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647f Taskforce Members

From: The ACLU of Northern California Date: April 14, 2009 Re: Summary of Analysis of 647f Reports

The following provides a summary of the analysis conducted by the American Civil Liberties Union of Northern California (“ACLU”) of the police reports produced by the City of San Jose on March 19, 2009 involving arrests for violations of Penal Code 647(f). The ACLU reviewed all 200 reports provided from 2007, as well as the 82 reports prepared subsequent to the San Jose Police Department’s (“SJPD”) implementation of the field sobriety test guidelines. At the outset, we note that our presentation of this analysis in no way concedes that the quantity of reports produced by the City of San Jose was sufficient for any authoritative conclusions to be made. In fact, due to the extremely small percentage of reports that were provided (approximately 4%), the ACLU has serious reservations about the accuracy of the findings below. These findings are presented only to highlight important trends that exist in this data set. Prior to suggesting any modifications to the policies or practices of the San Jose Police Department based on these findings, a thorough review of all police reports over this time period would need to be conducted. The following analysis focuses on three main issues: 1) the adequacy of the reports in terms of providing sufficient information to support probable cause for an arrest under Section 647(f), 2) the racial and ethnic breakdown of reports lacking in probable cause information, and 3) racial and ethnic breakdown of reports that contain elements of attitude arrests. For each report, the ACLU evaluated whether the information contained in the report was sufficient to demonstrate probable cause for an arrest under the Penal Code and ranked each report accordingly. The reports were categorized as follows: A) the report contains no information with respect to intoxication in public, B) the report contains primarily only the boilerplate language common throughout the reports (e.g., red, bloodshot eyes, strong odor of alcohol, slurred speech, unsteady gait) but fails to include any specific or individualized information, C) the report contains information beyond simply boilerplate language and provides an individualized record of why the person was arrested pursuant to Section 647(f), and D) the report provides a lengthy narrative of the specific circumstances and observations that led the police officer to arrest the person under Section 647(f).

As shown in the charts below, 48% of the reports in 2007 and 25% of the reports in 2008 contain primarily only boilerplate language. While we note that in a climate of heightened scrutiny, both public and internal, there has been a marked improvement in this regard, a primarily boilerplate language rate of 25% remains significant. The primary concern is that these reports fail to provide any individualized or specific description as to why the suspect was publicly intoxicated as defined under the Penal Code. The fact that a person may be under the influence of alcohol does not in itself determine whether the person is unable to care for his or her own safety or for the safety of others. Penal Code Section 647(f) vests significant discretion in police officers to determine if an intoxicated individual is unable to care for his or her own safety or the safety of others. If the San Jose Police Department has chosen to allow its officers to make very large numbers of custodial arrests with this law, they have a significant obligation to ensure that their officers are not abusing this discretion in making these serious decisions to deprive individuals of their freedom, accuse them of a crime, handcuff them, use force if necessary to effectuate the arrests and create a criminal history record on each arrestee (whether or not they are not ultimately found guilty). In short, the SJPD must ensure these are "good" arrests, supported by all the elements of probable cause rather than false and illegal arrests of people who may have consumed alcohol but who have violated no law. Allowing officers to routinely submit boilerplate language in their arrest reports -one size fits all -- to justify and document their actions represents (at best) an avoidance of this responsibility to monitor how officers are exercising their discretion. A police report should document the particular observed behavior by each person being arrested that gave rise to probable cause. What did the person actually do to show they were so intoxicated that they were a present danger to themselves or others? Narratives that all use the same language -- that use the very same words to describe what people generally do when they are very drunk ("slurred speech, bloodshot eyes," etc.) -- should be viewed as very suspicious and a sign that officers are (at best) inattentive to the legal standards required for making these arrests. There may be similarities in behavior for individuals lawfully arrested under this statute but each individual circumstance is different and should be documented as such. Would the SJPD be suspicious if it found patterns of boiler plate language used for arrest reports for other offenses? Would it be credible to believe that large percentages of the arrests for grafitti or petty theft or assualt take place in exactly the same circumstances and, therefore, can be sufficiently documented using the same boilerplate language in report after report? Of course not. The question is why that same skepticism about highly suspicious report writing practices has not led to action with huge numbers of 647(f) arrests. It's pretty simple -- if they are going to charge

