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Line of Fire

Arresting Developments:

New state law makes it a crime to file a false complaint against a police officer

Investigation of misconduct takes six months to a year

    Groups such as the Human Rights Commission, the Santa Clara County Bar Association and the American Civil Liberties Union say that Guerrero-Daley is hamstrung by her job description. They charge that the auditor doesn't have the power or independence to improve police practices. The most effective approach, they argue, would be to appoint a group of residents to monitor the police--an independent citizen review board.

    On the other side is a council-appointed committee of citizens and at least one criminal justice expert. They argue that the auditor--a compromise between the police's rejection of the citizen review board model and the coalition of community groups who supported it--should be given a fair trial.

    History Lesson

    San Joseans have called for civilian oversight of the police department before. In the 1960s and 1970s, the SJPD had a reputation for being exceedingly racist and brutal, says San Jose State University political science Professor Terry Christensen--a perception aggravated by John Henry Smith Jr.'s death in 1971.

    Smith, an IBM research technician and an African American, was killed by a San Jose police officer after making an illegal U-turn in front of his apartment building. Officer Rocklin Woolley, who pulled Smith over, said that the 37-year-old Smith was enraged at being stopped and stepped out of his car gripping a tire iron. Woolley said he was unable to subdue Smith with chemical spray and a police dog. But area residents later said they heard Smith yell, "Help me, I'm afraid," before he was shot by Woolley while fleeingtoward his apartment building.

    The next day, then-Police Chief Robert Murphy issued a statement suggesting that Miller must have been under the influence of alcohol or drugs to have reacted so angrily to a citation. An autopsy disproved Murphy's theory.

    Angry residents demanded that the city create a civilian review board. Others, including Christensen, argued that the City Council should be reformed. The latter won. In 1978, the council switched from citywide to district elections. For the first time, minority-controlled districts could elect their own to the council.

    After that San Jose's council hired a new police chief, Joseph McNamara, and the department's reputation improved, according to Christensen. But there were still instances of officer misconduct. In 1992, following the Rodney King verdict, San Jose residents took to the streets again. Once more there were calls for civilian oversight from residents. This time the call was answered--with the creation of an independent police auditor.

    Today, 75 percent of the nation's 50 largest cities have some form of civilian review of their police department. Typically, the oversight takes the form of a citizen review board: a group of citizens who review police investigations of citizen complaints or conduct the investigations themselves. But according to one expert, San Jose and Seattle are perhaps the only large cities so far to try the single police auditor model.

    Conflicted Resolution

    Guerroro-Daley's job description contains enough contradictory elements to make it an oxymoron. For example, residents can file complaints about the police with the auditor, but she isn't permitted to investigate them. All allegations of misconduct are investigated by the police's Professional Standards and Conduct Unit (PSCU). As auditor, Guerrero-Daley can sit in on investigations, but can't question officers directly. She can recommend that the PSCU modify its policies or procedures on investigations, but her proposals aren't binding. She can review the files of completed investigations and have them re-opened if she deems them incomplete or unfair, but she can't discipline officers or appeal the chief's decisions.

    "The use of the term 'independent' is really an ironic use of the term because she has no independent anything," says Pat Adair, past president of the Santa Clara County Bar Association. "We'd like that position to have more independent authority to question people. Not just pass on questions to the police but be able to do a complete independent interview on her own. ... Then we'd feel we had something credible."

    "She's not independent from Internal Affairs [PSCU's former name] or from the City Council," concurs Martha O'Connell, a former human rights commissioner and chairwoman of the ACLU's police practices subcommittee. "At least give her a number of years that she can't be removed without just cause."

    Guerrero-Daley agrees that it might be a good idea to give the auditor tenure. But thus far, she notes, the administration has adopted all but one of her recommendations.

    For example, Guerrero-Daley proposed that the department speed up its investigation of complaints. Approximately 25 percent were taking more than a year to complete. And she suggested that PSCU collect physical evidence--blood on a shoe, a medical record on bruised knuckles--immediately after an officer has a physical encounter with a resident. That way, if a citizen files a complaint there would be evidence to support or deny the claim. Before the change it was often the officer's word against the resident, and the resident usually lost.

    At the same time the police, with the support of the city attorney, have resisted Guerrero-Daley's suggestion that the department get written consent before searching someone's home. A signed consent form, she believes, would better protect residents from illegal searches. But the city attorney feels the policy could plunge the city into legal hot water if a cop got a verbal OK but forgot to get it in writing.

    Guerrero-Daley disagrees with the city attorney and continues to advocate for this reform. Still, she says, "The level of cooperation I've gotten from the administration is really commendable." Perhaps, she adds, the fact that a civilian review board hangs like a sword over their heads has helped motivate them.

    Power Shortage

    "She's done OK," concludes Anthony Boskovich, former chairman of the bar's civilian review task force, of Guerrero-Daley's accomplishments. Still, Boskovich says he wishes Guerrero-Daley were more aggressive. But, he acknowledges, "if she rocks the boat too much she could rock herself out into the sea."

