Should police officers hand over a business card every time they stop a person to question or search them? If so, how and what information should they hand over?
These are the questions the San Francisco Police Department has been trying to answer for more than two years as it works through recommendations from the U.S. Department of Justice to redo its bias policies and practices that have left African American and Latino communities with higher arrest rates, higher fatality rates in police shootings and a sense of being harassed and estranged from the SFPD.
And, after two years and countless meetings, what the SFPD and its citizen working group has come up with cannot easily be explained to officers or anyone stopped by police.
To an outsider — and to many inside the room at a recent working group of officers and criminal justice experts — the answer should be simple. Indeed, a draft completed at the end of 2018 by a committee of officers and lawyers kept it simple and incorporated national “best practices.” That policy directed officers — at any stop — to provide, in writing, his or her “name, star number, contact information and information to file a commendation or complaint.”
Supporters of this policy have argued that it would help reduce instances of unfair treatment by police, especially on people of color, and improve the already fraught relationship between these communities and police.
“Individuals, especially if it’s a negative interaction, can easily feel intimidated to get [an officer’s] information,” said Samara Marion, the director of policy at the Department of Police Accountability, during a meeting last July. “Part of Obama’s Task Force on 21st Century Policing was to have officers do this because it enhances all the goals of community policing and procedural justice.”
Instead, the draft policies as of this month offer a dense and somewhat bifurcated approach to identifying officers.
Anytime in which a person stopped does not feel free to leave but is not under arrest, the policy would require officers to hand out “Certificates of Release,” which are already given out in many instances where people are “detained” and do not feel free to leave in the presence of an officer.
Under the draft policy, these page-length forms would contain the officer’s name, rank and star number — with information on how to file a complaint or commendation for the officer. The proposed policy expands the instances in which a release would be provided.
What is the definition of a person “not free to leave?” In the draft document, it is someone who is moved a distance, pat searched, taken to a police facility, physically restrained, placed or seated on the ground, or arrested for simply being under the influence — or, simply, if a reasonable person does not feel free to walk away from an officer.
Yet if a person does feel free to leave — a so-called “consensual encounter” — officers only need to give a business card containing this information if the person asks for one. A consensual encounter has a broad definition: Anything from a friendly conversation with an officer, to a person giving a police officer permission to perform a search.
It’s no surprise that some attendees at this week’s meeting at SFPD Headquarters argued that the policy is overly complicated. “Trying to figure out when you would issue business card and when you issue Certificate of Release is much more likely to lead to confusion and unnecessarily complicates the procedure,” wrote Demarris Evans, a member of the San Francisco Bar Association’s Criminal Justice Task Force and formerly a deputy public defender.
Business cards should be required after every stop, she wrote in an e-mail. “That way, it is simple and easy,” she wrote.
Julie Traun, also a member of the Bar’s Criminal Justice Task Force, said during this month’s meeting that the release forms are more “cumbersome” than simply handing out a card.
Their view is supported by Obama’s Task Force on 21st Century Policing, whose 2015 report recommends that officers should hand out the business cards during “all encounters.” The report, drafted by a panel of law enforcement experts, said this could be done “easily.”
Not so easily in San Francisco, though.
At that same meeting, Rebecca Young, a deputy Public Defender who sits on the SFPD’s bias policy working group, moved to honor the Task Force’s recommendation by requiring police to give a business card during every interaction — even when they’re “consensual.”
But Police Commander Teresa Ewins, who leads the working group, said the very language Young proposed to nix is what Chief Bill Scott wanted to be included.
Scott would not confirm this. Our query to department spokesman David Stevenson resulted in the following statement: “The work on these policies has been thoughtful and has taken into consideration a number of views and opinions. We look forward to finalizing policies that address these issues in a smart and reasonable manner.”
Ewins was more candid.
“We have a million contacts a year,” she explained. That included, she said, friendly encounters such as playing basketball with kids.
“We’re not mandating that an officer hand out a business card anytime an officer says ‘hi’ to someone,” said Police Commission Vice President Damali Taylor. “Because that’s ridiculous.”
But some argued that “consent” could be interpreted in many ways and the language currently leaves that determination to an officer.
Police Commissioner Cindy Elias, formerly a deputy public defender, said that an officer may believe the encounter was “consensual” but a person may have felt coerced into agreeing to questioning or a search.
“The problem is sometimes officers don’t address the person [politely],” Elias said. “They’re not asking it in a question format — it’s more of a directive, and the person feels stuck and scared … and they may not know it’s a question.”
Moreover, a member of the general public may not feel they have the right to ask for the officer’s business card.
This problem speaks to something else that’s absent from SFPD’s policy: A requirement for officers to explicitly inform citizens of their right to decline a search — so there is no confusion regarding consent.
This was a prominent piece of New York’s “Right to Know” Act and was praised by advocates following its passage.
Officers in San Francisco are not required to do so and people who are stopped often do not know they can refuse a search.
“If we had this, my work would be done here,” said Young, the deputy Public Defender, referring to New York’s Right to Know policy.