The Police Commission on Wednesday evening put off a vote on a new policy that limits, but does not prohibit, the use of controversial no-knock warrants.
Other changes in the department’s policy on search warrants were aimed at modernizing the San Francisco Police Department’s procedures and included guidance on establishing probable cause and reflected changes in the law like journalistic protections and electronic privacy.
Although the changes, the first in the policy since 1997, were welcomed by police reform advocates, the inclusion of no-knock warrants brought strenuous objections from both the Public Defender’s office and ACLU of Northern California.
In the proposed policy, no-knock warrants would be permitted in cases where there is “reasonable suspicion that adherence to knock-notice would be dangerous to the members executing the warrant and/or the public.” When serving a warrant, police who “become aware of facts that would constitute reasonable suspicion that [knock notice] would be dangerous” are also absolved of the knock notice requirement.
This language gives officers “far too much discretion, which we know can cost people — especially people of color — their lives,” said Yoel Haile, Criminal Justice Director at the ACLU of Northern California, in an email statement. “It includes exceptions that would let officers execute a no-knock warrant without authorization from a judge, and doesn’t adequately distinguish between their use in drug investigations versus violent crimes.”
Prior to yesterday’s scheduled commission meeting, the ACLU of Northern California sent a letter opposing the new policy to the commission and Chief Bill Scott. The letter was also shared with Mission Local.
“San Francisco should lead on this issue and ban no-knock warrants,” the letter, signed by Haile, read. “Anything less will inevitably lead to more terror, brutality, and death to … over-policed communities.”
At the commencement of Wednesday’s Police Commission meeting, which began 30 minutes later than scheduled without explanation, the secretary announced that the Department General Order 5.16 and another policy that was up for approval had been removed from the meeting agenda.
The update to Department Order 5.16 was ostensibly meant to bring the policy’s language and references into the 21st century. However, the inclusion of no-knock warrants became a stumbling block.
No-knock warrants have long been controversial, especially after police in Louisville, Kentucky, killed Breonna Taylor in March, 2020. She was sleeping when officers burst into her home as part of a botched raid. Taylor’s boyfriend shot at the police, thinking they were burglars, and officers opened fire, killing Taylor.
Louisville’s Metro Council banned no-knock warrants in the aftermath of Taylor’s killing and the widespread protests that ensued last summer after the police murder of George Floyd, as did the states of Virginia and Tennessee. Other states, as well as the U.S. Department of Justice, have limited their use.
“No-knock warrants are a relic of the war on drugs,” said San Francisco deputy public defender Brian Cox in a public comment last week. “They have no place in 2021.”
However, the police department wants to retain the ability to request no-knock warrants in certain situations.
Chief Scott said in a statement that “no-knock warrants are necessary in instances where life and safety are at stake, and their availability to police officers is especially important at a time when we are seeing a dramatic increase in shootings and gun crimes.”
In practice, one no-knock warrant has been executed by the SFPD in the past two years, Scott said, and the department has petitioned the court to obtain seven total no-knock warrants in that period. “All seven involved suspects who were violent felons, and all but one were for suspects who used firearms in the commission of their crimes,” Scott said.
The San Francisco Police Officers Association declined to comment on the proposed policy until after it receives further direction from the Police Commission.
Originally, the new search warrant policy was scheduled to be discussed and approved at the Sept. 8 commission meeting, but a lengthy eleventh-hour discussion over certain phrasing within the document took place, raising concerns that a vote held on that same night would be rushed.
Cox and Danielle Harris, a managing attorney with the public defender’s office, urged commissioners during public comment to take more time to review the changes and allow the public to do the same.
“We have had it for less than three full business days,” Harris said at the commission meeting last week. “It is dense and an additional week or two is not a lot to ask.” She added that it didn’t seem like fair notice to the public for changes to be made and voted on in the same sitting.
Both Chief Scott and Police Commission President Malia Cohen seemed eager to pass the order on Sept. 8, with Scott pointing out the policy was “two years in the making.” However, after hearing the public comments, Commissioner James Byrne made a motion to delay the vote by a week.
In addition to the issues with the text itself, there were also concerns that the commission and the police department did not seek adequate feedback.
“It is unacceptable for the police to unilaterally overhaul their own policies without consulting and incorporating feedback from the people and agencies that will be affected by the changes,” said Haile from the ACLU. “Instead of rubber-stamping the policy, the Police Commission should refuse to hold a vote until the SFPD hears from the District Attorney’s office, Public Defender’s office, and the public.”
The draft was a collaborative effort between the Department of Police Accountability and the SFPD, said Capt. Jim Aherne of the Investigations Bureau during last week’s commission meeting.
The District Attorney’s office did not respond to a request for comment.
The proposed new policy on, which currently weighs in at nine pages, would replace the two-page version from 24 years ago. That document gave scant guidance on obtaining and executing search warrants. The updated policy specifically requires compliance with the Reporters’ Shield Law which protects the press from search and seizure of journalistic materials and the California Electronic Communications Privacy Act.
Update: The story was updated to reflect a response from the Police Chief.