The Mercury News

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

- By Robert Salonga rsalonga@ bayareanew­sgroup.com

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.”

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