Blog note: this opinion piece references a grand jury report.
An argument could be made that an assault on the First Amendment led to drafting of the proposed amendment to the San Diego City Charter that will come before the San Diego City Council’s Public Safety and Liveable Neighborhoods Committee on September 18, 2019.
A growing number of local individuals and organizations are hoping the Council will move forward to place the charter amendment on the ballot in the near future, allowing city voters to decide whether to establish an independent citizen review commission to investigate complaints of misconduct by San Diego Police Department officers.
Presently, the City’s Community Review Board (CRB) on Police Practices relies on initial review and investigation of any complaints by the Internal Affairs (IA) Unit of the San Diego Police Department as the foundation of the CRB’s review.
Learning how this new initiative for independent police review evolved, given that citizen boards concerned with police practices have existed in San Diego since 1989, is an important step in understanding the content of the proposed charter amendment.
The First Amendment has always troubled Americans.
“Annoyed” might be a better word, for use of the First Amendment is the single most aggravating way that Americans alert everyone to societal or governmental errors and demand redress. Practitioners of free expression are often noisy, chaotic, relentless, and determined to bear condemnation by their fellow citizens or confrontation with police in order to make their point.
When public officials tire of demonstrations or protests, they send law enforcement to put an end to public displays of discontent. It is ironic that the very people sent to disperse demonstrators are the same people entrusted with protecting our exercise of First Amendment rights. The tension expressed as police deal with these opposing imperatives may have been at least partly responsible for energizing citizens concerning the need for independent civilian review of police conduct in San Diego.
Difficulties between police and the community go well beyond the exercise of free expression, of course.
Communities of color have often complained of police conduct that frays their relationship with law enforcement. Those complaints continue. But the coordinated effort that has led to dozens of community organizations supporting a charter amendment to establish independent review of complaints against police seems to have originated in a prolonged protest that took place in San Diego in “a traditional public forum,” a venue almost sacrosanct in First Amendment jurisprudence, a place deserving of maximum protection by those who engage in free expression.
Some Incidents That Gave Rise to Complaints Against Police
In early October 2011, more than 100 tents were pitched in San Diego’s Civic Center Plaza by people who felt America has lost its way. These people were concerned about growing income disparities in our nation that were not dispelled by individual hard work or near-full employment. Participants in the action wanted to call attention to the fact that everyday Americans were being forgotten as they struggled to meet financial obligations of food, rent, and other basic expenses — this, in the Land of Opportunity, the so-called “richest nation on earth.”
The encampment in the plaza followed the example of the “Occupy Wall Street” (OWS) protest that had started September 17, 2011, in Zucotti Park, in New York’s financial district of Wall Street. “We are the 99%,” was the OWS slogan, as they “occupied” the park to point up the massive gap of income and wealth separating everyday Americans from the very rich. The Occupy protest spread to other urban areas across the nation, including San Diego.
As one Occupy San Diego participant put it:
“We Americans are so consumer-oriented, trying to find personal worth in things, trying to find satisfaction in things. It makes people who are at the bottom feel even more that they don’t belong because they don’t have things. But even if you’re not at the bottom, it’s a grind out there and everybody is working too hard. Work in this country has gotten harder. You do more for less. The 40-hour work week is pretty much gone. Pensions are gone. If we’re talking about Occupy, it was like grabbing the back of someone’s shirt and saying, ‘Do you really want to go this way?'”
While Civic Center Plaza is a traditional public forum under First Amendment law, it is bordered by facilities for other functions: The Civic Theatre and City Hall, as well as ticketing windows, Golden Hall, a multi-story office building and a nearby restaurant.
When Occupy San Diego began to inhabit the plaza on October 9, 2011, participants set up tents, organized clean-up crews, served meals, manned information tables, and conducted other activities, operating somewhat like a little city. Some people attended the gathering only during the day, others stayed through the night and some stayed several days. The protest definitely added an unusual use to the plaza. People donated time and resources to keep the occupation going as a continuous demonstration that something was wrong in this country. Although the Occupy movement as a whole was criticized for having no particular resolution in mind, protesters seemed to believe that just making the problem known was a task worth the effort.
