Few complaints against police upheld - even fewer bring serious discipline
- Susan Sward, Bill Wallace and Elizabeth Fernandez
Wednesday, February 8, 2006

   San Francisco has debated for decades how to hold bad officers accountable, and time and again, voters have made it clear that they wanted the Police Department and politicians to do just that.

   Voters established the civilian oversight agency known as the Office of Citizen Complaints. They voted to increase the agency's budget. They voted to make the Police Commission more independent of the mayor.

   Despite all these efforts, the city still rarely holds errant police officers accountable for their actions.

   Serious deficiencies in the police disciplinary system have resulted in officers staying on the job even though they may use force far more than their peers.

   Some of these officers have also been named in lawsuits that resulted in large payouts by the city, though most of those were settlements in which no misconduct was conceded.

   Of the officers accused by the department of using excessive force from 1996 to 2004, more than 70 percent got the lightest form of punishment possible -- a reprimand or admonition -- or no punishment at all. Seven of those who went unpunished resigned.

   For people wishing to file a misconduct complaint against an officer, the disciplinary process begins with the civilian-run Office of Citizen Complaints. Voters created that agency in 1982, at the urging of a coalition led by the American Civil Liberties Union and the San Francisco Bar Association.

   The theme of the campaign was that the department hadn't done a good job of investigating complaints against police officers. An unbiased, outside agency was needed.

   From the start, the Office of Citizen Complaints was encumbered by inadequate funding, too small a staff, often-weak leadership and entrenched opposition from the department and the Police Officers Association.

   Even now, a decade after San Francisco voters strengthened the office by mandating it have one investigator for every 150 police officers, the office moves sluggishly through its caseload. It has a backlog of 431 cases.

   From 1996 to 2004, it received more than 10,000 complaints and sustained only 10 percent.

   The agency typically rejects complaints that lack corroborating witnesses or evidence. But sometimes its investigators fail to seek out such witnesses or evidence, The Chronicle found.

   One of the office's biggest impediments has been the Police Department. It has been slow to cooperate with the Office of Citizen Complaints' investigators. And it frequently has failed to act against officers the agency found guilty of misconduct.

   In a 2003 report, the Office of Citizen Complaints said there was widespread reluctance in the San Francisco Police Department to deal with cases in which the agency had found officer misconduct.

   "In the past, the department has obstructed the disciplinary system by delaying the review of OCC findings, failing to administer any discipline in cases, administering minimal correction action for serious violations and refusing to file police commission charges in sustained cases warranting significant discipline and/or public scrutiny,'' the report said.

   Over the years, there have been many instances when the office sustained allegations of misconduct against officers, only to have them languish in the department's internal affairs unit, Management Control.

   The 2003 report accused the department of hampering its investigations "in significant ways." In some extremely serious cases, including officer-involved shootings, the department "withheld documents for close to a year or more," the report said.

   Seven months after the office's report was issued, an internal Police Department audit found that 75 pending disciplinary cases against officers from 1999 through 2003 had been stalled in the Management Control unit for so long that the officers escaped punishment.

   Assistant Chief Alex Fagan Sr. acknowledged at the time that a police captain, later retired, had simply tossed some pending case files into the garbage.

   Long delays in charging problem officers

   Capt. Charles Keohane, who heads the risk management unit that oversees Management Control, said that Management Control has significantly reduced its case backlog and that the legal division is responding to almost all Office of Citizen Complaints requests for documents within three to 15 days.

   But problems persist.

   At the Police Commission hearing last year on Officer Anthony Nelson, who broke a protester's arm in 2003, the Office of Citizen Complaints filed a motion on the department's failure to respond promptly and completely to its requests for Nelson's records. In one instance, office employees were told twice that Nelson's training records were available at Southern Station, only to go there and be told the records weren't available, the motion said.

   The commission, noting he had lied on an arrest report, ultimately fired Nelson, whose baton strike cost the city $835,000 to settle a lawsuit brought by the protester.

   That firing angered Gary Delagnes, president of the Police Officers Association, who said such decisions by the commission leave officers on the streets "scared to do anything'' for fear of being hauled up of charges when they didn't really violate department regulations.

