From: SF Examiner
By: Michael Barba, 6/02/2021
Lateef Gray never saw himself as a criminal prosecutor, having worked as a public defender and civil rights attorney for years. Then Chesa Boudin came calling.
San Francisco’s progressive District Attorney needed help fulfilling a key campaign promise: Holding police accountable for inappropriate use of force. Gray had spent years suing cops for alleged misconduct. It was a perfect fit.
As the managing attorney of the Independent Investigations Bureau, Gray heads up a team of former public defenders and ex-officers who investigate every police shooting in San Francisco and other cases involving officers that result in death or serious bodily injury.
One year after coming on board, Gray reflected on the unexpected and surprisingly smooth career change.
“DA Boudin is probably one of the few DAs I would even think about jumping ship and doing what I’m doing for,” said Gray, who previously worked as an attorney with the prominent Bay Area law offices of John Burris.
Gray’s been busy at his new job, where the District Attorney’s Office has brought an abnormally high number of criminal cases against current or former San Francisco police officers in quick succession. The cases include two police shootings and one baton beating. The unit also resumed a fourth case last week against two former Alameda County sheriff’s deputies accused of assault.
While the District Attorney’s Office has accused police of crimes in the past, the effort to prosecute officers for police shootings is a departure for an office that has historically cleared officers of criminal wrongdoing in shootings, often finding that the police legally fired their guns in defense of themselves or others.
Even Boudin’s predecessor George Gascon, who went on to be elected as the progressive district attorney of Los Angeles County, never charged a police shooting case during his nearly nine-year tenure in San Francisco despite frequent protests demanding he do so.
The shift comes as prosecutors around the nation appear to be accusing police of crimes more regularly than before in the aftermath of the Minneapolis police killing of George Floyd.
John Crew, a retired American Civil Liberties Union attorney and longtime observer of local law enforcement, said the shift in San Francisco is a combination of both Boudin having the political will to file charges, with support from the general populace, and the specific cases rising to what he described as a “particularly blatant” level of criminal conduct.
“The fact that other DAs haven’t done that in the past doesn’t mean that there weren’t circumstances,” Crew said. “We now are in a different era.”
But attorney Nicole Pifari, who is representing two of the officers Boudin charged for assault, Christopher Flores and Terrance Stangel, suggested the shift is more malicious and unjust.
“Officers are being charged more now because Chesa Boudin has a very personal ax to grind against the police, and because he is drafting off of the current political climate in which it is extremely fashionable to be hard on police,” Pifari said.
Pifari said Gascon wasn’t a “friend or ally of police officers” either. But unlike Boudin, he likely “made proper allowances for the fact that society repeatedly sends officers headlong into dangerous situations and asks them to make split-second decisions,” she said.
What’s changed
Gray credits the shift in charging decisions to a complete overhaul of the Independent Investigations Bureau, internally known as IIB.
Under his leadership, IIB brought in former public defenders with extensive trial experience to work as attorneys and ex-police officers from Berkeley, Oakland and Novato to work as his investigators.
The goal was to find attorneys with the right state of mind to investigate the police: Those have never worked as line prosecutors, who do not have unnecessary ties to law enforcement and who question the word of police rather than plainly accept it.
“It takes a certain mind-state to investigate officers,” Gray said. “Not folks who will be overly harsh to officers, but just folks who will take a critical approach and evaluate all the evidence” and ensure it “stands up to scrutiny.”
But the unit is not just about charging officers. It also clears cops of criminal wrongdoing — and aims to do so quickly — in cases where they used deadly force because it was necessary to protect themselves or others. Gray said he hired staffers who could “play it down the middle.”
“I’m not biased against cops. I’m fair,” Gray said. “I scrutinize all of the evidence, no matter if we charge you and you think it’s an unfair decision, we still have to prove the case.”
Under Boudin, IIB has declined to charge officers involved in five police shootings, one in-custody death and one use-of-force case. That includes one case, the fatal 2015 shooting of Amilcar Perez-Lopez, that Gascon had previously closed without filing charges and Boudin agreed to take a second look at.
