Forty arrests, zero charges: S.F. police raid was a dud. But not on social media. 

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In the wee hours of March 19, police swept into the roiling drug scene at Market Street and Van Ness Avenue. Forty people out in the predawn chill on one of San Francisco’s gritty corners were arrested, and then filmed and paraded on social media by the police and Mayor Daniel Lurie.

It was, frankly, an ugly thing to see bandied about by elected officials: Arrestees sitting with folded legs and heads bent, the police looming over them, with red, white and blue flashing lights piercing the darkness. It harked to the images being broadcast out of Salvadoran prisons. 

On March 25, a top lieutenant at the San Francisco district attorney’s office told a Tenderloin community meeting how many of the people arrested in the March 19 “drug market crackdown” and subsequently splashed across the internet would be charged by her office: Zero.

Well, no city official put that on social media. If Mission Local’s Eleni Balakrishnan hadn’t been on the scene, you wouldn’t have heard about this at all. 

“We charged none of these people,” Assistant District Attorney Ana Gonzalez told the small crowd at the Tenderloin police station. “We had five people who, maybe it was close, but we had to go back and go to the police and be like, ‘Can you say more about these?’” 

The DA’s lead managing attorney spoke of the raid in terms that were harsh and unflattering,  but not unfounded. It felt a bit like Lorne Michaels critiquing a tedious sketch. To wit, Gonzalez said the DA and police department would huddle to determine “how to do it smarter” in the future.

This is a roundabout way of saying that a highly choreographed, publicized and costly law-enforcement operation that resulted in 40 arrests and zero charges filed was not done smartly.

It certainly wasn’t done efficiently. A coordinated SFPD/Sheriff’s Department operation did not net a single charge that a tough-on-crime DA, one ostensibly not seeking excuses to duck filing charges, saw fit to act on. 

Everyone was out of jail by the next day and, guess what? They didn’t all hop the Greyhound back to Sheboygan. Rather, residents of Fell Street between Van Ness Avenue and Franklin Street say that, in the immediate aftermath of the predawn raid, the crowds of drug users simply ambled 100 yards north and are now milling about their doorsteps. 

Ever thus: In 2021, Tenderloin residents told Mission Local that police efforts to crack down on dope-dealing in vacant lots instead pushed drug markets into residential areas. Last week, residents of alleys near the 16th and Mission BART Plaza said the same, adding that they are now afraid to leave their homes. 

“I’ve lived in this city since 1989, and I’m gobsmacked at how the police just do the same thing over and over again,” a Fell Street resident told us. So many bedraggled people had migrated to her sidewalk last week that she had to walk in the street.  

“It does seem like an awful lot of effort to move people two blocks.” 

So, that’s bad. But it may yet get worse for the city. Gonzalez told the crowd that, to file charges, she needs “to be able to articulate to the judge what crime that person committed.” To charge someone for a drug-related crime, police have to be able to state, specifically, that they saw Person A put a pipe in his pocket or Person B exchange contraband with Person C for money.

This is the standard that Gonzalez publicly stated was not met. Being a sad sack among a sea of sad sacks standing on a sad corner at a sad hour is not, in itself, a crime. Police cannot arrest everyone and then figure things out later. Rather, they must establish probable cause before making an arrest, and there is no such thing as group probable cause. 

“If you arrest enough people, or cite enough people without being able to establish probable cause, the next thing you know, there’ll be complaints,” Gonzales told the crowd. “And then cops will get in trouble, and then there’ll be a chilling effect.”

Cops noticed that she said this. 

“It sure sounds like the DA was saying that the cops just violated 40 people’s rights,” a veteran cop told us.

Lawyers noticed this, too. 

“It certainly stuck out that the DA wasn’t fully standing behind anything the police had done,” said George Fisher, a Stanford University law professor and former prosecutor. He said there is “too little information” to definitively know at this time whether the police violated the arrestees’ rights. But he says the situation remains troubling.

“Arresting that many people and the DA doesn’t feel that, with respect to any of them, there’s a case where you can even just bring charges, much less gain a conviction? We should not be living in a community where police can make that many baseless arrests.”