someone with a crime, regardless of what that crime is, they must always, every time, without exception, document what that person actually did that created probable cause to believe they had perpetrated that crime. The use of boilerplate langauge suggests some officers apparently wrongly believe it's a crime just be be drunk or very drunk. Tolerating this widespread practice suggests the SJPD doesn't care if its officers know or understand the law they are enforcing.

The overall racial and ethnic breakdown of the reports is consistent with the findings made by the Mercury News in October 2008 that Latinos were disproportionately arrested for violations of Section 647(f). The Mercury News report found that in 2007 57% of the individuals arrested for 647f were Latino. Out of the 2007 reports provided, we found that 59% of those arrests were Latino, and out of the 2008 reports we likewise found that 56% of arrests were of Latinos. However, we then evaluated whether the trend was consistent within the category of reports that we deem lacking a well developed report. The chart below represents that breakdown of reports under Category B above (containing primarily only boilerplate language) by race and ethnicity. This information allows us to evaluate whether Latinos are bearing the brunt of arrests for Section 647f violations without a thoroughly written police report detailing the reasons why that individual’s state was determined to violate this penal code section. This could indicate that Latinos are also being arrested for public intoxication without adequate probable cause.

We also evaluated whether these reports contained elements suggestive of an “attitude arrest.” As defined by the Independent Police Auditor, “an attitude arrest occurs when a person is arrested because the officer does not like the arrestee’s attitude and/or arrests of individuals who may be perceived as uncooperative.” However, we recognize that we cannot determine with certainty whether the arrest was made in response to the suspect’s attitude alone based on the subjective treatment of such individuals and to the lack of documentation in the report. Consistent with the Independent Police Auditor’s finding that several of the reports she

evaluated contained elements of an attitude arrest, we found that 20% of the reports provided in 2007 had such elements, as well as 21% of the 2008 reports. The concern with reports that contain elements of an attitude arrest is that the individual may have been arrested for a violation of Section 647f based on factors other than their present intoxication, such as questioning the legality of their arrest. The ACLU then disaggregated the reports that contained elements of an attitude arrest by race and ethnicity, as shown in the chart below.

However, providing only a random sample of reports actually prevents the Task Force from spotting other patterns that might be quite apparent if the full set of reports

were provided. For example: Are certain officers involved in a large portion of these arrests? Do certain supervisors seem to tolerate the boilerplate reports? Are there certain dates or time periods of unexplainable large patterns of arrests based on poor reports, which may suggest sweeps or orchestrated enforcement activities that may have led to large numbers of bad arrests? The question remains - Why should the Task Force be denied the ability to determine these simple questions? The point is not to seek punitive action against particular officers or supervisors. The point is to understand the scope of what took place and why.

Lastly, it is important to note that contrary to their initial resistance to providing any police reports based on their opinion that the reports were investigative in nature, the City has now released several hundred of them to the public. More importantly, there has been no adverse consequence to the release of the reports. Privacy was protected through redactions and no investigation was impeded as a result of their release. The release of these reports demonstrates why they can and should be routinely provided for public oversight. In summary, though we have been able see some trends of concern begin to emerge, the inherent insufficiency of the limited number of reports provided leaves us with many more questions than answers. We anticipate that the Consortium for Police Leadership in Equity (CPLE) will also find “random samples” limited to 4% of a report pool to be insufficient and thus reaffirm our respectful request to be granted equitable access to the information necessary (as the CPLE will receive) to provide a comprehensive and fair analysis.

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