first published in Medium, October 13, 2020

Los Angeles, Hear This!

George Gascon for District Attorney

by Matt Gonzalez

Voters in Los Angeles County have a chance to turn their district attorney’s office into a force for criminal justice reform. Here’s why the rest of the nation is counting on L.A. to meet the challenge.

The most important race for district attorney will be decided in three weeks, on Tuesday, November 3rd, in Los Angeles County, California which has the largest county prosecutor’s office, both geographically and population-wise, in the country. The number of police agencies in question is also extensive; in addition to the Los Angeles Police Department, the office serves/oversees 43 other departments and 88 cities.

This race takes place in the backdrop of the killing of George Floyd (at the hands of police while he was in their custody) and national movements against money bail and mass incarceration. At this sea-change moment, the Los Angeles’s District Attorney’s office, long known for being a regressive extension of the police department, could become the nation’s leader in advancing alternatives to incarceration. The city’s broad diversity makes this a particularly dynamic possibility. According to the 2010 U.S. Census, non-Hispanic Whites comprise about ⅓ of the population. Latinos and Blacks make up 60%. The mass demonstrations we’ve seen in cities across our nation amply demonstrate the need for leadership to make the ideas of reform a reality, and Los Angeles is the perfect place to start: it sends more people to state prison than any county in the state of California.

George Gascon, the progressive challenger, who has embraced criminal justice reform, is seeking to replace Jackie Lacey, a prosecutor who has held the seat for two terms and notably, opposed reform at nearly every opportunity, including any effort to end the death penalty in California, despite Los Angeles voters supporting the most recent ballot proposals to do just that.

Gascon is the former two-term District Attorney of San Francisco. He was expected to win re-election easily, but left his post for a return to Los Angeles where he has deep roots. Gascon lived in L.A. over 30 years while he rose up the ranks of the Los Angeles Police Department, attaining the position of Assistant Chief of Police under Chief William Bratton. He now seeks to bring his reform efforts to the largest prosecutor’s office in the U.S.

GASCON’S ACCOMPLISHMENTS IN SAN FRANCISCO ARE IMPRESSIVE

In San Francisco, Gascon forged a reform path, often surprising many by battling the police officer’s union, who expected him to share their counter-reform views, as Gascon was “one of them.” While it is true that Gascon long career in law enforcement included a tenure as Chief of Police in San Francisco, when he became District Attorney (then-Mayor Gavin Newsom appointed him to the post following the election of Kamala Harris as Attorney General of the State), Gascon exercised his power to transform how criminal justice is implemented in many notable ways, few of which have been embraced in Los Angeles by incumbent Lacey.

• His office moved to expunge marijuana arrests and convictions dating back to 1975 after Proposition 64 legalized marijuana, leading what would become a national trend.
• Gascon was co-author of Prop 47 which made drug possession offenses a misdemeanor, rather than felony, thus reforming a racially-tinged system that had notoriously clogged the criminal courts for years and siphoned valuable resources away from more serious cases.
• Gascon was a key supporter of expanding behavioral health services and saw how they were intimately tied to homelessness and other societal problems that were too often expected to be solved with incarceration.
• Gascon promoted an innovative pre-booking diversion program (the LEAD program, which was first launched in Seattle) that refers low-risk drug offenders to community-based health and social services.
• Gascon prosecuted environmental cases involving oil spills in San Francisco Bay (one case involving over 400 gallons spilled by a tanker) and against California Walgreens for improperly disposing of hazardous medical waste. The later case resulted in over $16 million dollar settlement.
• Gascon created the first “Integrity Unit” in the San Francisco District Attorney Office to guide how prosecutors provide exculpatory evidence to the defense in every case.
• Gascon instituted weekend rebooking to reduce the time in custody for persons arrested on the weekend; greatly reducing the jail population.
• Gascon started San Francisco’s Young Adult Court focusing on offenders between the ages of 18 and 24. Under the program, an Alternative Sentencing Planner works to promote alternatives to incarceration and community based delivery of services.
• Gascon was an early critic of money bail and promoted the use of a Public Safety Assessment tool (PSA) to advise when an accused person should be released pending the litigation of their case. While these tools need to be monitored and reassessed to eliminate bias, they are evidence-based when compared to a system where wealth is the key factor determining whether someone should be released from custody.
• Gascon implemented an internal prosecutorial data management system similar to CompStat, called DA Stat, making San Francisco the first city in California to utilize such a data-driven tool, again committing himself to harnessing technology to evaluate the success of his various initiatives.

