Fulfilling the Promise of the 14th Amendment: Our Next Steps to Enhancing Police Accountability in San Jose

Summary:

1. Make Arbitration of Officer Firing and Discipline Decisions Transparent and Accountable
2. Beyond Internal Affairs: Independent Investigation of Police Misconduct
3. Expand Authority of the Independent Police Auditor over Use of Force Allegations
4. A Police Department Built By Our Diverse Community: Expanding Opportunity for Youth of Color
5. Reimagine Policing by “Disentangling” Police Roles — But With Eyes Wide Open
6. Ban Use of Rubber Bullets, and Conduct Full Review Use of Force Policy
7. Make Police Subject to Direction of Democratically-Elected Leadership
8. Does it Work? Leveraging Data & Evidence for Better Recruiting, Training, and Early Intervention
9. Accounting for Every Dollar: Public Audit of Police Expenditures

Preface

“The world had taken a deep breath and was having doubts about continuing to revolve.”

— Maya Angelou, I Know Why the Caged Bird Sings

“…nor shall any State deprive any person of life, liberty, or property, without due process of the law, nor deny any person within its jurisdiction equal protection of the laws.”

— 14th Amendment to the United States Constitution

The murder of George Floyd — and subsequent homicide of Rayshard Brooks — poured salt into our nation’s longstanding wounds of systemic racism and police brutality. The protests that followed pressed every city’s mayor for change — and compel us collectively to confront chronic and deep-seated racism that pervades all of our societal institutions, including our police departments. In San Jose, outrage became more intense as accounts spread of injuries to community protesters — most particularly to Derrick Sanderlin, a man dedicated to police reform — and calls to “defund” police grew here and nationally.

On Tuesday, June 17, the City Council unanimously approved my June Budget Message, which extensively explained why the City should choose to “reform, rather than defund” our police department. As I asserted within that Message, although we would decline the calls to defund, we must hear and heed the calls for change.

Every academy recruit at the San Jose Police Department soon learn that she or he will be subjected to the most rigorous accountability of any department in the nation. San Jose has been at the forefront of many reforms nationally — including being among the first to apply body-worn cameras, to collect racial data of detained persons, vetting that data publicly, subjecting data on police stops and uses of force to study by external experts, implementing implicit bias and de-escalation training, halting the use of chokeholds, and publishing use-of-force data on a public dashboard. Some critics have discounted these and other SJPD efforts at reform as ineffectual, but an independent study of use-of-force data between 2015 and 2019 suggests otherwise:: over the past four years, SJPD has dramatically reduced the racial disparity between the rate of persons subjected to arrest, and those subjected to uses of force. While hardly the final word on the matter, we can see progress.

Of course, we have much more work to do.

There are nine proposals suggested below, for a simple reason: nine is less than ten. Unlike the Ten Commandments, these weren’t handed down on Mount Sinai, and they’re subject to vetting and debate with the Council, our many public stakeholders, and our officers. There’s also room for more — this isn’t the final word on meaningful reform in San Jose. Nonetheless, with a clear sense of direction, we can move forward to ensure that San Jose remains at the forefront of police reform and racial justice nationally.

1. Make Arbitration of Officer Firing and Discipline Decisions Transparent and Accountable

As the saying goes, nobody hates a bad cop more than a good cop. San Jose — like most U.S. big-city police departments — has a police contract that has long enabled unaccountable arbitrators to issue binding decisions that can reverse the well-reasoned decisions of the Chief of Police and City Manager to fire or discipline officers. One such instance — our Chief’s 2016 termination of an officer who used his Twitter account to insensitively mock and menace advocates of the “Black Lives Matter” movement — resulted in a reinstatement of the same officer by the arbitrator.

This case is instructive. Our officers’ union — the San Jose Police Officers’ Association (POA) declined to offer him any defense, due to the nature of the conduct. The Department had no right to appeal the arbitrator’s decision, because the contract makes it binding. The arbitrator was not accountable to any judge, nor any public agency, nor the public. We have no insight as to the reasoning of the arbitrator’s decision, because it remains out of the reach even of a Public Records Act request.

