By Raj Jayadev, SIicon Valley Debug
SAN JOSE - The City Manager Office of San Jose presented a report from their Use of Force Advisory Group, and found that the police department does not have a problem with officers using excessive force, nor do they see a need to study the issue any further. The call for the study was ultimately borne out of mounting community concerns last year of invalid arrests for resisting arrest (Penal Code 148) and excessive force, coupled with two high profile cases of use of force that garnered national attention last year. One was of a beating and tasing of a San Jose State student by the police that was caught on camera and went viral on Youtube. The other excessive force was lethal, when San Jose Police killed Daniel Pham, a mentally ill man, in his own backyard.
Yet, rather than identify contributing causes of the problem, offering solutions, or possible directions forward to heal the wounds of a community, the report contends that actually, there was no problem to begin with.
And if you squint hard enough, you can blot out the sun.
When is a City Problem not a Problem? When a City Report Says So
While a report that completely undermines a plea for help from many San Jose community members is deeply problematic, the timing could not have been more disastrous, as San Jose is at a pivotal moment for community/police relations as it begins the selection process of a new police chief. And in relationship building, it does not engender trust or respect for one party to tell the other involved parties that their problems do not exist.
The advisory group that produced the report was comprised entirely of San Jose top officials, and had no community stakeholders as participants. The lack of independent review or participation has struck some as a telling starting point. After reading the report, Sam Ho, of the Coalition for Justice and Accountability, asks, “How objective, impartial, and independent can this investigating entity be? Does a conflict of interest exist here?” Ho is a community advocate who helped form the multi-ethnic coalition after the officer involved shooting death of Bich Cau Tran, a Vietnamese woman killed in 2003, and was involved in bringing attention to the Daniel Pham case last year.
The Coalition for Justice conducted a multi-lingual survey, asking impacted communities what type of police chief they are looking for. Upon initial review of 1467 responses, (survey data is still being processed) 81% of respondents agreed or strongly agreed with the statement, "It is important that the next Police Chief agree that there has been a significant problem with the SJPD’s use of force and arresting practices for the last 3-4 years." The community survey response is in direct opposition to the position of the City Manager's Use of Force report. That the City Manager’s office authored the report showing a vastly different reality then what has been displayed by the community survey and associated forums is particularly significant in that it is the same office that is in charge of the hiring of the next San Jose Police Chief.
Ho's concern of course is that there can be an inherent bias by a city that would need to insulate itself from liability concerns, and would not want to expose itself to civil claims by admitting systemic failures. According to the Mercury News, as of 2009, the city has paid $861,778 to settle 10 lawsuits charging San Jose police with excessive force that have been filed since 2004.
Limited Study Yields Limited Findings
Michael Reiser is a Walnut Creek-based civil attorney representing Bennie Love, a San Jose resident who has a pending lawsuit against the City of San Jose for excessive force. In 2007, Love, an African-American auto mechanic, was tased in the neck by San Jose police officers. Although he was initially charged with resisting arrest, and carrying a weapon (he allegedly had a key-chain pocket knife), upon review by the District Attorney’s office, all criminal charges were dismissed. Mr. Love, unable to pay for bail, had spent over a month in jail by the time he was released. Love has been diagnosed with Post Traumatic Stress Disorder from the run-in with SJPD.
Bennie Love’s case illustrates the limits of the Use of Force Advisory report, as well as being living proof contradicting the working group’s ultimate finding that there are no officers involved in repeated use of force incidents. Love and Reisner are heading into depositions of the involved officers this week. On calendar to be interviewed are Officer Steven Payne Jr., the same officer involved in the beating of the San Jose State student, and Officer Julie Marin, who, along with Payne, was profiled in a Mercury news story in November of 2009. In the profile, the Mercury News found that Payne had used force four times in a ten-week span, and Marin three in one year.
Even if Love’s case happened in 2009, the year the report focused on, his case would not have been reviewed by the group since it was not solely a resisting arrest charge. Reiser sees the narrow scope as a cause of concern. “Overall, the premise of the study seemed flawed. Why is it limited to cases in which the only charge is resisting arrest? Why not examine use of force reports when the charges included PC 148 charges, as well as additional charges?”
Reiser though says the limited scope was not the only aspect of the report that struck him. In particular, he was taken aback by the report’s admittance of the lack of an Early Intervention System for the SJPD, a standard tracking system that departments use across the country as a preventative tool for officer abuse incidents. “The most important part of the report in my mind at least, is that it appears that San Jose has shown a questionable commitment to tracking through an Early Intervention System of potentially rogue officers on the force. Further, the fact that is seems to recognize the need for an EIS, yet is still is without one, is problematic.”
And the most obvious recent display of why acknowledging the possibility that repeated excessive force can be identified, thus prevented, involves San Jose Police Officer Matthew Blackberry. It also borders on the unbelievable. Blackberry was involved in the fatal shooting of Daniel Pham in May of 2009, and was put on administrative leave. He was returned to active duty, and in August 2010 was once again involved in a fatal officer involved shooting of San Jose resident Brian Stand Casey. Two deaths, one officer, within a 15-month period. That the working group that authored the Use of Force Report would not even acknowledge these fatalities as a starting point is a measure of its seriousness.
