By Alex Emslie
San Francisco City Attorney Dennis Herrera is appealing a recent Superior Court decision preventing the city from firing or otherwise disciplining nine police officers who swapped bigoted text messages.
Superior Court Judge Ernest Goldsmith ruled Dec. 21 that the Police Department had allowed a one-year statute of limitations for disciplining peace officers to expire long before it began a personnel investigation into the racist, sexist, homophobic and sometimes violent messages.
But Herrera said in a prepared statement Tuesday that the court misread a provision of the law allowing the time limit to pause while a criminal prosecution is pending. In this case, that’s the federal criminal probe that led to convictions of former SFPD plainclothes Sgt. Ian Furminger and two of his subordinates.
“If affirmed, this decision would seriously jeopardize the ability of local and federal agencies to cooperate on future investigations into police misconduct in California,” Herrera said.
The feds shared evidence from the Furminger investigation, including text messages seized from his personal cellphone, with a group of SFPD internal affairs investigators by late 2012, attorneys for the officers successfully argued in Superior Court. The SFPD did not pursue discipline until early 2015, a few months before a federal court filing in the Furminger case made a sampling of the offensive texts public.
Goldsmith ruled last month that the texts were unrelated to Furminger’s crimes, and therefore were not exempt from the statute of limitations. In announcing the city’s appeal, Herrera said Goldsmith ignored testimony from two former federal prosecutors who worked on the Furminger investigation.
“The decision held that a San Francisco police lieutenant was actually obliged to stop assisting with the Furminger investigation, turn over text messages obtained by search warrant from Furminger’s phone, and initiate an administrative investigation into other officers’ misconduct — even in the face of sworn testimony by the U.S. Attorney’s Office that such an illegal use of confidential grand jury material would subject that lieutenant to criminal prosecution,” Herrera said.
Some San Francisco criminal justice leaders have criticized the Police Department’s agreement with federal prosecutors to keep the evidence secret and delay disciplining officers for the vulgar text messages. District Attorney George Gascón said the officers avoided discipline “due to a massive breakdown in SFPD’s process.”
Gascón’s office is reviewing close to 4,000 cases in which the officers participated for potential bias that could overturn convictions. A spokesman said in late December that the office dismissed 13 pending cases in the wake of the scandal.
“I would like to see those officers not come back to the Police Department,” Gascón told KQED Tuesday, adding that he supports the city attorney’s appeal. “The concern is we probably shouldn’t be here in the first place, but that is water under the bridge now, so I think that we need to move forward.”
Police Department leadership, including Police Chief Greg Suhr, have said the department followed protocol and rightly waited to pursue discipline to protect the Furminger criminal prosecution.
Several of the nine officers in the case face termination, although it’s difficult to know exactly how many due to protections in the Peace Officers Bill of Rights that keep police personnel information secret and an expansive protective order issued in the Superior Court case.
Goldsmith ordered all the officers placed on paid, rather than unpaid, leave last summer, where they remain according to one of the officer’s attorneys. Alison Berry Wilkinson said the Superior Court case isn’t over — the officers will likely seek up to $25,000 each in civil penalties against the city, and so the appeal is premature.
“The city can’t figure out what the laws of California are,” she told KQED Tuesday. “They didn’t follow the statute of limitations, and they don’t follow the appeal rules.”
Wilkinson noted that the California Court of Appeal has already twice denied the city’s requests to intervene in the Superior Court case.