Making the Case for a New Model of Police Oversight in San Jose

A Historic Window of Opportunity is Open to Improve Police and Community Relations in San Jose
Making the Case for a New Model of Police Oversight in San Jose
By Raj Jayadev

The November 18, 2008 public hearing regarding the suspiciously high and racially disproportionate drunk in public arrest rate was revealing, heart-breaking and inspiring. Anytime City Hall becomes converted into a place for everyday people to bear witness, to pull out their crumpled hand written notes that described stories that were before only shared over kitchen tables, to give testimonials that show how distant policy can be cut through by the deeply personal, San Jose becomes a more considered and inclusive place.

But above and beyond, that evening was a signal -- an indication that San Jose has arrived at a historic moment that carries both the urgent need to reform our mechanisms for police oversight and the necessary public will to enact this change.

The hundreds that came to City Hall to discuss the staggering numbers revealed through the Mercury News investigation - 4,667 arrests in 2007 (significantly more than any other California city) with 57% of those arrests being Latino (significantly disproportional to their general population) -- was indeed a call to action for the city leadership. And while important immediate strategies were proposed to address the misuse of drunk in public charges -- sobering stations, mandatory chemical tests, alternatives to prosecution -- the deeper issue, the one that could bring us out of the circular conversations of community accusations of police excesses, and department defenses of its practices, was not discussed.

The problem with the drunk in public arrest rates are not inherent to the charge, but rather speaks to San Jose's lack of sufficient law enforcement oversight, thus leaving the city susceptible to police misconduct without any independent mechanism for accountability. While public hearings and stakeholder taskforce groups help inform the discussion, we are often left with piece-meal strategies that may momentarily satisfy the public's demands, yet fail to move us forward to a healthier relationship between police and community.

As San Jose attempts to develop solution-based policies to respond to the drunk in public numbers, we once again face the danger of confusing the symptom for the illness.

Racially Disproportionate Arrests Found in Other Charges

For those who argue that our current battle over police accountability is about the application of a specific charge (647(f)) rather than merely the tip of the iceberg that pokes above dark waters, think again. In response to a public records request lodged two weeks ago by Silicon Valley De-Bug, the California Department of Justice released information that once again showed an over-representation of Latinos charged with 148's (resisting and obstructing arrest). Of the 441 arrests in 2007, over 54% of those were Latinos. In the period of January to June of 2008, Latinos accounted for 58% of the arrests, almost double their percentage of the general population, and Blacks represented 17.7%, nearly nine times their numbers in the general population. Indeed, racially disproportionate arrests are not only isolated to drunk in public charges, and may be more the "norm" than the exception.

Like the drunk in public arrests, 148 charges also allow for tremendous evidentiary discretion to the arresting officer, leaving the same vulnerability of misuse. Excessive charging on 148's are particularly worrisome because they can be used on civilians who are trying to exercise their legally protected right of monitoring the police. In this era, that more likely means a concerned good Samaritan with a cell-phone camera trying to do their civic duty, rather than an activist doing a "cop watch."

As a city trying to improve the relationship between the police department and the public, we need mechanisms that increase trust and confidence by the public and provides a space for concerns to be aired and addressed. There is a vested interest here for the police as well, as unfounded claims against their practice could not generate the momentum they can in the absence of an oversight system. If San Jose had such a law enforcement oversight model that was effective, trusted and resourced, we would not have to repeatedly find ourselves in these crisis moments.

Where there is smoke, there is fire, and when it comes to police issues, San Jose uses Febreze, when we should use a fire extinguisher. Our history of civic conversations around police issues has made this dynamic painfully clear.

San Jose's History of Police Issues Shows Need of New Model

In the early 1990's, in a climate of mistrust in police agencies, San Jose civilians pushed for a civilian review board. After negotiations, the Independent Police Auditor (IPA) was formed to work in conjunction with the San Jose Police Department Internal Affairs (IA). At the time, an IPA was an innovative model, an experiment at the birth of the civilian oversight movement that was occurring across the country. While this model relied heavily upon Internal Affairs, in fact relinquishing all investigatory power to IA, the added value was the auditing feature of the IPA, and ability to provide policy recommendations to City Council. Presumably, this model was intended to be the solution to the problem of community issues with the police department. Over time, the inability of the office to be that device became apparent.

