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Details revealed of DA investigations into police shootings

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A memorandum of understanding has been created detailing the authority a District Attorney’s Office investigative unit would have. (Ekevara Kitpowsong/2016 Special to S.F. Examiner)
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When a San Francisco police officer shot Sean Moore on the steps of his Oceanview home Jan. 16, the investigation into the police shooting was headed by fellow officers instead of an outside agency.

But that’s not supposed to be the case. Last summer, The City funded a $1.9 million District Attorney’s Office Independent Investigations Bureau meant to conduct such investigations and eliminate potential conflicts of interest when it comes to police shooting investigations.

This week, the San Francisco Examiner obtained details of the draft memorandum of understanding showing how the new unit will operate. Until now, no concrete details of how the bureau will work have been made public.

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While District Attorney George Gascon has hired much of what will amount to a 14-person unit, the two agencies remain caught up in negotiations with no final agreement yet signed.

“We eagerly await the completion of these negotiations,” said Max Szabo, a spokesperson with the District Attorney’s Office. “We need to sign this [memorandum of understanding] to alter a dynamic which currently hinders public trust in these investigations.”

The Police Department said only that the negotiations are ongoing.

Memorandum of understanding

The document begins with the purpose of the two-year MOU: “When peace officers use deadly force, the public has a right to expect that a thorough and neutral examination will be conducted into these incidents and that all parties will be held legally accountable for their actions.”

The bureau, continues the draft, will lead the investigation in all in-custody deaths, police involved shootings that result in death or serious injury, and all cases of excessive force that result in serious injury.

Administrative investigations into officers will still be conducted by the Police Department.

In many ways, the operation will look like the San Francisco Police Department’s homicide unit’s shooting investigations.

Police now conduct the criminal and administrative investigations, leading the inquiry at the scene and the subsequent interviews, evidence collection and follow up. DA investigators and Department of Police Accountability personal are all on hand as well, but play a secondary role.

But under the new approach, the bureau — which will consist of six attorneys, six investigators and two paralegals — will be called to the scene of fatal shootings or serious injuries and head up the investigation from the start.

At the scene, local law enforcement personnel are expected to give the DA inspectors unfettered access and command on the ground. DA investigators should either coordinate or be present during any field interview, all of which should be separated from one another.

The investigators will also conduct a conflict of interest review to make sure any of the officers on the scene working are not linked to those under investigation.

Interviews

After the scene has been examined and any initial investigation conducted, the investigators will meet with the immediate family of the dead or injured person; that initial contact should be continued until the completion of the investigation.

The interviews of the officers, which must be voluntary, will then be conducted along with their legal representative. The interview will not include Internal Affairs investigators, who can compel an officer to speak.

The investigators will ultimately give prosecutors their charging recommendation, who will decide whether there’s enough evidence to bring criminal charges. That’s a role the District Attorney’s Office currently holds.

DA investigators have always been on scene during such investigations, but some activists worry that their inclusion may have at times been sidelined.

For instance, when Amilcar Perez Lopez was shot by police in 2015, the on-call DA investigator was notified after the body had been removed from the scene by the Medical Examiner’s Office. Since then, a new automatic notification system has been implemented, but that hasn’t stopped activists from pointing to this case as an example of possible police misconduct around such investigations.

Critiques of the DA

While the bureau may help rebuild trust with the community, as it is intended, their investigations may result in the same outcomes as those led by police, which in turn could disappoint some in the public.

As it stands, the DA has the final say over when and if officers are charged criminally in shootings. Thus far, Gascon — who was San Francisco’s police chief before becoming district attorney — has yet to charge one officer, and activists have made hay of that fact more than once in protests outside of the Hall of Justice.

Their protests have been specifically aimed at the lack of a charging decision in the cases of Luis Gongora, Jessica Williams, Mario Woods and Perez Lopez, all of whom were killed by police.

The DA’s Office has said those cases are taking longer since the new bureau is taking a second look at them, as they are all open cases. In the end, many cases may not be chargeable since police officers have a different standard when it comes when they can use force.

POA issues

Although the MOU has not been signed by the DA’s office or Police Department, the San Francisco Police Officers Association has already come out swinging against the effort.

In a letter to The City’s Human Resources Department earlier this year, the union wrote that any such agreement will impact their members. The POA has already said it wants to meet and confer with The City over some of the MOU’s details, as was the case with the new use-of-force policy.

In the meantime, police will continue to lead the investigations into their own.

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