Yet after two decades San Francisco's celebrated system of police accountability is little more than a cruel joke. For years the Police Department has routinely thwarted OCC investigations by dragging its feet in producing even the most routine of documents requested by the agency. It's often impossible for OCC investigators to do their work before one-year statutes of limitation for sustaining misconduct charges against cops expire. Officers are rarely disciplined for refusing to show up for interviews with OCC examiners. Even when the agency refers abuse charges against a cop to the police chief, the accusations are often brushed aside, which, under the police-friendly procedures established after the OCC's creation, is the chief's prerogative. Meanwhile, the Police Commission, the entity entrusted with overseeing the OCC, has a long-standing reputation for turning its back on citizen complaints and sweeping allegations of police misconduct under the rug while providing political cover for the mayor. Only occasionally does the five-member panel -- appointed by mayors who, without exception, have been beholden to the powerful Police Officers Association, the police union -- intervene on behalf of the OCC, whose director also serves at the mayor's pleasure.
Against such a dismal backdrop voters on Nov. 4 approved Proposition H, the ballot measure pushed by a cadre of reform advocates led by the local chapter of the American Civil Liberties Union that is aimed ostensibly at breathing new life into the city's moribund police accountability system. The new law is a frontal assault on the do-nothing Police Commission. It rips control of the commission from the mayor by expanding the panel to seven members, allowing the Board of Supervisors to appoint three of them, and giving supervisors the power to veto the mayor's four appointees.
Since mayors have long used the commission as a proxy to choose the city's police chiefs, the success of Prop. H means that the 11 often contentious supervisors, for better or worse, will have unprecedented new authority to shape how the Police Department operates. In addition, the measure gives the OCC new muscle by enabling it to file misconduct charges against accused cops regardless of whether the police chief objects. The provision will take effect as soon as Secretary of State Kevin Shelley certifies the election results, most likely by the end of November or early December. The measure calls for expansion of the Police Commission to commence next April.
Supporters predictably hail H's passage as a watershed for San Francisco police reform. "It means police misconduct will be taken seriously, that the community's concerns are going to be heard, and that there will be a more representative and independent Police Commission to ensure that that happens," says the ACLU's Mark Schlosberg, who managed the Prop. H campaign. He says the measure is "extremely significant, not only for San Francisco, but as a role model for the rest of the country." Not surprisingly, the outcome has sent shock waves through the ranks of the SFPD's 2,300 cops. Chris Cunnie, who heads the Police Officers Association, belittles the measure as a "disaster" that would "put the Board of Supervisors in day-to-day control of the Police Department."
The police union, which has never taken kindly to civilian oversight, marshaled heavy resources in a vain attempt to defeat the measure. It trotted out U.S. Sen. (and former cop-friendly San Francisco Mayor) Dianne Feinstein as the poster girl for the anti-Prop. H effort. Feinstein was the star of a "no on H" cable TV spot, and her photo was splashed across campaign mailers and the police union's Web site. She derided H as a "power grab" by the supervisors at the mayor's expense and called it a "dangerous" impediment to the police chief's ability to run the department unencumbered. The other significant political figure in the POA's corner was the top mayoral vote-getter, Supervisor Gavin Newsom, who was solidly opposed to the measure and went so far as to lend his campaign manager, Eric Jaye, to help direct the police union's efforts.
But despite the respective elation and teeth gnashing at the outcome, there is little to suggest that Prop. H will do much, if anything, to bring genuine accountability to the SFPD. For that to happen will require more than merely tinkering with an inherently weak watchdog agency consigned to playing second fiddle to the cops in matters before the Police Commission. For starters, both the San Francisco District Attorney's Office and the U.S. attorney in San Francisco would need to aggressively prosecute abusive cops for crimes related to excessive force, something that neither office has exhibited a willingness to do. (A 1996 survey by the group Human Rights Watch determined, for example, that not a single SFPD officer had been prosecuted for an on-duty shooting in the previous 20 years.)
