The Informant

Ali Winston

District Attorney and former police chief George Gascón's office is refusing to release documents related to police shootings

San Francisco District Attorney George Gascón’s office has rejected a request for a decade’s worth of officer-involved shooting reports – and it is unclear whether the DA even keeps such records.

Following three officer-involved shooting incidents in San Francisco at the end of December and the beginning of January, we filed a public records request with District Attorney George Gascón for copies of DA’s reports on officer-involved shootings in San Francisco County that were completed between 2000 and 2010.

The DA’s office, along with the police department, investigates every incident that involves an officer firing his or her weapon at a civilian to determine whether the shooting was justified, or if it should be charged as a crime.

A findings letter – alternatively called a shooting review or report – includes details of the incident, the account of separate reviews by police and district attorney’s investigators and a legal explanation of why the officer is not being charged with criminal conduct. These letters are issued only if the district attorney does not charge a police officer with a criminal offense.

Findings letters for officer-involved shooting are public records in Los Angeles, San Diego, Orange and Fresno Counties. The San Diego District Attorney goes so far as to list officer-involved shootings online, and volunteers to provide copies of such reports if the responsible law enforcement agency does not reply to records requests. For an idea of what such a letter looks like, here is the San Diego District Attorney’s review of the fatal shooting of Darryl Lamark Johnson by SDPD officers Chris Tivanian, Michael Dewitt and Mark Brenner

The documents provide a window into investigations of police shootings. Last year, Alameda County District Attorney made a report public that identified the role of the two Oakland Police officers who fatally shot Derrick Jones last fall in another shooting two years prior. Late last year, the Alameda County DA refused to release officer-involved shooting reports, claiming such records were exempt from disclosure.

On February 3, we received a letter from Paul Henderson, the head of administration at the District Attorney’s office, denying our request. Here are the critical passages:

“Under the California Public Records Act and the San Francisco Sunshine Ordinance, a “public record” is broadly defined to include “any writing containing information relating to the conduct of the public’s business prepared, owned, used or retained by any state or local agency, regardless of the physical form or characteristics.” (Govt. Code § 6252(e)) If the department has no records responsive to the specific request, the department has no duty to create or recreate one. (Id.)

We do not have any responsive documents for your request regarding reports for officer involved shootings.

Also, we do not release information in our investigatory files. Providing any such records would thwart our primary duty of protecting public safety and would undermine the deliberative process. (Rivero v. Superior Court, 54 Cal. App. 4th 1048.)”

It is not clear whether the San Francisco District Attorney issues findings letters. Erica Derryck, the DA’s spokesperson, said the office conducts independent investigations of police shootings, but would not elaborate on what documentation the DA’s office keeps on officer-involved shootings.

Former employees of the District Attorney’s office say they are unsure what documentation is issued to clear officers involved in shooting incidents. “They should have something written,” said Police Commissioner Thomas Mazucco, who worked as an Assistant District Attorney in San Francisco. Mazucco did a stint with the officer-involved shooting detail, and responded to several police shooting scenes with an investigator. Lou Landini, the former chief inspector for the San Francisco District Attorney from 1996 to 2004, said he is not sure what final form the DA’s report takes. Landini, who now works at the Millbrae Police Department, said he and his investigators prepared reports documenting their findings, but he never saw the final decision written by the DA’s staff.

Police Commissioners Mazucco and Angela Chan say they have not seen any report from the District Attorney during the administrative and firearms review board hearings that occur after police shootings in San Francisco. During the first hearing, the Police Commission makes an administrative decision about whether the personnel involved are fit to return to duty. Their role in the firearms review board hearing is only advisory.

DA’s reviews of officer-involved shootings have been a point of controversy in the Central Valley city of Fresno. Last year, Fresno District Attorney Elizabeth Egan announced her office would no longer conduct independent reviews of police shootings, due to budget cuts. The announcement provoked an angry response from community members who have long protested a high rate of officer-involved shootings by the Fresno Police Department. Last week, the Fresno County Grand Jury issued a report recommending the DA resume its officer-involved shooting investigations.