Nobody is disputing that the cops who sent racist texts committed misconduct. But they stand to never be punished. That’s the law — and that’s how it was designed to work.
Earlier this month, the San Francisco Police Department announced that the state Attorney General, and not the federal Department of Justice, would now be overseeing its internal reforms, which is a bit like getting a new sponsor in your 12-step program. Let’s call it “Accountability Anonymous.”
Good thing, too. The SFPD has had an accountability problem for God knows how long, and its former sponsor, the DOJ, fell off the wagon last fall. That’s when Attorney General Jeff Sessions pulled out, saying he wanted to respect “local control and accountability.”
But, during last week’s upbeat press conference, an elephant lurked in the room. Actually, several elephants, all of them drawing generous taxpayer-funded salaries and potentially texting questionable material into the ether: It’s the text-messaging cops themselves, none of whom has truly been held accountable for his actions. While their vile behavior forced the SFPD to, essentially, check itself into rehab, the offenders themselves made out just fine.
A judge found that the police department had sat on the matter far longer than the statute of limitations allowed — and, additionally, he overturned the department’s decree that the offending cops be suspended without pay (thereby removing any incentive for them to allow this matter to be adjudicated quickly).
In short: Those cops triggered the reform process the department insists it’ll carry out. But they also revealed that this and every city can only reform its police department to the extent that law enforcement’s most reactionary labor and political organizations see fit. The SFPD’s continued inability to fire these officers — or even dock their pay — indicates how hollow and limited attempts at “police reform” are, and figure to be for the near future. If not the far future.
“All the world knows they engaged in misconduct. Even their own lawyers,” sums up retired Judge LaDoris Cordell. “But what happens? Nothing. Everybody walks away. There is something very wrong with this picture.”
But that’s how the picture was framed. That’s how this picture was designed to look.
In 2015, former SFPD sergeant Ian Furminger was sentenced to three and a half years in prison. This represented the culmination of of a long-running federal investigation of the former Mission Station sergeant, aided by SFPD’s own personnel, and Furminger was found guilty of leading a ring of out-and-out criminals within the force who robbed and stole from suspects and other powerless people whose words would never be believed over those of a sworn officer of the law.
Furminger also had less-than-enlightened views on social issues, and it was an unrelated series of racist-in-any-century messages exchanged between Furminger and other officers, unearthed from the sergeant’s phone during the course of the criminal investigation, that led to the Textgate scandal.
And here’s where things get complicated. Protocols were put in place to keep the discoveries of the federal probe from seeping out mid-investigation. But Judge Ernest Goldsmith ruled in 2015 that the SFPD had still dropped the ball. Or, rather, sat on the ball.
The judge found that the one-year statute of limitations for completing an investigation of alleged police misconduct began ticking in 2012, when members of the SFPD’s Internal Affairs division became aware of these text messages. What’s more, rules regarding pausing that timeframe concerning material unearthed in criminal investigations was irrelevant, he ruled, as these texts were an unrelated byproduct.
The City Attorney will make its case before the Court of Appeals sometime this year. More than 100 pages of tightly coiled legal arguments have already been submitted to the court in a case where very precise and nuanced delineations will determine just when the clock started ticking on that one-year statute of limitations.
But let’s take a step back here. Because it’s important to simply note that, if you’re a cop, you have a one-year statute of limitations for being an egregious racist — an astounding carve-out enjoyed by no other profession. If a ring of lawyers or journalists or short-order cooks were proven to be unabashed racists — in writing, no less — they would be out on the street and unemployable. But not cops. Not the people we provide with guns and batons and a mandate to protect us, and the ability to deny us our liberties.
And this is due to Public Safety Officers Procedural Bill of Rights, the 1976 Legislative act signed into law by Gov. Jerry Brown — and, in the end, throttling any real attempts at police reform.
If your humble narrator was a plagiarist — if he paid off or shook down his sources or made stuff up or stole company property or insisted on stocking the office fridge with Schlitz — he’d be sacked. What’s more, whoever next sought to employ him would be able to learn about all of this. And, presumably, not employ him, because to do so would be a liability and subject the general public to harm.
But not if he committed the equivalent misdeeds as a cop carrying a badge and a gun. Disciplinary matters and findings of misconduct are sealed for cops in this state. What’s more, Judge Cordell points out, they must be periodically destroyed every several years.
It’s all part of a sweet deal cops ensured themselves more than 40 years ago when they applied their lobbying muscle to the Legislature. “Nobody else who commits misconduct gets a one-year statute of limitations,” Cordell notes. “This is highly unusual.”
But that’s the law. And that’s why even reform-minded legal figures like Cordell and Oakland attorney Jim Chanin, who has sued local police departments countless times, are inclined to think Judge Goldsmith got it right. “It’s hard to say who’s at fault. But this appears to have been a sloppy job. And the lesson of this is, if you’re dealing with something this outrageous, you better make sure you don’t miss the statute of limitations,” Chanin said. “Look, I’ve spent 35 years chasing around horrible cops who did horrible things. I don’t regret a minute of it. But as I get older, I realize that what’s really important is to have supervisory and command responsibility. Institutional accountability is as important as individual acts.”
But that’s exactly what the SFPD has always lacked. That’s what got them into this mess. But let’s say you wanted some accountability moving forward. Cordell was the former independent police auditor for the city of San Jose. She says that, if Judge Goldsmith’s ruling is accurate, the SFPD officers who decided to sit on these text messages for years may, themselves, be guilty of misconduct. They should be held accountable, Cordell says.
But then she laughs. They won’t be. Can’t be. Because their alleged misconduct is also protected by the one-year statute of limitations within the Public Safety Officers Procedural Bill of Rights.
In a recent interview, Chief Bill Scott told Mission Local that “there has to be an accountability to behaviors, and with accountability comes changes in the culture.”
But his cops — and every cop in this state — are protected from accountability. Protected by California law and a bevy of well-paid attorneys who know it well.
Six of the texting officers, Scott said, have left. The rest are caught up in litigation. And, as noted earlier, they’re getting paid and enjoying their health benefits and have no incentive to speed along a process that may, ultimately, lead to the severance of compensation and benefits. The city’s disgrace is a slow-moving one and a lingering stain on department morale.
But this was long-coming. The Public Safety Officers Procedural Bill of Rights provides anonymity for the officers involved. But it’s clear these were not youthful cops corrupted by Ian Furminger. Two were veteran cops who are now on Worker’s Comp; another was a 21-year department veteran who bemoaned that his Textgate suspension froze him out of a $2,000-a-month overtime assignment. Rain Daughtery, who has sued the city, was a 17-year veteran. Michael Robison, who resigned following his exposure in the scandal, was a 23-year-veteran.
The names that have been revealed in court papers or reported in the media also include Sgt. Michael Wibunsin, Officer Richard Ruiz, Officer Sean Doherty, Officer Angel Lozano, Officer Noel Schwab, and Officer Michael Celis and Captain Jason Fox.
Fox, in 2014, earned nearly $204,000 and, like most of the rest, he’s been on paid leave for years now while this all sorts itself out. Or doesn’t.
“We would never allow a teacher or a doctor or a judge to continue working in a profession where they have so pronounced their racism,” Cordell says. “But we are allowing it in the police department because of this rule. They get a pass. Forever.”