

On other allegations – of Arrest/Detention on the part of both officers and Bias-Based Policing on the part of Officer M – that IA did not sustain, the IPA had concerns regarding the analysis. The Chief of Police directed that further analysis be provided – including a discussion of Officer M’s conduct as it related to the alleged Bias-Based Policing, which had been omitted in the initial IA investigation. The additional analysis likewise resulted in not sustaining the allegations.

The IPA also requested that IA address additional allegations, including Search/Seizure for both officers. The Chief directed the addition of the Search/Seizure allegations, and the investigation sustained those allegations.

Use of Force

SJPD’s use-of-force statistics

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.

Case Summary

Case Summary
Allegations: Force, Procedure, Courtesy
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The owner of a local business called SJPD and claimed that a couple was breaking into a car. Officers ordered both persons to lie down on the ground prone. The female did not comply and one officer allegedly knocked her over until she was lying on her stomach. The same officer grabbed her head and “banged” her head on the ground. The officer ordered her to “get the fuck on the ground,” and told her to “shut up” multiple times.

The complainant alleged the officers made rude comments, but IA determined that one Courtesy allegation (profanity) was exonerated and the other (“shut-up”) was unfounded. One Force allegation (knocking the female to the ground) was exonerated; the other Force allegation (hitting the female’s head on the ground) was “not sustained.” However, Duty Manual section L 2605 mandates that a “supervisor personally respond to evaluate and actively participate in the investigation of the factual circumstances of a subordinate officer’s use of reportable force.”

The supervisor acknowledged that he was contacted by his subordinate regarding the force used during the incident, but did not respond because the force was minimal and there were other higher priority matters.

This Procedure allegation was sustained.

Case Summary

Case Summary
Allegations: Force, Procedure
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The complainant alleged that he was tased and hit over the head with an unknown object during his arrest. He blacked out and woke up at the hospital. After investigating, IA deemed the force allegations to be exonerated. During the incident, two officers used the Taser. The officers’ supervisor punched complainant in the face while taking him into custody.

Officers must notify a supervisor, without unnecessary delay, when reportable force is used. A supervisor must also respond to evaluate and actively participate in the investigation of a subordinate officer’s use of reportable force. A supervisor cannot conduct a review of his/her own use of force. The supervisor stated that he did investigate the Taser force by the two officers who reported to him. However, he did not think that he needed to contact his own supervisor regarding the punches that he delivered.

Two Procedure allegations were sustained. The IPA had concerns about the analysis of the force allegations, particularly on the analysis of multiple Taser activations by two officers simultaneously. We closed the case “with concerns.”

Case Summary

Case Summary
Allegations: Force, Procedure, Courtesy
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An employee of an apartment complex contacted the police because the complainant attempted to enter one of the units but was not on the lease. Several officers responded. The complainant asked the police to call an ambulance because he had a medical condition and was feeling stressed.

The complainant stated he attempted to walk to the ambulance because he was having difficulty breathing, but the officers did not want him to contact the ambulance personnel. Officers grabbed his arms and placed him against a wall, and the complainant inexplicably began hitting his head against the wall. When officers attempted to restrain him, the complainant became resistive.

One officer pointed a Taser at him and ordered him to stop or he would get tased. Other officers then took him to the ground and held him on the ground using their body weight. The complainant said that the officers used unnecessary force, were discourteous, and acted improperly by displaying their Tasers.

The first two allegations were closed as exonerated. The analysis concluded that although the officer’s display of the Taser was proper, a Procedure allegation, however, was closed as sustained because the officer failed to adequately report the Taser display, as required by Duty Manual section L 2614.

Officer-involved shootings

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.

Illustration 5-A: Number of Officer-Involved Shooting Incidents (2013-2017)

As demonstrated in Illustration 5-B, most of the officer-involved shootings involved persons of color, individuals with histories of mental health treatment, and individuals armed with something other than a firearm.

Illustration 5-B: Officer-Involved Shooting Incidents in 2017

OIS
No. 1
Race of suspect — White
Gender — Male
Deceased of injured — Injury
Armed — Vehicle
Known mental health history — Yes
CIT on scene — Yes
Number of officers who fired weapon — 3
Involved officer(s) experience — 24, 22, 21
OIS
No. 2
Race of suspect — Asian
Gender — Male
Deceased of injured — Injury
Armed — Knife
Known mental health history — Yes
CIT on scene — Yes
Number of officers who fired weapon — 1
Involved officer(s) experience — 5
OIS
No. 3
Race of suspect — Asian
Gender — Male
Deceased of injured — Deceased
Armed — Knife
Known mental health history — Yes
CIT on scene — Yes
Number of officers who fired weapon — 1
Involved officer(s) experience — 14
OIS
No. 4
Race of suspect — White
Gender — Male
Deceased of injured — Deceased
Armed — Handgun
Known mental health history — Yes
CIT on scene — Yes
Number of officers who fired weapon — 1
Involved officer(s) experience — 16
OIS
No. 5
Race of suspect — Black
Gender — Male
Deceased of injured — No injury
Armed — Handgun
Known mental health history — Yes
CIT on scene — Yes
Number of officers who fired weapon — 1
Involved officer(s) experience — 16
OIS
No. 6
Race of suspect — Hispanic
Gender — Male
Deceased of injured — Deceased
Armed — Axe
Known mental health history — Yes
CIT on scene — Yes
Number of officers who fired weapon — 1
Involved officer(s) experience — 2
OIS
No. 7
Race of suspect — White
Gender — Male
Deceased of injured — No injury
Armed — Vehicle
Known mental health history — No
CIT on scene — Yes
Number of officers who fired weapon — 1
Involved officer(s) experience — 2
OIS
No. 8
Race of suspect — Hispanic
Gender — Male
Deceased of injured — Deceased
Armed — No
Known mental health history — No
CIT on scene — Yes
Number of officers who fired weapon — 1
Involved officer(s) experience — 11

Force Complaint Statistics

Illustration 5-C: Force Complaints Received Relative to Total Complaints Received — Five-Year Overview (2013-2017)

Illustration 5-D: Force Allegations Received — Five-Year Overview (2013-2017)

