A. Who may file a complaint?
A complaint may be filed by any person without regard to age, citizenship, residence, criminal record,
incarceration status, or any other characteristic of the complainant, and who is alleging an improper act
or misconduct by a sworn member of the San Jose Police Department.
B. What are the limitations in processing a complaint?
A complaint is processed only if it involves a sworn member of the San Jose Police Department.
Civilian employees and Reserve Officers are outside the IPA jurisdiction. Complaints involving
officers employed by another law enforcement agency will be referred to the appropriate unit of
that agency. At minimum, the person should be provided with a phone number or the address of the
involved law enforcement agency. The intake staff should facilitate the transition of the complaint
to the indicated agency.
With only a few exceptions, a complaint must be filed within one year of when the alleged
misconduct occurred. The one-year statute of limitations starts once the misconduct is made known
to a member of the SJPD command staff. Some exceptions toll the one-year statute of limitations such as:
incarceration, hospitalization, or mental illness, see the Cardoza Bill requirements.
C. How are complaints accepted?
Complaints are accepted in any form. They will be accepted in person, by facsimile,
by telephone, in writing, electronic mail, third party or from anonymous sources.
The purpose of having a very flexible reporting process, is to encourage citizens and
Department members to report their grievances and dissatisfactions. Only then can these
complaints be documented, investigated, and reviewed.
D. Standard Intake Documentation
The Intake Investigator is responsible for taking the complainant's statement, which should include
as much information as possible. This statement should be tape-recorded but only with the
complainant's consent. If the complainant requests a copy of their complaint, a copy of the summary
of their complaint should be provided as soon as possible.
The complainant's statement should be synopsized in writing without filtering or interpretation
and should include all allegations as alleged by the complainant.
Intake investigators have a duty to identify all allegations raised in the complainant's
statements regardless of whether the complainant is or is not complaining about the particular conduct.
For example, the complainant alleges that when he was handcuffed, the cuffs were too tight causing
bruising to his wrists. The officer had not double locked the cuffs and ignored the request to loosen them.
The complainant asked for the officer's name and badge number and threatened to file a complaint.
The officer refused to provide identification. The citizen is complaining only about the injuries to
his wrists. The SJPD policy is that officers provide their name and badge numbers to any citizen
requesting identification. The appropriate allegations would be Unnecessary Force and
Improper Procedure (not providing identification).
The complainant should sign the Boland Admonishment within 30 days of filing a complaint. The 30 day period
is only a goal used for case management and not mandatory. Whether or not the complainant signs the
Boland Admonishment, the investigator should initiate a preliminary investigation into the complaint.
The preliminary investigation involves the review of available crime reports, CADD printouts,
dispatch tapes, tow sheets, traffic citations and other documentation or evidence produced during
the event in question. The 30-day period is only a goal agreed to between the IA and IPA and is
not dispositive of the complaint. If the complainant returns a signed Boland within the one-year
time period, the complaint should be investigated.
The information needed to complete the Voluntary Questionnaire must be collected at the time of the
complaint intake and forwarded to the IPA within three days after the complaint was received.
If the complainant declines to participate in the Voluntary Questionnaire, please state so on the
Voluntary Questionnaire form and forwarded it to the IPA.
Evidence in the complainant's possession should be logged and secured at the time of the intake
of the complaint. Photos should also be taken of injuries or damaged property. Medical releases
should also be obtained at this time.
Occasionally situations arise in which the complainants have visible injuries, but are not able to come
to the IPA or the IA offices. They may be incapacitated at home, in the hospital, or in jail. In these
situations, it will be necessary to go to the complainant's location as soon as possible to photograph
injuries. If the intake from an incarcerated complainant was taken by the IPA, and photographs are
necessary, the IPA will notify IA to take the pictures.
E. Conflicts to avoid by the IA investigators when accepting complaints
The manner and tone used in intaking complaints is critical in instilling confidence in the objectivity and integrity of the IA and IPA offices. The objective is to instill credibility and demonstrate responsiveness to assure citizens that their grievances (real or imagined) are welcomed and will be taken seriously. Be sensitive to the message you send through your body language.