    As far as O'Connell's concerned, the fact that the administration has adopted most of Guerrero-Daley's suggestions misses the point.

    "It's still only a recommendation," she points out. "She's still in a powerless position vis-à-vis the chief."

    But Sam Walker, a professor of criminal justice at the University of Nebraska at Omaha and an expert in citizen review, counters that even the strongest citizen review boards have only advisory power. And unlike citizen boards, which tend to focus on individual cases, Walker added, the auditor is in a position to critique the overall process.

    The auditor has also been faulted for the fact that she works solo. Although she has a small staff, only Guerrero-Daley can inspect PSCU's files or sit in on investigations.

    "I'd feel more comfortable with the cross-representation of a board," says O'Connell, a self-identified gay activist. "It may issue the same [recommendations as Guerrero-Daley], but if [the board includes] someone representing my community, my trust level goes up."

    "That is the issue," Walker agrees. Trust. But "there's no conclusive evidence that review boards, which is what they want, are dramatically more effective in other cities."

    Citizen review boards are only as good as the people appointed to them, Walker explains. There's no guarantee that every member is independent. Plus, he adds, "I like an auditor because you can hold one person accountable. With a board, it's more diffuse."

    Tally Up

    Is the system working? So far, it's hard to tell. During Guerrero-Daley's first year on the job, citizen complaints shot up 40 percent. Between September 1992 and September 1993, residents filed 173 formal complaints compared to 243 between September 1993 and September 1994. Guerrero-Daley's critics blasted her for suggesting that the public was simply reporting more incidents in part because of her office. O'Connell insists complaints increased because community leaders urged residents to file them in order to test the system. Their conclusion: it failed.

    During Guerrero-Daley's second year at the helm, complaints fell off. Between September 1994 and September 1995, residents filed 170 complaints, back to pre-auditor levels. Guerrero-Daley declined to speculate why.

    It's impossible to know what the numbers mean, Adair reasons. It could mean that police misconduct is down, or statistics "could be down because people have given up on the process," he offers. The only way to measure Guerrero-Daley's progress, and that of the police, is by seeing the results of her audits of police internal investigations over time. Thus far that information has not been available. Are the quality of those investigations going down, or up, Adair asks? Are investigators interviewing all the witnesses, collecting all the evidence?

    Without that "seminal information we cannot, nor can the police nor the city council nor the public, make a determination on how things are going in terms of the police and the independent auditor," Adair says. "Now we have to go on faith."

    Guerrero-Daley accedes to Adair's point. She says she plans to release data on the results of her audits later this year, now that she has an analyst on staff to tabulate the data.

    Occupational Hazard

    Guerrero-Daley says that as much as she enjoyed the thrill of undercover work, she wouldn't take such risks today. But taking the auditor's job was a big risk in its own right, consistent with the route she's traveled since childhood.

    She recalls that in grade school, she couldn't understand why her older sister would cry when classmates made fun of her. Guerrero-Daley's response was to fight.

    "I'd get my ass kicked," she recalls. "I'm going to go down fighting."

    At 15 she eloped with her boyfriend, eager to escape the tight control of her parents. She got pregnant immediately after the marriage. Three children later, at 24, she returned to school, first high school and then college, and separated from her abusive husband. At 29 she became the first female DEA agent in the agency's San Jose office, a fact that elicited resentment from some male law-enforcement colleagues with more service experience.

    Today, Guerrero-Daley's scrappy side is hidden beneath a carefully coiffed exterior. She wears a navy culotte outfit with a gold circle pin at her neck and matching gold earrings in an interview. Her brown hair is frosted with gold. She talks eagerly, as if relieved to be able to tell her side of the story.

    "I understand to some extent why some misconduct happens with officers because there's some chance you're willing to take," she says. "You're willing to sacrifice, whether it's officer safety or citizen's rights, to reach a goal. It often doesn't start with the intent to do wrong, but if you're focused on the ends, sometimes the means are questionable."

    The answer, she says, is to find a way to get officers to speak up when they see a fellow officer breaking the rules.

    "In the hundreds of investigations I've sat in on, in less than five did the witnessing officer say something entirely different than the officer being investigated, "she says. "They say; 'I didn't see, I wasn't looking, I didn't hear.' It's a very selective memory."

    As far as Guerrero-Daley is concerned, the auditor offers the best strategy for reforming the police because the department is less antagonistic toward her than the idea of a citizen review board. Still, a report issued in May by a citizens' advisory group appointed by the council noted that the police, particularly rank-and-file officers, resent being investigated by any outsider, including the auditor.

    Nevertheless, the advisory committee concluded that in nearly three years the auditor had improved police practices and opened the complaint process to residents.

    The auditor "has worked very, very hard to make her office meaningful to the community," says Jorge Gonzales, chair of the now- disbanded citizen advisory committee. "She still has a ways to go, and she'll admit that."

    "People think in two years the auditor is going to reform the entire police department and eliminate police abuse," he continues. "I don't think they understand the bureaucracy of the police department."

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From the Jan. 25-31, 1996 issue of Metro

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