behavioral science unit. the recommendations of the return to duty panel, return an officer to work forwarded to the chief for review. the chief can either concur with the recommendation or come up with his own decision. the chief reports the decision. that's the return to duty presentation that you've heard. and a copy of that is forwarded to the occ. and the chief's finding and decisions are to be reviewed by the police commission in closed session at the first session following the return to duty panel. so, if you think about -- you know, the calendar, that's going to put that first 10 days, that puts us usually right around that point, first 10 days comes into play around there. entering to note because we're talking about the go or some of the background for the gos, one of the things that 81 1 section 2 part 4, they say the officers

shall not be returned to regular duty until the commission has met in closed session with the chief of police. i just want to point out that this has been difficult in some cases for us to get that presented to the commission, you know, in the first meeting after the rtd sometimes the commission is dark or there is a public session where -- maybe even there is not a quorum. so, i just wanted to mention that particular aspect. so, again, going back to the notifications, homicide is notified. so, we're going to talk about the process in san francisco the jurisdiction for investigating the criminal side of an officer involved shooting falls to the local law enforcement jurisdiction. in san francisco that's obviously our department and it's assigned to our homicide detail. that is conducted jointly with

the district attorney's office and it may be alternatively or additionally investigated by department of justice, fbi, or another federal agency. if it happened outside of san francisco, it's investigated by the local law enforcement agency according to their own parameters. all of these investigations, all the answers -- i just -- they're complex, sensitive thorough investigations and it is really important for a matter of maintaining public trust and confidence. we want to make sure we're doing these things thoroughly, doing them properly and correctly. we put a lot of resources into them. the criminal investigation conducts -- the first night, first day of the incident, we're going to conduct interviews with the involved officers. that is a voluntary -- it is a voluntary interview that the

officer gives. with the involved officers, the witnesses, sworn and nonsworn and the suspect if the suspect is obliging. the criminal investigation just as with any other would track and develop forensic evidence regarding leaves of the incident. it is important in these investigations on both the administrative and the criminal side to establish information if the officer acted on prior to the ois. what did they know at the time including their observations, actions and state of mind at the time of the incident. the criminal investigation will determine whether a crime has been committed by an involved party. the investigators responsible for the charging follow-up investigation and prosecution of any corresponding criminal charges from any involved party. and as an example, let's say it happened in the course of -- well, bank robbery may not, fbi may not be involved with that.

let's say a robbery, purse snatching, they would develop the case for the purse snatching. does that make sense? okay. the final homicide report is not completed until after charging decision is made by the district attorney. so, again, the criminal investigation starts. our homicide is notified. so is the d.a.. the d.a. conducts their own investigation. they're doing it. they're at the interviews. we'll get into it a little bit. homicide, their investigation is forwarded. the findings in the investigation forwarded to the d.a. who then would review their case and make a decision whether or not any charges will be made in the case. the final d.a. report and the homicide report is then forwarded to iab for the administrative investigation. obviously that would be a component of our investigation. whether or not there was some criminal activity that was involved. i want to mention some of the dependency for the criminal

investigation. probably the only thing that i'd like less than coming up here and telling you we're still waiting for a declination letter, seeing my work queue back up. but understand as i said these are complicated, complex investigations and there are some dependencies. the condition of the officer may be a factor. so, the ability to interview the officer in a timely manner could be an issue. crime scene investigations, their analysis of evidence collected and same with criminalistics lab. we're looking in large part at criminalistic's lab, the weapons involved. the medical examiner report, that takes -- that takes its time. the toxicology, oftentimes i know they go back and they go into prior medical history and things like that. so, and then the district

attorney's charging decisions and any prosecution that's related to the incident, those are all factors that affect the criminal side of the ois investigation. president ma suectiontion a stole a little of my thunder last week. you mentioned the deal when we had the ois report. you mentioned the d.a.'s office. it's really important that -- for us that the d.a. does a thorough review of the investigation because that's the objective third-party eye. you know, they do -- they initiate an investigation at the time they're notified of the shooting. they do some joint work with our homicide unit. they are at the scene. they participate in the interview that the officers of the witnesses, of the suspect. and then they draw their own preliminary conclusion. they conduct their own

investigation. they then review what the homicide investigator presented, their burden of proof, as you know, beyond a reasonable doubt. and the d.a. would decide any charging in the matter of any involved party. and as i mentioned, it provides that objective independent analysis of the incident in the criminal investigation. so, we feel that's important. once they finish, their information as i mentioned is their conclusionses are forwarded to the administrative investigator. the administrative investigator at the same time as the on-site investigation, two joint -- two separate concurrent investigations are happening. so, regardless of where it happens, the jurisdiction belongs to the san francisco police department if it's one of our members. so, something that may happen out of county, out of city and county would still be

