oman [ara TROT ATONE RB Ba FRET ‘ALISON BERRY WILKINSON (SBN 135890) 4040 Civ Center Drive, Sute 200, San Rafoel,CA 94903 FI D 415 259.6638 877.259.3762 Court reumenev0: Pet voner Rain O. DaughEAy™ Seay oes ‘nem COURT OF Caro, qpunrr SAN FRANCISCO] Tectaonneas GUO MEATS Street MAY 11 2015 use 0 San Francisco, CA 94102-4514 KOI UAT Civic Center Courthouse a Caen bens RAINS! DAUGHERTY v. CITY OF SAN FRANCISCO, etal, | civit CASE COVER SHEET Complex Cave Designation SEE 7 I) untimited — LJ) Limited oO TO vin Fo15-5143 02 fae ane counter Jinder | OPFet5~9e es emarded Semandedis | Filed with fet appearence by defendent rowed $26,000) $25,000 ess)| (Cal. Res of Coun. le 3402) | oer Tims 16 below TUSt be compleied (00 instructions 6a pape 2 [F Gheckone box below fore case type Tat Dost doscbes is case Ate Tot convact Provislonally Comex Chil LUtgation ‘Ado (2) FET Seecn ot contacivarany (0s) (Ca: los of Cour ues 3400-3400) Uninsured motorist (4 [5 Rute 3.740 collections (08) — Antinustreade regulation 03) ther PUPOAND (arson Injury Property ter cotectons (8) ‘constveton aoc (10) ‘amagentongtl Death) Tor Insurance covers (3) ass tort (4) Aabestos (4) TD oter conurnet 37) 8 Securtis tigation (28) Proc aby (24) eal Property Evento (0) Meroe mepeseton (45) (Ey Eminent domsintrverse Insurance coverage claims acting ttm the (Other PUPDMWD (23) condemnation (14) above listed provisionally complex case Non-PUPOIWD {Other) Tort 1 wirenghst eviction (33) ‘types 4t) Business lovunter business practca (07) (_] ter reat propery (26) Enforcement of Judgment 2) citron 08) Unlewtul Detainee (1 Entorcament of judgment (20) Oatamaton (13) ‘Commerc (1 Iiscolaneous Cl Complaint Fraud (16) CO roan tact property (19) ‘omer compli (rt spacog above) 2) Proesinal regence (25) Judea Review imecuihsoos uimpetuen [El ore narevetnan so Ey sett Mare Peon wnance@%) Employment Paton re: baton award (31) =] Perera and coer soewmnes( ‘Wrong termination (28) LZ] wr trance (02) [1 otmr ation rot sect toe one employment (1) 1) nec jus coven 9) 2 thscese T_Jis [wT is not — complex under rule 3.400 of the Califomia Rules of Cour. ifthe case is complex, mark the actors requiring exceptional judicial management 8.) Large rumber of seperately represented partes 4. [—_] Large number of witnesses ».L) Extensive motion practice raising dificult ornovel_ ¢. [_] Coordination with retated actions pending in one or more courts ‘issues that will be time-consuming to resolve in other counties, stotes, or countries, or in 8 federal court [J Substantial amount of documentary evidence __f, [_] Substantial postjudgment judicial supervision Remedies sought (check all that apply): a[37] monetary b.[7) nonmonetary; dectaratory or injunctive relief. [7 punitive Number of causes of action (specify): 3 Triscawe Clin Le) enol a des acon ut ee ate ay known sted as Bee May 11, 2015 RESON BERRY WILKINSON » NOTICE + Pan mt es over seat the fa paper led ne senor proceeding (exc! al Gains cass or cases ea nda the robte Caza, Fan Cos, Weta and nts Co) (Sa les af Souk le 2200) Foe wey aut ewrlene «Fists er het aden any cover net cures a cout ue {ih ene comple under tle Sa so oft aoa ls Cour YoU See copy fe cve sheet on al theres ine ston crpococing « etn elections eae dr i 3740 8 complex ce, hs oversee be wed fo sacl poses on "Eteteewelacaane CIVIL CASE COVER SHEET BeesLe eee : {ilison Berry Wilkineon, SBN 135890 eu oan ifkinson | Law Grouy 2 {oivcine Center Drive, Suite 200 may 112015 at San UI 3 | Telephone/Facsimile: 415.259.6638 CLERK O1 4 | Email: alison@berrywilkinson.com BY: ol 5 | Attorneys for Plaintiff-Petitioner RAIN 0. DAUGHERTY 6 1 8 9 SUPERIOR COURT FOR THE STATE OF CALIFONIA 10 IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO u s RAIN O. DAUGHERTY, OPF-15. 2 CASE NO. 5-5 14502 Plaintiff Petitioner, 3 VERIFIED PETITION FOR WRIT OF wl’ MANDATE, AND STAY APPLICATION; COMPLAINT FOR EXTRAORDINARY 15 | CITY AND cou) AN RELIEF, and CIVIL PENALTY FRANCISCO, #5 POLI — 16 | DEPARTMENT, POLICE [Code of Civ, Proc. §1085; Government 17 | COMMISSION Code §§ 3304, 3309.5] 18 Defendants- Repose, BY FAX 21 INTRODUCTION 2 San Francisco Police Officer RAIN O, DAUGHERTY brings this action to enforce 23 | the one-year statute of limitations contained in Government Code section 3304(4)(1), 24 | which specifically states: "No punitive action ... shall be undertaken for any act, 25 | omission, or other allegation of misconduct if the investigation of the allegation is not 26 | completed within one year of the public agency's discovery by a person authorized to 27 | initiate an investigation of the allegation of an act, omission, or other misconduct.” 