Why San Jose can’t fully audit its own police

San Jose is trying to improve policing by turning to private companies for analysis despite having its own independent auditor.

Last week, the City Council heard three outsourced reports with more than 300 recommendations on how the San Jose Police Department needed to improve its tactical practices. The reports, which cost more than $230,000, had residents questioning why the oversight was not done in house.

The city has an Independent Police Auditor (IPA) to oversee SJPD, but it doesn’t have the authority to conduct such work. The auditor would need unfettered access to the police database and investigations. Powers it does not have.

“It’s very hard to understand the secrecy around this stuff,” said Aaron Zisser, the city’s former IPA and a San José Spotlight columnist. “This information belongs to the residents of San Jose and yet the police act as though they’re the only ones entitled to it.”

The reports were part of the city’s effort to improve policing following SJPD’s response to the 2020 George Floyd protests that resulted in hundreds of complaints and two lawsuits.

Independent Police Auditor Shivaun Nurre was not available for comment.

What does a police auditor do?

The role of San Jose’s police auditor as it exists now is to take complaints from the public about SJPD conduct, make sure the department investigates those complaints thoroughly and fairly and make recommendations.

When a resident files a complaint to the police auditor, it sends the misconduct complaint to the police department and it’s handed over to internal affairs for investigation.

The police auditor can sit in and ask questions during the investigative interviews, but does not make the final decision regarding the complaint—SJPD does. If the police auditor disagrees with the findings, the office can appeal to SJPD and the city manager.

“The whole point of an IPA is to reassure residents that we did a full investigation, this was a fair process,” Zisser told San José Spotlight, “and hopefully they feel more confident in that outcome as a result of the independence of it.”

In 2020, the police auditor received 269 complaints and 896 allegations—of which 23% of complaints contained use-of-force allegations. About of a quarter of sworn officers received at least one complaint, according to an annual report. Disciplinary action was imposed on officers 25 times, which indicates most complaints and allegations went without discipline.

That same year, San Jose voters elected to expand the police auditor’s authority, giving the office access to unredacted police records related to officer-involved shootings and use-of-force incidents resulting in death or severe bodily injury without a complaint. It also can review redacted police records to make recommendations on department policies under certain conditions and audit misconduct investigations initiated by SJPD.

No evolution

San Jose was one of the first cities in the nation to implement an Independent Police Auditor in 1993 and at the time it was an innovative and unique idea, NAACP San Jose/Silicon Valley President Bob Nuñez said.

“But I just haven’t seen the one in San Jose evolve,” Nuñez told San José Spotlight.

He said the police auditor is a great way for residents to have an outlet to voice complaints without fear of retribution—regardless of outcome—but that alone is not a means of structural change. Instead, a hybrid model would be best, with emphasis on community involvement.

He and Zisser said even having a third party investigate and make recommendations does not lead to significant reform because it is still up to the police department to make and track those changes.

San Jose State University professor William Armaline, who sits on the Reimagining Community Safety advisory group tasked with considering police reforms, said 300 recommendations would be hard for any police department to implement—but the problem isn’t the number of recommendations. It’s the lack of oversight on how those recommendations get implemented.

“Literally nothing was changed for the use of force after the George Floyd protests. They refuse to ban rubber bullets, for example,” Armaline told San José Spotlight. “So I struggle to see what can change now.”

Contact Jana Kadah at [email protected] or @Jana_Kadah on Twitter.