To:   HONORABLE MAYOR AND                   From:   Thomas R. Wheatley

                        CITY COUNCIL                                                       

 

Subject: RESPONSE TO THE IPA                               Date:   November 21, 2003

2003 MID-YEAR REPORT

 

COUNCIL DISTRICT: City-Wide

 

RECOMMENDATION

 

It is recommended that the City Council accept the following report in response to the recommendations contained in the Independent Police Auditor’s (IPA) 2003 mid-year report.

 

 

BACKGROUND

 

The Independent Police Auditor (IPA) is scheduled to present her 2003 mid-year report at the December 2, 2003 City Council meeting.  The IPA reports that the total number of cases received during the first six months of 2003 were 166 as compared to 257 cases received during the same period in 2002.  This is a reduction of 35% year to year.  The IPA reports that Use of Force complaints received in the first six months of 2003 were 18.  There were 27 Use of Force complaints during the same period in 2002.  This is a reduction of 33% year to year.  The report also highlighted the effectiveness of the Intervention Counseling Program in reducing future misconduct complaints.  

 

In accordance with established procedure, the Police Department has met with the Independent Police Auditor to review issues of concern and has prepared the following response to the issues raised in the report.

 

ANALYSIS

 

The IPA recommendations and the Police Department’s responses are as follows:

 

IPA RECOMMENDATION

 

Page 12, Designate a Liaison for the Family

 

1.                  The Chief of Police should implement a written policy that designates personnel whose primary focus is to serve as the liaison to the family of the person injured or killed as a result of an officer-involved shooting.

POLICE DEPARTMENT RESPONSE

 

While the Department currently has an informal policy to address this recommendation, the Department agrees to formalize this policy in writing.  The policy will identify an individual who is responsible for acting as a liaison to the family of an individual who has been injured or killed as a result of an officer-involved shooting.

 

IPA RECOMMENDATION

 

Page 13, IPA should be part of the Rollout Team

 

 

2.                  It is recommended that the IPA be part of the rollout team to the scene of officer-involved shootings. 

 

POLICE DEPARTMENT RESPONSE

 

The department disagrees with this recommendation.  The IPA already has an established role in the review of police shootings that the council granted to the IPA in 1999.  Chief Lansdowne in a July 15, 1999 memorandum to the City Council recommended the creation of a shooting review panel including the IPA that would review all officer involved shootings to determine if any training needs exist or if any changes need to be made to current police policies, procedures, training, or equipment.  The Chief stated in the memorandum that he was responding to the IPA's recommendation that all officer-involved shootings resulting in injury or death be reviewed whether or not a complaint is filed with the IPA or with IA.  Chief Lansdowne recommended amending the Municipal Code provision listing her authorized duties and responsibilities in order to specifically authorize the IPA to participate on this panel.  The Council agreed with the Chief's  recommendation and on August 3, 1999 the City Council amended the San Jose Municipal Code to include section 8.04.010(b) so that the IPA could participate on the panel.  This section states that, "The police auditor shall participate in the police department's review of officer-involved shootings." 

 

The IPA's recommendation will unnecessarily expand her role beyond the remedial review role given by the City Council in 1999.  The recommendation may also have unintended consequences, such as the risk that she or her employees may become potential percipient witnesses in any criminal prosecution or civil litigation arising from the shooting.  Any written documents that the IPA creates of her actions and observations at the shooting scene will be subject to criminal and civil discovery. Hence, the IPA's presence and active participation at the shooting scene will unnecessarily complicate the conduct of the criminal investigation.

 

Finally, should this recommendation be considered for implementation, it may involve a "meet and confer" issue between the San Jose Police Officers' Association and the City.

 

IPA RECOMMENDATION

 

Page 14, Improve Dissemination of Information to the Public

 

3.                  A. It is essential that the SJPD have written materials available to the public that describe the process, the agencies involved, their roles and general information about officer involved shootings.

 

 

POLICE DEPARTMENT RESPONSE

 

The Department agrees with this recommendation and will make information describing the investigative process available to the public.  This could include posting information on the Department’s Internet web site.  

 

 

IPA RECOMMENDATION

 

B. The SJPD should anticipate that following a police shooting, there may be public concern and reaction.  Therefore, venues where the public can receive and provide input should be facilitated.

