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SFPD racist texts: City attorney to challenge court decision

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(Mike Koozmin/S.F. Examiner file)

San Francisco City Attorney Dennis Herrera said Tuesday he will challenge a state court’s decision allowing San Francisco police officers who sent racist and homophobic text messages to escape punishment.

A San Francisco Superior Court judge ruled Dec. 21 the officers implicated in the text message scandal could not be disciplined by the department because police failed to bring misconduct charges against them within the statute of limitations.

But Herrera, who filed a notice of appeal Tuesday, said not overturning the decision could “seriously jeopardize” law enforcement’s ability to investigate and prosecute police misconduct statewide.

The judge’s decision centered around whether an investigation should have been launched when then-police Lt. Jerome DeFilippo, now captain of Southern Station, knew about the text messages in December 2012. That was two years before the texts were made public during the federal corruption trial of Sgt. Ian Furminger.

Last month, Judge Ernest H. Goldsmith decided DeFilippo should have initiated an investigation into the text messages once prosecutors indicted Furminger, because it would not have interfered with the federal investigation. Herrera’s office is now set to argue that doing so would have made DeFilippo subject to federal prosecution for interfering with the case.

“The decision held that a San Francisco police lieutenant was actually obliged to stop assisting with the Furminger investigation, turn over text messages obtained by search warrant from Furminger’s phone, and initiate an administrative investigation into other officers’ misconduct — even in the face of sworn testimony by the U.S. Attorney’s Office that such an illegal use of confidential grand jury material would subject that lieutenant to criminal prosecution,” Herrera said in a press release.

“The ruling’s holding that the text messages were not the subject of a federal prosecution ignored the unchallenged and explicit testimony of the federal prosecutors themselves,” Herrera said.

“And the ruling’s arbitrary choice of the indictment as the point at which confidential federal evidence became usable for local employment discipline ignores federal law, investigative norms, and the plain language of the Peace Officer Bill of Rights itself, which tolls the statute of limitations while a ‘criminal prosecution is pending.'”

The officers in question were brought up on disciplinary charges earlier this year after the messages were revealed. Since then, Officer Rain Daugherty argued in a case before Goldsmith on behalf of himself and nine other unnamed officers that The City failed to file charges when the texts were first discovered years ago.

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