Three bullets still remain in Javier Gonzales-Guerrero’s body. One in his spine. Another in the tailbone. The third is lodged in his left leg. At least 17 bullets made their way out. Some went straight through, others were taken out in bits over the course of a dozen-plus surgeries. He has screws in his knee and a rod that fortifies his right femur. His body burns from scars and nerve damage, and for eight months he wore a colostomy bag. His doctor at Stanford, Ivan Chang, told him he’d have no choice but to live with the bullets and the pain. Surgery would risk paralysis. In addition to the aches in his hip and knee and spine that force him to sit up in the middle of the night—reminding him of that fateful morning three years ago, when police punctured his body like Swiss cheese—the mirror tells a similar story, as a scar runs across his right cheek from a bullet that grazed his face. That may have come from one of the same shots that went through his hand as he covered his head in fear.
The last moment Javier Gonzales-Guerrero remembers from that day is opening his eyes to a San Jose police officer standing over him. He blinked at the man with the gun. Four more officers stood below him—he didn’t see them. They’re the ones who shot first.
“Put your hands in the air!” one officer shouts, according to depositions. “Don’t move!” says another, contradicting his partner.
A little more than a year later, an attorney sitting in a 16th floor suite at San Jose’s downtown City Hall will ask Gonzales if he raised his arms before he got shot.
“Yes,” he says. “I was—I was putting them up, and I got shot.”
“Okay,” says the attorney. “Why did you put your hands down to the right side of your body?”
“Because I got shot,” Gonzales says. “It was so painful.”
And then officers shot him some more.
It was Oct. 22, 2011, and Gonzales, 25 at the time, did what many people his age do around Halloween. He got dressed up in a costume and had some drinks with friends. All Natural Stone was holding its annual company party and Gonzales, who had done some contract work with the tile supplier, wanted to be safe, avoid drinking and driving. He checked into a room at the Extended Stay Inn with a couple he knew, and he and his buddy each poured a cranberry and Grey Goose into plastic cups.
People got tipsy at the party, as they do. Gonzales dressed in a sombrero and OR scrubs, the latter component serving as an ominous choice for what would later transpire. Witness interviews found that he took a picture with a woman at the party, Jacqueline Bartlett, who came dressed as a “nun with a gun.” For her costume she painted a plastic toy pistol gold, apparently to make it look “more real.” The prop got passed around like drinks throughout the night. Gonzales returned to his hotel well after midnight, the toy gun tucked in his waistband. His friends had come back earlier and didn’t answer his phone calls when he was trying to remember which room they were in.
Gonzales fell asleep in the stairwell after a few unanswered calls. Other hotel guests tiptoed around him later that morning. When the hotel maid had no luck waking Gonzales, the hotel manager went to rouse him and saw that he had a gun in his waistband. She called 9-1-1, and San Jose police officers were dispatched. Gonzales was passed out on the stairwell between the third and fourth floors, and one officer, Jeffrey Banister, made a tactical decision to go up an extra floor. Four more officers approached from below the landing on which Gonzales slept.
Banister called down to his fellow officers, "Do you want me to Tase him,” but no one responded. Instead, guns drawn, the four officers below the landing shouted their presence. Gonzales didn’t respond. Rather than risk being attacked in ambush—despite knowing Gonzales had been asleep or unconscious for some time—the officers, nerves turned up, continued to thunder verbal commands on a man who was just starting to wake. Shots soon followed.
An investigation by the Santa Clara County District Attorney’s office says Gonzales reached for the weapon—a weapon all of the officers assumed was real; only the dark butt of the toy gun was visible—and police opened fire. When Gonzales recoiled in pain, they unloaded another volley of rounds. Somewhere between 24 to 26 shots total—inexplicably, that number was never precisely identified in the DA’s report.
Officers involved in the shooting appear to have given inconsistent orders, according to depositions in a civil suit that Gonzales filed. Three SJPD officers—Mark and Tim Stephens, and Gary Petrakovitz—all say Gonzales only reached for the toy gun when they opened fire on two separate occasions. But Sgt. Brian Johst, who fired three to five rounds, says Gonzales actually pulled the gun out and aimed it at the officers. All four men were standing right next to one another.
