A San Francisco police officer accused of fabricating a reason for arresting a man is back on patrol even after a federal judge tossed a case over his false testimony, the San Francisco Examiner has learned.
Officer Nicholas M. Buckley was placed on desk duty while awaiting the outcome of an administrative investigation after U.S. District Judge Charles Breyer found his March 2016 testimony in a federal gun case was “entirely” contradicted by surveillance video.
Buckley testified that a man named Brandon Simpson had his hands concealed as he walked away from an illegal dice game in the Tenderloin in December 2015, leading to his arrest for allegedly being a felon in possession of a firearm. But surveillance video recovered by the defense showed Simpson had his hands exposed and was even holding a water bottle, among other discrepancies.
The revelation prompted Breyer to dismiss the gun charge against Simpson and direct the U.S. Attorney’s Office to take appropriate action, saying he was “not enraged” but “deeply saddened” by the conduct.
“The worst thing in the world for any judge and any prosecutor is the conviction of an innocent person, or the conviction of a person based upon perjured testimony, because it goes to the very heart of a justice system, which to be successful must be accepted by the citizens or the population of any country,” Breyer said at the time. “And when that is brought into serious question, then the affront is to all of us.”
The case was sent to federal authorities in the Eastern District of California for a criminal investigation into the potential perjury, and to the San Francisco Police Department for administrative review.
Then last March, the SFPD transferred Buckley from his non-public contact position to Taraval Station, the department confirmed Wednesday. He was later transferred to Bayview Station where he has been on patrol making arrests, collecting evidence and taking incident reports since last October.
The U.S. Attorney’s Office for the Eastern District of California had closed its investigation into Buckley without bringing any charges against him, sources told the Examiner.
The results of the SFPD’s administrative investigation have not been disclosed.
Tony Montoya, president of the San Francisco Police Officers Association, said Buckley was “cleared of any allegations of dishonesty” both criminally and administratively, but declined to provide further details.
Buckley’s return to the field could cause problems for any prosecuting agency seeking to pursue a criminal case based on his word alone. If Buckley is needed to take the witness stand, issues with his previous testimony could force prosecutors to dismiss a case or decline to file it altogether.
Defense attorneys would otherwise be able to attack his credibility based on his prior conduct in federal court.
“There are lots of reasons why we might not be able to secure a conviction in a particular case,” District Attorney Chesa Boudin said. “We never want to be in a position where we have to dismiss a case we could otherwise prosecute because there’s a dirty cop in the middle of it.”
As of late 2019, the SFPD had 123 officers on a confidential list of cops whose checkered pasts could cause issues in court, including one member of the command staff and eight commissioned officers such as lieutenants and captains, the department said at the time.
Last June, Boudin rolled out a policy to address the issue by prohibiting his office from filing charges in any case that relies solely on the account of an officer with a known history of dishonesty or other types of misconduct. The policy is meant prevent defendants from being falsely accused.
Buckley’s reassignment also raises concerns about the extent to which the SFPD is holding officers accountable for alleged misconduct through its secretive Internal Affairs Unit, which is not required to release information about police discipline in most cases under state law.
Ellen Leonida, a former federal public defender who represented Simpson in the gun case, was stunned to learn that Buckley was back on duty.
“It’s just beyond my comprehension that he hasn’t been charged with a crime, much less that he’s out on the street still interacting with citizens,” said Leonida. “It’s just appalling that he’s allowed to still wear a badge.”
Leonida said Buckley’s testimony went beyond “exaggeration or misperception” and that the surveillance video was “irrefutable evidence” Buckley intentionally lied. To prove perjury, prosecutors have to show a person knowingly made a false statement under oath.
“He just made up an entire set of events that never occurred,” Leonida said. “What exactly does one have to do to get fired from the San Francisco Police Department? If this isn’t it, I just keep thinking about all the times that there wasn’t video evidence.”
Buckley joined the SFPD in May 2013 and is one of two officers on the force bearing the same name — the other is a sergeant who is not related to the case, department records show. He made $182,696 including benefits as of 2019, according to the web site Transparent California.
Buckley’s SFPOA-provided attorney, James Lassart, did not respond to requests for comment by press time.
Montoya, the police union head, said he supervised Buckley for a time at Mission Station before the Tenderloin incident and described Buckley as being an “ethical” police officer.
“He was a hardworking cop that just went out there and did his job well with pride and professional,” said Montoya, who is a police sergeant. “I would not be concerned supervising him in the field.”
The U.S. Attorney’s Office for the Eastern District of California, FBI Sacramento — which is believed to have conducted the criminal probe — and SFPD each declined to comment on the outcomes of their investigations.
But in a statement, Police Chief Bill Scott said “our internal discipline process holds officers accountable.”
Scott also said that independent authorities including a criminal grand jury and the District Attorney’s Office under former District Attorney George Gascon each reviewed Buckley’s testimony.
“These allegations have been thoroughly reviewed by various agencies outside the Department and the City and County of San Francisco,” Scott said. “After independently considering all the evidence relating to the 2015 incident, none of these reviews found a basis to pursue perjury charges against Officer Buckley.”
Scott said he stands by Buckley and the “multiple determinations by outside, independent reviews.”
“If we’re to affirm the principles of procedural and restorative justice for all, that must include our officers in discipline matters,” Scott said. “I have full confidence in Officer Buckley to serve with distinction in the San Francisco Police Department.”
Buckley’s testimony does not appear to have resulted in an investigation by the Department of Police Accountability.
The police watchdog can recommend discipline to the chief or Police Commission, but cannot begin a dishonesty investigation under the City Charter unless a complaint is filed or a case is referred by the SFPD, according to DPA Director Paul Henderson.
Under California law, agencies like the DPA and SFPD also have only one year to seek discipline against an officer from the time alleged misconduct is discovered. That clock is stopped if there is an ongoing criminal investigation or prosecution.
Court records from a separate civil lawsuit Simpson filed against the City and County of San Francisco show the limitations period didn’t run for the SFPD pending the outcome of the FBI investigation.
But that period had ended by the time the DPA received a complaint from the Public Defender’s Office about the matter in 2019, an attorney for the DPA wrote in response to the complaint.
The lack of clarity on the outcome of Buckley’s administrative investigation could feed into a broader conversation happening at the Police Commission, where Commissioner Cindy Elias has called for SFPD Internal Affairs to be more transparent with its disciplinary cases.
“It’s important to have transparency in all aspects of policing including discipline,” Elias said. “Having IA become more transparent is a good thing.”