Never in the history of the San Jose Police Department has a citizen's allegation of racial bias been upheld.
In her final year-end review before retiring as Independent Police Auditor, LaDoris Cordell points to that finding as evidence that the agency needs to change the way it reviews complaints of bias-based policing.
The 155-page report released last week urges the department to take a more critical look at cases of suspected profiling, to look at the officer's behavior leading up to an incident. It recommends banning the use of chokeholds, in light of the death of Eric Garner, who was choked to death by a Staten Island police officer last year. It asks SJPD to redefine excessive force to determine whether the officer provoked use of force or responded with force greater than the threat posed by the suspect.
The audit also proposes civilian oversight for department-initiated investigations—those are complaints by other officers—which currently undergo no outside scrutiny.
Overall, the agency fielded 830 allegations against officers, mostly for procedural violations. Five percent were validated, 9 percent rejected, 24 percent ruled as unfounded and more than half justified the officer's actions.
Chief Larry Esquivel has declined to comment on the report until he has more time to review it, according to SJPD spokesman Officer Albert Morales.
When someone alleges bias, the department asks them to prove it; while the accused officer simply says whether or not race played a role in the interaction. Cordell says the investigation should factor in the officer's past behavior and prior complaints to find out if there is a pattern.
In her report, Cordell includes several cases of alleged racial profiling that the department dismissed. In one instance, two bicycle cops on morning patrol detained an African American man for flicking cigarette ash on the sidewalk. The man said he didn't want to talk to them and dropped his cigarette while turning away. Police ordered him to put his hands behind his head, but the man refused. One cop struck the man's legs with a baton. The man tried to leave, walking into a nearby check-cashing store, but collapsed when police tased him in the back. When he tried to get up, police tased him twice more.
The smoker filed a grievance, alleging that racial bias prompted the officer to use excessive force. SJPD thought otherwise, exonerating the officer's use of force and stating that he had every right to detain the man. Cordell thought that conclusion missed the mark.
"The department’s investigation failed to consider whether the detention was racially motivated," she writes in her report. "The question was not whether the officer had the right to detain the subject but whether his discretionary decision to do so was motivated by race. ... The severity of the crime, dropping cigarette ash and failing to get onto the ground, were minor relative to the risk of injury if officers went 'hands-on' with batons."
Another time, an African American man walked to the back of his house because the front door was broken while his friend waited in the front yard. An officer showed up, gun drawn, and ordered the pair to drop to the ground. Backup arrived and handcuffed the two men before verifying that one of them actually lived at the address.
That man also filed a complaint. SJPD maintained that the officer acted appropriately because he observed "suspicious behavior," thinking that the friend was a lookout while the man was casing the place. Cordell challenged that assessment.
"The department failed to critically examine the allegation of racial bias," she states. "The officer’s report contained language that appeared to justify his actions after the fact, by adding descriptions that the two men wore loose-fitting clothing that could conceal deadly weapons."
Raj Jayadev, head of local civil rights group Silicon Valley Debug, says the lack of any sustained allegations breaks the public's trust.
"The numbers don't lie," he says. "They point to an inarguable observation: that there’s something broken here, something systemically wrong with the way the city handles these complaints if not even one is taken seriously."
Maybe it's time to expand the authority of the IPA, Jayadev suggests.
"The position itself, it's got a skin around it that’s pretty limiting," he says. "It can be as elastic as you want within the confines of those rules, but it’s got such a limited sort of power."