   Delagnes also had harsh criticism for the Office of Citizen Complaints, claiming that it makes calls soliciting people to file complaints against officers. He dismissed the agency as "incompetent,'' saying it puts officers through the ordeal "of having to go down and answer ridiculous charges that never happened.''

   Kevin Allen, the director of the agency, said he is working hard to assure misconduct investigations are done in an expeditious and accurate manner, and he also is increasing outreach so the community knows the agency is there when people want to file misconduct complaints against police officers.

   He added that he strictly instructs his staff "that we cannot solicit complaints, and in the almost three years I have been here, there has never been an incident brought to my attention where someone solicited a complaint.''

   Over the years, many officers found to have engaged in misconduct have escaped discipline because the Office of Citizen Complaints and the department took too long to charge them.

   By state law, officers must be notified of proposed disciplinary action against them within a year of the date an agency learns of the alleged misconduct.

   When the agency and the department failed to bring their charges in time, many officers went to court and got charges dropped on the grounds they violated the statute of limitations.

   "When they ran out of time, the department and the OCC would start blaming each other,'' recalled Wayne Friday, a former member of the Police Commission, which is charged with running both the agency and the department.

   "The OCC would say, 'We gave it to the department,' and the department would say, 'The OCC didn't investigate in time.' I didn't know what the hell was going on."

   Voters give watchdog agency more power

   In 2003, voters approved a measure aimed, in part, at preventing these delays.

   They placed responsibility for timely investigations on the Office of Citizen Complaints by giving it the power to bring misconduct charges directly to the Police Commission in certain circumstances -- including instances when the statute of limitations is about to expire or when the chief fails or refuses to send an agency-sustained complaint to the Police Commission.

   Since that measure took effect, the Office of Citizen Complaints has exercised its new power to go directly to the commission only three times -- once with the 2002 fajita brawl on Union Street involving three off-duty officers, once with the 2004 fatal police shooting of Cammerin Boyd in the Western Addition and a third time with allegations of misconduct and lying against an officer who shot a man during a 2004 confrontation in the Excelsior District. All the cases are pending before the commission.

   Allen, director of the Office of Citizen Complaints, said that while his agency is working at reducing its 400-plus case backlog, his staff is putting "the greatest priority on cases that are still under investigation and have the greatest probability of being sustained.''

   He added, "We do this because we want to preserve the department and Police Commission's ability to impose discipline in those cases if they look at our sustained charges and agree with our findings.'' He said this approach is sharply reducing the number of sustained cases being tossed out due to statute of limitation violations.

   Another problem with the disciplinary system lies with the Police Commission, which alone has the power to fire or to impose long suspensions.

   Operating with only a police sergeant and a civilian clerk as staff and meeting only once a week, the commission consistently lags in its disciplinary workload. It has a backlog of 27 cases involving 36 officers, with the oldest case dating to the 1998 fatal police shooting of Sheila Detoy, records show.

   The seven commissioners work part time, receiving $100 a month. Each of them is assigned individual disciplinary cases. They preside as hearing officers while attorneys present evidence.

   Critics have argued that the commission isn't structured to handle the flood of cases it gets. In a 1997 report, the American Civil Liberties Union stated, "Inexplicably, the commission continues to operate with no independent staff. ''

   The report noted that a decade earlier, the San Francisco Bar Association concluded "it was unrealistic to think uncompensated commissioners, meeting weekly, could effectively pursue their agenda'' with a two-person staff.

   Changing Police Commission's structure

   The commission's actions also have been shaped by politics. Until recently, commissioners were appointed by and served at the pleasure of the mayor. The message out of the mayor's office was typically: Don't cause a stir, particularly in the Police Department or the powerful Police Officers Association.

   "In the past, the bottom line was you don't do anything that would embarrass the department because that would embarrass the mayor,'' said Peter Keane, a law professor and former public defender who served on the commission for a year and a half before resigning recently.

   Commissioners "took their direction from whatever political necessity existed for the mayor at the time," Keane said.

   Voters moved to alter the commission's makeup in 2003, approving a measure that shared the power to appoint commissioners between the mayor and the Board of Supervisors. The board now gets three appointments to the seven-member board and must confirm all seven.

   It is still too early to assess the result of these changes.

