SUBJECT: Response to the Policy Recommendations from the 2024 Independent Police Auditor Year End Report
REASON FOR REPLACEMENT
In its initial memorandum response to the Office of the Independent Police Auditor’s (OIPA) 2024 Independent Police Auditor Year End Report, the San José Police Department (Department) cited the powers and duties granted to the OIPA by the San José City Charter in its analysis of Recommendations #2 and #12. However, with the passage of Measure G in the November 2020 election, some of the City Charter’s constraints on further expansion of the OIPA’s powers and duties were removed. These Recommendations would require further analysis to determine if the powers and duties described are consistent with the City Charter and/or subject to any requirement to meet and confer. Therefore, the Department has elected to remove its citation of the City Charter in its responses to those two recommendations.
RECOMMENDATION
Accept the San José Police Department’s response to the recommendations contained in the 2024 Independent Police Auditor Year End Report.
SUMMARY AND OUTCOME
At the June 17, 2025 City Council meeting, the Office of the Independent Police Auditor (OIPA) will present its 2024 Independent Police Auditor Year End Report, which contains 12 recommendations to improve how the San José Police Department (SJPD or Department) provides public safety services to the City. The purpose of this memorandum is to provide a response to each recommendation from the Department’s perspective.
TO: HONORABLE MAYOR
AND CITY COUNCIL
FROM: Paul Joseph
SUBJECT: See Below DATE: June 12, 2025
Approved
Date
6/12/25
COUNCIL AGENDA: 6/17/25
FILE: 25-539
ITEM: 4.1(b)
HONORABLE MAYOR AND CITY COUNCIL
June 12, 2025
Subject: Response to the Policy Recommendations from the 2024 Independent Police Auditor Year End Report
BACKGROUND
One of the primary duties of the OIPA, as stated in the City Charter, is to “Make recommendations with regard to Police Department policies and procedures.” In its 2024 Year End Report, the OIPA made 12 recommendations. This memorandum provides the Department’s response to those recommendations utilizing the green, yellow, and red light priority framework that is used for City Auditor recommendations.
This framework is utilized to illustrate the Department’s operational readiness and ability to implement each recommendation. A projected target completion date is provided for each recommendation.
ANALYSIS
Recommendation #1: The OIPA recommends the creation of a formal MOA between the OIPA and the IA Unit of the SJPD. This agreement would establish clear operational protocols, define expectations, and further clarify shared timelines for both offices, especially regarding collaboration during investigations, communication about critical findings, and real-time auditing.
The Department agrees with this recommendation. In response to a recommendation in the 2023 Independent Police Auditor Year End report, the Department issued memorandum #24-023, which added section C 1715.1 to the SJPD Duty Manual. The new section contains a detailed timeline of the complaint investigation and adjudication process, including the OIPA’s role in the process. The working relationship between the Department’s Internal Affairs Unit (IA) and the OIPA is also outlined in the IA Unit Guidelines. However, the Department sees the value in creating an MOA to fill in any gaps in the framework for how the two offices interact and share information. IA staff will work with OIPA staff to create an MOA, which will be agreed upon by both the Independent Police Auditor and the Chief of Police.
Response: Green.
Projected date of completion: December 2025.
Recommendation #2: The OIPA recommends expanding its access and involvement during officer-involved shooting (OIS) responses to align with the access provided to Internal Affairs. This alignment will enable the OIPA to conduct audits that are comprehensive, timely, objective, and equitable.
The Department disagrees with this recommendation. An OIS investigation is a criminal investigation, often involving outstanding suspects, who are being investigated and sought for serious criminal offenses. Even if there are no outstanding suspects, police investigators often have a need to interview additional persons of interest (e.g., suspects’ family members and co-workers, etc.) and serve search warrants at various locations (e.g., suspects’ homes and workplaces, etc.) in the hours and days following
HONORABLE MAYOR AND CITY COUNCIL
June 12, 2025
Subject: Response to the Policy Recommendations from the 2024 Independent Police Auditor Year End Report
the incident. For these reasons, the circle of persons privy to details of the investigation that can be gleaned by inspecting the crime scene and listening to the interviews of involved officers is limited to law enforcement personnel, which includes staff from the District Attorney’s Office.
