San Francisco Police Department guidelines for serving search warrants and conducting stop-and-frisk pat-downs are among the latest policies under scrutiny by the Bar Association of San Francisco’s Criminal Justice Task Force. 

The task force, soon entering its seventh year, has worked collaboratively with local police and other law enforcement agencies, researching the law and best practices to protect the rights of citizens.

Policy changes: Pat Search for Weapons

Earlier this year, the police department leaned on the task force’s guidance when it revised its policy on frisking people for weapons. The task force discovered that the police department’s proposed General Order 5.03 used an incorrect legal standard. It would have allowed officers to conduct a pat-down for weapons if they reasonably believed the person was dangerous or may be carrying a weapon.

But the more restrictive “armed and dangerous” is the clear standard outlined by the seminal U.S. Supreme Court case Terry v. Ohio (1968) 392 U.S. 1, and California precedent. The task force prepared a detailed legal memo reviewed and signed by the BASF Board of Directors.

The armed or dangerous standard was far too permissive and completely contradicts California Criminal Jury Instructions, said Julie Traun, BASF’s Director of Court Programs and a Task Force member. A culinary student would run afoul of the “armed or dangerous” standard simply by carrying a sharp knife to class.

BASF Executive Director Yolanda Jackson wrote a cover letter delivering the legal memo—authored by Traun and task force member Rebecca Young—to San Francisco Police Chief William Scott and the San Francisco Police Commissioners. The proposed policy threatened to “undermine the Department’s reform efforts designed to heal relations between SFPD and the community—especially our communities of color where data analytics show young men are disproportionately stopped and frisked,” she wrote.

The new police department policy rolled out in May adopted the bar’s recommended “armed and dangerous” language. San Francisco Police must now be able to “point to specific and articulable facts causing them to believe the suspect is armed and dangerous.” In addition, police may only perform pat-downs when legally detaining someone. The policy clarifies that the purpose of a frisk is to pursue an investigation without fear of violence, not to discover evidence of a crime.

Now, the challenge will be to get police agencies throughout the state to follow the change, as many are still teaching the “armed or dangerous” standard, Traun said. 

Retooling No-Knock Search Warrant Policy

This fall, another police department policy came onto the task force’s radar—the policy on drafting and executing search warrants.

The police department began retooling the search warrant policy for the first time since 1997. In September, two local news outlets, 48hills and Mission Local, pointed out that proposed revisions to General Order 5.16—while containing welcome reforms—would still allow no-knock warrants of the type that led to Breonna Taylor’s death. The Public Defender’s office weighed in at the Commission hearing with a number of proposed changes. 

The Task Force put together a small group of attorneys familiar with this complex area of law to conduct research. The group included Assistant Federal Public Defender David Rizk and Morgan Lewis associate Kevin M. Benedicto and Traun.

The group recommends that police seek no-knock warrants only if there’s an immediate risk of physical violence and not simply to preserve evidence. Finding that safety concerns outweigh the need to preserve evidence, the proposed standard purposely goes beyond the Fourth Amendment’s baseline constitutional protections, Rizk said. 

In addition, the group would like to see more explicit guidance on serving electronic files and coordinating searches with the District Attorney’s Office, he said. The current policy puts too much onus on officers to stay abreast of evolving legal standards. 

The Police Commission will take up the search warrant policy this year.

That kind of law enforcement policy work has been at the heart of the task force’s mission since it was formed in early 2015. The first visible outcome was reforming the police department’s use-of-force policy in 2016. 

“We were way ahead of the game when that first got adopted,” Traun said. 

Even today, two out of three police agencies lack a use-of-force policy to prevent deadly police incidents, said Paul David Henderson, executive director of the San Francisco Department of Police Accountability and a task force member. 

In addition to the policy work this year, the task force has worked on recently passed legislation to increase the diversity of jury pools. 

Developing the ‘Be the Jury’ Pilot Program

Gov. Gavin Newsom signed AB 1452 this fall, creating a pilot program to pay low-income San Francisco jurors $100 a day for their service on criminal juries. As it stands, many hourly workers seek to avoid jury duty because of financial hardship. By supplementing the $15 daily jury stipend, the pilot will test whether compensation will promote more economically and racially diverse juries. 

Jury duty is perhaps the most meaningful opportunity for true civic engagement that our justice system provides. Unfortunately, today a troubling phenomenon has emerged: juries are whiter and wealthier, and not reflective of our communities’ economic and racial diversity." — Marvin K. Anderson

The Bar Association partnered with the Public Defender’s Office, the District Attorney’s Office, San Francisco Superior Court, and the San Francisco Treasurer’s Financial Justice Project to develop the pilot. Because the jury stipend is set by statute, the pilot required a change to the law. Assemblymember Phil Ting, D-San Francisco, sponsored the legislation.

“Jury duty is perhaps the most meaningful opportunity for true civic engagement that our justice system provides,” BASF President Marvin K. Anderson wrote in his letter asking the governor to sign the bill. “Unfortunately, today a troubling phenomenon has emerged: juries are whiter and wealthier, and not reflective of our communities’ economic and racial diversity.”

Traun credits Betsy Wolkin, her colleague at BASF, for coming up with the pilot program’s catchy name, “Be the Jury.”

Wolkin said it was a challenge to get the legislation approved so quickly. The bill went from being introduced in the summer to being signed by Gov. Gavin Newsom in October.   

“It was really supported by all the local partners, and it had tremendous support in the Legislature,” Wolkin said. “It’s really exciting. Hopefully, it leads to an awareness of how important it is to have a cross-section of the community on juries. It’s a statewide issue.”

Wolkin believes that law firms and businesses can also help by paying their employees for jury service. The pilot program is aimed at helping people on the lower end of the income spectrum—particularly those who are self-employed and earning minimum wage—overcome barriers to their jury service. 

Preserving San Francisco Pretrial Services 

Finally, another project that has been on the task force’s agenda for several years now is its support of the San Francisco Pretrial Diversion Project, a nonprofit founded with the Bar Association’s assistance 45 years ago. 

The program serves as an alternative to jail and bail, making recommendations to the court about conditions for release and supervising those awaiting trial. It’s the only nonprofit of its kind in the state and, bar association leaders argue, is worth preserving. 

But as California moves away from cash bail—which is seen as unjustly punishing those who cannot afford to pay bail—state lawmakers have proposed funding local Probation Departments to provide similar pretrial services. BASF and the task force have lobbied for a local carveout for San Francisco’s nonprofit. 

In a letter to the governor in June, Jackson wrote that San Francisco’s private nonprofit is better positioned to establish trust with defendants than probation departments responsible for punishing convicted criminals.  

“As evidenced by our success in San Francisco, community-based solutions are an evidence-based and viable and needed alternative to embedding pretrial services in law enforcement,” she wrote. 

SF Pretrial and San Francisco received the carveout in the 2021 state budget, which designated funds for pretrial pilot projects but gave the San Francisco Superior Court the final say whether to allocate funding to SF Pretrial or the Adult Probation Department. Both agencies submitted proposals and, in December 2021, following thorough analysis, the Superior Court allocated 100% of the funding to SF Pretrial. 

“The stability of this vital program is enhanced by this welcome decision by the court,” Traun said.