Prop. H's supporters count on the emergence of a Police Commission more aggressive in rooting out cop misconduct once the supervisors get a say in the appointments. But that may be little more than wishful thinking. As a whole, the Board of Supervisors has been no more inclined to clamp down on cops for alleged abuses than have the city's last four mayors, including Willie Brown. There was scarcely an outcry from the supervisors' quarters last November when Alex Fagan Sr. was elevated to deputy chief and heir apparent to then-Chief Earl Sanders, or in September when Fagan became chief. This despite Fagan's checkered personal history, which includes well-publicized scrapes with the law in 1990 and 2000 that in most any other city would have almost certainly prevented his rise to the top.
Police accountability was almost invisible as an issue during the just-concluded election campaign for mayor in which three of the supervisors, including Newsom and runoff survivor Matt Gonzalez, were candidates. Not even Supervisor Tom Ammiano, a mayoral also-ran who played a key role in Prop. H's being put on the ballot, had much to say on the subject. Its disappearance as an election issue provides a powerful, if unintended, statement about the lack of will on the part of the city's political class to tackle police misconduct. That silence is all the more remarkable coming on the heels of Fajitagate, the scandal stemming from an incident last November in which three off-duty cops, including Fagan's son, were accused of beating up two men outside a Union Street bar over a bag of steak fajitas.
Indeed, there are those who question whether advocates understandably frustrated by the barriers to police reform in a city that prides itself on championing individual rights may even come to regret the measure. "I would say Prop. H addresses some small things," says University of Nebraska at Omaha criminal justice professor Samuel Walker, who has written extensively about civilian oversight issues. "But it's doubtful whether allowing an 11-member board of supervisors to help govern a police department strengthens political accountability rather than weakens it."
It's a Wednesday night in October, and in a drab hallway outside a fifth-floor hearing room at the Hall of Justice a half-dozen uniformed cops are seated on a bench like relief pitchers in a bullpen, talking politics. One expresses alarm that his wife's best friend has said she intends to vote for Prop. H. "People don't realize what this thing means," the cop says. "Yeah," interrupts one of his buddies. "But they better wise up quick unless they want [Supervisor] Chris Daly and that crowd running the [Police] Department."
Inside the hearing room, where the five members of San Francisco's Police Commission have emerged from behind closed doors to conduct the public portion of their weekly meeting, police reform isn't on the agenda. But it is clearly on the minds of many in the audience. Nearly all of the three dozen or so seats are filled, occupied mostly by students, parents, and at least one teacher from Thurgood Marshall Academic High School in the Bayview. The evening is an anniversary of sorts, marking slightly more than a year since a garden-variety fight in a school hallway escalated into something much worse. The official version of what happened, as endorsed by the police, is that it was a student uprising that required more than 60 cops, some in riot gear, to quell. The "community" version is that it was police who rioted after school officials and a cop assigned to the school panicked and overreacted.
Like many disputes involving the SFPD, the jury is still out on this one. Whether there will ever be an authoritative airing of what happened at Thurgood Marshall on Oct. 11, 2002, appears doubtful. Last February, DA Terence Hallinan, at the urging of then-Chief Sanders, dropped criminal charges against a handful of students and a teacher stemming from the incident, in the interest of "community healing." Justified or not, critics smelled a whitewash. And, as is its legacy in such matters, the Police Commission has done nothing to diminish the skepticism. For more than a year, a contingent from the school has demanded that the panel hold a hearing on the matter. In typical fashion, the commission has ignored the group.
If there's consolation, it is that the Police Commission ignores everyone who shows up to complain about the cops. The panel's members are President Connie Perry, an attorney with the state Insurance Department; real estate brokers Victor Makras and Sidney Chan; longtime insurance executive Angelo Quaranta, who owns Allegro, the Russian Hill restaurant and political watering hole that recently closed; and Wayne Friday, a columnist with the Bay Area Reporter, a gay newspaper. The part-time commissioners, who are paid $100 per month, typically conduct their meetings as a model of efficiency, often disposing of up to a dozen agenda items in a matter of minutes. But the portion of their sessions required by law to be set aside for public comments typically turns into a parade of the discontented, with two dozen or more people railing against alleged abuses as the commissioners sit as expressionless as sphinxes, almost never responding.
