Monday, June 25, 2018
Court of Appeal:
Judge Erred in Ordering Disciplinary Charges Against San Francisco Officers Dropped
By SHANE PATRICK ETCHISON, Staff Writer
The First District Court of Appeal on Friday reversed a judgment ordering that disciplinary charges be scrapped against nine San Francisco police officers in connection with a 2011 corruption probe into a series of racist, homophobic, and anti-Semitic text messages exchanged by the officers.
The investigation resulted in criminal charges against a tenth San Francisco Police Department (“SFPD”) officer, Sgt. Ian Furminger, in December 2014. Furminger and a co-defendant were found guilty of conspiracy to commit theft, conspiracy against civil rights and wire fraud.
The text messages in question had been discovered by U.S. Attorney’s Office investigators in December 2012. The investigators held onto the messages until after Furminger’s conviction two years later.
Only then did they turn the text messages over to the administrative unit of SFPD’s internal affairs division.
The disciplinary action was brought against then-SFPD Officer Rain O. Daugherty and the eight other officers. Friday’s opinion names only Daugherty, but the San Francisco Chronicle identified, in a 2015 story on the matter, three officers involved in sending the offensive text messages as Michael Robison, Noel Schwab, and Michael Celis.
While the disciplinary proceedings were ongoing, Daugherty and the other officers petitioned the San Francisco Superior Court for a writ of mandate, arguing that the one-year statute of limitations under the Public Safety Officers Procedural Bill of Right (“POBRA”) for the investigation had run before the disciplinary action was brought. Then- Judge Ernest H. Goldsmith, now retired, stayed the administrative proceedings in progress pending a hearing on the writ petition; granted a writ; and the SFPD appealed.
On May 30, Div. Three of the First District Court of Appeal reversed, in an opinion by Justice Martin J. Jenkins, which was not certified for publication. A publication order was filed Friday.
Statute of Limitations
POBRA’s statute of limitations provides that “no punitive action may be taken against a public safety officer for any alleged act, omission, or other misconduct unless the investigation is 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,’ subject to certain statutory exceptions.”
In this case, Lt. Jerome DeFilippo of the SFPD’s internal affairs criminal division was working on the investigation with the U.S. Attorney’s Office. He knew about the offensive text messages around December 2012, the plaintiffs argued. Because of that, POBRA required their disciplinary charges to be brought by the end of 2013.
Jenkins disagreed. He noted POBRA’s requirement that the person discovering the misconduct be someone authorized to initiate an investigation. DeFilippo, he determined, was not such a person.
In reaching that conclusion, Jenkins looked at SFPD’s internal affairs department policy. That policy, he found, designated those in the administrative division of the department as the authorized persons under POBRA. DeFilippo was part of the criminal division.
Daugherty argued, and Goldsmith agreed, that the 2003 court of appeal case Jackson v. City of Los Angeles defined authorized persons as anyone with the rank of sergeant I or detective II or higher.
Jenkins rejected this reading of Jackson. He explained:
“Viewed in the correct light, Jackson actually supports appellants’ contention that courts should apply an agency’s designation of who is authorized to initiate investigations for purposes of POBRA.… Jackson’s conclusion was based on case law recognizing that the procedural details for implementing the provisions of POBRA are to be formulated by the local agency.”
Thus, he concluded, only when the text messages were turned over the administrative division of SFPD internal affairs did the statute begin to run.
The opinion does not delve into the merits of the underlying disciplinary action. The pleadings from the 2015 criminal case against Furminger do offer some insight into the nature of the text messages.
In a declaration by FBI Special Agent Tyler Nave, attached to the U.S. Attorney’s Office’s opposition to Furminger’s bail motion in that case, Nave includes the text of several messages sent between Furminger and other SFPD officers, although the names of the other parties are redacted. The text messages include the use of racial and homophobic slurs, and reference burning crosses and committing violence against African Americans.
The case is Daugherty v. City and County of San Francisco, A145863.
At least one of the officers involved in the exchange of offensive texts, Robison, resigned from the SFPD in 2015.
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