S.F. cops who wrote racist text messages win court ruling

San Francisco police Sgt. Ian Furminger (left) speaks to press in back of the Phillip Burton Federal Building & United States Courthouse in San Francisco in February. Furminger was found guilty of felony corruption charges. At right is his lawyer Brian Getz. less San Francisco police Sgt. Ian Furminger (left) speaks to press in back of the Phillip Burton Federal Building & United States Courthouse in San Francisco in February. Furminger was found guilty of felony ... more Photo: Liz Hafalia, The Chronicle Photo: Liz Hafalia, The Chronicle Image 1 of / 3 Caption Close S.F. cops who wrote racist text messages win court ruling 1 / 3 Back to Gallery

The San Francisco police officers who exchanged racist and homophobic text messages in 2012 will be allowed to keep their jobs and avoid discipline, a Superior Court judge ruled Monday.

Police officials blew past the one-year statute of limitations set by the state’s Peace Officer Bill of Rights for any personnel investigation, Judge Ernest Goldsmith said, and waited too long to take action on the misconduct allegations that raised issues of bias in the department and forced the district attorney’s office to re-evaluate thousands of cases handled by those officers.

Goldsmith said Monday that he was upholding the ruling because the Peace Officer Bill of Rights, in particular the statute of limitations, exists to protect not just law enforcement, but the public.

“It is not in the public interest to let police misconduct charges languish,” he said. “The public has a right to have accusations against police officers be promptly adjudicated.”

City attorneys and police officials said they plan to appeal the decision, which has many upset over what they see as a free pass for bigoted behavior. The messages contained racist and antigay remarks calling African American people “monkeys” and encouraging the killing of “half-breeds.”

“For this judge to say he’s thinking of the interest of the public — is the public expected to go on with their business and pretend nothing ever happened?” said Sgt. Yulanda Williams, president of Officers for Justice, an organization representing African American and other nonwhite officers. “The citizens are still in a situation where they’re questioning whether or not they should embrace law enforcement or fear them. That’s wrong. We need to stop sweeping things under the carpet and deal with it.”

One of the texts referred to Williams as a “n— bitch.”

Gap in action

The text messages, discovered during a federal corruption probe against Sgt. Ian Furminger and several officers, surfaced in a court document filed in February 2014. Attorneys for the officers say the department learned about the texts in December 2012, when they were obtained in a search warrant, but it was not until April 2015 that Police Chief Greg Suhr moved to fire eight of the officers involved and to discipline the six others.

Officer Rain Daugherty filed a claim against the city in May along with eight unnamed officers identified in the texting, moving what would have been a disciplinary matter overseen by the Police Commission to Superior Court.

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

3 cops resigned

Three of the officers who Suhr recommended be fired — Michael Robison, Noel Schwab and Michael Celis — had resigned. After learning about the statute-of-limitations issue, Celis asked to be reinstated and, like the other officers, is still a member of the department.

Kenneth Walczak, an attorney for the city, maintained in court Monday that the Police Department could not act on the text messages without jeopardizing the federal corruption case against Furminger, who was sentenced in February to nearly four years in state prison for taking and dividing up thousands of dollars found during searches of drug dealers and their homes.

He said criminal investigations are fluid and subject to change, and at one point, federal investigators testified that the familiarity and comfort level expressed in those text messages “made us wonder if they were also involved in the criminal activity.”

But Goldsmith accused the city of “piggybacking” on the Furminger case, saying that the text messages were completely unrelated to the facts. Even so, Goldsmith said the Police Department could have begun a probe in February 2014, when Furminger and the other officers were indicted, but chose to wait until he was convicted.

“The department was aware of the allegations of misconduct,” said Alison Berry Wilkinson, Daugherty’s attorney, after Monday’s hearing. “They were aware of what transpired. And yet they specifically set that aside and did nothing for many years, waiting for the Furminger prosecution to complete, which is contrary to what their obligation was.”

Attorney Tony Brass, who is representing Celis, acknowledged outside court that “no one is celebrating a victory for this kind of misconduct.” He said, however, that none of their clients was accused of racism in the line of duty.

“The public has a right to have police officers not express themselves in this way and not think in this way — no one is saying differently,” Brass said. “The important thing is that these officers only texted that kind of material because that’s what their sergeant wanted. That was their sergeant’s way of communicating. That was his code to be in a club that officers had to be in if they were going to be successful.

“Ian Furminger was a police officer that was larger than life. Being in with him was important if one was going to be successful. It just shows the damage that someone like that can do to a police department.”

According to the district attorney’s office, 13 cases have been dismissed because of the officers’ involvement.

“The fact that San Francisco is forced to retain police officers that demonstrated explicit racism will have ramifications for the reputation of the department, the fair administration of justice, and the trust of the community SFPD serves,” said District Attorney George Gascón.

Furminger and Fox, the highest-ranking officer involved in the texting scandal, escaped discipline in a 2004 incident in which they allegedly shoved a man’s head against a urine-soaked wall while making antigay remarks. It was because of the same statute of limitations law behind Monday’s ruling that they were allowed to continue their careers.

Chief’s stance

Suhr contended after the ruling that he and his investigators did not fail in their obligation to investigate in a timely manner and that he intends to continue the officers’ suspensions through the appeals process. The officers were originally suspended without pay, but Goldsmith ruled in May that they be placed on paid leave.

“We’re confident in our position that we acted in a timely fashion and that the criminal case appropriately took precedent,” Suhr said. “Anybody capable of the reprehensive texts that these guys sent should not be police officers, and we will work for that to be the case.”

Police Commission President Suzy Loftus said that if the appeal is successful, the case would be returned to the commission for discipline. Mayor Ed Lee expects the chief and the city attorney to work toward filing an appeal.

“The mayor was disturbed at the hateful messages that were exchanged, and he believes that the conduct of these officers displays a bias that is incompatible with being a police officer in San Francisco, or anywhere else for that matter,” said Christine Falvey, a spokeswoman for the mayor. “Every officer in the San Francisco Police Department must be held to the highest standard of conduct.”

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