"It's beyond frustrating," says Malaika Parker, who heads Bay Area Police Watch, an independent watchdog group. "Anyone can see what happens. When someone from the [police] command staff gives a report, the commission is attentive, responsive, and polite. It's all very good-natured. But the minute a member of the public stands up and starts talking about police brutality, [the commissioners] stare through you like you're not even there." Van Jones, a veteran SFPD critic and executive director of the Ella Baker Center for Human Rights, puts it succinctly. "You could put five goldfish in an aquarium and set them up on that rostrum, and they couldn't be any less responsive to the citizenry than this Police Commission."
As the civilian body appointed by the mayor (with confirmation by the Board of Supervisors), the commission has long been the main point of contact with citizens who have a beef with the SFPD. And common misperceptions about the OCC's autonomy to the contrary, the commission has the power to manage, organize, and reorganize the OCC as it sees fit. Owing its allegiance (until the passage of Prop. H, at least) exclusively to the mayor, it rarely challenges his authority or rejects his chosen police chief.
When it comes to holding police accountable, the commission's image under Brown and his predecessors for the past two decades has taken a beating along with that of the department. For years, the SFPD has promoted people to high posts who've been the targets of serious internal discipline or civil lawsuits alleging brutality or other civil rights violations. The foremost example is none other than the current chief. Fagan's 1990 confrontation with California Highway Patrol officers beside a San Mateo County freeway -- in which he grabbed one officer and resisted another's attempt to place him in a hold -- resulted in the commission's suspending him for 15 days and ordering him into 18 months' of alcohol treatment. But that didn't impede Fagan's ascent up the career ladder. In 2000 he was suspended for a month without pay as commander of Northern Station after he got in two traffic accidents on the same day and walked away from one of them. Brown nevertheless appointed him as the department's second-in-command last November, and two months ago, the commission rubber-stamped him as chief following Sanders' retirement.
The commission's fecklessness under Brown has exhibited itself in other ways as well. For example, the panel did little to enforce its own 1999 order requiring police to collect data on the race of motorists pulled over by officers, until the ACLU in 2002 released a scathing report showing disparities in how black and Latino motorists were treated. That finally prompted the commission last November to order the department to ban police stops based on racial profiling and to submit monthly reports to guarantee that such profiling wasn't taking place.
In other instances, the panel has taken action in the face of public pressure only to reverse field when the tide of publicity has ebbed. A case in point occurred in March, at the apex of the clamor over the Fajitagate scandal, when the commission voted unanimously to have Deputy Chief Heather Fong draw up a list of outsiders to probe whether police commanders hindered the investigation of the street fight involving the three off-duty cops. But in June the commission quietly scuttled plans to bring in an outsider, opting instead to have the OCC review the matter. It isn't expected to do so until at least next month, by which time it will have been more than a year since the Union Street incident.
Commissioner Wayne Friday, the only one of the five panelists who responded to interview requests for this article, dismisses accusations that the commission is unresponsive. "We hear that all the time," he says. "People say, 'You're not doing anything. You guys are a bunch of so-and-sos.' But it just isn't true." He turns the criticism back on the panel's detractors, singling out Malaika Parker of Bay Area Police Watch and Mark Schlosberg of the ACLU. "They know what they're doing. They play for the TV cameras, and then they leave."
On paper, the Office of Citizen Complaints is impressive. By law, it must investigate every complaint it receives, currently about 1,000 per year, except for those that are clearly baseless. Police officers are required to cooperate with it. It has access to all police files, recommends discipline, makes policy recommendations, and publishes quarterly reports. It has a team of 15 investigators (among a staff of 32), the number of which is fixed by the city charter, which dictates that there be at least one OCC investigator for every 150 uniformed officers. Symbolic of its ostensible status as the Police Department's equal, its director, newly named Kevin Allen, an ex-public defender, sits at a table near one end of the commissioners' dais, as the chief sits at the same kind of table at the other end. But appearances are deceiving.
