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Vietnamese Man Killed by San Jose Police, City Policies Questioned
by Raj Jayadev
Friday May 29th, 2009 2:19 AM
The Death of a Vietnamese Man Calls Out to a Vietnamese Woman, and the City Policies That May Have Failed Them Both
When news broke of a 27-year-old Vietnamese man being shot and killed at his home by the San Jose Police Department on May 10th, the pain of the tragedy felt by the local community was amplified by a gut-wrenching and unexpected feeling – familiarity.

For one, the San Jose Police Department has recently been embroiled in controversy after reports were disclosed that they arrest more people for public intoxication and resisting arrest than any other city in the state, with Latinos and Blacks being severely disproportionately over-represented in that number. So Daniel Pham’s death, while Asian and not an arrest incident, comes at a time mired in suspicion and public outrage regarding police practice by communities of color in San Jose. But it is not only the present police accountability issues that magnifies the significance of the Pham death, it is the story his reminds us of – Cau Bich Tran – and the fact we may be worse off in terms of police practice issues now than we were six years ago when she was killed.

While questions are still being asked about the shooting of Daniel Pham, the basic fact pattern that has been disclosed by the San Jose Police Department is sadly reminiscent to a 2003 incident involving a young Vietnamese mother, Cau Bich Tran, who was shot by San Jose police in her home. In Pham’s case, officers arrived at his home in response to a domestic disturbance call, after Pham has reportedly cut his brother with a knife. Within three minutes after police arrived, and had found Pham in the backyard, allegedly with a knife, he was dead. According to reports to the Mercury News, Pham’s siblings at the time of the incident were yelling to officers not to kill him, and that he was mentally ill.

The impulse by Pham’s family to yell a warning not to kill their brother was informed by the Cau Bich Tran case which has been a defining moment in police and community relations in San Jose, and six years later still looms over the city, not only due to the loss of life, but in the outrage it sparked in the Vietnamese community. Cau Bich Tran, 25-years-old, was also shot and killed in her home when officers arrived at her house responding to a domestic disturbance call and shot her after police mistakenly took her vegetable peeler for a cleaver.

While the Santa Clara County District Attorney’s office has called for a grand jury, and an internal police investigation begins to examine the shooting of Daniel Pham, the recent death is an indicator of how regressive the City of San Jose has become regarding critical incidents involving police officers since the time of Cau Bich Tran’s passing. What has been revealed through Daniel Pham’s death is how little the City has learned since Cau Bich Tran, and how authentic community concern can become misdirected political policies.

The unfortunate reality of police accountability discussions is often times the policies are only brought forward in times of tragedy, like in the instance of the Tran and Pham case. In response to the Cau Bich Tran shooting, two policy changes were created to both reduce the possibility of such incidents, and to build back any public confidence that had been lost during an officer involved death. These were namely the ability of the Independent Police Auditor to audit officer involved shooting deaths, and secondly the implementation of a new weapon that was supposed to be the answer to officer involved shootings – Tasers.

Yet six years later, as the City responds to the Pham death and draws upon its solutions implemented from the Tran case, both policies have proven to be insufficient when applied to the Pham death, and exposes a gaping hole in preventing officer-involved critical incidents – adequate strategies to deal with mental health clients. The policy to have the Independent Police Auditor review officer involved shootings no longer exists, and the Taser, while allegedly used on Daniel Pham, was not used as a replacement of a gun, but rather as a precursor to one.

Officer Involved Shooting Audits: The Independent Power That Once Was

In 1999, the San Jose City Council adopted Municipal Code Section 8.04.101(B) that provided the IPA review of officer involved shootings, and states, “The police auditor shall participate in the police department’s review of officer-involved shootings.” Yet it is was the Cau Bich Tran shooting that prompted the City Council to approve a host of specific activities aimed at providing assurances that officer involved shootings were being monitored by an independent reviewer – the IPA. At a 2004 joint session meeting, the City Council, among other expansions to the role of the IPA when dealing with incidents similar to the Tran case, authorized the IPA to: 1) be notified immediately after an officer-involved shooting 2) be given the ability to respond to the scene 3) be briefed by on-scene personnel and 4) Be given a copy of the Internal Affairs investigation documents. In 2005, the City Council then authorized the SJPD to give copies of homicide reports for officer-involved shootings and in custody deaths.

