MEMORANDUM OF UNDERSTANDING BETWEEN THE SAN FRANCISCO DISTRICT ATTORNEY S OFFICE AND THE SAN FRANCISCO POLICE DEPARTMENT REGARDING THE INVESTIGATION OF OFFICER-INVOLVED SHOOTINGS, IN-CUSTODY DEATHS, AND UNNECESSARY USES OF FORCE RESULTING IN SERIOUS BODILY INJURY PREAMBLE Peace officers perform a vital and often dangerous job in our communities. Situations will occur where peace officers must use deadly force; however, we expect that such force will be used only when legally necessary and as prescribed by law. When peace officers use deadly force, the public has a right to expect that a thorough and neutral examination will be conducted into these incidents and that all parties will be held legally accountable for their actions. The Independent Investigations Bureau of the San Francisco District Attorney's Office ( IIB ) and the San Francisco Police Department ( SFPD ) agree that SFDA personnel will immediately respond to the scene of officer-involved shootings and in-custody deaths. The policies and procedures to be followed are set forth in this Memorandum of Understanding ( MOU ). TERMS AND DEFINITIONS A. Officers: For the purposes of this MOU, the term officer shall mean any sworn SFPD member. B. Covered Incidents: For the purposes of this MOU, SFPD officer involved shootings, incustody deaths, and unnecessary use of force incidents resulting in serious bodily injury shall mean the following: 1. Officer Involved Shooting: An officer's intentional discharge of a firearm intended to stop a threat, with or without physical injury or death to a person, or a negligent discharge that results in physical injury or death of a person. This definition excludes incidents wherein an off-duty officer intentionally discharges his or her firearm but does not place him or herself in on-duty status at any point preceding the incident. An officer places him or herself in on-duty status by actually, purportedly, or apparently acting for a law enforcement purpose. 2. In-Custody Death: Any death that occurs when a person is restrained by an on-duty officer by means of (i) physical restraints and/or any use of force, as outlined in SFPD policy; (ii) detention or confinement in an SFPD vehicle; or (iii) detention or confinement in a jail or detention facility while in the custody of an SFPD officer. For the purposes of in-custody deaths, involved officers include officers, who through facts that establish logical and consequential involvement, are reasonably responsible for the relevant physical restraint, detention, or confinement at the time of death.
3. Unnecessary Use of Force Resulting in Serious Bodily Injury: When a supervisory evaluation, as outlined in General Order 5.01, Use of Force, determines that an on-duty officer's use of force was unnecessary and resulted in serious bodily injury. Serious bodily injury is defined as a serious impairment of physical condition, including but not limited to loss of consciousness, concussion, bone fracture, protracted loss or impairment of function of any bodily member or organ, a wound requiring extensive suturing, and serious disfigurement. Unnecessary force is defined as force used in an amount that is greater than permitted under departmental policy given the circumstances of the incident. Officers are permitted to use whatever force is reasonable and necessary to protect others or themselves, but no more. Covered Incidents do NOT include an officer s discharge of a firearm (i) that is intended to kill a dangerous or wounded animal; (ii) that is intended to signal help for an urgent purpose; (iii) that is unintended and does not cause injury or death to a person; (iv) that occurs outside the borders of the City and County of San Francisco; or (v) that occurs as a sporting or recreational activity. Whenever there is a question if an incident meets the criteria of this MOU, a supervisory officer shall consult with their respective department on-call investigator who will determine if a covered incident investigative response is appropriate. C. Criminal Investigation: An SFPD and Independent Investigations Bureau ( IIB ) investigation conducted to determine whether an officer committed a crime during the covered incident. Should there be ancillary investigations, including but not limited to, underlying criminal activity that preceded or occurred at the same time as the covered incident or an on-going investigation outside of the covered incident, that investigation shall remain with the SFPD. D. Administrative Investigation: An investigation conducted by SFPD administrative investigators to determine whether any involved SFPD personnel violated any general order, regulation, or other workplace rule during the covered incident. This includes internal investigations. SEPARATION OF CRIMINAL AND ADMINISTRATIVE INVESTIGATIONS The IIB s role in a covered incident is to lead the criminal investigation with the SFPD and determine whether any violation of criminal law occurred. An employing law enforcement agency may have the responsibility in an officer-involved shooting or an in-custody death investigation to address several issues: (1) whether any criminal law violations have occurred; (2) whether departmental policies have been followed; and (3) whether appropriate law enforcement tactics were used under the circumstances. Thus, the involved law enforcement agency may choose to conduct an administrative review or investigation concurrently with a criminal investigation.