In reality, the OCC is more doormat than partner. Any doubt about the extent of the mismatch between it and the SFPD may have vanished in April with the release of a damning 84-page OCC report that provided a rare glimpse into just how unaccountable the cops in San Francisco have become. In detailing the meager level of police cooperation accorded it, the OCC also exposed, albeit unintentionally, the weakness of its own role.
Its report describes an "epidemic" of police defiance of the agency, including the department's stiff-arming of OCC investigators for weeks and even months over simple document requests that could be handled in hours or days. It details how officers refused to cooperate with civilian investigators in an astonishing 63 cases last year. In 29 of those cases, the cops never even bothered to show up for hearings. And that was the good news. Police brushed off the OCC in 88 cases the year before.
Chief Fagan has pledged to "fix" the problem. But the SFPD's inability, or unwillingness, to police itself continues to be a huge embarrassment. In a stunning revelation the day after the election, the department acknowledged that its record-keeping in cop misconduct cases is in disarray. Facing uncharacteristically hostile questions from commissioners, Capt. Dennis O'Leary, who heads the SFPD's internal affairs arm, admitted that case files were found to have been "lying around" for months at department headquarters. He could not say, even now, whether all of the 60 active cases submitted to the department by the OCC had been accounted for.
The development was all the more startling since OCC sources had privately said that the SFPD's cooperation with the agency had improved somewhat in recent months. But others, noting the microscope under which the Police Department has operated since Fajitagate, and the incentive Fagan undoubtedly has to score points in hopes of keeping his job should front-runner Newsom emerge as mayor from the Dec. 9 runoff, are skeptical as to whether improvements, if they exist, will last. "What's happening at the moment isn't the important thing," says attorney John Crew, who spent 15 years monitoring police abuse for the ACLU. "It's what happens next year and beyond."
Created by voter initiative in 1982 after years of public frustration at the lack of police accountability, the OCC has never lived up to its promise. It has been a political orphan from the time it opened its doors in 1983. Former Mayor Feinstein, who then (as now) enjoyed the loyalty of the politically powerful San Francisco Police Officers Association, had opposed it. "It was an uphill battle and a testimony to the frustration people felt about the police that [the initiative creating the OCC] managed to pass," former Supervisor Harry Britt recalls. Britt struck a deal with the police union to take a neutral stance on the '82 initiative in return for his support of two measures affecting police pensions and overtime. Otherwise, the OCC vote may never have gotten over the hump.
But neither the cops who bristled at the prospect of civilian oversight nor politicians more concerned with currying the police union's favor than with promoting genuine police reform have had much to worry about. Implanted within a structure that reduced the agency to playing 90-pound weakling to the Police Department's Mr. Universe, the OCC would have almost certainly been ineffective even if Feinstein and the three men who succeeded her as mayor -- Art Agnos, Frank Jordan, and Brown -- hadn't assigned civilian police oversight a low priority.
During its first few years the agency was so ineffectual that its existence was scarcely even noticed. For the first five years, the OCC director literally didn't have a seat at the table during Police Commission meetings. Critics complained that its first director, Eugene Swann, who lasted barely a year, was unable or unwilling to make a dent in a growing backlog of citizen complaints, rarely holding hearings.
His successor, Frank Schober, who had headed the California National Guard under former Gov. Jerry Brown, shocked reform advocates by openly disagreeing with the OCC's watchdog mission. "There's absolutely no track record of any measurable output or performance by the OCC during its first four or five years, and that's no exaggeration," says Peter Keane, dean of the Golden Gate University law school. Keane was president of the Bar Association of San Francisco in the late 1980s when a few frustrated OCC staffers approached his group with tales of the agency's dysfunction. As a result, several influential lawyers friendly with Feinstein persuaded her to get rid of Schober in 1987.
By then the OCC had become a joke. Voters had envisioned that the agency would be autonomous and beyond the influence of the SFPD. But it quickly had become a police cheerleader. Schober took over promising to hold hearings on backlogged complaints and to move quickly on a number of celebrated brutality cases ignored under his predecessor. But few hearings ever materialized. Instead, the agency degenerated into a public relations arm of the Police Department.
