Daugherty v. City & Cnty. of S.F., A145863

Decision Date30 May 2018
Docket NumberA145863,A147385
Citation24 Cal.App.5th 928,234 Cal.Rptr.3d 773
CourtCalifornia Court of Appeals Court of Appeals
Parties Rain O. DAUGHERTY et al., Plaintiffs and Respondents, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants.

Dennis J. Herrera, City Attorney, Katharine Hobin Porter, Chief Labor Attorney, Kenneth M. Walczak, Deputy City Attorney, for Appellants.

Jones & Mayer, Martin J. Mayer, James R. Touchstone, Fullerton, and Paul R. Coble, Los Angeles, for California State Sheriffs’ Association and California Police Chiefs Association, as Amici Curiae on behalf of Appellants.

Richard Doyle, City Attorney (San José), Nora Frimann, Assistant City Attorney and Kathryn J. Zoglin, Senior Deputy City Attorney, for League of California Cities and California State Association of Counties, as Amici Curiae on behalf of Appellants.

Berry Wilkinson Law Group and Alison Berry Wilkinson, San Rafael; Moskovitz Appellate Team and Myron Moskovitz, for Respondent Rain O. Daugherty.

Law Offices of Anthony J. Brass and Anthony J. Brass, San Francisco, for Respondent IAD 2015-0036.

Rains Lucia Stern, Rains Lucia Stern St. Phalle & Silver, Michael L. Rains, Pleasant Hill, for Respondent IAD 2015-0076.

Law Offices of Christopher Shea and Christopher Shea, for Respondents IAD 2015-0078, IAD 2015-0079, and IAD 2015-0082.

Murphy, Pearson, Bradley & Feeney, James A. Lassart, for Respondent IAD 2015-0083.

Rains Lucia Stern, Rains Lucia Stern St. Phalle & Silver, Julia Fox, Pleasant Hill, for Respondent IAD 2015-0084.

Burrell Law Office and Scott C. Burrell, for Respondent IAD 2015-0087.

Jenkins, J.

Under the Public Safety Officers Procedural Bill of Rights Act (POBRA) ( Gov. Code, § 3300 et seq. ),1 no punitive action may be taken against a public safety officer for any alleged act, omission, or other misconduct unless the investigation is completed within one year of "the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct," subject to certain statutory exceptions. (§ 3304, subd. (d)(1).) One such exception provides that the one-year time period is tolled while the act, omission, or other alleged misconduct is also the "subject" of a pending criminal investigation or prosecution. (Id ., subd. (d)(2)(A).)

This case arises out of a criminal corruption investigation of officers in the San Francisco Police Department (SFPD). The investigation began in 2011 and was led by the United States Attorney's Office (USAO), with the assistance of select members of the criminal unit of SFPD's Internal Affairs Division (IAD-Crim). During the course of the investigation, search warrants of the cellphone records of former SFPD Sergeant Ian Furminger—the central figure in the corruption scheme—led to the discovery in about December 2012 of racist, sexist, homophobic, and anti-Semitic text messages between Furminger and nine SFPD officers.2

The criminal case proceeded to trial and resulted in a verdict against Furminger and a codefendant for conspiracy to commit theft, conspiracy against civil rights and wire fraud. Three days after the verdict, on December 8, 2014, the text messages were released by the USAO to the administrative unit of SFPD's Internal Affairs Division (IAD-Admin). After IAD-Admin completed its investigation of the text messages, the chief of police issued disciplinary charges against respondents in April 2015.

While the disciplinary proceedings were pending, respondent Rain O. Daugherty went to court and filed a petition for writ of mandate and complaint for extraordinary relief, seeking to rescind the disciplinary charges on the grounds that they were untimely. The remaining respondents joined in Daugherty's petition. The trial court granted the writ petition and complaint, finding the one-year statute of limitations began to accrue in December 2012 when the misconduct was discovered, and thus, the investigation of respondents' misconduct was not completed in a timely manner.

For the reasons discussed below, we conclude the one-year statute of limitations did not begin to run until the text messages were released by the USAO to IAD-Admin, because before then, the alleged misconduct was not and could not be discovered by the "person[s] authorized to initiate an investigation" for purposes of section 3304, subdivision (d)(1). We alternatively conclude the one-year statute of limitations was tolled until the verdict in the criminal corruption case because the text messages were the "subject" of the criminal investigation within the meaning of section 3304, subdivision (d)(2)(A). Thus, the April 2015 notices of discipline were timely. Because the trial court's contrary conclusions were based on errors of law or were not supported by substantial evidence, we reverse.

