Despite fierce backlash from civil rights advocates and the mayor himself, San Jose’s elected leaders decided to allow police to keep using rubber bullets in crowds—albeit in slightly more limited circumstances.
The City Council on Tuesday voted 10-1 to keep the less-lethal projectiles as an option for unruly protests. Mayor Sam Liccardo cast the sole dissenting vote.
San Jose PD came under national scrutiny when it fired hundreds of the so-called foam baton rounds—among other projectile—to disperse crowds protesting in the wake of George Floyd’s killing. The department updated its policy in the weeks to follow to limit their use to “situations where a person is actively attacking an officer or another person or when an armed agitator poses a threat to officers or other peaceful protesters.”
Councilman Raul Peralez, a former SJPD cop and current reserve officer, argued for keeping rubber bullets, saying the policy changes should be enough to prevent the kinds of injuries inflicted on protesters this past spring.
During a conversation that stretched from the afternoon until well in the evening, Liccardo vociferously disagreed with that assumption. Firing them indiscriminately into crowds, as SJPD was observed doing in late May, is too dangerous.
“I am not comfortable, knowing what we know from international experience and national experience, that this is something that we’re going to authorize to use in crowded situations,” he said during the Zoom council session.
The discussion was punctuated by tense exchanges between Liccardo, Acting Chief Dave Knopf and Capt. Jason Dwyer—the latter being the officer who authorized the less-lethal projectile that on May 29 seriously maimed or injured an untold number of civilians.
Knopf bristled at Liccardo characterizing officers as firing indiscriminately at peaceful bystanders, calling it an “unfair” description of what happened. Liccardo pushed back, reminding him of the collateral damage: activist and anti-bias trainer Derrick Sanderlin’s ruptured testicle being the highest-profile example.
Knopf argued that the policy changes should prevent things like that from happening again. “I’m not exactly sure what else you want us to do,” a flustered Knopf told the mayor, saying his officers should have the right to defend themselves from rioters.
The assistant chief said police repeatedly declared the assembly unlawful before they began firing and were only shooting at people who posed a threat.
“You make it sound like officers on May 29 were firing indiscriminately 40mm rounds into the crowd against peaceful protesters when in fact numerous dispersal orders were given,” Knopf said, his voice rising. “Those who remained were unlawfully present during a riotous situation, where the men and women in this department and other agencies were standing in line taking rocks and bottles.”
However, based on SJPD’s own analysis, its script for announcing unlawful assemblies is far more limited than the state standard for law enforcement.
The Peace Officers Standards and Training, which sets training standards for police, suggests the following as a script: “I am (peace officer’s name and rank), a peace officer for the (name of jurisdiction). I hereby declare this to be an unlawful assembly, and in the name of the People of the State of California, command all those assembled at (specific location) to immediately disperse, which means to break up this assembly. If you do not do so, you may be arrested or subject to other police action. Other police action could include the use of force* which may inflict significant pain or result in serious injury. Penal Code §409 prohibits remaining present at an unlawful assembly. If you remain in the area just described, regardless of your purpose, you will be in violation of Penal Code §409. The following routes of dispersal are available (routes). You have (reasonable amount of time) minutes to disperse.”
SJPD’s Duty Manual includes a far less detailed iteration: “(Rank and name), a peace officer of the state of California and a police officers of the city of San Jose. I do hereby declare this an unlawful assembly, and in the name of the people of the state of California, I command you to immediately disperse.”
Liccardo countered Knopf’s claims that officers only fired at agitators, noting that there’s a difference between people who were merely unlawfully present and those posing a threat to officers. Ultimately, the mayor pointed out, police can’t realistically guarantee that they won’t strike innocent bystanders in heated situations.
The discussion came days after SJPD released body-camera footage of some of the most widely publicized interactions between police and protesters and an after-action report that analyzed the city’s response. San Jose PD’s analysis concluded that a lack of training and inexperience colored the aggressive reaction to the demonstrations.
The report concluded that the way to prevent that kind of chaos again is to hire more cops, train them more thoroughly and allow them to use a drone that’s been idling since the department bought it five years ago. Many of the activists who were part of those protests against police brutality reached the opposite conclusion, saying the city should shrink funding for SJPD and divert it to other services.