Those conflicting accounts could be why the city of San Jose settled the lawsuit out of court last year for almost $5 million, or about $250,000 per bullet wound.
The DA cleared all officers of criminal charges in a report made public in November 2012, noting that the officers feared for their lives and used a proper amount of force “due to an apparent and immediate threat of great bodily injury or death to themselves and other individuals.” The DA also said no charges should be filed against Gonzales—whose blood alcohol that morning measured .10—because waking up in a haze doesn’t constitute defying an officer’s order.
But none of the four officers were ever disciplined internally by SJPD beyond the typical 10-day administrative leave imposed after anyone fires their weapon. In fact, of SJPD’s 25 officer-involved shootings from 2009 through 2013, not a single officer has ever been disciplined.
Several patterns emerge from a close look at officer-involved shootings by South Bay law enforcement during the past five years. Almost all of the officer-involved shootings involved male suspects. Most had lengthy rap sheets, although Gonzales and one other person shot by SJPD did not. Most of the incidents occurred in East San Jose. Approximately 60 percent of the people shot by SJPD identified as Latino, according to the Independent Police Auditor's annual reports. Almost a third of people shot by San Jose police in those reports, 28 percent, were unarmed.
Fear and the self-preservation instinct come into play when law enforcers evaluate a situation and make split-second decisions. A moment’s hesitation can have grave consequences. Cops know that 24-year-old SJPD rookie Jeffrey Fontana was ambushed and killed 13 years ago in an Almaden Valley cul de sac, and that two veteran Santa Cruz officers were surprised and killed last year when they showed up at the doorstep of a barista suspected of sexually assaulting a co-worker.
Fear led to Gonzales’ tragic shooting, and it is what has motivated officers to escalate their responses to the most deadly of force. An officer’s fear for his or her life, the potential of a great bodily injury and/or the risk that someone could flee and commit a violent felony, has been cited in every instance in which South Bay officers have shot, and sometimes killed, members of the public. In several cases they have fired their guns in response to other shots, unaware that the only bullets were coming from other officers’ weapons.
The defense for using deadly force is rooted in case law, but even staunch supporters of SJPD, such as the late Police Chief Joseph McNamara—who liked to tell stories about working the beat in Harlem for two decades and never using his gun—have openly questioned how quick officers are to now pull the trigger.
“Yes, police work is dangerous, and the police see a lot of violence,” McNamara wrote in a 2006 op-ed for the Wall Street Journal. “On the other hand, this isn't Iraq. The need to give our officers what they require to protect themselves and us has to be balanced against the fact that the fundamental duty of the police is to protect human life and that law officers are only justified in taking a life as a last resort.”
San Jose Inside’s records requests have found that the Bay Area’s three largest law enforcement agencies—police departments for San Jose, San Francisco and Oakland—have taken part in 111 officer-involved shootings since the beginning of 2009. Forty-two people died from their injuries. While this information is open to records requests, it is not readily available and law enforcement agencies have actively sought to keep much of the details of these incidents out of the public eye.
At last count, approximately 750 law enforcement agencies across the country self-report data about officer-involved shootings (OIS) to the FBI. That number equates to just 4 percent of the total number departments nationwide. The Santa Clara County Sheriff’s Office says it reports in-custody deaths to the California Department of Justice, while SJPD says it reports “justifiable homicides." But the last report on the state DOJ's website for such incidents is nearly a decade old. And much has changed since then.
D. Brian Burghart, editor of the alt-weekly Reno News & Review, started his own crowdsourcing database in 2012 to track the number of people across the nation being killed by police. He described the site, FatalEncounters.org, and his experiences in an op-ed this summer.
“The biggest thing I've taken away from this project is something I'll never be able to prove, but I'm convinced to my core: The lack of such a database is intentional,” Burghart says. “No government—not the federal government, and not the thousands of municipalities that give their police forces license to use deadly force—wants you to know how many people it kills and why.”
Criticism of lethal split-second decisions with the benefit of hindsight can be dismissed as Monday Morning Quarterbacking. If a person has never been a trained police officer, and has never been in a potential life-or-death situation, the theory goes, they have no business saying whether or not an officer took the correct action.
