San Francisco police officers who exchanged racist, sexist and homophobic text messages in 2011 and 2012 — calling African Americans “monkeys” and encouraging the killing of “half-breeds,” among other slurs — can be brought up on disciplinary charges, a state appeals court ruled Wednesday, overturning a judge’s decision that police officials had waited too long.
The texts, which surfaced publicly in 2015, cast a cloud over the Police Department and prompted the district attorney’s office to re-examine thousands of cases the officers had handled. Wednesday’s ruling reopens the possibility that as many as nine officers, who have been on paid leave since December 2015, will lose their jobs.
“This ruling upholds police departments’ ability to coordinate with federal investigators to expose dirty cops and protect the public,” City Attorney Dennis Herrera, whose office sought to reinstate the disciplinary proceedings, said in a statement.
Anthony Brass, a lawyer for one of the officers, Michael Celis, said he and attorneys representing the others weren’t trying to defend their clients’ messages.
“Racist texts, no one has ever defended their conduct,” Brass said. “That’s not what the case is about. The case is about the Police Department’s obligation to discipline officers within one year of discovering the misconduct. This is an employment right of the officers, and also a community right to know that the Police Department will discipline misconduct swiftly.”
The court, however, said its ruling struck a balance between officers’ right to fair treatment and the public’s need to maintain trust in the integrity of the San Francisco Police Department.
“The attitudes reflected in these messages displayed unacceptable prejudice against members of the communities SFPD is sworn to protect,” Justice Martin Jenkins said in the 3-0 decision.
Federal agents discovered the messages in 2012 during a corruption investigation of veteran plainclothes Sgt. Ian Furminger, who had exchanged thousands of texts with his fellow officers. A jury convicted Furminger in December 2014 on federal charges of taking and dividing up thousands of dollars in cash police had found while searching drug dealers and their homes.
He and Officer Edmond Robles, convicted of similar charges, were each sentenced to more than three years in prison, and a third officer, Reynaldo Vargas, who pleaded guilty and testified for the prosecution, got a one-year sentence. Robles and Vargas were implicated in the texting case.
The texts disparaged racial minorities, women and gays. One proclaimed simply, “White power,” and Furminger, according to a court filing, wrote that “cross-burning lowers blood pressure!”
The Police Department learned about the messages from federal prosecutors in December 2012 but did not disclose them publicly until March 2015, leading then-Police Chief Greg Suhr to announce that he would fire nine of the officers and take disciplinary action against others.
But Superior Court Judge Ernest Goldsmith halted the disciplinary proceedings in December 2015 and ruled that Suhr and his staff were required to begin those proceedings by December 2013, a year after finding out about the messages. Goldsmith said a state law, the Peace Officers’ Bill of Rights, set a firm one-year deadline for taking actions against officers after police officials learn of their alleged misconduct.
The appeals court, however, said the one-year deadline was suspended, in this case, because of the federal criminal investigation, which ended only with the jury verdict in December 2014. Until then, the court said, federal prosecutors had directed the Police Department, which had cooperated with the investigation, to keep the records confidential.
The head of the police Internal Affairs Division, Lt. Jerome DeFilippo, who had initial custody of the messages, testified that a federal prosecutor threatened him with criminal charges if he released the information while the criminal case was pending, the court said.
In addition, Jenkins said in the ruling, the one-year deadline was legally suspended during the criminal investigation because the texts were part of that investigation.
Investigators knew that Furminger “conducted criminal activity via text messaging,” Jenkins said. Although the texts did not show any criminal conduct by the officers now facing disciplinary charges, he said, the offensive language of the messages showed “a comfort level with Furminger that went beyond merely a professional relationship and made them persons of interest to the corruption investigators,” justifying a delay in their cases.
Source: https://www.sfchronicle.com/bayarea/article/SFPD-s-texting-scandal-Court-rules-officers-12955853.php