S.F. to challenge ruling that voided discipline in police texting case

Former San Francisco police Sgt. Ian Furminger (middle) speaks to press in back of the Phillip Burton Federal Building & United States Courthouse in San Francisco, California on Monday, February 23, 2015. Furminger was found guilty of four felony charges. At right is his lawyer Brian Getz. less Former San Francisco police Sgt. Ian Furminger (middle) speaks to press in back of the Phillip Burton Federal Building & United States Courthouse in San Francisco, California on Monday, February 23, 2015. ... more Photo: Liz Hafalia, The Chronicle Photo: Liz Hafalia, The Chronicle Image 1 of / 1 Caption Close S.F. to challenge ruling that voided discipline in police texting case 1 / 1 Back to Gallery

San Francisco City Attorney Dennis Herrera filed notice Tuesday that he will appeal last month’s Superior Court decision allowing city police officers who allegedly exchanged racist and homophobic text messages in 2012 to keep their jobs and avoid discipline.

Herrera said in a statement that the Dec. 21 ruling that the Police Department had waited too long to take action on the misconduct allegations was a misinterpretation of the one-year statute of limitations set by the state’s Peace Officer Bill of Rights.

The department, Herrera said, had to wait to investigate the officers because of a federal corruption probe into former Sgt. Ian Furminger and several other officers. Officials had been instructed by federal investigators not to do anything that would alert Furminger that his text messages were being read.

The text messages, containing racist and antigay remarks calling African American people “monkeys” and encouraging the killing of “half-breeds,” raised issues of bias in the department and forced the district attorney’s office to re-evaluate thousands of cases handled by those officers. Thirteen cases have been dismissed.

The messages were discovered in 2012 by federal investigators looking into allegations that plainclothes San Francisco officers took and divvied up thousands of dollars found during searches of drug dealers and their homes.

Superior Court Judge Ernest Goldsmith said in his ruling that the messages had little to do with the federal allegations, and could have been handled separately by the Police Department.

Police Chief Greg Suhr moved to fire eight of the officers implicated in exchanging text messages and discipline six others in April 2015, about a month after the text messages surfaced in a court document. Suhr said he began the investigation into the text messages after Furminger was convicted in December 2014.

Goldsmith said the police force should have brought the matter to court if it had been instructed by federal investigators to hold off on disciplinary proceedings. Even if that was the case, the judge said, the department could have started the process when Furminger and the other officers were indicted in February 2014.

Herrera said the judge’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. 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.’”

After Suhr sought the firings, Officer Rain Daugherty filed a lawsuit against the city in May, citing the statute of limitations.

Other known officers implicated in exchanging the text messages were Capt. Jason Fox, Sgt. Michael Wibunsin, Officer Sean Doherty, Officer Richard Ruiz and Officer Angel Lozano.

Herrera said that if the ruling stands, it will “seriously jeopardize the ability of local and federal agencies to cooperate on future investigations into police misconduct in California.”

Alison Berry Wilkinson, Daugherty’s attorney, said Tuesday that Herrera is “recycling what they argued in front of Judge Goldsmith.”

“It was unsuccessful there and we don’t think it will be successful in front of a court of appeal,” she said.

Wilkinson said the city was also acting prematurely in filing a notice of appeal, as litigation in Superior Court is still ongoing.

“They obviously didn’t read the rules for the statute of limitations and they obviously haven’t read the rules for the court of appeal either,” she said.

Vivian Ho is a San Francisco Chronicle staff writer. E-mail: vho@sfchronicle.com Twitter: @VivianHo