By Alex Emslie
Calls for a higher power to intervene in San Francisco’s criminal justice system have reignited with the revelation last week that a second batch of police officers traded racist and homophobic text messages, even as the city reeled from a first batch, revealed last year, replete with racial slurs and violent language about African-Americans.
And exactly how the Police Department notified the District Attorney’s Office that new messages indicating racial bias were recently recovered from officers’ personal cellphones has prompted the latest round of public bickering between Police Chief Greg Suhr and District Attorney George Gascón.
That’s because prosecutors are required to notify defendants of exculpatory evidence, or evidence that tends to show a defendant is not guilty of a crime for which he or she is charged, under the 1963 U.S. Supreme Court decision in Brady v. Maryland. That includes evidence that an arresting officer may have acted out of bias, hence the great interest from the legal community in racist text messages from police officers.
“Every time an officer is deemed to engage in behavior that involves moral turpitude — an officer is a thief, an officer’s a liar, or if an officer engages in racist or sexist behavior — that officer has to be put on a list,” said retired Superior Court of California Judge LaDoris Cordell. “Basically, Brady officers really become useless.”
The Brady notification process is anything but simple, though, largely because peace officer personnel information is kept so secret in California that not even prosecutors have direct access to it.
Suhr laid out the process that SFPD’s Brady Unit followed regarding the latest text messages in an April 4 letter to Gascón, arguing that the department made the required notifications, and it was up to prosecutors to either file a motion or work with Police Department to review the personnel files in question.
But Gascón has said his office had no way of knowing that bigoted texts were buried in tens of thousands of pages of records seized from officers’ personal cellphones as part of an internal sexual assault investigation of Officer Jason Lai. To avoid future oversight, Gascón suggested Suhr make the existence of such messages public from the outset.
Senior American Civil Liberties Union attorney Alan Schlosser agreed.
“He [Suhr] certainly was free back in August to say that they have uncovered more examples of this kind of conduct, and hopefully use that to reiterate his strong stand and say what they’re going to do about it,” Schlosser said. “But in fact it’s been kept secret from the public, and was only revealed last week by the district attorney. That to us was a very telling sign that the leadership of the Police Department is not committed to transparency and to significant reform.”
So for the second time in a little over four months, the ACLU asked the U.S. Department of Justice for a civil rights investigation of the SFPD, noting that federal authorities conducting a voluntary review of department policies, following the fatal December police shooting of Mario Woods, have repeatedly said that a stronger civil rights investigation could launch if circumstances change.
Schlosser said the public feud between Suhr and Gascón adds to concern about San Francisco’s overall criminal justice system.
“I think it’s troubling,” he said. “I do think that kind of disarray does contribute to a feeling that San Francisco needs outside help, but it has to come from a source that can enforce.”
Officials with the U.S. Department of Justice Office of Community Oriented Policing Services conducting the voluntary review of SFPD policies have made no official statements about the latest racially charged scandal, despite repeated inquiries. The Department of Justice’s Civil Rights Division did not respond to KQED’s inquiry.
“We feel new circumstances have added to our original request to provide a compelling case for a pattern and practice investigation,” Schlosser said.
San Francisco Public Defender Jeff Adachi made a similar request to state Attorney General Kamala Harris Monday, asking the California Department of Justice to launch a civil rights investigation of San Francisco’s Police Department.
Like the ACLU, Adachi cataloged not only the repeated scandals over racist text messages, but also SFPD’s failure to discipline officers implicated in the first round of texts, SFPD’s extremely disproportionate arrest rate of African-Americans, three high-profile fatal shootings of black and Latino men, and allegations of racial bias in a joint local-federal drug sting revealed last year.
“The incidents reveal a pattern and practice within the police department that has allowed racism and disparate treatment of black and Latino people to fester and grow,” Adachi wrote. “An investigation would help settle the pressing question of whether the racism evidenced in these incidents is endemic of a culture within the department which allows these types of incidents to occur. But most importantly it would help restore the confidence of San Franciscans — and those around the nation who are watching — that the San Francisco Police Department is not engaging in racist practices.”
A spokeswoman for the California Attorney General said the office is reviewing Adachi’s request.
San Francisco Supervisor Malia Cohen said Tuesday she has not stopped calling for a federal investigation since she and board President London Breed formally requested one in January.
“When is enough, enough?” Cohen and Breed wrote in a joint statement issued April 5. “We talk about implicit bias training, yet time and again are confronted with explicit bias by those who are sworn to protect the community. This behavior cannot be tolerated without consequence; the City must rededicate itself to police reform.”