Illustration 5-E: SJPD Data Dashboard on Use of Force

Illustration 5-F: Force Complaints Received Relative to Total Complaints Received (2013-2017)

 Year Total Force Allegations Total Force Complaints Total Number of Complaints Force Complaints As % of Total Complaints
2013 177 88 357 25%
2014 139 76 340 22%
2015 121 66 303 22%
2016 108 60 292 21%
2017 68 33 222 15%

Illustration 5-G: Ethnicity of Subjects in Force Allegations Closed in 2017

Ethnicities Number of persons Percentage of total persons Percentage of San Jose Population*
African American 4 11% 3%
Asian American/Pacific Islander 3 9% 32%
Caucasian 6 17% 29%
Hispanic/Latino 14 40% 33%
Native American 1 3% 1%
Other 0 0% 2%
Decline/Unknown 7 20% 0%
Total persons 35 100% 100%

* Source: U.S. Census Bureau, Census 2010

Illustration 5-H: Ethnicities of Subjects Reflected in SJPD Dashboard of Use of Force Incidents 2017

Ethnicities # of persons Percentage of total persons Percentage of San Jose population*
Hispanic 340 54% 33%
White 140 22% 29%
Black 96 15% 3%
Asian 47 7% 32%
Native American 3 0% 1%
unknown 3 0% 0%
629 98%** 98%**

* Source: U.S. Census Bureau, Census 2010
** Percentages do not total 100%

New SJPD policy on Command-level review of serious uses of force

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.

Illustration 5-I: Categories of Use-of-Force

CATEGORIES USE-OF-FORCE
CATEGORY I Any use-of-force not covered by the other categories that causes a minor injury or a complaint of pain
CATEGORY II
  • TASER deployments
  • impact weapons (not to the head),
  • OC (pepper) spray,
  • projectile impact weapons (where up to 4 rounds strike the suspect)
CATEGORY III
  • Impact weapon or projectile impact weapon strikes to the head (intentional and accidental),
  • projectile impact weapon (where more than 4 rounds strike the suspect),
  • kicks to the head,
  • Two or more officers deploy less-than-lethal force (O.C., projectile impact weapons, or TASER) on one suspect,
  • Four or more officers use reportable force on one suspect,
  • Force resulting in bone fracture,
  • Canine apprehension (dog bite),
  • Carotid restraint applied,
  • Force resulting in suspect’s loss of consciousness,
  • Hospital admission as a direct result of the force
CATEGORY IV Deadly force – That force which the user knows would pose a substantial risk of death or serious bodily injury

Community Policing

Introduction

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.

SJPD community outreach events

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.”

Officers’ interactions with community members in the field

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.

Policy Recommendation

Policy Recommendation
Community Policing and Procedural Justice
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SJPD should provide a definition, consistent with best practices, of “Community Policing” in the Duty Manual so that officers have more specific guidance regarding officers’ “community policing” responsibilities identified in the Duty Manual. Such guidance may (i) set forth a broad framework of understanding the significance of and approach to community policing, (ii) address specific examples of ways in which officers may engage in non-enforcement activities, and (iii) cohere ways in which officers can practice community policing as part of their enforcement interactions, such as crisis intervention, de-escalation, responsiveness to the community, courtesy, equal treatment, mediation, crime prevention, and procedural justice.

SJPD RESPONSE: Community policing is a philosophy based upon establishing collaborative community partnerships between the Department, community, and other stakeholders to solve community concerns. As there are a seemingly endless number of ways to create partnerships, the Department does not list, nor could it list, every possible method in the Duty Manual. Having said that, the Department is committed to creating a culture of community policing and has embraced the philosophies of 21st Century Policing, Procedural Justice, and Fair and Impartial Policing. A review of the Department’s vision statement will be conducted and elements of these philosophies will be incorporated, as we deem appropriate.

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.

Illustration 10-A: Dispositions of Courtesy Allegations Closed in 2017

Type of Dispositions # of Courtesy Allegations Received
Sustained 7
Not Sustained 24
Exonerated 26
Unfounded 44
No Finding 3
Complaint Withdrawn 1
Other 1
Total Allegations 106

Case Summary

Case Summary
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A complainant was a passenger in his cousin’s car when his cousin was stopped by SJPD. The complainant said he was unlawfully arrested for being under the influence of a controlled substance and possession of marijuana for sales. Additionally, on the way to jail, the complainant alleges that the officer was discourteous when he used profanity while speaking with his partner about an earlier call they both attended. IA agreed, stating that the officer’s profanity was unprofessional.

Case Summary

Case Summary
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A female complainant was walking early in the morning, and two officers detained her to investigate her for possible prostitution. The complainant was argumentative, so one of the officers used profanity by saying, “Don’t start that bullshit with me.” The complainant filed this complaint alleging that the officer was discourteous. IA agreed, stating that the officer’s use of profanity to control the situation was improper and unnecessary.

IA came to a sustained finding for the Courtesy allegation and the IPA agreed.

Case Summary

Case Summary
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The complainant and his landlord were in a verbal dispute. An officer responded to the scene – a three-story apartment complex where the apartment front doors open up to a common carport area. The officer told the parties that their matter was a civil dispute. The complainant told the officer that he was calling a supervisor and started walking away. The officer replied, “Alright, baby.” The complainant walked to the end of the carport and started walking up the stairs to the second story. Both parties continued to yell at each other and the officer repeatedly called the complainant a “baby” in front of a growing number of witnesses. The complainant alleged that the officer was discourteous.

Case Summary

Case Summary
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Two officers conducted a vehicle stop. After some uneventful moments during the encounter, the front passenger unexpectedly exited the vehicle and entered a nearby home. A third officer arrived on scene. At some point, the front passenger emerged from the home and became argumentative with the officers. Her brother then exited the home and became argumentative with the officers. The driver also became argumentative and physical with officers.

The third officer tried to explain to the female passenger the reason for the stop and the continued investigation. He stated to her that she and her brother could go to jail for interfering with the stop and suggested she take him inside the house. She took offense to the suggestion and told him he could not say that to her. The officer replied, “I can say whatever the fuck I want.”

