Zisser: Outside reviews of San Jose police point to need for robust oversight structure
A San Jose police cruiser. File photo.

According to an outside review of the San Jose Police Department published in February, “Hispanic community members experienced a greater amount of independent use of force activities per event than their white counterparts did.”

“Additionally, the injuries sustained by Hispanic community members were more severe than those sustained by white community members,” the review said.

A separate outside report by OIR Group regarding SJPD’s handling of the spring 2020 protests found “patrol personnel were largely left to their own devices with no clear communication from Command.” These are but a few in a long litany of findings and recommendations that three outside reports identified.

Last month, I discussed the need for an independent investigative body in light of the outside review of SJPD’s handling of the protests following George Floyd’s death at the hands of Minneapolis police officers in 2020. The findings of the outside reports also point to the need to create an inspector general’s office and a citizen commission with broad access to police records to conduct systemic reviews of critical issues.

The Charter Review Commission last year recommended the oversight system be expanded in these ways. Exhibit A of the need for such oversight reform is the fact that outside entities conducting these reviews are granted full access, while our very own independent oversight agency lacks such access.

Tackling the wide range of reforms these outside reviews recommended is an enormous task and requires close, ongoing and independent scrutiny of SJPD’s efforts. Yet it appears SJPD will decide the process and which reforms to prioritize and which to defer. And it will judge which recommendations it has successfully implemented. Even after all these findings pointed to broad systemic issues, there is still a stark lack of understanding as to what real reform looks like and why the community, rather than SJPD, must be at the helm.

Monitoring implementation

SJPD has issued a response to the reports, indicating it plans to adopt most of the recommendations. But tracking such implementation and trusting SJPD’s own assessment of its progress present enormous challenges.

Other issues OIR Group identified regarding SJPD’s response to the protests include a lack of preparations or briefings prior to the protests, a dispersal order that resulted in a lack of notice to the crowd and “regrettable” imprecision in and a lack of supervisory review of officers’ use-of-force reports.

SJPD could not keep track of the number of munitions officers used, and there were no bathrooms or running water at or available near the field jail. SJPD issued a curfew announcement just hours before it would take effect, which made it difficult for residents to make plans or understand the order and gave SJPD “little time to brief its officers about its enforcement expectations, or the limits and exemptions of the curfew order.”

Trusting SJPD to report accurately on its own efforts to address these serious deficiencies is a classic case of the fox guarding the henhouse.

Choosing which reforms to adopt and when

OIR Group found that “apart from a few hours of introductory training to recruit officers in the Basic Academy, there has been little substantive in service training in recent years focusing on response to civil disorder.” Only one of the participants in a 2016 training “had any involvement in the events that unfolded on May 29.” One lieutenant involved in responding to the protests said they had “never” had a substantive civil disorder training.

Yet, in its response to the reports presented to City Council last month, SJPD indicated it doesn’t intend to provide this type of training because it would cost too much money to train all 200+ sergeants and lieutenants. It will instead provide a two-hour online course. But SJPD need not provide this training to every supervisor, many of whom work in parts of the department that would have no involvement with such operations. In 2016, SJPD sent just 16 managers to a similar training.

SJPD is deferring 66 recommendations regarding 21st Century policing (adopting 45), including:

  • “Expand restrictions on use of force against vulnerable populations.”
  • “Require officers to gain consent during warrantless searches and document this consent.”
  • “Revise Duty Manual to require officers to proactively identify themselves during stops and the reason for the stop.”
  • Support including peer specialists on mobile crisis response teams.

SJPD deferred 36 recommendations in the use of force report and are adopting only seven for now. Deferred recommendations include a better definition of and more emphasis on the need to attempt de-escalation and the need to not refer to use of force as a de-escalation tool.

SJPD promised to provide an update in the fall, including a recommendation on how and when to begin implementing the additional recommendations. SJPD may choose not to implement some at all. Notably, SJPD presumed to set the timelines itself, deferring implementation of some recommendations until June 2023.

Putting the community in the driver’s seat

Two of the outside reports recommend including community members in the process of revising key SJPD policies and reviewing uses of force. The Charter Review Commission’s recommendation last year to create an inspector general’s office and a police commission directly addresses this issue. Those entities would lead on policy development and prioritization and would include community members in discussions about policy changes.

They would dig into the data about whether problems exist and follow up to ensure that needed changes are actually implemented. A permanent infrastructure could monitor in real time rather than sporadically. Such a structure would enhance trust in the process and outcomes.

For now, though, SJPD apparently even gets to decide the role of the community in the reform process. Among those recommendations SJPD has chosen to defer action on: “Spotlight important policies with a coordinated outreach effort” and “engage the community when defining de-escalation.”

That’s backwards. SJPD needs to stop and listen rather than continue to try to dictate the path forward.

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]

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