City Attorney Is Writing The Law To Distance City Attorney From Police Oversight

By Kelly Davis, the Voice of San Diego

July 7, 2021

For decades, the board charged with reviewing the San Diego police department’s most serious internal affairs investigations relied on the city attorney’s office for legal advice.

This didn’t jibe with folks pushing for stronger oversight, who argued that the board shouldn’t be getting advice from the same office that defends the police department against citizen lawsuits. In 2017, newly elected City Attorney Mara Elliot agreed and granted the board the ability to consult with independent legal counsel.

Now, amid a contentious debate over a draft ordinance that will guide implementation of San Diego’s new police oversight commission, supporters of the reform are asking again whether the city attorney should step aside and let an outside expert to write the law.

“Measure B provides for independent legal counsel” for the commission, said Kate Yavenditti, a lawyer and member of Women Occupy San Diego who’s been part of the years-long effort to strengthen police oversight in San Diego. “Why are we still using the city attorney’s office?”

Measure B, which garnered 75 percent of voter support in November, replaces the old Community Review Board on Police Practices with a new Commission on Police Practices. The commission will have a professional staff that will investigate incidents involving police use of force, certain misconduct complaints, recommend policy overhauls and ensure that the police department is complying with all local, state and federal data-reporting requirements.

After weeks of delays, last month the city attorney’s office released a draft of the ordinance that will govern how the commission operates.

The community groups that supported Measure B and had spent months putting together a list of guiding principles for the new commission didn’t like what they saw. There was nothing in the ordinance about staffing or budget, two things that can cripple police oversight if not given priority. The draft also ignored one of the community’s biggest asks: that the process of nominating members to the commission’s board would be community-driven, with an emphasis on recruiting people from San Diego’s most over-policed communities.

“The community could not have been clearer that the community wanted to nominate the commissioners itself,” said Andrea St. Julian, the attorney who wrote Measure B. “We were completely ignored.”

Instead, the draft gave the City Council sole authority to nominate and appoint commission members. It was also vague on the police department’s obligations to the commission when it comes to responding to policy recommendations and turning documents required for investigations.

“[The city attorney’s] legal and ethical responsibility is to protect their client, which is clear from the draft ordinance, which favors SDPD every way possible,” Yavenditti said in an email to Voice of San Diego. “They should be completely removed from this process.”

While state law requires that the city attorney give ordinances final review, nothing prevents the office from bringing in an outside expert to write an ordinance. A spokeswoman for Elliott said there was no conflict of interest in the city attorney’s office drafting the ordinance.

At a meeting last week of the City Council’s Public Safety & Neighborhood Services committee, Council members said that some of the concerns with the draft ordinance could be addressed in other documents, like the commission’s standard operating procedures, which commissioners will draw up.

But Patrick Anderson, an interim commissioner who convened a series of roundtable discussions about the new commission, said that a weak ordinance could lead to a weak commission.

“There are some things that must go in the ordinance and anything that the police department is compelled to do must go in the ordinance,” he said. “If you don’t read [the city attorney’s] draft as being strong enough in terms of how it holds the police department accountable — I don’t care if you’re an attorney or whatever — if this doesn’t strike you as being strong enough, there’s no other document that can be created by the commission that can be strong enough.”

St. Julian drafted her own ordinance, a process she said took less than three days, compared with the six months that passed between when Measure B was chaptered by the secretary of state and when the city attorney released its draft.

“That [draft] should have been written by January,” she said. “Next, we are going to have to fight to be able to get a decent ordinance. I don’t know how long that fight is going to take. This is not a good start.”

The dissatisfaction with the ordinance process comes amid the release of a study by the Center for Policing Equity that found that people of color were more likely to be stopped and searched by San Diego police than White people. According to the report, which examined data between 2017 and 2020, Black San Diegans were 3.5 times more likely to be stopped by police compared to White people, and five times more likely to be subjected to use of force. Asian and Latinx people were 1.5 times more likely to be stopped by police than White people.

Sharon Fairley, an expert in police oversight and former head of Chicago’s Independent Police Review Authority, said San Diego’s not unique in having competing visions for police oversight.

“It’s not unusual to see friction arise when it comes to how much power to grant law enforcement oversight,” she said. “If you’re in a jurisdiction where it usually is the city attorney who drafts legislation, the conflict exists for sure and it’s a problem.”

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