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Exit Interview: George Gascón

As the former District Attorney heads for retirement, his unsettled legacy leaves the city divided.

SLIDESHOW

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Alex Nieto

Photo: Courtesy of Decocracy Now!

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Kate Steinle

Photo: Courtesy of Fox News

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Mario Woods

Photo: Courtesy of KBCW

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There are two District Attorney George Gascóns in the eyes of San Franciscans. One is the progressive reformer who brought his prosecutors into San Quentin State Prison to speak with current and former inmates about criminal justice reform. “I believe that people need to be held accountable,” he said. “But I also believe that we have to give people an opportunity to come back and be part of our community.”

The other George Gascón is the tired, embittered man on the steps of his house hurling watermelon back at protesters who were critical of his decisions not to prosecute a series of police shootings. Gascón went so far as to file a restraining order against one protester; later, at a community meeting about police violence, demonstrators kept up the pressure, heckling the DA off the stage.

This is often the case in San Francisco politics, where contradiction, tribalism, and theatrics come baked into the job. And next year, it will be someone else’s poisoned pastry: In October, Gascón announced that he would not seek reelection in 2019, signaling an abrupt end to his tenure as the city’s top lawyer. His stated reason for leaving, to care for his ailing mother, sidesteps the tough political battle Gascón faced after losing the backing of City Hall—Mayor London Breed endorsed Police Commission president Suzy Loftus just prior to Gascón’s announcement. But no matter who replaces him, Gascón’s legacy will be complicated at best.

Gascón was a surprise pick for DA in 2011, when Mayor Gavin Newsom tapped him to succeed Kamala Harris. A Cuban who had immigrated to the United States at the age of 13, Gascón had spent most of his career in law enforcement. He served as an officer in the Los Angeles Police Department, helping to reform it after the Rampart corruption scandal of the late 1990s, before earning his law degree by attending night school and rising to assistant chief of the department.

From Los Angeles, Gascón traveled to Mesa, Arizona, where as chief of police from 2006 through 2009 he drew headlines by clashing with Sheriff Joe Arpaio over Arpaio’s efforts to target Latinos for arrest and deportation. In one memorable standoff, Gascón redeployed more than 100 officers the day Arpaio was planning an immigration sweep. Arpaio retreated in red-faced rage, and the media fawned over Gascón. An impressed Newsom appointed him chief of the SFPD in 2009 and two years later named him district attorney, even though Gascón had never tried a case.

Hailed as a liberal reformer upon his arrival, Gascón lived up to progressives’ hopes on many accounts: He was among the earliest supporters of eliminating cash bail, opposed the death penalty, wiped out pot convictions, and cowrote Proposition 47, a statewide reform that reclassified certain felonies as misdemeanors. He brags that San Francisco has the only urban jail in the state at 50 percent or less capacity. Like his predecessor Harris, Gascón has talked about being smart—not tough—on crime.

Miriam Krinsky, the executive director of Fair and Just Prosecution, which works with DAs all over the country, calls Gascón a paragon of criminal justice reform. “For the past eight years, he has approached his position with a level of boldness, transparency, and vision that is rare,” she says. “George has championed reforms large and small—from rethinking our approach to juveniles and young adults to ending cash bail to promoting independent and fortified police accountability. George has spoken out clearly against racism within the justice system and in support of protections for immigrants and other marginalized communities.”

But on many other counts, Gascón has found himself straddling fault lines. “I am unpopular with the police sometimes because I hold them accountable,” he says in an interview shortly after announcing his decision not to seek another term in office. “I am unpopular on the left because I am not prosecuting people even though the law doesn’t support prosecution.”

First, there was his office’s 2017 prosecution of Jose Ines Garcia Zarate, the 45-year-old Mexican citizen accused of killing Kate Steinle. To Fox News watchers like President Trump, who tweeted repeatedly about the case, Garcia Zarate’s eventual acquittal represented a miscarriage of justice in a sanctuary city that coddled illegal immigrants. In charging Garcia Zarate with murder (which requires proof of intent), Gascón had shown a reticence that bordered on legal naïveté, given that a lesser charge would have been much more likely to result in a conviction. After the verdict, he said that he accepted responsibility for the outcome. “We believed this was a murder, but the jury felt differently, and I respect their decision,” Gascón says. “This case was an anomaly on a number of levels, including the sheer impossibility of completely shielding the jury from external influences, it having become a flash point in the 2016 presidential election years before it even went to trial.”

