By Alex Emslie
One of the officers facing termination for sending some of the racist, anti-gay and sexist text messages that have mired the San Francisco Police Department in scandal since mid-March is leading a legal charge to keep his job and those of nine others.
Rain Daugherty filed a petition and complaint (see below) in San Francisco Superior Court late Monday asking a judge to halt disciplinary proceedings pending before the city’s Police Commission. San Francisco Police Chief Greg Suhr recommended that Daugherty and seven other officers be fired, and he recommended that two additional officers face discipline up to and including termination, at the discretion of the commission.
The legal challenge doesn’t dispute that officers sent inappropriate or offensive text messages, but simply that the department waited too long to investigate them and initiate discipline.
They are accused of conduct unbecoming an officer, according to the filing. Daugherty was placed on “indefinite, unpaid” suspension on May 4 while the city’s Police Commission adjudicates his case. The department did not immediately respond to inquiries into whether the other nine officers were also suspended that day.
Suhr said in early April that he would discipline four additional officers implicated by text messages that were “inappropriate,” but “not determined to be racist or homophobic” at the chief’s level, which includes punishment up to a 10-day suspension.
The petition challenges the city’s attempt to discipline all 14 officers.
The text messages, which were made public in a federal court filing March 13, were all recovered from the cellphone of former SFPD Sgt. Ian Furminger, who was convicted of federal fraud and conspiracy charges and sentenced in February to three years and five months in prison.
Federal agents investigating Furminger and other SFPD plainclothes officers for corruption and illegal searches delivered evidence to SFPD’s Internal Affairs Division in December 2012, the petition asserts, and yet the department did not begin a disciplinary investigation until January of this year.
“There is a statute [the California Public Safety Officers Procedural Bill of Rights] that required the department to initiate and complete its investigation into these text messages within one year of their discovery,” said Daugherty’s attorney, Alison Berry Wilkinson. “It did not.”
Wilkinson said the nine other officers are represented by attorneys from at least five other firms, and all the officers and their attorneys are coordinating their claims into yesterday’s filing.
“Essentially, we consolidated it for the sake of judicial economy and efficiency,” she said. “Everybody has a very high stake in the outcome. Each of their clients are significantly impacted by this action.”
The filing is both a petition and a lawsuit, Wilkinson said, asking a judge to halt the city’s disciplinary proceedings, force the removal of any findings related to the texts from the officers’ personnel files and impose a civil penalty of $25,000 for each officer — plus attorneys’ fees and other possible damages.
From the filing:
“Out of the thousands of text messages obtained from Furminger’s cell phone, only a limited, number of sporadic but grossly inappropriate texts were exchanged with DAUGHERTY over a period often-months. DAUGHERTY is deeply ashamed by what he wrote, such texts being unreflective of his strong commitment to exemplary community policing of all San Francisco’s diverse citizens.”
A spokesman for the city attorney’s office said the city is aware of the filing but has no comment at this time.
The time-limit issue has been looming for some time. When Suhr addressed pending Police Commission disciplinary hearings at an April 3 press conference, he elaborated on when the clock pauses, or “tolls.”
“Those administrative matters toll, and attorneys usually know that, when there’s a criminal case pending,” Suhr said. “As soon as we became aware of this, we took action. And I’m confident, when we go to the commission, that our argument that anything that was involved in this was tolling until after the criminal case was over with. I myself had no knowledge of this, as I was walled off.”
The section at issue is California Government Code Section 3304(d)(2), part of the Peace Officers Bill of Rights:
“If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall toll the one-year time period.”
But Wilkinson said the offensive text messages were not the subject of the criminal investigation against Furminger and five other former SFPD officers.
Three arrests that Daugherty participated in have been affected, as the San Francisco’s District Attorney’s Office reviews some 3,000 cases involving all 14 officers over the past decade.
Tamara Aparton, spokeswoman for the city’s public defender, said Tuesday that two pending prosecutions involving Daugherty and clients represented by deputy public defenders were dismissed in April. Prosecutors dropped one charge involving Daugherty in another, multiple-count case that is otherwise proceeding.
All three cases involve marijuana sale and possession charges, Aparton said, and all the defendants are white.
“He has a credibility issue,” Aparton said of Daugherty.
Read the filing below:
Ted Goldberg of KQED News contributed to this report.