The San Francisco Police Commission on Wednesday unanimously approved a policy that guides the circumstances under which SFPD officers are allowed to detain, search and arrest suspects.
The policy revisions seek to address a setting in which a large portion of biased policing takes place: the daily interactions police have with communities of color that can result in detentions, searches and arrests based solely on a person’s ethnic or socioeconomic appearance.
“Detaining, particularly pat searching, without a reasonable suspicion that the person is armed and dangerous, builds resentment, and builds distrust that the police are there to protect and serve,” said Rebecca Young, a deputy public defender who worked on the policy and who has represented clients who have been unfairly stopped and searched by police.
Young said improper stops and searches create a public perception that police are in communities only to “harass and contain.”
The policy passed on Wednesday tells SFPD officers at the outset that a person’s appearance, such as their “race, color, ethnicity … or socioeconomic status does not justify even a brief detention, a request for identification, or an order to move on, nor do general complaints from residents, merchants or others.”
The policy is a vast expansion of the SFPD’s previous policy guiding detentions, which was last revised in 2003. The old policy was not up to date with the law and did not detail circumstances in which it was constitutionally permissible to detain someone, perform a pat search, or enact an arrest.
The new policy clearly defines those circumstances. Notably, said Police Commission Vice President Cindy Elias, who played a large role in writing the policy with the input of police and community members, the policy limits when police can perform pat searches. They are only permitted if the officer can articulate a reason for believing a suspect is “armed and dangerous.” And even then, the search must be limited to searching for weapons that could harm someone.
Police officers are required to document the reasons for detaining and searching a person, and Elias said this will help in tracking these incidents and understanding trends in police bias.
“It gives us another way to understand the disparities in how people are being stopped, detained and searched,” Elias said. “This is another safeguard to ask why this is happening.”
The policy also says officers can detain individuals only when they can articulate facts that support a suspicion that a person was, or might be, involved in a crime. After a person is detained for a short period and let go, an officer must provide the person with a so-called “certificate of release” following the detention, which provides the officer’s name, star number, and where a person can file a commendation or complaint.
If a person is stopped in a vehicle and given a warning, officers are required to provide drivers with a business card with their name and star number.
These revisions are an answer to the 2016 U.S. Department of Justice review of the SFPD that found Black and Latino drivers are “disproportionately searched and arrested compared to White drivers,” and Black drivers are “more likely to be warned and less likely to be ticketed than White drivers.”
“Not only are African-American and Hispanic drivers disproportionately searched following traffic stops, but they are also less likely to be found with contraband than White drivers,” the DOJ added.
Since the DOJ released its findings, the disproportionate numbers have persisted. In the third quarter of 2020, the most recent data available, Black people made up 28 percent of traffic stops and detentions, and received 36.6 percent of searches in the quarter. Black people make up roughly 5 percent of the city’s population.
“It was long and painstaking,” said Chief Bill Scott of revising the investigative detentions policy. “This is one of the policies that will start to change the narrative around our stops and searches issues.”
This is literally the law as it’s always been. This “policy” is nothing new. It’s literally the articulation of the interpretation of the 4th amendment. I fail to see what’s new
The “new” part is cops in San Francisco actually having to comply with longstanding law, by updating the policy to now shine a bright light directly on that widely abused aspect of police power. And by having to now give out cards for each detention–a kind of evidence of otherwise undocumented shadow activity where all the unseen illegal detentions usually accumulate. Normally, if cops do a “dirty search” but then don’t find anything, nobody gets arrested and nobody get physically injured, then no one ever knows (except for the people who keep getting stopped continually for no reason or for the thinnest of legal reasons, often with a racist underlying motivation). It’s the vast police hidden forest of unobserved constitutional violations, only felling trees or making sounds for those habitually unlawfully detained. If you get dirty searched, but they don’t find anything and later cut you loose, it’s hard for the law to see and redress the harm when the person later seeks review of the police action. In those cases, the unlawfully detained person hasn’t suffered a “legally recognized harm that’s able to be made whole” in the particular case, it just looks like a seemingly isolated brief detention that yielded nothing, so for the cops it’s like it never happened–no consequences. But in the cases where you get dirty searched and then they find something or it turns into a use of force and an arrest, only then do the law’s protective and ameliorative legal doctrines come in to play, such as “fruit of the poisonous tree” to exclude the evidence used in criminal prosecution against the person. But also in those cases, the narrative of what was a “dirty search” is much more easily crafted and constructed into something else, with extensive and creative articulation of the “totality of the circumstances” to rehabilitate that unlawful search after the fact, making it seem reasonable and lawful. That’s much easier to do given the fruit (contraband or evidence) discovered incident to the search or flowing within the now seemingly unbroken chain from lawful contact, detention, pat, arrest, pocket search, custodial search, etc.
Danny, every police officer lawfully employed should be lawfully required to respect the rights (especially the 1st, 4th, 5th, 6th, 8th and 14th Amendment rights) of people they encounter on the job…..or do they now? Bad police work makes bad case law, and, in this case, slightly more restrictive local policies governing police conduct. The uninitiated in police contact may not get the picture. Your honesty here highlights the long-standard gap between the promise of law’s protections and the common practices of police. If it weren’t for the completely normalized over-aggressive “self initiated activity” by police that often ignores the subtle legal intricacies, as a practical matter, of consensual encounters, detentions, and arrests; reasonable suspicion v. probable cause; and the vast, shadow, discretionary power (ab)uses authorized by the VC, PC, MCs and vague notions of suspiciousness, then slightly more restrictive policies like this update here wouldn’t be necessary. So, because cops have been almost-universally behaving according to the standard you advocate, even though it’s always been illegal to do so, an inch of their discretion, from the generous bolt still enjoyed, is now officially taken from them, at least in SF. Whereas cops were widely trusted in their behavior while frequently making stops before, society now stands responsibly to reign in so slightly that awesome and too-often unchecked power. Now police are seen as the efficient-bearers of these common civil rights violations, rather than it being one more thing absorbed by the Platonic detainee. Logical minds matter, friend. Guess what–the rights of any person walking down the street matter. Black Lives Matter.