.

 

POLICE DEPARTMENT RESPONSE

 

The Department agrees that public outreach to address community concerns following an officer-involved shooting is essential. Indeed, the SJPD has participated in forums to address community concerns in the past and will continue to do so in the future. 

 

 

IPA RECOMMENDATION

 

C. Information released to the public about the investigative process of police shootings involving SJPD members should be accurate and clear.         

 

POLICE DEPARTMENT RESPONSE

 

The Department agrees with this recommendation, particularly as it relates to describing the investigative process and the role of the police department, the district attorney’s office, and other agencies.  The Department will continue to release information concerning officer-involved shootings as required by the California Public Records Act, consistent with not endangering the successful completion of the criminal investigation.  The release of such information will also be coordinated with the District Attorney’s Office and the City Attorney’s Office to ensure legal compliance.

 

 

IPA RECOMMENDATION

 

D.  The SJPD should refrain from making statements that appear to predetermine the outcome of the investigation or unnecessarily place the injured person in a negative light.

 

POLICE DEPARTMENT RESPONSE

 

The Department agrees that any statements that appear to predetermine the outcome of any investigation are detrimental to all involved parties.  It should be noted, however, that the Department does not have control over information that may be released by other government agencies or media sources. 

 

IPA RECOMMENDATION

 

E.           The SJPD should prepare public reports on a regular basis detailing any policy, procedures, training, or other measures that were generated by the Officer-Involved Shooting Review Panel.

 

POLICE DEPARTMENT RESPONSE

 

The SJPD has met this recommendation, as it currently provides an annual report to the Mayor and Council that details the progress made on past recommendations as well as any new recommendations made as a result of the work of the Officer-Involved Shooting Review Panel. 

 

IPA RECOMMENDATION

 

Page 15, Review of Police Shootings should be as thorough as Complaints

 

4.                  Oversight of Police Shootings should mirror oversight of citizen complaints   

 

POLICE DEPARTMENT RESPONSE

 

The Department disagrees with this recommendation.  In addition to the comments already given in response to the IPA's recommendation that she be part of the rollout team, the Department  believes the current officer-involved shooting review process already provides an extraordinary amount of oversight.  Indeed the current review process requires that any officer-involved shooting resulting in an injury or death is reviewed by the District Attorney or the Grand Jury to determine if the shooting was lawful.  Additionally, after this external review, the Internal Affairs Unit in the Office of the Police Chief conducts an internal review of the incident and documents the circumstances of the shooting.  The Office of the Chief then determines if the shooting was within Department policy and procedure.  If the shooting is determined to have been outside of policy, appropriate administrative action will occur.  Finally, after the review by the Office of the Chief, the Shooting Review Panel is convened for the purposes of determining whether or not there is a need to improve existing policies, procedures, training, or equipment.  Thus, the Department believes that the procedures currently in place to review police shootings exceed the recommendation of the IPA, and the Department does not see the need to change this process.

 

Should this recommendation be considered for implementation, it may involve a "meet and confer" issue between the San Jose Police Officers' Association and the City. 

 

 

IPA RECOMMENDATION

 

Page 15, The IPA should be granted contract authority to assure access to independent expert consultants.

 

5.         It is recommended that the Municipal Code be amended to include the IPA in the list of Council appointees authorized to enter into contractual agreements.

 

POLICE DEPARTMENT RESPONSE

 

The Department disagrees with this recommendation for the same reasons outlined in its response to the IPA's request to be part of the rollout team, as the active participation of an outside consultant will unnecessarily complicate the conduct of the criminal investigation.

 

 

CONCLUSION

 

The San Jose Police Department has collaborated with the IPA on a variety of issues during the first half of 2003.  These efforts have continued to improve the performance of the San Jose Police Department.  Our collaborative efforts continue to build public confidence and trust in the San Jose Police Department. 

 

The Office of the Independent Police Auditor has proven to be a valuable resource to the San Jose Police Department by assisting in improving community relations and instilling a greater level of confidence in the San Jose Police Department by all who use our services.

 

 

THOMAS R. WHEATLEY

Acting Chief of Police

 

TRW:CE

 

Cc:  Del D. Borgsdorf, City Manager