Many city attorneys also gripe that the very process of arbitrator selection inherently produces a biased pool of decision-makers. Unlike jurors selected through a similar “striking” process in which each side can “strike” disfavored candidates, prospective arbitrators repeatedly undergo the same selection process, and they actually seek to be selected. Many believe that this affects their decision-making as arbitrators, insofar as they have incentives to “consistently compromise on punishment to increase their probability of being selected in future cases.” See Stephen Ruskin, “Police Disciplinary Appeals,” 167 University of Pennsylvania Law Review 545, 576. As a result, the chiefs of police of nearly every major city complain about the impact of binding arbitration on their ability to fire bad cops, and to assess discipline.

The result: other officers see that a colleague who commits shameful conduct can continue to wear the same badge and receive the same salary. Although this has happened only rarely in recent years in San Jose — and more frequently elsewhere — a small infection has the effect of a contagion. The process demoralizes the many good officers who serve with honor and high standards, and enables the few who do not. Public perception of police accountability suffers.

By no means does San Jose suffer uniquely from this defect. Studies show troubling and consistent patterns of reducing and overturning of officer discipline in Chicago, Denver, Houston, Oakland, San Antonio, and several other cities, and media accounts provide ample anecdotal evidence. In a 2017 comprehensive analysis by the Washington Post, 451 of the 1,881 police officers fired by 37 large American law enforcement agencies were ordered rehired by an arbitrator. Why this substantial pattern of reversal? Scholars point to the procedural elements of the arbitration process that have a significant effect on the outcomes.

We should ask what effect the challenges of the current disciplinary appeals process might have on upstream decision-making by police chiefs. For example, virtually every large-city U.S. police department has Brady lists of officers — individuals who cannot make arrests, investigate cases, or testify in court because of prior reports of wrongdoing that undermine their credibility as a witness, and subject them to impeachment on the stand — yet continue to serve.

We can do better. Every police officer deserves due process for any disciplinary decision, and state law mandates as much. Yet the rules around the arbitration process have inherent defects that can undermine much of the good work that SJPD has done to improve officer conduct and accountability. If we cannot find a better process than arbitration, we must negotiate a means to make every arbitrators’ decision more transparent and accountable. Many reforms have been discussed nationally, including improving the arbitrator selection process, lifting the veil of secrecy over the content of arbitration decisions, limiting the scope of the arbitrator’s review of prior factual findings, and allowing the City a right of appeal to a state court.

Any would offer improvement, and all appear worth exploration. Because these provisions have existed in our police contract for years, we must — pursuant to the state Meyers-Milias-Brown Act — negotiate changes at the bargaining table with our officers. We should prioritize this as an important item of focus in upcoming contract negotiations.

2. Beyond Internal Affairs: Independent Investigation of Police Misconduct

It seems unlikely that American public will ever feel confident in a system of accountability which allows only the police to police themselves. In San Jose, the Independent Police Auditor (IPA) has the authority to review cases investigated by SJPD’s Internal Affairs, but not the ability to investigate those cases — nor even “audit” them, contrary to the implication of the office’s title.

The Department’s Internal Affairs unit, rather, has sole authority over all investigations, reporting solely to the Chief of Police. Like most police departments, officers rotate in and out of Internal Affairs every two years, and unenthusiastically regard it as a necessary assignment on their path to promotion. The internal affairs model has lasted for decades in most cities, but several — such as Albuquerque, Washington D.C., Portland, and San Diego — have since largely abandoned it to adopt for external, independent investigations of police misconduct. Indeed, the very notion that we continue to treat allegations of excessive use of force and other police misconduct as “internal” affairs offends American sensibilities about the transparency of our democratic institutions.