In its analysis supporting this recommendation, the OIPA states that, while the OIPA is not granted access to the incident scene or immediate access to interview recordings or body worn camera footage, “the IA investigator, who responds to the scene, is granted full access.” IA staff members who are allowed into the crime scene and/or allowed to witness officer interviews in the aftermath of an OIS are sworn officers who have been trained in crime scene integrity and who are bound to the Department’s confidentiality policies. These investigators may be called upon to write a police report and/or testify in court in some circumstances.
In accordance with County of Santa Clara protocol (expounded upon further in the Department’s response to Recommendation #3), the Department’s Homicide Unit jointly conducts a criminal investigation of every OIS with the investigative bureau of the District Attorney’s Office. The purpose of this joint investigation is to allow for the review and investigative perspective of an independent law enforcement entity in the criminal investigation. Upon completion of the investigation, the District Attorney’s Office publishes a comprehensive report on the incident, including its findings on the lawfulness of the involved officers’ actions.
Once the criminal investigation is complete, the IA Unit automatically conducts a thorough administrative investigation of every OIS and provides the OIPA with all relevant reports, evidence, and recordings as quickly as possible without compromising any ongoing criminal investigations. Additionally and independently of this process, Senate Bill 1421 (SB 1421) requires the Department to release all records pertaining to OIS, including body worn camera footage, to the public within 45 days.
Response: Red.
Projected date of completion: N/A.
Recommendation #3: The OIPA recommends that officer-involved shootings (OIS), in-custody deaths (ICD), and civil lawsuits alleging officer misconduct be classified as Department-Initiated Investigations (DIIs) to trigger a formal Internal Affairs investigation and an OIPA audit.
The Department agrees with this recommendation. For clarity, the Department will separate OIS and ICD cases from civil lawsuits in the analysis of its response.
OISs and ICDs
Although they are not classified as DIIs, all OISs and ICDs trigger a formal investigation by IA and are audited by the OIPA. These cases are referred to as officer involved
HONORABLE MAYOR AND CITY COUNCIL
June 12, 2025
Subject: Response to the Policy Recommendations from the 2024 Independent Police Auditor Year End Report
incidents (OII). Before an OII is turned over to IA and the OIPA, the Department’s Homicide Unit, in cooperation with the District Attorney’s Office, conducts a thorough criminal investigation under a strict set of guidelines set forth in the Santa Clara County Officer OII Protocol. Once the OII investigation is complete, the District Attorney’s Office publishes a comprehensive report on the incident authored by a Deputy District Attorney. If either the Homicide Unit’s investigation or the District Attorney’s report indicates any law or Department policy violations, the Assistant Chief will initiate a DII.
Once the Homicide Unit has completed its investigation, IA reviews the case for possible administrative and/or training issues, after which it turns over all evidence and applicable records to the OIPA for review. This occurs for all OISs and ICDs, regardless of whether a DII was initiated or a complaint was filed. Additionally, SB 1421 compels the release of records regarding all OISs and ICDs. Although Assembly Bill 748 allows law enforcement agencies to withhold these records for 45 days if disclosure would interfere with an active investigation, the Department has never delayed the release of records under this exception.
Civil Lawsuits
The overwhelming majority of civil lawsuits are accompanied by IA complaints, the receipt of which automatically prompts OIPA review. However, in the rare instances when the civil lawsuit is unaccompanied by a formal complaint, the Assistant Chief will evaluate the civil complaint to determine if a DII should be initiated, which will trigger an OIPA review. The Department will add this new procedure to the Duty Manual by December of 2025.
Recommendation: Green.
Projected date of completion: December 2025.
Recommendation #4: The OIPA recommends that the SJPD update its Duty Manual to reflect the nine specific categories of “serious misconduct” identified under Senate Bill 2 (SB 2) passed in 2021. Any act of serious misconduct may result in the state decertifying a police officer. These include:
• dishonesty
• abuse of power
• excessive or unreasonable force
• sexual assault
• bias
• acts that violate the law
• participation in a law enforcement gang
• failure to cooperate with an investigation
• failure to intercede
HONORABLE MAYOR AND CITY COUNCIL
June 12, 2025
Subject: Response to the Policy Recommendations from the 2024 Independent Police Auditor Year End Report
While some categories are addressed in existing policies, others are only implicitly covered (e.g., under “Conduct Unbecoming”), and certain serious issues – such as dishonesty, abuse of power, and sexual assault—lack dedicated policy sections. This creates ambiguity and can result in inconsistent disciplinary outcomes.
Further, the ability to compare internal findings to state-level standards for decertification (via POST) reinforces the SJPD’s role in upholding professional integrity and due process.
