Last fall, the City of San Jose’s Independent Police Auditor (IPA) Shivaun Nurre issued her 2021 annual report on police oversight of the San Jose Police Department. It provides a detailed analysis of allegations of police misconduct in San Jose. Techies would call it “granular” data.
On September 13, 2022, after reviewing the IPA’s report, NBC Bay Area’s story covering the report’s release carried the headline: “Nearly a Third of SJPD Officers Had Complaints Against Them in 2021.” This led their readers to conclude that police misconduct in San Jose is a serious problem. On December 13, 2022 the San Jose Spotlight reported that complaints against San Jose police officers had “spiked”. And not to be outdone, San Jose’s outgoing mayor Sam Liccardo pledged to “to move San Jose Police Department misconduct investigations away from cops and into the hands of a civilian watchdog”.
The public is left with little but to believe that police misconduct is rampant.
But grains of data carry a whispered truth not often reported in the media or discussed by politicians. It takes reading through 60 pages of information before one finds that just 111 complaints were received by the IPA’s office in 2021. The rest of the complaints – 262 – were generated by SJPD itself through its internal affairs (IA) system of oversight.
A more important figure is the number of complaints that were sustained by the combined investigative efforts of the IA and the IPA. In 2021, that number was 12 percent. And 2021 wasn’t an outlier – in 2020, 13 percent were sustained and in 2019 just 7 percent were sustained.
By page 67, the IPA begins compiling individual acts within each complaint that are, in effect, separate counts of misconduct within one complaint. That number is 1023. Yet even that high number doesn’t significantly change the low level of sustained findings.
Of the 1023 multiple count allegations divined by the IPA, the sustainment rate was a scant 5 percent or 51 allegations.
To put it in perspective, San Jose’s police department received 1.25 million calls for service in 2021, which doesn’t include the myriad of other ways the police encounter the public through car stops, pedestrian stops, and conversations at the local Starbucks. These encounters must number well into the millions. In all of those instances, the 12 percent of sustained complaints total just 13 acts by an officer.
Of the remainder, 33 percent of complaints were unfounded and 47 percent were exonerated. Put simply, 80 percent of the complaints didn’t happen.
What was the overwhelming recommendation for IPA findings? More training and revised police policy. SJPD adopted 85 percent of those recommendations and none were rejected – the difference is in process.
The IPA engages in significant outreach to the community and publishes brochures in multiple languages encouraging people who believe they were victims of police misconduct to report those incidents to the IPA. They travel to area schools, set up informational booths at community events, the library system stocks IPA informational material, and IPA staff are often stationed outside of city council meetings in addition to a robust online presence.
The California Attorney General’s office encourages aggrieved individuals who choose not to report their local department to make their complaint directly to his office. The US Department of Justice also accepts reports of civil rights violations and police misconduct through its website.
With headlines like those from NBC Bay Area, it would be difficult to make the argument that San Jose’s residents are not making complaints for lack of knowing about the process.
There may no more scrutinized profession than policing.
A line officer on patrol is supervised by a chain of command that can include a sergeant, various middle managers, an IA division, and a chief of police. Then oversight jumps to police commissions, IPAs, city councils, and even commissions to oversee the IPAs, all before their actions are reviewed by defense attorneys, prosecutors, and the judicial branch of the state. Finally, numerous private legal advocacy organizations, political candidates, and office holders are there to keep the police honest and operating within the confines of the Constitution – or more commonly within the agenda of the political forces seeking office or in need of the public’s financial support.
Distrust of authority and protections against governmental misconduct lie at the very heart of the American psyche and are enshrined in our Constitution. So too are scurrilous manipulations of fact to discredit the role of policing in American society that go back to no less than the Boston Massacre. The accused British soldiers and their commanding officer were aggressively and wrongly mischaracterized by some of America’s most iconic names including John Hancock, Paul Revere, and Sam Adams.
On the other side, the British soldiers were ably defended by another icon – John Adams – who began his closing argument with the words “I am for the prisoners at the bar” and concludes two days and nearly 12,500 words later:
The law, in all vicissitudes of government, fluctuations of the passions, or flights of enthusiasm, will preserve a steady undeviating course; it will not bend to the uncertain wishes, imaginations, and wanton tempers of men…. Tis void of desire and fear, lust and anger. ’Tis menc sine affectu; written reason; retaining some measure of the divine perfection. It does not enjoin that which pleases a weak, frail man, but without any regard to persons, commands that which is good, and punishes evil in all, whether rich, or poor, high or low,—Tis deaf, inexorable, inflexible. On the one hand it is inexorable to the cries and lamentations of the prisoners; on the other it is deaf, deaf as an adder to the clamours of the populace.
The social contract is a delicate thing – it balances societies freedoms with its need for safety and security and the “clamours of the populace.”
Make no mistake – the police are and should be accountable to the law.
Liberals and libertarians are calling for the end of the Peace Officer Bill of Rights, qualified immunity, and police labor agreements. Yet if San Jose is any example, there is scant data to show that there is any connection at all to patterns of misconduct and the protections the above three provide. A police agency beholden to the political whims of the public and unscrupulous politicians is exactly why they exist to begin with – lest we return to the days of machine cities and the justice of Tammany Hall – where a crime against a political rival is no crime at all.
Today that clamour is driving police from the profession and discouraging others from joining. I attended a correctional officers academy in Santa Clara County two months ago where just 20 officers were in the graduating class and who were spread between four counties. The Santa Cruz Sheriff’s Office has lost 3 out of 4 correctional graduates from their last round of hiring and the last San Francisco Police Academy has just 13 graduates – yet the SFPD is hundreds of officers understaffed. Tehama County will soon end daytime patrols due to low staffing. Oakland PD officers are alleging that due to short staffing, their own department is using the IA process for inconsequential violations of policy to actually prevent officers from leaving for other departments – knowing an officer pending discipline is rendered unqualified by many agencies.
In the void left by unpatrolled streets in San Jose and elsewhere and enabled by legislation that facilitates the most criminally minded amongst us – victimization is on the rise.
What would John Adams say?
Steve Smith is a senior fellow in urban studies at the Pacific Research Institute.