Several persons who had participated in Occupy San Diego recalled that San Diego Police Department (SDPD) officers responded aggressively to the encampment. Activists claimed police agitated and harassed participants. They said police used the encroachment ordinance — originally intended to prevent residents from leaving items like sofas or other items on sidewalks — as a pretext to arrest Occupy participants.
Said one participant, “It got to the point that if you put down your backpack, they would arrest you for encroachment.” Many Occupy participants also recalled the arrest of several women who had been sleeping in a tent. They were reportedly arrested and held in a nearby bus, where they were left for hours with no water, no bathroom breaks, and no ventilation. A few were forced to relieve themselves in their bus seats. There were intruders whom Occupy participants felt were purposely sent by unknown authorities to create confrontations and divisions amidst an otherwise orderly gathering.
In the early evening of January 7, 2012, Stephanie Jennings, a woman who had been part of a choir on the plaza, singing protest lyrics to popular tunes, walked up to a group of activists who were entering the plaza peacefully. She noticed that police were setting up yellow tape to create a separation between the Occupy site and theatre-goers. She thought she should get back to the Occupy side of the tape before the barrier was complete. As she headed in that direction, she was pushed from behind. She responded with an irritated “Excuse me!” When she turned her head, she saw a police officer, who immediately shoved her from behind so hard that she fell forward, her neck snapping backward. She would have hit the ground if she had not caught herself. Angrily, she yelled at him, “Fascist!”
“Not my best moment,” Jennings later admitted, but the penalty for that appellation was that the officer called to his colleagues to “Arrest that woman! Arrest that woman!” Quickly, she was besieged by two or three officers who grabbed her and wrestled her roughly, restraining her hands with plastic ties so tight she later had bruises. Charges against her included assaulting an officer and resisting arrest. Her phone was rescued by another participant who later offered testimony in support of Jennings’ contention that she had not assaulted anyone or resisted arrest.
In custody, she suffered a severe migraine and vomited. She explained she was an organ transplant recipient and needed to take her medication at specific intervals. Her pleas were ignored. She was released several hours later, and charges were ultimately dropped, as they were for the vast majority of Occupy participants whom police had ticketed or arrested.
Jennings recalled police presence in response to the Occupy San Diego encampment as “out of this world.” “It was like a war zone,” she said.
“They had rows and rows of cops to scare the hell out of us. They would march in riot gear, stepping closer and closer toward the demonstrators. When all the other daytime activists would leave, that is when they would come in at night swinging batons, beating people, tearing down the tents, grabbing people and arresting them. This happened a few times when they came in full bore.”
Even when the tents were gone, said Jennings, sometime in late 2011, there was an incident of young people in the plaza linking arms and sitting in a circle when police threatened them with arrest if they did not leave. She recalls that someone shouted something at police. Immediately, one of the officers got hold of a youth and dragged him out of the circle. Another officer got out his pepper spray and deliberately sprayed each person in the eyes.
These were among the incidents alleged that eventually led to complaints against police by Occupy San Diego participants. A few incidents even led to lawsuits, which, depending on the facts of a case, can result in expensive settlements from City coffers.
What Happened to Complaints About Police Conduct?
At the time Occupy San Diego participants lodged their complaints against police, between late 2011 through about April 2012, the CRB was only authorized to review Category 1 complaints, not Category 2 complaints.
- Category 1 complaints contain allegations of police conduct that include the use of force, arrest, slurs, discrimination, or criminal conduct.
- Category 2 involves complaints about courtesy, service and procedure.
Several Occupy San Diego complainants eventually discovered that their complaints, even those containing Category 1 allegations, never were seen by the CRB. And even if a complaint had been filed directly with the CRB, it first had to be sent to SDPD’s IA Unit to categorize and investigate. Complainants and witnesses were interviewed by uniformed, armed officers, either their homes or they were asked to come to police offices.
Some of the complainants and witnesses who submitted to interviews said they were warned at the outset of the interview that they could be prosecuted for perjury if anything they said was found to be false. Many Occupy participants were said to have refused to file complaints about police conduct for fear of retribution. Of complaints reviewed by the CRB arising from Occupy San Diego, none is known to have resulted in a negative finding concerning police conduct.