So, we should move beyond “internal affairs” model, and we have several options for doing so. Most logically, we could endow the IPA with investigatory authority and staff. Conversations with District Attorney Jeff Rosen have opened the door to considering a hybrid model, where the DA could take on investigations with any likelihood of criminal charges and leave all civil matters for the IPA. Alternatively, as was recently proposed in Sacramento, a separate investigatory authority could be created. Regardless of the model, it must be driven and staffed by trained, independent professionals with a clear understanding of police work. Ample examples exist of the failures of police commissions, which in many cities appear too easily swayed either by cozy relationships with the police departments, or by the political sentiment of the day.

In any case, where investigation reveals a need for discipline or termination, the completed investigation would be referred to the Chief of Police to assess and impose discipline. Transparency would be boosted by IPA reports to the City Council of any variances between the Chief’s and IPA’s assessment of the matter, as is currently the case.

How to get there? First, pursuant to the California Supreme Court’s Seal Beach decision, it appears that we must negotiate with the San Jose POA. Second, we need to find the resources to conduct such investigations. Budgetary constraints may argue for limiting investigatory authority to more serious allegations of misconduct — such as uses of force resulting in serious injury, or racially discriminatory misconduct — and leaving more routine matters to Internal Affairs. Some savings could emerge by reassigning IA investigators to other SJPD units.

We will likely need the help of independent, external expertise to assist in crafting the optimal model in the months ahead, and negotiations will likely take many months as well. Corralling dollars and reassessing budgets will take time as well. Fortunately, there is much we can do in the meantime, as described in 3., below.

3. Expand Authority of the Independent Police Auditor

Last week, several of us urged — and the Council unanimously approved — that we ask the City Attorney to draft proposed Charter changes to expand the power of the Independent Police Auditor. These revisions would enable her office to have automatic authority to review all investigations relating to every police use of force resulting in serious injury, and to enable largely unfettered access to police records, as sought by social justice advocates. We will also lift the Charter’s limits on IPA authority, to allow flexibility for future Councils to expand IPA duties as negotiated. Extensive negotiation led recently to an agreement with our San Jose Police Officers’ Association (POA) on these gains, and with a Council vote in early August, we will take this revised language to the voters on the November ballot.

Again, any additional changes must be negotiated with the POA, pursuant to the California Supreme Court’s Seal Beach decision. Those future negotiations should focus, for instance, on overcoming the barrier in Municipal Code Section 8.04.010 that prevents the IPA from directly questioning a subject officer during a post-event interview; instead, she must submit all questions to SJPD’s Internal Affairs investigator, who can then pose the question to the officer. Under the Peace Officer Bill of Rights, no more than two interrogators may participate in any interview of a subject officer (Cal. Govt. Code Section 3303(b)), but there’s no reason why IPA staff cannot be one of those two interrogators. IPA staff generally have more experience in attending officer interviews than most Internal Affairs sergeants — who rotate out of the assignment roughly every two years — and the IPA herself must be a licensed attorney. Other opportunities for greater accountability exist in future negotiations — including the ability of the IPA to perform spot-audits of body-worn camera footage, as described in 8, below. We should embark on that process.

4. A Police Department Built By Our Diverse Community: Expanding Opportunity for Children of Color

In 1984, then-Mayor Tom McEnery and the late Chief Joe McNamara urged that we create a “Police Corps,” offering college scholarships to San Jose’s diverse youth, contingent on commitments to serve their community for several years as police officers. The City Council ultimately did not support the idea, but we should. Such a program could build on work already underway with Chief Garcia’s SJPD Cadets program, leveraging the idealism and energy of our young adults to build a police department in their image — not ours. While building bridges between our young adults and SJPD, the program could also expand educational opportunities for many low-income youth and boost home-grown diversity on the force. Like all recruitment strategies, this would require dollars, but could have tremendous appeal to the many philanthropic organizations seeking to build stronger community-police relationships.

Of course, this proposal merely nips at the edges of much of the outrage over the core racial inequity in our nation: that poverty remains highly correlated with race. Patterns of historic racism and enduring inequity affect nearly every factor affecting the trajectory of the lives Black and Brown Americans: school quality, college access, housing, public health, and job availability.

