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Gascon’s Proposal for OIS Investigations Lacks Checks and Balances, Spurns Due Process

April 1, 2017
Martin Halloran SFPOA President

The Fox Wants to Guard the Henhouse

All sworn law enforcement personnel are committed to protecting the community they serve. San Francisco police officers are among the most committed of all to fulfilling that solemn pledge. We value the sanctity of life above all else. Accordingly, we are bestowed with a sobering degree of power granted to us by the U.S. and state constitutions, laws, and judicial rulings. The vast majority of officers strive to use that power justly and sparingly. Few relish its abuse.

In the most extreme of circumstances, an officer must discharge that power to the level of lethal force. It is a difficult call. That decision is most likely made in a split second, and done so in order to save the life of another or of them self. Sadly, I know first-hand how quickly the horror of such moments unfold.

Once an officer crosses that threshold, he or she knows that multiple investigations from several related and non-related law enforcement agencies will be launched. Those investigations will ultimately determine if the level of force was within policy, warranted, and justified. These agencies will present independent conclusions and recommendations to the District Attorney's office. Based on those findings, the District Attorney will render a charging or non-charging decision, and eventually he/she will issue a declination.

The separation of the investigative body from the charging and prosecuting body is logical, and parallels our democratic values. Our criminal justice system is well-steeped in due process and adherence to a system of checks and balances. This is the standard practice throughout the nation. It provides necessary safeguards, and prevents a single agency from tainting an investigation in order to justify a predetermined conclusion -- which is almost always politically motivated.

Well, logic, like local politics, is often twisted in San Francisco.

District Attorney George Gascon is proposing that his office now take the lead in the investigations of all officer involved shootings and in-custody deaths. The POA is not opposed to any legitimate agency investigating our members. We never have been. But if the lead investigative body is also the same agency tasked with possibly filing criminal charges against a member, and then possibly prosecuting that same member, that is a clear conflict of interest. It is a deviation from our system of justice.

Nationwide, local District Attorneys are traditionally the prosecuting entity in cases brought forward from law enforcement agencies after a thorough investigation. To have a single body (DA office) in total control of the investigation, charging, and prosecution makes it ripe for conflict of interest. Such an unbalanced process is inherently unfair, and skewed against the officer(s) under investigation.

Gascon's office does not have the qualified experienced investigators, the needed staffing for crime scene management and processing, nor the infrastructure to take over these highly complex cases. There is also language in this proposed draft that violates state law. As one non-POA attorney, who is well versed and experienced in Officer Involved Shootings, told me: “This is just screwy language. There are some constitutional problems here.”

The POA has never wavered from multiple independent investigations. We welcome it. That makes sense. But a single agency conducting the investigation, who is also responsible for possibly charging the case and then prosecuting the case, does not make sense.


The POA Proposed Model

The POA proposed a model that is used by some jurisdictions. After an OIS, several trained experienced investigators from neighboring agencies partake in the investigation and then collectively offer a report with recommendations to the District Attorney in that county. That results in a transparent, fair, and apolitical investigation. That is what the POA wants.

Hopefully the department will reach a reasonable and responsible agreement that will make these investigations fair, impartial, and transparent, that will lack clear conflicts and political overtones. If not, then the fox will be guarding the henhouse and that's not going to be good for anyone.