Judge halts disciplinary case against officer in racist text scandal

Two accused cops seek to have charges against them dismissed

A dispute over whether San Francisco has run out of time to fire two of the officers implicated in exchanging racist and homophobic text messages could result in the cops avoiding discipline.

Sgt. Michael Wibunsin and Officer Angel Lozano have asked a judge to dismiss the disciplinary charges that the Department of Police Accountability filed against them last November over the bigoted text messages.

Wibunsin and Lozano were among the 14 officers allegedly connected with the text messages that federal authorities made public in early 2015 after discovering them during an investigation into police corruption.

At issue is whether a one-year statute of limitations had expired by the time the DPA sought to fire Wibunsin and Lozano.

Attorneys for the officers say The City missed the deadline. But the City Attorney’s Office argues that separate litigation over the text messages effectively stopped the clock from running for several years.

San Francisco Superior Court Judge Ethan Schulman appeared to side with the officers earlier this month when he temporarily blocked the Police Commission from holding a disciplinary hearing for Wibunsin.

Though he has not made a final decision in the case, Schulman indicated that he believed the limitations period had expired.

The DPA sought to fire the two officers after an apparent technicality prompted the San Francisco Police Department to withdraw its long-pending charges against them last May.

When former Police Chief Greg Suhr filed the initial charges in April 2015, attorneys for Wibunsin and Lozano argued that he did not sufficiently notify the officers about what discipline they were facing.

“The fact that the complaint was later withdrawn in light of a procedural defect does not call for tolling of the limitations period until DPA could file its complaint several years later,” Schulman wrote in his July 8 ruling, approving a preliminary injunction against The City.

“Having dismissed its initial disciplinary complaint, The City is not entitled to essentially refile its complaint through a different agency long after the limitations period ran,” Schulman continued.

The ruling marks the latest roadblock that city officials have faced while attempting to punish nine of the officers involved in the scandal, which plainly showed for many that racial bias existed within the SFPD.

The messages were discovered on the phone of a former police sergeant at the center of the corruption probe. The texts included the frequent use of the n-word, a homophobic slur and phrases such as “cross burning lowers blood pressure.”

Court records show that Wibunsin was one of the eight officers who anonymously joined a lawsuit filed by former Officer Rain Daugherty in May 2015 seeking to avoid discipline over the text messages.

As in the latest case, the officers also argued that the statute of limitations had expired before disciplinary charges were filed against them. A judge halted the administrative proceedings against the officers until he decided in their favor in December 2017.

But the City Attorney’s Office appealed the decision. In late May 2018, weeks after the SFPD withdrew its disciplinary charges against Wibunsin and Lozano over the procedural issue, a state appeals court overturned the decision.

All the while, the City Attorney’s Office argues that the clock was stopped for the DPA, as its investigators were barred from interviewing the officers during the litigation.

“We respectfully disagree with the judge’s decision on the preliminary injunction, and we’re weighing our options,” said John Cote, a spokesperson for the office. “Importantly, the judge has not yet decided the merits of this case. We intend to vigorously litigate this matter so there can be appropriate discipline.”

Attorneys for Wibunsin and Lozano did not respond to requests for comment.

City records show that the officers remain on the force.

Other officers named in connection with the scandal are Michael Robison, Richard Ruiz, Sean Doherty, Noel Schwab, Michael Celis and Capt. Jason Fox.

Many have since separated from the department.

mbarba@sfexaminer.com

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