TO: HONORABLE MAYOR FROM: Anthony Mata
AND CITY COUNCIL
SUBJECT: S EE BELOW DATE: May 24, 2023
Approved Date
5/25/23
SUBJECT: SAN JOSE POLICE DEPARTMENT INTERNAL AFFAIRS UNIT 2022 DEPARTMENT INITIATED INVESTIGATIONS REPORT
RECOMMENDATION
Accept the San José Police Department’s Internal Affairs Unit report on Department Initiated Investigations for calendar year 2022.
SUMMARY AND OUTCOME
Under the revised Internal Affairs (IA) complaint process instituted in July 2008, the San José Police Department (Department) provides Department Initiated Investigations (DII) information to City Council on an annual basis. This information is provided in conjunction with the release of the Independent Police Auditor’s (IPA) Annual Report. Acceptance of this report provides the City Council and the community with statistics related to DIIs for calendar year 2022.
BACKGROUND
This memorandum is the fifteenth DII report issued by the Department. The Department initiates and conducts administrative investigations regarding potential misconduct by sworn and non- sworn Department members at the direction of the Office of the Chief of Police. For the purpose of this report, a DII involves either a sworn or non-sworn Department member. This differs from the IPA’s reporting, which only reflects sworn Department members.
There is a distinction between a Conduct Complaint (which is generated by a member of the public) and a DII. A complaint will be classified as a Conduct Complaint when a member of the public files a complaint against a Department member and it is determined that there is potential misconduct. The initial investigation must determine whether the facts stated in the complaint are such that, if sustained, would amount to a potential violation of the law or Department policies or procedures. A Conduct Complaint is synonymous with a public complaint. The distinction between a Conduct Complaint and a DII is that a DII is an internal investigation initiated by the COUNCIL AGENDA: 6/6/23
FILE: 23-834
ITEM: 4.2
HONORABLE MAYOR AND CITY COUNCIL
Subject: San José Police Department Internal Affairs Unit 2022 Department Initiated Investigations Report May 24, 2023
Office of the Chief of Police. A DII is often based on an allegation which comes directly from a member of the Department who initiates an investigation based on a specific awareness of, or a belief that, a potential Department policy or procedure violation has occurred. Potential misconduct may be brought to the attention of the Chief of Police by a Department member, another police agency, or a judicial entity. DIIs can be investigated by IA or the Department member’s chain of command. IA is responsible for tracking and maintaining DII statistical data, including tracking the date the DII was received and completed.
While the Department draws a distinction between a Conduct Complaint and a DII, a review of both categories gives the Department the ability to identify trends and patterns to improve Department training and supervision.
If at any time a community member makes a complaint against a Department member, and the complaint is associated to an existing DII investigation, the DII will be reclassified as a Conduct Complaint. As with the case of any Conduct Complaint, the IPA will be notified and may audit the investigation.
In November 2020, Measure G expanded the role of the IPA’s office with DIIs. Effective January 1, 2021, the IPA role in DIIs is now similar to that of Conduct Complaints. The IPA is now able to take part in both the investigation and review.
On June 1, 2022, former Mayor Liccardo submitted a memorandum to the City Council regarding
protecting the public from predatory criminal behavior pending investigations of employee misconduct. This memorandum directed the City Manager to “return to the City Council with what citywide policies have been implemented–or will be implemented–to address the risk of exposing the public to harmful behavior pending investigations of City employees’ criminal conduct, such as by establishing that credible allegations of predatory criminal conduct constitute a clear ‘trigger’ for mandatory leave until an investigation has concluded.”
In response to the direction from the City Council, the City Manager implemented changes to City Policy Manual sections 2.1.4 Investigation Principles and 4.2.3 Administrative Leave . In
addition, the Police Department issued Memorandum #2022-026 r egarding Duty Manual revisions to affect credible criminal allegations with a potential to impact the safety or financial health of the community and/or other City employees. Similar aligning changes were made in the IA Unit Guidelines.
ANALYSIS
The Department views DIIs as a priority and strives to complete them as soon as practicable.
DIIs are prioritized by the date the Department is made aware of the allegation and the nature of the misconduct. A DII is considered complete when “Findings” are determined for each allegation and discipline has been imposed, if appropriate.
HONORABLE MAYOR AND CITY COUNCIL
Subject: San José Police Department Internal Affairs Unit 2022 Department Initiated Investigations Report May 24, 2023
A DII may include investigations of more than one Department member and may contain multiple allegations of potential misconduct for each involved member. The Department utilizes a list of 10 allegation categories (defined below) for all Conduct Complaints and DIIs.
