SAN JOSE — Four years after it was recommended by the city’s civilian police auditor, the San Jose Police Department is expected to begin classifying instances where officers point their guns at people as a use of force.
In a memo to the City Council that was formally reviewed Tuesday, police Chief Anthony Mata wrote that SJPD expects to update its duty manual to include the change by the end of the month. In doing so, San Jose joins an array of big cities — including Oakland, San Francisco, San Diego, Los Angeles, Seattle, Denver, Washington, D.C. and New Orleans — in the practice.
The memo accompanied a 2022 annual report from the Office of the Independent Auditor that was originally scheduled go before the council June 5, before it was deferred to a later date. The postponement roughly coincided with an embarrassing episode two days earlier in which former auditor Shivaun Nurre got into a loud public argument with police officers working at the San Jose Greek Festival, during which Nurre later admitted to being intoxicated.
Nurre notified the city of her intent to retire that same week. Retired Santa Clara County Assistant District Attorney Karyn Sinunu-Towery, who was appointed to serve as interim auditor while the city conducts a search for a permanent successor, presented the annual report Tuesday.
According to Mata’s memo, officers have already been documenting when they point their firearms at people during enforcement stops and other encounters. But to this point, those occurrences have not been factored when the department tallies and analyzes use of force incidents, even though SJPD voiced its support for changing that after the IPA’s office first made the recommendation in 2019.
In its report, the office cited research showing that requiring officers to report gun pointing as a use of force is “associated with systematically reducing the rate of officer-involved shooting fatalities.” The same research, the report states, also addressed a law-enforcement concern that officers could be endangered if such a policy causes them to hesitate to draw their firearms in dangerous situations: “Implementing this policy has no effect on the rate of gun deaths of police officers.”
The IPA’s office also supported its recommendation by arguing the lingering effects on someone who has a gun pointed at them: “Community members have indicated that experiencing this kind of force can be traumatic and intense; the memory of the encounter can resonate for years. It is frightening and suggests the possible imminent use of deadly force.”
While the police department has already had to track gun-pointing incidents to comply with state regulations, the policy change is more than checking a new box on report forms. Documenting the act as a use of force means an officer could be subject to more stringent evaluation to ensure it was performed in accordance with policy, which includes but is not limited to a review of body-camera footage and an internal-affairs investigation.
The change will almost certainly result in an increase, at least in the short term, of overall use of force incidents recorded by the department. When the IPA’s office first made its recommendation in 2019, it cited how in San Francisco, the policy change revealed that 41% of first-quarter force reports that year involved officers pointing their guns at people.
Under the soon-to-be-adopted policy for San Jose, an officer merely drawing their gun would not constitute a documentable act, so long that the weapon stays at “low ready” position. The office defines that as being held at a 45-degree angle or less, and not directly pointing at anyone.
In general, the 2022 IPA report states that the office received 358 police conduct complaints from the public — the highest number in a decade — and that a third of the roughly 1,100 sworn officers in the department were named in at least one complaint.
Of those complaints, 18% had at least one sustained finding, meaning that misconduct was substantiated, which was at least a five-year high. At Tuesday’s council meeting, Assistant Chief Paul Joseph said 2022 “was a year of unprecedented levels of misconduct at the department, something that we’re ashamed of, and something that Chief Mata has taken a hard stand on.”
Mata also notes in his memo that the department is working to implement several other IPA-recommended reforms. They include more robustly reporting when an officer perceives that someone is armed, confirms whether that person is armed, and the level of threat posed by the weapon.
The department also plans to update its duty manual to make clear that when officers conduct an intensive search of someone, that the officers have already committed to making a “full custodial arrest” — which in most instances means someone being taken to jail. This scenario is distinct from more passive pat-down searches during a detention that will end with a citation or release. The policy change is based on Fourth Amendment protections to prevent officers from being noncommittal about someone’s arrest status, conducting an intensive search and then using the results of that search to justify a subsequent arrest.
However, Mata wrote in his memo that they believe there are several exceptions, including when people consent to a search, if someone is on probation or parole, or when there is “reasonable suspicion that the detained person is armed and dangerous.”
The department also will adopt a reform recommendation to provide uniform guidance for when officers order someone out of their vehicle to sign a citation. Current policy defers to officers’ discretion based on their individual safety concerns, which has prompted questions about the equity — racial and otherwise — of the practice. That policy change is expected to be enacted in November.
The final reform stemming from the IPA report recommends equipping officers with devices that will provide a consistent benchmark for deciding if a vehicle’s window tinting violates state law requiring 70% of light to pass through the windshield and front side windows, and thus warrant a potential traffic stop. The adoption of this recommendation is pending a cost evaluation.
Source: www.mercurynews.com