The Police Commission made very clear last night that the members were unhappy with the way Chief Bill Scott handled the decision to withdraw from the agreement with the District Attorney’s Office that allows the DA to take the lead in investigating police shootings and beatings.
In effect, the commission told the chief to go back and negotiate with DA Chesa Boudin and find a way to resolve the matter.
It will be back on the agenda next week “for resolution,” Vice President Cindy Elias said.
Not one commissioner backed the chief’s position.
But Scott didn’t back down—making it clear that unless the commission orders him to re-instate the MOU, it will expire Feb. 17.
That would mean a return to the days when the cops cut the DA’s Office out of the loop in police shootings and did their own investigations, that would typically fall somewhere between incomplete and a total cover-up.
So it’s up to the commissioners to act, not just to hold a further hearing but to decide whether to allow the chief to get away with this.
As longtime police-accountability lawyer John Crew noted in a letter to the commission:
The Chief of Police has lit a fuse that will cause an explosion on February 17th. The Police Commission must either convince or, if necessary, order the Chief to extinguish that fuse before the bomb at the end of it blows up.
A letter from Boudin to the chief, and testimony at the commission hearing, made it clear that there is no real issue here about violations of the MOU—or in fact, about the case that Scott is using to undermine his own reform policies.
For starters, Boudin notes:
More importantly, the MOU was effective. In 2019, the first year the MOU was enacted, there were zero killings by SFPD officers. In 2020 and in 2021 there have been one killing each year. This is dramatic progress from the context in which the MOU was created, and your department and my office deserve praise for the effectiveness of this agreement. Indeed, the SFDA’s JIB and the MOU that created it were so significant that the California DOJ’s2 report relied upon the MOU in many of its findings that the SFPD was on the road to reform. The unilateral decision by SFPD to walk away from this MOU suggests that the California DOJ may need to reconsider its findings.
In fact, after looking at the actual facts, I can only conclude that Scott’s allegations are what can only be called a “pretext:” A bogus set of inaccurate “facts” that provide a false rationale for a political decision that they chief wanted to make anyway.
The Police Department, in a press release, argues that
Based on sworn testimony and evidence, however, it is clear to the chief of police — as it should be to any reasonable observer — that the San Francisco District Attorney’s office has breached its agreement and betrayed a public trust both our departments owe to the San Franciscans we serve.
Let’s look at what happened here.
The agreement states that the District Attorney’s Office, not the SFPD, will be the lead agency in investigating cases of police shootings and use of force. It requires the SFPD to turn over to the DA any relevant evidence in a case—but the 2019 and 2020 versions of the MOU do not require the DA to turn evidence over to the cops.
As Commissioner John Hamasaki said at the Police Commission last night, the chief in his public statements has not mentioned that the DA followed the letter of the previous MOUs—which were in effect during this case.
In the case that Chief Scott is using as his pretext, police officers responding to a 911 call saying a man was being violent to a woman attacked Dacari Spears, who was unarmed, so badly that he was hospitalized with numerous broken bones.
None of the responding officers reporting seeing any violence. Spears was never charged with domestic violence. His girlfriend, who was with him at the time, said very clearly that he was comforting her after she lost her wallet, not harming her in any way.
An investigator from the DA’s Office, represented, Boudin says, by a lawyer from the SF Police Officers Association, said in court that she was pressured to withhold evidence about the potential domestic violence from the warrant that was prepared for the arrest of the officer.
But here’s the reality, from a letter Boudin sent to the chief:
On October 8, 2019, SFPD Sgt. O’Connor, who was leading the SFPD’s investigation into the ancillary incident, conducted a lengthy telephonic interview of a witness (referred here by her initials “ME”) who had called 911. Thereafter, on December 3, 2019,3 a DA Inspector, Magen Hayashi, personally interviewed “ME.” This interview contained no new information or changes from what ME had told Sgt. O’Connor earlier. Thus, your purported basis for ending the MOU was that Hayashi did not provide Sgt. O’Connor this duplicative statement of “ME”—a witness whom he had already interviewed and to whom O’Connor had equal access (indeed he had spoken with her first and at length).
While represented by a POA lawyer, Hayashi made allegations that she felt pressure to withhold exculpatory information in writing her arrest warrant—an arrest warrant that she submitted under penalty of perjury. Despite the fact that a summary of the statement was in the warrant and the evidence was not exculpatory, these are serious allegations indeed. However, there was absolutely no evidence presented to support these allegations. On February 7, 2022, after considering this testimony, the judge denied the defense’s motion to dismiss. I am confident that these allegations are unfounded and that an investigation being undertaken will reveal this to be the case.
Hamasaki put it this way:
Hayashi did this investigation in 2019, and she wanted more information in the indictment. She’s an investigator, and she says she knows better than the lawyers.
This is, as several commissioners noted, not much more than a minor technical issue.
So there’s really not a lot here, certainly not evidence that the DA’s Office has breached the MOU or the public trust.
But Chief Scott is under a lot of pressure from the POA, and I would guess from the mayor, who opposed Boudin and would like to see the person she appointed to that office back in control.
Several commissioners, including President Malia Cohen, said that the chief needs to work with the DA to repair this MOU. “We need to be back at the table,” she said.
Hamasaki repeatedly asked the chief why he chose to do this at this time, right before the trial of officer Stangel. The chief repeatedly insisted that the SF Police Officers Association had nothing to do with his decision, although there was a vote of no confidence in the chief scheduled just as he issued his statement, and it has since been cancelled.
He did say that the Stangel case was “a breaking point” for the rank and file in the department, and that he wanted to be sure that the interests of the people in uniform are considered.
The chief’s decision was also something of a breaking point for several commissioners. Hamasaki said he was “blindsided.”
Elias said that the chief had long been complaining about the officers on the streets thinking the reform process was happening too fast.
So the cops are mad that, for the first time in modern history, the DA’s Office has filed a criminal case against a cop for beating someone without cause. There will be more cases like this. And the rank and file (who, by the way, are all represented by the POA) are rebelling, and the chief is taking their side.
That’s what’s behind all of this. And if the commissioners don’t act clearly and forcefully, it’s going to keep happening. Again, Crew:
If you let that bomb go off, as of February 18th it will once again be the police being left to police themselves after every shooting, every violent police use of force — and that’s exactly what some of the people pressuring Chief Scott to light that fuse have always wanted. And, if that happens and, heaven
forbid, there’s a fatal shooting by SFPD in late February, people are going to come to you —
not the Chief — demanding to know why you put the police back in charge of the investigation.