But all law enforcement agencies—whether it is their Internal Affairs division or, say, the District Attorney’s office—at some point have someone internally play the role of MMQB, reviewing the circumstances of officer-involved shootings and deciding if the level of force was appropriate. Until recently, those reviews never saw the light of day in Santa Clara County.
After being elected in 2010, District Attorney Jeff Rosen wasted little time in changing office protocol to release detailed public reports any time someone is shot by a local law enforcement agency. The goal, he says, was to explain to the public why an officer was being charged or cleared of charges. Every officer investigated in the 20 reports made available to San Jose Inside, dating back to March 2010, has been cleared of charges. And rightfully so, Rosen says.
“If you look at the reports of the folks who have been shot and killed by officers, it’s not a situation where somebody made a bad left turn and was pulled over; the officer is writing them a ticket and during the course of that somehow the officer ends up shooting them. I haven’t seen a situation like that,” Rosen says. “It tends to be situations where a person is either in the course of committing another crime, or is mentally ill, or high on drugs, or a gang member with hostility towards police. Those are more the situations I’ve seen.” He also blames the proliferation of guns.
The vast majority of the reports back up Rosen’s assessment. In September 2011, Paul Castillo kidnapped and murdered a woman before trying to run over two San Jose police officers with a stolen car. Five other people accused of carjacking between September 2011 and November 2013 tried to run over officers or flee the scene, likely to commit more crimes. Two were shot dead. Varun Kumar, killed in October 2011, had a history of leading police chases and had no intent of going back to prison when police boxed in the black Ford Taurus he stole. He played bumper cars and almost clipped an officer until three shots—one to the back—stopped him. That was after he’d already been Tasered and pistol-whipped a few times. Robin Fillie, a 31-year-old drug addict and her boyfriend, Samuel Rose, tried to run over an officer after stealing a car in Almaden. Fillie got lit up with multiple gun shot wounds. She was operating the vehicle under the influence of drugs, and the assumption that the officer could only shoot her “one time, not multiple times!" Now she knows.
The number of rounds fired in officer-involved shootings is a closely guarded secret by local law enforcement. Neither SJPD nor the Sheriff’s Office were willing to provide such information, citing a government code exemption. But through an inspection of DA reports, Metro has found that since 2010 the average South Bay police shooting involves at least 10.2 shots from a police weapon, with a high of 29 in a drug bust gone bad—Juan Ruelas was shot 29 times by six officers and found to be unarmed. Other instances, while more justified, suggest there is no guarantee anyone is tracking how many times a trigger is pulled.
In October 2011, Shareef Allman went on a killing spree at the Lehigh Quarry in Cupertino, murdering three co-workers and shooting seven more before setting off a countywide manhunt. Law enforcement tracked him down in Sunnyvale, and officers fired off at least 26 bullets before Allman turned his own gun on himself. When asked for clarification on the number of rounds fired in this instance and others, the DA was surprised to learn it had not come up with the exact total for some of its reports.
But sometimes it only takes one shot, such as the case of Valente Galindo, who was killed in the bedroom of his East San Jose home on Dec. 15, 2011. A suspected gang member was chased by police into the house and tossed a gun into a dark room, where Galindo and a woman were resting. Officer Lee Tassio says that Galindo, against his orders, picked up the gun and raised it, which is when Tassio fired one shot into Galindo’s chest. Pictures from the scene show the gun ended up under the bed next to a scarf, a woman’s shoe and a can of Four Loko.
The DA ruled the shooting justified, but knowing no prints or any DNA evidence from Galindo was found on the gun, the city settled a lawsuit by his family out of court for $900,000. City attorneys have justified the payouts despite arguing nothing was done incorrect.
“All of these shootings were within policy. That is a decision made by the department,” says retired judge LaDoris Cordell, San Jose’s independent police auditor. “For some of these shootings there have been substantial payouts to the victims and their family members. If the shootings are within policy, why is the city paying?”
