It’s been just over five years since Michael Brown’s death in Ferguson, Missouri, drew nationwide attention to issues of fairness in the criminal justice system, and in particular the treatment of African Americans.
In the wake of those emotionally charged and sometimes violent protests over Brown’s death, the leaders at the Bar Association of San Francisco (BASF) saw an opportunity. Why not seize the moment to closely examine these important fairness questions right here in the San Francisco community?
Little did they know that a series of officer-involved shootings by the San Francisco Police Department would intensify local scrutiny of the justice system and make the bar association’s efforts even more critical.
In this article, we’ll take a look at the bar’s Criminal Justice Task Force (CJTF), providing a glimpse into its early days, telling what it was like to be involved and summarizing some of the accomplishments of the CJTF. From participating in a raucous meeting at City Hall to sitting at the bargaining table during tense negotiations over new policing policies, task force members brought a unique perspective and work product to the reform efforts.
We’ll highlight the CJTF’s accomplishments in three key policy areas—police use of force, police use of stun guns/Tasers and conditions for bail/pretrial release—and we look ahead to the work yet to be done.
Criminal Defense attorneys, including Public Defenders in San Francisco had already set the stage for the task force work by speaking out about the disturbing reality that “for persons of color in the criminal justice system there is clear evidence of disparate treatment from the time of arrest to conviction – and an increased risk of use of force, even death, at the hands of police,” said Julie Traun, the bar association’s director of court programs, who has played a pivotal role in the bar’s criminal justice work.
“We looked at our police department and concluded, ‘We don’t want to be a Ferguson. We want to be a model for the rest of the country,’” Traun said.
After the flashpoint of the Ferguson shooting, in December 2014, then-San Francisco Public Defender Jeff Adachi reached out to Yolanda Jackson, who had recently been named executive director of BASF and the Justice & Diversity Center. Adachi invited her to speak at a Black Lives Matter rally on the steps of the Hall of Justice – a demonstration of support occurring simultaneously at many courthouses in the bay area.
Jackson came away from that moment feeling strongly that the San Francisco legal community could play a unique role in working collaboratively with the San Francisco Police Department (SFPD) and other law enforcement agencies. BASF formed the CJTF in early 2015, made up of representatives from all of the competing interests in the criminal justice system, including members of the San Francisco District Attorney’s office, the Public Defender’s office, the police and sheriff’s departments, private criminal defense attorneys, civil rights attorneys, the mayor’s office, law professors, nonprofit organizations, community advocates and the judiciary. The group also received input from respected experts such as Retired Judge LaDoris Cordell, who was the independent police auditor for the city of San Jose.
The task force hoped such a coalition would help build bridges between agencies and individuals with different viewpoints. BASF saw this as a way to get people into a room to talk about the issues and the solutions. As lawyers, they would bring their skill set for research, writing and collaboration to the table. Taking the lead were co-chairs Tom Meyer, a retired defense and civil rights attorney and a national authority on grand juries, and Sharon Woo, the chief assistant of the San Francisco District Attorney’s Office.
The task force notched some early wins in 2015. The group helped draft and negotiate a policy adopted by the San Francisco Police Commission that governs the use of body camera footage in police reports. The group also supported the passage of SB 227, a state law prohibiting the use of criminal grand juries in cases when it is alleged that the use of excessive force by the police resulted in the death of a citizen.
But in December 2015, even before the new law went into effect, Mario Woods, a suspect in a stabbing, was shot and killed by five police officers in San Francisco’s Bayview neighborhood. The shooting ignited a public outcry. Then-Mayor Ed Lee invited the U.S. Department of Justice to launch an investigation into the police department. Alarmingly, Woods’s death was followed by two more police shooting deaths—of Luis Góngora Pat in April 2016 and Jessica Williams in May 2016. Amid the controversy, San Francisco Police Chief Greg Suhr resigned.
It was against this taut backdrop that the task force forged ahead with its work.
