Police cars at 21st and Mission Streets
Photo by Eleni Balakrishnan

District Attorney’s role in police shooting investigations hangs in the balance

Another week, still no memorandum of understanding — the document that is meant to ensure independent investigations of police shootings. 

After police commissioners sent Police Chief Bill Scott back to the bargaining table in October on his agreement with the District Attorney’s office, the subject came up again at Wednesday night’s commission meeting.

In theory, Vice President Max Carter-Oberstone asked the chief, could the DA’s office handle on its own the criminal investigations of both officers and involved civilians after a police shooting or serious use-of-force incident? Without any help from the SFPD?

But that’s not how the plan currently stands. As it is written, the DA investigates the officer, while the SFPD conducts a parallel criminal investigation of the civilian.

Scott reluctantly agreed it was possible. 

“In terms of having a truly independent investigation where the public has true confidence … it would be more independent, right?” Carter-Oberstone suggested. In this hypothetical scenario, there would be no need for the SFPD to access materials collected during investigations, a major sticking point in the discussions.  

But, as commissioner James Byrne noted, the point is perhaps moot: The District Attorney apparently isn’t pushing for that level of independent oversight during negotiations. 

More discussion will be taken up at the next meeting. 

The memo has been discussed since the chief suddenly terminated it earlier this year. That prior agreement took at least two years to complete, but Scott nevertheless has insisted on revising it, and the major concern is the sharing of information between the DA and the SFPD. Commissioners want the DA to have a free hand in investigations, and the SFPD wants nearly unfettered, realtime access to everything the DA investigation uncovers. 

New use-of-force, disengagement policies to come 

A newly revised use-of-force policy passed on Nov. 2, after the commission recently wrapped up discussions with the police union. These revisions have been in the works since a major overhaul on the policy began in 2016, following a series of high-profile police shootings. Many major changes have been approved, but commission President Cindy Elias said Wednesday night that the commission overhauled it again, following feedback from the police department around implementation. 

“It doesn’t matter what policy we create: If it doesn’t work, and it’s not working, it doesn’t mean anything,” Elias said. The commissioners and police chief celebrated their collaboration and good-faith bargaining, even with the police union, to pass the updates quickly. The new policy will go into effect next month.

Under the new policy, types and levels of force that officers can use are clearly outlined with examples, as are the reporting requirements for each. Officers are required to intervene when their colleague uses excessive force that is not necessary, and “unnecessary force” is clearly categorized as a type of force that can cause serious injury or death. 

On the topic of de-escalation, the commission also approved a new policy around “disengagement” in recent weeks, with plenty of support from the police department and its oversight bodies. Scott called disengagement a form of de-escalation, “an emerging practice that has some really good outcomes;” it’s being practiced in Fresno; Los Angeles; Birmingham, Alabama; and other cities

“Disengagement is not de-policing,” clarified the Department of Police Accountability’s policy director, Janette Caywood. “De-policing is when, due to low morale or whatever, officers don’t do their job. This is not that situation.” 

Instead, she called it a de-escalation tactic officers can use to assess a situation like a mental health crisis, when it may be “safer to walk away and re-engage at a safer time if there’s no threat to the public.” 

This policy, Caywood said, “will save lives,” and she urged the police union to avoid letting it languish in the meet-and-confer process, as many policies do.  

Closed-session secrets revealed 

In what appears to be a new era of transparency at the police commission, something unheard of happened at an October meeting: The hopeful few (like myself) still watchingSFGovTV while the commission went into its “closed session” — when commissioners have private talks with the police union negotiators or hear discipline cases — got to hear some juicy information when commissioners returned from their private conversation. 

Commissioners Carter-Oberstone and Kevin Benedicto moved to disclose a single change suggested by the police union — and accepted by the commission — on the revised use-of-force policy. The wording change addressed an officer’s duty to intercede: The prior draft required an officer to intercede when a fellow officer is engaged in “unconstitutional or illegal conduct.” They are now required to do so when a colleague engages in “excessive use of force.” Only commissioner Larry Yee voted against the disclosure. 

Okay, maybe “juicy” is an exaggeration, but the small disclosure was a refreshing shift from the norm. Benedicto, on Wednesday, suggested it was “one of the first times” that had ever happened. 

Still some secrets, though

Commissioner Carter-Oberstone had another question for the command staff in attendance at another recent commission meeting. An SFPD policy purportedly adopted in July, he said, was still not posted to the department’s website, months after its passage. Why not? 

Ironically, the policy in question, SFPD’s General Order 3.01 on “Written Directives,” outlines a more transparent and standardized process for creating and approving SFPD policies, manuals, memoranda of understanding, and the like. It ensures policies are reviewed regularly for updates, recommendations are tracked, and public input is considered — draft policies are required to be publicly posted for at least 30 days before adoption. 

After some questioning of the SFPD’s Catherine McGuire from the Strategic Management Bureau, it became clear that the SFPD was still working out some elements of rolling out the policy. A working out that commissioners had not been informed of. 

McGuire called it “building the ship as we drive it.” 

Carter-Oberstone was unconvinced, and called the lapse “just not appropriate.” 

“If the department had raised its hand and said that, I don’t think anybody on this commission would have had a problem setting up a delay of implementation,” he said. “But we cannot have situations where we have, after the fact, the department just granting itself — without notice to the public, without real notice to this commission — an extension of time.” 

McGuire, who is likely used to being grilled by commissioners, promised action. The new policy is now live on the SFPD’s website.

High-paid underling set to serve nonexistent boss

The Department of Police Accountability hired a generously paid chief of staff, not for itself, but for the new Sheriff’s Department of accountability — long before any staff is expected to exist. 

This is odd, for several reasons: An Inspector General for the nascent unit has not yet been hired, department heads tend to hire their own chiefs of staff, and the chief of staff is slated to far outearn his future boss. 

This news likely comes as a surprise to many on the civilian sheriff’s oversight board, which only just held its first meeting in August, after Marshall Khine had already received a conditional offer for the position. Khine, the former chief assistant district attorney under former DA Chesa Boudin, is to earn nearly $300,000, far more than the Inspector Genera, his future boss, is likely to earn. 

The oversight board is still months away from hiring an Inspector General to investigate claims of misconduct at the Sheriff’s Department. 

Public records posted to the sheriff oversight board’s website show messages exchanged between the Mayor’s Office and the Department of Police Accountability for funds allocated for the new department to be transferred to the DPA. These messages also came after DPA head Paul Henderson had already offered Khine the position. 

Stay tuned; this subject is scheduled to be discussed at the sheriff’s oversight board meeting on Friday. 

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REPORTER. Eleni is our reporter focused on policing in San Francisco. She first moved to the city on a whim nearly 10 years ago, and the Mission has become her home. Follow her on Twitter @miss_elenius.

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  1. “and the SFPD wants nearly unfettered, realtime access to all that the DA investigation uncovers. ” … so they can get their story straight in hopes they don’t (further) entangle themselves in their own web of lies. (shrugs, who wouldn’t see right through that)