At Wednesday night’s Police Commission meeting, a fiery public commenter told the commissioners that no one wanted to hear their “interpersonal squabbles,” “petty bullshit,” and “procedural stuff” — and then said “fuck the POA” before hanging up the phone.
It was a mildly ironic moment because, not minutes later, the commissioners — stopping short of pulling a Supervisor Sandra Lee Fewer, who led a “fuck the POA” chant at DA Chesa Boudin’s Election Night party in November 2019 — did something perhaps more powerful: They voted 5-0 to bar the San Francisco Police Officers Association from reviewing new revisions to the SFPD’s use-of-force policy that explicitly bans restraints to the neck, using a knee or other means.
The subtle procedural move — really, a heavy throwing down of the gauntlet — could trigger a legal brawl with the union. But, it seemed, some commissioners were poised for a fight.
“If there is a problem, then they’ll sue us like they did last time,” said Commissioner Cindy Elias, who proposed the motion not to send the policy to a meet-and-confer session. In such meetings, the union nominally negotiates “working conditions,” privately weighs in on policy, and can drag out those negotiations indefinitely.
The union has historically used the meet-and-confer process, which the courts have said can be used for training and discipline but not policy changes, to slow down reform efforts.
“Sometimes it needs to be litigated,” Elias said. “The City Attorney needs to defend us when we feel that, look, it’s a policy decision; it’s not subject to meet and confer — and we have to take that stand and allow the litigation process to take place and not be scared of it.”
Commissioner John Hamasaki was also ready. “The challenge here is you’ve got three trial attorneys — and we’re ready for trial,” he said. Most of his fellow commissioners are lawyers.
In other words, echoing Mission Local’s Joe Eskenazi, the POA yelled “meet-and-confer” and the Police Commission yelled, “stop.”
The union’s president, Tony Montoya, did not respond to a message seeking comment. The last time the Police Commission implemented policy changes without conferring with the union, the POA sued the commission and lost — twice.
Meet-and-confer sessions with the police union are widely seen by reform advocates as “black holes” where new policy can be softened without public input. A policy can languish in these sessions for months, especially if the union does not like the policy.
That happened when the Police Commission revised its use of force policy in 2016. After months of negotiating, the commission and the union reached an impasse. Then, the commission simply implemented the policy in December 2016 without completing the negotiations.
The union sued, arguing it had a right to continue. But a judge ruled against it in February 2017. The union lost again on appeal in September 2018. The courts ruled that the commission did not need to negotiate on this policy because it would “defeat the purpose of requiring cities to make fundamental managerial or policy decisions independently.”
The same rationale could apply to other policies that the police commission has put forth. And yet, the police department and the commission has allowed the union to continue meeting and conferring over policy. Until Wednesday night.
“Since I joined this commission, I have been frustrated by this, and I don’t understand, it and I still don’t,” said Commission Vice President Damali Taylor, who joined the commission in the fall of 2018.
She was surprised to see that a forthcoming “bias-free policing” policy was deemed subject to arbitration. “It seems that everything has to do with ‘terms of employment,’ she said. “It’s viewed so broadly that I think it swallows the rule.”
Most commissioners said the commission has been too “deferential” to recommendations by the Department of Human Resources, which has had the power to decide which policies require negotiation. “There is this deference that we keep getting told everything has to go over there and then it gets into the black hole,” said Commissioner Petra DeJesus.
She said the 2018 Court of Appeal decision was clear: “If it’s a policy decision, it’s a management decision— it doesn’t have to go [to meet and confer]. We don’t have to cooperate.”
The commissioners ultimately voted to implement the policy, which bars officers from restraining a person’s head, neck or throat, except when an officer fears for their safety and the safety of others. It also reminds officers that they should “intervene” if they see a fellow officer using excessive force.
Speaking to Mission Local following the meeting, Hamasaki said: “Hopefully, this is the beginning of a changed outlook toward the deference that we’ve shown to the meet-and-confer process — and I think that’s the Police Commission’s role, and our duty.”
Update, July 3: POA President Tony Montoya wrote in a Friday morning email to officers that he has “instructed our attorneys to assess all legal options and take the most aggressive legal position possible in terms of responding to the Police Commission’s disrespectful treatment of the Police Department and our members.”
John Crew, a former American Civil Liberties Union attorney who has observed San Francisco police reform for decades, said Montoya’s letter does not necessarily mean the union will sue. “That’s not a threat to sue — it’s a rattling of swords,” he said. “This is typical POA, ‘I gotta look tough for my membership’ talk.”