Zisser: Police reform in San Jose requires overhaul of independent civilian oversight
A group of police officers in downtown San Jose. File photo.

The San Jose Charter Review Commission’s (CRC) recommendations last month to significantly overhaul police oversight will present a major test of the question posed in a recent Spotlight article: What do San Jose commissioners actually accomplish?

But the crucial test is of the City Council because the commission developed eminently reasonable recommendations it then approved by a compelling 20-1 vote. Now it’s time for the council to carry those strong recommendations forward. The council is slated to hear the commission’s report on Dec. 14.

In that same Spotlight article, a member of a separate commission referred to commissions as “think tanks.” The CRC was indeed a think tank. A litany of independent oversight agencies and national experts provided testimony. The current San Jose Independent Police Auditor (IPA) presented, as did I (I also informally advised CRC members). The commission worked closely with leaders of color involved in San Jose’s Reimagining Public Safety Advisory Committee. Dozens of residents weighed in during public comments.

The CRC’s timely recommendations aim to catch San Jose up to current trends. The San Jose Police Department is not immune to crises of public trust other big cities experience. Its disturbing response to the George Floyd protests is but the highest-profile example. Effective oversight is essential, and the CRC’s recommendations promote strong oversight by ensuring independence from politics, providing real investigative access and giving citizen participants real power.

Transforming the IPA office into an independent investigations unit received earlier political support, so I will focus on the CRC’s other two recommendations. As to the recommendation to create an investigations unit, suffice to say, many justifiably do not trust police departments to objectively investigate their own officers regarding serious use-of-force incidents that can rock a community.

Patterns and practice

While individual reforms can occur following a particular incident, broader reform depends on robust access to information on an ongoing basis about police practices, systems and processes. Such access places the oversight agency on equal footing with the police department as they negotiate policy improvements. Currently, the IPA merely recommends policy changes.

Moreover, those recommendations lack authority because of the scant information available to the IPA. The CRC envisions an inspector general with unfettered access to all police records and data. The inspector general could interview police officials; watch body-worn camera footage regarding any incident, not just those flagged by a citizen complaint; and observe officer trainings. Strict confidentiality rules would still apply.

The inspector general would then report trends and patterns for stops, arrests, uses of force and de-escalation and recommend improved policies, procedures, officer training or other reforms. Reports could also address compliance with procedures on documentation and activation of body-worn cameras. San Jose typically relies on outside groups for sporadic studies or, problematically, SJPD directs the studies itself.

Citizen commission

The most important recommendation is to establish a citizen commission with real authority, albeit with a check by elected leadership. The absence of a commission to oversee a department with a $450 million budget is glaring in a city with commissions on just about every other issue, many with much lower stakes.

While the proposed citizen commission would play a role in hiring and firing the chief—critical to establishing agency culture around rights and reform—its main roles would be to depoliticize oversight, ensure integrity in investigations and lead on police policy.

Depoliticization

Placing the oversight agencies under the auspices of a citizen commission is critical to de-politicizing oversight and enhancing its independence. Oversight, like other civil rights work, is directed at protecting constitutional rights of vulnerable minorities. It should be a counter-majoritarian or counter-political undertaking. Oversight must therefore be designed to mitigate political influence as much as possible.

In particular, the well-resourced San Jose Police Officers’ Association, in addition to openly advertising its hostility to reform and accountability, also wields influence behind closed doors with elected officials. The police union would almost certainly feel less emboldened to complain to unelected commissioners. And a non-politicized commission would be far less likely to bend in response to police union noise about oversight going too far in protecting residents’ rights or hearing too much from the community.

Accountability on cases

While insulating the oversight agencies from politics, the commission would also ensure they are not doing too little. Currently, the IPA has the authority to challenge internal affairs findings—in fact, the office “shall” appeal to the police chief and city manager.

Unfortunately, too often the IPA office chooses not to use this authority. The IPA office has a talented staff and a proud history. Nonetheless, last year, as in prior years, the office prematurely closed dozens of cases. Many involved serious allegations that might otherwise have resulted in discipline of officers.

A commission would meet frequently and focus exclusively on policing. This specialization makes it better positioned to provide meaningful scrutiny than the City Council, which hears only annually from the IPA and cannot get into the weeds of individual cases.

Directing reform

The commission would also provide direction on areas the inspector general should focus on for possible reforms. It would also engage the broader community on these important discussions. Lacking a commission, the IPA depends on the good graces of the chief for changes to policy or training and pushes for such changes behind closed doors. Lacking a formal venue for public engagement, an IPA proactively pursuing outreach around policies may be accused of “working the advocates” or undermining the office’s neutrality.

A commission would lead policy efforts in public view, form subcommittees with outside experts and residents with relevant lived experience, study issues alongside the inspector general and openly question the chief and hear from the public during regular forums.

But before we get to a police commission’s study of critical reforms, we need to embrace the open, transparent and careful study of the Charter Review Commission. Will a police commission be respected? We will learn a lot by how the City Council receives the recommendations of the citizen panel trying to strengthen oversight in the first place.

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. His columns appear every first Friday of the month. Contact Aaron at [email protected]

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