Rewriting the Police Use-of-Force Policy
It was clear to the task force and outside oversight bodies that many of San Francisco’s police policies needed to be rewritten in order to reduce the use of force. But crafting the terms of a new use-of-force policy proved to be no easy or quick task.
Alan Schlosser was one of several task force members who joined the working group formed by the Police Commission and SFPD which included the Police Officer’s Association (POA), which argued for narrower changes for the sake of officer safety.
Schlosser, then senior counsel at the ACLU of Northern California, was a seasoned litigator and accustomed to forging change through litigation. He was initially skeptical that the police would agree to the kind of progressive reforms that would go beyond the reasonableness standard spelled out in the United States Supreme Court’s seminal decision in Graham v. Connor, 490 U.S. 386 (1989).
“It seemed like we were on two different sides of a line,” Schlosser said.
The concepts being discussed weren’t new. Studies have shown that police violence is dramatically reduced when policies and training require officers to employ time and distance and tactics to de-escalate a potentially violent situation.
BASF’s Julie Traun and the Department of Police Accountability’s (DPA) Samara Marion, also members of the working group on the use of force policy, were appointed by the San Francisco Police Commission to negotiate with the POA to finalize the new policy. The group spent five hours coming to terms on just the first paragraph which states in part: “This Department General Order builds upon the Supreme Court’s broad principles in Graham v. Connor (1989) 490 U.S. 386 and is more restrictive than the constitutional standard and state law”, Traun said. After 20 hours of discussions, both sides largely agreed on the 12-page policy aimed at safeguarding human life with two exceptions: 1) use of the carotid restraint and 2) a prohibition against shooting at moving vehicles.
“I thought it was productive,” Schlosser said. “I enjoyed the back and forth across the table at the working group.”
Law enforcement often views the ACLU as the “enemy,” so it helped to bring in the bar association, which was seen as more neutral because the organization is made up of attorneys from all backgrounds and interest groups, Schlosser said.
In December 2016, the San Francisco Police Commission approved the policy, with the police union objecting only to the two restrictions: a ban on the use of carotid restraints, a type of hold that restricts blood flow to the brain; and a ban on firing at moving vehicles.
The police union challenged the provisions in court not on their substance but on collective bargaining terms. The union argued the city was required to arbitrate whether it adequately negotiated with the union before amending the policy. The bar association and the ACLU filed a joint amicus brief in support of the new policy. The First District Court of Appeal upheld the policy and a longstanding court precedent that use-of-force policies aren’t subject to collective bargaining.
“The case law was on our side,” Schlosser said. “The decision about a use-of-force policy is not something to be decided in closed doors between the city and the police union.”
In May of 2019, SFPD reported there have been no police shootings in a year, marking the beginning of the longest span without an officer-involved shooting in nearly two decades, and a 30 percent drop in the use of force by San Francisco police. Police Chief William Scott told the San Francisco Chronicle that he attributed the drop to the new policy, along with training that emphasizes de-escalating tense situations and broader crisis intervention training that all officers have received.
On August 19, 2019, Governor Newsom signed into law, AB 392 by Assemblymember Shirley Weber (D-San Diego). According to the Governor’s office, the bill “enacts one of the strongest use-of-force laws in the country.” SFPD’s policy served as a model for the State and the CJTF’s goal to assist this department’s leadership is becoming realized.
The task force continues to work with the police on training and transparent reporting to support the use of force policy and implement the U.S. Department of Justice’s other recommendations. One goal is to make officers aware of their own implicit bias—stereotypes that unconsciously influence their behavior. The CJTF has several representatives on the SF Police Department’s Bias Working Group which is exploring new and better methods for effective bias training of officers.
“We’re not where we need to be yet. It takes a long time to change human behavior and police culture,” Traun said. “I’m just happy that this bar association found a voice and a role. It’s made me very, very proud of this bar association at a time when our help and resources could benefit the city and our police department in these ways.”
