SF Examiner file photoPolice Chief Greg Suhr was accused in a lawsuit of firing a department attorney in retaliation for her investing his history of misconduct with the force.

SFPD brass knew of bigoted texts in 2012 but took no action, attorney claims

Lawyers for seven current San Francisco police officers charged with sending racist and homophobic text messages stood before the Police Commission on Wednesday as the disciplinary process against their clients got underway.

Prior to Wednesday, some of the names of the officers were unknown. Facing discipline are Capt. Jason Fox, Sgt. Michael Winbunsin and officers Angel Lozano, Richard Ruiz, Sean Doherty, Rain Daugherty and Michael Celis. Openly gay Officer Michael Robison has resigned, along with Officer Noel Schwab.

The scandal over a handful of police officers caught sending racist and homophobic text messages from 2011 to 2012, emerged in a March filing in federal court in the case of former Sgt. Ian Furminger. Furminger, along with former Officer Edmond Robles, were convicted earlier this year in a federal corruption trial.

Police Chief Greg Suhr has recommended seven officers be fired and another two receive discipline including possible dismissal. All of the discipline will be decided by the Police Commission.

But one lawyer inside the proceedings said his client, Fox, and the other officers plan to challenge the Police Department, who he says knew about the text messages back in 2012 — not January, as the department has said publicly.

Michael Rains, who represents Fox, argues the Police Department has no right to take action now because the statute of limitations has run out. Rains claims the Police Department had a year after they received the text messages from the FBI to begin disciplinary actions, but did nothing.

“This is part of their attempt to mislead the public,” added Rains, who says the department is scapegoating his client and the other officers to cover up its inaction. “I really have serious concern about the department’s credibility for that reason alone.”

Rains says the Police Department argues it can still discipline officers over the texts because the criminal case from which the texts emerged had just begun in 2012.

The case against Fox — for which Suhr has requested his dismissal — includes one text message exchange with Furminger in August 2012, when Fox was Furminger’s lieutenant at the Mission Police Station, Rains said.

The exchange took place over one day and was about work assignments. Then Furminger sent a text disparaging black people.

Fox doesn’t even recall the message, said Rains, who noted that Fox replied 50 minutes later about another matter.

“Their argument is that Capt. Fox should have taken some kind of action to reprimand Furminger for the text,” said Rains, adding that no one should be punished for the messages they receive. “I know Fox’s communication was the most benign.”

Police brass say it found out about the texts from the federal government months before the March court filing made the texts public, and have since been investigating the incident. But Rains says his client received an internal affairs letter stating the department had the texts in 2012.

The justification for the department’s failure to act, Rains said, was that Suhr and his administration were “walled off” from the texts because of rules governing federal court proceedings.

The investigation into the text messages was complete April 3, and nine names were forwarded to the commission — all the officers involved were put on leave — but their names weren’t released until this week. Before the commission entered closed session Wednesday, Commissioner Petra DeJesus asked how such behavior could have gone on without anyone knowing.

“Somebody had to know what was going on,” DeJesus said.

The disciplinary process, which is not unlike a court hearing, will go on for some time.

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