Complainants must be allowed to give an uninterrupted account of their complaint before asking investigative questions. Rationalizations are not to be made on behalf of the subject officers because they tend to alienate or make the complainant feel that you are taking the officer's side. Often times, complainants merely want to talk to someone about the situation and are not ready to accept an explanation even if a logical one exists. Active listening is very important. While you shouldn't make comments that leads the complainant to think you are agreeing with them, showing empathy during the interview is encouraged.
In order to avoid bias, IA investigators are required to advise the Unit Commander of conflicts due to prior friendships, frequent interaction or adverse contacts with the complainant.
Similarly, the IA investigators should not be assigned cases where a conflict may arise due to the case involving a subject officer with whom the IA investigator has a close friendship or is known to have had adverse interaction.
Special consideration should be given when the subject officer is a higher-ranking officer than the IA
Investigator. It is preferable to have interviews of subject officers conducted by IA Investigators of
similar or higher rank.
F. The IA investigator should refrain from alienating or offending the complainant by:
Requesting and/or referring to any criminal history,
Running a warrants check,
Asking for immigration status, proof of citizenship, or legal residence status,
Reference to other unsubstantiated complaints.
G. The IA investigators should receive ongoing training on communication, interviewing, and interpersonal skills.
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II- Processing the Complaint |
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During the Processing of the Complaint, a standard format must be used in order to maintain uniformity and establish a base for the overall integrity of the investigation. The following procedures should be followed:
A. Complaint Classification
A complaint against a Department member falls into five categories: Formal, Command Review, Policy, Procedural, and Inquiry. All citizen contacts should be documented. The Citizen Contact category is used for those calls where the person is asking for information and not expressing dissatisfaction with police services.
The IA Commander, or his designee, approves all classifications of complaints providing consistency within the unit. The Auditor should be consulted on ambiguous cases. If allegations identified by the Auditor are deleted, the IPA should be contacted before any change is made.
Cases should be evaluated for potential mediation referral and brought to the attention of the Intake Sergeant.
B. Investigative Report Format
All complaints must be documented in the same professional manner. They should be typed in a standard form and entered into the database system. This means that
all fields
on the face sheet are entered in the database system.
C. Investigative Time Line
All complaints must be classified and assigned to an investigator within 30 days of receiving a complaint.
Class I Use of Force complaints where emergency medical care was required must be completed within 180 days .
Class II Use of Force complaints and all other investigations - Must be completed within 300 days.
D. Interviews of Police Officers
The IA Investigators will notify the Independent Police Auditor of scheduled interviews in a timely manner by fax or email and at least three days in advance.
The IA Investigator should notify the IPA of scheduled interviews on all Use of Force complaints and those complaints originating at the IPA.
E. Providing Information to the IPA
The face sheet of all complaints and the information gathered at the preliminary investigation will be sent to the IPA within three days after a complaint has been classified.
A copy of the completed investigation of each complaint will be sent to the IPA within five days after a complaint has been closed.
F. Bias and Objectivity
Citizen complaints against the Chief of Police or the Assistant Chief of Police will be referred to the City Manager who will hire an outside agency to investigate and the findings will be made by the City Manager.
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III- Complaint Investigation |
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A. Facesheet
1- When summarizing the complainant's statement, the investigator will only include statements made by the
complainant. The Intake Investigator will
incorporate no opinions or conclusions in the complainant's statement.
The complaint summary should include the following details:
Background of the incident. For example, the complaint arose from a search warrant, traffic stop etc.
Describe the allegation. For example, it is alleged that the subject officer used unnecessary force when he struck the complainant's head with the baton causing a laceration. This describes the area of the injury, the instrument used, and the degree of injury.
2- Also in this field, please indicate the officer's date of hire, the shift, the unit and the team number
to which each subject officer is assigned to at the time the complaint arose. For example, DOH: 4/4/94, Swings,
Patrol, T012. In addition, please include the bureau to which each subject officer is assigned at the time
of the incident.
