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San Francisco Chronicle - CA,
24 February 2008

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Court may put police disciplin

The state Supreme Court will hear arguments next month in a case that could scuttle dozens of police misconduct allegations against San Francisco officers now facing accusations ranging from an unnecessary force killing to making videos denounced as racist, sexist and homophobic by city officials.

At issue is how a state law governing police officer rights is being implemented by the Los Angeles Police Department and, by extension, San Francisco's, with its similar police disciplinary system.

So far, three state appellate court rulings have sided with Los Angeles officers, who said their rights were violated when they were not told of the specific penalty they faced when charged with misconduct.

The courts have tossed out their discipline as a result, putting as many as 30 similar San Francisco cases at risk.

"This is a potential tragedy for police accountability," said Police Commissioner Joe Alioto Veronese.

Mark Schlosberg, a police practices expert with the ACLU, called the prospect of the high court upholding the appellate court rulings "very troubling."

"The potential impact ranges from a whole bunch of cases being dismissed to some other outcome," he said. "But we just don't know."

Among the San Francisco cases at risk is one that resulted from the officer-involved shooting of 17-year-old Sheila Detoy in 1998.

Another involves an officer who was dismissed in October 2005 after being found guilty of lying in his police report account of his having shattered the elbow of an Iraq war protester.

Still another concerns charges against seven officers accused for their alleged roles in the infamous Bayview Station videos that were denounced by the mayor and police chief as patently offensive.

Los Angeles authorities argued that their system, like San Francisco's, provided officers with sufficient notice of charges and potential discipline when the officers were informed that their cases were being sent to hearings before the chief for less serious cases or to a panel empowered to impose more severe punishments, including dismissal, for more serious cases.

But the lower courts found that framework did not provide sufficiently specific information and that officers must be told within a year of any alleged misconduct both the charges they faced and the potential penalty.

Not notifying officers of the potential penalty, the courts found in the Los Angeles cases, voided the entire case.

If the high court rules on behalf of the officer in the case before it, as many as a dozen fired Los Angeles police officers could get their jobs back because the city failed to notify them of proposed discipline beforehand.

A high court ruling upholding the appellate courts could affect not only cases where discipline has been imposed but also pending charges older than a year where officers were not informed of potential discipline. Last month, San Francisco officials realized that as many as 30 pending cases here could be undermined when another appellate court ordered the LAPD to reinstate a fired officer based on the notice of discipline issue.

The city attorney's spokesman Matt Dorsey would say only that San Francisco is monitoring the high court case. The Police Department, meanwhile, said it is "well aware" of the legal issues involved but said it would be "inappropriate to speculate on the effect of legal issues still under consideration by the courts."

Unlike Los Angeles, San Francisco has a sizable backlog of cases, some stretching back a decade. "Clearly, we will comply with the court's interpretation," said Joyce Hicks, head of the Office of Citizen Complaints, the San Francisco civilian watchdog agency, which has pursued several of the at-risk cases. "We are assessing the cases to see - if the Supreme Court upholds the lower court cases - what will survive."

Hicks said her agency has generated at least 14 cases involving 26 officers with disciplinary charges before the commission.

One of those stems from the May 13, 1998, shooting of 17-year-old Sheila Detoy, a passenger in a fleeing car. Detoy was shot and killed by then-Officer Greg Breslin, who is now a sergeant and on medical leave from the department.

The case against Breslin and three other officers has been mired in court battles for years, mostly over interpretations of the statute of limitations related to delays in bringing charges in the case. Some of the accused officers have retired.

Another officer who could escape disciplinary charges is the lone officer still on the force following the infamous off-duty street brawl over steak fajitas in November 2002.

Matthew Tonsing, currently on medical leave, is charged with misconduct after being cleared of criminal charges stemming from the incident, which also involved the rookie officer son of then-Assistant Chief Alex Fagan.

The high court's decision, if in favor of the disciplined officer, could mean also that San Francisco officers already found guilty by the Police Commission and disciplined could have a basis to sue to have suspensions or dismissals overturned.

One of them is Anthony Nelson, who was fired in 2005 after the commission cleared him of excessive force but determined that he filed an "intentionally inaccurate" report on a March 2003 confrontation with a war protester. Nelson had claimed the demonstrator was threatening him with a protest sign.

Diane Marchant, the attorney for three officers who have won favorable rulings in Los Angeles after suing the department, said the courts, starting in late 2006, found that officers had the right to know the specifics of potential discipline.

"They (the court) felt," she said, "that you (officers) need to know how hard it is you have to fight" based on that information.

Gary Delagnes, president of the Police Officers Association, said San Francisco officials knew about the court rulings but failed to act for a year.

"We have told the department on numerous occasions that they were violating" court rulings, he said. "Now they are finally going to be called to task on it. We don't want bad cops on the street as much as anybody else, but what are we supposed to do?"

The first appellate court ruling that set a notification requirement for charges and potential discipline came in December 2006, a year after the case of the infamous videos created for a Bayview Station party that were denounced as offensive by the mayor and police chief in December 2005. Chief Heather Fong called the videos "a dark day" in the history of the department.

In the same month of the court ruling, seven officers were charged with misconduct in the video case, but they weren't informed of possible discipline, according to attorney Lidia Stiglich, who represents officers fighting the charges.

Stiglich said the Police Commission ignored warnings about the issue.

"They have been put on notice," she said. "I don't think the Police Commission has ever let the law interfere with its decision making."

Veronese said the commission learned of the issue only this month.

In any event, he said, "There is no question that it's the people of San Francisco, in the end, who are the ones that suffer by the city family's inability to remove police officers."

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Article sourced from

San Francisco Chronicle - CA,24 February 2008

Court may put police disciplin

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San Francisco Chronicle - CA,
24 February 2008