By Alex Emslie
Nine San Francisco police officers facing various levels of discipline for their involvement in a bigoted text messages scandal will remain on paid leave while their petition to halt the city’s action against them makes its way through San Francisco Superior Court, a judge ordered Monday.
The San Francisco Police Commission had started preliminary hearings to determine whether the city would be violating a 1-year statute of limitations by punishing the officers, several of whom faced being fired, according to one of their attorneys.
But Officer Rain Daugherty and eight others petitioned the court May 12 to halt the Police Commission proceedings. Their petition argues that the Police Department was in possession of the text messages since late 2012, but did not investigate them until early 2015.
Deputy City Attorney Kenneth Walczak said the court was “reaching down to a commission and usurping jurisdiction.” He said the court should have waited until the Police Commission imposed any discipline before hearing the case.
“It’s the wrong time,” he argued before Judge Ernest Goldsmith, “too late to have avoided the Commission’s exercise of jurisdiction and too early for the Commission to have imposed discipline.”
The San Francisco Examiner reported last week that officers who were suspended had been back on paid leave since May 18, when Goldsmith granted a temporary stay of Police Commission proceedings. He extended that stay Monday until the statute of limitations issue is settled.
The court won’t be deciding anything about who sent which text or whether the content of any message betrayed character unfit for that of a police officer. Instead, this case centers on whether the officers can even be disciplined in 2015 for conduct discovered in 2012.
The city argues the 1-year time limit for police discipline under state law “tolled,” or paused, while a federal investigation that uncovered the texts was underway. But the city has yet to produce evidence that police officials were barred from acting.
Attorney Alison Berry Wilkinson, who represents Daugherty, said the Superior Court will give her tools unavailable before the Police Commission.
“We are dependent upon the Police Department for the information it gathered and is willing to share with us in the Police Commission forum,” she told reporters outside the courtroom. “In the Superior Court, we have the access to subpoenas, depositions and other mechanisms that will give us a greater picture of what actually happened than the narrow one the Police Department wants us to see.”
Wilkinson said she will seek documentation from the Northern California U.S. Attorney’s Office and others in an effort to “establish the specific date on which the city obtained the text messages at issue, as well as who knew what when and why did they not start the investigation sooner.”
Judge Ernest Goldsmith also ordered that any filing in the case that could disclose the officers’ disciplinary records or other protected personnel information be filed under seal. The judge denied without prejudice — meaning the issue could be revisited — the officers’ request that court proceedings be closed to the public.
Walczak said the secrecy of the court filings could be an inappropriate restriction on freedom of the press.
Coming from the city, that argument held little sway with Goldsmith, who asked, “This is all about freedom of information? Is that it?”
“One could invoke — I’m not sure if it’s a legal principle, but — what’s sauce for the goose is sauce for the gander,” he said from the bench. “Usually it’s the city that’s invoking this, that everything is confidential regarding peace officers.”
In a written statement, the City Attorney’s Office expressed disappointment at “the unprecedented step of staying and assuming control over a Police Commission disciplinary proceeding, which was already underway.”
A hearing date is tentatively scheduled for Sept. 3.