>> okay. call the next i section 67.12(a) action. >> move for nondisclosure. >> second. >> all in favor? any opposed. next line item, please. >> item five, adjournment. >> adjournment of the special meeting. >> move for adjournment. >> second. >> all in favor? [please stand by for captioner switch]

>> the clerk: commissioner i'd like to call roll. [roll call]

>> the clerk: you a quorum and with is the interim president. >> good evening, welcome to the regular meeting of the san francisco police commission for wednesday march 14, 2018. before we get started i'm going to make some changes to the agenda for efficiency purpose. i see in the audience a large number of people. we anticipate a large number of speakers from the public on item two. which is the discussion and possible action for draft department general order 5.02 the use of electronic controlled devices including appendix a and device of the review board for purpose of engaging in the

process with the police officers association. for the item i'll take it as the first item on the agenda. we will not be doing item three. that item is coming off the agenda. so i am going to start with again, united stat -- aga again -- -- item two with the use of rec tronic control device and we'll limit it to two

minutes to treat everyone equally. i'm confident with the large number of speakers everybody will be able to have their say. again, we're taking item three off the agenda. please call first item. >> the clerk: reading >> the clerk: [reading item two] >> okay. members of the commissioner, so as you know, the commissioners assigned to electronic control device commissioner melara sat

in on the meetings and i attended a few myself. as you know overly several months they met with different stakeholder groups to come up with through a collaborative process a policy to govern the san francisco police department's use of electronic control devices, ecds. also to develop an electronic control device review panel. we heard different measures and provisions. since that time, our policy has been formulated which is in your pact.

we were able to come to terms through some in the policy and there are seven outstanding in the aed heism the appendix in the review board and there are four outstanding. also within your pact are notes from the department as to the position and the seven outstanding items to the appendix as well as you have received letters in your packet which were hand-delivered as well as e-mail from the mental health association, dpa, the aclu, the bar association of san francisco the safer policing

initiative and i believe -- >> human rights. >> the human rights commission. thank you. veep of the expansion of the seven within the actual policy still in dispute. additionally to the commission. commissioners, this is how we will conduct te review. i'm review the seven items outstanding. at the each of each outstanding item, i will not take a poll, i will take a straw poll as to each position on each item. and then we'll do the same for the appendix. at the end of that, we will then take public comment on the

actual items and then we will vote on the policy based upon concerning the winner of each point straw poll into the policy. is that clear? so let's begin, members, with the first item in the policy. department general order, 5.02, which is use of electronic control devices. our first issue is the term electronic control devices. it is the view by certain organizations, the dpa, coalition on homelessness, bar association and aclu the preferred term should be weapon

not device. their position is tasers use the term weapon. weapons convey more gravity a stronger sense of seriousness to the officers and public. the department's view is that the preferred term is device because the service's department uses it as does the ucsf, police department, bart and many other law enforcement departments use device. the city attorney advises it is to use the term device with consistency with other law enforcement agencies operating within the city. officers already have a sense of gravity and consequences for using anything provide them as a tool.

so, that is the first issue. electronic control device, electronic control weapon. >> i think we should stick with the term device because it's consistent with what the sheriff's department is doing for litigation purposes. again, there's no need for to us recreate the wheel. i prefer we stay with the term device. all the other agencies participating are playing a game of semantics. let's just stick with device. >> okay. commission melara -- >> actually, me. >> we're on a different monitor. >> sorry about that. does yours say melara. >> they both say melara.

>> commissioner hirsch. >> in this case i feel consistency runs into credibility and to have credibility with the public we need to be honest about what it is and it's a weapon. we'd never call a gun a device or a knife a device. we'd never call a baton a device. i think folks expect us to be fair and honest and a call it a weapon. >> thank you, commissioner hirsch. commissioner de jesus. >> i have to agree with commissioner hirsch. if the manufacturer calls it a weapon that's what we should call it. i may have been called a device many years ago. i think the taser company has changed its name and called it a weapon and we should do so too.