In my mayoral tenure, we’ve introduced a series of programs that have dramatically increased City and philanthropic investment to expand opportunities for youth in our high-need neighborhoods, beginning with community conversations inspired by the Obama Administration’s My Brother’s Keeper initiative. In 2015, we launched San Jose Learns, identifying 16 high-poverty neighborhoods where we introduced after-school learning and summer learning programs for children. That year, we also created San Jose Works, a teen-focused program that provided more than 4,000 teenagers living in gang-impacted neighborhoods with their first summer job, along counseling, financial literacy classes, and other support. We became a national leader in launching the Digital Inclusion Fund, leveraging millions in telecommunications fees to invest in expanding access to broadband, devices, and skills for thousands of students caught on the wrong side of the Digital Divide. We introduced the San Jose Promise program, which helped to eliminate financial barriers to college for 1,600 young women and men from low-income families. We helped more than 7,000 children learn coding and computer science skills in city libraries through the 5K Coding Challenge.

We must — and will — do more. In the days ahead, we’ll announce a dramatic acceleration of our digital inclusion efforts that will provide connectivity to every one of our the more than 11,000 students identified by our public school districts lacking broadband, and expand wi-fi broadband to tens of thousands more families whose children attend six high schools in the East Side Union High School District. We’ll roll out a major new philanthropic investment in the futures of hundreds of low-income high school students in East San Jose, as part of our San Jose Aspires initiative. We’ll continue pushing for new private and public-sector investments to ensure that the American Dream becomes more accessible to many more of our diverse youth.

5. Reimagine Policing by “Disentangling” Police Roles — But With Eyes Wide Open

Several of us — including Vice Mayor Jones and Councilmember Peralez — have encouraged that we embark on reimagining policing in the 21st Century. The current moment provides us ample opportunity for doing so. We’ve committed $100,000 through our recently approved budget to leverage expert consultants for this purpose, and we can begin by engaging our officers, community, advocates, union, and police brass.

In the national discourse, the conventional wisdom increasingly condemns cities for routinely injecting armed police officers into social conflicts where others — such as counselors, teachers, social workers, or other city staff — might be better suited, and less likely to provoke a confrontational response. This notion is not novel. We created a Community Service Officer program six years ago, which has successfully demonstrated how much impact dozens of highly trained, unsworn civilians can have on public safety. Similarly, two years ago, Chief Garcia halted the practice of officers making arrests of students on high school campuses where administrators should handle disciplinary matters internally, to minimize stigma to students.

Surely, we can identify other examples where a civilian response might better focus SJPD’s scarce staff and attention on predatory crime. For example, County Health officials could enforce health laws on food peddlers when calls come to the police. Community service officers might better respond to more neighborhood complaints. Perhaps — despite our unsuccessful lobbying efforts in the past — we can even persuade our state legislators to allow automated speed enforcement on our roadways. The process of reimagining policing must include a review of the many types of calls for service to which non-sworn civilians — particularly those with subject-matter expertise — could respond, to allow officers to focus on more serious crimes.

We should do this cautiously, however. We should have eyes wide open to the resource constraints of those other agencies. We also cannot ignore the safety-related implications of every police divestment, and we should scrutinize evidence from other cities about best practices. Several cities have proposed having mental health professionals respond to the episodes of mental health crises, for example, and our own Chief has actively encouraged participation of the County of Santa Clara — since only the County has funding, authority, and expertise to manage mental health. In response, the County introduced Mobile Mental Health teams in April 2019 to provide on-the-ground mental health support, but do not operate during nighttime hours when we routinely receive 911 calls for a mental health response. The County’s experience in trying to expand these services has been revealing: when it issued a Request for Proposals last year to do so, not a single non-profit mental health providers submitted bids. Several CBO’s reported that they saw the task as too dangerous in the expanded service areas and hours, and not worth the risk to their employees. So, we respond with police.