   In the early months of the new commission, the panel showed considerable independence on disciplinary matters and repeatedly refused to rubber-stamp the settlement of misconduct cases under terms proposed by the chief of police.

   It also overrode the strong objections of the Police Officers Association and placed two civilian members on a department panel that investigates officer-involved shootings.

   When the association threatened to sue, though, the commission backed off somewhat, saying the civilian members would not help review whether an officer involved in a shooting could return to street duty.

   The commission's more recent treatment of discipline cases has been mixed.

   Last March, the commission chose not to fire Officer Reynaldo Vargas, who admitted that he used a broken glass pipe to cut the face of a handcuffed suspect. Vargas told the suspect, who was accused of not paying a cable car fare, "Eat it, eat it!" as he jabbed shards of glass at him, according to the Office of Citizen Complaints charges.

   The commission suspended Vargas for six months.

   In October, though, the commission fired Officer Nelson. The department originally had recommended a 30-day suspension.

   The commission rejected an Office of Citizen Complaints finding that Nelson used unnecessary force, despite a videotape of the blow, but found that he had deliberately filed a false report in an attempt to divert attention from his use of force.

   Commission's battles with police union

   Just how susceptible the commission will be in the future to political pressures -- particularly those applied by the powerful Police Officers Association -- remains to be seen.

   The association defends officers accused of wrongdoing and resists many changes in police discipline practices that might affect its members, both before the commission and at the ballot box.

   In 1979, the association helped engineer the ouster of one police chief, Charles Gain, who espoused tougher disciplinary standards, by conducting a vote of "no confidence."

   Though the association now supports such a move, earlier it fought proposed procedural changes to permit the police chief to impose longer suspensions of officers found guilty of misconduct. It also packed hearing rooms with scores of officers to sway commission action on vital issues.

   In the past 16 months, the group demanded that Commissioner Keane resign and that Commissioner Joseph Veronese be fired. Veronese is still on the commission, but Keane resigned in October, saying he had "gotten stretched really thin."

   When he made his resignation speech, Keane didn't mention the Police Officers Association, but in an Oct. 1 interview, Keane said association president Delagnes' message was clear: "If we don't toe the line, they'll come after us."

   Jeff Brown, who retired in 2001 as the city's public defender and is now on the state Public Utilities Commission, noted, "Historically, the POA has typically been in the face of commissioners to advance the interest of its clients appearing before the commission, and when the POA is not getting its way, it makes its complaint known in the quarters of the mayor and the supervisors.''

   "That translates into favorable disposition of both disciplinary cases and policy cases,'' he said.

   Delagnes acknowledged that his association does "have a certain level of political strength, as well it should be. We do use our political strength to try to support our officers" in a wide range of areas, including "anything that involves the rights of our officers."

   Terminations of police officers rare

   In a city where the police union holds such sway both inside and outside the department, firings of police officers are extremely rare.

   Since 1996, the department has fired only five officers -- making its termination rate the lowest of several major California departments surveyed.

   Three of those officers had been convicted of a crime or previously had faced criminal prosecution. One was terminated for lying on his job application and another -- Nelson -- for filing a false report.

   During the same period, Oakland's police department -- about a third the size of San Francisco's 2,200-member department -- fired 36 officers; San Jose's -- about two-thirds San Francisco's size -- fired nine; and San Diego's -- about the same size -- fired 21.

   In San Francisco, no officer was fired during that period for using unnecessary force.

   Even when a complaint against an officer is sustained by the city's watchdog agency, serious disciplinary action is rare.

   Although the Office of Citizen Complaints sustained 75 allegations of unnecessary force from 1996 through 2004, only 44 of them were filed by the department during that period.

   The department took no disciplinary action at all in 18 of those cases. Seven of those involved officers who resigned. Of the remainder, 14 resulted in the lightest possible forms of punishment. Twelve officers were suspended, but only four received suspensions of more than 10 days.

   This data underscore what The Chronicle investigation found: The department typically gives out light discipline, or none at all, for officers who use excessive force.

   "The way the system works, you don't hold people responsible discipline-wise,'' said Dan Lawson, a retired San Francisco police captain who left the department in 2003 and now heads security for the University of San Francisco.

   "There have been honest attempts to try to correct the disciplinary problems, but they fail because of a lack of a management culture ...