investigated by san francisco's internal affairs. investigated criminally by whatever agency would have that jurisdiction, but we would have jurisdiction, the internal affairs division on the administrative side. it may be concurrently investigated by the office of citizen complaints. the occ investigators are initially dispatched to the case, to the incident. they're out there at the scene as are we. a receipt of the complaint is required to open a formal investigation. again, the administrative investigation is really there to establish why the officer used leave of force to evaluate that use of force against the department policies. we utilize interviews, forensic evidence and other data collected in the course of the criminal investigation. so, we have some of the same dependencies that homicide has, we're piggybacking. >> quick question for you.

the next part of the slide say compelled interviewed conducted with involved members. can you explain to the public the difference between when there's -- a we talked about, the criminal investigation and administrative investigation. can you explain to the public that, for example, the officers like any other individual has a fifth amendment privilege and do not need to speak to the prosecutors. however, by law, part of the administrative, they have to talk to pursuant to general orders our investigators, is that correct? >> that's correct. you jumped the gun. you put it in better terms than i would have, commissioner. but yes, we conduct a separate interview for the involved officer. that interview is a compelled interview. the officer is given [speaker not understood], read the miranda rights. they're told they don't have an option of taking the fifth, of keeping quiet, of not answering our questions. on the penalty of up to and including losing their job. so, because of that, we're requiring them to make a

statement. we are requiring them to basically give up their constitutional rights. so, that become a compelled statement which is retained in the administrative investigation. it can't go to the criminal investigation. it can't be used -- their statement to the administrative investigator to generalize, can't be -- [speaker not understood] you understand, but can't be used to, you know, against the officer in a criminal investigation related to that specific incident except as a matter of impeachment or allowed by a judge. >> is that why information flows one way per that flow chart you showed us? >> that's also true of any disciplinary investigation where there could be a criminal component. it flows one way. there are state laws regarding, you know, the peace officer, peace officer rights and the fact that you have labor file,

thing like that. it can flow one direction, it can't flow the other. so, that's not unique to the ois investigation. okay. okay. so, any questions so far? sorry. the administrative investigation again is determining whether the use of lethal force was in accordance with the department of policy. our burden of proof in administering the investigation is the preponderance of the evidence. investigative findings, recommendationses are prepared by the investigator in a final report. this will include obviously the criminal information we received. that's part of the reason we trail behind the criminal investigation obviously if there was some criminal misconduct, that would be a factor in the administrative investigation. so, the investigative findings

were then presented to the quarterly held firearm discharge review board. you sat through those reports as well. so, you're familiar with that a little bit. okay. some of the investigator dependencies we touched on, again would be the district attorney report and the final homicide report. >> those are the big ones. >> once we have the final product, we've got the administrative report completed. it's presented to a firearms discharge review board which is held every quarter. the firearm discharge review board is authorized in department general order 310 and it's referenced in 81 1. so, both those general orders have some information on how it's conducted and not necessarily -- doesn't jive easily. >> i have a question. >> yes. >> and you might have talked

about this, but the significance of the difference between the standard of proof in a criminal case is beyond a reasonable doubt and your proof is preponderance? >> ours is preponderance 51%. >> 51%. >> yeah. we more likely to believe or not believe than to not believe or believe. so, there's different levels that each investigative body has to perform, too, or has to weigh in into making -- in making their final determination. obviously the softest one would be the preponderance of evidence and the most difficult one would be the d.a.. the d.a. has a much higher burden of proof to establish in their case. >> so, your analysis is it's more likely than not that the shooting was in policy or it's more likely than not the shooting was out of policy? >> right, to a degree of 51%. >> okay, thank you. >> okay. the board, per the general orders, the board will review

the ois investigative findings to come to a consensus regarding whether the use of lethal force was in policy, not in policy, or whether further investigation is required. and then the chair, which is again will look at the members of it, the d.c. admin will report the findings to the chief. the board is composed of the deputy chief administration who chairses it, the dc of operations, d.c. of special operations, excuse me, and the d.c. of the airport. and advisory members would be the police -- a police commissioner, the director of occ, the commanding officer of risk management, and the sfpd range master. the findings, as i mentioned before, the chief who reviews them. and if he concurses with the finding, the chief will work the recommendation of the fdrb to the police commission. if the chief does not concur, he would forward his own findings to the police

commission. the way that is presented to the police commission is in writing. you've seen the fdrb letters. it's letter format, but it's in writing. it summarizes all the different components of the administrative -- administrative investigation, the criminal investigation, the facts as developed in the case. there's some of the forensic evidence that was developed and then how the conclusions were to arrive at that and whatever recommendation would be as a result of the fdrb. there is a presentation of the fbrb findings and there's also a quarterly report for the fdrb and the ois investigation. so, from start to finish, you've got the two processes concurrent. one dependent on the other.