>> commissioner: any other comments, commissioners? -- i can take a straw poll. it's just a straw poll so i don't need a roll call vote, correct? >> the clerk: that's correct if you just want a poll that's not an action item. >> can i get a sense, please, by a show of hand as to which commissioners would vote to call this a weapon? thank you. the next issue is issue number two. so i'm going call on my fellow

commissioner hirsch for item two. >> i just had a request we skip item two for now and move through the other items. when we come to item -- >> why don't we go to item five? >> no, four. >> commissioner: okay. we're going to item number four now and then we're going do two following that. as per commissioner hirsch's request. i'll let you take item four. go ahead. >> i found a lot of the language in item four on several sides -- >> commissioner: would you say with the item is.

-- >> i find it confusing. >> commissioner turman: so item four is resisting an officer's attempt to detain or arrest a subject. go. >> commissioner: i have language they would like to suggest that we substitute for those four bullet points currently in the draft and i'll just read it. an officer may activate the ecd when subject is armed with a weapon other than a firearm such as an edged weapon, blunt object and the subject is causing immediate physical injury to a person or threatening to cause

injury when there's a reasonable believe that subject has the intent and capability of carrying out the threat. i use the word person -- we don't need to add officer, a person covers everybody. i have two copies i can pass out but that's it because i think they otherwise have to be available to the public. >> secretary kilshaw: are you going number one and then -- >> commissioner: i'm taking the language already there dealing with an armed weapon. >> secretary kilshaw: i got that. >> commissioner: but i'm limiting the use of a taser to when the subject is causing immediate physical injury to a person or threatening to cause immediate physical injury and there's the thought the person has the ability of carrying out that threat.

that's all number one. the next one is the exact same language without the armed weapon. instead of assaulting or battering or displaying an intent to assault or batter, i couldn't follow that and frankly i could think of a scenario where we would not want somebody to have a taser used again him or her but they would still fit within that language. for example, if somebody is sitting against the wall and an officer is trying to arrest that person and the person sitting down says i'm going to kick your [bleep] that's an intent to assault or batter a person. i don't want a taser used in a situation like that and if we start thinking of examples that meet outside the appropriate use but meets the language we have language problems. what i'm suggesting for two is

use causing immediate physical injury or threatening to cause when there's a reasonable belief the subject has the intent and capability of carrying out the threat. for number three, i would leave the language and violently resisting and i doesn't find the language after that to be helpful. four i found to be unnecessary since i think it's covered in numbers one, two, and three. >> commissioner turman: okay. so what commissioner hirsch is requesting is that we rewrite this section h, beginning at number one. an officer may activate the ecd when a subject is -- he would

like those sections to be rewritten in the manner in which he is suggesting. now, i would remind we should accept language sept -- except for number three in this pattern and the rationale for why three would change for aclu recommend one circumstance for authorize u use when there's immediate physical injury to the officer or another person or threatening to cause immediate physical injury to the officer or another person under circumstances which

cause the officers to be relieved the subject has the intent and capability to carry out that threat. vastly like number three -- or one of the points commissioner hirsch is advocating. the coalition on homelessness requests the policy used is standard, risk of bodily injury term. the dpa recommends only one all-inclusive circumstance for authoriz authoriz authorized use for the behavior will cause bodily harm. one circumstance. they recommend adding even in the above threshold even if it's met, officers are prohibited from deploying an ecd unless

another option will be effective in eliminating the risk of bodily harm and two, deescalation and/or crisis intervention techniques will not be enough in deterring bodily harm. all these notes have been available to you folks for a few weeks and you should have them in your packets as well. now, minor changes in one of the four authorized uses would make it no longer mere 5.01 and to suggest he had its for authorized use recommends an officer may acted -- activated

the ecd when there's an immediate threat to the public, himself or officers. or assaulting or battering the officer for another person or verbally or displaying an intent to assault the officer or another person or actively resisting the officer in a manner that threatened the safety of the officers or another person or exhibiting actions likely to result in serious bodily injury or death to the public himself or the officer. the above four circumstances will be further covered in training along with definitions and legal terms. the department believes this policy should reflect and reinstate guidelines and guidance in direct in 5.01 to mitigate confusion.

they also have concerns using the term bodily harm as it is not defined in the california penal code. the argument requiring officers to reassess deployment of forces is already taken up in djo5.01 and the department believes the stakeholders' recommendation of officer meeting two thresholds prior to using the ecd is inconsistent with 5.01 as the department does not require the use of former continuum. now, let's take comment on that. let's start with commissioner ong hing. >> commissioner: thank you, mr. president.

and you can see on page 6 under part j3 which refers to suspects that are fleeing. and in that circumstance the department's own words are if the suspect is fleeing and doesn't pose immediate threat of harm to officers or public the use is prohibited. i think the intent of assault encompasses what commissioner hirsch is proposing.