   "You have to be fair and equitable and, if push comes to shove, you have to hold people accountable,'' said Lawson, who spent 34 years in the San Francisco Police Department and did everything from supervising use-of-force reporting to studying ways to improve department rules.

   The need for a strong, prompt disciplinary system in police agencies has been stressed by law enforcement experts for a quarter century.

   In 1981, the U.S. Civil Rights Commission stated in its report "Who Is Guarding the Guardians?": "Once a finding sustains the allegation of wrongdoing, disciplinary sanctions commensurate with the seriousness of the offense that are imposed fairly, swiftly, and consistently will most clearly reflect the commitment of the department to oppose police misconduct.''

   Four years after the Civil Rights Commission report, San Francisco's police chief, Con Murphy, recognized the need for swift, certain discipline.

   In a declaration filed in connection with a lawsuit, Murphy said: "The ability of the chief and his deputies to run the department depends in a large measure upon the perception of the officers in the ranks that they must obey rules and that their failure to comply with rules will be dealt with promptly and effectively."

   Special interests make tough demands

   Whether San Francisco can summon the consistent willpower to forge such a disciplinary system is far from certain.

   "I don't think the department has the will to do it, and if it did, there are many obstacles to overcome,'' said former Deputy Chief John Willett, who retired in 1999 after three decades in the San Francisco Police Department.

   For example, Willett said, almost any time the department wants to make any change, it meets "with the Police Officers Association and the meet-and-confer requirement has been interpreted over the years to be 'meet-and-agree.' "

   In San Francisco, a city where special-interest groups battle fiercely over everything from development proposals to dog leash laws, the Police Officers Association is only one of the groups likely to bring pressure when the Police Department and the commission consider discipline for officers accused of misconduct.

   "There's the political pressure from all the special interest groups, including the gay community, black community, Chinese community and the POA working mainly for the white officers, to be more lenient in the disciplinary process,'' Willett said.

   "And there's the pressure from the Board of Supervisors and business community groups who have special officers they like. They'll call the chief, other command officers, members of the Police Commission to exert pressure. The mayor will get these same pressures, and in some cases, the mayor, who appoints the police chief, will intercede in behalf of officers.

   "Given all this, I don't see that it will ever change.''

sfgate.com/cgi-bin/article.cgi?file=/c/a/2006/02/08/MNUFDISCIPLINE.DTL

San Fransisco police officers?

I thought they were too busy butt-fXXking each other to get into trouble?

I hear all the time that problems with police officers are just limited to one or two bad actors.  I think this article correctly points out the institutional problems that large metro police department have.

Whats up with all these threads about San Fransico's police department and old cases?

ar15.com/forums/topic.html?b=1&f=5&t=435222

Quoted: Whats up with all these threads about San Fransico's police department and old cases?

Article address that question.  Delays in getting paperwork from SFPD.  Average time for a case to work thru the system is somewhere between three to five years.  Many cases are dropped due to statue of limitations being one year.  Then the cases go to Federal court.  Average time to start a case in federal court is two years.  It is not uncommon for it to take ten years from complaint to jury award.

Quoted: Quoted: Whats up with all these threads about San Fransico's police department and old cases? Article address that question.  Delays in getting paperwork from SFPD.  Average time for a case to work thru the system is somewhere between three to five years.  Many cases are dropped due to statue of limitations being one year.  Then the cases go to Federal court.  Average time to start a case in federal court is two years.  It is not uncommon for it to take ten years from complaint to jury award.

Yeah, that isnt my point.  If you are going to post a series of articles from one newspaer about a police department (appears to be atleast one article a day), why dont you keep them all in one thread instead of making multiple threads?

I wonder how much training/education the "Office of Citizen Complaints" has in state and federal use of force laws, agency training and use of force policy?

Is this a case of the judges having no knowledge of what they judge? Just becuase someone is a business owner, politician or othe rcommunity "leader" it doesnt mean they know how to accurately evaluated uses of force, aircraft design, military stategy, modern art, or anything else unrealeted to their own arreas of experiance and expertese.  There is a certain set of core knowledge neccessary to evaluate use of force. Without that basic skill set it's like a deaf person evaluating music.