GASCON’S POLICY REFORMS GREATLY REDUCED CRIME IN SAN FRANCISCO, MOST NOTABLY IN ROBBERY CASES

In 2015, Gascon led the effort to curb the proliferation of cell phone robberies which often turned violent as thieves would snatch a phone out of a person’s hand and run off. Ultimately Gascon’s efforts required manufacturers to have a “kill switch” which rendered stolen phones useless under California’s Smartphone Theft Prevention Act (sponsored in the state legislature by then-San Francisco State Senator Mark Leno). This greatly disincentivized phone theft. An article in the San Francisco Chronicle by Vivian Ho noted that in San Francisco alone, as a result of the legislation, smartphone robberies “plunged 50 percent in the past three years in San Francisco after they sored to epidemic heights.” (“SF smartphone robberies cut in half after ‘kill switch’ push,” San Francisco Chronicle, July 27, 2017).

Critics of Gascon have tried to suggest that after the passage of Prop. 47, auto burglaries rose in San Francisco, despite the fact that those offenses could still be charged as felonies. What these critics ignore is that Gascon’s office prosecuted auto burglary cases in over 80% of cases where police made arrests. The real problem was highlighted in a San Francisco Chronicle story (while Gascon was District Attorney of San Francisco) noting that “Police generally catch auto burglars fewer than 2 percent of the time.” (“Auto burglaries in SF down 14 percent so far this year,” by Evan Sernoffsky, San Francisco Chronicle, October 24, 2018).

In a 2016 story by Associated Press writer Paul Elias, “San Francisco Struggles With ‘Smash-and-Grab’ Auto Burglaries,” NBC Bay Area, June 14, 2016, then-police chief Greg Suhr blamed the rise in auto burglaries on the need to hire more police officers: “San Francisco’s police say combatting auto burglaries is a priority, but the department needs more officers. Before he resigned as chief last month, Suhr said he was hopeful 200 vacancies will be filled shortly. Suhr also created a special investigative unit, beefed up patrols throughout the city and ordered every burglarized auto dusted for fingerprints.”

Rather than blaming Gascon, it’s very likely that his efforts helped get the crisis under control. As Sernoffsky noted in his 2018 story: “The San Francisco district attorney’s office [under Gascon] has been working with police by dedicating neighborhood units to each station to assist police while assigning a specific auto crimes prosecutor to charge defendants.”

GASCON WILL HOLD POLICE ACCOUNTABLE, INCLUDING IN “USE OF DEADLY FORCE” CASES

Blue Ribbon Panel in San Francisco

During his tenure as San Francisco District Attorney, Gascon prosecuted over 30 police officers for criminal conduct, including excessive force. He is also credited for convening a Blue Ribbon Panel in the wake of the homophobic and racist text messaging scandal that involved over 14 police officers in 2014 while he served as District Attorney. The panel recommended over 80 reforms, which Gascon supported.

In 2016, Gascon secured funding from local legislators to create an Independent Investigations Bureau to investigate police officer shootings, in-custody deaths, and excessive force.

Amending police use of deadly force statute in California

Despite these efforts, Gascon has been criticized by some for not prosecuting police officers in various police-involved shooting deaths in San Francisco. No San Francisco District Attorney in the city’s history succeeded in doing so, and Gascon made it clear that his decision was not because he believed the police conduct in question met reasonable standards of conduct.

Without rehashing each case here, the facts of which are complicated and subject to interpretation, Gascon did recognize that California’s state law made it virtually impossible to bring use of deadly force prosecutions. Gascon publicly argued that the law controlling police use of force was antiquated and that it problematically favored police escalation of violence in tense situations. As a result, he committed himself to amending the law to create more reasonable standards and promote the use of de-escalation techniques. Gascon was the only District Attorney in California to advocate for these new standards to measure police conduct. Notably, L.A. District Attorney Lacey was asked to join him in supporting the law, yet she declined.