There’s also the case of Rochaund Barris, who on Oct. 3, 2012, trespassed on the Diridon Station train tracks in San Jose. With meth in his system, distraught over a breakup, Barris ignored orders to stop from transit cop Irfan Zaidi, who also was serving as a deputy for the San Mateo County Sheriff’s Office. The DA’s report on the incident says Barris threw a rock and hit Zaidi in the leg. The suspect then meandered off into the trainyard, throwing a steel nail at a train window. Apparently this is when Zaidi felt the threat had been escalated, and he drew his weapon.
The officer confronted Barris and ordered him to put down another rock he held menacingly in his hand, but Barris didn’t comply. According to the report, Zaidi fired one shot at Barris’ hip and “watched his reaction to see if it would change.” It didn’t, so Zaidi shot him three more times.
One could MMQB how much of a threat Barris really presented with a rock, but the law is clear: Danger—similar to the shooting of Gonzales in the hotel stairwell—need only be perceived.
“A person resorting to deadly force in self-defense need only react to what is reasonably, rather than actually, apparent,” the DA notes in many of its OIS reports. “In other words, he need not be absolutely correct. But if wrong in assessing the threat, the conclusion must have been reasonable under the circumstances. There does not have to be actual danger necessary to justify the self-defense. If someone is confronted by the appearance of a danger, which arouses in his mind, as a reasonable person, an honest conviction and fear that he is about to suffer bodily injury, and if a reasonable person in a like situation, and knowing the same facts, would be justified in believing himself in like danger, that person has a right to self-defense whether such danger is real or merely apparent.”
Robert Weisberg, a law professor at Stanford University who has more than three decades of experience in the field of criminal justice, says the Supreme Court has intentionally provided cushion for law enforcement through rulings such as Tennessee v. Garner and Graham v. Connor. The decisions allowed for “all kinds of room for subjectivity” in what constitutes a threat, Weisberg says, but also puts the onus on law enforcement to prove suspects showed an “imminent proclivity of inflicting grievous harm on someone.”
Almost a decade ago, SJPD modified its Duty Manual—the police Bible—to come into line with what were then considered national law enforcements’ “best practices” for use of force. Rather than have officers escalate force in steps—from verbal commands to using their hands, pepper spray, a baton, Taser and as a last resort a firearm—police were given more latitude to make snap judgments on the best way to gain control of a situation. The current policy is referred to as a “continuum of force.”
Both the San Jose Police Department and Santa Clara County Sheriff’s Office put cadets through an academy, where they must meet proficiency marks for firearm accuracy, as well as pass a test on how and when to escalate a use of force. After that they have bi-annual range tests to continue using their firearm, and annual “carbine” certification tests if they want to have the ability to carry more deadly automatic rifles.
SJPD Lt. Jason Dwyer teaches the use-of-force block in the academy, which, he notes, has the highest cut score. Cadets are given two chances to pass. If unsuccessful on the second try, after additional training, the cadet is “terminated” from the force, Dwyer says.
“It’s up to the officer to select the tool they would use or level of force they would use for a situation,” he says. “You basically use the most reasonable choice based on a situation. It’s heavily rooted in case law. People can Monday morning quarterback forever, but the officers involved have to make that decision in a split second, and thankfully the courts recognize that.”
Pamela Meanes, president of the National Bar Association, the largest organization of African-American attorneys in the country, says over-aggressive use of force and the militarization of law local law enforcement agencies has redefined “protect and serve.” Her organization is in the midst of a year-long project to expose police brutality in 25 regions across the country, including San Jose.
“As the National Bar Association has traveled around, there is no question that there has been a line drawn between police and the community that hires it to protect it, especially in minority communities,” Meanes says. “They feel like the police is not there to protect them and serve them.”
Sheriff Laurie Smith, who oversees a 1,300-person department with about 550 active patrol officers, and other law enforcement professionals reached for this story take umbrage with that notion. Smith’s office has had 11 officer-involved shootings since the beginning of 2009, and despite saying there has been internal discipline for officer-involved shootings in the past, she appears to have no regrets on her officers using lethal force.
“I laugh at movies when someone is pointing a gun at the cop and the cop says, ‘stop,’ and the cop gets shot,” Smith says. “They do that all the time in the movies. It’s not realistic. We have to make sure that we’re safe.
“Our deputies do not get paid to get killed.”
