Civilian Oversight of Investigations
into Police Misconduct
2022 IPA Year End Report
Issued June 2023
Independent Police Auditor Shivaun Nurre
and IPA Staff
sanjoseca.gov/ipa
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2022 IPA YEAR END REPORT | 1
LOOKING BACK AND LOOKING FORWARD
UPDATES, ISSUES AND CONCERNS
UPDATE ON POLICE REFORM
Our 2021 Year End Report presented details about various efforts at police reform efforts.
Following the death of George Floyd on May 25, 2020, protests raged across cities nationwide and San José was no exception. In late May/early June 2020, many individuals took to the streets raising their voices about policing and racial injustice. The San José Police Department’s (the Department) response to the first ten days of the protests drew criticism from some members of the public, the media (both local and national), and City officials. In response, the Mayor and City Council proposed a variety of police reform directives and created a Police Reforms Work Plan. The plan, encompassing 20 separate items, was ambitious both in the breadth of its scope and the required level of detail.
The IPA 2021 Year End Report provided updates on several police reform items pursued by the City of San José. The following is a brief update of the progress made on police reform efforts since the publication of the 2021 Year End Report.
PAST FUTURE
PRESENT
2 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
► Police consolidate Reform Recommendations into a Comprehensive List In March 2022, the City Council accepted two reports prepared by an outside consultant (CNA Corporation) on (1) the Department’s Use of Force and (2) the Department’s implementation of recommendations outlined by President Obama’s Task Force on 21st Century Policing.1 The council also accepted the Department’s response memo. The CNA report on the Use of Force contained 48 recommendations while the report on 21st Century Policing contained 124 recommendations. The Department’s Response Memo indicated that it would provide an update on the implementation of the CNA recommendations in both reports to the Public Safety Finance Strategic Support (PSFSS) Committee in the Fall of 2022.
At the same meeting, the City Council accepted an assessment report from the OIR Group, an outside consultant, on the Department’s response to the social unrest in San Jose from May 29 to June 7, 2022. The council also accepted the Department’s response to the OIR Group’s report. The OIR Group’s report included 32
recommendations. The Department stated in its Response Memo that it would provide an informational update on the implementation status of these recommendations in the Fall of 2022.
In August 2021, the Reimagining Public Safety (“RiPS”) Advisory Committee was established as a community-led group. RiPS members with voting privileges were designees of 28 community- based organizations and three neighborhood representatives chosen by the City Council.
2 Additionally, an associated semi-
autonomous Youth Council was also created. The RiPS Advisory Committee and subcommittees met frequently for nine months at which times members heard presentations on various topics and lived experience testimonies. In April 2022, the RiPS’ Report was finalized and presented to the City Council. The council voted to refer the 73 recommendations from the report to the City Manager and City Attorney for analysis and other considerations such as implementation, budget, workload impact, and legal issues. The staff was directed to bring back the discussion of the RiPS recommendations the Fall meeting of the PSFSS Committee.
OIR
G R O U P
32 recommendations
73 Recommendations
43 Recommendations
from RiPS youth
committee
CNA
172
recommendations
2022 IPA YEAR END REPORT | 3
At the November 2022 PSFSS Committee meeting, the Department provided a report on the outstanding recommendations for reform and operational improvements that were being tracked, including those made by CNA, OIR and RiPS while at the same time adding many other recommendations. The Department’s memo indicated that to ensure all recommendations were evaluated within the context of existing workloads, assignments, budget, and staffing, the Department gathered a comprehensive list of all the open recommendations. This comprehensive list totaled 531
recommendations and now recommendations from:
• SJPD’s 2021 internal After-Action Report (41
recommendations)
• 2022 California State Auditor’s report on biased conduct in law enforcement (14 recommendations)
• 2017 Traffic and Pedestrian Study by the University of Texas- El Paso’s (UTEP) Center for Law and Human Behavior (6 recommendations) • San José City Auditor (selected 45 recommendations issued between 2012 to 2021) • San José Independent Police Auditor (selected 105 recommendations issued between 1994 to 2021)
At the May 2023 PSFSS Committee meeting, an update on the status of those recommendations for reform and operational improvements being tracked by the Department was provided. This same update will be provided to the full City Council in August 2023.
Visual from the Department’s Presentation at the May 2023 PSFSS Committe
Currently in
Progress
104 (19%)
Agree, but
not Started
95 (18%)
Disagree
57 (11%)Completed
254 (47%)
Maintain
26 (5%)
Department’s
presentation at
November PSFSS
Committee
531
recommendations
Completed recommendations the department
has completed
Currently in Progress the department is
currently undertaking some action on these
recommendations such as researching a topic
writing a proposal, or reformatting policy
Disagree but Not Started the department
agrees with these recommendations but has
not started action
Disagree the department disagrees with these
recommendations and will not implement
Maintain recommendations in which the
department was directed to continue a current
practice
4 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
MOVING POLICE MISCONDUCT INVESTIGATIONS OUT OF INTERNAL AFFAIRS
Under San José’s existing oversight model, the Independent Police Auditor (IPA) monitors the activities of SJPD’s Internal Affairs Unit (IA). The IPA does not have the authority to independently investigate allegations of misconduct which is the exclusive responsibility of IA and the Department.
In November 2020, the voters of San José passed Measure G, which amended the City Charter and expanded the responsibilities of the Office of the Independent Police Auditor.
Among other provisions, Measure G allows the City and the San José Police Officers Association (POA) to agree to further expansions of the IPA’s duties where consistent with the Charter, subject to the meet and confer process, without needing to return to the voters for modification of the City Charter as to the scope of the IPA’s assigned duties.
The passage of Measure G provided the City with an opportunity to explore one part of Mayor Liccardo’s 2020 reform plan which aims to make investigations of police misconduct independent of the Police Department.
WHAT DOES MEASURE G ALLOW?
Measure G allows the City Council to assign other
duties to the IPA without resorting modifying the City
Charter each time a new duty is assigned. For example,
the City Council could direct the IPA to engage in a
study of detentions/arrests of person for Penal Code
148
resisting arrest. Prior to the passage of Measure G,
the IPA was not authorized to perform such a study.
During the creation of the language of the measure, the phrase
other duties as assigned was included.
2022 IPA YEAR END REPORT | 5
MEASURE G ONLY IMPACTS THE OFFICE OF THE IPA
IT DOES NOT IMPACT THE POLICE DEPARTMENT
Measure G is provision of additional authority is limited to the IPA. Measure G did not impose any direction or obligation upon the Department or its members. Although Measure G may allow for the IPA to investigate, Measure G does not mandate that San José police officers submit to IPA investigations.
MEET AND CONFER IS A LIKELY A NECESSARY NEXT STEP
It is likely that the San José Police Officers and their union will view the imposition of outside investigations as a change to officers’ working conditions, requiring negotiation with the SJPOA through the meet and confer process. The City Manager is the entity responsible for conducting union negotiations.
In November 2020, the San José City Council’s Rules Committee directed the City Manager and the IPA to examine the possibility of reallocating existing resources to introduce investigatory capacity within the Office of the IPA. A consultant, Moeel Lah Fakhoury LLP (“MLF”)
was chosen for this project following a formal request for proposal (RFP) process.
MLF was tasked with exploring transferring responsibility for investigations involving sworn police personnel from the Internal Affairs Unit of the San José Police Department to either the IPA or an alternative entity.
The MLF report was presented to the council on December 13, 2022. MLF accurately captured the gravity of this project in the following description:
Officer misconduct is an important concern for the City and its Police Department, as it brings direct harm to the very individuals law enforcement is in place to serve and protect; and it negatively affects the public‘s perception of the Department, which, in turn, can damage officer morale and diminish their ability to safely execute their duties. Objective investigations of officer misconduct are essential for the Department to demonstrate to the community and internal stakeholders that it is committed to the highest level of accountability
MLF recommended a hybrid model of oversight. Under this model, some misconduct investigations would be retained by the IA Unit which would continue with its procedures
IMPACT ON IPA
Measure G language
only addressed what
tasks the City Council
may give to the IPA
IMPACT ON SJPD
No corresponding
Measure G language
about what the
Department and its
officers must do
6 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
and the IPA would continue to audit IA investigations. Other investigations would be completed by professional civilian investigations who are independent of the Police Department.
From our perspective, the boldest and core MLF recommendation is creating an Investigations Unit within the current IPA structure. The Unit would be staffed with an experienced Investigative Supervisor and two knowledgeable investigators. This Unit would have full, unfettered access to investigative tools, such as documents and Department personnel to conduct investigations. It is bold in that the concept of investigators outside of IA has not been explored since the 1993 inception of the IPA office. However, the use of such personnel to investigate police misconduct is a practice currently being implemented in an increasing number of jurisdictions throughout the state and the nation.
This recommendation is core in that most, if not all, of the Report’s recommendations stem from the creation of an investigation unit within the IPA office. It is a recommendation that the IPA fully agrees with.
We believe that the concept of utilizing non-IA investigators should be embraced. In our opinion, the approach taken by the MLF Report towards change is tempered and measured. The Report does not advocate for the dismantling of the IA Unit Staff as most investigations would still remain within the IA Unit. Currently the IA Unit has one commander, seven investigating sergeants and six investigating officers. The MLF Report is proposing supplementing IPA staff with one investigating supervisor and two investigators.
We agree wholeheartedly with MLF’s assertion that:
It is imperative that both the IPA investigators and incoming IA investigators have prior investigative experience, as well as strong interviewing skills, demonstrated objectivity, and the ability to analyze policies and write clear reports …. In addition, to fill out their skill set, incoming IA and IPA investigators must undertake or will undertake shortly after joining all of the appropriate law enforcement and investigative training courses/workshops, as well as equity training in trauma-informed approaches and best practices
The MLF Report provides a long-awaited starting point for present and future discussions about moving some investigations out of the IA Unit. The Report wisely contains a mechanism whereby the structure and effectiveness of investigations, both at IA and IPA, is evaluated every three years. Possible outcomes of these changes are that they could engender a healthier confidence in the investigations process as well as eventually allowing SJPD sworn staff to return to patrol or other duties in greater measure.
While the
actual results of implementing the Report’s recommendations are unseen, we are satisfied knowing that we are one step further in fulfilling the community’s expectations regarding this issue. The IPA believes this is a positive step in the right direction for the City of San José.
The City Council accepted the MLF report, the City Manager’s memo and the IPA’s memo.
After considerable debate, the Council directed that Staff should bring a report to PSFSS Committee in the Spring of 2023 exploring the legal, practical and other implications of a hybrid model including:
3 2022 IPA YEAR END REPORT | 7
• Direct the City Attorney to determine whether the grant of investigatory authority to the IPA constitutes a change to officers’ working conditions, requiring negotiation with the SJPOA.
• Upon resolution of any SJPOA negotiation requirements, the City Manager and IPA shall bring a proposed hybrid model recommendation to PSFSS for an initial three- year phase of implementation, including details on budget, potential cost savings, qualifications for investigators, uniformity of training, the ability to make findings, access to evidence, and periodic reviews of the model.
• Upon approval of an initial workplan, the staff is to return to PSFSS in one year with their results in a report that will be cross-referenced to the full City Council.
The City Manager’s staff and IPA’s staff will present the status of this project at the June PSFSS Committee. To further our discussions, the IPA compiled information from other oversight agencies that conduct police misconduct investigations outside of the Internal Affairs Unit.4 The goal was to demonstrate that having an entity outside of IA conduct investigations is no longer a foreign concept and is practiced in jurisdictions across the U.S. The IPA shared this document with the Department and suggested that it may be beneficial for SJPD to reach out to officers/union members in each listed location to gain insights about benefits/detriments from an officer’s perspective.
8 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
UPDATE ON SOCIAL PROTEST CASES
The City Council directed the IPA to provide information on police misconduct complaints arising from the protests in San José after the murder of George Floyd. Our 2020 Year- End Report included a description of six complaints arising from the protest that had been officially closed by the IA Unit and the IPA office. The 2021 Report provided a description of an additional six cases that have been closed after the publication of the 2020 Report.
No additional police misconduct complaints arising from the protests in San José after the murder of George Floyd have been closed since the release of the 2021 Year End Report.
The twelve outstanding complaints are currently paused (“tolled”) until the associated civil cases have been resolved. The 2021 Year-End Report provided an extensive explanation of tolling and it potential pitfalls.
2022 IPA YEAR END REPORT | 9
TIME IS OF THE ESSENCE
TIMELINESS IMPACT THE ABILITY TO IMPOSE OFFICE DISCIPLINE
According to the Peace Officers Bill of Rights Act, any investigation into officer misconduct must be completed within one year of the public agency’s discovery of the alleged misconduct and the intended notice of discipline (if any) be given to the officer within that same time
frame. Under standard timelines, an officer cannot be
disciplined if notice of the discipline was not provided to the officer within one year (365 days) of the discovery of the misconduct. There are several exceptions to the
standard one-year timeline discussed above. The
exception most applicable to this chapter involves
litigation. According to California Government Code
section 3304, if an agency’s investigation into officer misconduct also involves a civil litigation lawsuit in which the subject officer is named as a defendant, then the one-year period timeline is tolled while that civil lawsuit is pending.
The IPA 2021 Year End Report provides comprehensive information about tolling and its associated problems. If a complaint is improperly tolled, the standard timeline applies and the investigation must be completed within 365 days uninterrupted from the date the misconduct was discovered regardless of IA’s error. If the investigation is completed after this one-year period, the Department cannot discipline the officer.
TIMELINESS IMPACTS THE QUALITY OF EVIDENCE
Timeliness of investigations are integral to obtaining
accurate and objective evidence of the incidents. As time passes, the quality of evidence diminishes. This is
especially true when the evidence has to do with
statements, be they civilian witnesses or SJPD sworn
officers. While SJPD has implemented that Body-Worn
Camera (BWC) be worn by every officer, BWC footage
should not be solely relied on to fully capture an event.
For various reasons such as user error, lack of policy
adherence or malfunctioning equipment, conducting an
officer interview is necessary for a thorough investigation of an incident and should be done as early as possible in the investigation process.
10 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
TIMELINESS IMPACTS THE ABIITY OF THE IPA TO DO ITS JOB
In 1998, California state law
implemented a one-year deadline
for completing most misconduct
investigations.5 If SJPD believes
that discipline is a necessary
action based on the investigation
and evidence gathered, the
Department must notify the officer
within this one-year deadline. In
order for the IPA to fulfill its
function of auditing IA’s
completed cases, the IPA’s
subsequent recommended actions
(i.e, obtaining additional evidence
or provided a re-analysis) must
also be completed within the one-
year deadline.
The IA and the IPA have established working timeline to ensure that cases move promptly though our offices. Those timelines are found at the end of this section.
After a pattern of untimely investigations coming out of IA, in 1997 the IPA recommended that SJPD adhere to a timeline mandating that completed investigations/analysis of each case be provided to the IPA within 300 days from the date of the complaint’s filing. If SJPD properly observed this 300 day timeline, the IPA office would have at least 65 days prior to the one-year deadline to complete its review and, if warranted, utilize the appeals process.
2022 IPA YEAR END REPORT | 11
12 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
The issue of timeliness of IA investigations has once again re-emerged.6 In fact, the rate of late-closed cases has continued to increase steadily every year since 2019. In 2022, IA closed 25% (49 of 193) of misconduct cases more than 300 days after they were filed.
Three cases were closed more than 365 days after they were filed. While a few of these cases are exempt from the 365-day deadline due to tolling eligibility, IA’s failure to promptly and consistently identify tolled cases has made it challenging for the IPA to accurately partition tolled cases from those cases closed late. This was an issue that the IPA addressed in the 2021 Year End Report7 and one that as of yet, has not been resolved.
Moreover, IA has not completed its investigation of two cases filed in 2020 each containing force allegations; one is subject to public disclosure under SB 1412. The two cases were improperly placed on tolling status and were removed from tolling status in 2022:
Summary of Case #1:
In April 2020, complainant’s brother was arrested. The complainant stated that her brother was hit by one of the police vehicles, attacked by a police canine, and then beaten by police officers. She alleged that her brother sustained severe injuries to his leg.
• Force allegation
Summary of Case #2:
In May 2020, SJPD conducted a search warrant at a residence. Officers did not enter the home right away. Officers called out for the individuals inside to come out of the house. The individuals, including the complainant’s son complied. According to the complainant, her son told the officers, don’t shoot and stated that he had a broken arm. The officers then ordered the son to crawl to them. The complainant alleged that her son damaged his arm during the crawl. The rod that had been placed in his arm became displaced and protruded by two inches. She alleged that when the son reached the officers, they hit him in the head. The son was interrogated for approximately four hours and was not read his Miranda rights.
• Force allegation
• Procedure
• Courtesy
In addition to the two cases filed in 2020, IA had not completed its investigation of four cases filed in 2021. None of these four were placed on tolling status. One case includes a force allegation. Another case includes allegations for bias-based policing, arrest/detention and search/seizure.8
The pattern of IA’s providing completed investigations to the IPA in an untimely manner continued into 2023. In the first quarter of 2023 (1/1/23 to 3/31/23) 35% of closed 2022 IPA YEAR END REPORT | 13
cases (18 of 51) were provided for IPA review with less than one month remaining until the expiration of the statutory deadline.9
IA’s overdue in closing of cases does not
necessitate a “Disagreed” determination by the
IPA, but it does increase the likelihood that the IPA
will take issue with the investigation. In 2022, the
IPA Agreed with only 24% of the cases IA closed
more than 300 days after filing, and Disagreed or
Closed with Concerns approximately 54% of the
cases. Put in another way, the IPA Disagreed or
Closed With Concern with more of those cases that
were closed late (after more than 300 days) than
those that were closed in a timely fashion.
IMPACT OF MISSED DEADLINES
As outlined in the above section, an officer cannot be
disciplined if notice of the discipline was not provided to the officer within one year of the discovery of the misconduct except if the matter is tolled.
IF DEADLINE
EXPIRES, THERE CAN
BE NO OFFICER
DISCIPLINE
IF DEADLINE
EXPIRES, ISSUES
ARISE AS TO HOW TO
MAKE AN ACCURATE
RECORD
IF DEADLINE
EXPIRES, THERE CAN
BE NO OFFICER
DISCIPLINE
IF DEADLINE
EXPIRES,
INVESITGATION CAN
AVOID IPA SCRUTINY
IF DEADLINE
EXPIRES, ISSUES
ARISE AS TO HOW TO
MAKE AN ACCURATE
RECORD
Given that the officer cannot be disciplined if the notice was not received within the 365 day deadline, the question
arises as to how to make an accurate record of the officer’s conduct, particularly whether the allegation associated with that officer can be sustained. Arguments have been raised that findings can be made post deadline if the finding would not negatively impact an officer’s prospects for promotion or might factor into a future dismissal.
14 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
Findings such as exonerated or unfounded would, most likely, not create a negative impact. However, findings of “not sustained” or “sustained” would likely be problematic. A plausible argument could be made that a sustained finding on a courtesy allegation might not create a negative impact. However, a sustained finding on allegations of force, arrest/detention, search/seizure, conduct unbecoming an officer (CUBO) or bias-based policing undoubtedly would – and should – negatively impact the officer’s prospects for promotion or might factor into a future dismissal. Such findings could – and should – be accurately documented in the Department’s Early Warning System. Moreover, there are impacts of such findings that exceed internal systems. Such findings could impact whether the investigation documents must be provided to the public under SB 1421/SB 16. Such findings could also impact whether the officer is placed on the Brady List and/or whether a judge would allow defense council access to information pursuant to a Pitchess Motion.
Given the above, one can ascertain the problem closing an investigation post deadline with severe limitations on the available findings.
Lack of timeliness in closing cases seriously hinders any meaningful audit from the IPA office. The IPA has been given an appeal mechanism, first to the Police Chief and second to the City Manager. However, the IPA has serious fears that by rolling past deadlines it negates the opportunity for the IPA to do a thorough review and ability to appeal when necessary. In sum, the Department can evade IPA scrutiny by providing closed investigations near/on/after the 365-day deadline.
IF DEADLINE
EXPIRES,
INVESITGATION CAN
AVOID IPA SCRUTINY
2022 IPA YEAR END REPORT | 15
Intake at IA
10 DAYS
IA enters into IPA Pro post receipt
The complaint is assigned to an IA officer who has 30 days to complete classification of the complaint and enter
allegations.
Officer has 90 days from the date the complaint is
received to complete investigation.
After 30 days from receipt, the IPA reviews the complaint summary and may request that IA add allegations.
30 DAYS post
30 DAYS post
90 DAYS post
Current IA and IPA Working Deadlines
Complaint is reviewed by Sergeant at completion of
Officer Investigation. IF the investigation does not
require an officer interview, it is sent to the IPA.
The IPA has 90 days to review the officer’s investigation and either close or request additional
investigation/analysis.
Complaint is received at the IA through
various platforms (e.g., intake via in-
person, phone, email, website) and
entered into IA Pro within 10 days.
Intake at IPA
90 DAYS post
receipt from IA
72 HOURS
IPA enters into IA PRO post receipt
Complaint is received at the IPA through
various platforms (e.g., intake via in-
person, phone, email, website). IPA
enters the information into IA Pro within
72 hours (business days) including those
allegations identified by the IPA.
IA MAKES FINAL DECISION
ON ALLEGATIONS LISTED
IA MAKES FINAL DECISION
ON ALLEGATIONS LISTED
16 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
If the case is not sent for F&R, the IPA is
provided with the completed investigation.
48 hours notice
before the interview
(business days)
Case assigned to an IA
Sergeant. IPA notified.
IF the Sergeant reviews the Officer Investigation and
determined that additional investigation is necessary, the complaint is assigned to an IA sergeant
The IPA is notified of the assignment and is provided 14 days to review the officer’s investigation and all relevant BWC.
During these 14 days, the IPA has an additional opportunity to request that IA add allegations.
14 days
post receipt from IA
The Sergeant will provide the IPA with at least 48 hours advance notice of any interviews that will be conducted.
The IPA staff will inform the sergeant about in-person
attendance at the interview, forwarding suggested questions for the interview, or declination to attend no later than 24 hours before the interview.
24 hours
Prior to interview
IA Investigations are completed with a goal of 9 months post receipt.
If the case is sent to F&R, the IPA is notified
after the case is returned from F&R to IA
and provided the complete investigation
IPA may appeal requesting additional
investigation/analysis be conducted or close
IPA may appeal requesting additional
investigation/analysis be conducted or close
IF appeal granted, case returns to IA for
additional investigation/analysis
IF appeal granted, case returns to IA for
additional investigation/analysis
9 MONTHS
post receipt of case
Unless tolled, this entire process must be completed and notice of intended discipline (if any) be provided to the officer 365-days from the receipt of the complaint.
