Public defender keeping pressure on for authorities’ response to racism scandal
O’Neal wants internal affairs gone, accounting of Facebook posts, audit of department culture
SAN JOSE >> To keep pressure on authorities to respond decisively to a racism scandal born from a series of officers’ Facebook posts, Santa Clara County’s public defender has called on the San Jose Police Department and elected leaders to institute dramatic changes to police oversight and dampen the impact of any prejudices of officers in the field.
A letter from Public Defender Molly O’Neal sent last week to police Chief Eddie Garcia, District Attorney Jeff Rosen and Mayor Sam Liccardo outlines reform demands that include an audit of the department’s culture, a fuller accounting of who engage with the social-media posts and the elimination of the internal affairs division.
“Your agencies should declare zero tolerance for racism in policing, and you should exercise your power to eradicate its presence and legacy in Santa
Clara County’s criminal justice system,” O’Neal wrote.
The scandal surfaced in a Medium article on June 26 by an anonymous blogger, who posted screenshots of comments by members of the deactivated 10-7ODSJ Facebook group sharing racist and antiMuslim comments.
In one public post, an active officer in the group wrote “black lives don’t really matter” while commenting about shootings in Chicago. About a Muslim woman whose hijab was pulled off by a Ventura County Sheriff’s Office deputy, he wrote, “Hell, I would have pulled it over her face.” A post by a retired officer suggested using hijabs as nooses.
Four active officers who were outed in the Medium article were put on leave pending a department investigation that the FBI has been
called to assist.
O’Neal voiced skepticism that it was only those four officers who engaged in potentially disqualifying behavior, writing that she wants full disclosure from the department on participants, and called for discipline for anyone in SJPD “who authored or positively commented upon such posts.”
She also asked for the creation of a community review board tasked with a one-time audit of SJPD to root out “existing attitudes and subcultures” with discriminatory views.
Shortly after the blogger exposed the controversial posts, the 10-70ODSJ group was disbanded. Some anonymous former members of the group have said the racist material came from a small number of officers; police leaders have backed off early strong denunciations of the whole group, a move O’Neal cited as showing that their condemnation was superficial.
O’Neal has said previously that her office is reviewing court cases in which officers implicated in the racism scandal were meaningfully involved in prosecutors securing convictions, a move that the District Attorney’s Office had said it would do as well. O’Neal wants any such convictions to be overturned, and any active or future cases with the officers to be rejected.
The District Attorney’s offices responded to questions by referencing a planned Wednesday announcement of “new social justice reforms.”
Another significant, and likely controversial, change O’Neal wants to see is the D.A. placing a moratorium on filing charges for SJPD arrests involving Penal Code 148 — misdemeanor resisting an officer — and the related charge of Penal Code 69, using threats or violence to interfere with an officer, in the absence of other crimes.
She argued that these charges, which entail wide officer discretion, can be used by officers to justify unlawful conduct, especially against people of color, and should effectively be suspended until “it can be persuasively established that discriminatory attitudes and conduct within SJPD are purged.”
The police union response to O’Neal’s letter was contentious, calling her letter “demonizing” and divisive.
“While it may be helpful to her clients to take a broad brush and paint all police officers as racists, that’s not what any responsible leader within the criminal justice system should be doing,” union president Paul Kelly said in a statement. “The fact that the public defender believes that those who resist arrest should not be held accountable is irresponsible and sends the wrong message to suspects that will lead to more violent attacks on police officers.”
Perhaps most dramatically, O’Neal is pushing for the elimination of the internal affairs division in the department. She calls for transferring oversight and discipline for officer misconduct to the office of the Independent Police Auditor, a move sure to be met with resistance from the department and the union.
Currently, the IPA reviews and audits internal affairs investigations based on a citizen complaint. Years-long efforts have long been underway to expand the office’s scope to review internal complaints and use of force. Liccardo backed a similar proposal to O’Neal’s in a reform plan he released last month.
“The only explanation that seemed to emerge when I asked about internal affairs, is ‘That’s the way it’s always been done,’ “he said Monday. “This is a moment for us to re-imagine not just a new normal, but a better normal.”
Still, no proposed expansion would immediately give the IPA authority to enforce its recommendations should it get purview over misconduct investigations; under the current framework, any final decision for discipline or termination falls to the police chief.
Police auditor Shivaun Nurre welcomed the exploration into a new accountability system, noting that while the IPA model was “cutting edge” when it was instituted in 1993 and updated in 1996, that’s no longer the case. She added that now more than ever, instilling confidence in the system is paramount.
“It’s difficult to maintain the appearance of objectivity, and some people get discouraged knowing internal affairs is the only body investigating their complaint,” Nurre said. “The community has concerns about police policing themselves and investigating their own misconduct.”