San Francisco District Attorney George Gascon (Jessica Christian/ 2017 S.F. Examiner)

Contract negotiations hamper Gascon’s $2M unit to investigate police shootings

A dispute over a labor agreement that would hand over control of investigations into police shootings and use of force to District Attorney George Gascon continues two years after he launched a new bureau to investigate the incidents, according to a city audit.

The pending memorandum of understanding between the San Francisco Police Department and the District Attorney’s Office “will officially redefine which investigative responsibilities belong” to the two departments, but it has been caught up in labor negotiations, known as meet-and-confer, with the San Francisco Police Officers Association.

The City Controller’s audit, released Nov. 16, recommended The City finalize the agreement to improve investigations of police misconduct by the District Attorney’s Independent Investigations Bureau, or IIB, which Gascon launched in December 2016.

“We reached agreement with the SFPD over a year ago, so we remain eager for the police union to sign off on these important changes,” District Attorney spokesperson Max Szabo said.

The audit said that both departments “are optimistic that current inefficiencies and pain points will be mitigated by the new MOU” and that “The City should support ensuring its finalization as soon as possible.”

Police Department spokesperson Sgt. Michael Andraychak said that “there are ongoing discussions between all parties.”

The SFPOA did not respond to a request for comment.

In the audit, the District Attorney’s Office notes that it believes “prosecutable excessive force cases may be under-reported” and that is why in the proposed MOU there is a “provision requiring notification and call out to IIB whenever an allegation of excessive force including hospitalization occurs.”

The audit provided insight into the experience of four bureau employees who left the job. They said in exit interviews that one of the reasons they left “was that they were so frustrated by the resistance SFPD rank and file members displayed to ordinary investigative requests, like document production and interviews, that they despaired that officer involved shootings could be effectively investigated in San Francisco.”

The bureau investigates five types of cases, including police shootings, in-custody deaths and alleged uses of excessive force, to decide whether to file criminal charges in court.

In fiscal year 2016-2017, the bureau had five staff members and resolved one case. In the subsequent fiscal year, staff increased to 12 and 22 cases were resolved. “While these numbers may seem to suggest a correlation between staffing levels and case resolution rates, a two-year history is too short to draw such a conclusion,” the audit said.

The bureau currently has 13 staff members, who receive a total of $2.4 million in salary and fringe benefits.

The bureau’s work will also focus on wrongful convictions and recently posted online a form people could use to request the bureau review these cases. “Public outreach for the program should start in the New Year,” the audit said.

That’s in addition to the bureau’s proactive review, or “lookback,” of cases involving officers who are later found guilty of misconduct. “IIB still has several thousand lookback cases to review,” the audit said. “This portion of IIB original mandate has not effectively begun because of the emphasis in the first year on clearing the backlog” of officer-involved shootings and in custody death incidents.

The audit was requested earlier this year by Board of Supervisors President Malia Cohen to determine the effectiveness of the bureau costing more than $2 million in salaries and fringe benefits. She had threatened to cut funding to the unit in June after expressing frustration that the unit’s work didn’t result in officers being charged. Cohen was traveling and unavailable for comment.

Gascon has defended his decisions this year not to prosecute officers who fatally shot Mario Woods and Luis Gongora Pat by arguing there wasn’t enough evidence to prove officers acted unreasonably in defense of themselves and others. State law allows officers to use force against a suspect when it is deemed reasonable.

The filing of criminal charges against police for fatal shootings “is a very rare event in the United States,” the audit said. There were 1,147 officer involved deaths in the United States in 2017, and only 13 resulted in charges filed against the involved officer, the audit said, citing data from Mapping Police Violence.

There have been 19 officer-involved deaths in San Francisco between 2013 and 2017 with no charges filed against the officers.

The audit said the charging frequency may increase with police reforms spurred on by advocates and then-President Barack Obama’s 2015 Task Force on 21st Century Policing recommendations.

The audit said that “overall, we found that there is not yet a single, accepted best practice for investigative procedure in these cases” but that more “experimentation across the country” could help determine the best models to use.

The IIB’s performance and an evaluation “would be more illuminating after the updated MOU with SFPD is enacted and enough time has passed to evaluate trends on cases that have been investigated and closed since the unit’s formation,” the audit said.

With Gascon having announced he will not run for re-election, the fate of the unit will be up to whoever is elected as District Attorney in November 2019.

“A commitment to independence and transparency is a quality he believes to be paramount in San Francisco’s next top prosecutor,” Szabo said. “And absent the Attorney General taking the lead on all officer-involved shootings in California, which is highly unlikely due to the sheer size of the state, the IIB is the only plausible way to achieve these objectives.”


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