Public Eyes: 'Fajitagate' Scandal Puts Police Accountability at Forefront

May 22, 2003 by Mark Schlosberg, The Daily Journal

While the criminal charges against several high-ranking San Francisco police officers in the so-called “fajitagate” scandal, involving allegations of a conspiracy to obstruct justice in the investigation of an assault by three off duty officers including the son of Assistant Chief Alex Fagan, have been dismissed, serious questions about the incident remain. More significantly, the incident highlights several areas where accountability mechanisms are breaking down and underscores the need for significant reforms.

The “fajitagate” scandal started when off duty police officers Matthew Tonsing, David Lee, and Alex Fagan Jr. allegedly demanded food from Jade Santoro and Adam Snyder outside a Union Street bar on November 20, 2002. The demand followed an assault, prompting Snyder to call 911. The investigation of the incident was suspect from the start. The off duty officers were not separated by the investigating officers, they were allowed to keep their cell phones and make multiple calls, key pieces of evidence were not seized, and the victims were not brought in to identify them. It is these irregularities among others that lead to criminal indictments of several high-ranking officers for conspiracy to obstruct justice.

On April 4, 2003 Judge Ksemia Tsenin subsequently dismissed the conspiracy charges in the absence of any evidence of an agreement between the officers, however, in issuing her ruling, Judge Tsenin found that the three off duty officers had, in fact, received “preferential treatment.” Judge Tsenin also referred to “numerous improper acts and events that transpired” and described the officer’s conduct as “inappropriate,” “uncooperative,” and of “serious concern.” The Office of Citizen Complaints (“OCC”), the independent agency charged with investigating complaints of misconduct is still conducting an administrative review that could lead to discipline of some or all of the high-ranking officers.

While the “fajitagate” scandal represents one very public and highly visible example of police misconduct, the breakdown in accountability systems that occurred in that case is by no means unique. On April 23, the OCC issued a blistering and well-documented report charging that the Department has “routinely obstructed and delayed” its investigations. Further, on April 25, the Controller’s office concluded a “best practices” review of the Department’s accountability mechanisms and found them woefully inadequate.

Many of the problems plaguing the Department stem from a lack of leadership. According to the OCC report, the Department is lax in handing out discipline and the obstruction and delays cited in the report send a signal to rank and file officers that misconduct will not be taken seriously. More importantly, the Police Commission, which oversees the Police Department, has done nothing to address these issues and, in fact, has at times been complicitous in undermining the OCC. In one glaring example, the Commission ignored both the City Charter and the advice of the City Attorney in refusing to require the Department to turn over basic documents in the investigation of the “fajitagate” incident.

This lack of leadership coupled with insufficient systems, has lead to a serious breakdown in accountability, raised community concern, and engendered mistrust of the police. Significant reforms will need to take place to restore public trust and attain accountability. Fortunately, the large number of consent degrees and settlement agreements achieved by the Department of Justice and private parties in Los Angeles and other cities over the past several years provides a number of examples that San Francisco can look to in carrying out reforms.

One mechanism that San Francisco desperately needs to improve is its outdated and unsophisticated early warning system. An early warning system is a mechanism for tracking officer conduct to detect problems early on and resolve them through counseling, retraining, or reassignment. Departments across the state, including major departments such as the Los Angeles Sheriff’s Department, have early warning systems that track multiple aspects of officer conduct. As a result of the recent “Riders” settlement (resolving over a hundred serious cases of police misconduct), Oakland will be developing a computerized system that looks at twenty different factors including use of force, citizen complaints, resisting arrest charges, civil cases, and criminal cases dismissed due to improper searches. San Francisco, on the other hand, has a manual system that only looks at one measurement of officer conduct – citizen complaints, and, in the words of the Controller, “lacks sufficient scope and detail to be effective.”

Other reforms that should be adopted include whistleblower protections to encourage the reporting of misconduct, granting the OCC greater power, and automatic triggers for misconduct investigations when a tort claim is filed or a motion to suppress is granted.

Ultimately, however, while these internal reforms are important and can greatly improve policing, they will not be effective in the absence of leadership. The Police Commission has shown itself unwilling to address accountability issues and that unwillingness stems, in part, from its lack of independence. All commissioners are currently appointed by the Mayor and serve at will – characteristics that the Controller described as “structural weaknesses.”

A charter amendment currently pending at the Board of Supervisors would go a long ways towards resolving these problems. If approved by the Supervisors and passed by the voters in November, the amendment would expand the number of Commissioners, allow the Supervisors to appoint some of their members, and prevent the Mayor from removing Commissioners without consent of the Supervisors. These changes would greatly increase the independence of the Commission and result in greater oversight of the Department.

Additionally, the charter amendment would expand the powers of the Office of Citizen Complaints, allowing the agency to bring charges directly to the Commission after meeting and conferring with the Chief, and clarifying its authority to obtain documents in cases it is investigating. These reforms are significant and would allow the OCC to effectively investigate cases of police misconduct.

The “fajitagate” scandal has placed the issue of police accountability at the forefront of public concern. There are a number of deep problems that must be addressed, and policymakers should not underestimate the corrosive effects on the Department, and public perception of the Department, caused by inadequate systems and a lack of strong leadership. The reports issued by the OCC and the Controller – two independent agencies – as well as numerous consent decrees entered into by Departments across the country provide direction for policymakers to follow. Significant reforms, including changes in the City Charter, must be enacted to achieve true accountability and restore public trust in the police. San Franciscans deserve no less.

Mark Schlosberg, Police Practices Policy Director of the ACLU of Northern California