28 ‘VERIFLED WRIT PETITION AND COMPLAINT FOR EXTRA ORDINARY RELIEF & CIVIL PENALTY eughero ly of San Francie etalCe raw ren 10 u 12 B 4 15 16 7 18 19 20 a 24 25 27 28 On April 2, 2015, the SAN FRANCISCO POLICE DEPARTMENT filed charges with the SAN FRANCISCO POLICE COMMISSION alleging that various text messages, exchanged between DAUGHERTY and his direct supervisor from October 2011 and August 2012 constituted Conduct Unbecoming an Officer in violation of Rule 9 of Department General Order 2.01. On May 4, 2015, DAUGHERTY was placed on an indefinite, unpaid suspension pending pending adjudication of those Commission cherges. ‘The Internal A fiairs Division of the SAN FRANCISCO POLICE DEPARTMENT ‘was in possession of the text message content by December 2012, but affirmatively chose to wait until January 2015 to initiate any investigation and bring charges of misconduct against DAUGHERTY, as well as at least nine (9) other officers. This unexcused delay of over two years requires that the CITY OF SAN FRANCISCO, its POLICE DEPARTMENT, and its POLICE COMMISSION, forfeit their right to pursue or impose any punitive action against any of the involved officers, including DAUGHERTY. "PARTIES Plaintiff Petitioner RAIN O. DAUGHERTY hereby alleges: 1, Plaintiff-Petitioner RAIN O. DAUGHERTY (hereafter "DAUGHERTY" or Petitioner") is, and at all times was, a police officer employed by Respondent CITY AND COUNTY OF SAN FRANCISCO and assigned to its POLICE DEPARTMENT, At the time of the incidents alleged herein, DAUGHERTY was a seventeen (17) year law enforcement veteran, having served the CITY AND COUNTY OF SAN FRANCISCO for ‘two (2) years as a deputy sheriff, and fifteen years as a police officer. 2. Petitioner DAUGHERTY has served the SAN FRANCISCO POLICE DEPARTMENT with honor and distinction, and has an unsullied record. Never before has he been accused of mistreating any person, citizen, colleague or superior officer, He has also never been accused of teking any action toward any person because of racial bias, or homophobia, 2 "VERIFIED WATT PETTTION AND COMPLAINT VOR BX TRAORDINARY RELIEF & CIVIL PENALTY Deaghery = Oly ofSan Franco ofCe aan nen 10 oo 12 3 “4 15 16 7 18 19 2 21 22 23 m4 25 6 28 3. Defendant-Respondent CITY AND COUNTY OF SAN FRANCISCO (hereafter "CITY" is, and at all times herein relevant was, a Charter City, organized and operating under the California Constitution and the laws of the State of California, 4, Defendani-Respondent SAN FRANCISCO POLICE DEPARTMENT (hereafter "POLICE DEPARTMENT" or DEPARTMENT") is, and all times herein relevant was, a part of the executive branch of CITY government, established pursuant to Charter Section 4.127 5. Defendant-Respondent SAN FRANCISCO POLICE COMMISSION (hereafter "POLICE COMMISSION" or "COMMISSION") is, and at all times herein relevant was, a part of the executive branch of CITY government, established pursuant to San Francisco Charter section 4.109, 6. By bringing this action to enforce his legal rights, DAUGHERTY does not waive the confidentiality privilege provided under Penal Code section 832.7 for any of his personnel records, including the misconduct investigation and Commission charges at issue herein, DAUGHERTY hereby provides notice that he intends to seek an Order maintaining under seal and preventing public disclosure of these privileged documents, including any and all information regarding his confidential personnel file, the pending Commission charges, and all documents, materials, reports, arguments, and assertions related thereto. References to the underlying facts contained herein are presented in a summary fashion to balance the need to preserve this statutory confidentiality while complying with the Court rules, and does not constitute a waiver of the