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Experts told VOSD that steps DA Summer Stephan is proposing are necessary, but don’t address perhaps the biggest and most underused tool in the DA’s toolkit: prosecuting officers who commit crimes.
In light of protests and calls for police reform in the wake of the killing of George Floyd by a Minneapolis police officer, the San Diego district attorney’s office proposed actions it would take to prevent excessive police use of force against black people and weed out so-called “bad actors” in police agencies.
District Attorney Summer Stephan’s plan would treat reporting police abuse by others in the department similarly to teachers, who are legally mandated to report suspected child abuse, to increase transparency and accountability within law enforcement. Stephan also committed to enhance training for police officers in de-escalation methods, which includes an elimination of racial bias training.
“As we know, our whole country and San Diego County is grieving,” Stephan said. “The impact on all our community, but especially the African-American community, is so deep. What my community needed from me were specific steps forward – positive solutions that truly address that there is a problem, there is discrimination, there is prejudice. We can’t move forward without addressing it. There are many steps, this just scratches the surface.”
Experts told Voice of San Diego that steps like training and creating an independent, safe system for officers to report abuses of fellow officers are necessary, but don’t address perhaps the biggest and most underused tool in the DA’s toolkit: prosecuting officers who commit crimes.
In the past five years, the DA’s office has only prosecuted one police officers for excessive use of force.
Those low criminal prosecution numbers mirror trends nationwide.
“In my opinion, I think we are prosecuting fewer cases than we should be,” said Kami Chavis, a Wake Forest University law professor. “There are a lot of different ways we can hold officers accountable – there are civil suits, internal investigations – but prosecutors can play a role when an officer’s conduct rises to a level of criminal conduct. But it becomes complicated when police officers are the defendants.”
One of Stephan’s first proposals is to build and bolster a system that would encourage officers to report so-called “bad actors,” or officers who engage in abuse or criminal activity.
The officer who killed Floyd, for example, had a history or complaints against him, Stephan said, and there should be a way to identify problematic officers early on. The San Diego Police Department does have its own program for flagging troubled officers, but it’s been riddled with issues.
Stephan compared it to the duty of teachers and counselors to report abuse in schools if they learn of it or even simply suspect it. Her office began discussing the idea with police and the sheriff’s departments around two weeks ago, so she didn’t have more details on what that system would look like.
“The issue they are trying to address is a real one,” Chavis said. “I like the idea of having a process that exists outside of the police department. Officers often face retaliation when they report things internally.”
Chavis cited cases like that of Cariol Horne, a black female police officer in Buffalo who was fired after intervening in a situation in which a white officer put someone in a chokehold.
“A lot of time it is minority police officers that see things happen, report the conduct and they get fired or reprimanded for insubordination,” Chavis said. “We need to think about the details, how these things would be reported and who would be investigating them to make it a fair process for the reporting officer and the officer who had a report levied against them.”
In public schools, educators and other employees are required by state law to report potential abuse of children to police or child welfare authorities. But Voice of San Diego has found that not much happens to employees who don’t report abuse.
Between 2002 and May 2019, San Diego County did not prosecute any failure-to-report cases. At the time, Stephan said neither her office nor the city attorney’s office has ever received a complaint of a mandated reporter failing to report child abuse. Los Angeles, Orange, San Bernardino and Riverside counties also prosecuted fewer than a dozen cases of failures to report suspected abuse between 2012 to 2017, according to the San Bernardino Sun. The Santa Clara County district attorney’s office told VOSD it received 17 complaints of failure-to-mandate cases since 2002, but prosecuted just one principal at an elementary school.
Training and re-training officers to de-escalate situations will be another part of the solution, Stephan said.
The DA’s office had already started providing this sort of training beginning in January 2020, and has trained roughly 700 officers to date. They are hoping to train 1,500 by September, and eventually all 5,000 officers in the region, though COVID-19 has caused a setback.
The curriculum includes training for working with people with mental health issues and disabilities and elimination of racial bias training.
