San Francisco’s Police Commission opened the door to a possible legal battle with the police union late Wednesday night when it voted to expand the use-of-force policy without sending the changes into labor negotiations.
The commission unanimously approved a bulletin to explicitly bar officers from kneeling on a person’s neck following the Minneapolis police killing of George Floyd. The bulletin also advises officers against forcing people to sit or lay on the ground.
The vote came after the commission ordered Chief Bill Scott not to send the changes into negotiations with the San Francisco Police Officers Association, a protracted “meet-and-confer” process that has been criticized for diluting policies.
When the Police Commission amended the use-of-force policy to ban shooting at moving vehicles and using the carotid restraint in late 2016, the union sued, arguing that The City had an obligation to negotiate over changes to working conditions.
The commission, and the Department of Human Resources, had halted the meet-and-confer process after declaring an impasse with the union.
“They sued us and they lost,” recalled Commissioner Petra DeJesus, who was serving on the panel at the time.
A San Francisco Superior Court judge, Newton Lam, ruled in early 2017 that the Police Commission did not have to negotiate with the SFPOA over use-of-force policies. The union later appealed the decision but did not succeed.
The commission unanimously decided to bypass the negotiations despite guidance from LaWanna Preston, an attorney for the San Francisco Police Department, that the bulletin triggered the meet-and-confer process, according to Scott.
“If there is a problem then they will sue us like last time,” Commissioner Cindy Elias said.
“The ultimate result sometimes is it needs to be litigated,” Elias later added. “The city attorney needs to defend us when we feel that it’s a policy decision, it’s not subject to meet-and-confer, and we have to take that stand and allow the litigation process to take place and not be scared of it.”
“We are ready to go to trial,” said Commissioner John Hamasaki. “That’s our role as commissioners, we need to be ready to pull the trigger even when other parties that are involved are not motivated in the same way perhaps.”
While the commission voted 5-0 to approve the bulletin, it’s unclear where it stands today.
Human Resources has the authority under the City Charter to determine whether a policy change triggers the meet-and-confer process, according to the City Attorney’s Office.
The department did not immediately respond to a request for comment.
Tony Montoya, president of the SFPOA, did not respond when asked whether the union would file suit.
Scott moved forward with the bulletin after the San Francisco Examiner first reported on a video that appeared to show an SFPD officer using a knee-to-neck restraint on a 19-year-old man in Hunters Point.
While body camera footage later showed that the knee restraint was only applied for a matter of seconds, the cellphone video drew comparisons to Minneapolis officer Derek Chauvin kneeling on Floyd.
The bulletin clarifies that officers are not allowed to apply pressure to the head, neck or throat using a knee or any other body part under the use-of-force policy from 2016, which barred the use of chokeholds but did not specifically address the knee-to-neck restraint.
“That was what we saw happen in Minneapolis,” Scott said. “This is a change that was silent in our policy that we believe will make a clear bright line to this issue.”
Officers can, however, make contact with the neck, head or throat if a person is a danger to themselves or another person. But that contact is limited to certain conditions, including that an officer stop doing it “as soon as it is safe to do so” and document the use of force.
The bulletin also advises officers against forcing a person to sit or lay on the ground except when a person is a threat to themselves or others and as a “last resort.” The officer should then immediately take the person off the ground and document the incident.
Police have, for years, understood that the prone position can restrict the airway and lead to death, according to civil rights attorney John Burris.
“Everybody knows about shooting but there are other ways that police kill too,” Burris told the Examiner.