Urging Caution on Police Use of Tasers
After the city approved its new use of force policy, the police union renewed its longstanding push for Tasers. They argued they needed stun guns as a less lethal alternative to deal with people who are posing a safety threat.
But the task force had already done extensive research on stun guns in 2016, uncovering a multitude of concerns that BASF shared with the Police Commission.
In consulting with experts and police departments equipped with Tasers, the task force found that the use of stun guns actually leads to an overall increase in officer involved shootings. In many of those situations, the police resorted to deadly force after the stun gun failed to do its job. In addition, A UCSF cardiologist and associate professor, Dr. Zian Tseng, studied the safety of stun guns and found that a shock increased the risk for sudden death among those who are in a state of “excited delirium” caused by drugs or psychosis.
When the issue of Tasers came before the San Francisco Police Commission in the fall of 2017, the bar once again urged caution and cited new concerns about the risks of stun guns and the increased liability to cities that use them.
Rather than calling for a ban on Taser use by police, the task force argued that the time was not right. “We felt strongly that introducing a whole new weapon, and a controversial weapon, wasn’t the right thing to do,” said David Rizk, a federal public defender and member of the task force.
Merri Baldwin, then BASF president, described the surreal experience of joining Jackson and Traun at a Police Commission public hearing on the issue. Emotions were running high. Citizens testified that they were afraid that police would wield these new weapons against their unarmed friends and family members. Other Taser opponents highlighted BASF’s involvement, cited our research and supported the bar association’s position, noting BASF is “not exactly a radical group.”
“That became our rallying cry: Not exactly a radical group,” Baldwin said.
Baldwin was awaiting her turn to speak when the yelling began. People were upset because the commission cut off testimony by a woman who exceeded her two minute public comment time limit. In response to the outcry, the Commission halted the hearing and uniformed deputy sheriffs shut down the hearing; City Hall was on lockdown. Confusion reigned until Jackson got word that the commission would reconvene in a smaller room upstairs, taking witnesses one by one.
“I don’t normally engage in this kind of rough-and-tumble politics”, but the experience was extraordinary and eye-opening, said Baldwin, a civil law practitioner. “It felt good to be doing something on behalf of BASF that was so meaningful to the community. The people speaking out were legitimately afraid and our research is clear: this weapon is controversial, complicated and expensive – especially as it shifts liability to cities when things go wrong.”
Ultimately, The Police Commission authorized the use of Tasers in November 2017, with a plan to roll them out for use by December 2018. But the Board of Supervisors has yet to fund their purchase.
San Francisco citizens also had their say on the issue in 2018, defeating a police-led ballot initiative—Measure H—authorizing police officers to use and to design the policy for use of stun guns.
The comprehensive research undertaken by BASF’s CJTF on Tasers was shared – as requested – at a “Study Session on Tasers” convened in February by the San Mateo Board of Supervisors following 4 Taser-related deaths in that county in a single year. Taskforce members Schlosser and Traun, accompanied by Dr. Zian Tseng presented BASF’s research to the Board which is now reconsidering the Taser policy in their county. BASF’s Taser research was also highlighted in May 2019 by the Center for Investigative Reporting and American Public Media’s Program Reveal: ”When Tasers Fail”. Reforming Bail and Preserving Pretrial Release
In addition to looking at how police treat suspects, the task force has been focused on how the criminal justice system treats people after they’re been arrested—weighing in on a statewide effort to reform the bail system. Advocates for reform argue that monetary bail unfairly keeps the poor behind bars, even those who are no threat to public safety.
In October 2018, the bar filed an amicus brief in a court case challenging the current system brought by the San Francisco Public Defender’s office.
BASF joined the bar associations of Los Angeles and Santa Clara in arguing that California’s money bail system violates due process and equal protection and harms minority defendants in particular.
“Not only do the accused poor lose their liberty while they await trial, but they face the very real risk of losing their jobs, health, and families,” says the amicus brief to the California Supreme Court in In re Humphrey.