When complainants attended the CRB meetings to bring to the board’s attention their complaints, they found uniformed officers sitting with the board, being asked to comment and consult on matters before the board. The Deputy City Attorney who attended meetings had the conflicting job of representing the SDPD and providing legal advice to the CRB.
These experiences were the beginnings of the idea for a measure that would allow the CRB to operate with greater independence from police.
Problems with the Current CRB?
In November 2016, voters passed by overwhelming support Measure G, which was then adopted by the City Council in December 2016. According to those involved in drafting the proposed charter amendment, Measure G was intended to head off an initiative that was then in the works, namely, a measure for an independent citizens review board. However, Measure G did make some changes to the way the existing board operated.
First, Measure G changed the name of the board from Citizens Review Board on Police Procedures to the Community Review Board on Police Practices. This reflected a new emphasis on review of individual police conduct and department practices by board members from the community. It also gave voice to the notion that anyone, citizen or not, could submit a complaint to the commission. The Citizens Review Board on Police Procedures had functioned solely under the Mayor’s operational oversight. But Measure G expanded oversight authority over the board to the Mayor and City Council.
Measure G also allowed the City Council to codify, and the Mayor to approve, the CRB’s authority to review all police shootings and in-custody deaths. These and other Category 1 cases are now reviewed by the CRB. Once Measure G was codified as an ordinance, the CRB was authorized to conduct “audit reviews” of the less serious Category 2 complaints. On the CRB website, audit reviews are described as authorizing board members to “look at those,” as compared with a full review of Category 1 cases.
But Measure G still requires the SDPD to categorize all cases before they are reviewed or audited by the CRB. This practice was criticized in the San Diego County Grand Jury’s Report filed May 21, 2018, concerning the CRB:
“The CRB does not participate in the categorization of complaints submitted to the SDPD. Consequently, the CRB cannot be certain that it sees all complaints that may be relevant to its advisory responsibilities, and cannot determine whether any have been misclassified. In addition, the SDPD IA uses a tracking system to control the processing of all complaints. The CRB does not have access to this tracking system. To ensure the CRB maintains control of their review process, it needs access to the SDPD IA tracking system.”
Even in Category 1 cases subject to mandatory CRB review, the SDPD IA does the investigation, writes the report and provides the supporting evidence to the CRB. These reports can be “from 10-130 pages,” according Lisa Sorce, who appears on the explanatory video on the CRB website. She describes the CRB review, which is done by a team chosen from among the board members, as follows:
“…you listen to every single interview that was done. You really do need to listen to them, because the IA report does not include everything in the summary. And you can hear things like the tone in someone’s voice, and inflection, and you can tell when they are really upset about something, or whether something is not as important. You look at the photos, any video evidence, and all the other evidence that comes with the case — medical records, jail intake forms, property, evidence.
It depends on the case, but it can be anywhere from 10-30 hours that a team will spend on reviewing the case. Most cases you will review about 5-7 hours before you ever prepare your summary to the board. And then, when preparing your summary, you’re going back and forth with all the information, trying to come to a conclusion you’re comfortable with in presenting to the board. So it is really a very thorough process.”
CRB members are not professional investigators, says Sorce, “so we have not been trained to do investigations.”
“So that is not our role. Our role is simply oversight. If in the course of reviewing an investigation [report], we find something wrong, we can absolutely ask for it. We do not talk to officers, complainants, witnesses. We do not visit the site where the incident occurred. We are encouraged to stay objective and just look at all the information.”
Once the CRB completes its review, its members have limited choices:
(1) They can agree with Internal Affairs findings.
(2) They can agree with IA findings, but add a comment.
(3) They can disagree and add a comment.
The discussions leading to these findings take place in closed session due to the confidential nature of the information to be discussed. The San Diego County Grand Jury Report of May 21, 2018, noted that “Members of the SDPD routinely attend CRB closed sessions to answer questions about the investigations.”