The Department agrees with this recommendation. The only type of misconduct listed in SB 2 that is currently not specifically addressed in the Duty Manual is dishonesty. A Department Duty Manual section specifically addressing honesty has been authored and is currently in the review process. The target date to publish the new section, C 1302.5 (Dishonesty), is June 2025.
Listed below are the types of misconduct currently addressed by the Department and the applicable Duty Manual sections for each:
Abuse of power: Section C 1434 (Misuse of Authority) prohibits officers from engaging in “any act that could reasonably be construed to constitute misuse of authority.”
Excessive or unreasonable force: Section L2600 (Use of Force) contains the Department’s declaration that “every person has the right to be free from excessive use of force by officers acting under the color of law.” Section L 2602 (Objectively Reasonable Force – Definition) contains the Department’s definition of reasonable force.
Sexual assault: Section C 1402 requires that officers observe and obey all federal, state, and local laws. The California Penal Code not only contains statutes prohibiting sexual assault for the general public, but also statutes specific to officers committing sexual assault or soliciting for sex “under the color of authority.”
Bias: Section C 1306 (Bias-Based Policing) defines bias-based policing and requires that officers “carry out their duties, including the use of force, in a fair and unbiased manner.”
Acts that violate the law: Section C 1402 requires that officers observe and obey all federal, state, and local laws.
Participation in a law enforcement gang: Section C 1453 (Law Enforcement Gang Definition) provides the definition of law enforcement gang as found in California Penal Code section 13670 (a) (2). Section C 1402 requires that officers observe and obey all federal, state, and local laws.
HONORABLE MAYOR AND CITY COUNCIL
June 12, 2025
Subject: Response to the Policy Recommendations from the 2024 Independent Police Auditor Year End Report
Failure to cooperate with an investigation: Section C 1405 (Standards of Conduct – Coordination) states, “Department members will cooperate with and assist other members in their departmental work. Any deliberate and unjustified withholding of police information from other department members is prohibited.” Section L 9000 requires Department members to “cooperate with other city employees, subdivisions or outside agencies in matters of mutual concern.”
Failure to intercede: Section C 1402 (Standards of Conduct - General Responsibilities) requires officers to “Immediately report potential excessive force to a supervisor” and to “Intercede when present and observing another officer using force that the officer believes to be beyond that which is necessary.” The section also provides the definitions of “excessive force” and “intercede.”
On January 12, 2023 (12 days after SB 2 went into effect), the Department issued Training Bulletin #2023-001—Decertification: Senate Bill 2. The training bulletin contained the list of types of serious misconduct found in Penal Code section 13510.8 and referenced in the OIPA’s recommendation, and provides examples and/or a brief explanation for most of the items on the list. The training bulletin also provided a brief explanation of the decertification process and the Department’s notification obligations.
All Department members received training on the Training Bulletin after its release.
Response: Green.
Projected date of completion: June 2025.
Recommendation #5: The OIPA recommends that IA investigators regularly use open-ended questions as a standard practice during interviews with officers. The questions — "What happened when you arrived?" rather than, “Did you approach from the east side of the house?” — elicit a more robust, independent, and detailed account.
The Department agrees with this recommendation. IA investigators often write out questions (sometimes referred to as “script”) in preparation for an interview to help them build a clear, organized narrative and to help ensure they do not forget any important questions during the interview. While some “yes/no” questions are occasionally necessary during an interview, the Department agrees that it is a good practice to use as many “open-ended” questions as possible. The IA unit commander will ensure that this practice is stressed in an upcoming unit meeting and periodically reinforced in future unit meetings and trainings.
Response: Green.
Projected date of completion: June 2025 and ongoing.
HONORABLE MAYOR AND CITY COUNCIL
June 12, 2025
Subject: Response to the Policy Recommendations from the 2024 Independent Police Auditor Year End Report
Recommendation #6: The OIPA recommends that the Police Department enhance and clarify policies regarding the off-duty use of department vehicles, particularly unmarked or marked take-home cars. Specifically, the policy should clearly define: what enforcement actions are permitted while off duty in a take-home vehicle.