Summary Points
The following points summarize data for DIIs from calendar year 2018 through calendar year 2022. Comprehensive data tables for this period may be found in Attachment A.
• In 2022, the Department initiated 62 sworn DIIs, compared to 32 in 2021. The total number of DIIs between 2018 and 2022 fluctuated, with the high of 62 in 2022 and a low of 32 in 2021. (See Table 1)
• In 2022, the Department initiated 10 non-sworn DIIs, compared to 9 in 2021. (See Table 1)
• Of the 62 sworn DIIs initiated in 2022, there were a total of 226 misconduct allegations against sworn Department members, compared to 72 received in 2021. The total number of allegations received against sworn staff between these years fluctuated, with the high of 226 in 2022 and a low of 72 in 2021. (See Table 1)
• In 2022, the Department initiated 43 allegations against non-sworn members, while the Department initiated 17 allegations against non-sworn members in 2021. The total number of allegations against non-sworn members between these years fluctuated, with a high of 43 in 2022 and a low of 17 in 2021. (See Table 1)
• Between 2018 and 2022, the most common misconduct allegations received for sworn and non-sworn Department members were, “Procedure” and “Conduct Unbecoming an Officer.” The definitions for each type of allegation are listed below. (See Table 2)
• In 2022, the Department completed investigations of 150 allegations against sworn officers, 79 of which (53%) were sustained. Between 2018 and 2022, the Department completed investigations of 556 allegations against sworn officers, 349 of which (63%) were sustained.
It should be noted that investigations may not be completed within the same calendar year in which the allegations were received. (See Table 5)
• In 2022, the Department completed investigations of 12 allegations against non-sworn members, 12 of which (100%) were sustained. Between 2018 and 2022, the Department completed investigations of 117 allegations against non-sworn members, 79 of which (68%) were sustained. (See Table 5)
• Between 2018 and 2022, Documented Oral Counseling was the most common form of discipline imposed for both sworn and non-sworn Department members. Documented Oral Counseling was imposed on a total of 62 occasions (51 for sworn and 11 for non-sworn staff) during this time frame. (See Table 7)
HONORABLE MAYOR AND CITY COUNCIL
Subject: San José Police Department Internal Affairs Unit 2022 Department Initiated Investigations Report May 24, 2023
Note that several additional data tables are included in Attachment A to provide supplementary information and context for this report.
Response to Trends and Patterns
The Department took several steps in response to the trends and patterns in behavior observed over the last year. The following solutions were developed in coordination with the Research and Development Unit:
• In June 2022, IA published its first monthly newsletter to help message current trends and remind Department members of the policies and procedures governing the agency.
Topics discussed to date in the newsletters include courtesy, inventory searches of vehicles, towing of vehicles, body worn camera best practices, search and seizure limitations, and exercising discretionary judgment. As an example, the June 2022 Internal Affairs Newsletter is included as Attachment B.
• IA personnel routinely attend patrol briefings to highlight trends and patterns.
• IA made updates to the Internal Affairs Unit Procedural Manual regarding the
Department’s response to employees accused of credible criminal allegations.
Allegation Definitions
The following is a list of allegation definitions from Duty Manual section C 1710.
• Procedure is an allegation that an action taken by a Department member did not follow appropriate Department and/or City policies, procedures, or guidelines. • Search or Seizure is an allegation that a search or seizure was conducted by a Department member in violation of the 4th Amendment.
• Arrest or Detention is an allegation that an arrest lacked probable cause or a detention lacked reasonable suspicion.
• Bias-Based Policing is an allegation that a Department member engaged in conduct based on a person's race, religion (religious creed), age, marital status, national origin, ancestry, sex, sexual orientation, actual or perceived gender identity, medical condition, or disability.
• Courtesy is an allegation that a Department member was not courteous or professional as specified within Duty Manual section C 1308:
- Department members will be courteous and professional to the public.
Department members will be tactful in the performance of their duties, control their tempers and exercise the utmost patience and discretion even in the face of
HONORABLE MAYOR AND CITY COUNCIL
Subject: San José Police Department Internal Affairs Unit 2022 Department Initiated Investigations Report May 24, 2023
extreme provocation. Except when necessary to establish control during a violent or dangerous situation, no member shall use course, profane or derogatory language. The Department recognizes that there are an extremely limited number of investigative situations where profane or derogatory language may be a reasonable tactic or tool (i.e., undercover assignments). In these specific situations, the use of profanity or derogatory language must be justified by the Department member based on the totality of the circumstances.