the administrative dependent to some degree on the criminal, the criminal dependent on the various things we've looked at. those are wrapped up and sent to the fdrb which begins a review process basically. it's through the command staff to the chief and down the road reported to the police commission. chief? >> thanks, sergeant, that was great. commissioners, any questions? commissioner kingly. >> sergeant krudo, thank you very much for going through all this, your presentation and the written materials made things a lot clearer. a question regarding the return to due pi panel recommendations and that process. * due pi >> yes, ma'am. >> i notice according to dgo

8.1 1, et cetera, that the commission has to meet in closed session before that becomes effective. >> yes, ma'am. * duty >> is it now operating smoothly enough that with our going dark at various times, it's not holding up -- the result? >> i think the chief might be able to answer that, but i would say that, you know, it's kind of the luck of the draw might be a way to put it, you know. we've had officers that have had to wait a couple of weeks after return to duty and found them ready to go back to duty. wait a couple weeks to present that, you know, it happens. that's a part of the process in my opinion. i'm not speaking for the department. gets a little problematic sometimes. we try and liaison with the officers and, you know, the business of the commission, it

just creates an inconvenience for the officer, you know, sometimes. but -- >> it hasn't been a problem. the officers realize that it's just a matter of, as the sergeant said, it's the luck of the draw. as long as they don't receive it as some implication that there's something out of the ordinary or there's something regarding their shooting that gives folks pause when they just realize, hey, it's the second wednesday, you happened to get involved in something that falls on the second one now in this case, the third one day of the month. nobody plans on any of these things happening. we had a pretty good year last year and hopefully we'll have another good one this year. >> but an officer could be sitting for two weeks off duty because -- >> i'm sorry, i didn't mean to interrupt you. >> go ahead. >> they were given an administrative assignment. i think this will address it.

for the first 10 days you've seen that we keep them pretty busy. there's actually a number of things that they have to do. and they are going through, you know, it's a traumatic instance they've gone through. but the officer is not prohibited from working. so, we've had officers that are on the cit team. and they were able to do some follow-up, you know, in-house things, some of the choreseses that they normally when they're running around answering calls and doing what they do in the normal routine, they're not able to get to. they're able to complete? some of their chores they can do in that administrative capacity. * >> thank you, sergeant novack. that make it perfectly clear. just backing up on one question regarding the flow of information. there is a concurrence and

process between the criminal investigation and the administrative investigation. can the officers who are involved in the administrative investigation ask questions of and get information that way from the d.a.'s office and homicide detail? >> yes. >> yes. we have a great cooperative relationship with the homicide detail. they understand the process as well as we do. they're very forthcoming on the information. same with the medical examiner. i mean, all the different parties are very cooperative, the d.a.. >> that all can flow at the same time. we don't have to wait until they have reached a particular point of conclusion? >> for us to -- [multiple voices] >> no, ma'am. we can ask through the process and they understand it. but we do, we do have to wait

for them to come to their recommendation or conclusions, you know, before we can act upon them, too. so, at any point, for example, the medical examiner, right, needs to establish the cause of death and whatever else, you know, toxicology and things like that. and while they may make some preliminary assessment until they have the formal findings, that thing is really set. nothing can be forwarded and fully acted upon and moved forward a completed. >> okay. >> thank you, commissioner loft us. >> thank you, sergeant krudo. i have one question, may not be readily available. do you have a sense for us on the statistics of how often shootings are most recently in the last couple years how often they're found out of policy? >> how often they're found out of policy?