IA MAKES FINAL DECISION
ON ALLEGATIONS LISTED
2022 IPA YEAR END REPORT | 17
ALLEGATIONS CHART THE TRAJECTORY OF THE COMPLAINT
THUS CONTROL OVER ALLEGATIONS MUST BE FAIR AND OBJECTIVE
Duty Manual section C 1705 defines an allegation as an unproven accusation that a police officer violated Police Department or policy, procedure, or the law.10 To address allegations made against police officers, the Department has a process that proffers to protect both community and Department members.11 The Department classifies allegations into eight categories. The Department’s stated purpose in using these eight categories is to characterize objectively the conduct alleged and to avoid using value-laden words that will prejudge an allegation prior to investigation. 12
• Search or seizure
• Arrest or detention
• Bias-based policing
• Courtesy
• Force
• Neglect of duty
• Conduct Unbecoming An Officer (CUBO)
► Workplace Discrimination/Harassment allegations are generally handled exclusively by the City’s Office of Employee Relations within the City Manager’s Office.
► Who will be named as a subject officer?
► What evidence will be gathered?
► What rules apply?
► What questions can be asked of the officer?
►The level of discipline (if any)?
► Public disclosure (if any)?
The Department Exerts Significant Power Of The
Complaint Process By Assigning Allegations.
COMPLAINT ALLEGATIONS DETERMINE:
18 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
Following the publication of the IPA 2021 Report, we have become increasingly concerned that the Department is not dedicating objective attention to allegations. We believe that the IA unit sometimes avoids allegations, mischaracterizes conduct, dismisses allegations without investigation or findings, and omits allegations for fear that the mere presence of an unproven accusation is detrimental.
Join us for a brief Q&A session as
we explore the topic of allegations.
When is
force not
force?
When it’s
just
procedure
Despite a history of pattern and practice,
in September 2022, the IA began
categorizing an officer’s pointing a gun at
another person as a procedure allegation,
not a force allegation. We contend that
pointing a gun at a person constitutes the
use of force and should be investigated in
accordance with the Department’s Use of
Force policies and Fourth Amendment
principles.
In various parts of the country, law
enforcement agencies specifically include
pointing a firearm, without discharging it,
within the definition of reportable use of
force.
Case law recognizes that, depending on
circumstances, an officer’s pointing a
firearm at a person is excessive force.
See Recommendation #1 in Chapter Two.
QUESTIONS
ANSWERS
2022 IPA YEAR END REPORT | 19
We are very concerned that the Department
mischaracterizes certain use of force actions
as accidental when they may, in fact, be
intentional. Labeling conduct accidental
precludes it from ever being properly
examined as a use of force action. The
analysis of such conduct should explore
accidental causes, but targeted focus should
be on facts that imply intent.
As an illustration, in March 2021, the
Department initiated a case against one of its
officers. The subject officer deployed his Taser
twice. The first discharge was highly effective;
the suspect stiffened, fell backwards and hit
his head on the ground. The suspect was
rendered unconscious although the subject
officer claimed to be unaware of that fact. The
subject officer continued to give commands
to, not move. According to the officer’s
report, he then activated the TASER for a
second cycle because he, didn’t want to get
into another physical confrontation.
Our office asserted that two allegations of
force should have been investigated:
► FORCE: was the initial deployment of the
TASER in accordance with SJPD policy?
► FORCE: was the second deployment of
the TASER in accordance with SJPD policy?
Instead, IA attached these two allegations
to this investigation
► FORCE: was the initial deployment of
the TASER in accordance with SJPD policy?
► PROCEDURE: was the second
deployment of the TASER an accidental
discharge covered by L 2617?
The issue with IA’s characterization is that it prejudges the second deployment was accidental before conducting any IA investigation. This precludes a finding on the force used in the second deployment, regardless of whether it is sustained, not sustained, exonerated, etc. The label of accidental caused the investigation to view the officer’s actions as unintended. In this case, the subject officer provided multiple reasons why he intended to use and actually deploy his TASER for a second deployment indicating that he intended to use it. The subject officer intended to pull the trigger ⸺ and did pull the trigger. Such conduct should not be deemed accidental.
When it’s
accidental.
When is
force not
force?
20 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
In another case,13 IA investigated an officer’s use of his patrol car to block the path of a fleeing suspect as a vehicle collision accident under Duty Manual section L 2635.5 instead of a force allegation. Two suspects fled from officers and ran across a street and onto a dirt trail. Pursing the suspects, one officer drove over the curb and onto the dirt trail. The officer continued to drive behind the fleeing suspects with the police vehicle’s red lights and siren activated. The officer intentionally attempted to block the suspects’ path by driving in front of them but was unsuccessful. One suspect collided with the police vehicle and was run over after falling to the ground. The suspect’s injuries included a broken tibia, a broken pelvis and a broken ankle.
The IA investigation concluded the officer
did not intend to hit the suspect, and
deemed the collision was accidental. The
IPA contested this rationale. We
recommended that intentional acts of
force, such as utilizing vehicles to stop
pedestrians, be classified and investigated
as force allegations rather vehicle collision
accidents. Here the officer intended to use
his car to block the suspects; the facts
that he did not intend for the suspect to
be injured does not negate his use of the
car as a method of force.
2022 IPA YEAR END REPORT | 21
Investigations of alleged bias-based policing (BBP) incidents can be challenging. A very large percentage of such allegations are closed as
unfounded, both locally in San Jose and
nationwide. However, this does not mean that allegations of bias-based policing should be unilaterally dropped without investigation. When a person alleges that an officer engaged in such conduct, the standard investigative procedures should be taken, including documenting the allegation, obtaining supporting evidence such as documents and body- worn camera footage, interviewing relevant parties to obtain statements if warranted, and making a conclusion.
►The IPA accepts an unfounded finding only if it is supported by the investigative record, which means that the investigation proved that either the act or acts complained of did not occur.
► Similarly, a finding of no finding may be appropriate if it is supported by the investigative record for instance, the complainant failed to disclose promised information needed to advance the investigation or is no longer available for clarification of material issues.
The IPA strongly objects to dropping bias-based policing allegations before an investigation is finalized. Such conduct improperly prejudges the outcome.
In a case closed in 2022,14 the complainant alleged that an officer was biased based on the circumstances without further elaboration. Once supporting evidence such as documents and body-worn camera video were reviewed and officer statements obtained, the following facts emerged:
When are bias-based
policing allegations
not bias-based
policing allegations?
When these
allegations are
dropped without a
record, an
investigation or a
finding.
22 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
A driver was stopped by an officer who
suspected that the car’s registration had
expired. The officer did not believe the
driver’s explanation that the owner of
the car had updated that registration
just that morning. The driver provided
the updated papers and the car had up-
to-date registration tags. The driver and
the passenger, both Hispanic, were
directed to sit on the curb. It was later
discovered that both individuals had
expired driver’s licenses.
The driver refused the officer’s repeated requests to search the car. Body-worn camera video captures the officer using profanity. During the officer’s interview, he justified his use of foul language by saying: …. Sometimes talking in street lingo or verbiage are easier understood than others, and a way of talking to people, he may have understood me a little bit better. . . . . From my training and experience from working on the eastside, sometimes people don’t take, they don’t know how to interact with you, They don’t talk to you and sometimes if you curse or they curse at you, it’s kinda more of a street lingo. [Neither the driver nor the passenger cursed during the encounter]. The officer decided to tow the car; such action would allow him to conduct an inventory search of the car. The officer proceeded to do a full search of the car for weapons and evidence ⸺ an action not allowed by an inventory search. Contrary to Department’s guidelines, the officer refused to let the driver contact the owner of the car to get the car to avoid the tow. The IA investigation determined that bias could not be proven by applying a preponderance standard. A finding of not sustained was made.
Recall that the only detail that the driver provided to show bias was the circumstances and nothing else. Nonetheless, the allegation was properly attached and properly investigated.
Requiring a complainant to provide concrete facts before attaching a bias-based policing allegation is helpful but should not be determinative. Such detail is not required when attaching other allegations such as force, unlawful detention, etc.
2022 IPA YEAR END REPORT | 23
The Department should not hesitate to investigate conduct unbecoming an officer as a CUBO allegation if the circumstances warrant its inclusion.
C 1404 CONDUCT UNBECOMING AN OFFICER:
An officer’s conduct, either on or off duty, which adversely reflects upon the Department is deemed to be conduct unbecoming an officer. Each case of misconduct will be examined to determine if the act was such that a reasonable person would find that such conduct was unbecoming an officer.
The IA Unit received at least three separate complaints regarding alleged conduct that could constitute perjury and/or being untruthful.
(1) An officer signed an important form under penalty of perjury. This resulted in a state agency opening a potential perjury complaint against that officer.
(2) An officer signed a court affidavit under penalty of perjury.
The defense council presented the court with concerns about the accuracy and truthfulness of the officer’s statement. The judge granted the defense council’s motion to suppress
evidence.
(3) An officer testified at a preliminary hearing and at a motion to suppress evidence. The judge granted the suppression motions opining that the officer was not credible.
In each of these three cases, the IPA asked that a CUBO allegation be added. In each case, the IPA asserted that if the truthfulness of statements arising from an officer’s signature or testimony under penalty of perjury is challenged, such conduct should be examined under a CUBO allegation because a reasonable person could find such conduct unbecoming an officer.
IA did not add any CUBO allegations. Instead, the officers’ conduct was examined under various procedure allegations (e.g., R 1108 Accuracy & Brevity of Reports, C 1302 Law Enforcement Code of Ethics).
When is
CUBO not
CUBO?
When it’s
just
procedure.
24 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
The biggest problem with IA’s approach in labeling the allegations is that prejudges the conduct before any IA investigation has taken place. In doing so, IA precludes a finding on CUBO, whether that be sustained, not sustained, exonerated, etc.
A thorough and complete investigation of the complaint would have included CUBO allegation along with the other potentially applicable procedural allegations. Then both CUBO and procedure could have been examined under the facts without prematurely excluding CUBO.
As stated above, The Department should not hesitate to investigate conduct unbecoming an officer as a CUBO allegation if the circumstances warrant its inclusion.
What is stacking? (aka overlap) The Department and the City Manager assert that a CUBO allegation is not warranted or should not be sustained if the conduct at issue is otherwise covered by other duty manual sections.
An incident illustrates this concept of stacking. In July 2021, SJPD Officer E attempted to stop a vehicle for minor vehicle code violations. After passing a major street, Officer E informed SJPD communications of her intention to stop the vehicle. She activated his lights and siren on the avenue prior to passing the adjacent Street. The suspect vehicle failed to stop and made a rapid right turn onto that street. Officer E followed. The suspect’s vehicle reached over 100 mph as it fled from Officer E. The GPS device on Officer E's patrol car indicated she drove up to 80 mph. Notably, this location is a residential area, and the speed limit is 25 mph. Moreover, throughout the duration of her pursuit, Officer E failed to update communications to dispatch that the suspect was fleeing from her and that she was following him. In fact, Officer E did not transmit any radio traffic during the entire time she was following the suspect’s vehicle.
The IA investigation established that Officer E engaged in an unauthorized and unlawful high-speed pursuit. Surveillance video showed that the fleeing suspect’s vehicle traveling northbound at a high rate of speed entered a major intersection. The video shows a separate car traveling eastbound on another street and entering the intersection. The
When is
CUBO not
CUBO?
When there
is stacking
or overlap.
2022 IPA YEAR END REPORT | 25
suspect vehicle collided (“T-boned”) into the passenger side of the eastbound car. The impact of the collision was so forceful that it caused the victim 's body to be ejected from his vehicle, and the body then collided into a parked vehicle. The victim sustained severe injuries and was pronounced dead at the scene. Meanwhile, the suspect fled on foot and was not located. At the accident scene, Officer E failed to provide timely information about the fleeing suspect’s description and direction of travel.
The IA analysis concluded that Officer E’s actions were a contributing factor to the collision ⸺ a collision that caused a person to lose their life.
Officer E committed a number of violations. The Finding and Recommendation Process returned 12 separate sustained procedure allegations. However, IA staff deemed the CUBO to be exonerated.
We appealed this determination initially to the Police Chief and subsequently to the City Manager. We contended that the CUBO allegation should have been sustained as that allegation captured the entirety and gravity of the incident. Moreover, parsing conduct into separate procedure allegations did not sufficiently capture the bigger picture. Officer E’s combined actions both contributed to the fatal collision and the suspect’s ability to escape the area. Reasonable persons would find this conduct unbecoming and it reflects poorly on the Department.
The Department and the City Manager deemed otherwise. They determined that the subject officer’s conduct was adequately addressed under the 12 procedure allegations.
Their stated intention was not to add CUBO allegations simply because of the gravity of the situations or the egregious nature of a particular act of misconduct.
We strenuously disagree with the Department/City Manager’s assertion as it does not address the rare instances in which the violation of a Duty Manual section is so egregious that it would be deemed unbecoming an officer.
► Hypothetically an officer's use of force may be found not only excessive but also sadistic. A force allegation would not capture the gravity of the officer’s action and a member of the public would find the behavior unbecoming an officer. ► Hypothetically an officer's berating of a subject with racial slurs and profanity may be so intense and prolonged that a Courtesy and a BBP allegation would not capture the gravity of the officer’s action and a member of the public would find the behavior unbecoming an officer.
The CUBO definition is unique in that it incorporates a community standard, that of a reasonable person. To limit a CUBO allegation to only that conduct not otherwise covered by other duty manual sections unduly rejects community perspective.
A similar rationale was applied in another case. The subject officer responded to a family disturbance. Two women were at the home, one in her 70s and the other in her late 60s.
The officer was made aware that the younger woman had inherited all/part of the home 26 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
from a relative. The older woman was her sister-in-law who also lived at the home. She had recent surgery for cancer and was awaiting a second surgery for the same malady. Also present at the home was a young male relative who was visiting. As the officer attempted to gather details, the people started arguing. The officer responded to the women by repeatedly using offensive language, yelling at them, shining his flashlight into the older woman’s eyes, and following her into her bedroom where he continued to berate her. The explanation for his behavior was found to be not credible. However, the Department deemed the one Courtesy allegation to be sustained and the CUBO allegation to be not sustained meaning that the investigation failed to prove or disprove the allegation. The Department’s rationale was that the officer’s conduct was best analyzed under the Courtesy spectrum of misconduct and that a sustained finding on CUBO would be unfairly stacking allegations. We disagreed. From our perspective, the officer’s conduct was so egregious that it exceeded the spectrum of a Courtesy allegation. His mistreatment of two elderly women (one sick with cancer) was persistent, pervasive, and shocking.
THE DEPARTMENT SHOULD INVESTIGATE ALL APPLICABLE ALLEGATIONS REGARDLESS
OF OVERLAP/STACKING
The issue of the presence of overlapping allegations was addressed in a report presented to the City Council in December 2022. As mentioned above, in response to Council direction, the IPA and City Manager hired a consultant with expertise in evaluating Internal Affairs models and civilian police oversight models. Moeel Lah Fakhoury LLP (“MLF”) was chosen for this project after a formal request for proposal (RFP) process.
In its report, MLF stated that all applicable allegations be added even if they many overlap with other allegations. According to MLF, disregarding an allegation:
• results in an incomplete investigation, and
• does not result in the type of thorough and complete analysis calculated (1) to improve performance, and (2) to signal to the public that all potential misconduct and potential policy violations will be addressed.
15 We agree with MLF’s recommendation. Both the Department and the community are better served when all potential misconduct is addressed.
2022 IPA YEAR END REPORT | 27
IPA POLICY RECOMMENDATIONS
2 3
4 5
Tr ac k When an Officer Points a Firearm at a
Persons As a Use of Force.
The Department Should Use Best E fforts to
Tr ac k Data on Suspects Perceived Armed and
Weapons Found.
The Duty Manual Should Provide Guidance
That a Search of a Person Incident To Arrest
Applies Only and S olely to Full Custodial
Arrests.
The Department Should Provide Guidance
About Officer Discretion When Compelling
Citizens to Exit Cars to Sign Citations.
The Department Should Obtain Devices to
Verify Window Ti nt Prior to Issuing a Citation.
1 28 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
RECOMMENDATIONS
When the electorate of the City of San José amended the City Charter in 1996 to create the Independent Police Auditor’s (IPA) Office, the vote mandated that the IPA recommend ways to improve how San José police officers perform their duties. The IPA has a unique perspective from which to make informed proposals to the Police Department based on our independent review of complaint investigations, information we learn from the public through community outreach and research on best practices from other jurisdictions.
#1 TRACK WHEN AN OFFICER POINTS A FIREARM AT A PERSON AS A USE OF FORCE The IPA renews its 2018 recommendation that the SJPD track and document when an officer points a firearm at a person as reportable force. We recommend:
• that the pointing of a firearm at a person be included in Duty Manual L 2644 reportable use of force defined.
• that such use would require the completion of the Department’s Automated Use of Force Template
• that such use would cover any situation except that in which an officer’s gun is pointed at a 45-degree angle or less and not at a person. • that such use be reflected on the Department’s Force Analysis Dashboard.
The narrative from our 2018 Year End Report has been updated.
1. Over the intervening years, more law enforcement agencies included pointing a firearm as a Use of Force.
In 2021, the California Commission on Peace Officer
Standards and Training (POST) issued its most recent
Use of Force Standards and Guidelines.16 POST states
that pointing a weapon is a use of firearms. POST
outlines six separate elements under its Use of
Firearms Standard #6: An agency shall provide clear
and specific guidelines regarding situations in which
officers may or may not draw a firearm or point a
firearm at a person. SJPD may benefit from reviewing
these elements outlined by POST.
2022 IPA YEAR END REPORT | 29
Based on the June 2020 study,17 the Philadelphia Police Advisory Commission made eleven separate recommendations including:
► the Department’s use of force policy be amended to include the pointing of a firearm as a use of force
► the pointing of a firearm should be categorized as deadly force ► when reporting pointed firearm incident, officers should first relay event over the police radio so that a supervisor may respond to the scene; these radio transmissions must be preserved
► ensure that reporting procedures are categories to make later evaluation on data and incidents accessible
► seek community feedback while amending these policies
After 18 months of collaboration and study, the San
Francisco Police Commission adopted revisions to the
Department’s Use of Force policy in 2021.18 One key
change was broadening categories of Reportable Force
to include the intentional pointing of a firearm at the low ready.
The Commission approved additional revisions,
including pointing firearms, in March 2022.
In June 2020, the Philadelphia Police
Advisory Commission published its study
of other U.S. police department that track
pointed firearms events. Twelve law
enforcement agencies were selected. Nine
agencies deemed pointing a firearm as
force. Agencies differed on how they use
this information. Most use the information
to review compliance with firearm/force
policy. At least seven agencies release
the data in their annual use of force
report. A few used the data in their Early
Intervention Systems.
30 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
2. Research shows reporting such incidents reduces officers’ use of firearms Many departments restrict the display of firearms unless an officer has a reasonable belief that there is a substantial risk that deadly force may be justified. Common use-of-force policy language on this topic states that unnecessarily or prematurely drawing or exhibiting a firearm limits an officer’s alternatives in controlling a situation, creates unnecessary anxiety on the part of the citizens, and may result in an unwarranted or accidental discharge of the firearm.19
A recent study20 found that there is one policy associated with systematically reducing the rate of officer-involved shooting fatalities – a policy that requires officers to file a report when he/she points a gun at someone but does not fire. According to the study, Departments who have this policy in place have lower rates of officer-involved gun deaths.
The study reviewed a large data set of officer-involved shooting incidents, department- level policy data, and community-level demographics to determine whether specific policies can be associated with higher or lower rates of officer-involved shooting deaths.
This study also noted a legitimate concern by law enforcement agencies: whether implementing this policy will endanger the lives of the officers because he/she will hesitate when drawing their firearms in situations that could be life-threatening. The research has shown that implementing this policy has no effect on the rate of gun deaths of police officers. The study did not examine whether the policy had an effect on the rate of serious injuries sustained by either the citizen or the officer.
3. State regulations mandate the documentation of pointing a firearm The Department is already capturing this data to comply with state regulations. As of November 2017, the California Code of Regulations requires that any city or county law enforcement agency that employs peace officers must document all actions taken by them during a detention. The officer must document a variety of data values, including when a firearm is pointed at a person.21
5.01.07 Section G.1, Handling, Drawing and Pointing Firearms (d) Pointing a firearm at a person ⸺ the pointing of a firearm at a person is a seizure and requires legal justification. No officer shall point a firearm at or in the direction of a person or have the firearm at the low ready position unless they are objectively reasonable facts to believe the situation may escalate to justify deadly or lethal force. . . Officers shall document in their incident reports their justification for drawing exhibiting pointing their firearm or having their firearm at a low ready position.
(e)
Reporting - when an officer intentionally points any firearm at a person (including low ready) it shall be considered a reportable use of force such use of force must be reasonable under the objective facts and circumstances and such justification and circumstances shall be documented in their incident report.
2022 IPA YEAR END REPORT | 31
4. Other agencies recognize pointing a firearm as a reportable use of force We recommend that SJPD track and document pointing a firearm as a reportable use of force.22 Various law enforcement agencies in different parts of the country specifically include pointing a firearm, without discharging it, within the definition of reportable use of force. Officers are required to document all instances when a firearm is drawn and pointed at a citizen. A sample of agencies classifying a display of firearm as reportable force include:
• San Francisco Police Department
• Oakland Police Department
• San Diego Police Department
• Los Angeles Police Department
• Baltimore Police Department
• Cleveland Police Department
• Dallas Police Department
• Metropolitan Police Department in Washington, D.C.
• Portland Police Department
• Detroit Police Department
• Houston Police Department
• New Orleans Police Department
• Phoenix Police Department
• Seattle Police Department
• Denver Police Department
5. Other considerations:
• Case law recognizes that, depending on circumstances, an officer’s pointing a firearm at a person is excessive force. Thompson v. Rahr, 885 F.3d 582 (9th Cir. 2018), Robinson v. Solano City, 278 F.3d 1007 (9th Cir. 2002) • Prior to September 2022, an allegation that an SJPD officer improperly pointed his firearm was classified as a force allegation within the Department’s complaint process.
• The community, particularly those who have experienced such conduct, generally consider pointing a firearm as a Use of Force. Community members have indicated that experiencing this kind of force can be traumatic and intense; the memory of the encounter can resonate for years. It is frightening and suggests the possible imminent use of deadly force. • Documenting the conduct as a Use of Force would allow for the display of such conduct aside the other uses of force information already displayed on the SJPD Use of Force Analysis dashboard. Incorporating such data into the dashboard would allow one to more easily compare and contrast firearm 32 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
display with the other uses of force already captured (e.g., takedown, strike, impact weapon, canine, etc.).
• Documenting the conduct as a Use of Force requires review of the conduct by the officer’s immediate supervisor who can evaluate the circumstances, including review of body worn camera footage, and determine whether future action is necessary.
What is low ready and why is it important?
This term has been interpreted in a variety of ways. The highest threshold, and the one closest to deployment, is called on target. 23
Tactical positions lower than
on target generally incorporate the word ready. Here are two versions of low ready. Note the angle of the gun varies dramatically.
The distinctions are important. A less than precise description of what positions are covered can result in under-reporting. For example, a 2018 study found that Oakland Police were under-reporting use of force incidents.
24 Upon further examination, it was
revealed that there were two distinct definitions of the low ready positions.
We recommend that whatever tactical positions are covered, low ready be defined as any situation in which an officer’s gun
is pointed at a 45-degree angle or less and not at a
person.
