This is the second in a two-part series. Read part one here.
Just before 11 p.m. on an August evening in 2012, a woman called the San Diego Sheriff’s Department to report a suspicious noise at her Spring Valley home. Deputy Luke Berhalter and his partner were dispatched to the scene.
They walked up to the house, but didn’t identify themselves or call out to the homeowner. Berhalter drew his gun.
He later told investigators that he “felt something push down” on his gun, and then it fired.
“As soon as my firearm discharged, I think I said ‘oh shit’ or something like that. I realized there was a person there and that she was still standing but she was leaning,” Berhalter said. “She was bent over at the waist and I think she was holding her abdomen or her arm.
As it turned out, he had shot the woman who called the police. She was wounded on her chest and arm and was taken to the hospital for emergency surgery.
The department called Berhalter’s actions “careless and imprudent,” but he was not fired or suspended. He only received a written reprimand to go in his personnel file.
The light discipline on Berhalter is the rule rather than the exception, according to a KPBS analysis of 475 police use-of-force incidents involving San Diego County police agencies dating back to 2000. In fact, more than 97% of the time, officers received no discipline whatsoever, the analysis shows.
In the rare cases when officers were disciplined, it was sometimes for actions other than shooting or using force against a suspect. And most of the time they were back on the street after short suspensions, if they were suspended at all.
- In December 2016, San Diego Sheriff’s Deputy Kyle Klein was disciplined after kicking a man in the face during an arrest. The discipline was in part for Klein’s failure to document the kick.
- In June 2020, San Diego Police Officer Elliot Simon tackled a man and knocked him unconscious. He was suspended for one day for failing to turn on his body camera.
- In March 2015, National City Police Officer Darren Pierson was suspended for 40 hours after he accidentally shot a man in the arm when the man put his hands out of his car during a traffic stop.
- In March 2016, San Diego Sheriff’s Deputy Jason Phillips was suspended for four days after shooting a man through his car window. Phillips was suspended not for the shooting, but because he was carrying a gun while drinking alcohol.
The San Diego numbers mirror a national trend. The national advocacy organization Campaign Zero found that of the at least 9,873 people killed by police in the United States from 2013 to 2021, only 196 of these cases have led to an officer being charged with a crime. Only 56 cases have thus far led to convictions.
“How many people are suspended or disciplined in any meaningful way? Not a lot,” said DeRay Mckesson, a civil rights activist and executive director of Campaign Zero. “Imagine if you had a job where it literally was just impossible to get in trouble, to be held accountable. That's what policing is.”
The details on the San Diego County incidents were made public thanks to SB 1421, a 2019 state law that for the first time requires police agencies to release records — including audio and video files — related to police shootings and use of force resulting in great bodily injury. The law also requires departments to make public records related to sustained findings of sexual assault and lying during the course of an investigation.
A new law, SB 16, that went into effect this year further broadens the requirements for what police have to disclose, including incidents of prejudice and discrimination.
Police union power
Experts say there are a number of reasons why officers so often escape serious punishment or termination for using force, including the way police policies are written and how investigations are done. But topping the list is the strength of police unions, said Eugene Iredale, a San Diego-based attorney who has sued law enforcement agencies on behalf of people who’ve been harmed by police officers.
“The power of the police unions, contract negotiations in which disciplinary procedures are negotiated, and the natural tendency of an organization and people to try to protect its own,” Iredale said. ”For whatever reason, they get due process plus.”
The San Diego Police Officers Association refused to comment for this story.
In addition, Iredale said police investigations of use of force have historically been done internally within the department.
“Way too often you'll have investigating internal affairs officers who have a deep identification with and sympathy for the officer whose conduct is under investigation,” he said.
SDPD Capt. Jeff Jordon said when the department first began releasing these internal records, he received calls from media members “that were incredibly impressed by the thoroughness of the investigations and the professionalism of officers, there were not many complaints or concerns in the way almost all of these matters were resolved.”
