Former San Francisco Police Chief George Gascón’s “conflict of interest challenge” continues to grow with yet another allegation of police misconduct by officers serving under his command.

The latest allegation stems from a video showing officers allegedly improperly searching a  residential hotel room and taking property from the room that was not marked into evidence – and then allegedly lying about it under oath.

These serious allegations of police misconduct require a serious response – and Interim District Attorney George Gascón can’t be serious if he proposes to investigate officers who were under his command at the time of the alleged misconduct.

When similar allegations arose last month, Gascón said he was under no obligation to recuse his office from any potential criminal prosecution. After the Federal Bureau of Investigation stepped in to review the allegations of misconduct, Gascón said he was stepping away from investigating those earlier allegations because of “resource” issues while continuing to insist that he had no conflict of interest. He has not defined what resources he was lacking.

From day one, Gascón had the clear obligation to recuse himself from investigating the Police Department he so recently led. And that obligation only becomes more pressing as the number and scope of allegations of police misconduct during Gascón’s tenure as police chief widens.  

The National District Attorneys Association’s National Prosecution Standards clearly states:

“The prosecutor should excuse himself or herself from any investigation…where personal interests of the prosecutor would cause a fair-minded, objective observer to conclude that the prosecutor’s neutrality, judgment, or ability to administer the law in an objective manner may be compromised.”

In my career as a criminal justice expert I have learned that our community is safest when the police and prosecutors earn – and keep – the public’s trust. Our appointed District Attorney undermines years of progress in building trust when he refuses to acknowledge his clear conflict of interest.

Gascón’s failure to address conflict of interest issues was also highlighted by recent disclosures that his former campaign consultant potentially violated city ethics laws by lobbying him on behalf of the San Francisco Police Officer’s Association, the police union. The campaign consultant also potentially violated the same ethics rules in lobbying another former client, San Francisco’s City Attorney. The City Attorney acted quickly to recuse himself from any investigation regarding the matter. Gascón has taken no action to recuse himself, despite the nearly identical fact set.

The people of San Francisco deserve and demand a District Attorney who will avoid clear conflicts of interest as a matter of policy – rather than personal whim. Gascón must recuse himself as a matter of policy from police misconduct cases of officers who served under his command. And Gascón is under an ethical obligation to develop and publish a clear conflict of interest policy.

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David Onek is a Senior Fellow at Berkeley Law School, former Commissioner on the San Francisco Police Commission and candidate for San Francisco District Attorney.

Last September, the San Francisco Police Department – under the command of former chief George Gascón – submitted a proposal responding to the uptick in violence outside a handful of San Francisco nightclubs.

The proposal was supposed to be heard this week by the city’s Entertainment Commission, but Mayor Ed Lee appropriately delayed the hearing for more debate.

The violence outside of nightclubs is a serious problem that must be addressed in a thoughtful way. But the SFPD’s flawed proposal is a knee-jerk response that will not make us safer and will violate our privacy rights. We need to understand why a city as progressive on policy as San Francisco is being offered flawed political solutions to serious public safety challenges.

A Plan Likely to Backfire

The SFPD proposal mandates venues to swipe patrons’ identification cards and keep this personal information on record for subsequent police review and to place metal detectors at some venues with occupancy levels exceeding 100, among other requirements.

This proposal is extremely problematic on a number of levels – the first of which is that it will likely backfire. Most nightclub violence takes place outside, not inside the clubs. Creating bottlenecks and barriers to entry will have the effect of keeping more trouble outside. And creating an environment so unwelcoming that many law-abiding people will stay home or go to other cities, while some potential troublemakers will simply go to unregulated clubs, could make our streets more dangerous at night.

The police proposal has been rightly criticized by the California Music and Culture Association (CMAC), which is proposing more sensible reforms. The SFPD proposal has also come under fire from the American Civil Liberties Union, which has weighed in on very real First Amendment and privacy concerns. Choices of art and music venues often reflect private political and personal preferences; requiring that venues store patrons’ identification information thus raises serious constitutional issues.

As the father of two young daughters, I don’t make it out to clubs as much as I used to. But I know what a vital role nighttime venues play in our culture, our identity and our economy.

We don’t want to put responsible club owners out of business with costly proposals that do not improve public safety. Instead, we should be working collaboratively with these responsible owners on real solutions, such as enhanced training of security personnel, improved lighting and better coordination with the SFPD. I also believe we should look more closely at the licensing status of clubs where crime patterns emerge – and be more aggressive about revoking the permits of those operators who don’t provide a safe environment for their patrons and neighbors.

These are practical steps that would make us safer by targeting the problem clubs, not every venue, and they are steps that would not violate the First Amendment and privacy rights of people who patronize San Francisco’s clubs.

A Political Proposal

But instead of practical solutions, the nightclub plan exemplifies the reactive “do something – do anything” mentality that so often creates “safety” policies that actually make us less safe. If it is adopted in anything like its current form, it will be yet another example of knee-jerk responses beating out thoughtful policies.

Our police chief at the time – George Gascón – was under pressure to “do something.” But instead of a reasoned and collaborative solution, what was proposed was simply more politics. The public and the politicians demanded action – so the police proposed action even though their proposals would not make us safer, would violate our constitutional rights and would be tied up in the courts for years.

