If affirmed, Dec. 21 ruling ‘would seriously jeopardize the ability of local and federal agencies to cooperate on future investigations into police misconduct in California’
SAN FRANCISCO (Jan. 5, 2016)—City Attorney Dennis Herrera today filed notice with the California Court of Appeal that he will challenge a San Francisco Superior Court decision allowing police officers who exchanged racist, misogynist and homophobic text messages to avoid discipline.
Although notices of appeal are pro forma and include no substantive arguments, Herrera stressed in an accompanying statement that key aspects of the court’s Dec. 21 ruling reach far beyond the San Francisco police officers that Chief Greg Suhr has moved to discipline. If affirmed, Herrera said, the decision could seriously jeopardize the ability of local and federal law enforcement authorities in California to investigate and effectively prosecute police misconduct, including corruption and criminal behavior. Herrera cited the successful prosecution and conviction of former Sergeant Ian Furminger as an example of the need for coordination between local police and federal agents.
“The ramifications of this ruling, should it stand, are worse than many realize,” said Herrera. “Forcing the San Francisco Police Department to retain officers whose expressions of hatred and violence are antithetical to law enforcement roles is the most obvious negative effect of this ruling. Less obvious, but no less serious, are the far-reaching effects of this court’s re-interpretation of the statute of limitations under California’s Peace Officer Bill of Rights. If affirmed, this decision would seriously jeopardize the ability of local and federal agencies to cooperate on future investigations into police misconduct in California. It would hamstring efforts, like those in the Furminger case, that have successfully rooted out corruption and other wrongdoing that has no place in law enforcement. And it would unfairly diminish public confidence in a police department whose officers overwhelmingly respect the diversity of the San Franciscans they protect and serve.”
Herrera elaborated on his reaction the court’s Dec. 21 ruling, noting:
“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. The ruling’s holding that the text messages were not the subject of a federal prosecution ignored the unchallenged and explicit testimony of the federal prosecutors themselves. And the ruling’s arbitrary choice of the indictment as the point at which confidential federal evidence became usable for local employment discipline ignores federal law, investigative norms, and the plain language of the Peace Officer Bill of Rights itself, which tolls the statute of limitations while a ‘criminal prosecution is pending.’”
The text messages at issue in the San Francisco employment case emerged during a federal criminal investigation into Furminger and several other SFPD officers under the direction of the U.S. Attorney’s Office, which enlisted assistance from select officers of the criminal unit of SFPD’s Internal Affairs Division. The San Francisco officers privy to the grand jury evidence were required to keep investigative material—including the text messages—secret under federal criminal procedure, and a signed agreement memorialized both agencies understanding that San Francisco’s unauthorized use of the evidence would be punishable by federal contempt proceedings.
At trial and in court pleadings, Herrera’s office contended that the San Francisco Police Department acted promptly to investigate the police officers’ misconduct, completing its investigation within five months—well under the one-year period allowed by statute. The SFPD also properly cooperated with the federal criminal investigation of officers in the Mission Station plainclothes unit, protecting the integrity of the U.S. Attorney’s case by refusing to disclose evidence or information until the resulting prosecution and trial concluded.
The case is: Rain O. Daugherty v. City and County of San Francisco et al., San Francisco Superior Court Case No. CPF-15-514302. Additional documentation on the case is available on the San Francisco City Attorney’s office’s website at: https://www.sfcityattorney.org/.
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