Specifically, the policy should clearly define:
• what enforcement actions are permitted while off duty in a take-home vehicle
• storage and garage security requirements for such vehicles documentation and reporting responsibilities following any off-duty incident • expectations for timely reporting and follow-up after such incidents
The Department agrees to this recommendation, with one exception. Most of the concerns expressed in this recommendation are addressed in either the City Policy Manual Chapter 1.8.1 (Use of City and Personal Vehicles) or the Department Duty Manual Section L 2204 (Off-Duty Enforcement). However, the Department sees the value in consolidating the policies governing the use of Department-issued vehicles into one policy. The Department will create a new section in the Duty Manual specifically addressing the use of Department-issued vehicles by Department members, including off-duty enforcement and expectations and reporting requirements following an incident involving a City-owned vehicle.
Exception: The Department disagrees with the recommendation of imposing storage and garage security requirements, as many Department members who require a “take- home” Department-issued vehicle due to the nature of their Department assignment do not have access to a secure parking facility at their residence.
Response: Green (with one noted exception).
Projected date of completion: December 2025.
Recommendation #7: The OIPA recommends that prohibiting the unauthorized disabling or tampering of SJPD issued technology and equipment is critical to ensuring operational integrity, officer accountability, and public trust.
Department-issued systems such as GPS tracking, mobile data terminals (MDTs), body-worn cameras (BWCs), vehicle telemetry, department cell phones, etc. are essential tools that support officer safety, enable efficient dispatch and supervision, and allow for transparent oversight of field activity.
The Department agrees with this recommendation. As stated in response to Recommendation #4, Duty Manual section C 1302.5, which addresses dishonesty, has been authored and is in the review process. The forthcoming policy prohibits several specific acts of dishonesty, including “Tampering with, falsifying, or deleting data from body-worn cameras, surveillance systems, GPS, or other recording devices with the
HONORABLE MAYOR AND CITY COUNCIL
June 12, 2025
Subject: Response to the Policy Recommendations from the 2024 Independent Police Auditor Year End Report
intent to deceive or conceal misconduct.” The target date to publish the new Duty Manual section is June 2025.
Response: Green.
Projected date of completion: June 2025.
Recommendation #8: The OIPA recommends that officers be required to carry and use SJPD issued cell phones while on duty, as this enhances transparency, reinforces accountability, and ensures that department-related communications are properly retained, monitored, and accessible for internal oversight and legal compliance. Currently, there is no policy mandating officers to carry or use their department-issued cell phones during work hours.
The Department agrees to this recommendation, in part. The Department will add a section to the Duty Manual requiring that officers carry their Department-issued cell phones while on-duty. The policy will apply to officers in both uniformed and non- uniformed assignments, but it will not require officers to carry the phone on their person.
As is the policy with many types of equipment, it will suffice to have the phone readily available (e.g., in a desk drawer while the officer is in the office or in a vehicle while the officer is in the field).
The new policy will prohibit the use of personal cell phones to collect evidence, such as crime scene photos or interview recordings, and will encourage officers to use their Department-issued cell phones as much as possible while in the performance of their duties.
Response: Green.
Projected date of completion: December 2025.
Recommendation #9: The OIPA recommends that the department clearly define the term “minor transgression” as referenced in Policy Section C1707.5, for consistent and equitable application of Supervisory Referrals.
The Department agrees with this recommendation. The Department will define “minor transgression” in Duty Manual Section C 1707.5. The Department will confer with the OIPA on the language used in the definition prior to making the addition.
Response: Green.
Projected date of completion: December 2025.
HONORABLE MAYOR AND CITY COUNCIL
June 12, 2025
Subject: Response to the Policy Recommendations from the 2024 Independent Police Auditor Year End Report
Recommendation #10: The OIPA recommends that officers provide written materials to residents when executing a search warrant or after property damage to inform residents of pertinent information.
In alignment with our public transparency goals, these materials should include:
• contact information for follow-up
• instructions on how to retrieve seized property
• how to file a reimbursement claim
• a summary of general process after a warrant is served
The Department agrees with this recommendation and will develop a form with the information listed in the recommendation. A Duty Manual section will be added to L 3800 – Obtaining and Serving Search Warrants, that will require officers to provide the new form to residents (or leave it at the residence if no residents are present) along with a copy of the inventory sheet of items seized.
Exception: Officers will be allowed to withhold this form if they can articulate a specific reason why providing this form to the residents would compromise an ongoing criminal investigation.
Response: Green.
Projected date of completion: December 2025.
Recommendation #11: The OIPA recommends that SJPD formally affirm its support for the continued use of OIPA’s use of real-time auditing as an effective and collaborative, model for civilian oversight.
