Eight months after Police Chief Bill Scott moved to terminate an agreement with the DA’s office to investigate allegations of officer violence, last night he presented a revised plan to the Police Commission.
A newly ascendant voting bloc of police commissioners, who support strong police reform, rejected it.
The rationale of the 4-3 majority: The revised agreement failed to meet the standard of allowing the DA to conduct independent investigation of officer-involved police shootings and other violence.
“The whole point of this document is to ensure independent investigations,” commissioner Max Carter-Oberstone said. “It creates doubts in the public’s mind if an officer’s colleagues are so intimately involved in their own criminal investigation.”
The attempt to revise the memorandum of understanding came after Police Chief Bill Scott unilaterally announced the SFPD’s withdrawal from an earlier agreement, on the eve of former DA Chesa Boudin’s prosecution of Officer Terrance Stangel — the city’s first criminal case against an officer for a use-of-force incident.
The language in the new agreement, commissioners said, needed further work to protect independent investigations of the police department.
In an extended back-and-forth on Wednesday, Carter-Oberstone raised concerns that the new agreement would allow SFPD personnel to obtain evidence even in cases when they shouldn’t need it, and no checks existed to prevent abuses of the independent process.
“We have an agreement right now where evidence of a sensitive criminal investigation to an officer is just free flowing into the department, whether or not the department has any legitimate need to have that information,” Carter-Oberstone said.
Several additions to the deal ensure that the SFPD is present and can participate in interviews conducted by DA criminal investigators, and guarantee immediate notification of the SFPD of findings from the DA’s investigation. Specifically who at the SFPD is entitled to such information is often unclear, and the DA has no power, per the agreement, to control this. And, while police typically conduct a parallel criminal investigation of the civilian involved alongside the DA’s investigation of the officer, if there was no parallel investigation, the DA would still be required to share its independent findings with the SFPD.
Scott disputed Carter-Oberstone’s points, saying that he didn’t see that becoming an issue.
“If they believe we shouldn’t have it, they can assert, ‘you have no need to know,’ and then we can go to dispute resolution to settle that,” Scott said.
But as the document is currently written, the instances when the DA can decline to hand over investigatory material to the SFPD are very limited: When there is privileged legal information, and information that could cause a security risk or risk to risk to future criminal investigations. In all other instances, whether or not they “need to know,” the SFPD is entitled to evidence and interviews obtained by the DA.
“I think we’re going to have to agree to disagree,” Carter-Oberstone said, refusing to back down. “When you look at protected materials … [it] does not include anything about need-to-know.”
“One of the things that they teach us in law school, and also just best business practice, is to be as clear and encompassing as you can, so that you don’t have that gray area,” said commission president Cindy Elias. “Why wouldn’t we just put that in this contract so that it’s clear?”
The original dispute over the agreement erupted after the SFPD claimed that potentially exculpatory evidence pertaining to the Stangel trial had been withheld by the DA’s office. Scott’s sudden step to withdraw from the agreement was seen by many as a political move, intended to derail former Boudin’s pending jury trial of a police officer for excessive force. A judge ruled that the evidence was, in fact, not exculpatory, but a months-long discussion over the document ensued. In March, a jury acquitted Stangel of assault and battery charges.
Another point of contention was the inclusion of the Department of Police Accountability as one of the entities at crime scenes. Members of DPA present at Wednesday night’s meeting argued that there were times when officers on scene did not allow the oversight agency to participate in investigations, possibly because they were unaware of its role.
“We are charter-mandated to do these independent investigations,” said DPA chief of staff Sarah Hawkins. “And we have had varying experiences when we have arrived at the scene, in a way that has really impeded our ability to investigate at certain points.”
Elias agreed. “My understanding is that DPA is the only one that is legally mandated to investigate, as per the charter. So to not have them in the room, it is hard to understand why,” she said.
Commissioners and DPA staff argued for adding statements to ensure officers trained on the agreement would be aware that the DPA would also be present and entitled to briefings, interviews, and evidence. This addition, they said, would not detract from the essence of the agreement.
This, too, was adamantly rejected by Scott and his fellow SFPD members.
Eventually, commissioner Kevin Benedicto made a motion to delay the vote on the policy and send the police and DA back to the mediator. Their discussions have been mediated by retired U.S. District Court Judge Vaughn Walker, after Scott announced he would withdraw from the agreement in February, 2022, and the Police Commission insisted that he find a compromise.
Commissioner James Bryne then made a loud and impassioned monologue in support of the document, and an opposing motion to adopt the document in what he acknowledged was a “flawed” state.
“We have been waiting too long,” Byrne said. “And what we need to do is do something tonight to show the public that we are going to do something, that we’re going to deal with the issue.” Commissioners Debra Walker and Larry Yee seemed to agree, and voted against Benedicto’s motion to delay the vote.
Ultimately, the commission refused to approve the draft until further changes are made.
“I reject the idea that it’s just a take it or leave it because there was a long delay caused entirely not by the commission,” Benedicto said.
The former deal, signed by Scott and recalled DA Chesa Boudin, will remain in effect until a new one is approved.