By 2005, allegations of racial profiling and abuse by the San Jose Police Department became so prevalent that civil rights organizations such as the NAACP, the ACLU, and the ALA pushed for a Civil Grand Jury investigation. The fact that such a problem between the police and the public (in particular Black and Latino communities) could elevate to such an alarming level is, in itself, an admission of the inadequacies of the IPA model. The grand jury found that there were, "legitimate concerns regarding individual police excesses." Also acknowledging that all investigation of complaints was done by IA, the Grand Jury recommended that "the IPA's role and responsibilities should be expanded." In another finding, they also urged the city to explore if a civilian review board would be an appropriate response to solve the racial profiling problem. No lasting action was taken by the city leadership.

In 2007, Barbara Attard, the current IPA, proposed several policy recommendations to expand the offices powers that were consistent with the recommendations of the 2005 Grand Jury report.

The city manager responded by saying that such changes would mean a "fundamental paradigm shift in the City's current oversight model." The council followed suit by not only denying Attard's recommendations, but actually gutting the office even more in terms of resources and powers. The lesson there was a pre-cursor to an eventual removal of Attard in October of this year. San Jose City Council sent a message to the public through their decision to remove an IPA that was asking for improvements in the office, "Don't ask for more than what you have, 'cause if you do, we'll take what you've already got." Consequently, San Jose actually has less oversight now than it did just a few years ago.

But the message was not directed to Attard—she was merely responding to the mounting calls by the public to increase police oversight. The steady rise in the number of complaints—from 329 in 2003 to 547 in 2007—mandated policy improvements for police oversight.

Our current problem with drunk in public arrests is probably the clearest example of why the IPA model is an inadequate strategy to address the problem of police excesses. This is because the issue has already gone through the IPA problem-solving theory, and it still exists. In a 1994 report, the previous Independent Police Auditor, Teresa Guerrero-Daley, was also confronted with a number of complaints regarding unwarranted drunk in public arrests, what she called "attitude arrests." Her policy recommendation regarding this issue was to, "Provide chemical testing for drunk in public cases to verify if the person was in fact intoxicated." The proposal was not adopted by the City Council. On November 18, 2008 San Jose heard the same policy recommendation for the same problem that was already flagged fourteen years ago.

Why is Innovative San Jose Using an Old Technology?

So this is the awkward moment in history San Jose finds itself in. As the rest of the country is making historic strides forward in racial equality, San Jose, a minority-majority city, is retreating backwards, literally finding ourselves burdening with same problems we had in the previous millennium. And what is even more surprising is that our city, which prides itself its innovative and cutting edge technology, relies upon an outdated and proven lacking technology in terms of law enforcement oversight. Since its inception in 1993, cities across the country have adopted newer oversight models to address the needs of their changing landscapes. Along with independent civilian review boards, there are independent police auditors that are equipped with investigators and subpoena powers, hybrids of IPA's with civilian review, even special counsel to county Board of Supervisors to ensure independent investigation. In comparison to what's out there, San Jose's Independent Police Auditor model likens us to using a pager in an age of cell phones. It may have seemed like a good idea at the time when there was no other option available, but now seems tired and out-of-step.

But we are also in a moment of tremendous opportunity for change. With the council decision not to re-instate Barbara Attard as the Independent Police Auditor, the new task force on the drunk in public arrests issue, as well as the possibility of sunshine laws to be supported by the council, San Jose is in arguably the best position it has ever been in to enact improvements that will have a real impact on police and community issues.

And while efforts will be made to get sunshine laws to pry open a police department that has been reluctant to disclose information, perhaps even more significantly, San Jose can take a breath of reflection and planning, before rushing into simply filling the new Independent Police Auditor position, locking us into more of the same -- an office that is ill-equipped to be what it is asked to be.

Instead of hiring a new IPA to propagate our current shortcomings, let's look into other options. If San Jose's history has taught us anything, it is that if we really want to get to a better place in terms of police oversight. It is not a question of who is driving the vehicle, rather it is the vehicle itself that needs changing. Couple the end of the current IPA's contract with all of the public scrutiny on police issues on full display at the November 18th public hearing, we have been given the rare opportunity to re-imagine police oversight in San Jose.

But this window, in all likelihood, will not stay open for long. Energies dissipate over time and new emergencies eclipse our priorities. Let's hope that we take full advantage of this moment to assess what our real current needs are for police oversight in San Jose, and that we have the political vision and leadership to bring on a new model that speaks to those concerns.