By Marshall Hammons
San Francisco – Representatives from various City agencies, departments, and units within SFPD once again lined the tables at Police Headquarters on Monday, 8/4/19. Two weeks prior, the representatives from the Public Defender’s Office, the ACLU, the Police Officer’s Association, and SFPD themselves were tasked with drafting responses to the first version of the policy. With memos submitted to the Commission, the Working Group was going to finalize the positions for each interested party.
Commissioner Mazzuco and Commissioner Ellias were present, but President Hirsch was not. Commissioner Ellias stated that they and the City Attorney had received the memos. Commissioners Mazzuco and Ellias were thankful for the submissions and were going to continue to review them as the update the current proposed policy. Two members of the City Attorney’s Office were present. Unlike the last meeting, the two of them frequently joined into the conversation to explain their intent and clarified sections of the proposed policy.
Starting with the first sections, Commissioner Ellias explained the changes between the first version and the current proposed version. This first section had multiple changes to spelling, grammar, and citations. Ellias remarked, however, there should be specific citations to the subsections of the statute so those reading it will know what are exact rules as prescribed by the statute or if the rule are just policy choices for each agency to follow as they see fit.
The next section discussed was the definition and application of “sustained.” The Public Defender’s Office and the ACLU, had different positions from the SFPD and Police Officer’s Association on when something becomes “sustained” against an officer. SFPD’s positions seemed to be based off the City Attorney’s reading of the law. This is most evidenced by the fact that DPA switched their position from the previous meeting. DPA previously said that they stand by their work and what they find should be considered “sustained.” Sarah Hawkins, Chief of Staff for the DPA, said their department switched after discussing the issue with the City Attorney. Aside from the new position by DPA, the discussion focused heavily on the DPA complaint process and what the City Attorney advised would count as the different steps necessary for something to be “sustained.”
The DPA, City Attorney, and Commissioner Mazzuco took turns explaining the different roles of the same person that changes depending on how the complaint is being brought. They provided that if the recommended punishment is less than ten days suspension, the DPA is like the prosecutor, the Chief is the judge and jury, and the Commission is the appeal. If the recommended punishment is more than ten days, the Chief is the prosecutor, the Commission is the judge and jury, and an administrative law proceeding is the appeal. There was no consensus at the end of this part of the discussion.
The discussion then turned to the topic of when an officer discharges a firearm at a person. There was debate over the word “at” and whether intent should be read in. The City Attorney explained that if someone was not intending to shoot someone, it would not be covered. The ACLU explained that this was reading way too much into the law and the examples explaining accidental discharges should be removed. Commissioner Ellias agreed.
The discussion moved on to the issue of causing great bodily injury to a person. The same issues of officer suicide and officer-involved domestic violence came up. There was back and forth between the Assistant Chief Moser, the Police Officer’s Association, and the ACLU. The conclusion was that each agency is able to maintain its independence in coming to these conclusions about expectations of privacy, and there is no final gate keeper at the end. The City Attorney said that they will provide advice, but that is not binding on the agency who is going to release records. Each agency ultimately has the authority to make decisions in their professional capacity.
The Workin Group turned to other areas of use of force. The Group mutually agreed that the word “caused” should be removed, and there should be better clarification in the examples. The ACLU explained that in the context of a group of people acting in concert with one another, each one does not have to have caused the injury individually, but by acting together, creates the injury. The ACLU wanted this “concert of action” included as a way officers may cause serious injuries. The ACLU also stated that “great bodily injury” and “serious bodily injury” are often used interchangeably, so that language should be included as well.
The focus then moved on to the section about sexual assault by a police officer. The City Attorney, DPA, and the SFPD Records representative all agreed that this section needed to be reworded. Each agency agreed that because records were not being categorized or preserved with the intention of disclosure, each agency would have to read through the files to see if, retroactively, it appears there was a determination that falls within SB 1421. The City Attorney provided that their intention was to make it clear that just because a file was not stamped with “sexual assault” does not mean that those files will not be reviewed and possibly disclosed.
The Working Group moved on to the issue of dishonesty. Both DPA and SFPD said they are working on categorizing files pursuant to the new categories under SB 1421. DPA stated that their new case management system allows them to tag the appropriate categories and prepare them for release. The ACLU and the Police Officer’s Association took issue with the language provided by the proposed policy. They agreed that having a specific intent requirement to prove dishonesty is perhaps reading too much into the statute, and the City Attorney should clarify this language.
The next section discussed was the section discussing redactions. The Examiner, the Police Officer’s Association, DPA, and the City Attorney had a productive back and forth over the scope of redactions permitted. The Examiner said that there are third parties, meaning people who were not the person the officer interacted with, that have an interest in the disclosure of records. The ACLU recommended highlighting what redactions are mandatory ad which are permitted. The City Attorney provided the examples as stemming from other laws, such as HIPAA and attorney-client privilege, and that these citations should be included in the next version. The City Attorney said this area was filled with close calls, and their position was their best estimate as to what a judge would rule.
The final section where there was substantive discussion was notice to people involved. The Police Officer’s Association said that this section was important because of retired officers. Commissioner Mazzuco said that it would not be hard to find because you just follow their paycheck. The DPA recommended changing the language from notice to notification in an effort to delineate between formal notices and informal notifications. The ACLU suggested also notifying impacted families, as they likely have an interest in what is disclosed. SFPD said adding people to the notifications is not difficult because everything is done by email, DropBox, or One-Drive, and all it takes is adding an email. DPA said, for example, as soon as they know a record is going to be ready for disclosure , they let SFPD know at least ten days ahead of disclosure so SFPD can perform their threat assessment. Such a procedure seemed reasonable and most representatives seemed to agree that a simple notification to SFPD is enough to protect the interests of SFPD officers.
The Working Group ended with Commissioners Mazzuco and Ellias agreeing that there was a lot of progress made. They requested that if anyone had suggestions about language that should be changed or included, to please let them know within ten days.