“I think a lot of people aren’t aware of their implicit bias,” said Jorge Duran, chief investigator of the DA’s Bureau of Investigation, which coordinated the curriculum. “They have these preconceived notions and just making them aware that those exist underneath can let them respond to facts and behaviors, rather than their feelings about people.”
Stephan said the DA’s office will look at use-of-force numbers over time to determine whether the training is effective.
Mahzarin Banaji, a Harvard psychologist who researches implicit bias and discrimination, said implicit bias training is necessary to improving the way white police officers interact with black Americans, but not sufficient as a standalone solution. Implicit bias education can open officers’ minds, but if other rules and policies aren’t put into place, “you will have the situation of a 3-year-old spitting back peas and carrots in your face.”
“It is not the final solution by any means because you can change the minds of individuals (the micro level) all you want but if institutions (the mezzo level) don’t change like requiring officers to ‘check off’ reasons for why they are stopping and searching, nothing will change and all the individual, micro-level learning, will die off,” Banaji wrote in an e-mail. “And if societies and countries (the macro level) don’t change, by say enacting laws against practices like chokeholds, micro and mezze level change will be missing the teeth needed for change take hold.”
In the past five years, only one use-of-force case has been brought against a police officer in San Diego. The two Sheriff’s deputies faced misdemeanor assault charges over an arrest in Vista and were acquitted by a jury last June.
Civil suits against officers are far more common. At least 15 lawsuits filed in the past year accuse San Diego Sheriff Bill Gore and his deputies of wrongful death, excessive force and other civil rights violations, the Union-Tribune reported. The city of San Diego has also paid hundreds of thousands of dollars to settle lawsuits alleging improper use of force over the past few years.
“We follow the law and we do prosecute officers,” said Stephan. “We’ve never shied away from holding people accountable for corruption and abuse and I plan on continuing that.”
Chavis said it’s a nationwide issue that far too few criminal charges are levied against officers for excessive use of force. Having police officers as defendants in cases often presents unique challenges.
For one, prosecutors often work with police officers and sheriff’s deputies to prosecute other crimes.
“That creates a potential conflict,” Chavis said. “You’re going to question the prosecutors’ ability to bring charges against those officers.”
Because a victim of police abuse may also be a suspect of a crime, Chavis said, prosecutors may feel they will be less sympathetic to a jury, which could also impact their decision to file charges. Other complications also make these cases difficult to win, like that officers may be able to look at their own body cam footage before giving official statements, which allows them to tailor their statements.
“There are some ethical considerations when a prosecutor is looking at a case, but there is also a fair amount of discretion,” Chavis said.
Chavis said that there are some ways local prosecutors can try to avoid this conflict. The district attorney could set up a unit exclusively dedicated to prosecuting police offenses, so those prosecutors would be walled off from other cases where they might work hand in hand with police. The state could also handle police misconduct and abuse cases instead of local prosecutors. The Minnesota state attorney general, not local prosecutors, brought charges against four officers for Floyd’s death.
Legal standards can also make it difficult to prosecute police for using excessive force on duty.
“In criminal cases, we want the standards to be high because you’re talking about taking someone’s liberty – whether it’s me, you or a police officer – but it should not be insurmountable,” Chavis said. “Sometimes the legal standard, I think, precludes more conduct that it should.”
In January, a new state law aimed to limit the instances when police officers can use deadly force, went into effect.
Before the new standards went into effect, the laws governing police use of deadline force in California were both vague and incredibly old – the original statute had not been updated since 1872.
It said law enforcement officers could commit a homicide if they encounter “actual resistance to the execution of some legal process, or in the discharge of any other legal duty” — meaning that police officers in California could affirmatively defend shooting and killing a person who posed no threat because they weren’t obeying orders.
The new law, AB 392, raised the standard for the use of lethal force. It’s only legally defensible as a “necessary” response to a threat, meaning instances where there are no other options.
No new cases against officers who use deadly force have been filed in San Diego County since the law went into effect, but Stephan said her office has “studied those changes and will honor and execute those laws.”