confidentiality provided by Penal Code section 832.7 for the information gathered or relied upon during the course of the disciplinary proceeding. FACTS AND ALLEGATIONS 7. At all times herein pertinent, Petitioner DAUGHERTY held peace officer status pursuant to Penal Code section 830.1, and, as such, was and is entitled to the rights 3 ‘VERIFIED WATT PETITION AND COMPLAINT FOREXTRAORDINARY RELIEF & CIVIL PENALTY Daaghery Clef San Francia eatCea aunaeun 10 u 12 B 14 15 16 7 18 19 20 21 22 23 25 26 27 28 and protections afforded pursuant to the Public Safety Officers’ Procedural Bill of Rights Act (hereafter "POBR" or "the Act"), Government Code section 3300 et seq. 8, This action seeks to enforce the mandates contained in the POBR, which "is, concemed primarily with affording individual police officers certain procedural rights during the course of proceedings which might lead to the imposition of penalties against them.” (Los Angeles Police Protective League v. City of Los Angeles (1995) 35 Cal. App, 4th 1535, 1540 [eiting White v. County of Sacramento (1982) 32 Cal. 34 676},) As noted by the California Supreme Court, the “[p}rotection of peace officers from abusive or arbitrary treatment in their employment is the essence of the Act.” (Pasadena Police Officers Assn. v, City of Pasadena (1990) 51 Cal.3d 564, 572. ) 9. The POBR affords public safety officers the right not to be prosecuted for stale claims. The POBR contains a one-year statute of limitations, which serves the important public purpose of encouraging prompt investigation of allegations that maintain the efficiency and integrity of the police force (Jackson v. City of Los Angeles (2003) 111 Cal. App. 4th 899, 909), and further requires the “diligent prosecution of known claims so that police officers receive prompt notice of claims against them, can prepare a fair defense on the merits, can marshal the facts while memories and evidence are fresh.” (Jd.)| 10, The POBR statute of limitations expressly states that "no punitive action ... shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency's discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct." (Gov't C. § 3304, emphasis added.) 11, Petitioner is informed and believes, and thereupon alleges, that in connection with the criminal prosecution of former San Francisco Police Sergeant Ian Furminger (hereafter "Furminger"), search warrants were executed on or around December 17, 2011 and obtained text messages from his personal cellular telephone. A "YERTHTED WAHT PETITION AND COMPLAINT FOR EXTRA ORDINARY RELIEF@ CIVIL PENALTY Daugherty» Ory of Sen Franca etal.war anaeene 10 u 12 13 14 15 16 7 18 19 20 a 22 23 25 26 2 28 12. Petitioner is further informed and believes, and thereupon alleges, that in connection with the criminal prosecution of Furminger another search warrant was approved on August 13, 2012 to obtain additional text messages from Furminger’s personal cellular telephone. 13, Included among the text messages secured by the search warrants in 2011 and 2012 were communications between Furminger and Petitioner DAUGHERTY, as well as at least nine (9) other officers. ‘The content of all those text messages was in the possession of the SAN FRANCISCO POLICE DEPARTMENT by December 2012. 14, DAUGHERTY was a direct subordinate of Furminger, Out of the thousands of text messages obtained from Furminger’s cell phone, only a limited, number of sporadic but grossly inappropriate texts were exchanged with DAUGHERTY over a period of ten-months. DAUGHERTY is deeply ashamed by what he wrote, such texts being unreflective of his strong commitment to exemplary community policing of all San Francisco's diverse citizens. 15, Based on his reputation and established record for fair, unbiased, honest, and ethical policing, DAUGHERTY was assigned to positions where he was trusted with assisting in employee development as well as confidential and sensitive information, including assignments to Police Academy, to Staff Services, as the Medical Liaison, as well as to the Police Department's Legal Division. Those assignments were made at or around the time the POLICE DEPARTMENT was in possession of the Furminger text exchanges. 