When San Francisco Police Chief William Scott announced he would walk away from his agreement allowing District Attorney Chesa Boudin to take the lead on police use-of-force investigations in February, the Bar Association of San Francisco swiftly responded.

In two letters to the San Francisco Police Commission and Chief Scott, the bar outlined the importance of preserving independent investigations of possible police overreach.

The July 2021 memorandum of understanding between Scott and Boudin ensured that the District Attorney, who is accountable to the voters, would look into such matters instead of having the police department police its own. 

The bar wrote that the MOU was a crucial step in the city’s efforts to reform its police department in the wake of the police shooting deaths of Mario Woods in December 2015, followed by Luis Góngora Pat and Jessica Williams in the spring of 2016.  

Not having an MOU in place for even a short period of time undermines public safety and erodes public trust in law enforcement and the criminal justice system." - Yolanda Jackson

“Recall the level of distrust and anger, particularly in communities of color that are often the most heavily policed, directed at SFPD’s investigation of police shootings prior to the implementation of the MOU,” BASF Executive Director and General Counsel Yolanda Jackson wrote on February 7. “No single case or incident can justify the unilateral withdrawal from the MOU by one party given the critical role of this MOU.”

In calling for the Police Commission to reinstate the MOU, Jackson wrote: “This juncture presents a critical test for the Police Commission and for SFPD in its path to modernize and build trust in policing within the community.” 

On February 15, after Scott and Boudin moved toward bridging their differences, a follow-up letter from the bar reiterated its strong support for keeping the MOU in force until the two sides could work out their differences. This would ensure uninterrupted independent investigations of SFPD in cases involving officer-involved shootings, in-custody deaths, and serious use of force. 

“Not having an MOU in place for even a short period of time undermines public safety and erodes public trust in law enforcement and the criminal justice system,” Jackson wrote.

“At this point, in these types of cases, it is undoubtedly considered a statewide and national best practice to have investigators that are independent from the relevant law enforcement agency, in charge of investigating cases against law enforcement officers,” said BASF Board Member and criminal defense attorney David Rizk. “It is not acceptable for San Francisco to be without an independent, lead investigating agency for cases that involve San Francisco Police Department officers.” 

Shortly after the letter, Scott and Boudin agreed to extend the agreement until May 20.  As part of the California Department of Justice’s continued monitoring of the SFPD, California Attorney General Rob Bonta and his senior staff became involved when Scott terminated the MOU.  The Attorney General’s office assisted the two sides in finding a mediator, Judge Vaughn R. Walker (retired) to mediate disputes while a  helping the two sides negotiate a new MOU.  

The bar was able to intervene quickly, thanks to the ongoing work of its Criminal Justice Task Force, which was established in 2015 to bring together competing interests in the criminal justice system to collaborate on reform measures. The task force includes representatives from the District Attorney, Public Defender, the police and sheriff’s departments, private criminal defense attorneys, civil rights attorneys, law professors, nonprofit organizations, community advocates, and the judiciary. 

The task force has helped shape local criminal justice reform by building relationships and offering their advice and legal expertise. The group has helped draft and negotiate new policies and revise others policies adopted by the San Francisco Police Commission, including a use-of-force policy that became a model for statewide reform. Other policies govern such things as the use of body camera footage in police reports, pat-down searches, and no-knock warrants (still pending at the commission). The task force also supported the passage of SB 227, a state law prohibiting the use of criminal grand juries in cases when it is alleged that excessive force by the police resulted in the death of a citizen, bringing more transparency to the proceedings. 

BASF Director of Court Programs Julie Traun, who has played a leading role in the bar’s criminal justice work, said there is still much work to be done. 

“There are still lessons to be learned,” she said.  

For example, the police use-of-force Department General Order (DGO 5.01) the task force worked on, factored prominently in the March 2022 trial of Officer Terrance Stangel on criminal assault and battery charges. It was believed to be the city’s first excessive-force trial. 

Stangel was acquitted of three of the four criminal charges filed against him, but the jury was unable to reach a verdict on the fourth count, a charge of assault under the color of authority, resulting in a mistrial.  The jury deliberated for four days.

“In my own view, training needs to be increased, especially on use of force, such that officers in criminal cases are not able to contend that they unintentionally or accidentally deviated from policy, and therefore cannot be convicted,” Rizk said. “The training should be a major point of emphasis so that juries can rightly infer that significant deviations by officers from training are a major indication of mal intent.”

The trial provides an opportunity to revisit parts of the General Order and as well as training, specifically the need for ongoing scenario-based training on de-escalation, the importance of and examples of creating time and distance, conflict intervention and resolution – especially  when officers respond to potentially dangerous situations.  In addition, it may be prudent to refine the circumstances justifying baton use. The new General Order was designed to better protect the public as well as officers. “Clearly, we still have work to do and BASF’s Task Force continues to provide advice and support wherever needed, Traun noted. 

Editor's note: Since this update on BASF's Criminal Justice Task Force was written, BASF member Kevin Benedicto has been appointed to the San Francisco Police Commission. A Task Force member since 2017, BASF congratulates Kevin and looks forward to what he'll bring to the Commission. Look for more on his role in BASF's publications soon.