The best tool to create a safer community is not to violate the privacy rights of San Franciscans who contribute to our culture and economy by patronizing our clubs, but to enlist club owners and the broader community to work collaboratively with law enforcement to support a safer environment around the clubs.

We need to reduce the violence outside of nightclubs. But let’s do so with thoughtful policies – not knee-jerk, political responses.

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David Onek is a senior fellow at the Berkeley Center for Criminal Justice, host of the Criminal Justice Conversations Podcast and a former Commissioner on the San Francisco Police Commission.

When San Francisco’s sitting police chief was chosen to become San Francisco’s district attorney, there were two clear schools of thought on such an unprecedented move.

Leaders of the American Civil Liberties Union and others wrote to underscore the conflict of interest inherent in elevating a sitting police chief to district attorney in the same city. They predicted that new District Attorney George Gascón would be terribly challenged by the conflict of interest posed by his tenure as police chief.

Other San Francisco leaders took a different view. They argued that Gascón had shown signs of being a reformer as police chief and that this was the same spirit necessary in the district attorney’s office. Conflict of interest issues, these thinkers argued, could be identified and isolated.

But the events of the past few months have highlighted just how significant the conflict of interest challenges faced by former chief Gascón are going to be. And his responses have not been encouraging.

San Francisco police officers have been accused of allegedly conducting illegal searches and committing perjury – incidents that occurred while they were under Gascón’s command as chief. Most of these cases occurred at Southern Station – the one station located in the Hall of Justice, the same building where Gascón worked as chief (and where he works today as district attorney). As chief, Gascón was responsible for the training and supervision of the involved officers.

When confronted with these facts, the former chief insisted he was perfectly capable of handling the investigation in his new office. He maintained he could fairly investigate the San Francisco Police Department for conduct that occurred when he led the agency.

Gascón maintained this position for nearly a week. Finally, after lawyers for the accused officers met with the police officer’s union, Gascón announced he was turning over the investigation to the U.S. Attorney’s Office – but insisted that it was due to unspecified “resource” issues, not because of a conflict.

His decision to turn over these cases to a third party, regardless of the motive, is a correct step. Yet something absolutely foundational is still missing – Gascón has not made it a policy to recuse himself from investigations relating to his own tenure as chief.

Gascón’s decision to continue – as a matter of policy – to investigate incidents involving police officers when they were under his command is fundamentally flawed on at least two basic levels. First, every suspect is entitled to a fair, objective investigation. When Gascón sits in judgment of his own service as police chief, this foundational principle of the law is undermined.

The second flaw underscores a management principle rather than a legal principle, but is vitally important if you are an advocate of reform in San Francisco or elsewhere.

When Gascón makes the decision to investigate the officers who served under his command, he is saying clearly that he himself holds no responsibility for their behavior. Such a position of inoculating the leader from the behavior of his agency undermines the basic tenets of reform – and frankly, the basic principles of sound management.

In the not too distant past, San Francisco saw the bulk of the police department command staff criminally indicted for allegedly covering up an incident involving off-duty officers on the street. Those charges were dismissed, but the underlying culture of top command looking the other way rather than embracing oversight and responsibility was identified as a problem that needed to be fixed.

The new chief after that incident was Heather Fong, who embraced a culture of responsibility starting at the top.

If former chief Gascón is now saying that he was not responsible for the actions of his own officers – he is saying he does not understand the foundational principles of how to lead a reform movement.

For the sake of justice – and for the sake of reform – former chief Gascón needs to implement a clear conflict of interest policy that would recuse him and the office he now leads from investigating the San Francisco Police Department.

David Onek is a Senior Fellow at the Berkeley Center for Criminal Justice, former Commissioner on the San Francisco Police Commission and candidate for San Francisco District Attorney.

As we wait to see what sort of pain the Governor’s budget will bring, San Francisco made some news again yesterday.  Rather than appointing one of the political types that have been bandied about, Mayor/LG Newsom, always one for a bit of the dramatic, went for the unexpected by selecting SF Police Chief George Gascón.

Now, Gascón has been pretty popular in SF since he arrived about a year and a half ago, but his name was never really mentioned in connection with the DA gig.  There are a number of reasons for that.  While he did graduate from Western State University College of the Law, he has never really practiced law. Instead, he’s been a full-time cop, moving up the ladder in the LAPD (and serving as the Chief of Mesa,AZ).

Now, while he may not have the trial experience of a Kamala Harris, it is clear that the DA of a county like SF rarely actually litigates cases anymore.  Rather, the job is more strategic, and that is what Harris excelled in.  And so it is no surprise that he chose to praise that ability of his predecessor:

At his swearing-in ceremony a few hours later, Gascón said he planned to continue many of Harris’ programs.

There will be one distinct change, however. Unlike Harris, Gascón said he had no objection to seeking the death penalty in cases that warrant it.(SF Chronicle)

Of course, in a city like San Francisco, the death penalty is neither popular nor particularly easy to get.  Kamala Harris just didn’t have a whole lot of opportunities to attempt to get the death penalty even had she wanted to, and Gascón is going to learn a bit about those feelings as he enters his new found career in San Francisco politics.

Speaking of those political issues, no word on whether this presents any changed circumstances for other announced candidates.  Current DA Administrator Paul Henderson and Boalt Hall criminal justice expert David Onek have already announced their candidacies. Former prosecutor Jim Hammer is also rumored to be interested.