SFPD Terminates Police Misconduct Investigation Agreement With DA’s Office

On Thursday, San Francisco District Attorney Chesa Boudin fired back at a press event against the San Francisco Police Department’s decision on Wednesday to terminate its memorandum of understanding (MOU) that allows his office to independently investigate officer-related shootings and other use-of-force incidents that result is death or injury.

The contention dates back to last week when, during a San Francisco Superior Court hearing, District Attorney Office employees revealed that the DA’s office had been systematically violating the MOU’s terms. DA Office employees, under sworn testimony, told how they were under pressure from assistant district attorneys and would mislead police investigators about the status of criminal investigations and would withhold evidence from sworn affidavits.

“The understanding that I had in our unit was that our investigative steps, meaning the investigators, was not a two-way street with the police department and that we — they were to give us information, but we would not provide that back to them,” said SF District Attorney’s Office investigator Megan Hayashi in court on January 27th. “If I did have information, I was told that I don’t share it. At multiple times in my tenure at IIB (the DA’s office Independent Investigations Bureau) that when investigators or someone would call to ask for information, if I didn’t know I’d ask the attorney, and there were different attorneys that said the same thing, that would say, ‘Tell them we don’t know. We don’t have any plans’ or ‘no comment,’ something to that effect.”

The revelations shocked many San Franciscans, as well as the San Francisco Police Department. While the judge who heard the testimony said that she felt that there was no indication that the DA’s Office had withheld evidence, the SFPD maintained that their testimony was given under oath, and thus, was valid.

After a weekend of mulling over options on what to do, SFPD Chief Bill Scott decided to end their MOU with the District Attorney’s office on Wednesday.

“Very serious concerns have been brought to my attention regarding recent testimony in the Superior Court of the County of San Francisco from a member of the DA’s Office who was assigned as an investigator to your Independent Investigations Bureau (IIB) at the time of the incident in question,” said Chief Scott in his letter to DA Boudin. “I have reviewed the court transcripts where the DA investigator provided testimony to the court, under oath, showing that the spirit and the letter of MOU processes and procedures we agreed upon have not been followed by the DA’s Office. Other evidence that was brought forward to the court corroborated the DA Investigator’s testimony as it related to violations of the MOU agreement. It appears that the DA’s Office has an ongoing practice of investigations against SFPD officers that includes withholding and concealing information and evidence the SFPD is entitled to have to further ancillary criminal investigations in accordance with the MOU.”

Chief Scott also noted on Wednesday that he would be asking Attorney General Rob Bonta and the California Department of Justice on an alternative MOU with someone else. Under the 2020 AB 1506 law, the Attorney General’s office already can investigate some police related use-of-force incidents, making Bonta and his office, to the SFPD, the most logical place to ask where to go from here.

Boudin responds

District Attorney Boudin fired back against the allegations and the MOU termination on Thursday, refuting that his Office had done anything wrong or pressured investigators in any way. While he said that, due to gag orders and ongoing investigations, he couldn’t remark upon specific cases, Boudin nonetheless added that if there was any strife or misconduct caused by his assistant DA’s, that he would find them.

“One thing that continues to puzzle me is why this success would not be embraced by all parties by the police chief by the police union by the communities that benefited from it,” Boudin said on Thursday. “It is an accomplishment for all of us. It is a national example of how to do this difficult work better. They should not simply walk away from the table.”

“If someone in my office is pressured to do something that’s improper, that’s unacceptable. And whoever pressured them has to be held accountable. I am not aware of one iota of evidence, not an email. Not a documented conversation, nothing that occurred during my tenure that could possibly suggest that it is ever acceptable under any circumstances, to be less than 100% truthful and candid. In affidavits, filed under penalty of perjury.”

“The appropriate remedy would be to sit down and talk about how we fix those kinds of violations and how we prevent them from occurring in the future. I’ve had that conversation with Chief Scott many times when SFPD has violated the terms of the MOU. It is not uncommon. My office has MOUs with more than 70 different city agencies, nonprofits, and corporations that we do victim services work with that we share resources and investigations with. And violations of MOUs happen all the time. What doesn’t happen, is politicizing those violations or allowing the police union to dictate who investigates police officers accused of excessive force.”

The current MOU, which was created by then-SF DA George Gascon in 2019 and renewed last year, says that Boudin and Scott can meet within 5 days, which Boudin implied he would do during his speech. The termination of the agreement is to officially happen in 15 days.

“The agreement, especially post-George Floyd, did help reduce use-of-force incidents by the SFPD and has brought some communities round to being more open to the police again as a result.” said  Frank Ma, a former police officer and current security consultant, to the Globe on Thursday. “But you can’t equate better police accountability with the DA’s office just lying about things like that. All trust is gone. And it sounds like that’s what they did. You can’t blame Scott for what he did. And Boudin, who has seen crime just go up and up in the city due to his policies and who might be recalled come June, well, he’s going to have an even harder time keeping control of his job now. It’s not just more incompetence coming from his Department, but it’s mean-spirited incompetence at that.”

More announcements on the MOU termination are expected soon.

Read SFPD Chief Bill Scott’s letter to S.F. District Attorney Chesa Boudin