Case Summary

Case Summary
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Officer C was traveling on the highway in an unmarked police car when he became involved in a traffic altercation with the complainant. The complainant was traveling slower than the speed of traffic. The complainant alleged that he and the officer engaged in non-verbal communications while on the freeway. The officer passed the complainant, traveling at speeds up to 75 MPH in a 65 MPH zone. Both parties swore at each other. The officer claimed the use of profanity was necessary to de-escalate the situation.

Youth diversion

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.

Case Summary

Case Summary
Allegation: Force
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The complainant drove his daughter to school to pick up some of her school work she had completed in her class. The daughter was informed that she was no longer enrolled as a student and she would have to wait until classes were dismissed to obtain her school work. School staff called the SJPD campus safety officer to apprehend the daughter for disrupting classes.

When the daughter entered the classroom to pick up her school work, the teacher gave her permission to take her work. About two minutes later, according to the teacher, the SJPD officer came into the classroom and took the daughter out of the classroom by one arm. The daughter attempted to break free from the officer’s control. The officer applied a takedown to obtain compliance. The daughter alleged that the officer placed her in a chokehold before performing the takedown. The daughter allegedly sustained bruises, scratches, and a swollen knee. She was cited for trespassing and delaying arrest. The complainant alleged the officer used excessive force on his daughter.

In his interview, the officer described the call he received from the school as “frantic.” The officer said that the daughter was not being vocal but “by her mere presence, she was disturbing the class” because the teacher had to stop her lesson to interact with the daughter. The officer felt he could resolve this with a low-level warning. However, once they walked outside, the daughter became physically resistive. The officer determined that she was in violation of trespassing on school grounds.

He braced her against the wall and told her to “calm down.” She responded with verbal abuse and tried to kick him. In order to gain control and place her into handcuffs, the officer said that he picked her up and “gently set her down on the ground.” Once she was on the ground, he placed a knee on her upper back and called another officer for assistance in placing handcuffs on her. The officer stated he did not have a supervisor come to the scene because it was not reportable use of force.

IA determined that the officer acted appropriately. The analysis acknowledged significant discrepancies in the force descriptions provided by the daughter and the officer.

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.

Equal Treatment: Race and Language Access

Bias-based policing

Illustration 7-A: Biased-Based Policing (BBP) Complaints Received (2013-2017)

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.

Illustration 7-B: Dispositions of Bias-Based Policing Allegations (2013-2017)

Type of Dispositions Dispositions of Bias-Based Policing Allegation
2013 2014 2015 2016 2017 Total %
Sustained 0 0 1 0 2 3 1%
Not Sustained 0 2 1 1 1 5 2%
Exonerated 0 0 0 0 0 0 0%
Unfounded 38 29 47 53 55 222 88%
No Finding 3 1 4 4 1 13 5%
Complaint Withdrawn 0 1 1 1 2 5 2%
Other 0 1 0 0 3 4 2%
Total Allegations 41 34 54 59 64 252 100%

Case Summary

Case Summary
Allegations: Bias-Based Policing, Courtesy, and Procedure
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The complainant, a Black male, was riding his bike to work in the early morning hours when he was pulled over for not having a front bike light. The complainant immediately put his hands up. Officers had the complainant push his bike away and then approached them. When the complainant asked officers about their conduct, one officer responded that, because of the Black Lives Matter movement, officers needed to be more concerned for their safety.

As the interaction proceeded, another officer commented to the complainant that it was good he was working, as a lot of people just sit around waiting for a check from the government. The complainant believed the comment was based on a stereotype about Black people relying on welfare.

As the interaction was coming to an end, the complainant indicated he was going to file a complaint. The BWC footage documented the lead officer directing the newer officer to write a citation to “cover you.” The complainant believed that he was treated unfairly and that the interaction was based on race.

IA deemed all allegations unfounded. The IPA pushed back on the analysis supporting those findings.

IA’s analysis failed to address one key fact – that the complainant was Black. IA did not critically examine whether race was a factor (in whole or in part) for the officer. The IPA noted that we did not have concerns about the officer referring to his experience and “recent incidents” regarding assaults on police officers, but we did have concerns when he used highly polarizing incidents associated solely with Black men to do so.

IA agreed to re-analyze this allegation and interviewed the officer. The allegation was once again deemed unfounded.

IA asserted that the second officer’s comment regarding the complainant working was made when the complainant indicated he was employed at a store. It is thus unclear why the officer would find it appropriate to commend the complainant’s employment at a store and yet mention individuals receiving government assistance. The analysis also failed to address the general stereotype that Black persons are more likely to be on government assistance than other ethnicities.

IA agreed to re-analyze this allegation and interviewed the officer. The officer stated that was unaware of the stereotype that receiving government benefits was associated with African Americans. The allegation was once again deemed unfounded.

The IPA requested that IA add an allegation to determine whether the first officer acted properly when he issued a citation. We had concerns that the citation was improperly issued because the complainant mentioned that he would file a complaint. IA agreed to add a procedure allegation. It determined that issuing the citation was within the officer’s discretion. The allegation was closed as exonerated.

The IPA closed this complaint as disagree. We contended that the re-analysis failed to support the findings of unfounded.

Immigration Issues

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.

Language Access

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.

Case Summary

Case Summary
Allegations: Failure to Provide Translator and Bias-Based Policing
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Officers responded to a home regarding an alleged battery. The altercation stemmed from a dispute over returning a house key in exchange for a rental deposit. Allegations included that the officers racially profiled the landlord because she was Vietnamese, refused to listen to her account of what happened, and did not get a Vietnamese translator after the landlord requested one several times.

Failure to Provide Translator

This allegation was deemed sustained against both officers. Although Officer X initially called for a Vietnamese-speaking officer, he cancelled the request when a neighbor arrived on scene and began translating. The landlord did not feel that the neighbor was properly conveying her side of the story and asked again for a translator. At one point, the neighbor himself indicated that a Vietnamese-speaking officer should come. The landlord was so desperate for translation help she called 911 to request a Vietnamese-speaking officer. The officers acknowledged the procedure to assist with LEP citizens. Officers should have accessed the service provider for the Language Assistance Plan.