16. Ato around the time the text content was in the possession of the POLICE DEPARTMENT, Chief Gregory P. Suhr issued a SAN FRANCISCO POLICE, DEPARTMENT Unit Citation to Officer DAUGHERTY for exceptional performance, further demonstrating that those texts did not reflect his true character or style of policing. ‘That citation, which was issued on December 21, 2012, stated: "On behalf of the entire “S ‘VERIFIED WRET PETITION AND COMPLAINT FOR EXTRAORDINARY HELI & CIVILPENALTY Daughery Cy ef Sam Franco etalDepartment, I wish to extend my sincere and profound gratitude for the time, effort, professionalism, and exemplary performance that you have put forth." 17. DAUGHERTY 's record is replete with additional and numerous citations from his supervisors for outstanding police work he has performed, his dedication to duty, his keen eye for crime, his teamwork, skilled investigative techniques, professionalism, as well as his commitment to eradicating crime, keeping the community safe, and improving the quality of life for those who reside in the districts he worked, These records further amply demonstrate that the words used in his text exchanges were not as a true reflection of his opinions, character, or views, and his commitment to fair and unbiased policing. 18, ‘The CITY OF SAN FRANCISCO, and its POLICE DEPARTMENT were in possession of all of the text messages exchanged between Furminger and DAUGHERTY, as well as the nine (9) other involved officers, by December 2012. In correspondence dated April 10, 2015, the DEPARTMENT acknowledged: "all of the text ‘messages were in our possession by December 2012," and that Internal Affairs purposefully and knowingly waited until December 2014 before referring the text ‘messages to the administrative bureau, 19, Despite the text messages being in the possession of persons authorized to Cer anon 10 uw 12 13 14 15 16 7 18 19 20 21 initiate an investigation since December 2012, no investigations were initiated of DAUGHERTY or any other officer were initiated until in or around January 2015, nearly ‘two years later, well outside the statute of limitations contained in Government Code section 3304, 20. The POLICE DEPARTMENT filed charges with the SAN FRANCISCO POLICE COMMISSION recommending DAUGHERTY’ termination on April 2, 2015, ‘more than two years after persons authorized to initiate an investigation were in 23 24 25 26 27 28 possession of the text messages. 21, The POLICE DEPARTMENT also filed charges with the SAN FRANCISCO POLICE COMMISSION on or around April 2, 2015 against at least six (6) + ‘VERIFIED WAT PETITION AND COMPLATNT FOW EXTRAORDINARY RELIEF & CIVIL PENALTY Daughery Cty ef San Franco ta.Cea aunanen 10 u 12 B 14 15 16 7 18 19 20 2 2 23 25 26 27 28 other officers more than two years after persons authorized to an investigation were in possession of the text messages. 22, The CITY and its POLICE DEPARTMENT placed DAUGHERTY on unpaid leave pending the POLICE COMMISSION CHARGES on May 4, 2015. 23. Anumber of the officers who were charged with misconduct as a result of the text messages exchanged with Furminger and that were referred to the SAN FRANCISCO POLICE COMMISSION, including DAUGHERTY, were placed on indefinite, unpaid leave by the POLICE DEPARTMENT with no right of appeal for that punitive action. 24, The POLICE DEPARTMENT further issued punitive action against at least three (3) other officers directly at the Chief's level more than two years after persons authorized to initiate an investigation were in possession of the text messages. 25, Petitioner is informed and believes, and thereupon alleges, that the following SAN FRANCISCO POLICE DEPARTMENT Internal Affairs Case Numbers involve allegations of improper texting based on information that was in the possession of individuals who were authorized to initiate an investigation, all of which resulted in some form of punitive action recommended or imposed: IAD Case No. 2015-0036, 2015-0038, 2015-0076, 2015-0078, 2015-0079, 2015-0080, 2015-0082, 2015-0083, 2015-0084, and 2015-0087, all involve allegations of a like or similar nature to those involving DAUGHERTY, including reliance upon text messages that were in the possession of the POLICE DEPARTMENT by December 2012. FIRST