Shootings are “incredibly scrutinized,” Jordan said. They are investigated by the homicide division, the San Diego County District Attorney's Office, the FBI for civil rights violations, the internal affairs division for procedural violations, a shooting review board to understand tactics used, on top of the civilian oversight board, he said.
“While we are not perfect, time and time again the SB 1421 documents are showing the professionalism and courage of SDPD officers during incredibly dangerous situations, while also complying with all applicable laws and department procedures,” he said.
The city of San Diego is also in the process of setting up a more robust Commission on Police Practices, which will review complaints made by the public about police officers and review the discipline arising from those complaints.
The Sheriff's Department declined to comment on this story. San Diego law enforcement agencies announced in April that going forward they'll investigate each other when an officer shoots and kills someone. Under this policy change, the Sheriff’s Department will investigate a SDPD shooting and vice versa. This change would be required statewide if a bill currently being considered by the California Assembly passes.
Iredale said he thinks the change will make a big difference. Police use of force expert Travis Norton also welcomes the change, but said regardless, police departments want to do thorough investigations. They want to hold officers accountable, despite what many people in the community might think, he said.
“I understand that our critics would say, hey, you guys can't police yourselves,” Norton said. “In my 24 years, there's not this big thing covering up stuff. We don't want that. We want to maintain legitimacy with our communities. It's so important, especially now.”
Norton said the procedure for reviewing use of force incidents can begin with an officer self-reporting, or from a complaint from the community.
“Once you start to look at the camera footage and if they wrote a good use of force description, most of the time you're like, okay, that makes sense,” he said. “It falls within policy and the law, despite the fact that it looks bad and all uses of force, it's not a genteel sport, and it's not governed by umpires and referees, it doesn't look good.”
Criminal charges exceedingly rare
Only one officer in San Diego County, Sheriff’s Deputy Aaron Russell, has ever been charged for shooting someone. In May 2020, he was charged with murder after he shot a mentally ill man who was running away after escaping from a police vehicle.
Russell pleaded guilty to voluntary manslaughter and although prosecutors asked for a five-year sentence, the judge gave him a one-year sentence.
District Attorney Summer Stephan said recent changes to state law made it easier for her office to charge Russell, because the law now more clearly states the circumstances in which use of force by police is considered reasonable.
Now, officers can’t shoot a fleeing person unless they have reason to believe that person is going to harm someone, and can only use deadly force when “necessary” — previously it was when “reasonable” — to prevent imminent and serious injury or death.
Regarding the past cases, Stephan said “officers are, for the most part, shooting at somebody who has a gun, has something that looks like a gun. That's the great majority of the cases. Or they're shooting at somebody who wants the officer to believe they have a gun.”
Of the 285 incidents reviewed by KPBS, 26% of the suspects were armed with a gun, and 14% were armed with a knife.
Stephan said when deciding to charge officers, prosecutors also have to consider the totality of circumstances.
“Was the other person armed? How did they use their weapon?” she said. “Was the officer aware of it? What was the officer aware of in terms of the person's previous history for violence? What did the 911 call tell them? Did the 911 call tell them they'd already stabbed or hurt somebody? All of those circumstances go into what the law tells us.”
Some activists have long called on Stephan to charge officers for past shootings, but she said there is rarely a reason to do so.
“Unless you had some evidence that the decision making process was unlawful or inappropriate,” she said. “In the time that I've been here, I feel that every single case has received our full attention, our best experience, and that we've tried to provide as transparent of a process as possible. But I think the voices should keep coming. If I lost a loved one to a police officer, I would want more answers and probably would never stop asking them.”
Mckesson with Campaign Zero said activists would be more likely to see success if they pushed for officers to be fired instead of convicted.
“What probably is more likely is some sort of administrative consequence like termination, long term suspension, losing pension, those sort of things,” he said. “But even those aren't happening at any rates in big cities that is noticeable or commendable.”
A new city ordinance which tightens the use of surveillance technology was passed unanimously by the San Diego City Council Monday. Then, a KPBS review of nearly 500 use-of-force incidents shows it’s rare for local police officers to be fired or even suspended when they kill or severely injure people.