High Court Denies SFPD Officers' Attempt to Avoid Discipline in Racist Texting Case

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 (Alex Emslie/KQED)

Updated Wednesday, 8:45 p.m.

The California Supreme Court on Wednesday denied the latest legal attempt by nine San Francisco police officers to avoid discipline for swapping racist, sexist and homophobic text messages in 2011 and 2012.

The summary denial marks the end of legal challenges that kept the officers on the city's payroll since the texts were made public in a 2015 federal court filing.

Former Superior Court Judge Ernest Goldsmith ruled in favor of the officers in late 2015, finding the Police Department sat on the texts for over two years, blowing a one-year statute of limitations for officer discipline.

According to a sample of the texts made public, officers sent sometimes violently racist messages that used racial slurs and referenced cross burning and white power.

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They also swapped sexist, homophobic and otherwise offensive texts with former SFPD Sgt. Ian Furminger, who was convicted in late 2014 of federal corruption charges.

San Francisco appealed Goldsmith's ruling, arguing that the statute of limitations paused until Furminger's sentence. A state appellate panel agreed with the city in May, and the Supreme Court on Wednesday denied the officer's petition to overturn that ruling.

"Police should not have to compromise a criminal case in order to discipline officers accused of appalling behavior, like these text messages revealing prejudice against the very communities our officers are sworn to protect," City Attorney Denis Herrera said in a written statement Wednesday.

"Officers accused of misconduct don’t get a free pass just because their texts came to light during a corruption investigation. That is not what the law says, and it would make no sense. Now these officers can answer to the Police Commission."

The officers' lead attorney, Alison Berry Wilkinson, said the officers can't fight the city's right to discipline them any further.

"With the denial of the petition for review, all legal avenues to challenge the proposed disciplinary actions have been exhausted," Wilkinson said in an emailed response. "The matter will now return to the Police Commission to consider each individual discipline case on the merits."

Though the city was prevented from firing the officers, their text messages rippled through San Francisco's criminal justice system, prompting a review of thousands of criminal cases that involved testimony or other participation from the officers.

The district attorney also convened a panel of retired judges to review the Police Department, a precursor to a federal review of SFPD launched in 2016.

Among 272 recommendations issued by the U.S. Department of Justice that are guiding ongoing reform of the Police Department was automated audits of officers' communications for racist or otherwise biased language. The audit flagged 70 text messages, 5,611 emails and 35 entries into a law enforcement database in the second quarter of this year, according to a recent report to the Police Commission.

Each message was reviewed and determined to be a false positive, the Police Department reported, because the audit captures potentially inappropriate words contained within innocuous words, as well as communications from the public and from informants.