REPLACEMENT
SUBJECT: RESPONSE TO THE POLICY RECOMMENDATIONS FROM THE 2022
INDEPENDENT POLICE AUDITOR YEAR END REPORT
REASON FOR REPLACEMENT
When the Police Department initially issued its response to the Independent Police Auditor’s (IPA) 2022 Independent Police Auditor Year End Report, the Police Department classified Recommendation #3 as yellow and identified the need to conduct additional research on the underlying legal issue identified in the IPA’s recommendation to make a final determination as to whether the Police Department agreed with the recommendation. In the months since this item was deferred from the June 6, 2023 City Council Agenda, the Police Department has completed some additional legal research. This replacement memorandum amends the Police Department’s response to Recommendation #3 to specify the points of the recommendation with which it agrees and to outline actions it plans to take in accordance with those points.
RECOMMENDATION
Accept the San José Police Department’s response to the recommendations contained in the 2022 Independent Police Auditor Year End Report.
SUMMARY AND OUTCOME
At the June 6, 2023 City Council meeting, the Independent Police Auditor (IPA) will present the 2022 Independent Police Auditor Year End Report. The report makes five recommendations to improve how San José Police Department officers perform their duties. This memorandum provides responses to those recommendations based on the green, yellow, and red light priority framework.
TO: HONORABLE MAYOR
AND CITY COUNCIL
FROM: Anthony Mata
SUBJECT: SEE BELOW DATE: September 15, 2023
APPROVED Date
9/18/2023
COUNCIL AGENDA: 9/19/2023
FILE: 23-1242
ITEM: 4.1 (b)
HONORABLE MAYOR AND CITY COUNCIL
Subject: Response to the Policy Recommendations from the 2022 Independent Police Auditor Year End Report
September 15, 2023
BACKGROUND
In its 2022 Year End Report, the IPA makes five recommendations to improve how San José police officers perform their duties. The following is the Police Department’s response to those recommendations.
The green, yellow, and red light priority framework is utilized to illustrate the Department’s operational readiness to undertake the workload demands of each response. A projected target completion date is provided for each recommendation with which the Department agrees.
ANALYSIS
Recommendation #1: Track when an officer points a firearm at a person as a use of force.
Response – The Department agrees with this recommendation. The Department is in the process of revising Duty Manual Section L 2600 Use of Force, which will categorize pointing a firearm at a person as a use of force. Officers are already required to submit a Firearm Pointed report when they point a firearm at a person.
GREEN – The Department is currently working on this recommendation. The projected target for completion of this recommendation is September 2023.
Recommendation #2: The Department should use best efforts to track data on suspects perceived armed and weapons found.
Response – The Department agrees with this recommendation. Since December 2017, the Department’s Use of Force report has tracked when an officer perceives a suspect to be armed and what type of weapon the officer perceived the suspect to have. The report also tracks whether the officer confirmed the suspect to be armed and what type of weapon the suspect was found to be carrying.
COMPLETED – The Department has collected the recommended data since December 2017.
Recommendation #3: The Duty Manual should provide guidance that a search of a person incident to arrest applies only and solely to full custodial arrests.
Response – The Department agrees, in part, with this recommendation. The Department agrees that the search incident to arrest authorized under the Fourth Amendment applies only when a person is taken into custody based upon probable cause that the person has committed a criminal offense and will be transported for booking or other lawful disposition. The Department will add language to Duty Manual Section L4901 Warrantless Searches—Limits at Time of Arrest, to clarify that police officers will not conduct a search incident to arrest when there is no custodial arrest, and the officer is (1) issuing a citation or (2) releasing the person at the scene of a field
HONORABLE MAYOR AND CITY COUNCIL
Subject: Response to the Policy Recommendations from the 2022 Independent Police Auditor Year End Report
September 15, 2023
detention. The Department will also issue a training bulletin that defines searches incident to arrest and provides guidance as to when one should be performed.
However, the Department does not agree that a search of a person incident to arrest applies only and solely to full custodial arrests. The Department believes there are several other exceptions to the Fourth Amendment warrant requirement that allow for a search of a person without a warrant. Examples of these exceptions include searches based on the person’s consent, searches based on probation or parole status, and the Terry stop and frisk search, which is a limited frisk or pat-down search of a detained person for weapons based upon reasonable suspicion that the detained person is armed and dangerous.
GREEN – Consistent with the IPA’s recommendation, the Department will add language to the Duty Manual to clarify that police officers will not conduct a search incident to arrest when there is no custodial arrest, and the officer is (1) issuing a citation or (2) releasing the person at the scene of a field detention. However, as noted, the Department does not agree that a search of a person incident to arrest applies only and solely to full custodial arrests. The Department believes there are several other exceptions to the Fourth Amendment warrant requirement that allow for a search of a person without a warrant.
Recommendation #4: The Department should provide guidance about officer discretion when compelling citizens to exit cars to sign citations.
Response – The Department agrees with this recommendation. The Department will circulate a training bulletin Department-wide and provide a brief training regarding this issue for officers assigned to the Bureau of Field Operations (BFO). The training, which will be overseen by the BFO Training Sergeant, will be provided at a roll call for all three patrol shifts on both sides of the week.
GREEN – The Department will begin working on this recommendation. The target for completion of this recommendation is November 2023.
Recommendation #5: The Department should obtain devices to verify window tint.
Response – The Department agrees with this recommendation. In order to implement this recommendation, the Department would need to purchase window tint measuring devices for deployment with all patrol officers. Funding for purchase of this equipment will be evaluated as part of future budget processes, in the context of the City’s overall budgetary condition and other departmental program priorities.
YELLOW – The Department will evaluate funding this recommendation through future budget processes.
HONORABLE MAYOR AND CITY COUNCIL
Subject: Response to the Policy Recommendations from the 2022 Independent Police Auditor Year End Report
September 15, 2023
EVALUATION AND FOLLOW-UP
The Department will report back on implementation of these recommendations to the Public Safety, Finance, and Strategic Support Committee as part of the Police Department Reform and Operational Improvement Recommendations Status Report in spring 2024.
COORDINATION
This memorandum was coordinated with the City Attorney’s Office and the City Manager’s Budget Office.
PUBLIC OUTREACH
This memorandum will be posted on the City’s Council Agenda website for the September 19, 2023 City Council meeting.
COMMISSION RECOMMENDATION AND 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.
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.
ANTHONY MATA
Chief of Police
For questions, please contact Lieutenant Paul Hamblin, San José Police Department, Research & Development Unit, at (408) 277-5200.