- Members are reminded that their conduct, either on or off duty, which adversely reflects upon the Department is deemed to be conduct unbecoming an officer.
Refer to DM Section C 1404 (Conduct Unbecoming an Officer). • Conduct Unbecoming an Officer is an allegation that a Department member's conduct was unbecoming as specified in Duty Manual section C 1404:
- 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. - It should be noted that Conduct Unbecoming an Officer is not intended to be applied when another provision of the Duty Manual is applicable.
• Force is an allegation that the amount of force used by a Department member was not objectively reasonable as defined by the Duty Manual section L 2602:
- 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. Objectively reasonable force is not judged with hindsight, and will take into account, where appropriate, the fact that officers must make rapid decisions regarding the amount of force to use in tense, uncertain and rapidly evolving situations. Important factors to be considered when deciding how much force can be used to apprehend or subdue a subject include, but are not limited to, the severity of the crime at issue, whether the subject poses an immediate threat to the safety of the officers or others and whether the subject is actively resisting arrest or attempting to evade arrest by flight. This policy guideline applies to all uses of force, including deadly force. • Neglect of Duty is an allegation that a Department member neglected their duties and failed to take action as required by Department and/or City policies or procedures and/or state or federal law.
• Discrimination is an allegation that refers to City Policy Manual section 1.1.1 and Duty
Manual sections C 1311 – C 1316.
HONORABLE MAYOR AND CITY COUNCIL
Subject: San José Police Department Internal Affairs Unit 2022 Department Initiated Investigations Report May 24, 2023
• Harassment is an allegation that refers to City Policy Manual section 1.1.1 and Duty Manual sections C 1311 – C 1316.
The definitions of Discrimination and Harassment only apply to workplace interactions between City employees and to DIIs that arise from allegations of workplace discrimination and harassment. Discrimination or harassment by Department members toward members of the public are characterized as an allegation of Biased-Based Policing.
Case Summaries
Attachment C provides case summaries of the sworn DIIs completed in 2022 that resulted in a sustained finding.
EVALUATION AND FOLLOW-UP
As always, the Department uses information obtained through the analysis of DIIs to identify trends and patterns, thereby providing an opportunity to implement best practices. For instance, the IA now publishes weekly newsletters to remind personnel of policy violations consistently observed in investigations to reinforce the rules governing the Department. An updated report will be issued next year assessing the success of the measures taken to improve adherence to policies and procedures.
COORDINATION
This memorandum has been coordinated with the City Attorney’s Office.
PUBLIC OUTREACH
This memorandum will be posted on the City’s Council Agenda website for the June 6, 2023 City Council meeting.
COMMISSION RECOMMENDATION/INPUT
No commission recommendation or input is associated with this action.
CEQA
Not a Project, File No. PP17-009, Staff Reports, Assessments, Annual Reports, and Informational Memos that involve no approvals of any City action.
HONORABLE MAYOR AND CITY COUNCIL
Subject: San José Police Department Internal Affairs Unit 2022 Department Initiated Investigations Report May 24, 2023
PUBLIC SUBSIDY REPORTING
This item does not include a public subsidy as defined in section 53083 or 53083.1 of the California Government Code or the City’s Open Government Resolution.
/s/
ANTHONY MATA
Chief of Police
For questions, please contact Lieutenant Macedonio Zuniga, Internal Affairs Unit, San José Police Department at (408) 277-4094.