From the improved ability to review officer involved cases, the IPA office developed an “Officer-Involved Shooting Form” which presented a number of critical questions to clarify whether a shooting could have been prevented, how thorough the Internal Affairs investigation was, and other key pieces of information that could then be used for policy recommendations. These set of questions, though conceptualized after the Tran shooting, are also the most relevant ones to understanding the Pham death. A comprehensive five page audit form would answer such questions as: “Did the officers know the victim was mentally ill?” and “Was there time to retreat or reposition or re-evaluate?” The form covers the “Incident Leading to the Shooting”, “The Arrival at Location”, “The Shooting Itself”, “After the Shooting”, and “Analysis of Evidence.” The form even has a check box to indicate whether or not expert advice is required.

Yet despite the public’s push after the Tran death to activate these powers, and to create such an auditing form, these questions will not be asked by the IPA for the Daniel Pham death. The IPA power to audit shooting deaths was rescinded by a controversial opinion offered by the City Attorney, Richard Doyle in 2007. In an ironic twist, the Independent Police Auditor at the time, Barbara Attard, had approached City Council in order to expand the purview of the auditing process to included other officer involved critical incidents such as Taser involved deaths. San Jose was the first large city in the country to arm each of their officers with the weapon in 2004, which came directly as a response to the Tran case. Since implementation though, there has been seven Taser involved deaths of civilians. But rather than expand the audit beyond shootings to all critical incidents, the City Council, informed by the interpretation of the City Charter by the City Attorney, claimed that the Independent Police Auditor actually could not audit any officer involved incident – including officer involved shootings like Tran of the past, and Pham in the present. Within months of the Doyle opinion, the City Council voted to end Barbara Attard’s contract as the IPA, and many in the public felt her dismissal was consequence of her demands for more police accountability.

The re-interpretation of history, and the diminished role of the office means that Daniel Pham’s death will have less scrutiny and review than Cau Bich Tran’s did six years prior. Essentially, despite massive public pressure and years of the appearance of due diligence, the City of San Jose not only did not improve police monitoring since the Tran death, it is effectively less equipped now during the Pham case then it was then during Tran’s case.

San Jose’s False Hope: Tasers

And while the role of the IPA is about the false pretense of accountability created after the Tran case, the City’s response to the question of prevention, the deployment of Tasers, after the Tran death has been proven to be wrong by the Daniel Pham shooting. The Pham case shows the ineffectiveness of the weapon in consistently subduing its target, thus negating the argument that it can be a non-lethal alternative to a gun. And the cases leading up to Daniel Pham shows it is in fact not even a “non-lethal” weapon as City leaders once thought after the Tran death. Due to its unreliability, the Taser in fact puts officers in danger who may believe it may stop a suspect they feel is an imminent danger, yet does not bring them down, such as the narrative of the Pham case, and also put civilians in danger when officers use them as an intermediate weapons. Five years of Taser use in San Jose has even made the coalition of civil rights organizations that was born after the Tran case, the Coalition for Justice and Accountability (CJA), to now demand the weapon be shelved. In 2004, when the City Council was considering buying Tasers, CJA had been supportive of Tasers as a way to prevent another Cau Bich Tran fatality.

In practice, Tasers, have no actual place for proper usage when traditional police training is applied. Since they are categorized as a non-lethal weapon, they are supposed to used in the same instances that a baton, or OC spray would be used. This means it is not to be used in the same life or death situations in which an officer would use a gun. Yet because it has proven to actually lead to death when used, it inherently become inappropriate to use in situations that do not require lethal force. Since Cau Bich Tran’s death, and the implementation of the weapon seven people have died in Taser involved incidents in San Jose – every person has been unarmed.

When Cau Bich Tran died, the city of San Jose did what if felt was the right thing, to prevent the possibilities of another tragic death. Who knows if those efforts, if fully realized, and better informed, could have prevented the death of Daniel Pham. But as the Pham family goes through the same grieving process that the Tran family did six years ago, a City too is mourning, wondering how we arrived here once again, and whether this time, we will learn from the loss.
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San Jose Copwatch WebsiteCopwatch MemberFriday Jun 26th, 2009 7:04 PM