While the report does seem to say more by what it leaves out than what it includes, the examination does reveal systemic issues that can be examined to get a more comprehensive view of excessive force and resisting arrest charges. It was not only the scope of the investigation that seemed too limited to yield any significant findings; it was also its lack of drilling down into the cases that were examined and the ancillary matters offer important context to those cases.
Not Wide Enough a Net, Nor Deep Enough a Drilldown
The advisory group was charged to answer the question, “Were any officers disciplined for use of excessive force in 2009?” The report states that only one civilian initiated charge, out of 63, had been sustained, meaning found to be true, and resulted in discipline for such a complaint. The report goes on to say, as a sign of progress, how 63 complaints is a “substantial decrease” from the 117 complaints lodged in 2008. But the real statistical representation to locate whether or not there are adequate accountability systems for officer misconduct around use of force is the percentage of civilian initiated complaints that have been sustained by the San Jose Police Department’s Internal Affairs Unit. According to the San Jose Independent Police Auditor’s 2009 Annual report, only 0.5% of the complaints were sustained. In the previous year, 0% of those 117 complaints were sustained. So in 2008, by these standards, no one had a legitimate complaint for use of force in San Jose. In 2009, 60 of 63 complaints lodged by civilians who took the time out of their schedules, and mustered up the courage to bring attention to excessive force, were also deemed illegitimate.
The report goes on to say how currently the only mechanism used to identify potentially problematic officers is if they hit a threshold number of complaints in a certain duration of time. But if the public knows, with statistical certainty, it is near impossible for a complaint to result in any discipline, it seems reasonable for many not to initiate a complaint in the first place.
The other issue regarding use of force and resisting arrest is to look at the rest of the life history of the 180 examined arrests, meaning what happens to an arrest when it gets to court. An investigation could distill some information regarding the merits of the charges based on how many cases of that pool was prosecuted versus dismissed by the District Attorney’s office, how many went to trial, and how many were found guilty versus not guilty. This issue circles back to the lack of sustained complaints, in that defense attorneys, through a device called a Pitchess Motion, look at the track record of an involved officer. If complaints are not being sustained, then there are no track records.
But like the numbers around sustained complaints, the mechanisms of the criminal justice system are important to understand the numbers. There very well could have been a large amount of cases being thrown out of court, or even specific officers' names repeatedly coming up for false resisting arrest charges, but since the Public Defender’s office as well as the District Attorney’s office was not in misdemeanor arraignment court until recently (a highly unusual practice that some in the legal community found a massive violation of constitutional protections), individuals were taking plea deals doled out by the judges for convenience or for a lack of understanding of their right to counsel. The practice was for the Public Defender’s Office and District Attorney’s office to get involved only after a not guilty plea was offered. Without an attorney, with a judge making an offer, it is no surprise many resisting arrest cases did not make beyond arraignment.
But these questions, and the many others that would arise in order to do a thorough investigation of such a complex matter, have been determined to be unimportant by this advisory group. Even though the seemingly definitive answers should have prompted further questioning. For example, one key question of the report was referencing the assumption that repeated use of force was not a department wide problem, but rather, only involved a small number of officers. It is the "bad apples" theory. The logic is that department-wide training changes, for example, would not be the most effective solutions if the problems were only with a particular set of officers. Rather corrective actions should be targeted to those specific officers. But since the working group declared that the "bad apples" theory does not apply for this department, these issues of use of force then may be systemic -- a department-wide problem, which is even more concerning. Saying that SJPD has a diversified use of force practice should not be interpreted to mean there is no use of force problem. But the natural next step questions were not asked by this study, even when given the invitation to do so. In the report, when asked, “Should the working group review other SJPD records?” The answer was no. When asked, “Should the working group review additional use of force reports?” The response again was no.
If they did decide to continue the investigation, expand its scope in a meaningful way, they may have come across the case of Martha Batres, a 19-year-old who was tackled and tased by SJPD in the front lawn of her Eastside home in August 2009. She was charged with resisting arrest, but also assault on a police officer, as they alleged that she had attempted to kick an officer when she was belly down and handcuffed. Batres’s father had videotaped witness statements of neighbors immediately after the incident that all confirmed Martha Batres was the victim of an unjustified assault by an officer. Batres pled not guilty, and her father gave the footage to Sonya Smith, her seasoned Public Defender, who transcribed them and used it to build a defense for her client. Smith’s efforts resulted in charges being dropped on Batres, but the permanent damage of the incident has determined her outlook towards law enforcement. In response to the report she says, “They are lying if they are saying there is not excessive force. I know because it happened to me.” She drew a lesson from the incident, a sentiment that is also not captured in the city’s investigation on use of force and resisting arrest charges. She says, “All I know is if something would happen to me, I wouldn’t call the police for help because of what they did to me before.”
A study that cannot acknowledge, much less address this response that is based on lived experience, is not a tool that can improve community and police relations. Any organization, including the city of San Jose, can not move forward to identify and implement solutions if it can not even admit there is a problem.