ATTACHMENTS:
Attachment A: Data Tables
Attachment B: June 2022 Internal Affairs Newsletter
Attachment C: Case Summaries
1 ATTACHMENT A: DATA TABLES
Table 1: Summary of Received DIIs
2018 2019 2020 2021 2022 Total
Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn
DIIs 43 10 50 11 41 6 32 9 62 10 228 46
Allegations within the DIIs 83 22 102 18 210 18 72 17 226 43 693 118 Involved Department Members 52 13 54 12 102 7 33 9 130 20 371 61 Investigations with Multiple
Department Members 8 1 6 1 2 0 1 0 6 1 23 3
Department Members with More
Than One DII 0 0 3 0 6 0 0 1 9 1 18 2
Table 2: Classification of Received Allegations
2018 2019 2020 2021 2022 Total
Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn
Procedure 63 10 71 7 190 16 49 16 181 43 554 92
Courtesy 1 1 4 3 2 0 2 0 1 0 10 4
Conduct Unbecoming an Officer 12 1 20 2 15 2 14 1 26 0 87 6 Neglect of Duty 3 0 5 0 0 0 0 0 9 0 17 0
Discrimination 0 4 0 2 0 0 1 0 4 0 5 6
Harassment 2 6 1 4 0 0 1 0 3 0 7 10
Search or Seizure 1 0 0 0 0 0 0 0 0 0 1 0
Force 1 0 1 0 3 0 2 0 1 0 8 0
Arrest or Detention 0 0 0 0 0 0 0 0 0 0 0 0
Bias-Based Policing 0 0 0 0 0 0 3 0 1 0 4 0
Total 83 22 102 18 210 18 72 17 226 43 693 118
2 Table 3: Department Member Experience for Received DIIs 2018 2019 2020 2021 2022 Total
Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn
0 – 3 Years 21 3 17 8 64 5 10 5 50 6 162 27
4 – 6 Years 3 5 9 2 8 0 6 0 24 10 50 17
7 – 10 Years 3 2 2 0 6 1 4 2 14 1 29 6
11 – 15 Years 5 0 4 2 4 0 6 1 16 0 35 3
16 – 20 Years 9 1 7 0 4 0 2 0 12 1 34 2
21 – 30 Years 13 2 15 0 14 0 4 0 21 2 67 4
Unknown* 0 0 1 0 2 1 1 0 0 0 4 1
Total 54 13 55 12 102 7 33 8 137 20 381 60
* Reflects an investigation where the Department member had an unknown number of years of experience due to the complaint being withdrawn
Table 4: Summary of Completed DIIs
2018 2019 2020 2021 2022 Total
Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn
Completed DIIs 45 8 52 11 35 8 33 8 35 6 200 41
Department Members Investigated 54 7 57 13 39 8 32 8 41 5 223 41 Investigations with Multiple
Department Members 9 0 4 3 3 0 0 0 4 0 20 3
Department Members with More
Than One DII 3 1 2 0 3 0 1 0 1 1 10 2
Department Members Who
Received Discipline 37 5 43 10 32 5 20 6 34 5 166 31
3 Table 5: Classification of Completed Allegations Received vs. Sustained 2018 2019 2020 2021 2022 Total
Sworn Non
Sworn Sworn
Non
Swor
n
Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn
Swor
n
Non
Swo
rn
Procedure 95/74 31/27 80/55 11/5 64/47 29/19 56/42 11/9 115/69 12/12 410/
287
94/
72 Courtesy 3/1 1/1 2/2 6/0 3/2 0/0 2/1 0/0 1/0 0/0 11/6 7/1 Conduct Unbecoming an
Officer 15/10 2/2 25/14 2/1 17/9 2/0 16/7 1/0 15/9 0/0
88/4
9 7/3
Neglect of Duty 2/0 0/0 7/0 0/0 5/1 1/1 0/0 0/0 8/0 0/0 22/1 1/1 Discrimination 0/0 0/0 0/0 1/0 0/0 1/0 0/0 0/0 4/0 0/0 4/0 2/0 Harassment 2/1 1/0 1/0 4/2 0/0 1/0 0/0 0/0 4/1 0/0 7/2 6/2 Search or Seizure 0/0 0/0 1/1 0/0 0/0 0/0 0/0 0/0 0/0 0/0 1/1 0/0 Force 3/1 0/0 1/0 0/0 2/1 0/0 0/0 0/0 2/0 0/0 8/2 0/0
Arrest or Detention 1/1 0/0 0/0 0/0 0/0 0/0 0/0 0/0 0/0 0/0 1/1 0/0 Bias-Based Policing 0/0 0/0 0/0 0/0 0/0 0/0 3/0 0/0 1/0 0/0 4/0 0/0 Total 121/88 35/30 117/72 24/8 91/60 34/20 77/50 12/9 150/79 12/12 556/
349
117
/79
Table 6: Department Member Experience for Completed DIIs 2018 2019 2020 2021 2022 Total
Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn
0 – 3 Years 21 4 16 6 18 5 13 6 21 1 89 22
4 – 6 Years 4 1 7 5 5 1 2 0 10 1 28 8
7 – 10 Years 1 1 3 1 2 0 1 1 5 2 12 5
11 – 15 Years 6 1 7 1 1 2 5 0 2 0 21 4
16 – 20 Years 9 0 9 1 4 0 2 1 0 0 24 2
21 – 30 Years 13 0 14 2 7 0 7 0 3 1 44 3
31+ Years 0 0 0 0 1 0 0 0 0 0 1 0
Unknown* 0 0 1 0 1 0 2 0 0 0 4 0
Total 54 7 57 16 39 8 32 8 41 5 223 44
