National debate connecting racism and policing in the wake of the May killing of George Floyd has penetrated Peninsula police and public agencies and raised the eminence and effect of Black Lives Matter’s “8 Can’t Wait” platform, especially its call to ban carotid restraint holds.
The argument over a statewide ban on carotid holds continues to rage in Sacramento, with the California Police Chiefs Association in strong disagreement. But the San Mateo County Sheriff’s Office suspended its use in June, the San Mateo Police Department drafted policy prohibiting not only carotid holds but all choke holds, and Redwood City is waiting to modify its “highly restrictive” policy on carotid restraint until the state police training agency and the Legislature act on Governor Gavin Newsom’s call for a complete ban on the practice.
Action on the remaining seven of 8 Can’t Wait’s wish list is less certain. Local agencies say they are already doing what’s being asked, or a version of it, or are open to discussing it.
The concept of black lives matter, but not the political movement, won the endorsement of the San Mateo City Council July 20, but the council stopped short of going along with a proposal for a “Black Lives Matter” mural on a downtown street. A resolution acknowledging “the dignity of all our community members” was brought forward by Council member Amourence Lee with the support of faith leaders, Police Chief Ed Barberini and the Police Officers Association. But the separate mural proposal is to be referred to the Civic Arts Commission.
Redwood City and San Mateo have launched public “listening sessions” about policing and budgets that so far have solicited constituent demands for everything from eliminating police departments to increasing police budgets.
At least one elected participant in the listening sessions, Redwood City Council member Alicia Aguirre, who serves on the city’s new Ad Hoc Committee on Policing, insists that the talk must lead to “actionable items.”
Redwood City has announced one action: returning to the federal Defense Logistics Agency the police department’s 30-ton Mine Resistant Ambush Protected vehicle, taken out of military surplus and given to Redwood City in 2014.
Hardened to protect soldiers from bombs and weapons when deployed to such places as Afghanistan, the vehicle was upgraded with paint and police logos and intended to serve as a police rescue vehicle. It has been deployed once in the last six years. Mayor Diane Howard has long criticized it as bad for the image city government wants to project to its citizens.
A carotid hold is law enforcement authorization to use force to subdue an individual by cutting off the flow of oxygen to the brain. The throttle is pressure on the carotid artery in the neck that is the brain’s primary blood supply. The carotid hold is intended to render a subject unconscious, and most police policies caution that it can have lethal consequences.
A medical examiner’s report blamed intoxicants and a possible cardiac condition for Floyd’s death; an independent autopsy paid for by the Floyd family concluded he died of asphyxiation when Minneapolis Police Officer Derek Chauvin knelt with knees on his back and neck for nearly nine minutes. Officer Chauvin has been charged with Floyd’s murder in the case.
Protest marches, riots and property destruction in more than 300 American cities that followed spawned the web-based 8 Can’t Wait movement, which itself is an outgrowth of the five-year-old Campaign Zero. Campaign Zero in turn was organized after nationwide protests over the killing of Michael Brown by Officer Darren Wilson in Ferguson, Mo., in August of 2014. All organizers of 8 Can’t Wait and Campaign Zero are activists of the Black Lives Matter movement.
Efforts to contact Campaign Zero, 8 Can’t Wait, Black Lives Matter Los Angeles and local BLM activists for comment in this article were unsuccessful.
Twenty-five law enforcement agencies have jurisdiction over San Mateo County’s 20 cities and other areas. With more than 800 employees, the sheriff’s office is by far the largest, providing police services to areas outside of city limits as well as to Woodside, Portola Valley, San Carlos, Millbrae and the Coastside including Half Moon Bay.
Sheriff Carlos Bolanos is elected countywide. He contends that equating racism and police use of force is “missing the point.
“The point,” he said, “was, before May 25, George Floyd, we weren’t talking about defunding police, we weren’t talking about 8 Can’t Wait, everybody was pretty much happy going all along recognizing racism has been with us forever in the history of our country.
“We had this horrible, tragic incident. I can’t in any way defend that officer’s action,” Bolanos said. “From my perspective law enforcement is part of the problem, but the difficulty I have with this entire issue is law enforcement is just part of the systemic racism that exists in all of our institutions.
“I think by focusing just on law enforcement — I’ll be the first to tell you we can always make improvements — but by just focusing on law enforcement it allows people to, basically they’ve found their scapegoat. But racism is found everywhere. Everywhere. Education. Housing. Business. Hiring.
“I’m a person of color,” Bolanos continued. “People choose to live on the Peninsula for a reason. They move from Redwood City to other cities for a reason. My concern is that by just focusing on law enforcement — please remember the word ‘defunding.’ Once people recognized that that is not a good word, they changed it to ‘reimagining,’ I’d never heard those used in law enforcement, and I’ve been in law enforcement for 40 years.”
The sheriff’s web page prominently displays the icons of all eight of 8 Can’t Wait’s calls to action with green checks for compliance next to “Bans Chokeholds and Strangleholds,” “Requires De-Escalation,” “Requires Exhaust All Alternatives Before Shooting,” “Duty to Intervene,” “Utilizes Use of Force Continuum” and “Requires Comprehensive Reporting.” “Requires Warning Before Shooting” and “Bans Shooting at Moving Vehicles” are unchecked.
The sheriff’s department has revised use-of-force policies following a police death before, in 2019 following the death of a pedestrian, Chinedu Okobi, who was Tased seven times during an arrest by Sheriff’s Deputy Joshua Wang in Millbrae on Oct. 3, 2018.
