A San Francisco police officer who used excessive force, performed an improper pat search, and “misrepresented the truth,” may receive no more than a 30-day suspension without pay. The discipline for the officer’s partner, who also used excessive force, remains unknown.
Although neither the San Francisco Police Department nor the Department of Police Accountability would confirm the specific officers involved in the case, both the underlying circumstances and resulting charges closely match those of Officers Michael Marcic and Sterling Hayes.
The disciplinary recommendations were released earlier this month in the DPA’s 2019 Annual Report, which detailed findings and disciplinary recommendations for 260 police officers whom the DPA concluded had committed misconduct from June 2017 to December 2019.
According to the DPA, Marcic’s case is pending with the Police Commission, which adjudicates serious police misconduct. It’s far from certain that the commission will impose the full 30-day suspension — or rule that he deserves any discipline at all.
In June 2019, a Department of Police Accountability investigation concluded that Marcic “lied under oath” while testifying at a criminal trial, leading a judge to toss Marcic’s testimony because he had “concerns about Officer Marcic’s credibility.”
The judge’s disturbing conclusion stemmed from an incident in which Marcic and his partner Hayes stopped a Black man named Jeffery McElroy for riding his bicycle on the sidewalk near 16th and Mission streets in June, 2018. Marcic and Hayes searched McElroy and found a gun, prompting McElroy to run away and lead the officers on a foot chase that ended with Marcic beating McElroy in the head until the officer’s knuckles were bloody and his punching hand was fractured.
Following an investigation, the Department of Police Accountability discovered numerous policy violations by Marcic, including that he conducted a pat search of McElroy without justification, failed to activate his body-worn camera at the beginning of the interaction, used excessive force, and “misrepresented the truth” both in his police report and under oath during McElroy’s criminal trial.
The DPA found that Hayes should also be disciplined for excessive force — beating McElroy’s legs with a baton — and failing to properly log McElroy’s bicycle as evidence.
There was insufficient evidence to charge either officer with “inappropriate behavior,” based on the eyewitness accounts that the two officers fist-bumped and laughed after they beat McElroy.
The incident was so grievous that McElroy’s public defender filed a complaint with the DPA months afterward. The DPA affirmed almost all of the lawyer’s claims, including Marcic’s lies, excessive force, and improper pat search. But it could not sustain the lawyer’s allegations Marcic acted improperly as he searched McElroy’s backpack and falsely arrested him.
Describing the incident and discipline in broad terms in its 2019 annual report, the DPA said that “Officer 1,” presumably Marcic, faces charges of “conducting a pat search without justification,” failing to comply with the department’s body-worn camera policy, “misrepresenting the truth,” and excessive force. For that, the DPA recommended a 30-day suspension. The Police Commission has yet to rule on the matter.
“Officer 2,” presumably Hayes, faced charges of conducting a pat search without justification, “failing to properly process property,” and using excessive force. The DPA recommended a 1-day suspension for this officer and the chief’s decision on whether to impose it remains “unknown.”
The DPA’s description of the case against Officer 1 and Officer 2 aligns with its findings against Marcic and Hayes.
“An attorney made numerous allegations against the officers who arrested his client. The DPA found that the search of the client’s personal property and arrest were proper conduct. In addition, the DPA found an inappropriate behavior allegation to be unfounded. The DPA, however, found that one officer conducted a pat search without justification, used excessive force, misrepresented the truth, and failed to comply with DGO 10.11, Body Worn Cameras. The DPA also found that another officer used excessive force and failed to properly process the client’s property.”
Sarah Hawkins, chief of staff at the DPA, declined to confirm the discipline outlined in the annual report specifically concerned Marcic and Hayes.
The law “precludes DPA from making comments that would tie a specific officer to a specific allegation of misconduct,” she said in an email. “While SB 1421 allows people to make public records requests for certain categories of cases, DPA can only respond to those requests by producing responsive records; it does not change the prohibition on making comments tying a specific officer to a specific allegation of misconduct.”
Likewise, San Francisco Police Department spokesman Sgt. Michael Andraychak declined to answer questions relating to Marcic and Hayes’ discipline, saying it’s a “personnel matter.” Chief Bill Scott may have recommended more than a 30-day suspension, though he has only gone above the DPA’s recommendation in 2 percent of cases in the last two and half years.
Regardless, Andraychak confirmed that both officers remain with the SFPD and are assigned to “public contact positions.”
In December 2019, only months after the conclusion of the DPA’s investigation, Hayes was one of two officers to shoot Jamaica Hampton, a man who attacked Hayes and his partner with a glass bottle on 23rd and Mission streets. Hampton’s leg was amputated as a result of the incident.
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