The task force is also tracking a federal case, Buffin v. City and County of San Francisco, challenging the city’s bail system. U.S. District Judge Yvonne Gonzalez Rogers in Oakland has ruled that setting a schedule for money bail amounts to unconstitutional economic discrimination against the poor. The bar has not yet taken a position amid concerns that doing away with money bail altogether may result in more people being detained, said David Rizk, who is heading up the task force’s bail reform subcommittee.
Meanwhile, the task force is also working to preserve a groundbreaking nonprofit pretrial release program that it maintains is one of the best alternatives to jail and bail.
One of the first programs of its kind when it was founded with the bar association’s assistance 43 years ago, the Pretrial Diversion Project researches and makes recommendations to the court about conditions for release and supervises those who are awaiting trial. It remains the only such nonprofit in the state.
As BASF President Doris Cheng noted in a recent San Francisco Chronicle editorial, the nonprofit received the National Criminal Justice Association’s Outstanding Program Award this year and is supported by not only the bar association but also District Attorney George Gascón, public defender Manohar Raju, Sheriff Vicki Hennessy, the Board of Supervisors and Mayor London Breed.
Ironically, its demise could become an unintended result of a push to establish similar pretrial diversion programs in every county.
SB10, which would eliminate money bail, calls for county probation departments, to run risk assessment and monitoring programs, cutting out any nonprofits such as the Pretrial Diversion Project.
“SF Pretrial Services has been developing a pro-release culture. They’ve been playing that role for decades at this point,” said David Rizk, “I worry that an organization like probation won’t have the same philosophy.”
Rizk said he’s been impressed with all the task force has been able to accomplish, especially since some bar associations have mainly been thought of as organizations by and for lawyers who practice in the civil arena.
Pretrial Release Services Executive Director David Mauroff said he appreciates the support of the bar association. He said it would be a shame for the city to lose the close partnerships the nonprofit has established during its decades of serving the court system as well as its knowledge of best practices.
Mauroff points to his organization’s outcomes, which are verified by an independent third party, and that show public safety rates of 90% and court appearance rates of 87%.
“We hold ourselves to a high standard to treat our clients with dignity and respect and meet them where they are,” Mauroff said. “We could be a great technical assistance program in helping other counties get their pre-trial release services programs off the ground.”
On August 9, 2019, the Judicial Council determined that SF Pretrial will continue its work and followed the recommendation of the Council’s working group. The Council failed to fund the SF Probation Department’s bid which sought 13.8 million in state funds to undertake this work on a pilot basis. (SF Pretrial’s budget is 3.9 million per year) The Council’s decision followed considerable pressure from BASF’s CJTF, the Public Defender, District Attorney, Board of Supervisors. Mayor and Sheriff. Continued support for this excellent program is needed going forward but for now, the justice partners are relieved that this nonprofit will continue to serve the City and the justice system.
A Model for Other Bars
BASF Executive Director Yolanda Jackson is proud of the collaboration and contributions of each task force member and the many city and state leaders who have engaged in these important criminal justice reform efforts. “The beauty of our role is that as a task force, we are neutral,” said Jackson. “We are a group with many skills, viewpoints, and passions around these issues. As task force members, we don’t always agree, but we always come away with a solid, well-vetted, and workable plan. More importantly, we then put the plan into action by engaging the key decision-makers. It is really an amazing process to watch.”
Many bar associations across the country have reached out to BASF to learn about the work and seek guidance on how to bring high-level civic leaders to the table to address these important issues. Jackson, who recently gave a presentation on the topic of how bar associations can get involved in preserving constitutional rights in their communities, said that some bar leaders believe that engaging in this type of work is too controversial for their associations. “I suggested that they start by asking their members ‘as lawyers, is it our job to protect constitutional rights?’ and to then continue the conversation from there. Bar Associations are very well positioned to lead in this area and I am proud that BASF is doing so,” Jackson said.
About the Author:
Laura Ernde is a San Francisco-based writer and communications consultant. She has covered legal affairs for more than a decade, as a journalist and former editor of the California Bar Journal.