T.T.M. Everything you wrote has no bearing on officer safety, and that is the whole point. Every cop with a concern for his or her safety will not put themselves in a position of high risk danger by not patting down a detained person(s) who are close to them. No police officer in their right mind would put themselves in such a ridiculous and illogical position.
Rather be judged by 12 than carried by six. Sure. Logical, even. But that alone doesn’t fill your constitutional gap, and that’s something civic-minded people should consider when listening to you. When they reflect upon the powers they bestow and regulate. So always be heroes toward everyone, at least at work, now that people are earnestly taking a closer look, rather than occasional imperious wrecking balls at whim. Be peace officers who respect all persons in the approach to policing and keep the peace. When you detain someone, have a legal reason for it. Follow the rules. Stop being so sloppy like when people weren’t looking. Think of the aggressive model of policing as like repetitive cycles of “creating your own exigency” hazards–a doctrine cops are familiar with in other contexts, such as exceptions to normal search and seizure requirements. Combine that kind of policing with our unresolved national racial history and it’s just not viable as we evolve. I remember driving down the particular street in context when one of my FTOs asked me, “So, what’s the deal with black people?” (This is before another FTO had me pull over quickly, turned in his seat and said, “So, I hear you don’t like the wound.” But that’s off-topic, sorry.) When the harm becomes systemic, a virtuous end-user of that power plant restrains their use of it. They act nobly to the extent that’s possible in the cancerous context. Just wanting to start from scratch from today doesn’t work when that narrative is only compelling from the perspective of the person wielding the power. No one else, not the Chief Justice of the United States nor the President have the specially designated and sanctioned power to take life in an instant. Now remember just a little while ago, and actually the same still in many places of the country, where only the people who flexed that power for the town or county were the voices who created the narratives. Before body cameras, smart phones, audio recording and surveillance cameras. Cops of the 90’s and before openly saying to each other at work that they had to go “testi-lie” in whatever particular case. “Creative report writing” was indirectly, and sometimes even directly (maybe at the bar or at whichever parking lot for beers after a shift, in what every cop has heard eulogized as “the good old days”) taught. Can’t go around detaining like that, I expect all the issues to decide in your favor these days.
Since the policy has no clear rule for detaining a person, SFPD will continue to employ its bias towards people ‘just hangin’ out’ on a street corner. And racist bart police have no such limitations on illegal detention in The City so we can expect them to pick up any slack using their overly broad territory surrounding transit hubs
I suspect Danny boy has never had an unlawful detainment. Nor an unlawful search.
Of course there is a rule for stopping someone. Called “probable cause”.
Reasonable suspicion to detain —
Probable cause to Arrest —
Beyond a Reasonable Doubt to convict —
As a side note: Preponderance of the evidence is needed to sustain a policy violation (non-criminal)
That is not correct.
It is 100% correct. If in the opinion of a police officer you are behaving suspiciously, then you may be stopped and questioned. If the officer then deems that by your answers, behavior or non-cooperation, there is probably cause that you have committed an offense, then you may be patted down, detained for further investigation and even arrested if there is evidence of a crime.
How else could cops conceivably and safely do their jobs unless they have these rights and powers. The vast majority of people accept these rules and support them. Why don’t you?
Tom, again, you are not correct. De Mwedes is not correct either, but that doesn’t make you right. In fact, it doesn’t seem like either of you have read or understood the article, nor the basics of search and seizure law with respect to detentions and arrests. The standard you offer–“probable cause”–is not “100% correct,” as you insist. Let’s call it sufficient but not necessary–your “obviously correct” rule. In fact, probable cause is a higher standard, and the standard required to make an arrest. It’s sometimes known as the “51%” standard–“more likely than not,” based upon the totality of the circumstances, that a crime was committed and that the particular person committed the crime. It’s not as high a standard as “proof beyond reasonable doubt” or “proof beyond doubt” or “certainty.” But it is a higher standard that “reasonable suspicion.” Ah…..Tom, here is that standard you were looking for when pretending to know what you were talking about. Reasonable suspicion. So, rather than explain it in little spoonfuls, I’ll just say read the article, closely, and the policy, or look it up. I’ll accept your statement: “The vast majority of people accept these rules and support them,” if we add to that, “without understanding them or caring about the details.” Why don’t you?
The uninitiated in police contact may not get the picture. A pat search is done for the safety of the officer. Weapons on the detained, if not located upon initial contact, puts the officer in danger. “Keep your dope Mr. Detainee, but I am gonna make sure you don’t hurt or kill me with any weapon on your person”.
Yep, even as an old white guy, when I was stopped by a cop for a traffic thing, his first question was: “Do you have a weapon in the vehicle?”.
This question was repeated when I was asked to open the trunk. As the cop explained to me: “This is for your own safety”.
Experience tells them that every traffic stop could be their last if they are not diligent.
Every person lawfully detained should be lawfully subject to a pat search. Logical minds matter…….or do they now?