Update: San Jose police can continue to use rubber bullets for violent protesters

San Jose police can continue to use rubber bullets for crowd control if people are being violent, despite Mayor Sam Liccardo’s push to ban them in crowds altogether after protesters suffered serious injuries during demonstrations against the police killing of George Floyd in May.

Liccardo was the lone dissenter in the City Council’s 10-1 decision, with councilmembers saying the safety of officers was at risk. The decision was part of a series of changes to police department policies the council approved Sept. 15.

The city’s previous policy allowed the use of rubber bullets against protestors — violent or peaceful — but was met with backlash by residents and councilmembers, prompting Police Chief Eddie Garcia on June 16 to prohibit the use of rubber bullets as crowd control for nonviolent individuals.

The policy change means police officers can only use rubber bullets when someone is “actively attacking an officer or another person” or poses a threat, according to the police department’s manual. In those situations, officers must be sure to “avoid striking unintended subjects.”

Officers must use another form of crowd control if the crowds are too dense and an accurate shot can’t be made.

But how do officers distinguish between violent and nonviolent protests when faced with large crowds and a highly-contentious situation?

Liccardo said the changes didn’t go far enough and pressed for a ban of rubber bullets for all crowd control scenarios, leading to a heated exchange between the mayor and police Acting Police Chief Dave Knopf.

“There is a very big distinction between people who are unlawfully present and those who are violent assailants and I think we both know people who are not violent assailants and got hit,” Liccardo said. “They may have been unlawfully present but they still got hit.”

Knopf said potential harm to bystanders is the exact reason the policy was changed to allow officers to fire only at violent protesters.

“Nothing is perfect,” Knopf said, acknowledging that police are responsible for determining if they have a clear shot and sometimes misjudge.

“We need really clear policies so you don’t expect people to be perfect in the middle of a chaotic scenario to be able to discern how and when to fire something that is a potentially lethal round,” Liccardo said.

Knopf countered by saying rubber bullets are not considered a “lethal round” by the courts.

A 2017 study found rubber bullets can be lethal in some cases or at the very least can cause injury. At a May 29 protest, a local musician was left with a black eye, blurry vision and scarring after being hit by a rubber bullet.

“I don’t believe that as a council we should allow for situations that we know are highly likely to cause serious injury or even death to our residents when we see what the evidence is around the country,” Liccardo said.

Police officials acknowledged the potential danger posed by the projectiles but worried about officers’ inability to defend themselves during protests marked by anger toward law enforcement.

“I’m not going to commit the officers in this department to stand on the line and not be able to defend themselves in a riotous situation,” said Knopf. “You need to be prepared to deal with that situation if we can’t go in and protect this city from burning when people are lighting things on fire, looting and wanting to take us on.”

Alternative methods

Capt. Jason Dwyer said chemical agents such as tear gas and pepper spray, as well as wood batons, are some of the only other realistic alternatives for quelling crowds.

Dwyer said batons can be grabbed by protesters. One of the newly released body cam videos from the police department shows an incident where a protester grabbed a baton and a fight ensued.

“We don’t want to have that toe-to-toe confrontation,” Dywer said. “The officers get attacked too.”

As a former police officer, Councilmember Raul Peralez, who pushed for the ban of rubber bullets against peaceful protestors, said he understood the need for officers to have protective tools at their disposal.

“Ultimately, if other tools are ineffective, we should not take away the opportunity of this tool that we know is much less impactful and less lethal than a handgun,” Peralez said.

The push to consider a rubber bullet ban began at the request of Liccardo, Peralez, Vice Mayor Chappie Jones and Councilmembers Lan Diep and Magdalena Carrasco following injuries of protesters in May.

Peralez, who now works as a reserve officer, said he was happy with the approved changes.

The City Council also approved other police policies, including the minimum age at which minors can be placed into handcuffs and prohibiting the hiring of people who have tattoos or body art that aligns with hate groups.

Officers will also be barred from covering their badge and will have to provide their name and badge number upon request.

In addition, officers will be prohibited from “no knock entries” where a warrant is required except where evidence is at risk of being destroyed if officers knock.

Contact Carly Wipf at [email protected] or follow @CarlyChristineW on Twitter.