i would say that by far extreme we're using force, lethal force correctly. it's a very small percentage that's out of policy. often it's more related to -- often you'll see the accidental, accidental discharge. you know, we investigate, i should point out we investigate something that's self-inflicted, we would investigate that. >> someone shoots themselves in the foot? >> yes, ma'am. >> that would be out of policy? >> yes, whether intentional or accidental, if they shoot themselves, we would investigate those. those would be out of policy. but it's a small percentage, which is probably across the nation it's the standard that it's a large percentage where it's correctly applied. >> okay. >> commissioner chan. >> thank you, sergeant krudo, for this presentation, how you put a lot of work in it, appreciate it. especially for coming back two wednesday nights in a row, thank you for that, too. i wanted to ask you a couple

questions. one is -- this will give the public a little background why we're having this presentation. i wanted to find out for the return to duty panel what documents and types of information is reviewed by the panel? the reason i'm asking this is we've had some questions in the past when we asked questions of the chief during the return to duty presentation and then sometimes the city attorney will caution us not to ask certain questions. and the reason why, it was explained to me and i got it, is that the powerpoint that is shown to us isn't necessarily what the chief saw and was basing his decision on when he approved or disapproved of the return to duty panel's recommendations. and that's part of why when we ask questions related to the powerpoint and not really to what the chief looked at, we're not doing things the right way. so, a part of this presentation was to figure out what does the panel look at and what is given to the chief versus what we see so that we are asking the right questions and we know the zone of questions to ask when we're given those powerpoint

presentations so it's not the confusing thing to us. >> really, the powerpoint forms the basis of documents that are in there. again, the order -- 81 1 says the purpose is to determine whether it is appropriate to return the officer to duty. but it is avenue obviously very early in the investigation. so, the facts that are presented at that case or a return to duty by the homicide investigator are preliminary -- it's based on preliminary information, preliminary information obtained on original interviews. but obviously they don't have all the analysis and return shall but there is some preliminary sense of, you know, what happened, how it happened

and that sort of overviewed. okay. and really there is a review of whether or not the officer has handled the debriefings and there's, you know, if there is a discussion of whether there is any sense that there is some , some issue that has been raised in any of these components that would indicate that the officer is not ready to go back to duty at this time. the g.o. says there is the option of assigning the officer, if it is believed the officer -- there is something that would preclude the officer from returning to duty, there is the option of assigning the officer administratively nonpunitively. so, they can be sent to an administrative assignment if they are determined not ready.

but it would be considered nonpunitive in the order. >> and, so, it seems like the powerpoint is, then, based on information that the return to duty panel discusses and forwards to the chief so the powerpoint is an accurate lee flexor it's not? >> no, the powerpoint is -- the powerpoint is a condensed summary. it is an overview of just the -- it's kind of the real brief snapshot of this is what happened. the officer responded to a robbery and, you know, if there is additional information that's been developed, established, this is what happened. by that point usually the interview has been conducted. like i said, but the folks --

you've seen -- there is a report that summarizes. it's a short summary report of the fdrb. that summarizes the presentation and the information that's given in the fdr -- in the return to duty. >> i guess the easiest way if the city attorney were to explain it is that presentations here is not anything to do with the fdrb. it is a summary of what i based my decision on to put the officer back to duty and what's presented here is a review that given that summary it was my performance is the chief correct in putting the officer back to duty. the decision is mine to put them back to duty and the commission reviews, since you hire and fire me, if you think i'm making bad decisions, then you exercise your prerogative. >> that's correct. : city attorney is not here tonight, for the record. she is suffering from the flu that a lot of folks had last

week. and she did talk to me this morning. our role as commissioners is to, as the chief said, to review the chief's performance in returning the officer to duty. we aloe seeksvly do not have the final say as to whether or not the officer is returned to duty. * essentially for the record, i've been told that during these meetings, the chief asks a lot of questions about the officer. he [speaker not understood] a very thorough checking the condition of how the officer is and other outside influences which may have led up to this. i hadxctiontionv it's pretty thorough, probably more thorough than what happened throughout the investigation. >> i also think it's important that there is not an officer involved shooting that i don't go to. so, i'm physically at all the officer-involved shootings. >> so, it looks like it's parallel that the initial 10-day investigation and looking into the well-being of the officer so they can return to duty, not pot is issues, or whether it was in policy and likewise when the commission is hearing about your decision to return that person to duty,

it's not about the actual incident or logistics or what happened, but the investigation is about your decision to put the person back to work and that is the scope of the questions? >> exactly. >> got it. >> i understand that piece that is reviewed, the chief performance. but what i think was not clear is what the chief is basing it on and that's related to the return to duty panel which occurs before the fire discharge review board. i understand they meet quarterly, the panel meets after the ois. so, it is just get thattion clarity. so, it seems like the answer to that is the original interviews. the original interviews are -- who are they with? >> homicide. i can't think of an instance where an administrative investigation would be done in that time frame. it may have happened, but i'm not aware of it. >> the interviews are done by homicide, who are they interviewing? >> the officer -- >> if i could go back. so, the summary is what i base my decision on.