Wednesday, November 15, 2006
C.A. Allows Case to Go Forward Against ‘Fajitagate’ Officers
By KENNETH OFGANG, Staff Writer
The San Francisco Police Commission did not wait too long to bring disciplinary charges against seven officers accused of improper conduct in connection with an investigation of a street fight involving three other officers who were off duty, the First District Court of Appeal has ruled.
Div. Two Monday affirmed a ruling by San Francisco Superior Court Judge James Warren. Warren, who has since retired, denied the officers’ petition for writ of mandate, finding that several statutory exceptions to the one-year limitations period applied.
The ruling is the latest in a series of events that began on Union Street on the morning of Nov. 20, 2002 and led to the indictment of 10 members of the San Francisco Police Department, including the then-chief and assistant chief, although none were convicted.
Capt. Greg Corrales, Lts. Henry Parra and Edmund Cota, Sgt. John Syme, Inspector Paul Falconer and two of the officers at the scene of the alleged assault, Gene Cornyn and Daniel Miller, are accused of violating department rules in the aftermath of the incident in which Alex Fagan Jr., David Lee and Matthew Tonsing allegedly beat Jade Santoro and Adam Snyder after Santoro refused to hand over the bag of take-home steak fajitas he was carrying.
The press later dubbed the incident and its aftermath “Fajitagate.”
Fagan, whose father was assistant chief at the time, and Lee later left the department after failing to complete probation. Tonsing went on disability leave.
The department’s handling of the case eventually led to the short-lived indictments of then-Chief Earl Sanders, Alex Fagan Sr., and other members of the command staff for allegedly conspiring to obstruct justice.
All charges were later thrown out by a judge who said that while the off-duty officers had received preferential treatment, and the defendants may have obstructed justice, there was no proof of a conspiracy. Sanders and Fagan subsequently retired, Sanders after suffering a heart attack that he blamed on stress brought about by the proceedings against him and Fagan after serving briefly as acting chief in the wake of Sanders’ retirement.
The incident was investigated by the district attorney, the police department, and the Office of Citizen Complaints, an independent agency established by the City Charter that has authority to probe alleged police misconduct and to file disciplinary charges with the Police Commission, which is the city’s final decisionmaker in such matters.
The OCC investigated charges that 12 officers had violated department policies in the aftermath of the incident, and recommended discipline for seven of the officers, including Corrales, a captain and the superior of the three off-duty officers. Corrales allegedly violated policy by giving an interview to the San Francisco Chronicle in which he questioned the credibility of Santoro and Snyder and claimed that the incident had been blown out of proportion for political reasons.
Syme, the supervisor on the scene the night of the alleged assault; Cota, who was later brought into the investigation; Parra, who was in charge of the night investigations; and Falconer, who was called in to investigate more than 2 1/2 hours after the incident, are accused of failing to follow proper investigative procedures, including those regarding seizure and preservation of evidence.
Miller allegedly failed to alert dispatch that three officers had been identified as suspects, and Cornyn is charged with failing to report that he had driven the three officers, in an apparently intoxicated state, to a nearby station.
Of the seven, only Corrales, Syme, and Cota were defendants in the conspiracy case. Five of the seven were named in a civil rights suit in federal court, but all were either dismissed or won summary judgment.
In seeking a writ of mandate to block the discipline case before the Police Commission, the officers alleged that the charges filed by the OCC in July 2004 were untimely under the Public Safety Officers Procedural Bill of Rights Act.
But Warren ruled that four exceptions to the one-year limit applied. Two of the exceptions provide for tolling “[i]f the act, omission or other allegation of misconduct is also the subject of criminal investigation or criminal prosecution” or during the pendency of “a matter in civil litigation where the public safety officer is named as a party defendant,” while two permit a “reasonable extension” of the limit where extra time is needed to permit coordination of investigations by multiple agencies or to investigate interrelated charges against multiple officers.
Justice James Richman, writing for the Court of Appeal, said that the “criminal investigation or criminal prosecution” exception applied to all of the officers, including those who were not prosecuted.
“[I]t is the ‘act, omission, or other allegation’ which must be the subject of the prosecution, and any objective reading of the record reflects that the criminal investigation encompassed the misconduct of all officers who were involved in connection with the incident...,” the justice wrote.
The justice also agreed with the Police Commission and the trial judge that the OCC reasonably took an extra eight months to investigate the complex multiple-officer case.
“The record demonstrates that it was not until December 2003 that the police department was at all forthcoming, and even then some material evidence was not obtained by OCC until 2004. And until it all was analyzed, and put in the context of the other evidence, how could the OCC reasonably close its investigation? The potential misconduct, wideranging as it was, could not be investigated in isolation, especially as the issues in question involved how and when various officers in the department acted, or failed to act, in response to that investigation. For the OCC to determine which officer should have taken action and when, and whether he acted appropriately or inappropriately, it must have a full picture of the entirety of events.”
The case is Parra v. City and County of San Francisco, A112331.
Copyright 2006, Metropolitan News Company