The OCC's quarterly newsletter read like a police trade journal, its pages brimming with puff pieces extolling the SFPD for a job well done. It included coupons that the public was invited to cut out and use to vote for the OCC's "Cop of the Month." The agency even used funds from its meager budget to hire professional models to pose as police officers for billboards that were placed on Muni buses and at strategic locations around town. Neither did the OCC's image improve much under Schober's successor. Although the obsequious newsletter and cop-fawning PR campaigns were retired, the agency came away looking impotent when it finally rose up and went head-to-head with the police in a high-profile case. In 1988, United Farm Workers Union leader Dolores Huerta was nearly clubbed to death by cops trying to disperse a demonstration in front of the St. Francis Hotel. News reports suggested her ruptured spleen and rib fractures were the result of having been batoned by Tac Squad officer Francis Achim. Huerta and the ACLU filed complaints with the OCC alleging, among other things, that Achim had used excessive force.
After a lengthy investigation, the OCC agreed and asked then-Police Chief Frank Jordan to press misconduct charges against Achim. But as a harbinger of cases that have long diminished the OCC's effectiveness, a parallel probe by the SFPD's internal affairs unit concluded that no discipline was necessary. When it came time for the Police Commission to render a decision, Jordan threatened to resign rather than punish Achim. As part of a pattern from which it has rarely departed, the commission sided with the chief. In an outcome that has since become all too familiar, Huerta won an $825,000 lawsuit settlement -- the largest ever against the Police Department.
Keane insists that it wasn't until the 1990s "that there was anything approaching a legitimate attempt" within the OCC to make the agency function as voters intended. Arriving as director in 1996, civil rights attorney and law professor Mary Dunlap, who died in January after a struggle with pancreatic cancer, is credited with having turned the agency around from its years of wandering in the wilderness. She was praised for improving professionalism and for a willingness to at least take on police brass (even if unsuccessfully) in cases in which her predecessors were more likely to take a pass.
For the past two years during Dunlap's illness, and until Kevin Allen was appointed director in April, the agency was run more or less by committee, with three of Dunlap's former top aides sharing responsibility. But as the OCC's own dismal appraisal of the cooperation it receives from the Police Department reveals, the agency -- while having shaken off the torpor it had under Schober -- has hardly approached the promise invested in it 20 years ago. "For too long [the] OCC was supposed to be a watchdog and it was really a lap dog," says former ACLU attorney John Crew. "I would say it's a work in progress."
Whenever social worker and police reform advocate Mesha Monge-Irizarry needs an example of how unaccountable San Francisco's cops have become, she need look no further than a picture of her dead son.
Her son, Idriss Stelley, 23, had gone to the movies at the Metreon with his girlfriend on June 13, 2001. An honors computer student and volunteer tutor, he had a long history of depression that, among other things, had resulted in his being drummed out of the Navy the year before. Stelley was off his medications when he had a psychotic episode at the theater that day. The girlfriend called Stelley's mom, who told her to call police. Monge-Irizarry, whose work with substance abusers and the homeless over the years made her well-versed in cop vernacular, calmly instructed the girlfriend to tell police that it was a "5150," law enforcement lingo for a mental health situation.
Stelley kissed his girlfriend and asked her to leave the theater. He also stood up and asked the other patrons to leave. By the time cops arrived -- nine of them -- he was there alone. There were no witnesses other than police to what happened next. But what is known is that three of the cops pumped 10 bullets into Stelley. They said that he was swinging a knifelike instrument with a 2-inch blade on the end of a chain and that he lunged at them as they approached him near the back of the theater. The officers later said that they'd used pepper spray, but that Stelley was wearing glasses and it didn't seem to faze him. Two of the cops tried and failed to knock the weapon from his hand with their batons, they said. In all, at least 20 shots were fired -- a deadly hail that also left one officer wounded in the leg and buttocks.