2022 IPA YEAR END REPORT | 33
#2 THE DEPARTMENT SHOULD USE BEST EFFORTS TO TRACK DATA ON SUSPECTS
PERCEIVED ARMED AND WEAPONS FOUND
We recommend that:
• the Department direct its officers to, as accurately as possible, fill out these items in the force response report form and to use best efforts to confirm whether the suspect was armed:
o Was suspect perceived armed? [YES] [NO]
o If YES, indicate the weapon type (check all that apply) o Was the suspect confirmed armed? [YES] [NO]
o If YES, confirm weapon type (check all that apply)
• the supervisor who reviews the officer’s force response forms, ensures that the 4 questions listed above are completed before the supervisor signs off.
In our 2021 Year End Report, we focused on the particular aspect of the independent outside consultant (CNA) hired by the City to assess the Department’s Use of Force. Of note was the CNA narrative addressing the officers’ perception that a suspect was armed with a weapon. The threat of an armed suspect is certainly greater than that presented by an unarmed suspect. Additionally, the threat of a weapon provides substantial weight in justifying the use of force. How were those perceptions documented? The CNA report examined data from 2/17/17 to 2/27/27 reflecting 2,352 uses of force over roughly four years. This examination included data on those Use of Force events where the officer perceived a community member was armed (1,593 events relative to 2,352 total use of force events or 65%. Officers can conduct a frisk, or pat-down search, of a detainee to look for weapons if they have a justifiable belief that the person is armed and dangerous.
An officer has the option to identify a
single perceived weapon (e.g., a knife or a firearm)
or combinations (e.g., knife and firearm or knife and other).
• By far the most frequent weapon type option reported by officers was unknown. In 640 (40%) of the 1,593 events, the officers reported the weapon was unknown.
• Officers in 253 events (16 percent) reported a knife, blade, or stabbing instrument as the only weapon.
• Officers in 182 events (11 percent) reported that another dangerous weapon was the only weapon.
• In over half of the events (868 out of 1,593 or 54%), the officers reported the perceived weapon either as unknown (640 or 40%), other dangerous weapon (182 or 11%), or other and unknown (46 or 3%).
34 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
Number of Use of Force Reports with Listed Weapon
Compiled by CNA
This data warrants closer examination regarding the accuracy of the officers’ perceptions of persons being armed and/or the diligence of officers in completing the forms with sufficient detail. It is also important to ensure that the entry entitled weapons found be accurately completed. CNA did not provide data reflecting weapons found. The SJPD Force dashboard provides this information for calendar year 2021. Suspects armed with weapons, deadly or otherwise, were found in only 4% of use of force incidents. The CNA data reflecting officers’ perceptions of suspects armed with weapons differs markedly from the SJPD dashboard data reflecting actual weapons found by the officers.
2022 IPA YEAR END REPORT | 35
We believe that the accuracy of the officers’ perceptions of persons being armed and whether those perceptions are confirmed is important, especially for training purposes.
Additionally, the accuracy is important to members of the community who may be subject to searches/force because the officer perceives a weapon. This data may also provide some insights on the prevalence of the types of weapons in the community.
#3 THE DUTY MANUAL SHOULD PROVIDE GUIDANCE THAT A SEARCH OF A PERSON
INCIDENT TO ARREST APPLIES ONLY AND SOLEY TO FULL CUSTODIAL ARRESTS • We recommend that Duty Manual section L 4901 should expressly limit search incident to arrest to those situations in which a full custodial arrest is made. The current language does not make this requirement clear.
• Alternatively, if the Department deems that an officer can search for a bookable offense when there is no custodial arrest, we recommend that this be memorialized in the Duty Manual so there is no ambiguity about officers’ engaging in such conduct.
The Fourth Amendment of the U.S. Constitution controls when police can search persons.
The police are allowed to conduct a frisk or pat search of detained persons. To conduct a pat search, the office must have articulable facts that reasonably support a belief that the suspect is armed and dangerous. Terry v Ohio (1968) 392 U.S. 1, 21. The pat search is limited to an exploration of the outer clothing to determine whether the suspect is carrying weapons, such as guns, knives or other hidden instruments. People v Collins (1970) 1 Cal.3d 658, 662. Pat searches are generally viewed as minimally intrusive searches which ensure officer safety.
To reduce the dangers posed by a suspect whose freedom of movement will be clipped by an arrest, and to make it harder for arrestee to destroy evidence, the courts allow officers to make a search known as
search incident to arrest. United States v. Robinson (1973) 414 U.S. 218, 235. Knowles v Iowa (1998) 525 U.S. 113, 116. A search incident to arrest is entirely distinct from a pat search. A search incident to arrest is more intrusive; officers can search the entire person, including outer/inner clothing, and remove items from pockets. It extends to any container or article in the suspect’s possession.
These requirements must be met:
25 #1 Lawful arrest:
the suspect must have
been lawfully arrested.
#2 Custodial arrest:
the arrest must have
been custodial in
nature
#3 Contemporaneous
search:
the search must have
been contemporaneous
with the arrest
36 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
If these three requirements co-exist, the officer may conduct a search of the person. A lawful search incident to arrest is usually limited to the person and immediate surroundings of a suspect who is being lawfully arrested.
Our concern focuses on the second element – custodial arrest.
A custodial arrest means that the officers must have decided to transport the arrestee to jail, a police station or other place on confinement or treatment, i.e., he will not be cited and released at the scene. This requirement was imposed because the main justification for these searches is the increased danger that necessarily results from the extended exposure which follows the taking of a suspect into custody and the attendant proximity, stress and uncertainty.
26 The key California case is Macabeo in which the California Supreme Court concluded plainly: There is no exception for a search incident to citation.27 The court analyzed precedent and concluded the authority to search derives from taking a defendant into custody. Courts have since reaffirmed Macabo’s central holding.
The elemental requirement of a custodial arrest is outlined by the Alameda County District Attorney in their 2021 publication
Point of View. The full article is provided in the
appendix.
Because an arrest becomes custodial when the officers
decide to transport the arrestee, the search will also be permitted if officers had decided to take the arrestee to a detox facility, mental health facility, or hospital. An arrest of a minor is custodial if the arrestee will be taken to school, home, a curfew center; or will be taken into protective custody. Even if an arrestee is transported despite no
statutory authorization, the arrest is nevertheless
custodial
because
it is the decision to transport the arrestee - not the statutory authority - to do so that justifies the search.
On the other hand, an arrest will not be deemed custodial (1) if the officers had decided not to transport the suspect or (2) if the officers had not yet decided to what to do.
Thus, an officer cannot support his decision as to whether to transport the suspect based on the results of his search. If the officers are undecided as to whether to transport, that determination does not allow the officers to search incident to arrest.
The sequence is simple yet critical.
#2 Custodial arrest:
the arrest must have
been custodial in
nature
2022 IPA YEAR END REPORT | 37
We recommend that language be added to the Duty Manual Section L 4900 to make clear these requirements. In particular, L 4901 should expressly limit search incident to arrest to those situations in which a full custodial arrest is made. The current language does not make this requirement clear.
L 4901 When an arrest occurs, the officers making the arrest may perform a limited search with the areas under control of the arrestee. This means an area within which the arrestee could obtain a weapon or gain possession of evidence. Lacking the presence of emergency circumstances, further warrantless search will not be conducted.
This recommendation does not apply to searches of vehicles after the driver and/or passenger has been arrested. The guidelines of searching a car do not precisely overlap with those a searching an arrestee.
28 #4 THE DEPARTMENT SHOULD PROVIDE GUIDANCE ABOUT OFFICER DISCRETION WHEN
COMPELLING CITIZENS TO EXIT CARS TO SIGN CITATIONS
We recommend that the Department should provide guidance to its officers on how to exercise discretion when compelling citizen to exist car to sign citations. • That guidance should include the principle that officer discretion should be exercised judiciously and uniformly throughout the city.
Officers determine
that the suspect
determine that the
suspect will be
arrested &
transported
Officers may
search the suspect
incident to arrest
Officers cannot
search the suspect
incident to arrest
Officers cannot
search the suspect
incident to arrest
Officers cannot
search the suspect
incident to arrest
Officers determined
that the suspect will
be cited & released
at the scene and
not transported
Officers are
undecided whether
or not to transport
the suspect.
Officers decide to
wait until after the
suspect is searched
before determining
whether to
transport
38 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
• In addition, the practice of directing drivers to exit cars in order to sign traffic citations should be equal throughout the city.
If a car has been lawfully detained for a traffic violation, the police officers can order drivers to get out of the car without violating the Fourth Amendment proscription of unreasonable search and seizure. According to the Supreme Court, during a traffic stop the concerns about the safety of the police officer are legitimate and substantial; the intrusion placed upon the driver existing the car is a mere inconvenience. Pennsylvania v. Mimms (1977) 434 U.S. 106.
Officers can and often do ask occupants out of cars at beginning of stop. At this stage, the officer’s subjective opinion concerning his safety is legitimate and substantial.
Less frequently, officers can and do ask occupants out of car during the car stop. At this stage, the officer may have developed concern about his safety based on the interaction with the occupants and/or plain view search.
Even less frequently, officer can and do ask occupants out of car at the end of the stop and direct them to the patrol car to sign the citation. Why is this concerning? Because the longer the driver sits in the car, the officer’s concerns about his safety are more attenuated. Common sense dictates that, had the officer felt unsafe, he would have removed the occupants from the car at the start of the encounter or soon thereafter.
Likewise, the intrusion placed on the driver is now more than a mere inconvenience. The location at which a citation is signed should be the place most expedient to terminating the encounter. Ordering a driver out of the car and to the patrol car unleashes a cascade of potential consequences:
• It unduly prolongs the detention
• May result in the officer’s prerogative to conduct a pat search of the driver for weapons
• The officer’s placing hands on the driver may result in the driver’s tensing and/or pulling away
• The driver’s tensing and/or pulling away may result in the officer using more force and/or handcuffing the driver and/or criminal charges for resisting arrest. 2022 IPA YEAR END REPORT | 39
We are not disputing the discretion of the officer to ask the driver to exit the car to sign a citation. However, some in the community might view this conduct as harassment or a pretext to engage in a pat search or to gain a wider plain view search of the car’s interior.
29 We are asserting that the Department
and its officers should be aware of the public’s perception of this conduct when instructing its officers how to exercise discretion in such situations. An officer’s discretion should be exercised judiciously and uniformly throughout the city. In addition, the practice of directing drivers to exit cars in order to sign traffic citations should be equal throughout the city.
Duty Manual C 1305 EQUALITY OF ENFORCEMENT
People throughout the city have a need for protection, administered by fair and impartial law enforcement. As a person moves about the city, that person must be able to expect a similar police response to his/her behavior ⸺ wherever it occurs. When laws are not evenly enforced, a reduction in respect and resistance to law enforcement follows. The element of even handedness is implicit in uniform enforcement of law. The amount of force or the method employed to secure compliance with the law is governed by the particular situation. Similar circumstances require similar treatment ⸺ in all areas of the city as well as for all groups or individuals. In this regard department members will strive to provide equal service to all persons in the community.
#5 THE DEPARTMENT SHOULD OBTAIN DEVICES TO VERIFY WINDOW TINT PRIOR TO
ISSUING A CITATION
• We recommend that the Department obtain window tint measuring devices. • We recommend that Department require the use of such a device as objective measure to determine whether a citation should be issued. • We recommend that the Department track (a) stops based on window tint (b) the device results (c) whether a ticket or a warning was issued.
We hear both in complaints and anecdotally that officers often detain and then cite cars based on the tint of the windows or windshield.
In the state of California, there are very specific laws governing the percentage of window tint darkness and reflection an automobile is allowed to have.30 The amount of light which passes through the window of an automobile is measured in Visible Light Transmission (VLT)31 percentage. This refers to the amount of light that can pass through the glass as well as the tint film. The 2023 California window tint laws requirements are for the front As one subject officer
explained, I ask
everyone outside to
my vehicle to sign
citations, I like to get
people out of their
comfort zones due to
officer safety concerns
and case law.
40 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
windshield and front side windows to have a 70% VLT. California car window tint law has no restriction on how dark the tint on the rear and back side windows can be. However, if the rear window of a vehicle is tinted, it has to have dual side mirrors.
How do officers discern when the tint exceeds state law? SJPD does not require the use of a Window Tint Card or window tint measuring device before issuing a citation for window tint. Furthermore, the Department does not have any of these devices for an officer to use, including those officers in the Traffic Enforcement Unit (TEU).
2022 IPA YEAR END REPORT | 41
We are not questioning an officer’s discretion to use
his/her visual assessment of tint when stopping a car
for tint. If the officer has reasonable suspicion to
believe the tint is unlawful, he/she may stop the car.
However, requiring the use of such a device would
provide an objective measure to determine
whether a citation should be issued. Using such a
device would allow greater confidence in the
public that an officer’s concerns about the amount
of tint is legitimate. The results would provide
immediate feedback to the officer on whether
probable cause to cite exist. Documenting the
results of the device on the officer’s BWC and on
the ticket would provide data dispelling concerns
about the detention being harassing or
pretextual.
32 Such documentation could lead to
the difference in the driver being cited with a fix-it
ticket or infraction which entails money, time and
effort or being released without a ticket. Once the
tint level is confirmed, the officer should not
unduly prolong the detention.
While the range of VLT from 10% to 90% tint is fairly obvious:
The range of VLT from 60% to 80% is not as obvious.
33 Mechanical devices provide a
method to precisely measure what the human eye may not readily discern. This is particularly true if the detention occurs at night, or in poor lights or bad weather.
Officer may use reasonable suspicion to
stop and temporarily detain the car to
determine if the tint is unlawful.
Officers should use a tint measuring
device to confirm the tint level before
issuing a citation based on probable
cause.
42 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
We recommend that the Department research how other law enforcement entities train and deploy window tint measuring devices. These battery-powered devices appear to be both small and lightweight. The price for one device purchased on-line is approximately $150. 34 Presumably the Department would be able to find a lower price if purchasing in bulk.
Inspector II tint meter
$179
Product Dimensions:
3.75 x 1.25 x 1.75 inches;
3.2 Ounces
RockRose portable solar
tester meter
$109.95
7.13 x 4.17 x 1.93 inches;
5.82 Ounces
Inspector II tint meter
$179
Product Dimensions:
3.75 x 1.25 x 1.75 inches;
3.2 Ounces
2022 IPA YEAR END REPORT | 43
44 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
INTAKE AT IA UNIT OR IPA
OFFICE
INVESTIGATION
CONDUCTED BY IA
IA CLOSURE
IPA REVIEW & APPEAL
PROCESS
IPA CLOSURE
IA SENDS CLOSING LETTER
TO COMPLAINANT &
OFFICERS
IPA SENDS CLOSING LETTER
TO COMPLAINANT
OVERVIEW OF
COMPLAINT PROCESS
INTAKE TO CLOSE
Generally, this process must be
completed within one year.
2022 IPA YEAR END REPORT | 45
IA UNIT CLASSIFIES
ENTRY INTO SHARED
DATABASE (IA PRO)
FLOWCHART
OVERVIEW OF INTAKE
AND CLASSIFICATION
PROCESS
INTAKE AT
IPA OFFICE
INTAKE AT
IA UNIT
Next Flowchart:
IA investigation
IA UNIT DETERMINES
ALLEGATIONS
COMPLAINT ASSIGNED
TO IA STAFF FOR
INVESTIGATION
46 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
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 submitted by community members are distinct from investigations initiated by the Department (DIIs) which will be discussed later in this chapter.
Complaints can be filed either with the IPA or with the Internal Affairs (IA) Unit of SJPD.
For the past five years, a majority of complaints have been filed with the IA Unit.
Anyone can file a complaint regardless of age, immigration status, or city of residence.
It does not matter whether the complainant was directly involved in the incident, observed the incident as a bystander, or learned about the incident on the news or through word of mouth.
Anyone can file a complaint. Complainants may also choose to remain anonymous.
During the intake process, IPA staff or IA staff will take a statement from the complainant.
This statement is recorded (with the complainant’s permission) to ensure that the complainant’s account of the incident is documented accurately. IPA staff review every contact to ensure that each concern about misconduct is properly captured and classified.
IPA staff will also send an acknowledgment of receipt to any complainant who provides their contact information. The complaint is then entered into a shared IA/IPA database. This initial process is called
intake.
In 2022, a total of 358 complaints and concerns were filed by members of the community.
An additional 55 complaints were initiated by the Department against one of its sworn employees.
Illustration A: Complaints Received — Five Year Overview (2018-2022)*
*Excluding Department-Initiated Investigations
248 216
269
333
358
200
250
300
350
400
2018 2019 2020 2021 2022
Number of Complaints
INTAKE AT IA UNIT OR AT THE
IPA OFFICE INTAKE PROCESS
2022 IPA YEAR END REPORT | 47
48 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
After the complaint has been entered into the shared database (IA Pro), IA staff will classify the complaint based on the subject matter of the complaint and whether a full investigation is warranted. There are five classifications. Only complaints classified as Conduct Complaints are subject to a full investigation. IPA staff review the Department’s decisions early in the process and can appeal if the classification is not appropriate.
► Next: IA unit determines allegations
for conduct complaints
IA Unit classifies
►Next: IA unit determines allegations
THE CLASSIFICATION
PROCESS
◄Prior: Entry into shared data base
2022 IPA YEAR END REPORT | 49
Conduct Complaints contain one or more allegations. An allegation is an unproven accusation that an SJPD officer violated Police Department or City policy, procedure, or the law. The Department policies are listed in the SJPD Duty Manual. At the intake stage, these allegations are assertions whose validity has not yet been determined. Throughout the process, IA investigators obtain records and statements that provide additional details, including those which may corroborate or conflict with the assertions made by the complainant.
There were 246 Conduct Complaints filed in 2022. These Conduct Complaints contained 802 distinct allegations. The number of allegations always exceed the number of complaints because a complainant may raise multiple issues of concern within a single complaint. For example, a person may complain that one officer engaged in several types of misconduct during one traffic stop, such as being rude, searching the car, and acting in a biased manner [three separate allegations]. As a different example, a person may complain that several officers engaged in one type of misconduct during an encounter, such as three officers each using excessive force [three separate allegations].
The number of Conduct Complaint increased from 2021 to 2022; however, the number of allegations contained in those complaints decreased over the same time period.
►Next: IA Unit investigates
IA adds allegations
► allegation definitions
◄ Prior: IA unit classifies
IA Unit adds
allegations ADDING ALLEGATION
PROCESS
50 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
See DM section C 1723 for precise wording
IA adds allegations
► allegation definitions
2022 IPA YEAR END REPORT | 51
52 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
DII ALLEGATIONS
RECEIVED IN 2022
………………………………………………………………………………………………………………………………………………………….
Procedure
NOD
Courtes
Force
NO ALLEGATIONS OF
BIAS-BASED POLICING
SEARCH/SEIZURE
ARREST/DETENTION
116
26 1
CUBO
9 4
1 Workplace
H/D
COURTESY
WORKPLACE D/H NOD CUBO
116
4 5 5
CONDUCT COMPLAINT ALLEGATIONS RECEIVED IN 2022
26 ARREST/
DETENSION
88 SEARCH/
SEIZURE
86 BIAS-BASED
POLICING
86 FORCE
84 PROCEDURE
344
2022 IPA YEAR END REPORT | 53
FLOWCHART
OVERVIEW OF IA FORMAL
INVESTIGATION PROCESS
◄Prior flowchart: overview of classification/intake processes includes interviews of officers
Interviews non-
sworn persons
reviews evidence &
determines
relevant facts
Case forwarded to IA Sergeant
Evaluates facts
developed by IA
officers
Interviews sworn
officers &
determine relevant
facts
Gathers additional
information if
necessary
Using the preponderance of evidence standard
IA Sergeant applies the
pertinent facts to the
applicable rules
IA Sergeant makes a
finding on each allegation
IA forwards
the case to IPA
for review
IA Sergeant prepares an
investigation document.
IMPORTANT FACT
The Police Department’s Internal Affairs Unit has the sole authority to investigate police misconduct. Currently, the IPA does not have investigatory powers.
Case assigned to IA officer who:
54 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
IA investigators review relevant documentation such as police reports, body-worn camera video, and dispatch records. IA may also conduct follow-up interviews with the complainants, witnesses, and officers to gather more information about the incident. This evidence is collected to determine what facts support or refute the allegations in the complaint. The evidence is then analyzed in light of relevant SJPD Duty Manual policies and procedures.
FOUR Essential components to the INVESTIGATION PROCESS
Were the officer’s actions
lawful and within policy?
Weigh facts supporting or contradicting
whether the alleged act occurred
Using the preponderance standard,
determine whether it was more likely
than not that the alleged act occurred.
#4
Make a finding
the complainant (if not anonymous)
civilian witness/witness officers
subject officers
persons with knowledge of
subject/incident (e.g., a DMV employee,
a deputy district attorney, etc.)
the police report
CAD
Body worn camera video
Other items (e.g., surveillance video, cell
phone photos from onlookers, medical
records)
SJPD’s Duty Manual
Other SJPD procedures set forth in
General Orders, Unit Guidelines, etc.
San Jose City Policy Manual and other
formal City policies
Local, state, or federal law
Who was involved in or
witnessed the incident?
Who can provide the
investigator with useful
information?
Was the incident
documented or
recorded?
What policies or laws
apply to the incident?
See IPA review &
appeal flowchart
#3
Identify
applicable rules
#2
Identify & gather
evidence
#1
Identify People
2022 IPA YEAR END REPORT | 55
OVERVIEW
IPA REVIEW PROCESS
If there are concerns about one or more of the four factors, the IPA may appeal.
If there are no concerns, the IPA will close the case.
IPA reviews IA case investigation & supporting
documentation/analysis. What do we look for?
Seven essential elements:
◄ Prior: IA forwards case for IPA review
timeliness allegations documentation interviews analysis application of policy to facts
use of preponderance standard
At a group staff meeting, IPA staff discusses IA’s investigation and analysis of the case.
Four factors are key:
#1 WAS IA’S INVESTIGATION
FAIR?
#3 WAS IA’S INVESTIGATION
THOROUGH?
#4 WAS IA’S INVESTIGATION
OBJECTIVE?
#2 WAS IA’S INVESIGATION
COMPLETE?
56 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
WHAT WE LOOK FOR
Our officer reviews IA investigations to ensure they are fair, objective, thorough and complete. We do this by considering a number of factors some of which are included in this chart.
2022 IPA YEAR END REPORT | 57
FOUR CATEGORIES OF
IPA ASSESSMENT OF
COMPLAINT INVESTIGATIONS
Excludes DIIs
— Agreed at First Review —
The IPA agreed that IA’s investigation
was fair, thorough, complete, and
objective upon initial review.
— Agreed After Further Action —
IPA requested that IA complete
additional investigation and/or
analysis and IA provided a
satisfactory response to that request.
— Closed with Concerns —
The IPA had issues with IA’s
investigation and/or analysis, but the
concerns did not warrant a formal
disagreement.
— Disagreed —
The IPA determined that IA’s
investigation and/or analysis were
not thorough, complete, objective,
and fair.
IPA Determinations in
Closed DII Investigations
IPA Determinations in
Conduct Complaints in 2022
Upon first review, the IPA agreed that the IA
investigation was fair, thorough and complete
in 56% of conduct complaints closed in
2022. This is a significant decline from prior
years (72% in 2021, 71% in 2020, and 84%
in 2019).
