During a tense eight-hour meeting, the Police Commission declined to safeguard a Memorandum of Understanding that makes the District Attorney the lead investigator of police use-of-force cases by extending its expiration date 30 days.
A last-ditch emergency meeting of the Police Commission is scheduled for Feb. 23, however — the day that MOU is set to expire. If Police Chief Bill Scott and DA Chesa Boudin do not make progress in bridging their differences, the commission may step in then.
Scott moved to unilaterally withdraw from the MOU earlier this month, after a DA staffer said she was pressured to withhold evidence pertaining to a criminal trial of Officer Terrance Stangel. The MOU, introduced originally in 2019, is a major tenet of police reform that ensured a body other than the San Francisco Police Department serves as the lead investigator in use-of-force cases.
The State Attorney General’s office is currently leading mediation efforts between Scott and Boudin, but the MOU will expire next week.
While some of the commissioners clearly wanted to avoid a lapse of the current MOU, Police Commission President Malia Cohen would not have it.
“I don’t believe that we take any action on anything tonight at all,” Cohen said after Commissioner John Hamasaki filed a motion to extend the current memorandum’s deadline by 30 days, an idea floated by Commissioners Larry Yee and Max Carter-Oberstone earlier in the meeting.
“Maybe I misspoke, President Cohen, but all it would do would maintain the MOU until they reach a letter of understanding. So it’s not impacting what’s taking place,” Hamasaki said, a bit confused.
“Well, Commissioner Hamasaki, you’re a master of negotiations. If there’s an escape route or backup plan, people use it. We don’t want to give them that back door,” Cohen said.
Cohen argued earlier that an extension would impede on the Attorney General’s mediation and its “positive” progress, and expressed optimism that a new memorandum would be reached before the expiration.
To ensure the commission has some say if mediation fails, Commissioner James Byrne suggested Cohen schedule the emergency meeting for next week.
“That way [we’re] not letting the MOU lapse without us having a say on it,” Byrne said.
Despite Cohen’s optimism about the mediation process, Scott made it clear during Wednesday’s meeting that it is entirely possible the MOU will lapse. He told the Commission that, if that happens, Scott and Boudin are presently drafting an interim agreement that simply permits the police to run a separate investigation of use-of-force cases alongside the District Attorney.
That, in fact, is how police use-of-force cases were investigated before the 2019 MOU, a deal that required years of negotiations.
The October, 2016, Department of Justice review of the SFPD was sharply critical of the SFPD’s use-of-force investigations: “There is minimal documentation of witnesses, no separate or summarized interview of witnesses, no routine collection of photographic evidence, and minimal analysis of the event from an evidentiary standpoint. If a supervisor does not respond, then it falls to the officer who used force to complete the investigation, which is unacceptable.”
The first draft of this interim agreement is expected on Friday, and Scott and Boudin will have a “conversation” about the memorandum again next Tuesday, one day before it expires.
When Commissioner Larry Yee asked Scott if the police and the District Attorney could agree on a new memorandum if they were given an extra 30 days, Scott would not commit to an answer.
“I hope so,” Scott said, saying he’d work as fast as he can. “I mean, what’s on the table right now is, let’s make sure we have something in place if, worst case scenario, there is no MOU.”
Scott told the commission that the State Attorney General’s office is presently mediating the memorandum renegotiation, and he’s “encouraged.” But the police department’s major grievance, that the District Attorney should share certain documents with the police regarding officers under investigation, appeared nowhere close to being resolved.
The police chief said it’s unfair that the department receives little to no information about the use-of-force cases under investigation, and it impedes on officers’ ability to do their jobs.
Scott said that since the memorandum began three years ago, 15 use-of-force cases were investigated, and he’s in the dark about nine of them. “We’re not getting any information, period. And that is not what we signed up for,” Scott said.
Referring to commissioners’ comments that the withheld evidence in the Stangel case was inconsequential, Scott replied, “It’s not a small thing. It’s not a small thing for information to be intentionally hidden that the police department is supposed to have. It’s not a small thing for intentional violations of the MOU,” he said. “I need to impress upon this commission, and the public, that it’s not unfair for officers to expect a fair process.”
Scott also doubled down on comments he made last week to The Chronicle, stating that for these reasons, the entire memorandum needed to be reworked. “I don’t think there’s a whole lot of disagreement there,” Scott said.
This raised red flags for several commissioners, who stressed that San Franciscans would be vulnerable without an active memorandum in place.
Carter-Oberstone asked how long it would take to reach a new agreement, given that the former memorandums took years to write.
Scott expressed confidence that the parties would write one quickly, because they were already familiar with the concerns and baseline language. Scott added that the second memorandum was written in significantly less time than the first, roughly three months.
That didn’t assuage Carter-Oberstone’s concerns. “If you do let it expire, and there is an officer-involved shooting or other critical incident, are you willing to accept responsibility for the fact that we will have no MOU in place to have an effective, independent investigation of the officer’s conduct?”
Before he could receive a response, Cohen interjected and said the commission should answer the question. She also intercepted a question from Commissioner Cindy Elias, who asked Scott how they could be sure he wouldn’t unilaterally withdraw from memorandums in the future.