>> commissioner turman: commissioner marshall. >> commissioner: i'm confused. you said most had been agreed upon. >> commissioner turman: i said consensus reached. >> commissioner: and we're looking at items that didn't have consensus. i'm trying to figure out -- >> commissioner turman: that was the one that was not -- there was no consensus on one. >> >> secretary kilshaw: some of the stakeholders want one all-inclusive and the department wanted to change one word in number three because the department wanted to change one word in that but it's the whole section.

>> commissioner turman: all right. commissioner mazzucco. >> commissioner: thank you. i'd like to ask the chief you referred from different stakeholders who are mostly attorneys and community group members. i need it hear from those out in the street it's a big difference when you're dealing with somebody on parole fighting with you versus those of us who sit behind desks and look at legal standards. i'm going to ask the chief what's your feeling about the change that commissioner hirsch made?

>> commissioner: i want to say while the chief is reviewing this, commissioner mazzucco, i agree. >> commissioner turman: let him review it. quiet. commander walsh, can you come here for a moment?

>> i think the biggest issue for the department is we're trying to stay consistent with the other djos particularly 5.01. it redefines basically assaults and restricted the language to physical injury. i know this is for the purpose of clarity but officers are training -- when we train the entire department on a general order that is a good general order with the use of force and

the language in the general order i think should be consistent with whatever we're going to come up with with the language. otherwise you're going to have -- it's more confusing for an officer and i'm talk from an end-user perspective, consistency matters and this is the category of incredible force i think the language should be consistent with the language that speaks to intermediate force and this goes beyond that and i understand the commissioner hirsch's point of view but is not consistent what we're training in terms of assaultive behavior which is what this is. >> commissioner: thank you, chief. >> commissioner turman: commissioner melara. >> commissioner: i just wanted

to make sure that as we're contemplating all of these different pieces that are not -- we have not come to an agreement on, i would like for us to ask the chief to give his input because he and his department is the one that's going implement these changes. we're only providing guidance on the policy but not on the implementation piece. and so i would want to hear from the chief on all of these or the department to ensure we're not putting something on the table that is not going to work. >> commissioner turman: that's why i gave it to you commander walsh. thank you. commissioner dejesus. >> commissioner: can i have the language back, please. i do agree with commissioner hirsch i think assault is vague and over broad. the aclu gave us a great letter

on the assault and touch. this say -- is an is a weapon that could be lethal and we nude to be clear and i think assaultive is vague and ambiguous. it doesn't carry the water. i agree with commissioner hirsch in making changes to when they can use that to when it's causing immediate physical injury or threatening when there's reasonable believe the subject has intent and capability of carrying out the threat. i think that's very clear. >> in 5.01 this is immediate use of force. the courts have held it's an incredible use of force. we understand it can cause deadly consequences but it's still intermediate use of force.

when you read 5.01 the use of force policy under 4d, it defines what assaultive is. and this language and the department's offering mirrors which was vetted by the same stakeholders. it's important to be consistent and not change the terminology of definitions. that is confusing for the end user. >> i want to respond because we have use of force. this djo will be trained in conjunction with use of force but we can have a higher level when it comes to this particular weapon. we're set new policy and making it clear when the weapon can be used. i think assaultive doesn't apply here. >> commissioner turman: commissioner hirsch. >> commissioner: i hear what you're saying, chief, and i understand and to me the real issue will not be the language but how officers are trained and how they use that training. i understand you have to come up

with a consistent training but when i read this language, the definition of assaultive i can't understand it or make it work. verbally displaying an intention to assault. an assault is an attempt to commit battery. it's an unsuccessful battery. you don't display an intent to commit a successful battery and if he or she is brought up on disciplinary charges. they're going to point to language we won't be able to interpret and i'm trying to make it so the language is clear and the training should be consistent with the training we're doing under 5.01. >> commissioner turman: the language is verbatim from 5.01. >> commissioner: i just read it. >> commissioner turman: we need