Bias-Based Policing

This allegation was deemed sustained against Officer X. The BWC footage revealed Officer X describing the landlord using several unflattering racial stereotypes related to Asians before he saw her and subsequently using other stereotypes related to Asians. The officer handcuffed the landlord, threatened jail, and forced her to return a rental deposit to her tenant during a civil dispute. The allegation against Officer Y was initially “unfounded.” The IPA believed this initial analysis failed to consider some BWC footage that could tend to show bias. And the investigation overlooked Officer Y’s willing participation in the dialogue that seems to validate his own beliefs regarding Officer X’s biased statements. The IPA requested, and IA agreed, that additional analysis was warranted. IA then returned a finding of “not sustained” against Officer Y.

Case Summary

Case Summary
Allegation: Failure to Provide Translator
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A child was wandering in the neighborhood unsupervised and a neighbor called SJPD. Responding officers had contact with multiple persons at the scene. The child’s relative spoke limited English and was watching an infant. Officers approached several neighbors with questions; one neighbor who only spoke Spanish enlisted her teenage daughter to translate.

It was determined that the child’s relative had an outstanding warrant. Officers told him to hand the infant to the mother. Force was used when it appeared to the officers that he was hesitating. The child’s mother was arrested for battery on an officer and resisting arrest.

The mother complained that officers did not provide a translator and used a neighbor for translation. The child’s relative complained that he was kicked by the officers while he was holding the infant.

The allegation was not sustained against two officers, neither of whom spoke Spanish. The IA analysis acknowledged that two neighbors helped the officers by translating English into Spanish, and stated that “the Language Access Policy does not preclude officers from using family, friends, or bystanders for interpretation, but rather states that department members should avoid such.”

Internal Affairs’ analysis: The analysis failed to note that the LAP allowed family or friends to translate only in exigent circumstances, and there was no description of exigency.

IA did not provide a re-analysis. Instead, it asserted that not every interaction with an LEP individual would require a translator. If so, “it would mean that every field contact involving LEP persons to include pedestrian and traffic stops, would require a translator.”

The IPA responded that, as currently written, the LAP protocol does apply to pedestrian and traffic stops.

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.

Policy Recommendation

Policy Recommendation
Language Access
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  1. The Duty Manual should incorporate the SJPD Language Access Plan (LAP), with the modifications described below.
  2. SJPD officers who make contact with LEP individuals should document the steps taken to comply with providing language assistance. Any failure to follow these steps due to an exigency should also be documented. These steps include (modified from the current LAP):
    1. The officer identifies the language of the LEP person through that person’s self-identification of their language or identifying the language by using the “I Speak” proficient form.
    2. When the officer requests an interpreter, the dispatcher shall contact an on-duty certified interpreter. Dispatch can search, either in the CAD or via radio inquiry, those sworn department members who are language certified and their language of proficiency. Once a certified officer agrees to respond to interpret, the dispatcher will place them on the event.
    3. Only if a qualified on-duty officer is not available to assist, the officer shall then call the contracted language interpretation services for the SJPD and follow the enumerated steps for oral interpretation.
  3. SJPD should ensure that the policy on language access provides that officers shall not, other than in exigent circumstances, use family, friends, or bystanders for interpretation. The policy should be revised as follows: “Barring exigent circumstances, Department members should shall not use minor children to provide interpreter services.”

SJPD RESPONSE: The SJPD developed an elaborate Language Access Plan. The current Duty Manual section regarding the Language Access Plan will be expanded upon to reflect the greater detail contained in the stand-alone Language Access Plan.

Equal Treatment: Sex

Introduction

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.

Sexual violence

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.

Policy Recommendation

Policy Recommendation
Receiving Reports of Sexual Violence
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The Duty Manual should clearly address the report-taking process for sexual assault reports made at the Police Administration Building (PAB). THe policy should require and outline clearly a trauma-informed process that supports privacy and dignity for the individual making the report.

SJPD RESPONSE: The Department has a Main Lobby Procedural Manual which states Sexual Assault victim interviews “most likely will be conducted in the Witness Center.” This procedural manual will be modified to contain the work “shall” and will incorporate the use of the on-call Sexual Assault investigator, when practical.

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.

Domestic violence

Illustration 8-A: Complaints IPA Closed Involving Domestic Violence (2013-2017)

Trend 2013 # 2014 # 2015 # 2016 # 2017 #
Domestic Violence 19 12 24 18 23

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.

Case Summary

Case Summary
Allegation: Failure to Take a Report of a Violation of a Restraining Order
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The complainant had a Domestic Violence Restraining Order against her ex-husband that required him to stay 300 yards away from her house. The complainant lived across the street from a shopping center, which she alleged is a maximum of 50 yards away from her house. She saw her husband at the store across the street from her house and therefore believed him to be violating the restraining order. She called SJPD, and an officer arrived. The officer then called the complainant’s ex-husband, who admitted to being at the shopping center but said he was not there to see the complainant. The officer told the complainant that, because the shopping center was open to the public, her ex-husband could legally be there. The officer refused to take a report. Duty Manual section L 1404 states that a report must be taken whenever there is a violation or an alleged violation of a domestic violence restraining order.

Case Summary

Case Summary
Allegations: Failure to Investigate and Take a Report
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The complainant called 911 in the afternoon to report a domestic violence incident involving himself and his girlfriend, with whom he lived and had children. He also informed dispatch of a firearm in the residence, though he indicated it was not used during the incident.

Officers were dispatched to other priority calls and could not respond to the complainant’s call for service. Hours later, the subject officer called the complainant and told him the police were on the way and apologized for the delayed response.

The complainant stated he told the officer it was late, the kids were asleep, and his girlfriend had left. He told the officer there was no point for the police to show up because there was no one to talk with and he already gave his statement. The officer told him if he wanted to, he could file a report at a later date.

The officer stated she gave the complainant the option of coming outside to talk, but she said that he refused. The officer did not ask specific questions about the incident and did not confirm if the elements of a domestic violence crime had occurred. She did not explain the option of an Emergency Protective Restraining Order.

IA found – and the chain of command concurred – that the officer did not conduct an “appropriate investigation,” as required under policy and state law in any report of domestic violence. The officer should have gone to the residence rather than merely call and should have asked questions about the incident. Going to the residence would have allowed the officer to confirm whether there were visible physical injuries. The presence of the firearm in the home was another significant factor that IA cited. The officer also should have taken a report of a domestic violence incident.

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.

Crisis Intervention / Interactions with Individuals with Psychiatric Disabilities

Use of force

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.

Illustration 6-A: Officer-Involved Shootings in 2017 Involved Individuals with History of Mental Health Concern

Number History of Mental Illness? CIT at Scene? Injury/Death
1 yes yes Injury
2 yes yes Injury
3 yes yes Deceased
4 yes yes Deceased
5 yes yes No Injury
6 yes yes Deceased
7 no yes No Injury
8 no yes Deceased

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.

Policy Recommendation

Policy Recommendation
Crisis Intervention Training
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SJPD should require officers to undergo periodic refresher Crisis Intervention Training. Such training should address relevant updates to the policy manual (including de-escalation), developments in best practices, and changes in available community-based resources and services.

SJPD Response: To provide SJPD officers with a periodic refresher, the Department’s CIT Coordinator plans on putting together a bi-monthly training bulletin on different mental illnesses along with resources, etc. to provide to Department members.

Improper mental health holds

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.

Case Summary

Case Summary
Allegation: Improper 5150 Mental Health Hold
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While at a hospital, a complainant tried to hit a nurse and started screaming profanities at the hospital staff. She was wheeled out in a wheelchair to a bus stop outside of the hospital. Once she got out of the wheelchair, she started walking into traffic. The hospital security guard was able to pull her back to the sidewalk. Police arrived and the complainant admitted to being on medication but said that she had not taken her medication for a while. Based on these facts, the SJPD officers believed the complainant was a danger to herself and placed her on a 5150 mental health hold. The complainant argued that this hold was improper. Based on the information above, however, IA determined that the subject officers properly concluded that the complainant was a danger to herself.

Case Summary

Case Summary
Allegation: Failure to Place 5150 Mental Health Hold
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A complainant stated that SJPD responded to her house on six different occasions within four months. Each call was made in response to a mental health crisis concerning her adult son. The officers came out to her house but never placed her son on a 5150 hold. The complainant believes that this response was improper. The complainant believed that based on her son’s erratic actions while off his medication for schizophrenia, mixed with his drug use, he was a danger to himself and others. IA concluded that although the complainant’s son had a mental illness, he was not a danger to himself, a danger to others, or gravely disabled. Therefore, he did not meet the requirements of an involuntary 5150 mental health hold. IA came to a finding of “Exonerated” for each allegation.

Policy Recommendation

Policy Recommendation
Transportation of Individuals with Psychiatric Disabilities
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The Duty Manual should provide guidance to officers that, under normal circumstances, an individual who is resisting being detained for a 5150 W&I commitment for psychiatric evaluation – for individuals who pose an immediate threat of harm to themselves or others because of a psychiatric disability – should be transported to Emergency Psychiatric Services, not to the jail. The policy should make clear that officers should, whenever appropriate, exercise their discretion to decline to cite and/or arrest the individual for the crime of resisting or obstructing police in the discharge of their duties and provide for transportation by emergency/ fire services rather than by police.

SJPD RESPONSE: The SJPD will work to create a training bulletin for officers to reiterate the Department’s philosophy on handling situations with persons suffering from mental illness. In situations where the officer is trying to place the individual on a 5150 hold and the only possible crime associated with the incident is resisting, delaying, or obstructing arrest (148 PC), then officers will be encouraged to transport the subject, or facilitate a medical transport of the subject, to EPS, rather than the County Jail, when practical. If the subject suffering from mental illness also engages in criminal activity or physically assaults an officer (69 PC), then the option of booking the subject into the county jail and notifying the jail staff that the subject needs a medical evaluation will be available to the officers.

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.

Case Summary

Case Summary
Allegation: Failure to transport to EPS
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A complainant stated that he was homeless and schizophrenic. He called 911 and requested an ambulance to take him to the hospital or Emergency Psychiatric Services (EPS) because he was hearing voices and needed to see a doctor. An officer responded but cancelled dispatch’s request for an ambulance and refused to transport the complainant in his patrol car to EPS. The officer said he was “not a taxi.”

The complainant was arrested a few days later for refusing to leave a business after being asked. The complainant said that he was hearing voices and was unable to physically move. After the complainant was arrested and booked into jail, jail staff transported the complainant to EPS. The complainant alleged that had he been transported to EPS as originally requested, he could have avoided being arrested.

IA concluded that since the complainant did not meet the 5150 criteria during his initial call for service, the officer acted appropriately when he did not provide the complainant transportation to EPS. Since there is no Duty Manual section currently guiding officers towards any other course of action, IA came to a finding of “Exonerated.” The IPA agreed for the same reason but developed a recommendation based on this incident (see below).

Policy Recommendation

Policy Recommendation
Providing Mental Health Resources
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SJPD should require in the Duty Manual that officers provide information, such as pamphlets, regarding available and accessible mental health resources to individuals who are experiencing mental health crises or who may have other mental health needs but who do not meet the criteria for an involuntary mental health hold. SJPD should work with the County’s behavioral health agency, other providers, and appropriate advocacy organizations to assemble a resource list for inclusion in materials provided to individuals in the community.

SJPD RESPONSE: The San José Police Department agrees more information should be provided to officers regarding the mental health resources available to individuals who are experiencing mental health crises or who may have other mental health needs, but who do not meet the criteria for an involuntary mental health hold. The Crisis Management Unit will work with Research and Development to create a training bulletin for the officers.

Bias-based policing and rude officer conduct

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.

Case Summary

Case Summary
Allegation: Rude Officer Conduct and Bias-Based Policing (Mental Disability)
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The complainant called SJPD stating that she had been having ongoing issues with her neighbor in her apartment complex. The officer responded and spoke to the complainant. The officer raised his voice and said, “You’re a nosy busy body. Mind your own business. Stay in your apartment.” Before leaving, the officer walked by the other neighbor and said, “I don’t care if you have throwing knives. She’s crazy.” The complainant called IA and alleged that the officer was discourteous.

Body-worn camera footage corroborated the complainant’s allegations of the officer’s discourteous conduct and further revealed that the officer told the other neighbor, in reference to the complainant, “She’s crazy.” IA agreed that the officer’s tone of voice, demeanor, and word choice were unprofessional. The Department came to a “Sustained” finding for the Courtesy allegation and added a Bias-Based Policing allegation for making derogatory statements about the complainant’s perceived mental disability. IA also sustained the Bias-Based Policing allegation.

Case Summary

Case Summary
Allegations: Courtesy and Inadequate Investigation
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The complainant was involved in a verbal dispute with another woman at St. James Park regarding their relative positions in a bread line. The complainant alleged that the other woman called her an insulting name, so the complainant responded by slapping her. The other woman then hit the complainant with a shopping cart. SJPD officers arrived, and the complainant was arrested. She complained that officers did not properly investigate or take witness statements that would have proven she was not the primary aggressor. The complainant also stated that she told one of the officers that she had “mental issues” and that the officer responded, “So do I.”

The IA investigation resulted in sustained findings against the officers for the Courtesy allegation and a Procedure allegation for the lack of investigation.

Body-worn cameras

Introduction

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.

Impact of implementation of body-worn cameras

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.

Failure to activate body-worn camera

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.

Case Summary

Case Summary
Allegation: Failure to Activate BWC
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A complainant alleged that a person whom she has had on-going problems with tried to intentionally strike her with his car. She was not injured, but she called the police to investigate and take a report. The complainant alleged that the responding officer was discourteous and failed to complete a thorough investigation.

The IA investigation revealed that the officer failed to activate his Body-Worn Camera during the incident. The complainant would not have known this fact, so IA proactively added a Procedure allegation for failure to activate Body-Worn Camera and came to a finding of “Sustained.” IA exonerated the allegation of failing to complete a complete investigation and came to a finding of “Unfounded” for the Courtesy allegation.

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.

Policy Recommendation

Policy Recommendation
Body-Worn Cameras
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SJPD should revise its policies to require officers assigned to the Police Administration Building (PAB) to activate their body-worn cameras (BWC) during interactions with members of the public, particularly when such officers are receiving victim or witness reports regarding a possible crime.

SJPD RESPONSE: The San José Police Department agrees with this recommendation. Our Department policy on Body Worn Cameras (BWCs) is currently being revised to include the activation of BWCs by Main Lobby personnel while “assisting a visitor or member of the public while assigned to the Main Lobby.”

Overview of IPA Auditing Process and Statistic

Step One: Intake

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.

Illustration 4-A: Complaints Received — Five-Year Overview (2013-2017)

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

Illustration 4-C: IPA and IA Intakes — Five-Year Overview (2013-2017)

IPA Intake 51% 51% 39% 54% 56%
IA Intake 49% 49% 61% 46% 44%

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.”

Illustration 4-D: Complaints Received by Individual Officers — Five-Year Overview (2013-2017)*

Officers Receiving 2013 2014 2015 2016 2017
1 Complaint 218 205 198 200 176
2 Complaints 53 58 49 64 39
3 Complaints 18 11 19 14 7
4 Complaints 9 8 6 5 2
5 Complaints 0 3 2 1 1
Total Number of Officers Receiving Complaints 298 285 274 284 225

*Subject officer names are not retained in complaints classified as Non-Misconduct Concern, Policy, or Withdrawn.

Demographics of complainants

Illustration 4-E: Complaints Received in 2017 — by Complainant Ethnicity*

Ethnicities From Complaint Intakes Total Complaints % of San Jose Population**
# %
African American 32 14% 3%
Asian American/Pacific Islander*** 17 7% 32%
Caucasian 44 19% 29%
Hispanic/Latino 71 31% 33%
Native American 6 3% 1%
Other 4 2% 2%
Decline/Unknown 54 24% 0%
Complainant Responses 228 100% 100%

*Information on ethnicity of complains is obtained during intake and from voluntary surveys.

Not all complainants reside within the City of San Jose; however, all complainants are members of the public.

**Source: U.S. Census Bureau, Census 2010

***For the purpose of this illustration, Filipino and Vietnamese are included in Asian/Pacific Islanders.

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.

Step Two: Classification

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

Illustration 4-G: Allegations Received — Five-Year Overview (2013-2017)

Step Three: The Department Investigation

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.

Step Four: Department makes a finding

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.

Illustration 4-I: Dispositions of Allegations Closed in 2017

Type of Dispositions Dispositions of Allegations
AD BBP C CUBO F ND P SS WP Total %
Sustained 0 2 7 0 0 0 58 4 0 71 10%
Not Sustained 0 1 24 0 6 0 40 3 0 74 11%
Exonerated 70 0 26 2 58 1 138 24 0 319 46%
Unfounded 3 55 44 4 20 0 41 0 0 167 24%
No Finding 1 1 3 0 4 0 12 1 0 22 3%
Complaint Withdrawn 0 2 1 0 1 0 16 0 0 20 3%
Other 2 3 1 1 3 0 13 0 1 24 3%
Total Allegations 76 64 106 7 92 1 318 32 1 697 100%

Legend of Allegations:

AD: Arrest or Detention; BBP: Bias-Based Policing; CUBO: Conduct Unbecoming an Officer; C: Courtesy; F: Force; ND: Neglect of Duty; P: Procedure; SS: Search or Seizure

The Sustained Rate

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

Illustration 4-J: Complaints Closed with Sustained Allegations—Fiver-Year Overview (2013-2017)

Year Conduct Complaints Sustained Conduct Complaints Closed Sustained Rate
2013 18 202 9%
2014 25 253 10%
2015 19 304 6%
2016 29 275 11%
2017 37 226 16%

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.

Illustration 4-K: Types of Sustained Findings by the Department (2013-2017)*

Year Type of Allegations Sustained
AD BBP C CUBO F ND P SS Total
2013 0 0 3 5 0 0 27 0 35
2014 0 0 6 3 1 0 31 1 42
2015 0 1 3 7 0 0 20 1 32
2016 0 0 2 1 1 0 32 1 37
2017 0 2 7 0 0 0 58 4 71
0 3 21 16 2 0 168 7 217

*Excludes Department-Initiated Investigations

Step Five: IPA audit

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.