However, the number of people dealing with mental illness who are shot by officers complicates the narrative. A lawsuit against the county Sheriff's Office was filed just last week by the family of Andrea Naharro-Gionet, a 61-year-old woman who suffered from mental illness and was shot to death last November after allegedly advancing on officers with a knife. The DA has not yet released its report on that incident.
SJPD created its Crisis Intervention Training, or CIT program, in 1999, and it has become part of the standard training for all new recruits. According to the OIS incident reports published by the DA’s office, it appears more than a third of the 20 incidents involved a suspect who suffered from some form of mental illness, ranging from depression and suicidal thoughts to carrying out a psychopathic active-shooter scenario.
“A lot of people on the streets have mental illness issues, and quite frankly I think law enforcement is encountering more people with mental illness,” Smith says. “We train people how to deal with people with mental illnesses, but that doesn’t mean the threat doesn’t come quickly.”
She adds that while these individuals are dangerous to the community and officers, that doesn’t necessarily mean their crimes should land them in jail or prison.
“I have been told that we run the largest mental health facility in the county: the jail,” Smith says. “And we have excellent, excellent treatment. We have one of the [best] mental health facilities; other counties—Alameda County, San Mateo County—send us their seriously mentally ill because we have that kind of facility.”
The only solution, Smith surmises, is to create more treatment facilities and beds for people who are suffering from mental illness.
In the case of 19-year-old Diana Showman, San Jose police officers were forced to respond to a 9-1-1 call Aug. 14 in which she threatened to kill her family and said she had an Uzi. The weapon, in fact, turned out to be a black power drill. Showman, who suffered from bipolar disorder and was actually home alone at the time of the incident, walked on the lawn and repeatedly aimed the drill at surrounding officers. Officer Wakana Okuma, a 13-year veteran of SJPD who was CIT trained, fired one round and killed her.
The DA is in the process of completing its investigation on whether Officer Okuma will be charged, and Rosen tells San Jose Inside the initial facts seem to justify Okuma’s use of force.
“There are a lot of mentally ill people that are not receiving appropriate mental health treatment, for a variety of reasons,” Rosen says. “They refuse it or their family is ashamed, feels shameful about the person receiving treatment, and the person ends up decomposing.
“I think that’s a really hard situation for officers. Sometimes they know the person they’re dealing with is mentally ill. Sometimes they don’t. And even if they know the person they’re dealing with is mentally ill, that doesn’t make the person less of a threat.”
More so than the policies and changes in law that have bolstered law enforcement’s ability to use deadly force, a stark increase in the militarization of local law enforcement agencies has occurred. Call it the sharing economy of war.
Before the US threw itself into two protracted wars in the Middle East, the Department of Defense in 1997 instituted its Excess Property Program, better known as the 1033 program, as a way to transfer surplus military supplies and equipment to state, county and city departments.
It was pitched as taxpayer savings, equipping local law enforcement agencies with valuable tools to fight crime, rather than an admission that the Pentagon’s budget was morbidly obese. To date, the program has handed off more than $5.1 billion in free military equipment, with almost $450 million going out just last year alone. Much of these transfers have occurred out of the public view, however, with little to no dialogue between communities and their local law enforcement agencies about the need for items such as mine-resistant tanks, assault rifles, grenade launchers, surveillance equipment and many other items.
A national dialogue about the militarization of local police departments came to the forefront in August, after 18-year-old Michael Brown, an unarmed African American in Ferguson, Missouri, was shot to death by an officer in broad daylight. Riots and protests about a predominantly white police force’s over-aggressive treatment of a predominantly African American community were met with an iron fist response. For several weeks body-armored officers shot tear gas at crowds and armored vehicles patrolled the streets under martial law.
The National Guard was called in and Attorney General Eric Holder opened a probe into accusations of police brutality by Ferguson officers. The scene looked foreign and terrifying from the confines of Silicon Valley, but it turns out many of the instruments of war seen in the hands of Ferguson officers have also been acquired by Bay Area law enforcement agencies.
Just 20 days after Brown was killed, the San Jose Police Department announced it would be giving back its Mine-Resistant Ambush Protected vehicle, or MRAP, which is basically a transport tank that can withstand roadside bombs.