During the course of an administrative inquiry, a law enforcement agency is authorized by law to compel its officers to give statements regarding matters that are subject of the administrative investigation. (Public Safety Officers Procedural Bill of Rights Act ( POBRA ), Government Code 3300-3313.) However, the law limits the admissibility of such a compelled statement in a criminal prosecution. Therefore, the administrative investigation must be separate from the criminal investigation. SFDA personnel shall not be present during the compelled interview of any involved officer, and shall not receive any information concerning the content of a compelled statement, unless otherwise approved by the District Attorney, or his/her designee. Assistant District Attorneys and Investigators from IIB will respond to the site of the incident and will lead the criminal investigation with SFPD. IIB will work with SFPD to ensure that the criminal investigation is conducted in a fair and professional manner that will serve the interests of justice, the community, the involved officers, those persons injured, and the families of those affected. The primary objective of IIB s investigation is to accurately, thoroughly, and objectively investigate the incident and to determine the potential criminal liability, or lack thereof, of SFPD officers involved in a covered incident. NOTIFICATION REQUIREMENTS For all covered incidents, SFPD shall immediately notify the on-call SFDA investigator of the incident. SFPD shall provide the on-call SFDA investigator with a brief summary of all the facts known at the time, including: the location of the incident, the location of the command post, suggested access routes, and any safety concerns. AT THE SCENE SFPD, in cooperation with SFDA personnel, shall be responsible for securing the location, collecting all physical evidence, and photographing and diagramming the scene. The criminal investigative responsibilities of the on-scene IIB personnel may include the following: A. Advise investigating SFPD personnel about criminal legal issues as they relate to the investigation; B. Record their observations and ensure whenever possible that the interviews of witnesses are electronically recorded; C. Assist and consult with SFPD investigative personnel regarding the collection of evidence and the interviews of witnesses. SFPD investigators shall participate and ask questions in interviews. D. Conduct an independent investigation of the facts and circumstances of the incident. It is understood that an independent investigation may include evidence collection and witness interviews. SFDA personnel shall check-in with the SFPD personnel responsible for maintaining the crime scene log upon their arrival and before departing from the scene. SFPD personnel shall record on the crime scene log the names of the SFDA personnel on scene and their arrival and departure times.
After their arrival on scene, IIB personnel shall be briefed about the incident by the ranking member of SFPD s Risk Management Office, or his or her designee. The briefing shall consist of all relevant information known at the time, including, but not limited to: A. The names and current location of the officers involved in the incident; B. The names, addresses, and current location of all civilian witnesses to the incident; C. The statements of the officers, including any public safety statements. Compelled statements shall not be shared, absent exigent circumstances; D. The physical evidence discovered; and E. The medical condition of injured parties. The ranking member of the SFPD s Risk Management Office, or his or her designee, shall ensure that SFDA personnel have access to the scene of the criminal investigation. All physical evidence shall remain in the custody of SFPD, unless determined otherwise by SFPD and IIB. INTERVIEWS OF CIVILIAN WITNESSES SFDA personnel, along with SFPD, shall make every attempt to locate, identify, and interview all potential witnesses to an incident. IIB personnel will be present for and lead interviews of all civilian witnesses whenever practicable. In addition, investigative personnel shall ascertain from uniformed officers at the scene the names, addresses, and contact information of any civilian witnesses who cannot or will not remain at the scene. IIB personnel shall be personally present at and directly participate in the interviews of all civilian witnesses conducted by SFPD. All witnesses shall be interviewed separately by investigative personnel to maintain the integrity of their statements. All interviews shall be electronically recorded by both SFPD and SFDA. INTERVIEWS OF LAW ENFORCEMENT OFFICERS All law enforcement witnesses to the events of the incident shall be separately interviewed. The interviews shall take place as soon as is possible after the incident and should be electronically recorded. Prior to the interview, all law enforcement witnesses should be kept apart to maintain the integrity of their statements. IIB personnel shall lead non-compelled interviews of all law-enforcement personnel with SFPD participation. IIB personnel shall be personally present at and directly participate in non-compelled interviews of all law enforcement personnel. SFPD administrative investigators shall not be physically present in the room or place during the taking of criminal interviews. SFPD administrative investigators shall be present only if deemed necessary to administratively compel answers to questions during the criminal investigative phase. However, SFPD administrative investigators may monitor criminal interviews either through visual observation and audible