The IPA agreed that the IA investigation of DII
complaints was fair, thorough and complete in
77% of the cases closed in 2022.
58 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
COMPLAINTS CLOSED IN 2022
In each complaint, the Department must make a
finding of whether the alleged misconduct occurred.
Findings are based on an objective analysis using the
preponderance of the evidence standard. This
standard governs the amount of evidence needed in
order to make a determination.
Dispositions of Allegations Closed in Conduct Complaints
Dispositions of Allegations Closed in DII Complaints
51%
49%
2022 IPA YEAR END REPORT | 59
See DM section C 1723 for precise wording.
60 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
2022 IPA YEAR END REPORT | 61
Type of Discipline Imposed by Department
31 34
15 1
4 1 2 1
3 0
5 10
15 20
25 30
35 40
62 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
A CLOSER LOOK AT SUSPENSIONS
A suspension is one form of Department discipline. Historically a suspension resulted in officers being off work and without pay for a specified period of time ⸻ typically between 10 hours and 180 hours. If there is mutual agreement, the city and the officer may enter into a settlement agreement in which some suspension hours are off work and without pay and the remaining suspension hours are held in abeyance. Officers need not serve the suspension hours in abeyance as long as the officer follows the details of the settlement agreement. The terms of these agreements generally indicate the officer must refrain from engaging in the type of misconduct which led to the suspension for a certain period of time, usually two to three years. If the officer complies with the agreement, the hours held in abeyance are cancelled.
However, under the most recent agreement with the police Officers Association, officers no longer must serve suspension hours off work and without pay. Instead, this new MOU provision allows for suspensions to be served via a one-step pay reduction rather than the officer being sent home without pay. Thus, during the time an officer is on suspension the officer continues to receive a paycheck, does not lose out on their benefits, and maintains their senior seniority
20 hours
suspension
Discipline
Imposed
# of
Officers
Disposition
1 Outcome
Disciplinary
Settlement
for 1 officer
10 hours actual suspension
10 hours suspension held in abeyance
40 hours
suspension 4
Disciplinary
Settlement
for each officer
20 hours actual suspension
20 hours suspension held in abeyance
120 hours
suspension
80 hours
suspension
120 hours
suspension
160 hours
suspension
1 1
1 1
Disciplinary
Settlement
for 1 officer
Skelly Hearing
Hearing
for 1 officer
No settlement
80 hours actual suspension
Officer’s employment ended before
suspension imposed
120 hours actual suspension
60 hours actual suspension
20 hours suspension held in abeyance
40 hours suspension held in abeyance
No settlement
2022 IPA YEAR END REPORT | 63
64 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
USE OF FORCE
When it comes to public perceptions about policing, the use of force generates the most controversy. Due to the high degree of interest in how, why and on whom police officers use force, the IPA is required by the City Municipal Code to audit every IA investigation containing a Force allegation.
The Supreme Court ruled in
Graham v. Connor, 490 U.S. 386 (1989) that all force used by police officers must be objectively reasonable and that a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The San José Police Department (SJPD) Duty Manual section L 2602 states that objectively reasonable force is that level of force which is appropriate when analyzed from the perspective of a reasonable officer possessing the same information and faced with the same circumstances as the officer who has actually used force.
An examination of force must answer these three questions:
.
The investigation must examine all relevant factors including:
S
The investigation should also consider the duties of officers who do not use force:
#2
Was the force
reasonable?
#3
Was the force
within SJPD
policy?
THREAT
PRESENTED BY
THE SUSPECT
RESISTANCE
OFFERED BY THE
SUSPECT
SEVERITY OF
THE CRIME
#1
Was the force
lawful?
Officers have a duty to
report force used by other
officers if believed
excessive
Others have a duty to
intercede if forced used by
other officers is clearly
excessive
2022 IPA YEAR END REPORT | 65
A Force Complaint is a complaint that includes one or more allegations of excessive force.
Force complaints usually represent about 12% (44 out of 358) of all complaints filed.
Force Complaints Received Relative to Total Complaints Received*
*Conduct Complaints only
There is a significant difference between the number of force allegations filed by community members and the number of force allegations initiated by the Department against one of its officers. Similarly, there is also a significant difference between the number of officers named in force complaints filed by the public and the number of officers named in force complaints initiated by the Department. Here is the data from force cases received over five years (2018-2022).
Complaints received in 2022 showed a decline in Force allegation*
*Conduct Complaints only
248
216
269
333 358
46 45 62 54
44 0
50 100
150
200
250
300
350
400
2018 2019 2020 2021 2022
Number of Complaints
Total Complaints
Force Complaints
Total Total Total Force Complaints
Year Force Force Number of As % of
Allegations Complaints Complaints Total Complaints
2018 98 46 248 19%
2019 100 45 216 21%
2020 111 62 269 23%
2021 121 54 333 16%
2022 84 44 358 12%
66 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
FIVE YEARS
522 TOTAL FORCE
ALLEGATIONS FILED
(2018-2022)
514 force
allegations in
conduct complaints
63 officers
named in 1 force
complaint
5 officers named
in 2 force
complaint
8 force allegations
in complaints
initiated by the
Department (DIIs)
63 5 1
1 officer named in 1
force complaint initiated
by the Department
2022 IPA YEAR END REPORT | 67
DISPOSITIONS OF ALL FORCE ALLEGATIONS CLOSED in 2022
OFFICER-INVOLVED SHOOTINGS
SJPD policy states that an officer may discharge a firearm when deadly force is both objectively reasonable and necessary for self-defense or in defense of another person’s life. (Duty Manual section L 2638)
SJPD Officer-Involved Shooting Investigations & Review Panels
Criminal Process: Every officer-involved shooting that results in death is subject to an investigation and review process. The Department’s Homicide Unit conducts a criminal investigation which is then submitted to the Santa Clara County District Attorney. The District Attorney determines whether criminal charges will be filed.
Pursuant to California Assembly Bill 1506, effective July 2021, the California Department of Justice will be in charge of investigating and prosecuting all fatal OIS incidents involving an unarmed civilian.
Administrative Process: The Department’s Internal Affairs Unit conducts a separate investigation of fatal and non -fatal incidents. This is an administrative investigation to determine whether the use of force was within Department policy. Until this year, the extent of the IPA’s role in reviewing the administrative investigation depended upon whether a member of the public had filed a complaint about the incident. If so, the IPA would audit the Department’s administrative investigation of the incident to assess whether it was fair, thorough, complete and objective.
Measure G, passed by the voters in 2020, expanded the IPA’s ability to review records about officer-involved shooting incidents.
Officer-Involved Incident Training Review Panel: The Department also convenes a shooting review panel to determine whether a possible training, equipment or policy
68 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
issue exists requiring closer examination. The Department holds these Officer - Involved Incident (OII) review panels within 90 days of fatal and non -fatal incidents.
The IPA and IPA senior staff attend the OII review panels and can ask questions about training, procedures and equipment. These sessions provide the IPA with valuable information that can serve as the foundation for future policy recommendations.
Pursuant to California Assembly Bill 1506, effective July 2021, the California Department of Justice will be in charge of investigating and prosecuting all OIS (Officer-Involved Shooting) incidents involving an unarmed civilian.
2022 IPA YEAR END REPORT | 69
70 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
OFFICER-INVOLVED SHOOTING INCIDENTS IN 2022
OIS
No. 1
Race of suspect -- White
Gender -- Male
Deceased or injured -- Deceased
Armed -- Handgun
Prior convictions -- Yes
On probation or parole -- Yes
Known mental health history -- None
CIT on scene -- Yes
Number of officers who fired weapon -- 4
Involved officer(s) experience -- 21 years, 8 years, 6 years, 5 years
OIS
No. 2
Race of suspect -- African American
Gender -- Male
Deceased or injured -- Injured
Armed -- Handgun
Prior convictions -- No
On probation or parole -- No
Known mental health history -- None
CIT on scene -- Yes
Number of officers who fired weapon -- 1
Involved officer(s) experience -- 4 years
OIS
No. 3
Race of suspect -- Hispanic
Gender -- Male
Deceased or injured -- Deceased
Armed -- Handgun
Prior convictions -- Yes
On probation or parole -- No
Known mental health history -- None
CIT on scene -- Yes
Number of officers who fired weapon -- 2
Involved officer(s) experience -- 27 years, 4 years
2022 IPA YEAR END REPORT | 71
STATE OIS INVESTIGATIONS - UPDATE ON ASSEMBLY BILL1506
In our 2021 Year End Report, we outlined, a
new law with potentially big impacts.
Historically, officer-involved shooting (OIS)
incidents in California have been handled by
local law enforcement agencies and the state’s
58 district attorneys within the County where
the incident occurred.
AB 1506 turned some of that responsibility
over to the California Department of Justice in
an effort to strengthen public trust in and
understanding of the process. One supporting
premise is that the state’s top law enforcement
officer can be more removed from local
pressures. The state Attorney General has hired
qualified persons to serve on the California
Police Shooting Investigation Teams (CaPSIT).
AB 1506 covers only those incidents in which a
law enforcement officer shoots and kills an
unarmed civilian.
35 When a qualifying incident
occurs, CaPSIT team members deploy to the incident scene. Team members coordinate with local responding agencies throughout the investigation of the OIS. CaPSIT members serve as concurrent, independent investigators of these OIS incidents. Once the initial investigation is completed, the matter is turned over to the California DOJ’s Special Prosecutions Section within the Criminal Law Division for review.
When appropriate, the DOJ will disseminate relevant information and materials about covered incidents and, ultimately, make public its determinations whether criminal charges are or are not appropriate.
36 Cases that have been completed by the DOJ will be added to the case archive webpage.37 Local investigators will meanwhile review whether the officer followed departmental procedures or if there is any civil liability, as well as review any suspected crime that may have led to the shooting.
38 On November 3, 2022, California Attorney General Rob Bonta announced the result of the DOJ’s first investigation and review under California Assembly Bill 1506. This first investigation concerned the death of Matthew James Silva who was shot and killed by Los Angeles Police Department officers on July 15, 2021.39 As of April 2023, the AG has completed its investigation of two incidents and those reports are available online.40 In addition, 33 other incidents are currently under investigation; details about these cases are available online.41 Recently, there has been criticism about the speed of these DOJ investigations.42
72 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
2022 IPA YEAR END REPORT | 73
CLOSE AS DISAGREE – CASE #1
Summary:
In January 2022, at approximately midnight, a blue Chevy Tahoe entered the parking lot at the police administrative building. Shortly thereafter, a dark blue BMW entered the same parking lot. The BMW parked next to the Chevy Tahoe. Some minutes later, the two female occupants of the BMW, flagged down Officers A and B who were speaking with unrelated persons in the parking lot about a separate incident.
The women claimed that the man in the blue Chevy Tahoe parked next to them stole one of their wallets. Simultaneously, the driver in the Chevy Tahoe attempted to flee the parking lot. Officer B ordered the driver to park the Chevy and he complied.
When questioned, the driver of the Chevy Tahoe told the following 1) he did not know the two women
2) he did not have their wallet
3) he had driven to the SJPD parking lot to sleep because he had consumed a few beers [the officers had not observed any symptoms of intoxication.]
While the alleged theft was investigated, the driver identified to himself to Officer B as a retired SJPD officer currently serving as a reserve officer for the department. [Note: Seven days after this incident, Reserve Officer X resigned from his position as a reserve officer.] Officer A requested additional fill officers and Officers C and D arrived.
During their investigation into the theft of the wallet, the officers learned that the two women were massage therapists hired by Reserve Officer X after meeting him online.
Earlier in the evening, Reserve Officer X had met the women at the Wyndham Hotel. During their encounter at the hotel, Reserve Officer X discovered that the women were not girls.
This caused him to leave the hotel without paying the women $120 they had requested for their services. Reserve Officer X then drove to the police station. Reserve Officer X told Officer B that one of the women must have been pissed cause I didn’t give her the money.
That’s why she came over here.
The women told officers that they were not associated with any business and instead were independent, private massage therapists. The women stated they travelled to San José from Fresno, where they reside.
Unable to determine the location of the woman’s wallet, Reserve Officer X was allowed to leave the scene. The women were provided a case receipt.
On January 27, 2022, Lieutenant L1 issued a memo recommending that a Department Initiated Investigation (DII) be opened against four San José full-time officers, Officers A, B, C and D. No recommendation was made that Reserve Officer X’s conduct be investigated.43
74 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
Department-Initiated Investigation and Analysis:
The investigation was assigned to Lt. L2 who was serving in the Bureau of Field Operations (BFO) and not within the Internal Affairs Unit. The scope of the investigation included neglect of duty allegations and a procedure allegation against the four subject officers who were on scene that night.
All four subject officers were interviewed. No notice of these interviews was provided to the IPA. Hence IPA staff could neither attend nor question the officers. Moreover, no documented attempts were made to interview Reserve Officer X, who had resigned.
The investigation into the four subject officers resulted in the following findings:
• Neglect of Duty: Failing to properly investigate and report a DUI investigation regarding Reserve Officer X’ admission that he had consumed so much alcohol that he had to sleep off the effects of the intoxicant in the police parking lot. All officers were exonerated. • N eglec t of Duty: Failing to properly investigate and report a theft case regarding the women's wallet. All officers were exonerated.
• Pr ocedure Failing to notify Internal Affairs of an allegation of a felony/misdemeanor involving a department member [Reserve Officer X]. Three officers were exonerated. a single allegation was sustained against one officer.
Of great significance is the fact that the BFO Lieutenant acknowledged in his own investigation that a violation of prostitution may have occurred between the complaining parties and Reserve Officer X. That analysis states:
Because the statements of the complaining parties changed significantly, it led me to believe the complaining parties believed they were wronged by Mr. X in a way they were unable or unwilling to fully report to officers. Likely because it may have involved illegal activity such as prostitution.
IPA Concerns and Appeal:
The IPA did not contest the findings made against the subject officers. Our concern was that an allegation of failing to investigate prostitution was not included in the BFO investigation. It should have been.
Police officers are entitled to investigate criminal activity when there is reasonable suspicion based on the totality of the circumstances that a crime has occurred or is ongoing. Reasonable suspicion is the lowest legal standard. It permits an officer to take investigatory steps into possible criminal activity as was present here.
Objective facts that provide the basis for reasonable suspicion may be gleaned from statements made by individuals. The statements by the parties on scene here provided officers the legal justification to investigate whether prostitution occurred involving a fellow department member.
2022 IPA YEAR END REPORT | 75
At the minimum, the apparent violation of San José City Ordinance 6.44.380 limiting when massage may be performed at hotels should have prompted further investigation.44 Under closer examination, the statements and explanations of the women which were inconsistent with those of Reserve Officer X should have created a reasonable suspicion that prostitution may have occurred.45 The IPA is concerned (1) that prostitution involving a department member was not investigated by the four officers, and (2) that the absence of such an investigation was not part of BFO’s investigation.
Our initial appeal to the Police Chief requested a new allegation be opened to determine whether the subject officers failed to investigate prostitution involving a former SJPD sergeant/current reserve officer. We did not prejudge the outcome of that investigation.
We simply requested that an allegation of potential misconduct be investigated.
Appeals Process And Closure:
Despite our recommendation, the Chief declined to investigate whether SJPD officers failed to investigate a prostitution case involving a reserve officer in January 2022.
The IPA appealed to the City Manager. We contended that there was sufficient indicia of pr
ostitution such that an investigation into prostitution should have been commenced. The City Manager denied the IPA appeal. She reiterated the Chief’s statement that there were insufficient facts to add an allegation as to whether prostitution should have been investigated by the officers that evening.
The IPA closed this case as disagree. We believe that irrespective of the facts, bo th the Chief and the City Manager prejudged the outcome of the allegation by stating that there was no indicia (or reasonable suspicion) to investigate the crime. The purpose of the investigation, however, would have focused on the very fact of whether reasonable suspicion existed utilizing a preponderance of evidence standard. The IPA was not prejudging the outcome of the allegation investigation. But we felt strongly that an investigation should have commenced to determine the facts.
Since 2018, the SJPD has devoted considerable efforts to shutting down massage business that fail to conform to the governing ordinance. 46 Issues with the City’s regulation of massage establishments was again in the public spotlight when a City inspector was charged in 2020 and later convicted in 2022 of several offenses.47 Even with the benefit of hindsight and access to evidence, as well as its own suspicion that the crime of prostitution may have occurred, IA did not investigate whether the subject officers failed to conduct a prostitution investigation into a department member.
Confidence in internal investigations can only be maintained when the veracity of the investigation scales with the seriousness of the allegations or the conduct in question. In July 2022, the Department spoke with local media about SJPD’s resolve to identifying and investigating misconduct committed by San José police officers. 48 When public trust is
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undermined by the conduct of officers, it is only exacerbated when the investigatory arm of the department serves to condone, not correct, that conduct.
This Department Initiated Investigation fell short. The Department had a clear opportunity to ensure the investigation was comprehensive. Instead, it chose to ignore examining potential misconduct.
CLOSE AS DISAGREE – CASE #2
Summary:
In July 2021, at approximately 3 a.m., a patrol watch commander responded to a fatal hit- and-run collision that occurred at 3rd Street and Truman Ave. The commander spoke with several officers at the scene including Officer E, who said that she had attempted to conduct a traffic stop on the subject vehicle prior to the collision. Specifically, she tried to initiate a traffic stop when the suspect’s car turned right onto Truman Ave. She followed the vehicle for a short distance with lights and sirens, but when she realized the suspect was not going to stop, she stopped her patrol car in the roadway just north of 2nd Street.
Officer F pulled up next to her and inquired why she had stopped in the roadway. At that moment, one or both of them heard a collision in the area of Truman Ave and 3rd Street.
The officers drove to that location and discovered that the suspect’s vehicle had collided with another vehicle (“victim’s vehicle”).
The watch commander reviewed the reports of both officers E and F and the surveillance videos from several houses and businesses along Truman Ave. He noticed inconsistencies between the officers’ verbal statements to their supervisor at the scene and their written reports. As a result, a Department-Initiated Investigation was opened.
Department-Initiated Investigation and Analysis:
The Internal Affairs (IA) Unit staff obtained and analyzed surveillance videos from several houses and businesses along Truman Ave. In addition, they obtained and reviewed GPS data from both officers’ vehicles, and also reviewed available body-worn camera (BWC) footage. The IA Unit interviewed both subject officers.
Despite Officer E’s innocuous description of the event, the investigation established that she engaged in an unauthorized and unlawful high-speed pursuit which caused a fatal collision between the suspect’s vehicle and the victim’s vehicle. The impact of the collision was so forceful that it caused the victim 's body to be ejected from his vehicle, the body then collided into a parked vehicle on the northeast corner of 3rd Street and Truman Ave.
The victim sustained severe injuries and was pronounced dead at the scene. Meanwhile, the suspect fled on foot and was not located. At the accident scene, Officer E failed to provide timely information about the fleeing suspect’s description and direction of travel.
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Officers’ actions during the pursuit
The investigation considered whether both officers had violated Duty Manual sections governing police pursuits. A fundamental element is the speed of a pursuit. SJPD detectives determined that the suspect’s vehicle reached over 100 mph as it fled from officer E. The GPS device on officer E's patrol car indicated she drove up to 80 mph while driving on Truman Ave. Officer F’s patrol car showed speeds up to 69 mph. Notably, this location is a residential area, and the speed limit is 25 mph. Surveillance and GPS evidence showed that neither officer came to a complete stop at a stop sign located at Truman Ave. and 1st Street. While both officers admitted to slowing down in order to clear the intersection, they also admitted they did not come to a full stop at the stop sign.
Officer E stated in both her interview and police report that there was another uninvolved vehicle between her patrol vehicle and the suspect’s vehicle at the beginning of the pursuit. However, surveillance video reveals that officer E travelled directly behind the suspect’s vehicle during all pertinent parts of the chase. Officer E stated that she believed the suspect’s vehicle would not stop only after the it failed to stop at the stop sign at Truman Ave. and 2nd Street. She then deactivated her emergency lights approximately four houses north of 2nd Street. However, GPS data indicates officer E did not stop until she reached the next intersection, that of Truman Ave. and 3rd Street. Officer E stated she did not witness the accident as she had stopped one block north of the fatal intersection and only heard the sound of a collision when officer F pulled up next to her patrol car.
However, the surveillance footage showed that when officer E deactivated her lights and siren, she was approximately 200 feet away from the intersection where the accident occurred. The intersection was well lit and there were no obstructions between her and the suspect vehicle.
Officer’s experience and awareness
It is notable that both officers failed to comprehend that they were engaged in a vehicle pursuit or driving “Code 3.”49 In their interviews, Officers E and F admitted that they had never participated in a vehicle pursuit before; both failed to consider their inexperience and lack of training when they continued to follow the suspect’s vehicle at high speeds.
Despite the speed of the suspect’s car, Officer E failed to recognize that the suspect was intentionally fleeing from her. Instead, she responded by increasing her speed in an attempt to catch up with him.
Communication about actions
Moreover, throughout the duration of her pursuit, Officer E failed to update communications to dispatch that the suspect was fleeing from her and that she was following him. In fact, Officer E did not transmit any radio traffic to during the entire time she was following the suspect’s vehicle. 50
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Conduct at the scene
At the scene, Officer E had the opportunity to speak with at least three potential witnesses who were present near the suspect’s vehicle. She only spent 19 seconds speaking with them and failed to identify them. In her interview, Officer E indicated that she did not feel safe to interview the witnesses at the scene because the suspect had fled on foot. One of the individuals provided her with a brief description of the suspect and his direction of travel. Officer E then drove around attempting to locate the suspect. She did not transmit any radio traffic during this time to inform others about the suspect’s description or her actions.
At the conclusion of its Department-initiated investigation, nine procedure allegations were sent to the finding and recommendation process. Each was sustained.51
IPA Concerns and Appeal:
Preliminary note: The Internal Affairs Unit provided its completed investigation to the IPA for review on June 22, 2022 – only 25 days from the 365-day deadline.
The allegation of Conduct Unbecoming an Officer (CUBO) was not sent through the findings and recommendation process. The IA staff deemed that allegation to be Exonerated. We disagreed and appealed initially to the Police Chief and then to City Manager.
IA staff phrased the CUBO allegation as follows:
Did Officer E engage in Conduct Unbecoming an Officer by documenting false information in her police report and by providing a false statement while on scene? The IA analysis noted that Officer E made several false statements:
In her interview Officer E stated she was shocked when reviewing her BWC and hearing what she initially told the watch commander. With the assistance of her attorney, Officer E indicated that she meant to tell the watch commander she was closer to M Street when she heard the crash.
From reviewing the video surveillance of the incident, Officer E was approaching the Edson Building located at 281 Truman Ave. when the accident occurred. This indicated that Officer E’s statement was still false and incorrect. Officer E stated in her interview that she did not intentionally document false information in her report.
Officer E stated in her interview she did not intentionally document false information in her report, but the facts and evidence show otherwise. One could understand one mistake being committed. Officer E documented and provided a tremendous amount of inaccuracies in her police report and in her statement. Her actions were a contributing factor to the collision. The collision caused a person to 2022 IPA YEAR END REPORT | 79
lose their life. It is unknown why Officer E had so many inaccuracies to her investigation and to her report. [emphasis added]
By limiting the CUBO allegation to only conduct that occurred at the scene on the incident date, the analysis of the allegation failed to capture the dubious and less-than-truthful statements proffered by Officer E during her IA interview that were either implausible or contrary to body-worn camera (BWC) footage and other video.52 Despite this analysis, IA deemed the CUBO finding to be exonerated because the allegations were covered under separate questions/allegations.
C 1404 CONDUCT UNBECOMING AN OFFICER:
An officer’s conduct, either on or off duty, which adversely reflects upon the Department is deemed to be conduct unbecoming an officer. Each case of misconduct will be examined to determine if the act was such that a reasonable person would find that such conduct was unbecoming an officer. [emphasis added] We contended that the CUBO allegation captures the entirety and gravity of the incident.
Separating the officer’s conduct in chasing the suspect’s car into separate and discrete elements does not address the fact that Officer E engaged in a high-risk car stop – an action afforded to law enforcement only under stringent requirements given the associated fatalities.
53 Officer E’s combined actions were a contributing factor to a fatal collision.54 Moreover, separating them does not address the fact that, at the accident scene, Officer E failed to immediately transmit the suspect’s description, direction of travel, and to obtain witness information in a timely manner following a felony hit-and-run.55 Officer E’s combined actions both contributed to the fatal collision and the suspect’s ability to escape the area.
We contended that the conduct outlined revealed that a sustained CUBO allegation was warranted. Officer E’s combined actions both contributed to the fatal collision and the suspect’s ability to escape the area. Reasonable persons would find this conduct unbecoming and it reflects poorly on the Department.
Appeals Process And Closure:
In response to the IPA’s appeal, the Police Chief asserted that, when considering whether CUBO is befitting a circumstance, it is important to understand that CUBO is typically applied to hold an officer accountable for behavior that is not otherwise specifically described in the Duty Manual. This section is necessarily vague and subjective, allowing the department to impose discipline for behavior that is unbecoming, but not specifically defined elsewhere.
The IPA then appealed to the City Manager, presenting four points as the basis for the appeals.
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1. The definition of CUBO does not include any language limiting its applicable to behavior that is not otherwise specifically described in the Duty Manual.
2. Historically, the Police Chief had not asserted that that CUBO was reserved for behavior not otherwise specially described in the Duty Manual.
3. The Police Chief's assertion did not address the rare instances in which the violation of a Duty Manual section is so egregious that a member of the public would find the behavior unbecoming an officer.
4. The CUBO definition is unique in that it incorporates a community standard, that of a reasonable person. By limiting a CUBO allegation to only that conduct not otherwise covered in other sections of the duty manual unduly rejects community perspective.
The City Manager rejected our arguments that Officer E's conduct met the threshold of conduct unbecoming an officer. The IPA closed this case as disagreed.
CLOSE WITH CONCERNS – CASE #3
Summary:
In July 2021, approximately midday, Officer G observed a vehicle that failed to stop at a stop sign. Officer G activated the lights on his patrol vehicle. San José Police Communications indicated the vehicle had been reported stolen. The vehicle ran another stop sign, then stopped and parked. The sole occupant was the driver.
The suspect’s vehicle stopped just behind Officer H’s patrol car; Officer H had been involved in an unrelated call at this location.
Both officers conducted a high-risk vehicle stop and used force in taking the suspect into custody.
The suspect was booked into Santa Clara County Jail on a felony warrant and other criminal violations.
While conducting a force investigation, the Sergeant on scene believed officer G 's tactics were unsafe and opposite of the training received at SJPD or at POST (California Commission on Peace Officer Standards and Training). The Chief authorized a Department- Initiated Investigation into the officer’s conduct.
Department-Initiated Investigation and Analysis:
The IA investigation focused on three issues
1. Did Officer G use reasonable tactical conduct (Procedure) during this incident?
2. Did Officer G use reasonable force (Force) when arresting the suspect?
3. Did Officer G accurately describe what occurred in his crime report (Procedure)?
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A review of body worn camera footage, documents and statements of the officers revealed that Officer G initiated a high-risk car stop. He gave instructions to the driver who spoke only Spanish. The driver did comply Officer H’s instruction in Spanish to put his hands above his head. In English, Officer G told the suspect to toss his f**king keys out the window. Suspect did not comply with these commands. Suspect remained passive non- compliant with both hands raised above his head. There were no further commands given in Spanish. Officer G did not wait for any response from the suspect.
With his weapon drawn, Officer G approached the vehicle. He opened the driver's door with his left hand. The suspect’s hand was still above/behind his head. Officer G struck the suspect in his upper back with his right hand while holding the firearm; he described this action as a pistol whip. He then holstered his gun and used his closed fist to strike the suspect five times in the back. After the suspect was taken from the car, Officer G wrapped his arms around the suspects torso to keep him off balance and used his body weight to push the suspect against the car. Officer G indicated on his force response form that he perceived suspect was armed with a firearm, knife, or other dangerous weapon, however he never confirmed whether the suspect was, in fact, armed.
IA concluded that officer G failed to use reasonable tactics during the incident. He created an unnecessary level of urgency and put him in itself in a position of potential danger without any cover or concealment.
Rather than broadcasting the appropriate radio traffic, obtain further information about the felony warrant, and wait for fill units/resources, Officer G decided to initiate and conduct the felony car stop on his own. Officer G created an unsafe level of urgency by walking up to the suspect vehicle on his own within five seconds of getting out of his patrol car. There was no tactical plan.
After Officer G stepped out of his patrol car, he immediately drew his firearm. The analysis noted that it was apparent Officer G was in a
high level of stress by the inflection of his
voice, rapid breathing, and handshaking while at the high ready position with the firearm.
By contrast the suspect was passive resistant and posed no immediate threat.
Once the high-risk car stop was initiated, the suspect complied with commands given by Officer H to place his hands above his head as he was seated behind the driver 's seat.
Officer G stated that he pressed the level of urgency because he did not want the suspect to get away or drive down the street. However, the analysis noted that Officer G had ample time to slow things down, communicate a tactical plan with officer H and wait for additional resources. Officer G chose not to utilize sufficient time.
There also appeared to be a language barrier as the suspect spoke Spanish. The suspect responded to officer H’s Spanish commands to place his hand in the air. However, when Officer G approached the suspect’s vehicle and ordered the driver to toss the f******* keys out the window, the suspect did not comply with these commands but remained passive non-compliant with both hands raised above his head. Officer G gave no further commands in Spanish or in English as to what he wanted the suspect to do. Officer G did not wait for 82 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
any response from the suspect. The suspect was never informed in English or in Spanish that force would be used if the suspect failed to exit the car.
In conclusion, IA deemed that Officer G violated tactical conduct and failed to use sound judgment in dealing with this event. He did not rely on the training provided to him within the Academy and the Department. His tactical conduct was not consistent with the department standards.
Despite a Sustained finding on tactical conduct, IA concluded that Officer G’s use of force was justified, lawful and proper, i.e. exonerated.
IPA Concerns and Appeal:
We contended that IA’s analysis of the Force allegation completely discounted the fact that Officer G ’s conduct was the reason that force was needed. Due to Officer G’s (1) lack of deliberate tactical conduct as well as (2) his inability to properly ascertain if the suspect understood directions, Officer G created the circumstances in which force was used. His conduct changed an event in which no force was necessary into one in which he used force. His conduct violated the Duty Manual for
both (1) tactical conduct and (2) the force
which resulted from his lack of tactical conduct.
• In his IA interview, Sergeant S1, stated the force was not necessary in this situation if Officer G used sound tactical conduct prior to approaching the suspect. • Officer G himself stated that the suspect was passively resisting at the beginning. The suspect had his hands up behind his head, abiding by the instructions given in Spanish by Officer H because the suspect did not understand English.
Officer G did not utilize any of the tools at his disposal, learned during his eight years with SJPD, that would have de-escalated the incident and instead chose to immediately resort to an unnecessary use of force on an individual who did not understand the language or what was occurring.
The IPA stressed for a more rigorous application of these Duty Manual sections:
• L 2602 OBJECTIVELY REASONABLE FORCE (Definition): Objectively reasonable force is that level of force which is appropriate when analyzed from the perspective of a reasonable officer possessing the same information and faced with the same circumstances as the officer who has actually used force.
The IPA asserted that the other sworn officers interviewed were reasonable officers of the Department and both agreed in their separate interviews that they would not have handled the situation as Officer G chose to do. Particularly, Officer H who was on the scene from the beginning faced with the same circumstances as the officer who has actually used force did not use force until Officer G ’s creation of 2022 IPA YEAR END REPORT | 83
circumstances required him to. Even then, Officer H did not have his gun in his hand when he went hands on with the suspect unlike Officer G. • L 2604 GENERAL RESPONSIBILITY WHEN FORCE IS USED:
Each situation involving the use of force is unique. The Department relies on the officer's judgment and discretion to employ an objectively reasonable level of force under each unique circumstance. Each incident in which force is used shall meet the conditions specified in this chapter. Officers need not retreat or desist in the reasonable use of force.
There is no requirement that officers use a lesser intrusive force option before progressing to a more intrusive one, as long as the force option used is objectively reasonable under the circumstances at that time. When confronted by force or resistance, an officer may use an objectively reasonable higher level of force to overcome that resistance. Department members will notify the next rank above them in their chain of command without unnecessary delay when reportable force is used. This includes instances where Department members take enforcement action while off-duty and a use of force occurs.
In his IA interview, Officer H stated that he noticed that Officer G was striking the suspect with his firearm as an impact weapon or was making a striking movement with his gun hand. However, when Officer H approached the suspect, he holstered his weapon. Use of the butt of the gun for does not fit the definition of use of force option that is objectively reasonable under the circumstances at that time. It is reckless to argue that this situation warranted Officer G having his gun in his hand and/or hitting the suspect with the butt of the gun. The IA analysis stated that Officer G realized that he utilized the butt of his firearm as an improvise impact weapon. However, IA analysis then asserts that Officer G ’s large hands covered the butt of the gun. IPA’s review of the BWC footage proffered by IA to support this assertion does not concur is inconclusive. To use this argument is flawed.
The IPA argued that it is incompatible to find that Officer G have a sustained finding for the Procedure allegation for L 2602.5 Tactical Conduct and not have a sustained finding for the Force allegation L2603 Objectively reasonable force.
Closure:
The IA Unit Commander was not persuaded by the arguments in the IPA appeal. He declined to re-open the case. The IPA closed with concerns.
CLOSE WITH CONCERNS – Case #4
Summary:
In November 2021 at approximately 2 a.m., an individual was involved in a one vehicle collision with a light pole. A passing reporting party spoke to the driver of the vehicle; the driver acknowledged that he was intoxicated. The reporting party passed this information on to the dispatcher. When Officer J and Officer K showed up to the scene, the driver said he saw a cat in the roadway. His swerving to avoid the cat caused the accident. Officers ran the driver’s information and became aware that the driver had a suspended driver’s 84 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
license due to a prior DUI in addition to the admission of intoxication to the reporting party. Officer J and Officer K processed the scene as a single car accident and had the driver call someone to pick him up. The driver’s partner showed up to the scene. Officer J and Officer K had a discussion with the partner during which neither officer had their Body Worn Camera (BWC) activated. The officers told the driver’s partner that they thought the driver might have been intoxicated but that they were not going to breathalyze him. The driver and his partner then left the scene. The officers stayed behind to make sure the car was towed. Sometime after the incident, the driver of the vehicle committed suicide. The complainant in this case believed that had the officers done a thorough job and arrested the driver, the driver may not have committed suicide.
IA Investigation and Analysis:
The IA investigation focused on 3 issues:
1. Did the Officer J and Officer K deactivate their BWC’s improperly?
2. Did the Officer J and Officer K violate department policy by not documenting observations regarding a possible intoxication case?
3. Did Officer K fail to conduct a thorough DUI investigation?
Both officers in this case were interviewed as was the partner of the now deceased driver and two additional witness officers. The IPA had a representative for both subject officers’ interviews as well as one of the witness officer interviews. IA collected all documentation as well as BWC footage.
IA analysis asserted that neither officer smelled alcohol nor saw any indications of intoxication; therefore, there was no need to document any observations regarding a possible intoxication case. Both officers were
exonerated of this allegation.
IA felt that the analysis for whether Officer K for the violation of department policy by failing to not conduct a thorough DUI investigation was sufficient enough for Findings and Recommendations. IA analysis concluded that given the reporting parties concerns, the background of the driver (a suspended license due to a DUI the month prior) and the time of day there was sufficient cause for Officer K to have conducted a complete DUI investigation. The allegation was
sustained and the officer was disciplined.
Additionally, both officers were found to have committed violation of the Duty Manual in deactivating their BWC. The conversation between the officers and driver’s partner as well as the conversation between the officers should have been captured; both officers were still on the call and not finished. IA sent this allegation for both officers for Findings and Recommendations. The allegation was
sustained and the officers were disciplined.
One procedure allegation was Exonerated.
• Intoxication cases – general provisions (Duty Manual section L 6601)
A Procedure allegation for both officers was Sustained. • When to deactivate (Duty Manual section L 4436)
2022 IPA YEAR END REPORT | 85
An additional Procedure allegation for one officer was Sustained. • Initial Investigative Procedures (Duty Manual section L 6905)
IPA Concerns and Appeal:
The IPA had a concern regarding this case in that it was similar to other cases beginning to look like a trend. The possible trend is SJPD officers’ willingness to overlook potential DUI observations to skirt necessary documentation and investigations.
IA’s assertion that the officers did not observe any signs of intoxication discounts the facts the officers had on hand. Following up on at least the reporting parties statement as well as probing the driver further on his sobriety may have changed the outcome of the drivers life. The IPA wrote in the closing of the case:
Given the facts of the case and the tragedy that befell Mr. P, it is troubling that the Officers did not conduct a thorough DUI investigation nor take a report and deactivated their BWC when they spoke with Mr. P’s partner. All three parties who were present during the unrecorded conversation stated that the conversation they had did involve Mr. P’s sobriety. Given Mr. P’s admission of receiving a DUI the month prior, the admission of Mr. P to the reporting party of being intoxicated and the conversation that the Officers had with the Mr. P’s partner it is alarming that the officers did not feel the need to do a more thorough investigation and write a report. Had the officers conducted a more thorough DUI investigation, it would have merited writing a report in which all DUI observations could have, would have and should have been documented. The IPA sees this case as just one of a disquieting trend of cases wherein officers are choosing to not follow policy and conduct thorough investigations [emphasis added].
While the IPA was satisfied in the analysis and findings for failing to do a thorough DUI investigation and deactivation of BWC’s, it was concerning to see that IA did not feel that the officers needed to write down their observations of a possible DUI.
Closure:
The IPA was provided with the completed investigation on November 10, 2022, ⸺ only nine days before the deadline. Thus, there was little time to avail ourselves of the appeal process that would usually invoke in a case such as this. Therefore, the IPA closed with concerns.
CLOSE AGREE AFTER FURTHER – CASE #5
Summary:
In August 2021, the registered owner of a white utility van reported a hit-and-run collision that had occurred the month prior. The victim provided surveillance video that showed a 86 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
San José PD patrol SUV backing into his parked utility van and immediately leaving the scene. The victim’s vehicle sustained obvious damage to the driver’s door area.
Patrol personnel performed an initial investigation. They determined that the patrol vehicle involved in the collision was vehicle #Z and the driver of the vehicle at the time of the collision as Officer L. On the evening of the collision, he had been involved in an emergency response to a battery on a Parks and Recreation patrol unit. Patrol personnel collected video of the collision from nearby surveillance cameras and photographs of the damage as evidence
Officer L made no report of the collision.
IA Investigation and Analysis:
IA’s analysis examined a variety of facts about Officer L (a) was he involved in a reportable vehicle collision on this event, (b) his level of awareness of the vehicle collision, (c) his actions following the vehicle collision, and (d) finally whether those actions constituted a violation of department policy regarding on duty collisions (L7002) or conduct unbecoming an officer (CUBO).
IA concluded that Officer L’s own actions indicated that he at least strongly suspected he had been involved in a minor accident shortly after the collision occurred. Within minutes, he had repeatedly examined the affected area of his patrol car and mentioned the possibility to another officer. His belief that he may have been involved in a collision persisted for hours, prompting him to check the area where it had occurred for damaged vehicles. Officer L had ample opportunity later that shift to notify Sergeant S2 of the possible vehicle collision, yet he chose not to. Officer L based his decision not to inform his sergeant of the incident on the negative results of his own investigation into the matter. However, an officer investigating their own potential collision is a clear conflict of interest. Officer L’s self-investigation was inadequate. Passing through the area of the collision during darkness with multiple police vehicles blocking his view of the area most likely to yield visible damage was not an effective means of determining if he had been involved in a collision.
Two procedure allegations were
sustained
• failure to follow on-duty collision procedures (L7002) • failure to report damage (C1441)
One CUBO allegation was not sustained
One procedure allegation was unfounded (failure to obey all laws C 1402)
IPA Concerns and Appeal:
The IPA had two concerns regarding the Department’s analysis of two questions 2022 IPA YEAR END REPORT | 87
1. Was there any evidence that Officer L failed to obey all laws? IA asserted that there is no evidence on this point and made a finding of unfounded. The IPA asserted otherwise and argued the finding must be sustained.
IA concluded that
there was no clear evidence that Officer L knowingly violated any law in this case.
He has not been formally charged with or convicted of any crime. Therefore, the allegation of PROCEDURE: for failing to obey all laws is UNFOUNDED.
The IPA made several rebuttal arguments:
a) The preponderance standard, not the clear and convincing standard, is the applicable burden of proof. Stating that there is no clear evidence that Officer L knowingly violated any law obfuscates the standard.
b) If Officer L obeyed all laws, then one would presume the Department would not forward the potential misdemeanor nature of a hit-and-run vehicle collision to the DA. c) If Officer L had obeyed all laws, then one would presume that the DA would not offer diversion since there would be no grounds for the DA to file charges.
Although Officer L was not charged with any crime, he was offered and accepted a pre- sentence diversion option. This option does not mean that the crime did not occur. Nor does it imply that the DA did not have grounds to charge. It meant that the DA determined not to file charges that could be filed because the option of diversion appeared suitable to the DA and, apparently, to Officer L.56
However, submitting to a diversion program affirmatively acknowledges that the DA could have filed charges. According to the DA’s website:
The prosecutor can authorize filing a charge(s) if he/she reasonably believes probable cause exists that the suspect committed the offense, and he/she reasonably believes the charge can be proven beyond a reasonable doubt at trial with the information known at that time.
In this case, the prosecutor reasonably believed probable cause existed that Officer L committed the offense. Instead of filing charges, the prosecutor offered diversion. If probable cause existed that the officer committed the offense, then the finding cannot be unfounded. And, if the prosecutors reasonably believed that the charge could be proven beyond a reasonable doubt at trial, then the IA finding must be sustained because the standard of evidence is lower in administrative investigations, i.e., the preponderance of evidence.
2. Did Officer L engage in Conduct Unbecoming an Officer? The Department made a not sustained – meaning that there was insufficient evidence to prove or disprove the allegation. The IPA asserted otherwise and argued the finding must be sustained.
The Department concluded that
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“per direction on such cases from C.O.P.” meaning that there was insufficient evidence to prove or disprove the allegation
The IPA made several rebuttal arguments:
The Department has affirmatively and repeatedly stated that officers have a very high ethical standard. Applying that standard, the IPA submits that, contrary to IA’s position, many reasonable persons would deem the misconduct in this case as unbecoming an officer
a) In the IA investigation, staff concluded that Officer L’s own actions indicated that he at least strongly suspected he had been involved in a minor vehicle collision shortly after the collision occurred.
b) A closer examination of the evidence at the Finding & Recommendation level revealed:57 i. The collision was obvious.
ii. That fact that Office L deactivated his BWC and approached Officer M to say that he thought he might have collided with another vehicle is another indicator that Ofc. L was aware of the collision.
iii. Ofc. L drove back over the area and looked to see if he could find the damage vehicle/light pole/object – an action he would not do if he believed he did not hit anything.
iv. Ofc. L inspected his own vehicle and at one point, wiped it with his hand in the area where the damage ends up being found from further investigation. v. Officer L’s participation in a pre-filing diversion program was not a refusal of the District Attorney to file, but a mediation to keep this lower-level case from having to go through the court system.
vi. Ofc. L’s decision to not report the incident to his supervisor who could have conducted an objective investigation lends itself to an omission that impacts community trust.
Moreover, the IPA asserted that the trust held by the owner of the truck and those persons who supplied the surveillance video were likely negatively impacted by seeing the SJPD car hit the van and then drive away.
In sum, the actions of this officer showed, by a preponderance of the evidence, a disregard for the property of others, a failure to follow the directions of his supervisor at the scene, an avoidance of criminal liability, and a failure to take responsibility. We contended that reasonable persons would find this conduct unbecoming an officer.
Closure:
The Police Chief considered our appeal and determined to change the finding on the CUBO allegation from Not Sustained to Sustained. The IPA closed as Agree After Further.
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AGREE AT FIRST REVIEW – CASE #6
Summary:
In April of 2021, SJPD officers were advised by a DMV Investigator that an SJPD officer had disseminated information retrieved from an automated database to a person who was listed as a suspect in an on-going investigation. SJPD Criminal Investigations Details (CID) investigated and submitted their findings to the District Attorney’s Office who declined to file charges. The case was then transferred to the IA Unit to conduct an administrative investigation.
IA Investigation and Analysis:
IA’s analysis examined whether the officer had violated policy when:
(1) he obtained information from the California Law Enforcement Telecommunications System (CLETS) and then shared said information to an unauthorized receiver of the information,
(2) whether the officer violated Department Policy when he obtained information from a Sensitive Controlled Information (SCI) inquiry and shared said information to an unauthorized user,
(3) whether the officer violated Duty Manual policy in his misuse of information obtained from a Criminal Offender Record Information (CORI) inquiry, (4) whether or not the officer had violated the Department Code of Ethics by inappropriately accessing Department databases and sharing the information, and (5) whether the officer had engaged in actions that created or gave the appearance of a conflict of interest.
IA analysis was clear that the officer had conducted the CORI, CLETS and SCI inquiries. The officer acknowledged this conduct during his interview with IA. The officer did so without any investigative involvement that would have necessitated the use of the databases as well as violating the Departments
need to know, right to know policy of using the
databases. During the officer interview, it became clear that the officer’s friend was involved in an active investigation that was potentially criminal in nature. While the officer argued that his use of the databases was nothing more than looking at the information to provide his friend with advice on how to move forward, IA’s analysis was clear that the officer had violated Duty Manual policies.
During initial discussion of allegations for this case, the IPA requested that the Duty Manual regarding Ethics and Conflicts of Interest be added to the case. IA acquiesced to the IPA’s request and after review of the analysis, all five procedural allegations were sent for findings and recommendations and sustained. Notably, the Office of the IPA did request that a CUBO allegation be added to the case however, IA declined. All five procedural allegations sent up the Chain of Command were Sustained and the officer was disciplined.