Did the police violate anyone’s rights? They say they did not. San Francisco police, the department tells us, establish probable cause before making an arrest — say it in your Billy Dee Williams voice — every time.  

Following the March 25 community meeting, the DA downplayed any talk about cops violating people’s rights. Prosecutors, the office reminded us, decline to file charges on police arrests all the time. 

Fair enough. But this was a situation in which a litany of arrests from the same place and same time were presented by police to the DA, who spurned them every time.  

Being unable to articulate to the judge what crime an individual committed sounds like a probable-cause issue. The DA’s lead managing attorney speaking publicly about police arresting or citing people without being able to establish probable cause sounds like a probable-cause issue. 

If the police, as they claim, established probable cause on every arrest, and went 0-for-40 with the DA, that’s problematic. And if they didn’t establish probable cause, then they violated people’s rights. It’s hard to suss out a possible third option here. 

“Drug dealing on our streets and in our communities has to be dealt with. You can’t deal with it by changing the law and avoiding the Constitution. You have to deal with it by making arrests of people seen dealing drugs,” says veteran defense attorney Stuart Hanlon. 

“The whole message [from the mayor on down] seems to be that we’re trying our best, but if we arrest people and no one gets charged, at least we caused a commotion,” he added. “That’s using the criminal justice system to make a political point.” 

Like it or not, people milling about at Market and Van Ness have rights. But the sympathies of San Francisco’s voting public are not with the alleged drug users congregating on street corners. Or, as Dirty Harry put it, “Well, I’m all broken up about that man’s rights.”

“The city residents were essentially saying ‘You tried, you’ll get ‘em next time.’ That troubles me, because it sounds like their very valid concerns about crime and keeping streets safe are feeding into a mob mentality in which you round people up and then you sort it out later,” says Margaret Russell, a law professor at Santa Clara University. 

“The mayor is quoted as saying this sends a message. Arrests with nothing to come of it? No, it doesn’t sound like you’ve done anything right.”   

To be fair, some charges could come. Of the 40 arrestees, 23 were cited and could be charged prior to their court dates. Of the 17 people booked into jail, the five mentioned by Gonzalez were referred to the police for further investigation, and 12 were not charged at all. 

But it’s hard to foresee any of these cases going anywhere. The charges are not the sort of thing to brag about in a press release: Drug paraphernalia possession, public intoxication, loitering with the intent to commit a drug-related crime. The public defender would all but dare prosecutors to take this to trial, especially after a high-ranking prosecutor publicly criticized the police operation that produced these arrests. 

This isn’t the only highly publicized police action that may be going nowhere. A late-February raid on Jefferson Square Park yielded 90-odd arrests. Unlike Market and Van Ness, police could use the violation of the park’s 10 p.m. curfew as probable cause to move in on the swarms of alleged drug users. 

But, while the posted curfew was 10 p.m., the Recreation and Parks Department’s own website listed the curfew as midnight. When Mission Local brought up the discrepancy to Rec and Parks on Feb. 27, we were informed that the posted time on the Rec and Parks website was in error. The website was corrected within an hour. 

The raid, meanwhile, was initiated at roughly 10:30 p.m. When asked if the city’s website listing the curfew as later than that could hamstring any cases, defense attorney Paul DeMeester replied curtly: “Of course.” 

If the curfew can’t be used as probable cause to move in on the arrestees, subsequent, more serious charges will be nullified. This is the classic “fruit of the poisonous tree” scenario anyone who’s ever watched any cop show is familiar with. “Make a bad stop,” DeMeester says, “and you’ve got nothing.” 

It is puzzling to see law enforcement struggle so mightily when the tactics here are the same ones we’ve used, unsuccessfully, to confront drug use and street chaos for generations. Booting people from block to block never worked before. Will it work now? 

That depends on your definition of success: A hell of a lot more people saw the images of zip-tied arrestees huddled in the dark — and heard the mayor’s get-tough praise of the operation — than have read subsequent coverage about the raid’s implosion. 

But if the police and the DA’s office are serious about “doing it smarter” next time, they don’t have far to go. The crowds are waiting a few blocks away from the March 19 raid, on Fell between Van Ness and Franklin. That is, until they’re moved somewhere else.