Then there was the friction between the DA’s office and the police department over a spike in smash-and-grab auto burglaries. Gascón pointed the finger at then–chief of police Greg Suhr, whose department’s abysmal arrest numbers have ranged since 2010 from 9 to 19 percent (and average just 2 percent for car break-ins). Gascón calls criticism of his office for failing to prosecute the break-ins “obscene,” arguing that his office can only pursue the cases it receives. “The DA cannot prosecute an empty chair,” he says. Referring to the police, he continues, “You expect people to do their job, and when they do, things work. And when they don’t, things don’t work.”

Relations between Gascón and the police were further strained during a 2015 scandal over racist and homophobic texts exchanged by 14 members of the department, which referred to African Americans as “monkeys” and called for the killing of “half-breeds.” Gascón established a panel to examine the allegations, and although the results were muted—two officers ended up resigning, and no charges were filed—his handling of the incident established his political independence from the police department. “You cannot be tribal when you are holding this office,” he says.

But when it came to several high-profile police shootings, Gascón’s critics on the left claimed that he acted to protect the department rather than pursue justice. Father John Smith, an Episcopalian priest and activist, says that regardless of the rest of Gascón’s record, “what’s a deal breaker is that he’s never charged a single officer for shooting a civilian.” Smith compares the failure to prosecute police violence in San Francisco to the failure of the Catholic Church to stop sexual abuse in its own ranks. “It’s making him complicit in police brutality,” Smith says.

After police killed a knife-armed Mario Woods in 2015, Gascón spent two years studying the case, only to produce a 29-page report and decline to press charges. “We cannot prove beyond a reasonable doubt that [the officers’] actions were not reasonably taken in defense of themselves and others,” the May 2018 report concluded. Gascón called the shooting unnecessary but not illegal. In another incident, police shot and killed Alex Nieto as he pointed a Taser at them. Again, Gascón declined to file charges. Nor did he file charges when a member of the SFPD shot an unarmed 29-year-old woman named Jessica Williams in the Bayview, even after that shooting ended Chief Suhr’s career.

Gascón pushes back against the criticisms from activists like Smith: “As distasteful as we may find the use of force in that case, it is lawful. We can’t just file a case. It’s unethical.” He says that focusing on those shootings overlooks his office’s prosecution over the past eight years of 20 cases involving excessive use of police force, including that of three deputies at the San Francisco jail charged with staging a “fight club” among inmates. In the Woods investigation, his office’s decision not to prosecute was informed by expert opinion on police use of force. That, he says, is evidence that he cares deeply about holding police accountable—but also about impartially following the evidence wherever it may lead, regardless of political pressure.

“We don’t make the law,” Gascón continues. “We enforce the law.” In a stance consistent with that statement, Gascón supports legislation that would change the standard of proof required to prosecute officers in California. “I believe you should not be able to use any force unless absolutely necessary, but that’s not what the law says today,” he says.

But returning to his critics on the left, Gascón takes a sharp tone, calling them “well-intentioned” people who “do not understand the law.” As a rejoinder to them, he brings up the Freddie Gray case in Baltimore. The city’s prosecutor brought charges against officers in Gray’s death, only to lose and be sued for malicious prosecution. “I will not prosecute police because of pressure on me.”

When I first interviewed Gascón, in 2016, he summed up his approach in terms more befitting a philosopher—and foreshadowed the tension that would largely define his tenure. Gascón distinguished between action that was ethically dubious and action that violated the law. “In my experience, in all situations but especially in those cases,” he said then, “you have to be guided by what is morally right and what is legally possible.” And as the lefty hero who stood up to Arpaio and the beleaguered lawyer tossing watermelon off his stoop came to learn, those are not always the same thing. As he says now, “things evolve. We never want to be static.”

 

Originally published in the December issue of San Francisco 

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