In fact, SJPD has stocked up on a variety of weaponry that suggests the department is actually well-equipped for any insurrection. Among the million-plus dollars of equipment gifted to Santa Clara County law enforcement agencies from the 1033 program over the years, SJPD alone acquired: a $733,000 MRAP; a 2,500-gallon fuel tanker for air support; four reconnaissance camera systems; 175 reflex sights to make it easier to pinpoint targets with assault rifles; 129 additional reflex sights specifically for M4 assault rifles; 116 camouflage bags to carry gear; 58 ballistic goggles; 40 buttstocks, which can be used to brace a rifle against the shoulder; and 30 pairs of snow-colored camouflage trousers for snipers. Yes, snow camouflage.
San Jose has received more items than those listed, but perhaps most telling is that none of the 32 assault rifles received by county law enforcement agencies, according to public records requests, went to SJPD. That would mean the department felt it had little need for more guns but wanted scopes to use them more effectively.
According to Sheriff Smith, her office has only received a Humvee and a tent from the 1033 program, which she lamented in an interview earlier this month.
“I wish we had gotten more stuff from the 1033 program, because it’s surplus government equipment, and it saves the taxpayers in this county money,” she says. “So, I don’t think it’s a negative to get stuff from the 1033 program. It would be a waste if it didn’t go to a use.”
San Jose Police Chief Larry Esquivel declined multiple requests for an interview, but according to SJPD Deputy Chief Dave Hober, who agreed to a 30-minute interview by phone, discussions to give back the MRAP began early this year, well before the Michael Brown shooting and 1033 program garnered national scrutiny.
“The reason the San Jose PD got the MRAP initially was primarily to assist us with any type of explosive type of situation,” Hober says. “By explosive, I mean an actual bomb, so that we could get closer to the explosive in the MRAP.
“Every community has to make its own determination if it’s right for that community or not. We like to be on the cutting edge and look at new types of technology and that kind of thing, so that’s what we did here. After we looked at it and had some discussions it was determined that at this time, we decided it was better (to get rid of it).”
Meanes, of the National Bar Association, applauds San Jose’s decision to relinquish the MRAP—it was transferred to the Los Angeles County Sheriff’s Office in September, according to SJPD—but she argues that there is “no reason” for local law enforcement to be accepting any of the 1033 equipment.
“The use of those items do not go toward building trust between the department and the individuals they were hired to protect,” Meanes says. “In cases where you see cities that have this equipment, there is a requirement in some of those grants where they must utilize that equipment in a one-year period or they are in violation of the grant. That’s not a healthy rule or regulation. It’s almost an encouragement to use police force that we would consider overkill and unnecessary.
“There is an impression that the police are really trying to protect themselves from a segment of society.”
San Jose police are more than a little hesitant to discuss their SWAT team, known as a MERGE Unit. Press officers repeatedly deferred to the department Duty Manual rather than discuss what instances require the 14-man tactical squad to be deployed. The manual is vague, perhaps by design. Hostage situations and suspects who have barricaded themselves are obvious targets, but the MERGE Unit also conducts search warrants for parole violators and drug sweeps.
Numbers provided by SJPD for its MERGE Unit deployment show that teams were dispatched highs of 19 times in fiscal years 2008-09 (July 1-June 30) and 15 times in 2011-12. Those numbers dropped dramatically in each of the following two years: four in 2009-10 and seven in 2010-11; three in 2012-13 and four in 2013-14.
Sgt. Heather Randol, a public information officer for SJPD, wrote in an email that the department does not know why numbers were so much higher in some years. She attributed the sharp increases to “natural fluctuations for all Special Ops and Investigative Units throughout the years.”
While SJPD refused to comment on its matrix for MERGE Unit deployment, one possibility for the sporadic deployment is that other units are being equipped with weapons and body armor that go beyond what is normally associated with street-level enforcement teams.
“When I started in this job, any time we had any kind of a tactical incident, the patrol officers would surround that incident, or try to surround it, and hold and wait for when the SWAT and tactical teams could come,” says Deputy Chief Hober, a 27-year veteran second-generation SJPD officer. “We’ve had a great change in the way that we now train our police officers, because we know if a SWAT team is not here or tactical officers are not here—it takes them sometimes an hour to arrive on scene—so if our patrol officers are not actively doing something to actively stop that threat where somebody is harming other people, then they can do more damage.”