At that time the sheriff brought in the American Civil Liberties Union to consult.
Deputies Wang and John DeMartini, Alyssa Lorenzatti, Bryan Watt and Sgt. David Weidner, who were involved in the arrest, were investigated by the district attorney’s office, which declined to file charges.
Deferring to the AG
San Mateo County District Attorney Steve Wagstaffe has prosecuted police misconduct at jury trials, unsuccessfully, in the past and said he supports a system kicking cases like Okobi’s up to the California Attorney General when local opinion impugns the objectivity of the local DA.
“The Okobi case in our county that got so much attention,” he said, “I feel on a real, real level I could fairly evaluate. I think I did — obviously that’s what I think — but I understand there’s a lot of people who felt, you know what, the DA was just backing the sheriff.
“That might be a case where I would say, yeah, I’m going to request the Attorney General to take a look at it. It might be one like that … ones where I want the community to have faith in these most important cases. “… It’s hard for the public because,” Wagstaffe said, “as you know, police officers very, very seldom get prosecuted. And that does create a feeling about the big cases.
“In Minnesota (George Floyd), Atlanta (Rayshard Brooks), those are simple, there’s no prosecutor anywhere who isn’t going to say, ‘Charge that.’ It’s the tougher ones, the closer ones where the law has to be applied.”
Wagstaffe acknowledged that he had “not filed a case involving a death. In my time I have found those to be justifiable use of force in all occasions.”
The district attorney prosecutes criminal (not civil) cases and brings to court only those in which he believes the evidence proves guilt. He confronts in the courtroom and figures into his calculus the well-documented phenomenon of jury bias in favor of police.
Use of Force Training
According to the American Bar Association, in these cases it doesn’t take long for a defense attorney to recite for a jury’s benefit police policy manuals on use of force. The ABA quotes Maria Haberfeld, professor of police science at John Jay College of Criminal Justice in New York City: “Most jurors who sit through a trial come away with the realization that ‘police work involves force,’ and officers are trained and authorized to use it at all times.”
Court cases have dictated that use-of-force policies are a requirement and have even prescribed language; however, state legislatures also can legislate use of force policies.
A back-and-forth in California over state legislation has gone on for years. As it stands at the moment, critical sections of use-of-force policies must use the terms “objectively,” “necessary,” and sometimes “feasible.”
For example: “Deputies shall use only that amount of force that reasonably appears necessary given the facts and totality of the circumstances known to or perceived by the deputy at the time of the event to accomplish a legitimate law enforcement purpose.” (Sheriff’s Operations Manual Chapter 300.3) Such language is the product of lobbying by organizations such as the California Peace Officers Association, California Police Chiefs Association, American Civil Liberties Union and various state legislators.
Some wanted a standard of “reasonable” force. Others wanted “necessary.” The compromise was to use both.
Not only is it “a vague standard of reasonableness” according to Wagstaffe, “a local police agency can change it. According to someone’s point of view that can be good. Most people at the time felt police policies were not tough enough 20 years ago when the country reacted to the destruction of the Twin Towers on 9/11.
The Public Mood
The backlash was so strong, Wagstaffe noted, that “I remember 9/11 and the Patriot Act and the secret court and thinking to myself, ‘Wow. I feel like I’m back in 1916 and they just passed the Alien Sedition Act.”
As a consequence, the “tough on crime” political mantra of the 70s, 80s and 90s, which had provoked contentious political debate in elections for decades, no longer was the subject of debate.
Today, because of police killings across the country and the prevalence of citizen video and social media, the pendulum is moving in the opposite direction in some cities, though not all. Police policy manuals are as individual as the 20 cities and the 25 law enforcement agencies in the county, each of which can make changes. And an officer from one city on police business in another city — which happens — only has to comply with his home city’s rules.
Some city councils and their law enforcement agencies may feel they have settled the matter by adopting bans on carotid holds and lethal chokeholds. But the low-hanging fruit when considering remaining issues such as civilian oversight of police, public identification of police offenders, shooting at moving vehicles and more, is most definitely not settled at the state level.
For example, Assemblyman Mike Gipson (D-Carson) introduced legislation that would strike the specific language about these control methods and replace it with a prohibition on “techniques or transport methods that involve a substantial risk of positional asphyxia.”
Difficult to Define
“Positional asphyxia” plausibly could describe what happened to Floyd. But it equally describes many other manners of death, regardless of whether a hold was involved or not.
The California Police Chief’s Association is opposed. In a statement, its President Eric Nunez said, “The added language expands the bill’s scope in a way that lacks the clarity and specificity an issue of this magnitude deserves.
“No police chief supports prolonged force being used against an individual who is not resisting, but we cannot take away necessary tools needed to overcome combative suspects and expect our peace officers to be able to keep the public safe.”
The bill will go the way of dozens of others urgently proposed in this Covid-isolated legislature. It will go nowhere.
But there is another, calmer place from which police policy, including use of force policy, derives.
In the spirit of not wanting to reinvent the wheel, law enforcement agencies around the country turn to policy consulting companies for help in writing these carefully worded, exhaustively-catalogued manuals, which run to at least 600 pages.
Lexipol of Frisco, Texas, delves into its knowledge of best practices, legislation and case law to contract with local agencies which need policy manuals for police, fire, correction, emergency response and general government. It counts 8,100 public agencies as clients, including the City of Redwood City.Lexipol reports that it is considering offering clients a “no carotid” option and is assiduously following state and national developments to gauge where the public is leading.
But it doesn’t report much action on that front so far.