Illustration 4-L: Issues reviewed During IPA Audit

ISSUES REVIEWED DURING IPA AUDIT
Timeliness/tolling Was the investigation completed in a timely manner?
Classification Was the case properly classified?
Presence/absence of allegations Do the listed allegations adequately capture the concerns voiced by complaint?
Presence/absence of supporting documentation If pertinent, did the investigator obtain and review documentation such as:

*CAD (SJPD Computer-Aided Dispatch logs)

*Medical records

*Photographs

*Police reports/citations

*TASER activation logs

*Use of force response reports

*Body-worn camera footage

Presence/absence of interviews conducted by Internal Affairs Witnesses – what efforts were taken to identify and contact witnesses?

Witness officers – what efforts were taken to identify and interview officers who witnessed the incident?

Subject officers – what efforts were taken to identify and interview subject officers?

Presence/absence of logical objective application of policy to the facts What is the policy/Duty Manual section that governs the conduct in question?

Is this authority applicable to the case or is other authority more pertinent?

Does the analysis apply all the factors set forth in the authority to the facts?

Presence/absence of objective weighing of evidence  What weight was given to officer testimony? Why?

What weight was given to civilian testimony? Why?

Does the analysis use a preponderance standard?

Does the analysis logically address discrepancies?

 

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).

Step Six: IPA appeal process

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.

Step Seven: Officer discipline

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

Illustration 4-M: Total Discipline Imposed on Officers by the Department (2013-2017)

Illustration 4-O: Discipline Imposed by the Department (2013-2017)*

Type of Discipline 2013 # of Times 2014 # of Times 2015 # of Times 2016 # of Times 2017 # of Times
Training and/or Counseling 15 20 16 17 12
Documented Oral Counseling and/or Training 2 6 3 10 21
Letter of Reprimand 2 1 0 1 5
10-Hour Suspension 0 0 1 0 1
20-Hour Suspension  0 1 0 1 0
40-Hour Suspension 0 1 0 0 1
80-Hour Suspension 0 0 0 1 0
120-Hour Suspension 1 0 0 0 0
160-Hour Suspension 1 0 0 0 0
Settlement Agreement 0 0 0 0 1
Termination** 2 0 2 0 0
Total Discipline Imposed 23 29 22 30 41

*Data Provided by SJPD
**Included Transfers, Resignations, Settlement Agreements, and Terminations

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.

Arrest, Detention, Search, and Seizure

Introduction

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.

Illustration 9-A: Arrest/Detention (A/D) Complaints Received (2013-2017)

Illustration 9-B: Search/Seizure (S/S) Complaints Received (2013-2017)

Illustration 9-C: Arrest/Detention and Search/Seizure Allegations Received (2013-2017)

Allegations Received 2013 2014 2015 2016 2017
# % # % # % # % # %
Arrest or Detention 74 9% 79 10% 91 13% 102 14% 52 9%
Search or Seizure 80 10% 65 8% 50 7% 38 5% 34 6%

Illustration 9-D: Dispositions of Search/Seizure Allegations Closed—Five-Year Overview (2013-2017)

Type of Dispositions Disposition of Search or Seizure Allegation
2013 2014 2015 2016 2017 Total %
Sustained 0 1 1 1 4 7 2%
Not Sustained 1 3 3 7 3 17 6%
Exonerated 50 60 48 36 24 218 74%
Unfounded 11 4 8 0 0 22 7%
No Finding 2 6 5 4 1 18 6%
Complaint Withdrawn 1 4 0 0 0 5 2%
Other 1 0 5 1 0 7 2%
Total Allegations 66 77 70 49 32 249 100%

Illustration 9-E: Dispositions of Arrest/Detention Allegations Closed—Five-Year Overview (2013-2017)

Type of Dispositions Dispositions of Arrest or Detention Allegation
2013 2014 2015 2016 2017 Total %
Sustained 0 0 0 0 0 0 0%
Not Sustained 1 1 0 2 0 4 1%
Exonerated 43 81 75 78 70 347 85%
Unfounded 1 2 6 3 3 15 4%
No Finding 2 4 9 3 1 19 5%
Complaint Withdrawn 1 2 0 1 0 4 1%
Other 1 0 5 10 2 18 4%
Total Allegations 49 90 95 97 76 407 100%

Case Summary

Case Summary
Allegations: Warrantless Search of Residence and Seizure of Property
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SJPD officers responded to a residence for a welfare check. The reporting party stated that a woman was in the residence and being held there against her will by a male armed with a machete.

Once the officers arrived at the house, they knocked on the door and a male answered the door. The female told the officers that she had been inside the residence for five days and the male had beaten her, strangled her, and threatened to kill her. The female also immediately handed the officers a bag of narcotics that she alleged the male told her to hide for him.

Officers saw a machete in plain view between the couch and the wall. An officer then looked for more weapons under couch cushions, under furniture, and in containers. Another officer picked up a notebook that was in plain view on the couch, thinking that it would indicate drug transactions.

IA concluded that both the search of the apartment for more weapons and the search of the complainant’s notebook were improper. The search of the apartment required consent, a search warrant, or another search authority, such as probation or parole. Although the notebook was in plain view, the contents of the notebook were not.

IA came to a “Sustained” finding for the two officers regarding the Search/Seizure allegations.

This case highlights the public safety implications of unconstitutional searches and seizures, as officers risk having important evidence of criminal conduct excluded from a prosecution, thus potentially weakening or even undermining the case.

Case Summary

Case Summary
Allegations: Search of Residence and Improper Handling of Civil Dispute
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Officers responded to investigate an assault and battery incident between a landlord and her tenant. Officer A spoke with the tenant, who initially indicated she did not wish to press charges but wanted her $650 deposit back. Officer A later spoke with the landlord, who filed the complaint, telling her she can either return the deposit money to the tenant or go to jail for assault and battery. The tenant then changed her mind and told him she would want to press charges if she did not receive her deposit back.