BACKGROUND

In 2011, San Francisco Public Defender Jeffrey Adachi accused SFPD officers in the "plainclothes" units at Mission and Southern Stations of conducting illegal searches of residential units in hotels, stealing the residents' property, and falsifying police reports regarding the legality of the searches. In response to these accusations, IAD-Crim opened criminal investigations into the alleged conduct.

SFPD's Internal Affairs Division is separated into two fully autonomous units: IAD-Crim and IAD-Admin. Each unit is supervised by a separately assigned police lieutenant. From February 2011 to June 2013, the supervising lieutenant of IAD-Crim was Lieutenant Jerome DeFilippo. He was succeeded by Lieutenant Michelle Jean, who supervised IAD-Crim from June 2013 to June 2015. At all relevant times, the supervising lieutenant of IAD-Admin was Robert Yick. Both the IAD-Crim and the IAD-Admin lieutenants report to the captain of the Risk Management Office (Risk Management), who reports to the deputy chief. The deputy chief oversees the day-to-day operations of the Office of the Chief of Staff and serves as the link between the chief of police and various units throughout SFPD. Investigations into potential criminal conduct by SFPD officers are handled by IAD-Crim, while disciplinary investigations are the purview of IAD-Admin. Where it is necessary to preserve confidentiality or protect the integrity of an ongoing criminal investigation, SFPD imposes a "wall" between IAD-Crim and IAD-Admin, preventing any dissemination of criminal evidence to the disciplinary investigators, or to the remainder of SFPD.

The USAO initiated its own criminal investigation of the plainclothes officers at Mission and Southern Stations, led by Assistant United States Attorney (AUSA) Andrew Caputo. In June 2011, the USAO and FBI called a meeting with select members of SFPD. In attendance at the June 14, 2011 meeting were AUSA Caputo; special agents from the FBI; SFPD Deputy Chief of Staff Lyn Tomioka; Risk Management Captain Greg McEachern; and members of IAD-Crim, including Lieutenant DeFilippo, Inspector Darcy Keller, Sergeant Joseph Minner, and Officer Al Duarte. No officers assigned to IAD-Admin were present at this meeting.

One topic discussed at the June 2011 meeting was whether the federal authorities and SFPD should conduct parallel criminal investigations or a single investigation into the conduct of the officers at Mission Station. Deputy Chief Tomioka agreed, on behalf of Chief of Police Gregory Suhr and SFPD, that the USAO would lead a single investigation into Mission Station plainclothes officers assisted by select members of IAD-Crim. Deputy Chief Tomioka also agreed, as requested by the USAO, that IAD-Crim officers would maintain confidentiality throughout the Mission investigation. Deputy Chief Tomioka instructed the members of IAD-Crim who were present at the meeting to comply with the USAO's instructions. The USAO also required SFPD to identify the highest ranking person who would be privy to information regarding the investigation and to ensure that this designated person—the "firewall" or "gatekeeper"—would not disclose information about the case to anyone above his or her rank or to anyone outside the group of investigators working on the case. Deputy Chief Tomioka selected Lieutenant DeFilippo for this role. Under Lieutenant DeFilippo's direction, a select number of IAD-Crim members were assigned to work on the USAO's Mission investigation and were not permitted to disclose information about the investigation to anyone outside of the authorized group. AUSA Caputo also required all agents, IAD-Crim officers and anyone working on the Mission investigation to sign a nondisclosure agreement, known as a "6(e) agreement,"3 before they could become privy to the federal government's grand jury evidence.

Lieutenant Jean took over command of IAD-Crim in June 2013, and she was briefed on the USAO's information-sharing restrictions. Lieutenant Jean indicated, at the time of the briefing, that she understood she "was the last line of defense, so to speak, the wall between [IAD-Crim] and the department" and was not "at liberty to speak about anything regarding the ongoing criminal investigation."

At all times during the USAO's Mission Station corruption investigation and prosecution, the federal authorities retained exclusive authority to direct the course of the investigation and make the decisions about what criminal charges to pursue and against whom. Furthermore, all evidentiary materials discovered during the course of the USAO's investigation, as well as materials obtained or possessed by IAD-Crim during the investigation, belonged to the federal authorities.

Discovery of the Text Messaging Misconduct

Federal agents and IAD-Crim officers assigned to the criminal corruption investigation pursued dozens of leads, including reports that police officers had paid informants for information with stolen cars and attempted to sell drugs. Further investigation of the allegations of a confidential informant revealed that Furminger was at the center of a network of corrupt and criminal activities, and the...

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