This process includes:
• Joint interviews and direct questioning of sworn officers • Live review of ongoing investigations
• Collaborative ongoing discussions about allegations
• Streamlined resolution of straightforward cases
• Access and review of all Internal Affairs investigative reports involving sworn officers – including both community member complaints and, under a temporary agreement, Department-Initiated Investigations.
While aspects of this access are currently governed by side letters in the SJPD- POA contract - set to expire in June 2025 – this recommendation seeks a statement of support for a model that has proven to improve the quality and integrity of investigations and build trust between IA and the OIPA.
HONORABLE MAYOR AND CITY COUNCIL
June 12, 2025
Subject: Response to the Policy Recommendations from the 2024 Independent Police Auditor Year End Report
The Department values its collaborative relationship with the OIPA and supports the continuation of a collaborative auditing model. However, it should be noted that the Department’s support should in no way be viewed as validation of the idea that the OIPA should be given direct access in the field to an active criminal investigation, nor should they be given indirect access to an ongoing or past criminal investigation.
Response: Green.
Projected date of completion: Ongoing.
Recommendation #12: The OIPA recommends expanding the Independent Police Auditor’s scope— under the authority granted by Measure G (2021) as other duties consistent with the Charter—to include review of all SJPD use-of-force incidents, not just those involving death or great bodily injury. Currently, OIPA’s access to lower-level use-of-force incidents is limited to statistical summaries.
This restriction prevents review of critical evidence— such as police reports, use- of-force reports, and body-worn camera footage — which is accessible for higher- level incidents under Measure G.
The Department disagrees with this recommendation. The expansion of the OIPA’s investigative oversight provided in Measure G mirrors the provision set forth for the release of public records in cases of use of force in SB 1421 in that it applies only to cases involving the discharge of a firearm, death, or great bodily injury.
Both SB 1421 and Measure G were put into effect (SB 1421 in 2018 and Measure G in 2020) in response to high-profile national use-of-force incidents resulting in death or serious injury. They were enacted to safeguard against harms to liberty and the inherent sanctity of human life, which are associated with deadly force cases, as well as to quell public unrest. Both statutes are explicitly limited to these types of incidents because use of force investigations are criminal investigations that require police powers to investigate. Any outside investigation would involve access and exposure to records (i.e., police reports, BWC footage, etc.) that are withheld from public view by state law to maintain the integrity of these criminal cases.
As stated in the response to Recommendation #3, there are numerous safeguards in place that will trigger an administrative investigation if there is any evidence of wrongdoing on the part of the involved officer(s). Some Category II and all Category III use-of-force cases (shown below) are referred to the Executive Force Review Committee, which reviews each case to determine whether or not a DII should be initiated.
HONORABLE MAYOR AND CITY COUNCIL
June 12, 2025
Subject: Response to the Policy Recommendations from the 2024 Independent Police Auditor Year End Report
CATEGORY (II) USE OF FORCE
1. Electronic Control Weapons deployments (probe & drive stun)
2. Impact weapons (not to the head)
3. OC Spray
4. Projectile impact weapons (where up to 4 rounds strike the suspect)
CATEGORY (III) USE OF FORCE
1. Impact weapon or Projectile Impact Weapon strikes to the head (intentional and accidental)
2. Projectile impact weapon (where more than 4 rounds strike the suspect)
3. Kicks to the head
4. Two or more officers deploy less -than-lethal force (O.C., Projectile Impact Weapons, or Electronic Control Weapons) on one suspect
5. Four or more officers use reportable force on one suspect
6. Force resulting in bone fracture
7. Canine apprehension (dog bite)
8. Force resulting in suspect’s loss of consciousness
9. Hospital admission as a direct result of the force.
If a DII is initiated or if a complaint is filed, the OIPA reviews the case. Category IV cases (deadly force) are referred to the OIPA per Measure G.
Response: Red.
Projected date of completion: N/A.
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 City Council Focus Area Status Report: Increasing Community Safety in spring 2025.
COORDINATION
This memorandum was coordinated with the City Attorney’s Office and the City Manager’s Office.
PUBLIC OUTREACH
This memorandum will be posted on the City’s Council Agenda website for the June 17, 2025 City Council meeting.
HONORABLE MAYOR AND CITY COUNCIL
June 12, 2025
Subject: Response to the Policy Recommendations from the 2024 Independent Police Auditor Year End Report
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.
Paul Joseph
Chief of Police
For questions, please contact Lieutenant Paul Hamblin, San José Police Department, Research and Development Unit, at (408) 277-5200 or [email protected].