This failure on her part is particularly troubling as “According to Black Lives Matter LA, over 400 people have been killed by law enforcement or died in custody in the county during Lacey’s tenure.” (“How District Attorney Jackie Lacey Failed Los Angeles,” by Jessica Pishko, The Appeal, November 12, 2019.)

The law in question, and which Gascon sought to amend, was first enacted in 1872 and is codified in Penal Code section 196. It stated that “police may lawfully kill someone while arresting persons charged with felony, who are fleeing from justice or resisting arrest.” This law, the single oldest unamended law enforcement use-of-force statute of its kind in the country, was why Gascon believed he could not successfully pursue cases against police officers who had used force resulting in death. The problem was that the police would always be able to assert the law allowed them to use deadly force while arresting someone for a felony, in cases where they could say the person resisted arrest.

Gascon partnered with Assemblywoman Shirley Weber from San Diego and began proposing amendments that would require police to act reasonably and utilize less lethal means of subduing a person they sought to arrest. The original Assembly Bill 931 was defeated. But a successor Bill 392 passed the Legislature and was signed by the Governor. It took effect in January of this year. It amends both Penal Code section 196 and 835 which states that peace officers may use deadly force “only when necessary in defense of human life. In determining whether deadly force is necessary, officers shall evaluate each situation in light of the particular circumstances of each case, and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.”

For the first time, many of the cases that were hitherto impossible to seek redress in, now are ripe for accountability. The law took effect just as Gascon left San Francisco, leaving a powerful tool for his successor Chesa Boudin in San Francisco and one that Gascon will undoubtedly utilize if elected in Los Angeles.

Ironically, although Lacey has not prosecuted any police officers in similar circumstances, she has attacked Gascon for his inaction. However, Gascon and others have noted that Lacey actually had a case of police use of deadly force that was so egregious that it would have even met the old standard, prior to its amendment. That case involved a shooting death of a man who was subdued and in police custody when the killing occurred. Even under the unamended law, critics argue that Lacey could have brought a successful case against the officer involved, but she didn’t.

The L.A. Times noted: “Lacey’s most vocal opponents zero in on her failure to prosecute police officers for killings, and indeed the dearth of prosecutions is noteworthy, especially in egregious cases such as the one in which LAPD Officer Clifford Proctor killed Brendon K. Glenn in 2015. Even Police Chief Charlie Beck, after seeing video evidence of the shooting, said his officer should be criminally charged. But Lacey declined, saying she could not prove the case beyond a reasonable doubt.” (“Endorsement: George Gascón for L.A. County district attorney,” by The Times Editorial Board, L.A. Times, September 29, 2020.)

Command of the LAPD Training Unit

Importantly, Gascon is not new to embracing police reform. It’s worth remembering that in 2000, when Gascon was rising in the L.A. Police Department, he was charged with taking command of the LAPD training unit (including the LAPD Academy and in-service training) in the wake of the Rampart Scandal, which involved widespread police corruption in their CRASH anti-gang unit in the Rampart Division in the late 1990s. Over 70 police officers were implicated in the scandal, which involved misconduct, such as unprovoked shootings and beatings, fabrication of evidence, theft of narcotics, and perjury. It was one of the largest instances of documented police misconduct and corruption in U.S. history. Gascon is credited with creating an ethics training manual for police and reorienting a troubled department. Michael Gennaco, the former head of the United States Justice Department’s civil rights division has noted: “Gascon fundamentally changed the way the LAPD teaches its officers about civil rights.”

GASCON IS A SKILLED LAW ENFORCEMENT PROFESSIONAL WITH WIDE SUPPORT FROM THOSE HE WORKED WITH IN SAN FRANCISCO

Gascon has been a lawyer for 24 years and in law enforcement as a police officer since 1978, when he joined the Los Angeles Police Department as a patrol officer. Prior to that he served in the military, having joined the United States Army in 1972.

Gascon rose through the ranks of the Los Angeles Police Department as a Sergeant, Lieutenant, Captain, Commander, and Deputy Chief in 2002. During these years, Gascon earned a law degree while serving as a police officer. Later, in addition to serving as San Francisco’s police chief, he held the same post in Mesa, Arizona.