Five Procedure allegations in which all allegations were Sustained:
90 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
• Authorized Receivers (C 2003)
• Authorized Receivers of Sensitive Controlled Information - SCI (C 2003.1) • Penalties for Misuse (C2011)
• Code of Ethics (C 1302)
• Conflict of Interest (C 1450)
Closure:
IA sent all allegations for Findings and Recommendations; all allegations were then sustained and the officer was disciplined.
The IPA closed as Agree at First Review.
AGREE AT FIRST REVIEW – CASE #7
Summary:
In January of 2022, an adult Hispanic male driver was pulled over. The driver spoke both Spanish and English. When the SJPD officer approached the driver, the driver seemed to have his phone up in recording mode. The officer stated the reasons for being pulled over, namely that the driver had both earphones in his ears (a violation of California Vehicle Code 27000), as well as having tinted windows (a violation of California Vehicle Code 26708 (a)(2)). The driver believed that the officer was illegally detaining him and believed the officer was biased because of his race. Intermittently throughout the detention, the driver told the officer that he was a racist. At one point, the driver spoke in Spanish to the recording cellphone that the officer was racist. At this point, the officer, who also spoke Spanish, began speaking in Spanish to the driver and reiterating the reasons for the stop and detention. When the officer asked the driver for his license, the driver was unable to provide it. At this point, the officer requested the driver to exit his vehicle. As the driver was exiting his vehicle, the officer asked if the driver had any weapons. The driver replied, I
have bazookas only in there. For officer safety, at that point the driver was handcuffed. The driver later alleged that the officer had applied the handcuffs unnecessarily tightly.
IA Investigation and Analysis:
IA’s analysis examined whether the officer had violated policy when he handcuffed the driver, whether the officer had the legal basis to pull over and detain the driver and whether the officer showed racial bias towards or against the driver at any point during the interaction.
IA analysis showed that the officer had reasonable suspicion to stop and detain the driver due to the violations of the California Vehicle code. The BWC footage showed that the driver did, in fact, make the statement regarding bazookas. Given that statement, the officer’s handcuffing the driver was a reasonable officer safety decision. Upon review of the 2022 IPA YEAR END REPORT | 91
BWC footage, IA analysis described the moments captured on BWC footage to show that the officer made a reasonable effort to ensure the handcuffs were not unduly tight.
During the IA investigation, IA officers called the driver to get further information of why the driver believed the officer had engaged in Bias-based policing in regard to the drivers race. The driver was unable to provide clarification of why he believed the officer was engaging in bias due to his race. During IA analysis, there was nothing captured on BWC that would show that the officer had engaged in Biased based policing.
One Procedure allegation was Exonerated (Procedures immediately following arrest (L 2902)
One Arrest/Detention allegation was Exonerated
One Bias-Based Policing Allegation was Unfounded (C 1306) Closure:
IPA felt that the IA investigation and analysis were sufficient to support findings.
The IPA closed as Agree at first review.
AGREE AT FIRST REVIEW – CASE #8
Summary:
In November 2021 at approximately 2 a.m., a husband and wife were crossing the street.
The husband kept walking, but the wife saw a car coming and stopped to let it pass. As it neared her, it slowed down then stopped in the middle of the road. The wife kept crossing the street. It was at this point that the wife realized that the vehicle was an SJPD vehicle.
An officer came out of the vehicle and started cursing at the wife as to why she was dressed the way she was. The officer then grabbed her and threw her bags to the ground and handcuffed her. The wife was detained, pat searched, and then her bags were searched. After some time passed and nothing illegal was found on the wife, she was given back her property and released from the scene.
IA Investigation and Analysis:
IA’s analysis examined (1) whether Officer M violated policy when detaining the wife, (2) whether excessive force was used, (3) whether Officer M had violated policy when searching the wife, (4) whether Officer M violated policy when the wife was handcuffed, (5) whether the detention of the wife was prolonged, and (6) whether Officer M and Officer P were discourteous in their interaction with the wife.
IA analysis was incomplete for officer P who had solely a Courtesy allegation. The officer resigned prior to the investigation being completed and therefore the investigation yielded a No Finding.
92 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
IA analysis for Officer M was completed and included an officer interview which the IPA had a representative attend. IA analysis stated that the officers had the legal capacity to detain the wife as it was early morning, officer M had prior experience with the wife and based on her dress (all dark clothing) and visible weapons. Moreover, the analysis noted that the Officer M’s attempt to keep the limit the time of the detention was unsuccessful due to the wife’s comments regarding a separate issue; thus, the officer’s interaction with the wife was longer than the usual detention. The analysis noted that BWC footage showed the officer did not use excessive force and therefore the finding was unfounded. IA analysis
argued that the officer reasonably exercised his discretion to handcuff the wife for safety reasons given the time of day, the dark clothing of the wife, and visible weapons.
During initial discussion of allegations for this case, the IPA requested that each Search (pat search, search of two different bags), be listed as separate allegations. IA declined to do so asserting that these elements would be included within the search of the wife’s person. IA’s analysis found that the officer had conducted a legal pat search of the wife but had violated the Duty Manual regarding his search of her bags. This allegation was sent for findings and recommendations and
sustained. Additionally, the use of profanity on the part of officer M was found to be in violation of the policy regarding Courtesy and sent for findings and recommendations as well. IA analysis noted that the officer used profanity indiscriminately and without necessity or use as a tool. The allegation was then sustained.
One Courtesy allegation for Officer P came to a No Finding (C 1308)
One arrest/detention allegation for one officer was Exonerated • Street checks during detentions (L 3302.5)
A Force allegation for one officer was Unfounded (L 2644)
Two Procedure allegations for one officer was
Exonerated
• Procedures immediately following arrest (L 2902)
• Duration of Stop (L 3309)
A Search and Seizure allegation for one officer was Sustained (L 4801)
A Courtesy allegation for one officer was Sustained (C 1308)
Closure:
IA sent the necessary findings up to the Chain of Command who then sustained them and disciplined the officer.
The IPA closed as Agree at first review.
2022 IPA YEAR END REPORT | 93
APPENDIX A — GLOSSARY
Agreed (IPA determination): A complaint is closed as “agreed” if the Independent Police Auditor (IPA) determines that the Department investigation of a complaint was thorough, objective, and fair.
Agreed After Further (IPA determination): A complaint is closed as “agreed after further” if the IPA determines that the Department investigation of a complaint was thorough, objective, and fair after additional inquiry and/or investigation.
Allegation: a person’s accusation that a member of the SJPD violated Department or City policy, procedure, rules, regulations, or the law. Only Conduct Complaints contain allegations. There are eight types of allegations: Procedure, Search or Seizure, Arrest or Detention, Bias-Based Policing, Courtesy, Conduct Unbecoming an Officer, Force, and Neglect of Duty. A Conduct Complaint can have more than one allegation. When IA finishes a Conduct Complaint investigation, IA issues a finding on each allegation.
Arrest or Detention (an allegation): an arrest lacked probable cause or a detention lacked reasonable suspicion
Audit: the process the IPA uses to decide if a Conduct Complaint investigation by the Department was thorough, objective, and fair
Bias-Based Policing (an allegation): An officer engaged in conduct based on a person’s race, color, religion (religious creed), age, marital status, national origin, ancestry, sex, sexual orientation, actual or perceived gender identity, medical condition, or disability. The SJPD changed its definition of Bias-Based Policing in February 2011 to clarify that this form of misconduct can occur at any time during an encounter between an officer and another person, not only when the encounter begins.
CIT: see Crisis Intervention Training
Classification: a decision about whether an issue or complaint raised by a member of the public about an officer is a Conduct Complaint, a Policy Complaint, or a Non-Misconduct Concern. Classification is an IA determination; the IPA can appeal the classification determination through the appeal process.
Closed With Concerns (IPA determination): A complaint is “closed with concerns” if the IPA questioned the Department investigation and/or the IA analysis. The complaint is closed without an Agree or Disagree determination. The IPA first implemented this determination in 2010.
Complainant: any member of the public who files a complaint Complaint: an expression of dissatisfaction that contains one or more allegations of police misconduct
94 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
Complaint process: the sequence of events that begins when a person files a complaint, continues when the Department investigates the complaint and issues findings, and concludes when the IPA audits the investigation and issues a determination Conduct Complaint (a classification): a statement from any member of the public that alleges that a SJPD officer broke one (or more) of the rules he or she must follow, and requesting that the officer’s conduct be investigated by the SJPD Conduct Unbecoming an Officer (an allegation): an officer’s on or off-duty conduct could reflect adversely on the SJPD or that a reasonable person would find the officer’s on or off duty conduct unbecoming a police officer
Courtesy (an allegation): an officer used profane or derogatory language, wasn’t tactful, lost his/her temper, became impatient, or was otherwise discourteous. This definition went into effect in October 2010. Previously, only an officer’s use of profane words, derogatory language or obscene gestures was considered misconduct.
Crisis Intervention Training (CIT): a 40-hour training program that teaches officers how to better address situations involving persons who are experiencing a mental or emotional crisis, or who have a developmental disability, thus reducing the possibility of the officers using force to gain control of the situation
Department-Initiated Investigation: an investigation into a misconduct allegation that is initiated by someone within the SJPD, and not by a member of the general public Disagreed (IPA determination): A complaint is closed as “disagreed” if the IPA determines that the Department investigation of a complaint was not thorough, objective, or fair.
Documented Oral Counseling: a form of officer discipline Duty Manual, the: a book of rules that each SJPD officer must follow. An officer’s failure to abide by the rules in the Duty Manual can result in discipline. The Duty Manual is a public document and can be viewed on the SJPD website.
Exonerated (finding): the officer engaged in the conduct described by the complainant, and the officer’s conduct was justified, lawful, and proper Finding: When a misconduct investigation is finished, IA makes a finding for each allegation. The possible findings are Sustained, Not Sustained, Exonerated, Unfounded, No Finding, Withdrawn, or Other.
Force (an allegation): the amount of force the officer used was not “objectively reasonable” Force Case: a Conduct Complaint that includes one or more allegations of improper use of force by a San José police officer(s)
IA: see Internal Affairs
2022 IPA YEAR END REPORT | 95
Independent Police Auditor (IPA): a City Council appointee who leads the office that takes complaints from the public about SJPD officers, audits investigations of those complaints, and makes recommendations to improve police practices and policies Independent Police Auditor Teen Leadership Council (IPA-TLC): young people selected by the IPA to advise the IPA staff about how to improve outreach to youth in San José Independent Police Auditor Advisory Council (IPAAC): adult volunteers selected by the IPA to promote community awareness of the services offered by the IPA office and inform the IPA office about police-related issues within the San José community Intake: the first step in the process of filing a complaint Internal Affairs (IA): the unit within the SJPD that investigates allegations of officer misconduct
IPA: see Independent Police Auditor
Letter of Reprimand: a form of officer discipline
Misconduct: an act or omission by an officer that is a violation of policy, procedure, or law Neglect of Duty (an allegation): an officer neglected his/her duties and failed to take action as required by policy, procedure, or law
No Finding (finding): the complainant failed to disclose promised information needed to further the investigation, or the complainant is no longer available for clarification of material issues, or the subject officer is no longer employed by the SJPD before the completion of the Department investigation
Non-Misconduct Concern (classification): a concern expressed by a member of the public about an officer’s conduct that the Department determines does not rise to the level of a violation of policy, procedure, or law or that would not result in officer discipline Not Sustained (finding): The Department investigation failed to disclose sufficient evidence to clearly prove or disprove the allegation[.]” This means it was a “he said-she said” situation where it is one person’s word against another and the Department can’t tell which version to believe.
Officer-involved shooting: an incident that involves an officer’s discharge of his or her firearm
Other (finding): when SJPD declines to investigate because of too long a delay from the date of the incident to the date of filing, or because the officer was not a SJPD officer, or because a duplicate complaint exists
Police Officer’s Association (POA): the bargaining unit (union) that represents SJPD police officer interests
Policy Complaint (classification): complaints from the public about SJPD policies or procedures
96 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
Procedure (an allegation): an officer did not follow appropriate policy, procedure, or guidelines
Search or Seizure (an allegation): a search or seizure violated the 4th Amendment of the United States Constitution
Sustained (finding): the investigation disclosed sufficient evidence to clearly prove that the allegation about the conduct of the officer was true
Sustained rate: the percentage of Conduct Complaints (not allegations) that results in a finding of Sustained for one or more allegations
TLC: see Independent Police Auditor Teen Leadership Council Unfounded (finding): The investigation conclusively proved either that the act or acts complained of did not occur, or that the officer named in the allegation was not involved in the act or acts, which may have occurred. This means that the Department investigation concluded that the acts never happened.
Withdrawn (finding): the complainant expressed an affirmative desire to drop the complaint.
2022 IPA YEAR END REPORT | 97
APPENDIX B — GLOSSARY
HOW DO DIIs DIFFER FROM COMPLAINTS?
DEPARTMENT-INITIATED
INVESTIGATIONS COMPLAINTS
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
can be filed either with the IPA or with
the Internal Affairs (IA) Unit of the
SJPD.
Information supporting a DII generally
comes from (1) an SJPD
officer/employee who reportsi concern
about a fellow employee’s conduct or
(2) from other law enforcement
agencies. Information about the conduct
and supporting documents is supplied
via memo to the Chief of Police. At the
direction of the Chief of Police, the
Department initiates an investigation
into misconduct allegations against an
SJPD employee. Thus, DIIs do not
reflect all reported concerns but only
those that the Chief decides to pursue.
ORIGIN
IA classifies the complaints into one of five
classifications. Conduct complaints are
investigated by IA staff who review
documents, video and interviewing witnesses
and/or subject officers. If there are no
sustained findings, the documents are
forwarded to the IPA.
The memo provided to the Chief is
forwarded to the Internal Affairs Unit. The
IA staff may provide additional
investigation such as acquiring documents,
video and interviewing witness and/or
subject officers.
DIIs
vs.
Complaints
PROCESS
98 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
i This may include a supervisor’s Use of Force Command Review. ii C 1724
No one on the IA staff, including the Unit
Commander, can make a sustained
finding. Those conduct complaints which
may warrant a sustained finding are sent
to the Findings & Recommendation
(F&R) process. The IA investigation is
sent initially to the responsible
commander
ii (who is outside of IA and
may have no IA training). The
responsible commander makes findings
supported by a memorandum and
forwards these to the involved member’s
Bureau Command for review and
comments. Next all documents at forward
to the Office of the Chief who confirms
or changes the F&R findings. The
documents are then forwarded to the IPA.
No one on the IA staff, including the Unit
Commander, can make any findings. With
DIIs cases, the IA Unit Commander sends
the documents to the Office of Chief. This
office makes findings for each allegation.
The documents are then forwarded to the
IPA.
IPA staff cannot investigate. The IPA has
no investigatory powers.
IPA staff can attend IA interviews.
We review the completed documents to
ensure that the investigation was fair,
thorough, and complete. If the investigation
is lacking, we can appeal to the Chief of
Police and then to the City Manager.
IPA staff cannot investigate. The IPA has
no investigatory powers.
IPA staff can attend IA interviews.
We review the completed documents to
ensure that the investigation was fair,
thorough, and complete. If the investigation
is lacking, we can appeal to the Chief of
Police and then to the City Manager.
IPA
INPUT
REVIEW
&
FINDINGS
SUSTAINED
RATE
2022 IPA YEAR END REPORT | 99
APPENDIX C — ADDITIONAL STATISTICAL DATA
Illustration A: Complaints Received — Five-Year Overview (2018-2022) *
* Excluding Department-Initiated Investigations
Illustration B: IPA and IA Intakes — Five-Year Overview (2018-2022) *
* Excluding Department-Initiated Investigations
248 216
269
333
358
200
250
300
350
400
2018 2019 2020 2021 2022
Number of Complaints
166
129
208
111 113
82 87
61 222
245
0 50
100
150
200
250
300
Year 2018 2019 2020 2021 2022 IPA Intake 67% 60% 77% 33% 32% IA Intake 33% 40% 23% 67% 68% 100 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
Table 1: Complaints/Concerns Received in 2022*
* Including Department-Initiated Investigations. The IPA cannot receive a DII.
Table 2: Allegations Received — Two-Year Overview (2021-2022) * Table 2-A: All Allegations Received (Including DII)
* Including Department-Initiated Investigations
Table 2-B: Allegations Received (DII only)
* Department-Initiated Investigations only
Table 2-C: Allegations Received (Conduct Complaints only) *Conduct Complaints only
Matter Received IA IPA Total %
Conduct Complaints 165 81 246 60%
Department Issued 55 0 55 13%
Policy Complaints 4 3 7 2%
Non-Misconduct Concerns 25 8 33 8%
Decline to Investigate 27 3 30 7%
Other 24 18 42 10%
Total 300 113 413 100%
Allegations Received 2021 2022
# % # %
Procedure 465 43% 463 48%
Force 121 11% 85 9%
Courtesy 142 13% 117 12%
Arrest or Detention 112 10% 88 9%
Search or Seizure 53 5% 86 9%
Bias Based Policing 122 11% 70 7%
Conduct Unbecoming an Officer 50 5% 30 3%
Neglect of Duty 3 0% 14 1%
Workplace Discrimination 1 0% 3 0%
Workplace Harassment 1 0% 6 1%
Total Allegations 1070 100% 962 100%
Allegations Received 2021 2022
# % # %
Force 2 3% 1 1%
Arrest or Detention 0 0% 0 0%
Search or Seizure 0 0% 0 0%
Bias-Based Policing 0 0% 0 0%
Procedure 49 70% 116 74%
Courtesy 3 4% 1 1%
Conduct Unbecoming an Officer 14 20% 26 17%
Neglect of Duty 0 0% 9 6%
Workplace Discrimination 1 1% 1 1%
Workplace Harassment 1 1% 3 2%
Total Allegations 70 100% 157 100%
Allegations Received 2021 2022
# % # %
Procedure 416 42% 344 43%
Force 119 12% 84 10%
Courtesy 139 14% 116 14%
Arrest or Detention 112 11% 88 11%
Search or Seizure 53 5% 86 11%
Bias Based Policing 122 12% 70 9%
Conduct Unbecoming an Officer 36 4% 4 0%
Neglect of Duty 3 0% 5 1%
Workplace Discrimination 0 0% 2 0%
Workplace Harassment 0 0% 3 0%
Total Allegations 1000 100% 802 100%
2022 IPA YEAR END REPORT | 101
Illustration C: All Allegations Received — Five-Year Overview (2018-2022) *
* Including Department-Initiated Investigations in 2021 and 2022 Illustration D: Allegations Received (Conduct Complaints only) — Five-Year Overview (2018-2022) *
T
able 3: Force Complaints Received Relative to Total Complaints Received — Five-Year Overview (2018-20
22) *
*
Conduct Complaints only
98 115
32 55
100
123
49 54
111
93 43
104
121
112
53 122
85 88 86
70 0
50 100
150
Force Arrest or Detention Search or Seizure Bias-Based Policing Number of Allegations Received
2018 2019 2020 2021 2022
98 115
32 55
100
123
49 54
111
93 43
104
121 112
53 122
84 88 86
70 0
50 100
150
Force Arrest or Detention Search or Seizure Bias-Based Policing Number of Allegations Received
2018 2019 2020 2021 2022
Total Total Total Force Complaints
Year Force Force Number of As % of
Allegations Complaints Complaints Total Complaints
2018 98 46 248 19%
2019 100 45 216 21%
2020 111 62 269 23%
2021 121 54 333 16%
2022 84 44 358 12%
102 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
Table 4: Force Allegations Received in Conduct Complaints and Department Initiated Complaints — Five-Year Overview (2018-
2022) *
I
llustration E: Force Allegations Received — Five-Year Overview (2018- 2022) *
*T
his illustration reflects only complaints filed by members of the public (2018-2022).
I
llustration F: Force Complaints Received — Five-Year Overview (2018- 2022) *
*T
his illustration reflects only complaints filed by members of the public (2018-2022).
Force Allegations in Force Allegations in Total
Year Conduct Department-Initiated Number of
Complaints Complaints Allegations
2018 98 1 99
2019 100 1 101
2020 111 3 114
2021 121 2 123
2022 84 1 85
98 100 111 121
84 0
40 80
120
160
Force Allegations Received
2018 2019 2020 2021 2022 46 45
62 54
44 0
20 40
60 80
Force Complaints Received
2018 2019 2020 2021 2022 2022 IPA YEAR END REPORT | 103
Illustration G: Force Complaints Received Relative to Total Complaints Received — Five-Year Trend *
Table 5: Force Complaints Received in 2022 — by Complainants’ Ethnicities*
* Information on the ethnicity of complainants 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 listed together with Asian/Pacific Islanders.
Table 6: Subject Officers Receiving Complaints in 2022 (by Years of Experience) *
*Including the number of officers who were named in Department-Initiated Investigations in 2021, 2022 248
216
269
333 358
46 45 62 54
44 0
50 100
150
200
250
300
350
400
2018 2019 2020 2021 2022
Number of Complaints
Total Complaints
Ethnicities Force Complainants Total Complainants % of
From Complainant Intakes Number % Number % San Jose
Population**
African American 3 6% 28 9% 3%
As
ian American/Pacific Islander 3 6% 19 6% 32%
Caucasian 5 11% 36 12% 29%
Hispanic/Latino 14 30% 70 23% 33%
Native American 1 2% 3 1% 1%
Other 1 2% 15 5% 2%
Decline/Unknown 20 43% 132 44% 0%
Complainant Responses 47 100% 303 100% 100%
Years of Experience 0- 1+ 2- 4+ 5- 6+ 7-10+ 11- 15+ 16+ Total Number of Officers Number of Complaints Receiving Complaints
1 Complaint 39 82 28 38 17 59 263
2 Complaints 12 34 3 5 4 8 66
3 Complaints 4 11 1 1 0 3 20
4 Complaints 1 5 1 1 0 0 8
5 Complaints 0 4 0 0 0 0 4
Total Number of Officers 56 136 33 45 21 70 361
Receiving Complaints
104 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
Table 7: Complaints Received by Individual Officers — Five-Year Overview (2018-2022) *
*Including the number of officers who were named in Department-Initiated Investigations in 2021, 2022 Table 8: Years of Experience of Officers with Sustained Findings in 2022*
* Including the number of officers who were named in Department-Initiated Investigations in 2021 Table 9: Ethnicities of Subject Officers in 2022*
*Including the number of officers who were named in Department-Initiated Investigations in 2022
Officers Receiving 2017 2018 2019 2020 2022
1 Complaint 207 189 216 245 263
2 Complaints 51 41 54 78 66
3 Complaints 6 15 15 17 20
4 Complaints 1 2 2 8 8
5 Complaints 1 0 1 0 4
6 Complaints 1 0 1 0 0
Total Number of Officers 267 247 289 348 361
Receiving Complaints
Years of Total Officers % of Officers Type of Allegations Total Percent of Experience with Sustained with Sustained AD C CUBO ND P SS WH Sustained Sustained Findings Findings Allegations Allegations
0- 1+ 14 19% 0 4 1 0 37 2 0 44 24%
2- 4+ 41 56% 4 7 9 3 75 5 2 105 57%
5- 6+ 5 7% 0 1 0 0 10 0 0 11 6%
7-10+ 5 7% 0 2 1 0 6 0 0 9 5%
11- 15+ 2 3% 0 0 0 0 3 0 0 3 2%
16+ 6 8% 0 2 2 0 8 0 0 12 7%
73 100% 4 16 13 3 139 7 2 184 100%
Ethnicities Subject % SJPD %
Officers Sworn Officers
Native American 2 1% 6 1%
Asian American/Pacific Islander 25 7% 108 10%
African American 6 2% 33 3%
Filipino American 6 2% 32 3%
Hispanic/Latino 61 17% 236 22%
Caucasian 120 33% 368 34%
Not Specified 141 39% 304 28%
Total 361 100% 1087 100%
2022 IPA YEAR END REPORT | 105
Table 10: Gender of Subject Officers in 2022*
Illustration H: Ethnicities of Subject Officers —Ethnicities of SJPD Sworn Officers in 2022 *
* Including Department-Initiated Investigations
Table 11: Officers Receiving One or More Complaint/s in 2022*
* Including the number of officers who were named in Department-Initiated Investigations Table 12: Complainants Filing One or More Complaint/s in 2022 *
* Excluding complainants who filed anonymous complaints, and Department-Initiated Investigations.