"Someone called for mental health, and they sent in the cavalry," says Andy Schwartz, the attorney who represented the Stelley family in a lawsuit against the Police Department. After cremating her son, Monge-Irizarry filed a complaint with the OCC. To this day, she doesn't know if any misconduct charges were sustained. If they were, they never made it past the department brass. In fact, it was only after much public kicking and screaming that the SFPD agreed, two months after the tragedy, to release the names of the officers who were present at the theater that night.
Not surprisingly, no one in an official capacity has ever hinted that police may have overreacted when they blew away a mentally distressed student on a date during a screening of the movie Swordfish. But in textbook fashion for San Francisco, the Police Commission in June of this year quietly put the matter to rest. Meeting behind closed doors, the commissioners approved a $500,000 settlement with Stelley's family in which the cops acknowledged no wrongdoing. Monge-Irizarry used some of the money to set up the Idriss Stelley Foundation, which provides services to families of those who have been disabled or killed by police. But she hardly calls the outcome justice. "The Police Commission and the OCC are set up to go through the motions," she says. "Does anyone in power really want to hold the police responsible? I don't think so."
The commission's use of taxpayer money as a substitute for police responsibility is a familiar scenario. The panel did so in 2000 in the case of 17-year-old Sheila Detoy. She was shot and killed by police in 1998 while a passenger in a car leaving the Oakwood Apartments in Bayview-Hunters Point. The police had staked out the apartment complex hoping to arrest one of two men in the car with Detoy who was wanted on drug charges. When the suspect prepared to leave the complex, police blocked one end of a horseshoe driveway with a van. Officers said that the driver, Michael Negron, 22, who was not the target of the stakeout, put the car in reverse and sped backward down the other end of the driveway toward two cops, and that one of them, Gregory Breslin, fearing he was about to be hit, fired at the car. His bullet struck Detoy in the head, police said.
But a month later, a witness came forward to challenge the official account, saying that she saw the car Detoy was riding in drive forward, not backward, down the driveway and that Breslin and another officer who fired at the car were never in danger of being hit. The family sued, and in 2000 U.S. District Judge Charles Breyer ruled that Detoy's case was strong enough to go to trial. "A reasonable jury could find that Breslin was not merely reckless, but rather acted with an intent to injure unjustified by legitimate government interest," the judge wrote.
An SFPD internal probe and one by the DA's Office cleared Breslin of wrongdoing. He was later promoted to sergeant and transferred to a security detail at SFO. And true to form, the Police Commission in November 2000 quietly approved a $505,000 legal settlement with Detoy's mother. As part of the deal, there was no admission of police wrongdoing. "No one can credibly say that the officers acted reasonably," says attorney Kaldoun Baghdadi, who represented Detoy's mother. "If I'm wrong, why did the city pay out half a million dollars?"
But unlike some other high-profile cases, the door has remained tenuously ajar in the Detoy matter in a way that demonstrates how impotent the city's oversight of the cops has become. Almost forgotten in the aftermath of the Detoy settlement is the fact that five years ago the OCC also sustained allegations of unnecessary force and conduct discrediting the department against Breslin in the Detoy case. In circling the wagons to protect his officer, former Police Chief Fred Lau essentially vetoed the agency's findings by ignoring them. Only in this case, the OCC, shortly before Lau left as chief in 2001, did something it rarely does. It went over the chief's head to the Police Commission, requesting that the panel pressure Lau to follow through in disciplining the officer. Then the commission did something equally unusual. It instructed Lau to file misconduct charges.
During the campaign over Prop. H, the police union's attorney, Katherine Mahoney, cited the Breslin case as an example of why the ballot measure wasn't needed. "The OCC asked the commission to have the chief file charges, and he did," she said. "It shows that the system works."
Not quite.
Two years after Lau relented under pressure to file charges, there's been no discipline of Breslin or anyone else. The Police Commission sat on the charges and Breslin's lawyers have since filed motions to toss them out, citing statutes of limitation. In the parlance of the Police Commission, five years and three chiefs after Sheila Detoy was gunned down, the matter is "pending."
