Update, 3:30 p.m. Monday, Dec. 21: San Francisco Superior Court Judge Ernest Goldsmith ruled Monday that the Police Department waited too long to pursue disciplining a group of officers who swapped bigoted text messages and that the officers cannot be fired or otherwise punished for the alleged misconduct.
Goldsmith ruled in favor of nine officers challenging the city and Police Department’s attempt to mete out discipline for a variety of racist, homophobic and otherwise inappropriate messages.
Attorneys for the officers successfully argued that the department knew about the texts by late 2012 but didn’t investigate until early 2015 -- long overshooting a one-year state statute of limitations to bring charges of police misconduct.
“The court finds it’s not in the public interest to let police misconduct cases languish,” Goldsmith said from the bench, adding that there was “good reason” for that provision of the California Public Safety Officers Bill of Rights. “To promptly investigate and adjudicate police misconduct -- this is an important protection for the public.”
Attorneys for San Francisco argue that the time limit for a disciplinary action is paused when it overlaps or conflicts with a criminal investigation. They say that's what happened in this case, which involved a federal investigation that led to the conviction of former Sgt. Ian Furminger and two subordinates.
But Goldsmith said the pause would apply only if the officers' texts had something to do with the Furminger case.
“The city is trying to piggyback on the Furminger investigation,” Goldsmith said, adding that there was no connection between the offensive text messages and Furminger’s crimes.
The city's lawyers pointed out that Police Department investigators who knew about the text messages and other evidence in the Furminger probe were sworn to secrecy by federal prosecutors, and the delay in punishing the officers was warranted to protect that investigation.
“Practically speaking, I think this is the death knell for San Francisco Police Department investigators to participate in federal criminal investigations,” Deputy City Attorney Kenneth Walczak told Goldsmith. He said SFPD investigators assigned to the Furminger case "were threatened with federal criminal prosecution" if they divulged anything about the probe to their own department.
Several of the officers who were facing firing have been on paid leave since Goldsmith ordered them back on the city payroll in May. Two of their attorneys said it’s unclear whether they would be allowed back to work or in what role.
“What can’t happen is that these texts can’t be considered against them,” said attorney Tony Brass, who represents Officer Michael Celis. He called Goldsmith’s ruling a “mixed victory.”
“No one is celebrating a victory for that kind of misconduct," Brass said. "That’s not what this case is about. What this case is about is the Police Department has an obligation to investigate that conduct in a timely fashion.”
Walczak declined to say whether the city would appeal, but Police Chief Greg Suhr told KQED’s Sara Hossaini that the ruling would be challenged.
“These officers should not be police officers,” Suhr said. “They clearly fall below the minimum standard required, and we will appeal. ... It’s a process, but I don’t want them in this Police Department and neither do the police officers in the Police Department.”
Update, 4 p.m. Friday, Dec. 18: San Francisco Superior Court Judge Ernest Goldsmith issued a tentative ruling Friday afternoon in favor of nine officers challenging the city’s effort to discipline them for swapping racist and otherwise offensive text messages with a convicted ex-sergeant.
The officers argued that the city is in violation of a statute of limitations in a state law that grants labor protections to public safety officers. The law requires police departments to complete an investigation into officer misconduct within one year of learning about any transgression.
The San Francisco Police Department, the court ruled, knew about the offensive text messages in December 2012, when a small circle of officers in SFPD’s Internal Affairs Division joined a federal investigation of former Sgt. Ian Furminger and two of his subordinates in the Mission District plainclothes unit.
No disciplinary charges were brought against the officers in the texting scandal until April of this year. The city argued the delay was necessary to protect the investigation against Furminger until he was convicted, which happened in December 2014, and two former federal prosecutors filed declarations to that effect.
The city argued that the administrative wing of Internal Affairs, which handles officer discipline, was kept in the dark about the texts until after Furminger’s conviction.
“San Francisco Police Department’s unwritten policy, that the IAD-Admin Division is solely responsible for conducting administrative investigations of police misconduct, did not excuse the department’s failure to conduct the investigation in a timely manner,” Goldsmith wrote in his tentative ruling.
The city argued that the time limit pauses -- or “tolls” in the statute’s language -- when the conduct at issue is part of a criminal investigation or prosecution.
“[T]he tolling exception provided in Government Sec. 3304(d)(1)(A) did not apply in the instant case because the Petitioners [officers], their conduct, and their text messages were not the subject of a criminal investigation,” Goldsmith wrote.
The judge appears likely to finally approve the officers’ petition at a hearing scheduled for Monday, which includes a call for the department to rescind all disciplinary charges against the officers, purge all documents supporting the case against them and pay each officer a civil penalty of up to $25,000, plus the cost of their lawsuits.
Original Post 11 a.m. Friday, Dec. 18:
Eight months after a judge stopped the San Francisco Police Department from firing seven officers accused of sending racist, sexist and homophobic text messages, the officers' legal challenge to their dismissal appears headed for a final decision.
Two additional officers facing lesser discipline have also joined the San Francisco Superior Court case scheduled for a hearing Monday. All nine are challenging the department's attempt to punish them under a one-year state statute of limitations for disciplining peace officers.