3- If the case involves a serious use of force that requires medical care, please indicate on the face sheet "UF Class I." These cases are given a priority and must be completed within 180 days.
4- Please state the reasons for a case closed with a "No Finding." For example: lack of Boland admonishment, complainant withdrew the complaint, unable to contact the complainant, or complainant unable to identify the officer involved in the incident.
5- Received By
When an IA investigator initiates a complaint, the investigator's name is indicated.
However, when the IPA initiates a complaint, the word "Auditor" will proceed the investigator's name to identify IPA initiated cases. For example, Auditor/Sgt. Doe #4000.
If the case is a DI and it has a citizen nexus (a citizen could have filed the complaint), the complaint will reflect IPA/nexus.
6- Closing Letter
Please keep a copy of the closing letter in the case file. The IPA sends closing letters to those complainants that initiated their complaint at the IPA. This is in addition to the IA closing letter. Closing letters are sent within two weeks or later, if the IPA has notified IA that there is an issue with the investigation.
Once a complaint has been received and classified, contact with the complainant must be maintained. The complainants should receive a notice within thirty days of the received complaint and then automatic updates every sixty days.
B. Investigation Synopsis
This investigative activity log begins with an indication of when or where the case was received and if applicable, ends with an indication of the reason for the closing of a case. For example, on such date, the IPA forwards the case to IA for investigation and on such date, the case was closed due to NO BOLAND signed.
The auditor looks for the date a Boland Admonishment was received. If none was received, indicate the effort used to obtain the Boland Admonishment. All investigators should send a letter to the complainant explaining the Boland requirement in order for the investigation to proceed. At least two phone calls should be made to try and contact the complainant.
The auditor looks for the notation of whether or not the investigator contacts the Auditor for upcoming officer interview. If none are conducted, please write, "No officer interview conducted.".
Throughout the investigation, the investigator should log the efforts made to collect evidence for the case, the dates of interviews, witnesses and phone logs.
The investigator's analysis of the investigation used to reach a finding must not be conclusory, bias, or based on conjecture. Distinguish fact from opinion. Do not adopt a party's version of the facts without stating the reasons, i.e. prior inconsistent statements, impossibility of act, lack of motive etc.
Inconsistent statements of material issues should be analyzed. This analysis should be applied to
both citizen and police witnesses/subject officer's statements.
A complainant's prior criminal or immigration status seldom has relevance in an IA investigation. The investigator must maintain an open, unbiased view of the allegations.
If the investigator relies on the conviction/plea of a complainant to corroborate or discredit their statement, the investigator should also give weight to cases that are dismissed or acquitted.
When writing the analysis for Procedural complaints, the investigators should include the applicable procedure or law that covers the officers' conduct and why it was procedurally correct.
In writing the analysis for Policy complaints, the policy with which the complainant does not agree should be identified and the wording of the policy included.
Remember that your investigation may be the subject of a Grand Jury investigation, criminal complaint, civil lawsuit, administrative appeal etc. The investigation should be objective, fair, and the finding supported by the evidence.
C. Findings
The Investigator's recommendation of Exonerated, Not Sustained, or Unfounded, should speak to the allegations as alleged by the complainant and should not be inconsistent with the definition of the finding. For example, the complainant alleged that the subject officer used profanity in addressing her. An Exonerated finding would not be proper because it would imply that the investigation revealed that the profanity was uttered but it was justified, lawful, and proper.
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IV- Supervisor's Duties in Use of Force Investigations |
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A. The IA Investigator should ensure that all reports and evidence from the criminal case be included in the IA investigation on Class 1 Use of Force Complaints.