More importantly, we should ask ourselves some of the same hard questions that we ask of our police. That is, the problem may not be with the police, but with us — and with our expectations. Every council office routinely receives complaints that the police should have done more to address concerns about neighborhood homeless encampments, or fireworks, or a noise complaints. Our demands for police service — evidenced by some 1.2 million calls for service every year, 600,000 of which are deemed “Priority 1” (for emergencies) — drives the SJPD’s response. It is far from evident that the views of some advocates for de-policing align with those of the majority of our community members — particularly those who live in high-crime neighborhoods.

Indeed, contradictory expectations exist within our very ideal of “good policing.” The longstanding primacy of the “community policing” model — putting officers into more frequent contact with residents and business owners as neighborhood “problem-solvers” — made San Jose a national model for policing in the 1980’s and 90’s. It helped to build trust and positive police-community relationships. It had officers playing basketball and soccer with kids at a gang-frequented park or talking with the corner convenience store owner about how lighting could improve the safety of her block. Yet the community policing approach conflicts with the aspirations of the “defund” advocates, because it naturally injects police into many non-criminal matters. We cannot ignore this tension as we engage in this important community conversation with the weeks ahead.

We should undertake a full exploration of our options for disentangling SJPD’s responsibilities between criminal and non-criminal matters, but we should do so with eyes wide open. Opportunities for change and reform exist, to be sure. Yet we must also weigh the reasonable needs and demands of the communities we serve — particularly those most burdened by crime.

6. Ban Rubber Bullets, and Review All Use-of-Force Policies

With the Council’s approval of my June Budget Message, we have also allocated funding for a full review of the Department’s use of force policies, to be co-led by our Independent Police Auditor and Police Chief. We expect a process that will engage the community, “best practices” experts, and the rank-and-file, while offering the public transparency regarding training and regulation of force authorized by the department. Although the Department has made great strides in recent years — banning choke-holds, for example — the latest thinking about safe enforcement continues to evolve, and San Jose must remain in front of those changes.

We need not await a formal review, however, to take action to address risks that we know to be unacceptable. Two weeks ago, after several colleagues and I proposed the ban of rubber bullets, the Police Chief proactively amended the duty manual to ban their use “for crowd control.” Nonetheless, the Duty Manual still allows for their use in crowds, such as at protests, where an aggressor threatens harm to others.

Anecdotal evidence — of journalists and seemingly non-violent protesters being struck by the rubber bullets during the recent protests — demonstrates that rubber bullets are a very imprecise tool, with a high probability of inaccuracy. While typically shot toward the ground to reduce the likelihood of head strike, the ricochet of the rubber bullets continues to expose members of the public to risk of a rising bullet striking the head, where the risk of harm rises sharply.

More troubling is research suggesting that rubber bullets pose an unacceptable risk of unintentional death or serious injury. A recent Kaiser Health report cites a 2017 study of all kinetic-impact-projectiles (KIP) — including rubber, plastic, and bean-bag bullets — reveals a disturbingly high (3%) mortality rate and a 15% rate of serious injury. In the British medical journal, The Lancet, a 2002 study of the use of rubber bullets for crowd control in Israel determined that three of the 151 people suffering rubber-bullet injury died, and 59 others incurred penetrating injury of varying severity. The study’s abstract recites its conclusion, “Inaccuracy of rubber bullets and improper aiming and range of use resulted in severe injury and death in a substantial number of people. This ammunition should therefore not be considered a safe method of crowd control.” A Council vote this summer should resolve the matter.

7. Make Police Subject to Direction of Elected Leadership

Unlike other major U.S. cities — in which mayors routinely issue executive orders or direct top city staff — Section 411 of the San Jose City Charter prohibits the Mayor from directing the Chief of Police, the City Manager, or any other city employee from taking any action. As in every other large city, residents expect the person that has been elected citywide to lead the city — the mayor — bears responsibility for whatever decisions SJPD brass might make. After the 2016 Trump rally in San Jose, for example, local protests resulted after FOX News, right-wing blogs, and tens thousands of social media accounts propagated conspiracy theories about an imaginary “stand down order” that I purportedly issued as a couple dozen protesters assaulted attendees. Similarly, in the more recent decisions about the recent protests, thousands of people communicated to my office by social media, email, and phone to urge specific action on everything from curfews to officer discipline.