reception of the interview location through glass or through observation of real-time video or close circuit transmission of the criminal interview. If the officer chooses not to make a voluntary statement and SFPD elects to compel a statement pursuant to POBRA, IIB personnel shall be available to participate in the compelled interview at the request of SFPD, if the Assistant District Attorney assigned to the investigation has the prior approval of the District Attorney or his/her designee. MEDICAL EVIDENCE SFDA personnel should remain at the scene of a fatal shooting or in-custody death until the Medical Examiner s personnel arrives and completes its on-scene investigation. When an individual has been wounded by the police, IIB and SFPD personnel shall attempt to question the medical personnel who treated the wounded individual and make efforts to preserve evidence that could be obtained during the course of treatment, such as the angle of the bullet entry, lacerations, contusions, the presence and effect of any drugs or alcohol, or any physical evidence (such as foreign objects or projectiles). INVESTIGATIVE REPORTS It is the intent of the IIB and SFPD to complete their review of these incidents as quickly as possible, consistent with the primary goal of conducting a thorough and objective review of the facts. As the investigation proceeds, and as the information becomes available, copies of reports and any other information received by SFPD shall be forwarded to the IIB investigator assigned to the incident. This procedure will permit the review process to proceed simultaneously with the investigation. It will also permit timely requests for an implementation of any additional investigation and clarification of reports if required. Any requests by the IIB for additional crime scene investigation or laboratory tests shall be made in writing to SFPD. In any event, SFPD shall submit a complete copy of its criminal investigation file regarding the incident to the IIB investigator assigned to the incident as soon as it is complete and not more than 60 to 90 days from the date of the incident, depending on the complexity of the investigation. The SFPD shall promptly provide a copy of its Administrative Investigation file upon receipt of a written request from the IIB pursuant to California Penal Code section 832.7. FINAL ACTION At the conclusion of the investigation, the District Attorney, or his/her designee, shall review and analyze all the evidence to determine whether the officer acted lawfully. The crime charging standards are the same for peace officers as for civilians. The District Attorney s policies regarding crime charging are set forth in the CDAA Professionalism Manual which states in part: The prosecutor should charge only if the following four basic requirements are satisfied:
1. The prosecutor, based on a complete investigation and a thorough consideration of all pertinent facts readily available is satisfied that the evidence proves that the accused is guilty of the crime to be charged; 2. There is legally sufficient, admissible evidence of a corpus delicti; 3. There is legally sufficient, admissible evidence of the accused s identity as the perpetrator of the crime charged; and 4. The prosecutor has considered the probability of conviction by an objective fact finder and has determined that the admissible evidence is of such convincing force that it would warrant conviction of the crime charged by a reasonable and objective fact finder after hearing all the evidence available to the prosecutor at the time of charging and after considering the most plausible, reasonably foreseeable defense inherent in the prosecution evidence. The IIB shall notify SFPD of its decision in writing as soon as possible after the conclusion of the independent investigation. This MOU shall be effective upon the approval of the District Attorney and the Chief of Police and shall remain in full force and effect for a period of two (2) years or until terminated by one party after thirty days written notice directed to the District Attorney or the Chief of Police. IN WITNESS WHEREOF, the parties hereto have executed this MOU on, 2016. George Gascón, District Attorney Date: Toney D. Chaplin, Interim Chief of Police Date: