Zisser: 2020 protests show why we need independent investigations of police conduct

As I discussed in my December column, the Charter Review Commission (CRC) recommended establishing an oversight entity that can investigate allegations of officer misconduct.

An outside group of experts, the OIR Group, conducted a review of San Jose Police Department’s response to the May-June 2020 protests following the murder of George Floyd by Minneapolis police officers. That review was published last week, and OIR Group presented it to the City Council on Tuesday.

It points to the need for precisely the type of independent agency the CRC recommended creating.

The OIR Group report was one of three separate reports about SJPD policies and practices. In addition to OIR Group’s report, another outside organization reviewed SJPD’s policies on use of force and SJPD’s progress on implementing “21st-Century policing principles.” Disclosure: In 2017, as an independent consultant, I partnered with OIR Group’s principal and lead author of the SJPD report, Michael Gennaco, to review BART’s oversight system, and I have sought his advice from time to time since then.

On top of highlighting various deficiencies in operations and culture, the reports reinforce the need for substantial expansion of independent oversight of SJPD. Next month, I will cover how the three outside reports’ findings on systemic issues reinforce the CRC’s other recommendations, namely, to create an inspector general’s office and a citizen commission with broad access to police records and authority to direct police policy reforms.

Numerous potential instances of misconduct

OIR Group noted numerous “questionable” projectile impact weapon (PIW) deployments that “merited scrutiny—and perhaps remediation—beyond anything we are aware of the Department’s having done.” For example:

• PIWs were “used on passively resisting protestors standing with locked arms.” There was “no observable evidence of assaultive behavior” on the part of the protestors.
• PIWs were “fired at one individual who refused to move ‘out of the way’ of the skirmish line when these officers were attempting to target a group of aggressive individuals who were hiding behind a large dumpster.” OIR Group notes in a footnote that this individual suffered the loss of a testicle as a result.
• A PIW was “fired at a protestor who was walking by the line pouring” liquid “out of a beer can… in a passive manner.”

OIR Group noted “the majority of officers who reported using PIWs… could not confirm if the subject had been hit, or… been injured. To our knowledge, no use of impact munitions was connected with an arrest.”

Troublingly, “SJPD Command personnel took the position that all of these rounds had only been used against aggressive individuals whose behavior fell within the parameters of the policy.”

OIR Group observed that, among other factors, “the sheer number of individual deployments… and the imprecision or incompleteness of documentation” by officers regarding their uses of force “all combine to raise questions about” those claims from within SJPD that none of the deployments constituted misconduct.

Delays in investigating potential misconduct

Despite this troubling litany of concerns, as OIR Group notes, there will be substantial delays in SJPD’s internal affairs investigations of potential individual officer misconduct during the protests.

The report noted that such delays are lawful because of ongoing litigation that allows “tolling” such investigations. OIR Group nonetheless encouraged SJPD to consider completing the investigations more quickly, remarking: “We’re disappointed by the idea that the Department’s full reckoning with these issues is still months if not years away” and that complainants “will need to wait an extraordinary time for their matter to be resolved.”

The need for an independent investigative agency

The CRC recommended San Jose create an independent investigative agency. This is also something Mayor Sam Liccardo has suggested and will be the subject of yet another outside review. Such an independent agency would decide whether to complete its own investigations into allegations of officer misconduct despite pending litigation.

More importantly, an independent investigation would have substantially more credibility than an internal investigation by SJPD, whose commanders apparently indicated—before such an investigation even occurred—that none of the deployments constituted misconduct. Yes, the Independent Police Auditor is tasked with auditing the internal affairs investigations—assuming people filed complaints. Under slightly revised authority, the IPA can also ask questions of witness officers.

But that is a far cry from actually directing and leading the investigation. The IPA is simply not able to micromanage every aspect of a complex investigation. It cannot be involved in every decision point, and an audit can accomplish only so much after the fact.

You cannot undo a series of leading questions, for example. Nor can the IPA always review all the body-worn camera footage to identify omissions in internal affairs reports. Creating an independent investigative agency would facilitate additional transparency into the discipline process and enhance the community’s trust in the integrity and outcome of the investigations.

A police commission would provide additional community trust

Another of last week’s outside reports asserts SJPD cannot include community members in disciplinary decisions. But the CRC’s recommendation to create a police commission comports with state law, and the envisioned commission would resemble other police commissions in California that weigh in on discipline and provide oversight of the independent investigative agency.

Of course, San Jose cannot establish such an independent investigative agency in time to investigate SJPD’s handling of the 2020 protests. Sadly, though, George Floyd’s murder is unlikely to be the last national flashpoint around policing practices.

Encouragingly—setting aside the violent acts of some individuals that risked undermining the legitimate protestors—our community’s righteous anger in 2020, and the efforts community groups have led since then, portend protests following those inevitable future flashpoints.

An independent investigation of officer conduct during such events not only will be critical to instilling confidence in the process; it is part and parcel with what protestors have been demanding and will continue to demand: real accountability, real change.

San José Spotlight columnist Aaron B. Zisser is the former San Jose Independent Police Auditor. He previously worked as an attorney with the Civil Rights Division of the U.S. Department of Justice and a consultant to Bay Area police and jail oversight entities. He continues to work in the field of police oversight and reform. His columns appear every first Friday of the month. Contact Aaron at [email protected].