None of the officers are contesting charges that they exchanged offensive text messages with former Sgt. Ian Furminger, who was convicted of federal fraud and conspiracy charges a year ago. Federal prosecutors made a sampling of the text messages public in March. The officers use a variety of slurs to refer to African-Americans, Latinos, women and LGBT people.
In one exchange in May 2012, an unidentified officer responds to Furminger's complaint that a friend of his wife's brought her attorney husband, who is black, to dinner.
"Get ur pocket gun," the officer texted Furminger. "Keep it available in case the monkey returns to his roots. Its not against the law to put an animal down. ... U may have to kill the half breed kids too. Don't worry. Their an abomination of nature anyway."
The city has likely been paying that officer's salary while on administrative leave since May, despite the department's attempt to terminate him and several others for conduct unbecoming an officer. But the officer's exact status is unknown because any information relating to discipline in the case is sealed under a protective order.
Whether the officers' challenge is ultimately successful, they've been able to delay discipline for the better part of a year, thanks to attorneys provided by their union and a state law that provides sweeping protections to police officers.
[N]o punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency's discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.
The officers argue the Police Department was in possession of the offensive texts, along with volumes of other evidence in the case against Furminger, by December 2012, but failed to act until April of this year after some of the texts were made public.
So far, the legal challenge has enjoyed some success in the form of a stay issued in May by San Francisco Superior Court Judge Ernest Goldsmith. He halted disciplinary proceedings before the city's Police Commission and required that the officers involved in the case be placed on paid, rather than unpaid, leave.
The only officially named plaintiff in the case, Officer Rain Daugherty, made $164,290.19 in total pay and benefits last year, according to state salary data curated on the website Transparent California.
Other unofficially identified officers facing dismissal include Capt. Jason Fox, who in 2014 made $258,699.07 and Sgt. Michael Wibunsin, who made $242,448.53 that year in total pay and benefits.
The Furminger Investigation
The federal investigation that led to the convictions of Furminger and two of his subordinates in the Mission District plainclothes division lasted much longer than a year.
The history of that investigation -- and when exactly the Police Department started its investigation of the texting scandal -- is central to the arguments of the nine officers fighting dismissal.
San Francisco Public Defender Jeff Adachi began releasing a series of surveillance videos from single-resident-occupancy hotels in 2010 that appeared to show plainclothes officers illegally searching rooms and -- in some cases -- removing property that they never booked into evidence.
By April 2011, when Greg Suhr became San Francisco's police chief, the department's investigation into the apparently illegal searches was underway, according to the chief's declaration in the texting case, filed earlier this month. But federal law enforcement -- namely the FBI and Northern California U.S. Attorney's Office -- wanted to take over.
Two months later, they did, enlisting the help of a handful of criminal investigators from the Police Department's Internal Affairs Division "to provide expertise regarding the activities and conduct of police officers generally and more specifically within the SFPD organization," former Assistant U.S. Attorney Drew Caputo wrote in a declaration to the court. "To avoid potential conflicts of interest, we set clear limits on the extent to which information related to the criminal investigation would be shared within SFPD."
In his declaration, Suhr says the department set up a "wall" between the Internal Affairs Division (IAD) criminal and administrative investigators as the Furminger probe continued. To preserve the integrity of the Furminger case, he added, proceedings against the officers involved in the texting scandal wound up being delayed.
"When a person who is a subject of a criminal investigation is alerted to the existence of that investigation -- whether the subject is a potential witness, suspect, or target of the investigation -- the integrity of the investigation is compromised," Suhr wrote. "The subject changes his or her behavior to avoid detection, and the investigators lose their ability to gather critical evidence. ... [I]t is clear to me that, had SFPD initiated any disciplinary investigation before the criminal investigation concluded, the federal prosecutors might well have lost the ability to make their criminal case against Furminger."
'Choices Have Consequences'
Lawyers for the nine officers have zeroed in on the delay in the disciplinary case as a violation to the one-year deadline for taking action against their clients. They argue that the clock on the disciplinary case should have started in December 2012, by which time the FBI and U.S. Attorney's Office had shared secret evidence in the Furminger case -- including the offensive texts -- with the IAD's criminal investigators. The city argues the clock started just last December, after Furminger was convicted and the text messages were disclosed to the rest of the Internal Affairs Division.
Officer Daugherty's attorney, Alison Berry Wilkinson, said in an interview Thursday that by agreeing to keep the evidence secret, the department chose to place the criminal investigation ahead of any potential officer discipline and thus "jettisoned their responsibility under the Police Officers Bill of Rights."
"Choices have consequences," she said. "They made the choice to agree to that, and the consequence is that they knew that information but didn't act in a timely manner on it."
But San Francisco Deputy City Attorney Kenneth Walczak says that both federal and local law enforcement did everything "by the book."
He said in an interview the officers are trying to "paint a picture of a plot by the Police Department to sit on evidence and delay disciplining them."
Walczak said the officers' arguments are not only unrealistic but also clearly exempted in the Public Safety Officers Bill of Rights, which allows for the "tolling," or pause, to the statute of limitations while a related criminal investigation and prosecution are ongoing.
"That state law provides a panoply of rights to peace officers who are accused of wrongdoing by their employer," he said -- but argued the protections don't apply in the texting case.
"The investigation here was two things that exempt it from the ambit of the peace officers bill of rights," Walczak said. "It was both criminal and federal."