Gender Subject % SJPD %
Officers Sworn Officers
Male 320 89% 949 87%
Female 41 11% 138 13%
Total 361 100% 1087 100%
1% 7%
2% 2%
17%
33%
39%
1% 10%
3% 3%
22%
34%
28%
Ethnicities of Subject Officers — Ethnicities of SJPD Sworn Officers
Ethnicities of Subject Officers Ethnicities of SJPD Sworn Officers Officers Receiving #
1 Complaint 263
2 Complaints 66
3 Complaints 20
4 Complaints 8
5 Complaints 4
Total Number of Officers 361
Receiving Complaints
Complainants Filing # People
1 Complaint 270
2 Complaints 23
3 Complaints 7
4 Complaints 2
8 Complaints 1
Total Number of Complainants 303
106 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
Table 13: Officers Receiving One or More Force Complaint/s in 2022* Table 12-A: All Types of Complaint Classification
Table 12-C: Conduct Complaints
Table 12-B: Department-Initiated Investigations
Table 14: Types of Complaints IA Closed and IPA Audited in 2022
Table 15-A: Dispositions of All Allegations Closed *
* Including Department-Initiated Investigations
Officers Receiving # %
1 Force Complaint 63 91%
2 Force Complaints 6 9%
Total Number of Officers 69 100%
Receiving Force Complaints
Officers Receiving # %
1 Force Complaint 63 93%
2 Force Complaints 5 7%
Total Number of Officers 68 100%
Receiving Force Complaints
Officers Receiving # %
1 Force Complaint 1 100%
Total Number of Officers 1 100%
Receiving Force Complaints
Types of Complaints IA Closed IPA Audited
C
onduct Complaints 203 165
Department-Initiated Issues 32 28
Policy Complaints 6 0
Non-Misconduct Concerns 37 0
Other 35 0
Decline to Investigate 28 0
Total 341 193
Type of Dispositions Dispositions of Allegations AD BBP C CUBO F ND P SS WD WH Total %
Sustained 4 0 17 17 0 3 162 9 0 2 214 23%
Not Sustained 2 1 3 5 0 0 24 0 0 0 35 4%
Exonerated 76 0 41 2 46 8 157 39 0 0 369 40%
Unfounded 1 57 44 7 17 0 65 7 0 0 198 21%
No Findings 2 4 7 5 4 1 32 4 3 3 65 7%
Complaint Withdrawn 1 0 1 0 1 0 3 1 0 0 7 1%
Complaint/Sup Review 0 0 0 0 0 0 15 0 0 0 15 2%
Other 2 5 1 2 5 0 14 0 0 0 29 3%
Total Allegations 88 67 114 38 73 12 472 60 3 5 932 100%
2022 IPA YEAR END REPORT | 107
Table 15-B: Dispositions of Allegations Closed in Conduct Complaints*
*Excluding Department-Initiated Investigations
Table 15-C: Dispositions of Allegations Closed in Department-Initiated Investigations*
* Department-Initiated Investigations only
Illustration I: Timeliness of Conduct Complaint Investigations Closed by the Department — Five Year Overview (2018-2022) *
*Excluding nine toll cases
Type of Dispositions Dispositions of Allegations AD BBP C CUBO F ND P SS WD WH Total %
Sustained 4 0 17 4 0 3 71 9 0 1 109 14%
Not Sustained 2 1 3 4 0 0 15 0 0 0 25 3%
Ex
onerated 76 0 41 1 43 0 142 39 0 0 342 45%
Unfounded 1 57 41 6 17 0 62 7 0 0 191 25%
No Findings 2 4 7 2 4 1 13 4 2 0 39 5%
Complaint Withdrawn 1 0 1 0 1 0 3 1 0 0 7 1%
Complaint/Sup Review 0 0 0 0 0 0 15 0 0 0 15 2%
Other 2 5 1 2 5 0 14 0 0 0 29 4%
Total Allegations 88 67 111 19 70 4 335 60 2 1 757 100%
Type of Dispositions Dispositions of Allegations AD BBP C CUBO F ND P SS WD WH Total %
Sustained 0 0 0 13 0 0 91 0 0 1 105 60%
Not Sustained 0 0 0 1 0 0 9 0 0 0 10 6%
Exonerated 0 0 0 1 3 8 15 0 0 0 27 15%
Unfounded 0 0 3 1 0 0 3 0 0 0 7 4%
No Findings 0 0 0 3 0 0 19 0 1 3 26 15%
Complaint Withdrawn 0 0 0 0 0 0 0 0 0 0 0 0%
Complaint/Sup Review 0 0 0 0 0 0 0 0 0 0 0 0%
Other 0 0 0 0 0 0 0 0 0 0 0 0%
Total Allegations 0 0 3 19 3 8 137 0 1 4 175 100%
17 11
21 31
46 0 0 2 0 30
10 20
30 40
50 2018 2019 2020 2021 2022
Number of Compaints
Conduct Complaints Closed
Between 301-365 Days
Conduct Complaints Closed After
365 Days
108 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
*Including all tolled cases
Table 16: Conduct Complaints Closed with Sustained Allegations — Five-Year Overview (2018-2022) *
* Including Conduct Complaints only
Table 16-A: DIIs Closed with Sustained Allegations
Table 17: SJPD Findings for Force Allegations Closed — Five-Year Overview (2018-2022) *
* Including Department-Initiated Investigations in 2021 and 2022 Year Conduct Conduct Sustained
Complaints Complaints Rate
Sustained Closed
2018 22 212 10%
2019 14 197 7%
2020 25 200 13%
2021 31 262 12%
2022 36 203 18%
Year DIIs DIIs Sustained
Sustained Closed Rate
2021 11 14 79%
2022 25 32 78%
Disposition of 2018 2019 2020 2021 2022
Force Allegations # % # % # % # % # %
Sustained 1 1% 0 0% 2 3% 2 2% 0 0%
Not Sustained 0 0% 2 1% 1 1% 0 0% 0 0%
Exonerated 73 76% 106 76% 52 70% 92 77% 43 61%
Unfounded 11 11% 18 13% 10 14% 21 18% 17 24%
No Findings 1 1% 5 4% 2 3% 5 4% 4 6%
Complaint Withdrawn 1 1% 0 0% 1 1% 0 0% 1 1%
Other 9 9% 8 6% 6 8% 0 0% 5 7%
Total 96 100% 139 100% 74 100% 120 100% 70 100%
2022 IPA YEAR END REPORT | 109
Illustration J: Force Complaints Received Relative to Total Complaints Received — Five-Year Trend *
*This illustration reflects only complaints filed by members of the public (2018-2022).
Illustration K: IPA Audit Determinations in All Closed Complaints in 2022
Illustration L: IPA Audit Determinations in Closed Conduct Complaints in 2022
248
216
269
333 358
46 45 62 54
44 0
50 100
150
200
250
300
350
400
2018 2019 2020 2021 2022
Number of Complaints
Total Complaints
Force Complaints
Agreed at First
Review
113 (59%)
Agreed after
Further Action
26 (13%)
Disagreed
26 (13%)
Closed with Concern(s)
28 (15%)
Agreed at
First Review
92 (56%)
Agreed after
Further Action
24 (15%)
Disagreed
23 (14%)
Closed with Concern(s)
26 (16%)
110 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
Table 18: IPA Audit Determinations in All Closed Complaints — Five-Year Overview (2018-2022) *
* Including Department-Initiated Investigations in the second half of 2021 and the full year of 2022.
Table 19: IPA Audit Determinations in Closed Conduct Complaints —Five-Year Overview (2018-2022) *
* Excluding Department-Initiated Investigations in the second half of 2021 and the full year of 2022.
Table 20: Officer-Discipline Imposed by the Department in 2022*
* Disciplinary imposes for all complaints, Conduct Complaints, and Including Department-Initiated Investigations in 2022
Audit Determination in 2018 2019 2020 2021 2022
Investigated Cases Audits % Audits % Audits % Audits % Audits % Agreed at First Review 124 71% 133 84% 130 71% 179 72% 113 59% Agreed after Further Action 35 20% 9 6% 16 9% 26 10% 26 13% Disagreed 6 3% 6 4% 10 5% 22 9% 26 13%
Closed with Concern(s) 10 6% 11 7% 27 15% 23 9% 28 15%
Total Complaints Audited 175 100% 159 100% 183 100% 250 100% 193 100% Audit Determination in 2018 2019 2020 2021 2022
Investigated Cases Audits % Audits % Audits % Audits % Audits % Agreed at First Review 124 71% 133 84% 130 71% 170 71% 92 56% Agreed after Further Action 35 20% 9 6% 16 9% 26 11% 24 15% Disagreed 6 3% 6 4% 10 5% 22 9% 23 14%
Closed with Concern(s) 10 6% 11 7% 27 15% 22 9% 26 16%
Total Complaints Audited 175 100% 159 100% 183 100% 240 100% 165 100% Type of Discipline 2022
# of Times % of All Discipline
Training 16 17%
Counseling 2 2%
Training and/or Counseling 13 14%
All Training and/or Counseling 31 33%
Documented Oral Counseling (DOC) 33 35%
DOC and Training 1 1%
Letter of Reprimand (LOR) 15 16%
All DOC & LOR 49 53%
20-Hour Suspension 1 1%
60-Hour Suspension 4 4%
80-Hour Suspension 2 2%
120-Hour Suspension 1 1%
160-Hour Suspension 1 1%
All Suspensions 9 10%
Disciplinary Transfer 1 1%
Termination 3 3%
Total Discipline Imposed 93 100%
2022 IPA YEAR END REPORT | 111
Table 21: Age Range of Complainants in 2022 by Percentage
* Excluding complainants who filed anonymous complaints, and Department-Initiated Investigations.
Table 22: Ages of Subjects in Force Allegations Closed in 2022
Table 23: Gender of Subjects in Force Allegations Closed in 2022
Age Range of Complainants Number %
Under age 20 3 1%
20-24 years 9 3%
25-29 years 17 6%
30-34 years 31 10%
35-39 years 24 8%
40-44 years 37 12%
45-49 years 27 9%
50-54 years 19 6%
55-59 years 15 5%
60-64 years 23 8%
65-69 years 7 2%
70-74 years 6 2%
75 and over 1 0%
Decline/Unknown 84 28%
Total Complainant's Responses to Intakes 303 100%
Age of Subjects Number %
in Force Allegations Closed
Under age 20 2 6%
20-24 years 3 9%
25-29 years 7 21%
30-34 years 4 12%
35-39 years 5 15%
40-44 years 2 6%
45-49 years 0 0%
50-54 years 1 3%
55-59 years 0 0%
60-64 years 1 3%
65-69 years 2 6%
70 and over 0 0%
Decline/Unknown 6 18%
Total Complainant's Responses 33 100%
Gender Number of persons % of Total persons
Male 24 73%
Female 9 27%
Total persons 33 100%
112 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
Table 24: Location of Force Applications in Allegations Closed in 2022
Illustration M: Levels of Injury in Force Allegations Closed in 2022
Table 25: Types of Force Applications in Allegations Closed in 2022
Locations of Number %
Force Applications
Head 5 12%
Neck 1 2%
Torso 20 47%
Limbs 17 40%
Total 43 100%
Level I 0% (0)
Level II
14% (5)
Level III
17% (6)
None
47% (17)
Pre-existing
0% (0)
Unknown
22% (8)
Types of Force Number of % of Total Force
Applications Applications
Baton 1 2%
Body Weapons 6 11%
Canite Bite 0 0%
Car Impact 0 0%
Chemical Agent 0 0%
Control Hold 20 37%
Flashlight 0 0%
Gun 7 13%
Chokehold 0 0%
Takedown 11 20%
Taser 3 6%
Other 6 11%
Total 54 100%
2022 IPA YEAR END REPORT | 113
Table 26: Types of Force Applications in Allegations Closed from 2018 through 2022
* In 2019, there was 1-gun application that involved use of a less lethal projectile weapon.
Table 27: Ethnicities of Subjects in Force Allegations Closed in 2022 0 * Source: U.S. Census Bureau, Census 2010
Type of 2018 2019 2020 2021 2022
Force # of % of Total Force # of % of Total Force # of % of Total Force # of % of Total Force # of % of Total Force Applications Applications Applications Applications Applications Applications Applications Applications Applications Applications Baton 6 8% 4 5% 3 5% 1 1% 1 2%
Body Weapons 7 10% 14 18% 6 11% 8 11% 6 11%
Canine Bite 2 3% 0 0% 2 4% 3 4% 0 0% Car Impact 0 0% 1 1% 2 4% 2 3% 0 0% Chemical Agent 0 0% 0 0% 0 0% 0 0% 0 0% Control Hold 25 35% 26 33% 16 29% 22 29% 20 37%
Flashlight 1 1% 0 0% 0 0% 0 0% 0 0%
Gun 4 6% 4 5% 8 15% 11 14% 7 13% Lifting up cuffs 0 0% 0 0% 0 0% 0 0% 0 0% Takedown 14 20% 17 22% 9 16% 12 16% 11 20%
Taser 8 11% 2 3% 2 4% 3 4% 3 6%
Chokehold 1 1% 2 3% 1 2% 0 0% 0 0%
Other 3 4% 8 10% 6 11% 14 18% 6 11%
Total 71 100% 78 100% 55 100% 76 100% 54 100%
*
Ethnicities Number Percentage Percentage of
of persons of total San Jose
persons Population*
African American 5 15% 3%
Asian American/Pacific Islander 1 3% 32%
Caucasian 5 15% 29%
Hispanic/Latino 11 33% 33%
Native American 2 6% 1%
Other 1 3% 2%
Decline/Unknown 8 24% 0%
Total persons 33 100% 100%
114 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
APPENDIX D — HYPOTHETICAL IA INVESTIGATION
IA Intake to IA Close
.
Allegation 1
Arrest/detention
Allegation 2
Courtesy
IA determines that the allegations are
INFORMAL IA INVESTIGATION
Gabe contacts the IA office and files a complaint. Gabe asserts that he was stopped by a SJPD police officer who gave him a traffic citation for rolling through a stop sign. Gabe admitted to rolling through the stop sign but claimed that the officer’s patrol car was positioned in such a way that the officer could not have seen Gabe’s actions. Gabe complained that he should not have detained and that the officer was rude to him by stating that Gabe was an idiot and smelled nasty.
IA properly classifies this matter as a conduct
complaint, i.e., Gabe alleged that an officer violated
Department policy or the law.
An IA officer is assigned the case and begins gathering evidence. From the citation number provided by Gabe, the IA officer confirms that Officer CcC issued the ticket. The IA officer obtains a copy of the ticket and notes the location of the encounter. The IA officer pulls the CAD to see if it reflects any pertinent facts, including that Officer CcC was working alone that day. The IA officer might contact Gabe to confirm that there were no passengers in his car during the encounter. The IA officer attempts to obtain Officer CcC’s body worn camera (BWC) video of the encounter. There is no BWC of this encounter. IA determines to add a third procedure allegation to explore whether Officer CcC complied with SJPD policies on activating BWC. The IA officer travels to the intersection for a visual inspection. The IA officer passes the informal investigation to an IA Sergeant for formal investigation Allegation #3
procedure
Intake
at IA
Unit
Entry into shared database
2022 IPA YEAR END REPORT | 115
EXONERATED
Gabe admitted to rolling
through the stop sign. Both the
visual inspection and Officer
CcC’s explanation indicated
that the officer did, in fact,
observe the CA Vehicle Code
violation
Allegation 1
Arrest/detention
Allegation 2
Courtesy
NOT SUSTAINED
The words that Gabe claimed
Officer CcC used would be
unprofessional and not tactful.
While Officer CcC asserted it
would be unlikely for him to use
such words, there was no other
evidence to support or refute
the allegation. The credibility of
each person was the equal.
IA APPLIES THE FACTS TO THE FACTS AND MAKES A FINDING
Using a preponderance of the evidence standard, the allegations are closed as follows:
The investigation showed that
Officer CcC likely violated the
BWC policy. This allegation Is
forwarded to the Officer’s chain
of command for Findings &
Recommendations
Allegation 3
Procedure
FORMAL IA INVESTIGATION
IA Sergeant
interviews
Officer CcC
Officer is asked to describe the exact location of his patrol car when he saw Gabe’s car roll through the stop sign and whether there were any visual obstructions.
When asked, Officer cannot remember whether he called Gabe an idiot or smelled nasty; he did assert that such conduct on his behalf would be unlikely. Officer also could not explain why there was no BWC video of the encounter.
He asserted that he either forgot to turn on the device or that the battery pack had failed to hold an adequate charge.
IA sergeant considers the relevant facts, both those that corroborate the allegations and those that address the
credibility of Gabe and Officer CcC. The sergeant checks as to when Officer CcC’s BWC device was last charged.
F&R deems the allegation
SUSTAINED
Recommends discipline
IA FORWARDS FOR IPA REVIEW
116 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
APPENDIX E — HYPOTHETICAL EXAMPLE
IPA Appeal Process
The appeal process allows the IPA to request that additional steps to taken to remedy those investigations that are not fair, thorough, complete, or objective.
The lack of subject officer interviews is perhaps the most common reason for an IPA appeal.
Cases closed without an officer interview can involve making assumptions (generally in the officer’s favor) about his/her actions.
If the subject officer documents (in his/her
report or on BWC video) specific and articulable
facts supporting a suspicion that the suspect
was armed and dangerous, then the case may
not require an officer interview. IA closes and
sends investigation to the IPA.
If the report and BWC video do not provide
specific and articulable facts, then an interview
of the subject officer is necessary to obtain the
officer’s statement about his/her perceptions.
Thus, if IA closes and sends to the investigation
to the IPA, the IPA may appeal.
Rationale for IPA Appeal
Absent an interview, the investigation of this
search allegation would not be complete or
thorough. Absent such interview, concluding
assuming that the subject officer had suspicion
that the suspect was armed would be based on
assumptions would not be objective or fair.
IPA CLOSE
“AT FIRST REVIEW”
COMPLAINT WITH ONLY ONE
ALLEGATION: SEARCH
complainant alleged one
subject officer conducted an
improper pat search (aka frisk)
APPLICABLE RULE 4th Amendment & DM sections
To make a finding whether alleged a pat search was proper or improper, IA must determine if the subject officer
documented specific and articulable fact that reasonably support a suspicion that the suspect if armed and dangerous. 2022 IPA YEAR END REPORT | 117
Police Chief grants appeal
If the Chief agrees with the
IPA’s rationale, the case will
be returned IA to interview
subject officers.
Police Chief denies appeal
on solid rationale
If the Police Chief’s
disagreement with the
IPA’s rationale is sound,
the IPA may determine to
close and not to appeal to
the City Manager. The
365-day deadline may be
determinative.
Police Chief denies appeal
If the IPA determines that
the Police Chief’s denial of
the IPA appeal is not
sound, the IPA may
appeal to the City
Manager. The 365-day
deadline may be
determinative.
Rationale for IPA Appeal
Our concerns outlined in the IPA
appeal to the Chief were not
alleviated by the Chief’s response.
City Manager grants appeal
If the CM agrees with the IPA’s
rationale, the case will be
returned to IA to interview
subject officers.
CM denies appeal on solid
rationale
If the CM denial is sound,
the IPA will close the case
generally as “agree after
further.”
CM denies appeal
If our concerns outlined in
the IPA appeal to the CM
were not alleviated by the
CM’s response, the IPA will
close the case generally as
“disagree” or “with
concerns.”
IPA CLOSE
IPA CLOSE IPA CLOSE
118 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
APPENDIX F — RIPA 2023 REPORT QUICK FACTS
2022 IPA YEAR END REPORT | 119
120 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
2022 IPA YEAR END REPORT | 121
122 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
2022 IPA YEAR END REPORT | 123
END NOTES
1 See City Council meeting agenda items 4.1 and 4.2. Details from this meeting, including links to the consultant’s reports and the Department’s response may be found here:
https://sanjose.legistar.com/LegislationDetail.aspx?ID=5455918&GUID=0B27E602- AA43-4345-B249-D6E4AD03BA8B&Options=&Search=
2 In 2021, the City Manager established the Reimagining Community Safety Advisory Group. The initial Advisory Group reflected a diverse membership, representing the of San José community. The initial group held three meetings in March and April 2021. Then the initial group disbanded primarily due to the desire of the group members to have more autonomy from the City Administration over the process by which the group was organized and the topics the group would examine, including police oversight and transparency.
3 The approved direction consisted of this language:
Staff should explore the legal, practical and other implications of the following recommendations and bring a report to PSFSS in the Spring.
1. Direct the City Attorney to determine whether the grant of investigatory authority to the IPA constitutes a change to officers’ working conditions, requiring negotiation with the SJPOA. If so, then direct the City Manager to commence union negotiations, consistent with the side letter in the current and pending collective bargaining agreement with SJPOA to discuss police reforms.
2. Upon resolution of any SJPOA negotiation requirements, the City Manager and IPA shall bring a proposed hybrid model recommendation to PSFSS, including the following elements:
a. Hire a limited number of investigators for an initial phase of implementation, contingent on Council budgetary authorization, and:
i. Explore and provide analysis to Council how hiring of IPA investigators may provide cost savings for the City with expansion of enforcement capacity, insofar as IPA investigator hiring could facilitate redeployment of SJPD officers from IA to patrol and other duties; ii. Explicitly engage the Council in considering whether to hire experienced and professional law enforcement investigators, either sworn or nonsworn, for IPA investigatory roles.
iii. Ensure uniformity of investigatory training for IA and IPA investigators iv. Grant IPA investigators the ability to make findings including, but not limited to, sustained, not sustained, exonerated, and unfounded. v. All discipline will remain within the authority of the Chief of Police and the City Manager’s Office.
b. Define the initial scope of IPA investigatory authority, identify misconduct cases by allegation type for a three-year phase of implementation, with:
124 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
i. A recognition that the scope may change with the benefit of experience and iterative adjustment;
ii. A coordinated process that mitigates risk of parallel, conflicting, wasteful, or unduly burdensome investigations addressing the same misconduct allegation
c. Enable the IPA to have access to needed investigatory tools, including access to IAPro and evidence.com, SJPD records, and a grant of subpoena power.
i. Should the IPA be unable to employ sworn investigators, consider a formal agreement between the City Manager and IPA that authorizes the SJPD’s IA to file affidavits for search warrants or other investigatory tools upon request by the IPA.
d. Review both the IA and the IPA oversight structure, processes, and outcomes every three years to learn and make adjustments.
e. Honor all employment protections under existing law and under the City’s collective bargaining agreement with the SJPOA.
