S.F. Prop. D Would Require Civilian Inquiry Into Police Shootings

The scene of a fatal San Francisco officer-involved shooting on May 19, 2016 in the city's Bayview neighborhood. City officials later confirmed that Sgt. Jason Eng mortally wounded Jessica Williams, 29, when he fired a single gunshot as he and another officer attempted to remove Williams from a car that had been reported stolen. (Alex Emslie/KQED)

The scene of a fatal San Francisco officer-involved shooting on May 19, 2016 in the city’s Bayview neighborhood. City officials later confirmed that Sgt. Jason Eng mortally wounded Jessica Williams, 29, when he fired a single gunshot as he and another officer attempted to remove Williams from a car that had been reported stolen.
(Alex Emslie/KQED)

By Alex Emslie
KQED

When San Francisco Supervisor Malia Cohen suggested in January that the city’s Office of Citizen Complaints should investigate all officer-involved shootings, the local policing landscape looked very different.

But upheaval had already begun, sparked by the fatal police shooting last Dec. 2 of Mario Woods in the Bayview District. Cohen was barraged by angry comments from her constituents there.

“The one thing that I heard consistently is that there is no police accountability,” Cohen said, “or even perception of police accountability.”

She says she started drafting the measure that would become Proposition D after finding the Office of Citizen Complaints wasn’t immediately investigating the Woods shooting.

The OCC’s responsibilities are outlined in San Francisco’s City Charter, which means changing them is up to the city’s voters.

Enter Prop. D

Cohen’s measure is simple. If Proposition D is approved by voters, OCC investigators would automatically investigate all officer-involved shootings for violations of department policy. Investigators could recommend discipline as well as changes in policy or officer training.

Civilian oversight investigations would thus become a permanent piece of the multiple probes following a death or serious injury at the hands of city police officers. The measure wouldn’t affect other inquiries that follow officer-involved shootings, including investigations by SFPD’s homicide and internal affairs units and a separate criminal investigation by the district attorney.

There’s no organized opposition to expanding the role of the OCC, and in anticipation of Prop. D’s passage, Mayor Ed Lee’s proposed budget includes $1.8 million to hire five new civilian investigators and upgrade training and equipment.

The OCC’s executive director, Joyce Hicks, says the measure would allow her investigators to begin their work at the scene of a shooting, instead of waiting days, weeks or months to receive a complaint and then play catch-up.

OCC Executive Director Joyce Hicks peruses binders filled with complaint summary reports.

OCC Executive Director Joyce Hicks peruses binders filled with complaint summary reports. (Alex Emslie/KQED)

“The OCC investigator would immediately begin canvassing the area where the shooting occurred, looking for witnesses,” she said. “Sometimes there are witnesses who feel comfortable speaking to OCC investigators but don’t feel comfortable talking to law enforcement.”

Bigger Picture

Prop. D would likely quadruple the number of incidents investigated by the OCC. Cohen notes that of the 35 police shootings that might have triggered an OCC inquiry in the past five years, the office has looked into just eight — the only ones in which someone filed a complaint.

Despite the lack of opposition to expanding the number of OCC investigations, some critics question whether the agency has any teeth.

“The OCC investigates hundreds of complaints a year, and some of them are very serious cases,” said police accountability consultant Barbara Attard, who has worked for the OCC as well as civilian oversight offices in Berkeley and San Jose. “But there’s been very little real discipline meted out. Most of the complaints result in admonishments or reprimands and maybe retraining. With that low level of discipline, officers are not being held accountable.”

The OCC’s officer-involved shooting investigations follow a similar pattern. A KQED review of the six completed investigations (two are still pending) between December 2010 and January 2016 shows no “sustained” complaints — meaning the office found no fault on the part of officers involved and recommended no discipline.

The district attorney’s office found officers were legally justified to use deadly force in five of those incidents. The DA’s office did not investigate the 2010 shooting of Vinh Bui, according to a spokesman, because District Attorney George Gascón had recently been appointed to the post after serving as police chief and there could have been a conflict of interest.

Hicks says the criticism comes from a misunderstanding of the OCC’s authority and the case law governing police use of force. But, she says, as SFPD’s use of force policies change to emphasize de-escalation and other alternatives to firearms, the OCC’s findings in future cases could also change.

“‘Lawful but awful’ is no longer acceptable to the American public,” she said. “… The public is demanding greater transparency, greater explanations as to why law enforcement conducts itself in the way it does.”

The OCC plays a major role in changing police practices, Hicks says. The office’s policy attorney was part of a broad group that debated and tweaked new rules for body cameras and use of force. And she says the office’s investigation into the December 2010 police killing of Vinh Bui found policy and training failures and recommended enhancing training for encounters with mentally ill suspects and the department’s tactical reviews of shootings.

Challenges to Transparency

Prop. D won’t change one of the major challenges in bringing transparency to the OCC’s work, says police accountability consultant Attard, because of the strong privacy protections for police officers embodied in state law.

“When all of your work remains confidential, I think it’s hard for the public to really know what you’re doing,” she said.

Following legal advice from city attorney’s office, Hicks says, the OCC’s summaries of police shooting cases are stripped of the names of officers, the names of those injured or killed and even the date and location of incidents. The investigative summaries are virtually buried in monthly OCC reports of all its recently closed case, documents that run to more than 100 pages.

“California is one of the few states that has complete confidentiality around police misconduct cases,” Attard said, “and we’re way overdue to change that.”

Attard, Hicks and Supervisor Cohen all supported a bill by San Francisco state Sen. Mark Leno that would have eased restrictions on public access to sustained findings of police misconduct. The measure recently died.

Hicks says the OCC is as transparent as the law currently allows, but Attard says the agency could do more to push for stronger discipline and transparency. She says attention may shift toward the office following the May 19 resignation of Police Chief Greg Suhr.

“Now that he’s no longer here, I think we need to look to the OCC and the Police Commission for their role in accountability and ensure that they’re holding officers and the police chief accountable when there should be serious discipline,” she said.

‘A Baby Step’

To Cohen, Proposition D is just one “baby step” in a series of bigger changes she wants to bring to San Francisco policing.

She recently introduced a second City Charter amendment that would change the OCC’s name to the Independent Police Oversight Department. The measure would also grant the agency authority over its own budget instead of making it subject to Police Commission oversight.

Yet another charter amendment Cohen proposes would create an independent bureau in the district attorney’s office that would be the “primary agency to investigate criminal conduct arising out of critical incidents in the city involving officer-involved use of force.” That role that now rests with SFPD homicide investigators.

Cohen is seeking to put both those proposals before voters this November.

For the OCC’s part, it has received complaints and has opened investigations into the high-profile police shootings of Amilcar Perez Lopez, Mario Woods, Luis Gongora and Jessica Williams. The office’s findings in those cases will likely be heavily scrutinized — if the public can find them.

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