Officer A allowed the landlord to go inside her house to retrieve the rental deposit – she began to make a check out for the deposit. Officer A entered the house through the closed front metal screen door without knocking and/or announcing himself. Officer A insisted that the landlord had to pay cash rather than write a check. The officers placed her into custody for assault and battery – he and Officer B handcuffed her and placed her in Officer A’s patrol car. A neighbor brought over the money, the tenant indicated she no longer wished to press charges, and the landlord was un-handcuffed and released.

While the allegations of Arrest/Detention were not sustained against the officers, Officer A was found to have not followed proper procedure in handling a civil dispute, (by becoming involved in how the deposit should be paid back.) Both officers were also found to have unlawfully entered the home by either failing to knock and announce or entering without a legal justification, e.g., consent or a warrant.

Case Summary

Case Summary
Allegations: Seizure of and Citation for Medical Marijuana During Traffic Stop
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Officers conducted a vehicle stop on the complainant, who alleged, among other violations, that he should not have been issued a criminal citation for possession of medical marijuana and that officers should not have seized his marijuana. IA found that the citation and seizure were improper under a Duty Manual section prohibiting citation or arrest for possessing or transporting small amounts of medical marijuana.

The officer did not doubt the complainant’s claim that the marijuana was for medical purposes and never asked the driver to produce a medical marijuana ID card. The officer later claimed that he cited the driver for having an open container of marijuana and using marijuana in a manner that endangered others, though the citation did not identify the laws prohibiting such conduct and did not indicate these concerns.

Neglect of Duty

Introduction

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.

Illustration 11-A: Neglect of Duty Allegations Received (2013-2017)

Allegations Received 2013 2014 2015 2016 2017
# % # % # % # % # %
Neglect of Duty 7 1% 7 1% 0 0% 11 1% 11 2%

Methodology

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.

Policy Recommendation

Policy Recommendation
Internal Affairs – Classifying Allegations of Misconduct
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SJPD should establish a protocol to improve the categorization of allegations. In particular, “Neglect of Duty” allegations should be better distinguished from “Procedure” allegations

SJPD RESPONSE: The Department disagrees with this recommendation and disagrees that the definitions of Neglect of Duty and Procedure are vague. As identified and defined by the IPA above, a Procedural allegation is based on the complainant’s alleged violation of Department and/ or City policies, procedures, or guidelines by a Department member. Neglect of Duty cases are more serious in nature and not only involve a potential violation of Department and/or City policies or procedures, but also include state or federal law. Many times, the Office of the Chief makes this determination based on the information and evidence known at the time the allegation is brought to the Department’s attention. This is often done by reviewing Body Worn Camera footage or other investigative means in determining the severity of the alleged conduct.

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.”

Case Summary

Case Summary
Allegation: Failure to Take a Report on a Hate Incident
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At approximately 11:00 am, the complainant was confronted by another man who began to yell at him. The man asked him if he was American and why he was not driving an American car. The man told the complainant to go back to where he came from. The man also said multiple times, “Do you think I will beat you up?” The complainant called 911, described the encounter, and indicated the man was threatening him. There was a delay in response by officers, and the complainant was advised to wait for officers at his home. At almost 5:00 pm, officers went to the complainant’s home but did not take a report.

The Hate Crime Policy provides that officers are required to take an informational crime report regarding any “non­criminal act directed at any person or group, motivated in whole or in part, by the victim’s actual or perceived race, color, religion, ancestry, national origin” or other classifications. Such an act occurs “when a bias exists towards a person . . . with the apparent intention to . . . [h]arass, intimidate, retaliate, or create conflict.” Reports are to be taken because of the potential for recurrence or escalation.

Case Summary

Case Summary
Investigating Accidents Allegation: Failure to Investigate Injury Accident
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The complainant witnessed an accident in which a truck struck a bicyclist, who was transported to the hospital. The complainant indicated that officers did not respond to take a report. Several witnesses called 911 to report the accident and indicated the bicyclist was injured. The bicyclist also indicated to Dispatch that his ribs hurt.

The subject officer met with the bicyclist at the hospital emergency room. The bicyclist reported experiencing pain in his foot resulting from being run over by a vehicle’s tire. The bicyclist indicated he did not want a report because he had the driver’s information and was only concerned about his bicycle. The officer indicated to IA that neither he nor any other officers responded to the scene of the accident itself.

The Duty Manual requires an investigation and a report when an accident occurs, causes an injury, and results in immediate hospitalization. IA found that the officer did not conduct an investigation or file a report.

Case Summary

Case Summary
Allegation: Failure to Take a Report of a Non-Injury Accident
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The complainant came to the SJPD main lobby to request a report regarding a non-injury traffic collision that had occurred earlier in the day. The officer did not provide her with any paperwork or information to document the accident.

Case Summary

Case Summary
Citizen’s Arrest Allegation: Failure to Make a Citizen’s Arrest
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The subject officer responded to a call regarding a disturbance at a hotel. The security guard told the officer that he had encountered an intoxicated individual in the hotel and attempted to remove the person from the hotel. The individual struck the security guard in the face.

When the officer arrived, he found the individual handcuffed and being detained by the security guard. The guard told the officer he wished to make a citizen’s arrest.

The officer documented the report but did not indicate that the guard wished to press charges, nor did he indicate that the guard wished to make a citizen’s arrest. The officer did not cite or arrest the individual, who was released to a friend.

Case Summary

Case Summary
Allegation: Failure to Make a Citizen’s Arrest
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A landlord alleged that her tenant punched her on the side of her cheek. The landlord told the officer that she wanted to press charges against the tenant for the assault. When the officer spoke to the tenant, the tenant denied hitting the landlord and alleged that he was, in fact, the victim. He showed the officer two scratches on his face that he received from the landlord and alleged that the landlord went into the office and hit herself in the face. The tenant said that he wanted to press charges against the landlord for assault. Ultimately, the officer cited the tenant for assault and did not cite or arrest the landlord.

Duty Manual section L 3503 states that if an officer decides not to arrest a person after requested, the officer must document the allegations and factual circumstances bearing on the officer’s determination to refuse to make the arrest. The Department came to a finding of “Sustained” for failing to accept a citizen’s arrest and/or documenting the reasons for refusing to accept the citizen’s arrest.

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)