B. When the application of force results in serious injury to a citizen or an officer that requires emergency medical treatment, the supervisor (command officer) has an affirmative duty to respond to the scene and ensure that a complete investigation with a focus on the need to use force by the subordinate officer(s), is conducted. This would include:
1. Obtaining statements (taped if possible) from the involved citizen.
2. Obtaining statements from witnesses (taped if possible).
3. Conducting a canvas for independent witnesses.
4. Photographing/video taping of the scene (especially in a residence).
5. Photographing the presence of injuries as well as lack of injuries.
6. Collecting any physical evidence available at the scene.
7. Supervisor should write a Supplemental Report documenting his/her observations and actions taken.
8. Forward a "heads-up" short memo to the IA regarding the incident.
C. This procedure would not preclude a supervisor from responding to incidents where an application of force occurs and there is no injury requiring medical treatment. These would include large parties, bar fights, etc., which may be a cause for concern and criticism at some future time.
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V- Interview of Witness and Subject Officers |
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A. Pre-Interview Interaction
Officers should be instructed to answer the questions from independent recollection and only thereafter should the officer refer to the police report. The officer should not read verbatim from a police report.
The investigator should not have a discussion of the incident with the officer prior to activating the tape recorder.
Greetings and other small talk should be brief. Fact finding is the main purpose of an interview; while a professional and comfortable atmosphere is desired, prolonged exchanges of pleasantries or "war stories" undermine the serious nature of the interview.
B. The Interview
Investigators should ask questions regarding the officer's previous training and law enforcement experience.
Investigators should inquire into possible collusion by the party being interviewed. Did the complainant talk to other witnesses? What documents, photos or tapes has the officer reviewed relevant to this complaint. For instance, officers should be asked who they talked to about the incident, whether they have spoken to the subject officer(s), how and from whom did they first hear about the internal investigation.
The investigator should inquire into bias for or against another officer(s) or citizen(s) in the particular complaint. In assessing the complainant and subject officer's credibility, it is important to know if the officer has had prior negative contact with the civilian witness(es) or other witness officer(s).
The investigator should maintain control of the interview; (POA) representatives or lawyers should not be allowed to coach or respond for the officer. Objections to questions should be noted. The POA representative can clarify a question objected to by asking the officer questions after the IA investigator has completed the interview.
When asking to describe what a civilian or police witness did or said, questions about the tone of voice and demeanor of the parties are important. The investigator needs to obtain a clear description of what and how certain words were uttered and a pictorial description of the officer's conduct.
Foundation questions should be asked prior to delving into critical subject areas. Leading questions should be avoided or used cautiously.
Diagrams properly marked and described for the record should be used whenever appropriate. The investigator should become familiar with the physical layout of the location of the incident prior to the interview.
Reference and use of photographs should be audibly described and a description of what the photo depicts should be stated for the record. The contents and essence of the interview needs to be preserved as completely as possible because this aids in future review by the chain of command, IPA, POA, etc.
The officer should be asked to demonstrate conduct that is difficult to describe. The IA investigator should clearly describe what he/she sees for the record since audio equipment does not have the capability to record gestures and other body language which is an integral part of an interview.
In addition, during the course of the interview, the investigator should review applicable law and department policies and procedures in an attempt to determine the officer's understanding and rationale for the conduct.
Finally, at the conclusion of the interviews, the officers should be admonished to refrain from discussing any aspect of the interview and complaint with anyone other than their POA representative/lawyer.
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VI- Areas Covered During the Audit of an Investigation |
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After the investigation has been completed, an audit of the investigation is conducted which addresses various areas of the investigation. Specific areas which the Auditor checks are the following:
A. Investigation Write-up
Were all the identified witnesses interviewed? If not, why? The Auditor may send a request to conduct the missed interviews or have IA explain what efforts were made to interview these witnesses.
What efforts were made by the IA investigators to find additional witnesses? Was a neighborhood canvass conducted? Were leads from the complainant or other witnesses developed?
Did the investigation include any photographs or diagrams?
Was the IA investigator objective in writing the final comprehensive report? Were consistencies and inconsistencies between civilian witnesses pointed out? Were consistencies and inconsistencies between police officers also pointed out?
Were the facts as represented in the IA reports consistent with the contents of the taped interviews?
Did the investigation include any photographs or diagrams?