CAUSE OF ACTION PETITION FOR WRIT OF MANDATE [Code of Civil Procedure Section 1085] 26. Petitioner DAUGHERTY re-alleges and hereby incorporates by reference all preceding paragraphs, inclusive, as though fully set forth at length in this cause of action. J "VERIIED WRET PETHTION AND COMPLAINT FOR EXTRA ORDINARY RELIEF & CIVIL PENALTY Deusherdn Cly of San Franca, eawear aneen 10 12 13 14 15 16 7 18 19 a 22 23 25 26 27 28 27. The POBR grants to peace officers a series of rights, including the right to have misconduct investigations completed within one-year of the agency's discovery of the allegation, Government Code section 3304(d)(1) states, in pertinent part: [Jo punitive action ... shall be undertaken for any act, ‘omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency's discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct. ... In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed discipline by a Letter of Intent or Notice of Adverse Action articulating the discipline that year .... 28. Since December 2012, the various text messages exchanged between former Sergeant Ian Furminger and DAUGHERTY have been in the possession of the SAN FRANCISCO POLICE DEPARTMENT by persons authorized to initiate an investigation into whether the content amount to misconduct, 29. No investigation was initiated into any of the text messages involving DAUGHERTY until neatly two years later, in or around January 2015. 30. No disciplinary recommendations were made related to those text messages and no charges were filed with the POLICE COMMISSION against DAUGHERTY until April 2, 2015. 31. Punitive action, as that term is defined by Government Code section 3303, ‘was taken against DAUGHERTY on May 4, 2015, when he was placed on indefinite unpaid leave pending hearings before the POLICE COMMISSION. 32, The current charges pending before the POLICE COMISSION are well outside the one-year statute of limitations contained in Government Code section 3304, Although the statutory scheme provides a series of exceptions to the one-year time Jimitation in subsection (4)(2), none of those exceptions are applicable because: & | VERaTED WRIT PETITION AND COMPLAINT FOW EXTRAORDINARY RELIEF @ CVILPENALY ——] Danghery Cy of San Froncec, talCer aun 10 12 B 14 15 16 Ww 18 19 20 an 22 23 24 27 28 a. DAUGHERTY’s exchange of text messages with Furminger was never the subject of a criminal investigation or criminal prosecution as required by subsection (4)(2)(a); b. Respondents did not obtain a written waiver from DAUGHERTY as required by subsection (4)(2)(b); ¢. The investigation into DAUGHERTY 's exchange of text messages with Furminger was not multijurisdictional but, instead, was solely conducted by| the CITY OF SAN FRANCISCO and its POLICE DEPARTMENT; d, The CITY and its POLICE DEPARTMENT only interviewed one (1) employee in connection with its investigation into DAUGHERTY's exchange of text messages with Furminger, and so it neither involved multiple employees nor required a reasonable extension as required by subsection (4)(2)(@); ¢, DAUGHERTY was neither incapacitated nor unavailable as required by subsection (d)(2\(e); £. The investigation did not involve a matter in civil litigation as required by subsection (4)(2)(f); g, The complainant in this case was not a criminal defendant as required by subsection (d)(2)(g); and h, The investigation did not involve an allegation of workers' compensation fraud as required by subsection (4)(2)(h). 33. Atal times herein pertinent, Respondents CITY OF SAN FRANCISCO and its POLICE DEPARTMENT had a clear, present, and ministerial duty to afford DAUGHERTY all the rights and privileges provided by the Public Safety Officers’ Procedural Bill of Rights Act, Goverment Code section 3300 et seq., and Government Code section 3304. Specifically, Goverment Code section 3309.5(a) makes it unlawful for any public safety department to deny or refuse to any public safety officer the rights o- ‘VERIFIED WAIT PETITION AND COMPLAINT FOR EXTRAORDINARY RELIEV® CIVIL PENALTY Daugherty Cy of Sn Francs, abCwm ranueoene 10 12 1B 4 15 16 7 18 19 20 21 22 23 24 25 26 27 28 and protections guaranteed by the statute of limitations contained in Government Code section 3304(4)(1). 