Both the Grand Jury Report and proponents of the new charter amendment criticize allowing police officers to be present during the entirety of CRB closed sessions. “The presence of SDPD officers during closed CRB deliberations compromises the CRB’s independence and has intimidated some of its members,” the Grand Jury Report states. “The Grand Jury finds that the CRB should have the authority to include or exclude persons other than members of the CRB during closed sessions. Otherwise, the CRB’s appearance of being an unbiased and fair citizen review board will continue to be questioned.”
Essential Changes Contained in the Proposed Charter Amendment
The charter amendment that will be presented to the City Council’s Public Safety and Livable Neighborhoods Committee on September 18, 2019, is designed to provide a fully independent citizen review commission. In the context of this amendment, the word “independent” has been given full expression.
The charter amendment provides the commission with full power to independently investigate claims of police misconduct.
Critics have said this will swamp the commission with an impossible workload for its volunteer board members, and even overload the capacity of the one or two investigators it might be authorized hire or employ as independent contractors.
But proponents say the commission has the duty to investigate all police shootings and all deaths occurring as a result of police interaction. It is estimated these cases should number no more than about 10 per year. With respect to all other cases, the commission would have discretion about whether to conduct a full investigation. But giving the commission the power to investigate any complaint, say proponents, assures the community that all complaints will be independently evaluated, rather than being screened and categorized first by the police department.
The cost of employing both independent investigators and an independent attorney are estimated by opponents to be prohibitive, somewhere in the neighborhood of $11 million per year. But proponents cite the estimate done by the City’s Independent Budget Analyst, an annual amount “most likely” to be about $1.1 million, which is close to the estimate given by charter amendment proponents.
Under the amendment, the new commission would be formed initially by existing members of the CRB, who would serve until the City Council followed up with an ordinance governing the operation and procedures of the new entity. The commission would also have the authority to review and evaluate the policies and procedures of the SDPD.
Andrea St. Julian, an appellate lawyer who incorporated the concerns of many community sources in drafting the charter amendment, noted –
“When we talked to the community, they said oftentimes it is not a particular officer’s conduct that is at issue, but a policy or procedure the police department has enacted and implemented. So the commission can review these policies and procedures and make recommendations.
If you have a commission that is really able to gather particular information about something that is widely affecting a community, the community can get behind it and influence change through a citizens’ commission. For that reason, we have given the new commission the ability to appoint staff and independent contractors along with policy analysts to support commission work.”
An example, said St. Julian, is use of the so-called “chokehold,” or carotid hold. The commission could hire an expert on the carotid hold and have that expert analyze alternatives or review existing policies governing its use. “So there will be an expert basis for either carrying forward the community’s concern about the use of this carotid hold, or answering that concern another way.”
“One of the criticisms of proposed commission,” said St. Julian, “is that community members who serve on the board don’t have the expertise to comment on what the police do. Supposedly that is why the police department sits in on CRB meetings now. But under the charter amendment, the new commission will have expertise of its own.”
Complaints still will be able to be submitted either to the SDPD or directly to the commission, St. Julian explained. But if they are submitted to the SDPD, they will have to be sent within a short time to the commission. In addition, the commission would have access to the complaint tracking system used by SDPD.
The commission will not have authority to demand changes in SDPD policies, procedures or discipline. But the commission can make findings and determinations, report them to the SDPD, the Mayor and the City Council, and if allowed by law, publish to the community summary information about the types of cases and issues they handle. Officers and complainants, as well as other sensitive information prohibited by law from publication, would not be identified in public information.
Among more than 40 organizations supporting the charter amendment are several local Democratic Clubs; Clairemont Town Council; the Council on American-Islamic Relations; the Earl B. Gilliam Bar Association; the Center for Policy Initiatives; First Unitarian Universalist; Black Men and Women United, San Diego; and the League of Women Voters, San Diego.
Councilmember Monica Montgomery, Jack Schaeffer of the San Diego Police Officers’ Association, and the Mid-City Community Action Network (which presented a video of City Heights youth in support of independent police review) did not respond to requests for interviews from this reporter.
September 17, 2019
OB Rag (Ocean Beach)
By Joni Halpern