A more robust unit
When Gascon first pitched IIB in 2016, following a series of controversial police killings, he was concerned about the police investigators looking into the incidents asking leading questions and about police failing to notify the District Attorney’s Office of a shooting in a timely manner.
Gascon wanted a unit that could independently investigate the shootings and quickly return charging decisions. But IIB took years to launch.
While Gascon secured funding to staff the unit in 2016, he and Police Chief Bill Scott did not formalize an agreement to make the District Attorney’s Office the lead investigator of police shootings and other critical incidents until May 2019 due to extended negotiations with the police union.
“Before then, the DA’s office was basically a flea on the back of a giant dog,” said longtime Gascon spokesman Max Szabo.
Szabo suggested that Boudin being able to file charges in cases is less about political will, and more about Gascon having laid the groundwork for the office. Gascon resigned in October 2019, shortly after signing the agreement with Scott, making the IIB the lead investigator.
The state law Gascon cited as a barrier to filing charges in police shootings including the December 2015 killing of Mario Woods has also changed since he left office.
Under Assembly Bill 392, officers can only use deadly force to defend themselves or others when necessary — as opposed to when reasonable — beginning in January 2020. Gascon has said he may have charged the officers in the Woods case if standard for using force were higher then, as it is now.
Agreement expiring
Much of the power at IIB comes from the two-year agreement signed by Gascon and Scott in May 2019.
The agreement puts the District Attorney’s Office in charge of criminal investigations into police shootings and other officer-involved cases resulting in serious injury or death by giving prosecutors the lead on all interviews and requiring immediate notification when a critical incident occurs.
While the agreement was supposed to expire last month, it’s currently being renegotiated under a 60-day extension and awaiting approval from the police union.
But both the police and prosecutors are interested in keeping the agreement, or memorandum of understanding, or MOU, intact.
“We do believe this MOU is important to ensure public confidence in the legitimacy of these investigations and expect the MOU to be finalized in the near future,” said Sgt. Michael Andraychak, a police spokesperson.
David Campos, chief of staff for Boudin, said the agreement is being tweaked to provide for better cooperation and communication.
“Based on the negotiations its clear that the MOU has worked very well,” Campos said.
Moving forward
While negotiations over the agreement seem amicable, IIB is not without challenges.
One issue is the District Attorney’s Office has agreed to take a second look at some high-profile cases Gascon previously declined to charge to determine whether the former DA made the right call.
Even if Boudin decided the conduct in those cases was a crime, filing charges could be difficult because the District Attorney’s Office has already issued lengthy declination letters under Gascon articulating why the shootings did not rise to the level of criminal conduct.
Boudin has decided to stop writing long declination letters so future district attorneys can avoid this particular problem in the future.
The other issue is more complicated.
Under the law, the District Attorney’s Office has two practical methods for bringing charges against an officer it believes committed a crime. Because officers are typically not arrested after a police shooting or other incident, prosecutors do not have 48 hours to file charges against them like they might when the average person is booked into jail.
Instead, prosecutors can either present a case to a grand jury, which will decide whether there is enough probable to indict, or file a criminal complaint against an officer.
But in order to file a complaint, prosecutors need an investigator who is a state-certified peace officer to establish probable cause and sign off on an application for an arrest warrant. And finding an officer to write a warrant for the arrest of one of their own can be challenging.
“It’s hard because we need an investigator who believes in the strength of the case,” Gray said. “As an attorney I can believe in the strength of the case all I want, but I can’t write a warrant. Sometimes it’s hard when the investigators are former officers.”
To address the issue, the office is putting a former public defender’s office investigator through training to become a certified peace officer. Boudin is also advocating for proposed state legislation, Assembly Bill 127, that would allow an employee at any public prosecutor’s office in California to sign off on arrest warrants for peace officers.
Gray said his unit is important to ensure the public trust.
“The public doesn’t feel confident in the police investigating themselves,” Gray said. “Allowing us to investigate and be transparent as can be gives the people who we’re accountable to some sense that this investigation will be fair.”
