A San Francisco police training officer was promoted days before the chief determined he used “unnecessary” force in punching and pepper-spraying a man who had fallen asleep on a Muni bus, according to an NBC Bay Area review of material disclosed under a new state transparency law governing disciplinary case files.
Brian Burke, now a sergeant, was training a rookie officer at the time of the May 31, 2018 incident. Body-worn camera footage shows the officers approaching the man at the back of the bus, responding to a report from the driver who said they couldn’t wake the sleeping man.
“Hey police. Police, wake up,” the officers tell the apparently sleeping man, who doesn’t respond. “Yo, buddy!” one of officers continues, “Police, wake up. Hey, there you go!”
Within seconds, the video shows, Burke starts to yank the man from his seat, who hits his head on a metal handrail.
Within seconds, Burke strikes him in the face. “Stop f---ing resisting!” Burke says, before striking him again.
The officers begin to grapple with the still seemingly disoriented passenger as they attempt to get him into handcuffs.
“What the f--- is your problem?” the man says.
At that point, the video shows Burke pepper spray him in the face.
He then falls out of his seat and is dragged off the bus in handcuffs by the officers. The man, whose name was blacked out in the investigative files, was treated at the scene for being pepper-sprayed according to the newly released records. The records show he told medics he had used the painkiller Oxycontin.
Get a weekly recap of the latest San Francisco Bay Area housing news. Sign up for NBC Bay Area’s Housing Deconstructed newsletter.
NBC Bay Area’s Investigative Unit showed the video to Jennifer Friedenbach, Executive Director of the Coalition on Homelessness in San Francisco. She said she routinely hears homeless residents complain about interactions with the police and was troubled by how fast the officers resorted to force on a man she believes was clearly disoriented.
“This person was obviously in a very deep sleep,” she said. “He was having a hard time coming out of it and was brutalized in response.”
She says the video shows the problem with relying on police as the city’s primary response to homelessness complaints.
“The officers didn’t seem to be giving his life a lot of value,” she said. “And this was, I’m sure, an incredibly traumatizing experience for him.”
She’s not the only person who thought police went too far.
In a letter written on the day of the incident to the city’s police civilian watchdog agency, the Department of Police Accountability, a bystander said: “If the heavily sedated drug user had been a white woman in relatively clean clothes, she would not have been hit in the head and pepper sprayed.”
But during a subsequent interview with a watchdog agency investigator, Burke said he was concerned the man could have been armed – even though the original call describe him as unarmed.
“I don’t know if this guy has needles. I don’t know if this guy has knives. Most homeless people do,” Burke explained.
Burke added that the ensuing use of force was justified under those circumstances. “My partner’s sitting there in this little, tiny area -- with nowhere to retreat if he (the passenger) does pull a weapon -- so my only option at that point was to deliver a distractionary blow to try and overcome his resistance and prevent him from reaching for a weapon.”
The watchdog agency ultimately referred the case to Police Chief Bill Scott for action, concluding Burke acted with “unnecessary and excessive force.” Documents indicate that one concern raised by the Department of Police Accountability was that Burke was setting a bad example for the rookie officer, who police say has since left the department.
“We always want to make sure that the public is protected, and when they’re not, that there is accountability from the systems that are in place,” said Paul Henderson, the Executive Director of the Department of Police Accountability.
Henderson said he could not comment on the outcome of this or any other case but told us he welcomed the release of disciplinary records like these under the new law.
“I don’t think we could be as effective without transparency laws,” he added. “The result of that are records like this, that objectively and independently, anyone like yourself or the public, can log in to see what actually happened. Was there accountability? Did something happen?”
In the Burke case, documents show Chief Scott found that Burke used “unnecessary” force and ordered he be suspended for three day and undergo mandatory retraining on department standards.
A command staff member who oversaw a hearing on the case had recommended a one-day suspension, the records show.
Days before the chief ordered that 3-day suspension in late 2019, police confirm Burke was promoted to the rank of sergeant.
The department said in statement that while it cannot comment on any personnel matter, it respects the watchdog agency’s findings and has been making changes to use of force policies.