Was a conscious or subconscious bias in the officer's report detected?
B. Quality of Interviews
Did the IA investigator encourage the witness to feel at ease prior to beginning the interview?
Was the witness allowed to give an uninterrupted statement? Was the witness allowed to explain his/her answers?
Did the IA investigator interject his/her own personal opinions or rationalize the officer's behavior?
Was the IA investigator discourteous or confrontational?
Were all relevant issues covered in the interview?
Was there any discussion with the witness that was not recorded?
Were the police and the civilian witnesses admonished not to discuss the case with other witnesses or officers?
Were the questions leading or open-ended, and were follow-up questions asked?
Was the IA investigator's demeanor, intonation of voice different towards citizens than officers?
Was applicable policy or law covered in the officer's interview?
Was the overall manner of conducting the interview objective?
C. Finding of the Investigation
Was the finding supported by the evidence?
Was a preponderance of evidence standard used?
Was the finding in this case consistent with other similar cases?
D. Contact with the Complainants
In addition, the Auditor randomly contacts the complainants and civilian witnesses to ask them questions that the audit may raise or to compare their version of the facts to the representation of those facts by IA in the written reports. Complainants normally call the Auditor's office shortly after getting their disposition letter which clearly states that they can contact the Auditor for further review. The Auditor will review the investigative steps with the complainant which lead to the particular finding.
E. Site Checks
Another component of the review entails the Auditor visiting the scene. For example, the Auditor has gone to the complainant's home to inspect the area where the alleged misconduct occurred. Visiting the scene is one of the options that is available to the Auditor to get a better perspective of the surroundings described in the investigation.
The Auditor may inspect areas within the police department such as the booking area, the holding cells, the interview rooms, the sally-port area, etc. for answers to questions raised during the audits of these complaints. The IPA may also conduct random, unannounced visits to inspect the contents of the original complaint files stored at IA and compare them with those received by the IPA.
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VII- Other Applicable Procedures |
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A. All original documents, photos, tapes, and other evidence received at the IPA will be sent to the IA. The IPA will retain copies only, since the IA is the custodian of all records.
B. In UF Class I complaints, which are withdrawn by the complainant or where the complainant does not follow through, an effort should still be made to investigate the allegations. A "No Finding" disposition should only be given to those cases where the necessary information to conduct an investigation is not available in order to reach an appropriate finding.
C. The IPA is authorized to audit any and all information related to a citizen's complaint. The IA will not withhold information from the IPA under the auspices of confidentiality.
D. When or if the IPA receives a complaint against an IA Investigator, the IPA will contact the IA Commander.
E. Under extraordinary circumstances, at the IPA's request, IA will conduct interviews with complainants or witnesses at the IPA Office.
F. The IPA has the authority to audit DI complaints that have a nexus to a civilian. For example, if the information received alleges misconduct by a SJPD officer towards a civilian and the Chief initiates a complaint, then a nexus exists and the IPA has the jurisdiction to audit the case.
G. In cases where the primary allegation is classified as a Procedural Complaint and a secondary allegation involves minor misconduct, the minor misconduct will be addressed as part of the procedural complaint without requiring a separate case investigation. The disposition of the misconduct will be mentioned in the statement section of the face sheet. The reverse will also be true when the primary allegation is misconduct and the secondary issue is procedural.
H. At the preliminary stage of the investigation for all Unnecessary Force cases and cases initiated by the IPA, CAD printouts, Police Reports, and any other information should be forwarded to the IPA. No Request Memo is required.
I. All witnesses, civilian and police, should be interviewed within three months of receiving a complaint, barring unforeseen circumstances.
As the IPA and the IA continue to work together, further improvements in the complaint and investigative process will lead to an increase in the public's faith not only in the complaint process, but in the police department as well. A fundamental principal that IPA operates under is that a separate investigative body is not necessary because Internal Affairs will investigate citizen complaints in a fair, objective, and thorough manner. Therefore, maintaining these standards is a primary focus of the IPA.
