By Mia Machado
SAN FRANCISCO, CA — The UC Hastings Journal of Crime and Punishment hosted a symposium last week to discuss the decades long issue of police misconduct and lack of accountability, inviting a number of panelists including San Francisco District Attorney, Chesa Boudin.
Following the tragic deaths of Breonna Taylor and George Floyd at the hands of police, it became “crystal clear” to the Journal of the importance of discussing why police misconduct and lack of accountability continue to exist, the efficacy of the current structures in place to deal with the issue, and what can be done moving forward.
The panelists, in addition to DA Boudin, included San Francisco Chief of Police William Scott, Co-founder of the Anti-Police Terror Project Cat Brooks, Alameda Public Defender Brendon Woods, and Executive Director of Oakland’s Community Police Review Agency, John Alden.
Former Public Defender and reform-focused Boudin spoke to the many challenges of navigating police accountability and the prosecution of officers, and elevated the importance of institutional changes in policing, as opposed to the actions of any single individual.
To begin the discussion, moderator and UC Hastings professor Jonathan Abel reminded panelists that in both San Francisco and Oakland, police complaints were once handled entirely by police departments through their internal affairs process.
Now, both cities have separate review agencies outside of the police department, with Oakland pending a proposal to remove all internal affairs functions from the police department and put them solely in the hands of the police commission.
After a general consensus among panelists of the inability to rely on police officers to hold other officers accountable for their misconduct, DA Boudin discussed the strategies San Francisco utilizes to tackle the complicated task of police accountability.
While acknowledging the serious issues of the history of policing, and the role that police as an institution play in our communities, DA Boudin emphasized that “most police officers are not out there committing crimes on a daily basis.”
Individually, “most police officers every day are doing a very difficult job, and they’re trying to do their best under the circumstances,” he explained. However, “some of those officers, in the course of their work, will do things that amount to either violations of their general orders… or may do things that amount to criminal conduct.”
While it is a “really complicated thing” to decide whether a police officer’s use of force was an administrative violation, lawful self-defense, or potentially murder, DA Boudin asserted that San Francisco framework serves as a “close” model of how to effectively tackle the issue.
In San Francisco, there is a memorandum of understanding that lays out the ground rules for how his team will take the lead in certain categories of investigations that may result in criminal charges.
He explained that they have a team of investigators and lawyers “on call 24/7,” ready to show up at the scene of an officer involved shooting, or other incident— including any in-custody death— and take the lead on investigating the cause of death, or use of force.
While the police department has to do their own internal investigation—with parameters in place for how much is shared between the two agencies — DA Boudin said that “it’s been tremendously productive.”
Under this system, the San Francisco DA’s office has “been able to play a role that other district attorneys have been unable or unwilling to play.” As a result, the DA’s office and the police department “don’t always agree on the outcome, and there have been three cases where [DA Boudin] filed criminal charges against officers.”
One of those cases was the first ever homicide charge filed against a San Francisco Police Department officer who was on duty at the time he shot and killed an unarmed black man.
There are other instances, however, when a police officer’s misconduct may have not been consistent with training or a violation of some general order, but they do not believe that they can file a criminal charge, said Boudin, adding, “we will leave it to Chief Scott, and the other administrative bodies to figure out whether there’s retraining, discipline, or termination as an appropriate remedy.”
DA Boudin asserted that just as there are limits of prosecuting criminal charges for other areas of life where there are other serious social issues, “it is not a solution to every form of police misconduct, or the only way in which we can hold police accountable.” It is one tool among many.
Following this discussion, Public Defender Brendon Woods questioned whether DA Boudin believed prosecutors and DA’s offices were in an appropriate position to prosecute police officers, people they may be working with on a daily basis.
It “seems to be almost the same thing as having [officers police other officers]. It’s inherently flawed,” Attorney Woods charged.
“When it comes to police officers, the community is looking for justice, and we’ve seen over and over again where we’re not getting that justice or anything close to justice. As a concept, can we really expect prosecutors who work with police on a day in, day out process, to prosecute them for these crimes?”
DA Boudin asserted that the answer is “almost a rhetorical question.”
He admitted that “we all know most of the time absolutely not, and so there lies part of the problem.” He recognized the inherent conflict that Attorney Woods was suggesting by discussing his relationship with SFPD Chief Scott.
“My personal relationship with Chief Scott is great. I love working with him, I blow him up on the weekend sometimes — in the pre-pandemic era — and we sit down for lunch,” he said. However, DA Boudin explained the necessity of this relationship and the two departments working, “hand in glove.”
“We have to. They bring us our cases, we rely on their testimony, we read their reports, it’s how we make our decisions, it’s how we make our cases,” he reasoned.
Understanding this conflict of interest, the DA said, is “one of the reasons why we have an independent investigation bureau, separate from the rest of the office.”
The lawyers, he said, appointed to handle cases of police misconduct are not the same lawyers handling traditional cases brought to them by police, such as robbery, petty theft, or murder cases. Instead, the framework is “built around the recognition of the problem” — elevated by Attorney Woods.
DA Boudin explained that San Francisco’s model facilitates a “firewall” between police and the lawyers accountable for prosecuting them, allowing the DA’s office to “credibly, independently, and reliably play the independent role in checking potentially criminal conduct by police officers.”
Despite this, DA Boudin recognized that “there’s always political pressure, there’s always relationships, and there are always very serious obstacles that make it harder to initiate a case against a police officer, than it is against one of the many young, Black and brown” defendants that Attorney Woods represents.
“That’s the political reality that we live in,” he admitted, “I don’t think that changes if you have the Attorney General take over, I don’t think that changes if you create an entire new agency to look over these cases.”
Cat Brooks expressed her appreciation for the “transparency” DA Boudin brings to his role in San Francisco, and how it helps community organizers garner a “greater understanding of how difficult bringing those charges are.”
The community is “riding” on DA Boudin to help shape their organizing, Brooks said.
When asked how he approaches reprimanding officers for “conduct that is not necessarily illegal, but also not necessary to effectuate their jobs” — such as cursing at suspects or pulling guns on individuals that are not armed — DA Boudin emphasized the importance of institutional change and cultural changes within policing.
After pointing out that the discussion had been largely focused on “individual officers who may have committed a crime or who may have violated administrative rules,” he stressed the importance of focusing on institutional and cultural change, “to be really precise about where levers of accountability and power really are.”
While Chief Scott is “the single most powerful person in the police department… it doesn’t mean he can snap his fingers and change everything he wants,” DA Boudin noted.
Police unions’ critical and “unchecked” role in policing is the “very central reason” why many laws and protections exist against the criminal prosecution or termination of officers, he added.
DA Boudin emphasized the need to be detail-oriented about where the roadblocks and obstacles are, and “what are the structures that lead to impunity.”
“It’s not as simple as electing someone like me or appointing someone like Chief Scott. No matter how deeply committed we may be to change, to cultural transformation, to accountability, to equal enforcement of the law, there are other real obstacles,” he said.
He maintained the importance of understanding the role of mayors, legislators, and police unions, in influencing the terrain where we make decisions.
Mia Machado is a junior at UC Davis, currently majoring in political science-public service and minoring in Luso-brazilian studies. She is originally from Berkeley, California
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How about ending qualified immunity for police officers caught committing wrong doing?