34, tall times herein pertinent, Respondents CITY OF SAN FRANCISCO and its POLICE DEPARTMENT were able to perform the duties mentioned above, 35, Respondents CITY OF SAN FRANCISCO and its POLICE DEPARTMENT failed to perform the ministerial duties compelled by Government Code section 3304 when it initiated the investigation into DAUGHERTY 's exchange of text ‘messages with former Sergeant Furminger in or around January 2015, when it issued charges of misconduct on April 2, 2015, and when it placed him on indefinite unpaid leave effective May 4, 2015, 36. DAUGHERTY has no plain, speedy, and adequate remedy in the ordinary course of law, other than the relief sought in this Petition to halt and cease the disciplinary proceedings: a, DAUGHERTY has requested multiple times that the CITY and its POLICE DEPARTMENT cease and desist the actions it has initiated in violation of Government Code section 3304, to no avail; b, The internal administrative remedy is inadequate because CITY, its POLICE DEPARTMENT, and the POLICE COMMISSION have refused to provide, require, or order adequate and sufficient discovery for DAUGHERTY to fully present his 3304 defense; ¢. Resort to the administrative appeal process before the POLICE COMMISSION would be futile; 4. DAUGHERTY cannot put a value on the opportunity to have strict compliance with Government Code section 3304; ¢. By his unlawfal placement on indefinite unpaid suspension, DAUGHERTY will lose the medical benefits provided by and through the CITY for his on- going medical conditions, as well as work related injuries; -10- "VERIFIED WATT FETTTION AND COMPLAINT FOW EXTRAORDINARY RELIEF & CIVIL PENALTY Daugherty» Cy of San Franco etoCa raueeon 10 12 1B 4 15 16 7 18 19 20 21 23 24 25 27 28 £ No appeal is provided for his placement on indefinite unpaid suspension; and 8 Money damages cannot recompense DAUGHERTY for the injuries that will result from the failure of the CITY and its POLICE DEPARTMENT to adhere to its obligations under Government Code section 3304 ‘WHEREFORE, DAUGHERTY prays for the relief set forth below. SECOND CAUSE OF ACTION COMPLAINT FOR EXTRAORDINARY RELIEF [Government Code section 3309.5(4)(1)] 37. Petitioner DAUGHERTY re-alleges and hereby incorporates by reference all preceding paragraphs, inclusive, as though fully set forth at length in this cause of action, 38. Government Code section 3309.5(a) makes it unlawful for any public safety department to deny or refuse as to any public safety officer the rights and protections guaranteed by the statute of limitations contained in Government Code section 3304(d)(1). 39. | Government Code section 3309,5(c) gives this Court initial jurisdiction over any proceeding brought by a public safety officer against any public safety department for alleged violations of the statute of limitations contained in Government Code section 3304(d)(1). 40. Government Code section 3309.5(d)(1) requires this Court "render appropriate injunctive or other extraordinary relief to remedy" a violation of the statute of limitations contained in Government Code section 3304(d)(1), including, but not limited to, the granting of a temporary restraining order, preliminary injunction, or permanent injunction prohibiting the public safety department from taking any punitive action” in violation of the Act. By and through this action, Petitioner expressly requests a stay of all proceedings presently pending before the SAN FRANCISCO POLICE DEPARTMENT and the POLICE COMMISSION related to IAD Case No. 2015-0036, 2015-0038, 2015- “lle “VERIFIED WRIT PETITION AND COMPLAINT FON EXTRAORDINARY RELIEF & CIVIL PENALTY Daughery » Cy of Sn Fronlce, eatCaer nuer ene 10 2 13 4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 0076, 2015-0078, 2015-0079, 2015-0080, 2015-0082, 2015-0083, 2015-0084, and 2015- 0087, until such time as this action is fully resolved. 