San Francisco City Attorney Dennis Herrera today said he will appeal a court ruling that found the city's Police Department could not fire officers who traded racist, homophobic texts because the department waited too long to act.
Herrera filed notice Tuesday with the California Court of Appeal challenging the Dec. 21 San Francisco Superior Court decision, which he said would hurt public confidence in the Police Department and set a precedent that could harm future investigations into police misconduct.
The text messages, sent and received in 2011 and 2012, involved racial and homophobic slurs, jokes about killing black people and references to "white power."
The messages were uncovered during a federal investigation into misconduct allegations against Sgt. Ian Furminger dating back to 2009. They were made public in March in filings by federal prosecutors opposing Furminger's motion to be released on bail while appealing his conviction for stealing from suspects.
The officers involved included Furminger and others identified by their lawyers as Rain Daugherty, Michael Celis and Noel Schwab, as well as Michael Robison, who resigned shortly after the revelation.
The investigation into the messages later expanded to include as many as 14 officers and police Chief Greg Suhr vowed to seek termination for seven of the officers involved.
The city served the officers with a notice of disciplinary action in April. Last month's ruling, however, found that the city had known about the text messages since 2012 and had exceeded the one-year statute of limitations for disciplinary action.
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In a statement accompanying the notice of appeal today, the city attorney's office argued that the department officials in possession of the texts were cooperating with the criminal investigation and were legally correct to wait until the conclusion of that investigation before handing them over to internal affairs investigators.
The department concluded its administrative investigation against the officers in about five months, well within the statute of limitations, the city attorney's office argues.
"If affirmed, this decision would seriously jeopardize the ability of local and federal agencies to cooperate in future investigations into police misconduct in California," Herrera said in a statement. "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."
Alison Berry Wilkinson, the attorney who filed the challenge to the disciplinary action on behalf of Daugherty, said today the city's appeal is premature because the Superior Court has not ruled on all the causes of action.
Nine other officers joined the case in addition to Daugherty. Not all of them have been publicly identified, Wilkinson said.
A decision is still pending on whether to award the plaintiffs civil penalties amounting to $25,000 for each violation of their civil rights and attorneys fees, she said.
"It's an unfortunate waste of taxpayers' money, since the judge's decision was well-founded," Wilkinson said of the appeal.