to move on from this but i'm going to throw my two cents in. i'm not comfortable or clear on the verbal language either. and if i don't want someone using a taser because of a terrible -- verbal altercation. there needs to be more than that. i'm going with commissioner hirsch on this as well. all right. >> commissioner: if i may -- >> commissioner turman: then push the button if you want to speak. >> commissioner: as far as the consistency i'd like to ask our city attorney are 5.01 consistent with case laws, correct? >> no, it's not. you've asked for a higher standard than what the legal parameters were and what you adopted as a commission. >> commissioner turman: so we have a higher standard and

hirsch pushed it up further which i don't think say bad thing. okay. commissioners, could i get a straw understanding of what commissioners feel on what commissioner hirsch has put forward. >> commissioner turman: i'm going to ask you to read it. i'm going to ask you to read it so if he public here's -- hears it one more time.

>> commissioner: i just got these yet. an officer may activate the ecd when a subject is one, armed with a weapon other than a firearm such as an edged weapon or a blunt object and the subject is causing immediate physical injury to a person or threatening to cause when there's a reasonable believe the subject has the intent and capability of carrying out the threat. two, causing incredible physical injury to a person or threatening to cause injury when there's a reasonable belief the subject has the intent and capability of carrying out the threat. number three, reverts back to the original draft language we have in front of us, violently resisting an officer's tempt to lawfully detain or arrest the subject, period. that's the end.

>> commissioner turman: so that would be three bullets. >> commissioner: right. >> commissioner turman: okay. thank you for putting that on the overhead. i'm going to move to commissioner -- before i move to commissioner hirsch i'm going to ask the commissioner to step to the microphone. ms. addwan, not quite a commissioner yet, could you, please, explain the esh use around number two as well as the position of the stakeholder group. >> it feeds off where we were and the definition of the term assaulted. for all intent and purpose some had aaron issue how the department is defining assaultive. they had an issue with how the

department is currently defining assaultive and would prefer it either moved or changed. the department going back again to a discussion that you just had the department is using the definition as-is in 5.01. you'll see it there be the department -- this is in 5.01. >> thank you. >> commissioner turman: thank you. commissioner hirsch. >> commissioner: yes. >> commissioner turman: back to two. issue number two. >> commissioner: i would just strike the language. i can't understand it which means i can't apply it which means i can't approve it. that is my recommendation unless somebody can rewrite it it doesn't make sense. i don't get it right now.

>> commissioner turman: so, commissioner hirsch, aggressive or combative, assaulting or battering the officer. would you leave that in? >> commissioner: why do we need a definition of assaultive. >> commissioner turman: i'm trying to make sure i understand your point clearly. do you understand that part yes or no. >> commissioner: if we're defining assaultive i'd leave it in. >> commissioner: i agree with that. we don't need it because we understand when it's going to be used. >> commissioner turman: all right. other commissioners on this point? let's start with the chief. >> commissioner: if i understand, are you saying take this language out altogether? >> commissioner: i'm saying we don't have assaultive because we have definitions when an officer can use a taser. if someone is causing physical

injury and can do it or threatening. >> commissioner turman: do you see it other than in the section the commissioner just rewrote? >> commissioner: i don't think so and i think leaving it in makes it confusing. >> commissioner: if i may -- >> commissioner turman: of course you may. >> commissioner: i can't impress upon the commission enough the department is asking this policy be incorporated to the existing use of force policy and assaultive is defined clearly -- we've trained 1300 officers on the definition of assaultive. to throw it away and say it's confusing, to me it confuses the whole issue. i think what we're asking is that we are consistent in what assaultive means because it goes beyond the use of this device.

immediate fort -- force is immediate force if we're going to redefine it and ask officers to make split-second decisions am i talking about 5.01 or the taser policy? i can't impress enough how much that is capable of causing more confusion. now you have two different definitions for the same level of force. >> commissioner turman: okay. let's not repeat things because we have a lot of to get through, commissioner ong hing. >> commissioner: i know you want to move along, mr. president. we're talking about the taser policy tonight. >> commissioner turman: correct. >> commissioner: for that purpose, what has been proposed provides clarity for the use of tasers. the issue with respect to the

policy maybe is for another day but today we're eliminating the term assaultive means it's not used for tasers. >> commissioner turman: i agree. i don't mean to put anybody on the spot but how are we training around verbally assaultive? all right. director henderson. >> commissioner: i was going to say it's permissive for us to do it and my recommendation obviously is to remove the language as well. i think it's better just for our own clarity and as we just voted for a definition of the term. it's inconsistent if we leave this in there. >> commissioner turman: director dejesus. >> commissioner: we just spoke to what i was going to say. >> commissioner turman: back to commissioner melara. >> commissioner: thank you.

