San Jose Council Shoots Down Mayor’s Rubber Bullet Ban

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.

Jennifer Wadsworth is the news editor for San Jose Inside and Metro Silicon Valley. Email tips to [email protected]. Follow her on Twitter at @jennwadsworth. Or, click here to sign up for text updates about what she’s working on.

14 Comments

  1. >“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.”

    Saying the protesters deserved to be shot because they wouldn’t disperse completely ignores the question of whether or not SJPD should have been ordering them to disperse in the first place – the decision of SJPD to declare the assembly unlawful and to shoot at anyone who refused to leave was the greatest escalation they could have created. While there may be situations where declaring an unlawful assembly is appropriate, all of the evidence I have seen seems to suggest that SJPD poured gasoline on the fire that day through their rough handling of protesters – long before it was declared an unlawful assembly, SJPD cops were pushing bicyclists down on the ground and tossing people’s phones as if they are above the law, AT A PROTEST AGAINST POLICE INJUSTICE. It’s absolutely absurd that they can act that way and then say that they would have protected the citizens better if there had been more of them.

    I’m glad to see Liccardo finally taking a more forceful stand here, and to tell SJPD what anyone with sense could tell – that the bullets were fired indiscriminately at anyone present, not simply those who posed a threat. I am disappointed in the rest of the council.

  2. The one city council member who had his home vandalized by the mob is the lone council member who votes against rubber bullets as a means of crowd control. Ironic.

  3. Hey Two Cents, are you now or were you ever in government? I ask because a complete ban on rubber bullets because a few people misused them is a typical government response. Whenever a right, power, or privilege is misused by a few, the knee jerk liberal government reaction is to ban it completely instead of attacking the real problem, which is the few who misused it. Thankfully, the council in this case saw that. They realize that the problem in this instance was a lack of proper training and lack of command control at the scene. Sam’s stand wasn’t forceful. As usual he had the spine of a jellyfish and bowed to the pressure of the cop haters, BLM, and ANTIFA. Sam abdicated has sworn duty to ALL the people of San Jose by trying to take a non lethal tool out of the SJPD tool box.
    I would like to nominate Mayor Liccardo for the 2020 Neville Chamberlain Award. I realize he hasn’t a chance against Ted Wheeler of Portland, but white privileged Sam needs to be recognized for his spineless appeasement policy. Thankfully, the rest of the city council has more sense than Sam. Thank goodness his strong mayor proposal is off the table and we won’t get an extra two years of him as mayor.

  4. what a farce! defund the police! Vote the idiots that let these rubber bullets and other “non leathal” uses of force continues by an abusive police force where they are clearly using them in an abusive manner and causing injury. They’re (the police), feel “threats” are more likely that you look at them wrong or disobey they’re instructions. The police showing up in riot gear itself escalates the situation, if they were to show up, discuss, show respect to the protests/protesters and ask them respectfully if and when the protest needs to be dispersed and explain why, these issues wouldn’t be happening, but no they show up, in riot gear, itchy for a fight, and then released upon people who are then forced to react when police are shooting, hitting, and forcing individuals down. Again defund the police, and vote out the council members who voted to keep these absurd items of violence. 40mm round a 2 in shell should not be fired at any individual. growing up playing paintball you never shot someone with a painball within 10ft. so a 40mm round at 30ft and not thinking it won’t hurt someone is absurd.

  5. As a 75 year old who was shot with a rubber bullet on May 29th while peacefully demonstrating I can attest to to the pain and stress associated with it. If Raul Peralez and his ilk think that they will continue to abridge my first amendment right to peacefully protest they are woefully wrong. The declaration by a small army of untrained and ill informed police that we were an unlawful gathering was unconstitutional. The only real violence I saw was initiated by the police. I will seek justice in the courts. If that fails I will seek justice in the streets. Thank you Mayor Liccardo for your evolved resistance to the city council’s misguided decision.

  6. Some of us are old enough to remember Kent State. We do not want to see anything like that ever again. The rights of the citizens to protest to their government and right to assembly shall not be denied or abridged. We have certain rights which the police or government must uphold.

    https://www.law.cornell.edu/constitution/first_amendment

    In this case of the citizens of San Jose Protesting against police brutality in other parts of the country were met by SJPD with the very same punishing brutality which the citizens were then protesting against.

    SJPD took it personally and acted out unprofessionally. We expect more from our police and government. I look forward to many more discussions between the citizens and the government. We expect our elected government to uphold our Civil Rights instead of suppressing them. For it is the people by which this republic stands. Any totalitarian government is neither authorized nor accepted by the people of this City, State and Country.

  7. “… seriously maimed an untold number of civilians”?
    According to Webster, the definition of maimed is:
    “to mutilate, disfigure, or wound seriously“
    If these untold number of civilians were mutilated or disfigured, I guarantee you we would know about it. Perhaps the actual number is one, and the untold number of disfigured people is zero?

  8. I suggest that those council members who voted to keep using rubber bullets on their constituents all volunteer to stand in a line about 50 feet away from the guns and get shot a few times to show the public just how safe they are. After all, shouldn’t they lead by example? If the bullets are so safe and necessary there shouldn’t be a problem,sh? Schedule soon!

  9. Hey O’Conner, maybe you missed the part that said officers who disreard the guideline while using these potentially lethal prejectiles will be investigated and possibly diciplined, which coincidently would be the same process anyone who used them would go through. Now there’s a consequence that will make them think twice, eh? And in the worst case, they will be forced to take some paid time off! Oh, the humanity! How will they ever recover from THAT? Just like every other “tool” that is supposed to be an alternative to deadly force, they immediately become simply a weapon of compliance. Question an illegal order from a police officer and your next stop is the emergency room, and , once again, the officer gets some paid time off. What ia joke.

  10. If you are stupid enough to conclude that the best forum for disputing the justification for declaring an assembly unlawful is from within that assembly then you just might be treated to a rubber bullet experience.

    If you are stupid enough to conclude that the best forum for objecting to cars speeding down your street is to stand in the middle of that street then you just might be roadkill.

    If you are stupid enough to conclude that the best forum for objecting to a judge’s ruling is by approaching the bench and challenging him then you just might discover that judges only believe in tolerance when bloviating about the restraint they expect from the cop on the beat.

    So many big mouths yapping about justice but behaving like entitled children.

  11. “ So many big mouths yapping about justice but behaving like entitled children”

    Believe it or not Ms Phu Tan Elli the constitution does exactly that. We are entitled to air our grievances and as well are entitled to free speech and we are entitled to assembly to air those grievances. The last I looked these were mostly adults and not children in the videos. Now please take a civics course and stop acting like a child too obstinate to do their homework.

  12. @Bruce Sullivan

    If a right to refuse to disperse after an assembly is declared unlawful was actually in the Constitution then no person could ever be convicted of failure to disperse. But many persons have, with their convictions upheld by appellate courts. This inconvenient little fact leaves us with two options concerning the matter of you and the other rubber bullet babies: acknowledge no lawful right to be in the line of fire existed, or continue to delude ourselves that you and the rest were in the wrong and deserved the consequences delivered.

    As for your reading of the Constitution, exactly what civics class did you take that left you so unprepared for adult life? Had you a better instructor, or perhaps had you been a better student, then you would’ve realized the only option that was both Constitutional and painless was to have dispersed and then challenged the officers’ justification for issuing the order in the courts.

  13. san jose mayor is a idiot he needs to be voted out what is he thinking.its simple dont go and riot and you wont get shot with rubber bullets im so happy they didnt take that option from the police

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