* Reflects an investigation where the Department member had an unknown number of years of experience due to the complaint being withdrawn
4 Table 7: Primary Discipline Imposed
2018 2019 2020 2021 2022 Total
Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn
Training or Counseling 15 0 10 2 7 1 9 1 8 1 49 5
Cease Secondary
Employment Activities 0 0 0 0 0 0 1 0 0 0 1 0
Documented Oral Counseling 16 1 10 2 10 4 4 2 11 2 51 11 Letter of Reprimand 8 1 11 2 2 0 3 0 6 1 30 4
Disciplinary Transfer 0 0 1 0 1 0 0 0 1 0 3 0
10-hour Suspension 0 0 2 0 1 0 1 0 1 0 5 0
20-hour Suspension 0 0 3 1 2 0 0 0 4 0 9 1
30-hour Suspension 0 0 0 0 0 0 0 0 0 0 0 0
40-hour Suspension 2 1 0 0 4 0 2 0 0 0 8 1
Greater than 40-hour
Suspension 5 1 5 0 7 0 1 1 2 0 20 2
Salary Step Reduction 0 0 0 0 0 0 0 0 1 1 1 1
Demotion 0 0 0 0 0 0 0 0 0 0 0 0
Dismissal 1 1 2 2 5 0 3 1 3 1 14 5
Total 47 5 44 9 39 5 24 5 37 6 191 30
Table 8: Alternative DII Outcomes
2018 2019 2020 2021 2022 Total
Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn Sworn Non
Sworn
Retired Before the
Investigation Concluded 0 0 0 0 1 1 0 0 0 0 1 1
Resigned in Lieu of Discipline 1 0 0 0 0 0 0 0 0 0 1 0
Received More Than One
Discipline 6 1 4 0 3 0 4 0 1 1 18 2
Retired Prior to Discipline, but
Case Was Sustained 1 0 2 1 1 1 0 1 0 0 4 3
Settlement Agreement 4 0 1 0 2 0 0 0 7 1 14 1
Total 12 1 7 1 7 2 4 1 8 2 38 7
1 ATTACHMENT B: JUNE 2022 INTERNAL AFFAIRS NEWSLETTER
2 1
ATTACHMENT C: CASE SUMMARIES
This section was added in 2016 to comply with recommendations from the Independent Police Auditor's 2014 Annual Report:
Recommendation #2: Require written reports describing the DIIs be annually submitted to the Mayor, City Council, and posted online for the public; and
Recommendation #3: Include in the annual DII Report descriptions of the misconduct that gave rise to each of the sustained findings.
Summaries of Completed Sworn DIIs Resulting in a Sustained Finding
Allegations Incident Summary
1. Conduct Unbecoming an Officer Officer engaged in illegal conduct while off-duty
2. Procedure Officer accidentally discharged a Taser while taking enforcement
3. Procedure Officer improperly utilized Law Enforcement Databases
4. Procedure Officer failed to properly document damage to police vehicle
5. Procedure Officer engaged in an unauthorized vehicle pursuit
6. Procedure Officer failed to attend mandatory training
7. Procedure Officer engaged in unauthorized vehicle pursuit
8. Procedure Officer failed to use proper tactics when taking enforcement action
9. Procedure Officer lost Department issued property
10. Procedure Officer failed make notifications regarding an on-duty vehicle collision
11. Procedure
Officer lost Department issued property
12. Conduct Unbecoming an Officer Officer engaged in inappropriate off-duty behavior
13. Procedure Officer lost Department issued property
14. Procedure Officer failed to properly investigate and document a criminal incident
15. Procedure Officer failed to properly document a criminal investigation
16. Procedure Officer disobeyed direct orders
17. Procedure Officer failed to properly secure weapons which resulted in a theft
18. Procedure Officer engaged in inappropriate off-duty behavior
19. Procedure Officer failed to properly investigate and document a criminal incident
20. Procedure Officer lost Department issued property
21. Procedure Officer engaged in activity which conflicted with Department interests
22. Procedure Officer lost Department issue property
23. Procedure Officer engaged in inappropriate off-duty behavior
24. Procedure Officer lost Department issued property
25. Procedure Officer engaged in inappropriate sexual activity while on-duty