Eight months after the city passed a law that protects minors from coercion during police interviews, the San Francisco Police Department remains without a complete policy to implement it.
Advocates for minors argue that it is critical.
“The reason for the legislation is based on research that more than a quarter of people wrongfully convicted made false confessions or other incriminating statements, but were later exonerated by DNA evidence,” said Patti Lee, a deputy public defender, in prepared remarks for Wednesday night’s Police Commission meeting.
Lee, who works in the office’s juvenile unit, cited a 2014 study showing that minors are three times more likely to confess as adults during interrogations. Forty-two percent of youth in the study’s sample falsely confessed, Lee said.
Recognizing this phenomenon, the state passed a law in 2017 that requires youth 15 and under to consult with an attorney before being interviewed.
The city passed a law in April 2019 that expanded those measures locally to include 16- and 17-year-olds. Further, the city policy requires a parent or guardian to be present during the interrogations.
Efforts to enact that law have met with foot-dragging and defiance by SFPD leadership, according to a strongly worded letter by the director of the police department’s watchdog, the Department of Police Accountability.
In the Dec. 9 letter, DPA Director Paul Henderson accuses the department of ignoring his agency’s recommendations and then submitting a draft of the policy to the Police Commission for approval without those key provisions — all without consulting with his agency. In doing so, the department’s leadership violated policy, Henderson charges.
Two of the DPA’s recommendations are crucial, the letter argues. One of them makes it clear that consultation with an attorney must happen before a minor is questioned — as dictated by state and local statutes. As written, however, the department’s draft policy would make it possible for officers to provide an attorney to a minor after an interrogation.
The DPA also recommended that officers be required to ensure a “right to privacy” when youth are speaking with their legal representation. “Without notice or explanation to the DPA, the Department deleted the right to privacy provision” that had been included in a previous version of the policy, Henderson wrote, noting that it lent itself to basic attorney-client privilege —which is the law.
The SFPD also discarded two other substantial provisions that are included in a previous version of the policy. One reinforces existing policy that mandates officers provide interpretation services to youth with limited English skills. The other requires officers to document the name of the minor’s lawyer, when the lawyer was present, and the name of the parent or guardian present.
The SFPD ignored a fifth recommendation, according to the letter. It would require officers to record interrogations of children — another established SFPD policy that the DPA wants included in the new policy as a way of reminding officers of the procedures.
The public defender’s office added that the lack of a coherent policy leaves minors vulnerable and puts police in an exposed position. Lee, the public defender, said she trained 11 SFPD school resource officers at Mission Station in August — and many raised concerns over the lack of an updated policy.
“They were worried about violating the new state and local ordinance resulting in DPA complaints, which could pose barriers to promotions, and a worst-case scenario as occurred in charges against the Alameda Sheriff,” Lee told the commission.
An Alameda County Sheriff, Sgt. James Russell, in October 2018 was fired and charged with four felony counts for recording privileged conversations with four teenagers and their public defender. The sergeant blamed a flawed policy.
The commission ultimately did not vote on a policy on Wednesday night — as the item was yanked at the last minute at the request of SFPD Chief Bill Scott.
In response to Henderson’s letter, he stated the obvious: that the letter “has some points in it that were raised.”
“We agree with some of them,” Scott said — and then admitted he had not properly communicated with the DPA.
“What we’d like to see happen is we sit down with DPA, and work this out, and bring a policy that we all agree upon to the commission,” Scott said.
But according to Henderson’s letter, the chief had an entire six months do that.