i don't get paid to be a director. so the issue here again, please think about who's implementing the policy. we are not implementing the policy. we're not training the force. the fact there could be an extra definition in the policy only makes it more clear rather than less. my concern is we're stripping this policy and it's the department that's going to use the policy. >> commissioner turman: commissioner hirsch. >> commissioner: i'm not asking for a new definition. i'm striking it completely so whenever's in 5.01, whatever training you're doing is the training you'll do. i'm sure the instructors will come up with a way to train for both weapons.

i'm not trying to confuse officers. i'm trying to make it simple. >> commissioner turman: commissioner mazzucco. >> commissioner: chief, what is your definition of assaultive? commissioner hirsch is not quite sure what it is. >> commissioner turman: thank you. chief, can you give us your definition. i need to move on here. you asked him a question. let him answer it because i have another agenda item to get to. what jur -- your definition of assault? >> commissioner: for the policy, i'll answer the question -- professional or combative or attempting to assault another person or displays an intention to assault the officer or another person. that is the definition we train to.

that's the definition we've trained 1,350 officers to, that very definition. when you go to this level of force, immediate force and responsive the use of devices or technique to ultimately maintain control of the situation. what i'm saying is this is -- this device falls into a category. intermediate force or less force. officers are trained to understand what level of force we're talking about proportionality. it's not just a taser policy. we're talking about the portionality which is the fundamental of what we're about. you want the force to be appropriate to the force

against. to redefine this or ignore the definition we're training to totally undermines the portionality. >> commissioner turman: okay. commissioner marshal. >> commissioner: this is one thing i don't want. i don't want one policy saying one thing and another policy saying another thing. this still is a use of force. we should be able to reconcile all of that and i don't want us to get down the road and have to redo both of them. i hear what you're saying and what you're saying but we should be able to reconcile both problems. >> commissioner turman: okay. any other new comments by commissioners? all right. can i get a straw poll just a

feeling of the commissioners who would leave the definition assaultive in the policy. if you could just leave your hand if you would leave it in. all right. ms. adwan, i believe we're on three. >> so in the policy you'll be on page five. in your notes you'll be on page two. it's the type of activation of the taser. it's not a projectile that's been fired, an ecd.

and the stakeholders would like it prohibited altogether. the department would like the option to use that mode but not in pain compliance. >> commissioner turman: why do the stakeholders want it stricken altogether. >> it's considered a pain device. >> commissioner: it's a torture device. >> and the dpa does have an alternative suggestion where the use is limited to completing [indiscernible] when deadly force would be permissive. >> commissioner turman: commissioners, item number

three. drive [indiscernible] >> commissioner: the dry stun mode doesn't incapacitate it it's just to inflict pain. i think amnesty international has deemed it a form of torture. a torture weapon and the united nations. >> commissioner turman: i'm not going to have any call-outs from the audience. madame, i'm finding disruptive. that is your first warning. >> the studies also show it doesn't incapacitate people but makes them angrier and can escalate the situation i don't know why we have to allow a dry stun mode but if we are we might want to consider on point number

two deleting officers can also use drive stun mode on a subject described intersection three -- it look like one or two and shall not use them as pain compliance technique. >> commissioner turman: i'm sorry. >> commissioner: 5.01 for pain compliance techniques and this is a pain compliant use of the taser. >> commissioner turman: i'd like to address the commission on that issue concern >> commissioner: i'd like to

explain what dry stun. in drive stun mode it's pressed against the subject and causes localized pain. there's studies the council of canadian academia and canadian academy of health science factors to consider is painful and transitory and localized pain not an incapacitating effect and without incapacitating muscle contract without significant lasting injury and has markedly different physiological affects. less than intermediate force. i want to explain for those that may be confused on what pain compliance is, pain compliance as used in the san francisco police department is constant nerve stimulation. they are intended to generate

the sense of pain without tissue damage causing the subject to comply with the officer's direction. when successful, constant nerve stimulation limits the need for other forms of physical control that may have the potential for injury. this is taught for new recruits and officers to continue training. the information located in the basic coarse -- course of t