Gascon’s record in San Francisco did not meet with approval from every quarter, however. His willingness to look under the hood of questionable City Hall dealings is believed to be why San Francisco Mayor London Breed endorsed Lacey. In 2012, Gascon prosecuted officials from San Francisco Mayor Ed Lee’s campaign committee over illegal campaign contributions and his office pursued other cases where Breed’s own conduct raised ethics concerns.

Gascon does have an impressive and diverse list of endorsers, who either have worked with him and know his personal character, or who have judged his public record and see the important role he has played in moving criminal justice reform forward.

Gavin Newsom, Governor of California and former two-term Mayor of San Francisco; Kamala Harris, U.S. Senator and current Democratic Vice-presidential nominee, who served as California’s Attorney General and former San Francisco District Attorney; Chesa Boudin, San Francisco’s District Attorney and possibly the most progressive elected prosecutor in the United States, who is also a leader in police reform and ending cash bail; San Francisco Supervisors Hilary Ronen and Matt Haney; and San Francisco Democratic Party Chair David Campos are endorsing Gascon.

In Los Angeles, Gascon has the support of Mayor Eric Garcetti; the Los Angeles County Democratic Party; the L.A. Times, Los Angeles Daily News, and the Spanish-language La Opinión daily newspaper. Gascon is also endorsed by L.A. County Supervisor Mark Ridley Scott, L.A. Councilmembers Gilbert Cedillo and Mike Bonin, former L.A. Police Chief Charlie Beck, and former L.A. District Attorney Gil Garcetti, who served in that capacity for two terms.

U.S. Congresspersons Tony Cardenas, Nanette Baragan, Ayanna Pressley, Maxine Waters, Alan Lowenthal, Ro Khanna, and Greg Stanton all support Gascon for District Attorney.

Others such as Dolores Huerta, U.S. Senator Bernie Sanders and U.S. Senator Elizabeth Warren have also endorsed Gascon.

CONCLUSION

The time for law enforcement reform is now and the difference between Lacey and Gascon couldn’t be more stark. As the L.A. Times recently noted:

“When Gascón co-wrote Proposition 47 to return drug possession and petty theft to their former misdemeanor status, Lacey opposed it. When marijuana use was legalized and Gascón led in expunging prior convictions, Lacey was slow to follow suit. Where Gascón opposed the death penalty, Lacey’s department remains the state’s most prolific generator of death sentences. As Gascón helped lead the effort to raise standards for police use of force — allowing police to shoot only when necessary — Lacey lobbied hard for the older, lower standard. When Gascón fought against a law to deport nonviolent drug offenders, Lacey fought to keep it. When Gascón called for the State Bar of California to adopt a rule against district attorney candidates accepting donations from police unions, Lacey — who has benefited from the expenditures of millions of dollars in donations from police unions — opposed the move.”

“Endorsement: George Gascón for L.A. County district attorney,” by The Times Editorial Board, L.A. Times, September 29, 2020.

The Appeal reached the same conclusion: “Lacey opposed Proposition 47, which shifted more incarcerated people away from jails. (“I can’t say I agree with Proposition 47,” she told the LA Times in 2014.) She opposed ending cash bail and has taken no steps toward reducing the city’s high incarceration rate and racial disparity in incarceration. She also opposed Proposition 57 and marijuana legalization, measures that easily passed with Los Angeles voters. She opposed changes to the felony murder law passed last year, even filing motions in court arguing that the statute was unconstitutional. (In July, California Attorney General Xavier Becerra filed a brief that the statute was constitutional.)

“How District Attorney Jackie Lacey Failed Los Angeles,” by Jessica Pishko, The Appeal, November 12, 2019.

For these reasons don’t be surprised if George Gascon comes out ahead November 3rd. Los Angeles, and the movement for police reform, will be better off because of it.

— Matt Gonzalez

Matt Gonzalez is a former president of the San Francisco Board of Supervisors. For the last decade he has served as the Chief Attorney in the San Francisco Public Defender’s Office. Gonzalez has successfully tried civil and criminal trials in both the state and federal courts. In 2010, while in private practice, Gonzalez’s law firm won the only punitive damages award in a federal civil rights case against an elected district attorney in California’s history.