Some might say that all of that advocacy amounted to wasted energy, because the San Jose mayor has no legal authority to act in any of those situations. To the public, the structure of City Hall under the current City Charter amounts to a charade: they believe that police brass responds directly to the elected leadership which the public can hold accountable, but no such authority exists with elected officials. At most, the Mayor and Council can hold SJPD accountable by proposing a direction on a Council agenda and — weeks or months later — obtaining a majority vote to change policy. For example, unfulfilled Public Record Act requests for public records from one newspaper required two public hearings before the Rules Committee before we could direct the Department to respond.

The City of San Jose’s antiquated charter reflects a small-town “city manager-council” structure that has gone the way of the dinosaurs among major U.S. cities outside of the State of Texas. We should bring our Charter into the 21st Century, which requires vote of the public this November. I will push to bring that proposal before the Council on June 30th.

8. Does it Work? Using Data for Better Recruiting, Training, and Early Intervention

SJPD has pushed aggressively to deploy department-wide data to better understand whether the Department’s many interventions — in screening, training, body-worn cameras, data collection, and the like — are having an effect in reducing the racial disparities of its uses of force. The good news: based on the independent study of 2019 data, we have evidence of significant progress.

It’s important for the Department to apply this macro-level data- and evidence-driven approach to every officer, to understand how and whether conduct of individual officers appears affected by better training. For example, Los Angeles PD utilized “spot audits” of its body-worn camera footage to identify training lapses, biased policing, and incongruous reporting. The IPA would like to do the same — for example, to understand whether de-escalation training appears to be having its desired effect — but would need an expansion of its current authority to do so.

Other opportunities for improvement exist. Chief Garcia has unsuccessfully sought funding to implement the 2018 IPA audit recommendation to “create a more robust early warning system” for problem officers, rather than relying solely upon complaint data to identify officers requiring correction action. Best practice nationally uses a system that incorporates multiple sources of data, including use-of-force reports, civil lawsuits, and uncharged PC148 arrests. It appears worth understanding what we can do within our resources — i.e., without expensive software — and to understand if foundation and other philanthropic efforts can fund an early start.

With the Council’s approval of the June budget, the Office of Racial Equity (ORE) can provide the City with additional capacity to use data-driven approaches that may enable us to better understand the efficacy of the SJPD’s existing implicit bias training, and whether it can be improved (not to mention how we can expand that training for all City employees). ORE could also review SJPD’s hiring strategies with an eye to seeing how we can better improve our recruitment of young women and men within our diverse community to serve our city, incorporating suggestions made in previous IPA annual reports, as appropriate.

Finally, the SJPD led the nation in posting use-of-force data on its website dashboard for public review. In light of recent mandates in the Racial Identity and Profiling Act to collect demographic data on all stops and detentions — a practice that SJPD has followed for years anyway — we should make that data publicly available. Following San Diego’s example, we could supplement our use-of-force dashboard with another one focused on who we arrest, how, and how frequently.

9. Accounting for Every Dollar: Public Audit of Police Expenditures

The public debate surrounding “defund” makes an important point: we do spend a lot of money on policing — about $446 million out of the City’s $4.1 budget in the coming year, although less than the year before. We should have a full audit to understand whether and where we could spend more cost-effectively. Particularly given the very difficult budgetary challenges that the City faces in the next two years, we would also do well to better understand where we can cut without severely impacting safety. To be sure, each year, the City publishes its budget on its website with hundreds of pages of extensive detail. Yet unpacking each line item — and assessing publicly whether and how each expenditure meets our collective objectives — appears well-worth the effort. We should add this item to the City Auditor’s workplan in the weeks ahead.