3. As the IPA urges, decline to accept any recommendation that might implicitly or explicitly limit the IPA’s ability to appeal a decision by the Chief of Police, and continue the current model whereby the IPA may appeal first to the Chief of Police and then, if warranted, to the City Manager.
4. Refer the proposed hybrid workplan to the Public Safety, Finance and Strategic Support (PSFSS) Committee meeting in April 2023, and upon approval of an initial workplan, return to PSFSS in one year with their results in a report that will be cross-referenced to the full City Council.
4 Information was collected from the NACOLE website, the individual agency websites, and/or phone calls with agency members. The information included:
• Agency name
• Agency location
• Jurisdiction size
• Number of sworn officers
• Total violent crime
• Agency conducts independent investigations? (yes/no)
• IA conducts parallel investigations of the same conduct? (yes/no) • Can make or recommend findings?
• Recommends officer discipline
• Enacts officer discipline
• General subpoena power
• Subpoena power over sworn officer
• Consent decree (presence/absence)
• Total staff of agency
• Number of investigators employed by agency
• Agency can employ former law enforcement
• Independent legal counsel
2022 IPA YEAR END REPORT | 125
5 The one-year deadline can be tolled (put on hold) during the time any criminal or civil court action is proceeding, or if the investigation is particularly complex because it is multijurisdictional or involves multiple officers. Gov’t Code section 3304(d)(2). One 2011 IPA recommendation is to ensure that tolling be applied consistently.
6 The IPA has put a spotlight on the timeliness issue multiple times over the years. The IPA Audit of Recommendations to SJPD (1993-2009), reported to the City Council on January 10, 2012 established that the IPA made 10 recommendations on the issue of IA investigation timeliness from 1993 to 2009. SJPD adopted many of these recommendations as policy.
7 The 2021 IPA Year End Report discussed at length the issues of tolling; see page 2-4 and Recommendation #9 on page 58.
8 Case #1 filed July 2021
• Courtesy
• Procedure
Case #2 filed August 2021
• Procedure
Case #3 filed August 2021
• Courtesy
• Force
Case #4 filed August 2021
• Procedure
• Courtesy
• Arrest/detention
• Bias-based policing
• Search/seizure
9 Days remaining from date of IPA receipt of file until deadline • 1 day past deadline – 1 case
• 1 day prior – 3 cases
• 2 days prior - 1 case
• 3 days prior 1 case
• 7 days prior – 2 cases
• 8 days prior – 1 case
• 9 days prior – 1 case
• 10 days prior – 1 case
• 12 days prior – 3 cases
• 15 days prior 1 case
• 16 days prior 1 case
• 23 days prior 1 case
• 28 days prior 1 case
126 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
10 Duty Manual section C 1705
11 Duty Manual section C 1700
12 Duty Manual section C1710
13 For more information about this case, see the IPA 2020 Year End Report on page 86 regarding Case #8.
14 For more information about this case, see the IPA 2021 Year End Report on page 40 and on page 50 regarding Complaint #I202:B and #I202:F. It is the same case.
15 The MLF report at page 46 states: The process of making an investigative determination, with regard to CUBO when the contact is already being analyzed in connection with other allegation, is perceived as stacking and some SJD personnel have expressed frustration with the IPA’s requests to add the CUBO allegation.
Effective oversight and accountability practices dictate that all potential violation of policy be thoroughly investigated. The determination about whether conduct negatively reflects upon the department or the officer does not necessarily require additional discipline be imposed because the chief may ultimately decide that issuing appropriate levels of discipline for the most serious sustained allegations to be sufficient to correct the officer’s approach going forward, which also has a remedial effect on the culture of the department and on the field training received by newer officers.
Disregarding an allegation, simply because the conduct may implicate more than one policy requirement, necessarily results in an incomplete investigation, and does not result in the type of thorough and complete analysis calculated to improve performance, and to signal to the people served by the department that all potential misconduct and potential policy violations will be addressed. . .
Accordingly, the consulting team recommends that when a policy violation may objectively reflect poorly on the department, an allegation of CUBO should be fully investigated, and a conclusion should be reached as to whether the policy was violated.
16 The POST Publications page allows one to access the Use of Force Standards and Guidelines document.
https://post.ca.gov/Portals/0/post_docs/publications/Use_Of_Force_Standards_Guidelines. pdf
17 Pointing Firearm Executive Review PDF
https://www.phila.gov/media/20201016221621/Pointing-Firearm- Executive-Review.pdf
2022 IPA YEAR END REPORT | 127
18 January 2022 Press Release https://sf.gov/news/san-francisco-police-commission- adopts-improved-use-force-policy September 2022 revisions https://www.sanfranciscopolice.org/sites/default/files/2022-03/SFPDNotice22-025- 20220301.pdf
19 Denver Police Department Operations Manual Use of Force Policy 105.01; Seattle Police Department Manual Section 8.300, Los Angeles Police Department’s Drawing or Exhibiting Firearms Policy, Section 556.80.
20 Jennings, Jay and Rubado, Meghan “Preventing the Use of Deadly Force: The Relationship between Police Agency Policies and Rates of Officer-Involved Gun Deaths,” Public Administration Review (March/April 2017)
21 See Cal. Code Regs. Title 11, section 999.226 (2017).
22 Reportable Force is a level of force which requires documentation by the officer per Duty Manual section L 2644. Most force is considered reportable although there are some limited exceptions. SJPD Duty Manual section L 2644
DEFINITION OF REPORTABLE FORCE:
A reportable use of force is defined as any incident in which officers, either on or off duty, exercises their police powers and uses deadly force or any force option including physical force in conformance with L 2603, Force Options Policy.
23 See America Cop, https://americancop.com/ready-positions/ https://www.guns.com/news/review/training-three-ready-positions-every-concealed-carrier- should-know
24 There were two definitions of low ready (1) holding the firearm a 45-degree angle or less and (2) any situation in which an officer’s gun is pointed at a 45-degree angle or less and not at a person. In other words, if an officer draws their gun and points it at a 45- degree angle toward the person’s legs or feet, it constitutes a use of force. . . .many cops either weren’t aware of this, or treated the rule as a loophole and didn’t file a report. https://eastbayexpress.com/further-ev idence-emerges-that-the-oakland-police-under- reported-use-of-force-incidents-2-1/
25 Alameda County District Attorney’s Office Point of View Winter 2021 at page 9
26 Point of View at page 9 citing United States v. Robinson (1973) 414 U.S. 218, 234 (fn. 5), 235.
27 People v. Macabeo, 1 Cal. 5th 1206, 1218 (2016).
28 San Jose Police Department Training Bulletin #2022-018 states that an officer may conduct a search of the vehicle incident to the arrest of an occupant only under these two scenarios: (1) the arrestee is unsecured and could reasonably gain access to the passenger compartment of the vehicle or (2) it would be reasonable to believe the passenger 128 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
compartment of the vehicle contains evidence of the crime for which the passenger was arrested.
29 Two separate complaints brought this issue to our attention. In one case, Officer R initiated a vehicle stop for vehicle infractions. He wrote the driver a citation for (1) nonfunctioning license place lights and (2) tinted windows. Officer R directed the driver to exit his car to sign the citation. As the driver exited the car, the Officer immediately tried to grab the driver’s hands and escort him to his patrol car to conduct a pat-search. The driver reacted by tensing up and pulled his hands away. A struggle ensured and resulted in Officer R using fore by attempting a takedown of the driver, delivering closed-fist punched the driver’s head and deploying a TASER (both prongs and drive-stun modes). The driver later filed a lawsuit against the City in the U.S. District Court for the Northern District of California.
In the other case, Officer T detained a driver and his passenger at night. The officer claimed that the vehicle’s license plate was obscured. The officer also claimed that he seemed the odor of burnt cannabis while he was at the driver’s window; he did not, however, mention this to his partner, Officer V. Officer V did not smell this odor. The officers decided to have the driver and his passenger exit the car so the officers could do a plain view search. If there was nothing in plain view, they would issue a warning about the license plate instead of a citation. Officer T stated that, I ask everyone outside to my
vehicle to sign citations, I like to get people out of their comfort zones due to officer safety concerns and case law Pennsylvania v. Mimms. Once the two men exited the car, each was immediately pat-searched.
30 Persons may obtain a window tint exemption from the DMV provided that the application is accompanied by a signed document/letter from licensed dermatologist, optometrist, physician or surgeon stating they need window tint to shield them from the sun because of a serious medical condition with which they suffer.
31 Visible Light Transmission refers to the percentage of visible light passing through your vehicle windows. Several levels or percentages range from 5% to 90%. The term VLT describes the degree of darkness in a tint. The color is darker when the number is lower. A percentage rate of 5%, for example, means a very dark tint.
32 Some community members in San José and others across the nation believe that stopping and ticketing for tint violations is motivated by implicit bias. In San José, the IPA has received at least ten cases since 2020 which involve a detention for tinted windows. A study in North Charleston SC showed that of the estimated 1,560 window-tinting tickets handled in the city’s municipal court since January 2010, black drivers received about 1,200 of them. That means blacks account for nearly 77% of these tickets, while they make up 47% of the city’s population.
https://www.postandcourier.com/news/window-
tinting-tickets-biased/article_e8a361d4-3304-51ac-97a7-f54b00ff299c.html A study in Deerfield Beach, FLA showed the demographics of the people issued tint citations: 55% African-American, 36% white, and 9% Hispanic. This rate was disparate from with the overall population: The 2010 census found Deerfield Beach’s black 2022 IPA YEAR END REPORT | 129
population at 25%, white at 69%, and Hispanic at 14%.
https://www.browardpalmbeach.com/news/public-defender-cops-in-deerfield-beach-are- using-tinted-window-stops-to-target-african-americans-7172971
33 https://www.tinting-laws.com/tint-darkness-example/
34 https://www.windowtintinginlv.com/best-window-tint-meters.html
35 An unarmed civilian is anyone who is not in possession of a deadly weapon. (Gov. Code, § 12525.3, subd. (a)(2).) Deadly weapon includes, but is not limited to, any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, pilum, ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles. (Gov. Code, § 12525.3, subd. (a)(1).) All firearms, and BB/pellet guns, even if unloaded or inoperable, are deadly weapons. Objects that have a legitimate non-weapon purposes are considered deadly weapons only when, based on the circumstances, they are actually being used in a manner likely to produce death or great bodily injury. The following are examples of objects that have been considered a deadly weapon when used in that manner: knives, box cutters, screwdrivers, bottles, chains, automobiles, rocks, razor blades, and iron bars. Replica firearms are not considered deadly weapons unless they are used in some particular manner likely to produce death or great bodily injury (e.g., as a bludgeon).
36 See California Department of Justice AB 1506 main page for information and greater details: https://oag.ca.gov/ois-incidents.
37 Rob Bonta, Attorney General, Case Archive State of California Department of Justice, https://oag.ca.gov/ois-incidents. https://oag.ca.gov/ois-incidents/case-archive.
38 Thompson, Don. California Shifts Police Shooting Probes to Attorney General. AP NEWS.
Associated Press, July 8, 2021. https://apnews.com/article/california-police-reform- shootings- police-government-and-politics-07c36cecf21edb9b5a0f49a77ded8b7f.
39 Attorney General Bonta Announces Result of First AB 1506 Investigation https://www.youtube.com/watch?v=bzybDiQlI7k
40 https://oag.ca.gov/ois-incidents/case-archive
41 https://oag.ca.gov/ois-incidents/current-cases.
Incidents under investigation include these jurisdictions Los Angeles Police Department – 4 incidents
San Bernardino County Sheriff's Department – 4 incidents Bakersfield Police Department – 3 incidents
Los Angeles County Sheriff's Department – 3 incidents
Fresno Police Department – 2 incidents
California Highway Patrol – 2 incidents
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Riverside County Sheriff's Department – 2 incidents
San Francisco Police Department – 2 incidents
Tulare Police Department
Newark Police Department and Fremont Police Department
Southgate Police Department
Fullerton Police Department
Culver City Police Department
Woodlake Police Department
San Diego Police Department
Westminster Police Department
Salinas Police Department
Fontana Police Department
Covina Police Department
Fontana Police Department
Antioch Police Department
Anaheim Police Department
Tustin Police Department
42 California promised a fair review of her son’s death by police. Now she’s asking them to drop it. Cal Matters May 17, 2023 by Nigel Duara.
https://calmatters.org/justice/2023/05/california-police-shooting-delays/
43 Reserve Officer X resigned from the reserves on the same day the DII was opened. It is unknown whether Reserve Officer X was aware of a pending DII before he submitted his resignation. However, his resignation from the Department would not prevent a criminal investigation into his conduct
44 The San Jose City ordinance section 6.44.380 states that It is unlawful for a person to perform massage at a hotel or motel that does not have a business permit issued pursuant to this chapter [6.44 MASSAGE]
45 Those circumstances include:
• Reserve Officer X parked his car at the SJPD parking lot but attempted to leave when the occupants of the BMW flagged down an SJPD officer.
• Reserve Officer X admitted that he met the women online, that he went to go visit this girl at a hotel room, that he left after determining the girl wasn’t a girl, and that he said I’m not paying $120. Reserve Officer X surmised that she must have been pissed cause I didn’t give her the money. That’s why she came over here. That’s why she’s saying that. Reserve Officer X does not explain the reason for the visit or why the visit would entail the exchange of money.
• The women asserted that they were from Fresno, the Reserve Officer X arranged for a massage on-line and that they met at a hotel room. Ms. Y explains that they do not work for a massage company; she is just independent, private. The women stated that Reserve Officer X took a wallet containing $120.
• Officer B asked X why he thinks the women would make the theft accusation. Reserve Officer X replied in a hushed tone, I’ll be honest with you. I went to their hotel, and these 2022 IPA YEAR END REPORT | 131
aren’t girls, you can tell. So, I left. And then, she said where’s my $120? I said I’m not paying $120 and left. So, they followed me over here. I came over here... • Reserve Officer X initially explained that he went to the police parking lot to sleep off two beers. He later stated that he came to the police station to get away from them [the women] and that he would be safe at the police station. • The $120 dollar amount was consistent between Officer X and the women. • Reserve Officer X resigned from SJPD Reserves on the very day that a DII was opened about the 1/20/22 encounter.
• In his interview, Officer A acknowledged that he did not believe Reserve Officer X’s explanation and believed him to be lying.
o Union Representative asked Officer A: Going back to Mr. X’s statement to you that he had drive to the police department to sleep because he had two beers. Do you believe he was lying?
o Officer A: Yes
o Union Representative: I don’t think we need to expand on why. o Lt. L2: No, I don’t think so either.
One can only surmise why expansion on officer A’s answer was not necessary.
46 Gwendolyn Wu, “San Jose police bust 100-plus illicit massage parlors, arrest numbers unclear.” San Francisco Chronicle, Oct. 17, 2018.
https://www.sfchronicle.com/crime/article/San-Jose-police-100-massage-parlors- prostitution-13315614.php; K atie Lauer, “Was San Jose’s massage parlor crackdown a success?” San Jose Spotlight, August 28, 2019. https://sanjosespotlight.com/was-s an- joses-massage-parlor-crackdown-a-success__trashed-2/
47 Dan Noyes, San Jose code enforcement inspector charged with sexual assault, extortion of massage parlor owners. ABC 7 News, Nov. 5, 2020. https://abc7news.com/san-jose- code-enforcement-inspector-arrest-bill-gerry-sj-officer-sexual-assault-bribery/7676048/; Omar Perez, Former San Jose inspector sentenced for extorting bribes, sex from massage parlors. KRON 4 News, May 20, 2022, https://www.kron4.com/news/bay-ar ea/former-san- jose-inspector-sentenced-for-extorting-bribes-sex-from-massage-parlors/ 48 Inclusion of whether the subject officers failed to investigate the crime of prostitution would have conformed to the Department’s stated willing[ness] to own up to mistakes that are made here at the police department that’s not going to sweep anything under the rug or cover anything up. The conduct of the subject officers and the Reserve Officer in this case, as well as the scope of the investigation conducted by the department, raises significant concerns as to the integrity of the Department’s investigations into its employee’s conduct, despite assurances from the Department that the public can feel confident that if we’re aware of the problem or if we’re aware of the misconduct, it’s going to be handled. Candice Nguyen, et al., “San Jose PD Officer Arrested for DUI Directly Before Shift,” NBC Bay Area News, July 22, 2022.
https://www.nbcbayarea.com/investigations/san-jose-police-officer-dui/2951053/
49 Code 3 is justified solely as an emergency response under certain circumstances, such as a crime or hazard that endangers life, a request for emergency assistance by a police 132 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
officer or the incident involves the immediate pursuit of a suspected violator by law enforcement. None of these circumstances in this event justified driving Code 3.
50 Officer F was not aware of Officer E's action due to her lack of communication, which thus did not require him to have any communication with radio or to assume the role of a secondary unit engaged in a vehicle pursuit.
51 Nine Procedure allegations for failing to comply with Duty Manual sections L 2102 (Initiating Pursuits), L 2111 (Communications), L 2113 (Continuation and termination of pursuit), L 2108 (Driving tactics), L 4435 (When to activate BWC), L 4436 (When to deactivate BWC), L 2112 (Capture of Suspects), L 4203 (Definition and scope of investigative processes), L 6904 (Initial responsibility upon arrival at the scene), L 6910 (Investigating Hit and Run Accidents), R 1108 (Accuracy and Brevity), R 1201 (General Provisions)
52 Dubious and less-than-truthful statements proffered by Officer E during her IA interview that are either implausible or contrary to BWC and other video include:
• Officer E stated that there was a car between her patrol car and the suspect’s car for some period of time. However, video shows this statement is untrue. • Officer E said that she kept the safety of other people in mind when she failed to stop at the stop sign at Turman Ave and 2nd Street because she slowed down and cleared the intersection. However, video surveillance and GPS data reflect her patrol car slightly slowing only after she cleared the intersection.
• Officer E said that she was so focused on the suspect’s car that she did not update communications while passing various streets and markers, and was not aware that she was traveling approximately 80 mph.
• GPS data and video surveillance reflect Officer E stopped in the area of Truman Ave. and 3rd Street about 200 feet from the intersection. According to Officer E, the intersection was well illuminated with streetlights, and there was no obstruction that prevented her from seeing the suspect’s direction of travel or the intersection. [Note that 200 feet is a short distance and can be seen easily with the human eye. https://measuringstuff.com/how- far-is-200-feet/]. She stated that she heard the sound of a collision after she had stopped.
Yet, she asserted that she did not see the accident because she was not focused on the suspect’s vehicle anymore. This assertion is dubious given her unwavering focus on the suspect’s car mere seconds prior. Furthermore, the video surveillance shows that she did not stop when the collision occurred. Moreover, if Officer E was still driving, then her attention would have been on the road, and she would have seen the collision. • Instead of immediately calling communication and running to the intersection to assess injury and damage, both Officer E and Officer F turned off their BWC and had a discussion.
Officer E said that she deactivated her BWC because she was not assigned to anything and that she and Officer F wanted to make sure they were both doing OK. She also asked Officer F about the process of conducting a fatal collision and did not want it recorded on BWC. Officer E said that she did not want to make it seem she was unsure of what she was doing. This casts additional doubt on her assertion that she did not see the collision; if she did not see the collision, how did she know there was a fatality? • Officer E approached the damaged cars and spoke with a subject whom she believed was a witness. The witness provided her with a brief description of the suspect and his direction of travel. Officer E then drove around attempting to locate the suspect. She did not transmit 2022 IPA YEAR END REPORT | 133
any radio traffic during this time to inform others about the suspect’s description or her actions.
53 Governmental entities who seek immunity from liability for any injury, death or property damage arising from such pursuits must meet certain requirements, including: (a) The written policy must minimally address 13 subjects set forth in the statute (b) Agencies must provide officers with regular and periodic annual training consistent with POST guidelines outlined in Vehicle Code § 17004.7(d), (c) Promulgation of the policy must include a requirement that all officers certify in writing they have received, read and understand the policy. Despite strict regulations, compared with other states, California has the highest number of pursuit-related fatalities from 1996–2015. These fatalities include peace officers, occupants of pursued vehicle, occupants of other vehicles, and nonoccupants. Police Vehicle Pursuits, 2012-2013 U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics by Brian A. Reaves, Ph.D., BJS Statistician Special Report NCJ 250545 May 2017. https://bjs.ojp.gov/content/pub/pdf/pvp1213.pdf
See also California Highway Patrol September 2020 report to the Legislature which outlines law enforcement pursuit data and the types of crimes associated embarking on such action. https://www.chp.ca.gov/Documents/Police_Pursuits_SB_719_%202020.pdf
54 Indeed, one could argue that Officer E’s conduct was a major factor in the collision. Had she not been pursuing the suspect’s vehicle, the suspect likely would not have been speeding through the intersection. In her IA interview, Office E was asked if she believed, at that time, that the want for the suspect outweighed the risk of capturing him (i.e., was the juice worth the squeeze?). Officer E replied that it was not because the violations she had observed were only related to vehicle code.
55 The suspect was arrested by another Bay law enforcement entity ten months and 5 days after the fatal July 2021 collision.
56 IA asserts, and we agree, that, regardless of his motivations, participation in pre-filing misdemeanor diversion cannot be considered an admission of [the officer’s] guilt. 57 The F&R investigation stated:
• This particular collision was obvious, it would be unlikely not to recognize the impact.
Watching the video shows the patrol car had a significant impact with that van and parts of the van fall off during that collision. The “jolt” referred to by Ofc. L occurred in the middle of the street and reasonably a driver would know they had not impacted a curb, or a light pole.
• Ofc. L, during the call for service, deactivates his BWC and approaches Ofc. G to say that he thought he might have collided with another vehicle. Ofc G advised Ofc. L to notify his sergeant about the collision. This is another indicator that Ofc. L was aware of the collision and sought feedback on the issue.
• Ofc. L drove back over the area and looked to see if he could find the damage vehicle/light pole/object – an action he would not do if he believed he did not hit anything. • Ofc. L inspects his own vehicle and at one point, wipes it with his hand in the area where the damage ends up being found from further investigation. • The incident was witnessed by a female who is heard on the video saying “Whoa, whoa, whoa!” as the police car backs into the van. Although the woman is not interviewed for this 134 | OFFICE OF THE INDEPENDENT POLICE AUDITOR
case, she observed a collision caused by Ofc. L and him driving away. This potentially impacts community trust with the police department.
• Officer L’s participation in a pre-filing diversion program was not a refusal of the District Attorney to file, but a mediation to keep this lower-level case from having to go through the court system.
• Ofc. L’s decision to not report the incident to his supervisor who could have conducted an objective investigation lends itself to an omission that impacts community trust.