San Jose: City spurns watchdog’s plea for more access to police shootings, force cases

SAN JOSE — In what has almost become a rite of passage for anyone who steps in as San Jose’s independent police auditor, the latest plea to expand the scope and access of the auditor’s oversight role has been soundly dismissed by city leaders.

Eddie Aubrey, a former cop and experienced police watchdog who has been on the job for just over a year, recently published his office’s annual police audit report highlighted by two notable policy recommendations: for him and his staff to get a closer look at police shootings as they’re being investigated, and to access records of minor use-of-force incidents that make up the vast majority of police force used in a given year.

The request prompted unified opposition among the police chief, mayor, city manager and several city council members. They argued that preserving the integrity of criminal investigations and the burden of producing reams of additional records on an understaffed police roster outweighed Aubrey’s contention that the current auditor structure prevents him from conducting more meaningful oversight for some of the most serious acts of city police officers.

The rejection, by a unanimous council vote Tuesday, continues a history of the city limiting the reach of its police auditor, who by design has no direct authority over police policy. Past auditors — and voters — have increased what the office reviews since its establishment three decades ago, but those changes usually came slowly, and none have pushed the office beyond its advisory role.

This time, Aubrey asked the city and police department for him and his staff to have a more involved presence at the site of police shootings and similar critical incidents. He asked for timely access to information, including officer interviews, body-camera footage, and allowance for a walkthrough at a shooting site, instead of getting a distilled package of information as long as three months later.

San Jose Police Chief Paul Joseph said at Tuesday’s council meeting that police shootings are already the subject of extensive public disclosure from the department, through news conferences and body-camera footage that, by state law, has to be released within 45 days. He emphasized that a police shooting is a criminal investigation with strict information protocols.

“This is a law enforcement exercise,” Joseph said. “There is a tremendous amount of thoroughness, transparency, accountability and legitimacy. Yes, (Aubrey) is not involved from the outset, but I’m not really sure how that has hampered his ability to audit what it is that we’re doing.”

Aubrey responded by noting that the access he’s asking for is increasingly standard practice for civilian overseers in cities like Oakland, San Francisco, Fresno and Sacramento, the latter two cities being where Aubrey and his chief assistant previously served as police watchdogs. He emphasized that any access would be as an observer, not an investigator.

“This is not an outlier practice,” Aubrey said to the council. “Meaningful oversight and sound criminal investigations are not mutually exclusive. … We are not asking for special treatment, we are asking for parity.”

He added: “Without that access, … what purpose does it serve for the IPA to respond to the scene if we are not permitted to observe, obtain or access any information that we couldn’t receive with a phone call?”

A council memo from Mayor Matt Mahan and four other councilmembers calling for the rejection of Aubrey’s recommendation stated that “Civilian oversight plays a critical role in building and maintaining public trust, but it must be structured in a way that preserves the integrity of criminal investigations and makes prudent use of our limited public resources.” The memo lauded the existing auditor arrangement, and stated that the suggested change “would introduce operational and investigative risk and impose significant staffing and fiscal impacts.”

In an interview after the council meeting, Aubrey reiterated that his request targeted “low-hanging fruit” and that it is essential to build community trust in the wake of a high-profile incident.

“Timeliness of the information is what the public wants, and (the recommendation) gives an outside person that from day one, from the time of incident throughout the investigation,” he said.

The council memo was also written in response to Aubrey’s request to access records on all use-of-force cases, rather than its current allotment of incidents that lead to a shooting or serious bodily injury. His rationale is that serious injury cases only account for 3% of overall use of force, and that only having summary access to the remainder of instances leaves his office in the dark when it comes to identifying areas of concern.

“All we see and can report on are the end numbers. Those numbers don’t tell the story,” Aubrey said in an interview. “The 97% of other cases, we can see if there are patterns or trends with individual officers, with (a specific) use of force, or a policy that may confuse officers. That’s where you get change.”

But he added that he was not discouraged by Tuesday’s outcome, and pointed to the council’s and police department’s acceptance of 10 other policy recommendations, one of which is to count police shootings, in-custody deaths and civil misconduct lawsuits as department-initiated investigations — their term for internal conduct complaints. The effect, Aubrey said, is that his office will no longer have to wait for a community complaint to probe those matters. Other recommendations dealt largely with updating police oversight and officer accountability policies.

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“What we’re going to focus on is doing everything we can with the authority we’ve been given, and exhaust that completely. We can do a lot with what we have now and with what we got yesterday,” Aubrey said. “We’re still going to work toward those goals, and we’re still going to work with the police department. I’m really optimistic about where we are and we’re going to go with this.”