The Bar Association of San Francisco Opposes Proposition E

February 23, 2024 — This OpEd came out of the Bar Association of San Francisco’s Criminal Justice Task Force that is made up of individuals from: San Francisco Police Department, Department of Police Accountability, Sheriff’s Department, District Attorney’s Office, Public Defender’s Office, SF Inspector General’s Office, Pre-Trial Services Northern California District Court, SF Pretrial Services, Human Rights Commission, ACLU, Bar Association of San Francisco staff member attorneys, and a host of private law firm attorneys. The content of this OpEd was approved by the BASF Board of Directors.

There are many reasons to vote no on Proposition E, Mayor London Breed’s group of changes to rules governing policing in San Francisco, but chief among them is that SF’s own Chief of Police got it right in 2018 when he noted “it is not a national best practice to promulgate policing operational policies…by voter majority…This responsibility to set and make policy adjustments and the responsibility to manage the operations of the [Police] Department should rest with the Police Commission and the Chief of Police respectively.”

Standing firmly behind the principle that police practices and policy development are highly regulated under the Constitution, California law, the Department of Justice as well as local administrative laws, the Bar Association of San Francisco (BASF), the largest legal organization in northern California, strongly opposes Prop E because police policy should not be an issue decided at the ballot box. We believe strongly in good governance, public safety and we support a modern and nimble police department. We have long been dedicated to the twin goals of advancing public safety and criminal justice reform, working collaboratively with SFPD since 2015. To understand the implications of Proposition E and before taking a positon, BASF assembled a legal research team to thoroughly investigate Prop E, culminating in a detailed 16-page Legal Memorandum, documenting a host of legal problems with Proposition E. I write as a member of this BASF legal research team and summarize the BASF’s findings supporting a No Vote on Proposition E.

Turning away from a national trend towards curbing police chases, Prop E will cause San Franciscans to be less safe by permitting more frequent and dangerous high-speed police vehicle pursuits that endanger pedestrians, cyclists, and innocent bystanders including police officers. In a city that embraces new technology, it is ironic that Prop E’s proponents would rather live amid dangerous police chases up and down our famous hills rather than police deployment of drones and GPS launchers—tools that can be used within constitutional guardrails while providing officers with more effective and less risky ways to track and apprehend fleeing suspects. The U.S. Department of Justice released its recommendations on police pursuits in 2023, stating unequivocally: “pursuits should take place only when two very specific standards are met: (1) A violent crime has been committed and (2) the suspect poses an imminent threat to commit another violent crime.” Aptly, the report noted, “You can get a suspect another day, but you can’t get a life back”.

In a rebuke to the U.S. Department of Justice’s 2016 recommendations to SFPD, Prop E would reduce use-of-force reporting requirements while also clouding transparency and accountability reforms enacted in the wake of the DOJ’s reform recommendations. Instead, Prop E proposes that officers’ administrative duties should be reduced by 20%--a metric that is as arbitrary as it is impossible to measure or enforce-- while also flying in the face of mandatory use-of-force reporting as required by the State and City. Instead of upgrading the Police Department’s software to streamline reporting responsibilities, Prop E proposes the use of body worn cameras (BWC) video footage, in lieu of written documentation, to track use-of-force incidents, erroneously suggesting that video footage (which cannot be accessed for review by the public) provides a credible and workable alternative to written documentation of the basis for a detention. We challenge the wisdom of eviscerating a key priority embraced by Chief Scott as an important step toward reducing SF’s notoriously high racial disparities in detentions.

Finally, Prop E vastly expands secret police surveillance and infringes on San Franciscans’ right to privacy. We need to modernize our police with new technology and tools. By weakening constitutional guardrails, Prop E jeopardizes our right to privacy but also undermines the legal viability of criminal prosecutions which must withstand judicial scrutiny in court.

Prop E further erodes our community’s confidence in our police department by reducing independent police oversight. San Franciscans have voted time and again in support of our belief that police should not police themselves. Because independent oversight is critical to safe and responsible policing, we urge you to vote NO on E.

Nanci Clarence
Past President, Bar Association of San Francisco