SJPD has a page on its website describing its “special ops” units, which includes the Metro Unit, which “gives special attention to illegal narcotic law enforcement, with focus on the street-level user and dealer,” according to the site. The description also notes that the unit coordinates with the Mayor’s Gang Prevention Task Force and “other community and school organizations, bringing together their combined expertise to intervene, prevent and educate those involved in adult and youth gang situations in San Jose.”
This description almost gives of the impression of a community policing model, but Metro Unit’s logo is a Call of Duty-style officer aiming an assault rifle, silhouetted against a city skyline.
Radley Balko, a journalist and author of the book Rise of the Warrior Cop: The Militarization of America’s Police Forces, has spent more than a decade highlighting the danger of “mission creep,” specifically the increasing trend of local agencies deploying militarized SWAT teams for low-level offenses, such as drug possession.
“The gear and weapons and tanks are a problem,” Balko said in an interview with Vice. “But I think a much deeper problem is the effect all of this war talk and battle rhetoric has had on policing as a profession. In much of the country today, police officers are psychologically isolated from the communities they serve. It's all about us vs. them.
“For 30 years, politicians and public officials have been arming, training, and dressing cops as if they're fighting a war. They've been dehumanizing drug offenders and criminal suspects as the enemy. And of course they've explicitly and repeatedly told them they're fighting a war. It shouldn't be all that surprising that a lot of cops have started to believe it.”
By comparison, Sheriff Smith sees the deployment of SWAT—which steadily increased in the previous five years from four callouts in 2009 to 25 last year—as an almost ideal situation.
“Calling out SWAT teams for small things, it doesn’t matter,” she says. “It doesn’t matter if you call out a special team that has better skills on something that is even just a regular, routine search warrant. They have special equipment and special training. They’re not the military branch of the sheriff’s office. It’s a bit of a nuance, but it’s great to have a team that works together, that trains together all the time in any kind of an operation. But we can’t send them out to everything. So it’s not a negative to send out our SWAT team, I don’t think, at all.”
While the arrow on police militarization is clearly pointing up, crime is often described as cyclical. It appears law enforcement's use of deadly force could be similarly described. From 2000 to 2004 in San Jose, police shot 22 people and fatally wounded 13. But two important events occurred that final year, temporarily turning the spotlight on aggressive policing—and numbers dropped by more than half in an ensuing five-year period.
In March 2004, a grand jury opened a probe into the killing of Rudy Cardenas, who was shot and killed by a state Bureau of Narcotic Enforcement officer. The agent, Mike Walker, confused Cardenas for a fugitive parolee and gave chase. It ended with an unarmed Cardenas being shot in the back because Walker believed he had a gun. The community was rightfully outraged, even more so when Walker was acquitted a year later under the defense that he feared for his life.
Eight months after that shooting, San Jose’s then-Independent Police Auditor, Teresa Guerrero-Daley, accused the department’s Internal Affairs division of intentionally dragging its feet when reviewing officer-involved shootings. Five of the six people shot by police that year had been killed. Under the microscope, a stunning drop in the number of officer-involved shootings occurred.
Over the next five-year period, from 2005-2009, the number of incidents in which police fired their guns dipped to 10, with just five people being killed. It now appears, however, that San Jose is experiencing another boom cycle, greater than the previous two five-year periods.
Efforts are being made by the current Independent Police Auditor, Judge Cordell, to have every SJPD officer equipped with a body-worn camera that can document all interactions. A pilot program is under way from now through December with six officers testing the devices. With the number of shootings up, and the city paying out millions in settlements due to conflicting narratives between suspects and cops, the shift to the digital documentation of events seems inevitable.
“Why wouldn’t you want to wear them unless you’re not following the rules?” Cordell says. “If you’re behaving, you want the cameras.”
UPDATE: San Jose Inside has learned that the pilot program for SJPD's body-worn cameras has been placed on hold. An email notifying stakeholders in the process was sent out Wednesday. The police union informed the department that it believes the program is a "meet and confer" issue.