San Jose police say pointing a gun isn't use of force

Jun 03, 2023

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When a police officer points a gun at a person, it can be terrifying, induce trauma and anxiety and can quickly escalate a situation.

Police watchdogs and community advocates say when a San Jose Police Department officer points a gun at someone, it should be recorded as use of force.

But since summer of last year, SJPD's internal affairs unit has quietly categorized complaints against officers who pointed guns at people as "procedure" issues.

"I think many people would view it as a use of force, because officers are not supposed to be pointing weapons unless there is an imminent threat," Shivaun Nurre, San Jose's independent police auditor, told San José Spotlight.

Nurre's office issued its annual report on police oversight in San Jose last week, calling out the practice she found while reviewing internal affairs investigations into officer misconduct allegations. Prior to the change by internal affairs last year, an allegation of an officer improperly pointing their firearm was classified as a use of force issue, she said.

"There wasn't any transparency that they decided to do that," Nurre said. "They just explained to me that they felt it was better to be placed under procedure, because there is no physical contact, so how could it be force."

Police officials declined to comment for this story, noting that Police Chief Anthony Mata will speak at the San Jose City Council meeting today to address the auditor's report and recommendations.

A spokesperson for the San Jose Police Officers’ Association declined to comment.

The change in categorization is concerning to community leaders who say an officer pulling a gun on a person can cause fear and lingering trauma for them, as well as anyone nearby who sees the encounter.

"That's definitely a use of force," Rev. Jethroe Moore II, president of the San Jose/Silicon Valley NAACP, told San José Spotlight. "It's not like they came up and shook your hand and gave you their card and said, ‘Have a good day.'"

Moore said police encounters where guns are drawn can also breed distrust of police by whole segments of a community.

"It's almost like when they used to sit us on the curb in East San Jose," Moore said. "But if I got pulled over in Almaden Valley, I didn't have that problem."

One of five recommendations Nurre made to SJPD in her report is to document instances where an officer points a gun at someone as a use of force, as opposed to a procedure. Recording it as a use of force also prompts a review of the incident by the officer's supervisor, Nurre said.

Nurre's report notes that various police departments around the Bay Area and country classify pointing a gun at someone as a use of force, as does the California Commission on Peace Officer Standards and Training, which issues policy recommendations to law enforcement agencies around the state.

Depending on the circumstances, an officer pulling a gun can even be considered an excessive use of force, she said.

In addition to shifting how complaints about cops pointing guns at people are recorded, Nurre said the department has been limiting the public's ability to easily track how often San Jose police officers are pointing guns at people.

Officers pointing guns are required to fill out a form with the department following the incident explaining why they did so, but the data from those forms is treated separately than other uses of force. The data is not put into SJPD's use of force analysis dashboard, where it could be compared to other uses of force instances such as pepper spray, pulling or grabbing a person or using a Taser.

"There wasn't any way to see it next to other uses of force. We want it captured in the same form that other uses of force are captured," Nurre said.

Her office made a similar recommendation to the department in 2018 to ensure instances where officers pointed guns at people were tracked as uses of force along with other kinds, but the department disagreed at the time.

In a response memo to the 2022 report, Police Chief Mata said the department agrees with Nurre's latest recommendation, and plans to change its policy regarding categorizing use of force by September.

Contact Joseph Geha at [email protected] or @josephgeha16 on Twitter.

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