A California appeals court on Wednesday heard arguments over whether the San Francisco Police Department should be able to seek discipline against the officers caught sending racist text messages in a federal corruption probe.
A San Francisco Superior Court judge ruled in December 2015 that the SFPD had waited too long to punish or fire the officers for exchanging the text messages, prompting City Attorney Dennis Herrera to appeal the decision in January 2016 to the First District Court of Appeal in San Francisco.
Coupled with a series of controversial police shootings, the racist text message scandal led former SFPD Chief Greg Suhr to ask the U.S. Department of Justice to review the department. The review resulted in 272 recommendations on bias and other reforms that are still being implemented today.
The messages were discovered in a probe between the SFPD and the FBI into police misconduct that netted convictions against three officers at Mission Police Station including former Sgt. Ian Furminger. Sent between 2011 and 2012, the messages disparaged black people and included jokes about burning crosses.
In the ruling at issue, retired San Francisco Superior Court Judge Ernest H. Goldsmith found that SFPD should have initiated an investigation into the officers who sent the messages before Furminger’s conviction in December 2014 under a 1-year statute of limitations in California law on disciplining officers.
Goldsmith made the ruling in the case of Rain Daugherty, a San Francisco police officer who sued The City on behalf of himself and nine unnamed officers involved in the racist text message scandal who the SFPD sought to punish in January 2015, after Furminger’s conviction.
A San Francisco police lieutenant had first obtained the messages in December 2012. Goldsmith also found that the SFPD could have launched an administrative investigation when Furminger was indicted in February 2014.
On Wednesday, Deputy City Attorney Kenneth Walczak argued before the panel of three justices that SFPD had to keep the messages a secret in order to participate in the federal probe, citing a confidentiality agreement between the SFPD and the U.S. Attorney’s Office.
“Secrecy was paramount all the way through Furminger’s trial,” Walczak said. “The texts were kept secret to preserve the investigation.”
But Alison Berry Wilkinson, an attorney representing Daugherty and the unnamed officers, disputed that the federal agreement prevented the SFPD from disclosing the text messages and investigating the officers. Wilkinson said police investigators instead decided not to pursue disciplinary charges.
“The investigators who reviewed the text messages recognized while they used bad language, these were police officers who there is no evidence ever engaged in biased policing, or treated any member of the diverse population of San Francisco unfairly or unethically,” Wilkinson said outside the courtroom.
Walczak, of the City Attorney’s Office, said the ruling may have wide-ranging implications in California if it is not overturned.
“We are concerned that police departments will be unable to coordinate their investigations of corrupt cops with authorities and vise versa if this ruling is allowed to stand,” Walczak said outside the courtroom.
The Court of Appeal is expected to issue a decision within 90 days.