41. Government Code section 3309,5(4)(1) requires this Court render appropriate relief "to prevent future violations of a like or similar nature," which includes any relief necessary to prevent similar violations of Government Code section 3304(4) in the following like or similar cases, all of which resulted in some form of punitive action recommended or imposed based on the text messages that were in the possession of the POLICE DEPARTMENT in or around December 2012; IAD Case No. 2015-0036, 2015- (0038, 2015-0076, 2015-0078, 2015-0079, 2015-0080, 2015-0082, 2015-0083, 2015-0084, and 2015-0087, WHEREFORE, DAUGHERTY prays for the relief set forth below. ‘THIRD CAUSE OF ACTION COMPLAINT FOR CIVIL PENALTY [Government Code section 3309.5(¢)) 42, Petitioner DAUGHERTY re-alleges and hereby incorporates by reference all preceding paragraphs, inclusive, as though fully set forth at length in this cause of action. 43, Government Code section 3309.5(c) provides that sanctions may issue upon a finding "that a public safety department, its employees, agents, or assigns "maliciously violated” the Public Safety Officers Procedural Bill of Rights Act "with the intent to injure" a public safety officer, then a civil penalty "not to exceed twenty-five thousand dollars ($25,000)" can be awarded plus reasonable attomeys fees and actual damages. 44, Despite repeatedly being put on notice as to their duties an obligations under Government Code section 3304(d)(1) by DAUGHERTY, as well as by the subject officers in IAD Case No. 2015-0036, 2015-0038, 2015-0076, 2015-0078, 2015-0079, 2015-0080, 2015-0082, 2015-0083, 2015-0084, and 2015-0087, Respondents have nonetheless knowingly and purposefully acted in disregard of their obligations, thereby knowingly <2 "VERIFIED WA0T PETITION AND COMPLAINT FOR EXTRAORDINARY RELIEF @ CIVIL PENALTY Daugherty» Cy of San Franco et obCems anne ene 10 12 13 4 15 16 7 18 19 20 21 22 23 24 25 26 27 28 subjecting DAUGHERTY and others to punitive action as well as the necessity and expense of defending against these stale and barred claims, 45. Respondents have maliciously violated the rights of DAUGHERTY, as well as the subject officers in JAD Case No, 2015-0036, 2015-0038, 2015-0076, 2015-0078, 2015-0079, 2015-0080, 2015-0082, 2015-0083, 2015-0084, and 2015-0087, by pursuing, and/or imposing punitive action after one year from the date of Respondents’ discovery of the alleged misconduct in December 2012 despite repeated objections to the investigation and proceedings as barred by Government Code section 3304. 46. Respondents' actions were with the intent to injure the reputation of DAUGHERTY, as well as the subject officers in IAD Case No. 2015-0036, 2015-0038, 2015-0076, 2015-0078, 2015-0079, 2015-0080, 2015-0082, 2015-0083, 2015-0084, and 2015-0087, cause financial harm to each, and inflict other harm upon them. 47. DAUGHERTY, along with other of the subjeot officers in IAD Case No. 2015-0036, 2015-0038, 2015-0076, 2015-0078, 2015-0079, 2015-0080, 2015-0082, 2015- (0083, 2015-0084, and 2015-0087 have filed claims pursuant to the Government Tort Claims Act as required by Lozada v. City and County of San Francisco (2006) 145 Cal. App. 4th 1139, WHEREFORE, DAUGHERTY prays for the relief set forth below. PRAYER WHEREFORE, Petitioner RAIN DAUGHERTY, on his behalf and on behalf of others like or similar cases as authorized by Government Code section 3309.5(d)(1), prays: 1, That the Court issue a peremptory writ of mandate in the first instance commanding Respondents to comply with the requirements of Government Code section 3304, “13 ‘VERIFIED WRMT PETITION AND COMPLAINT FOR EXTRAORDINARY RELIEF & CIVIL PENALTY auphero ly of Son Francia, et a.Car aunenun 10 u 12 B 14 15 16 7 18 19 a 23 24 25 26 27 28 2, ‘That the Court issue a stay of all proceedings related to the text messages that were alleged to have been initiated in violation of Government 3304 that are presently pending before the SAN FRANCSICO POLICE DEPARTMENT and the POLICE COMMISSION. 3. As to Petitioner DAUGHERTY, for a peremptory writ of mandate pursuant to Code of Civil Procedure section 1085 prohibiting the the CITY OF SAN FRANCISCO, its POLICE DEPARTMENT, its POLICE COMMISSION, and all its agents, servants, employees and all persons acting under in concert with, or for them from doing any act in| violation of Government Code section 3304, and commanding that they do as follows: a Rescind all charges filed against DAUGHERTY in connection with POLICE COMMISSION Case No, ALW- IAD 2015-0038, including, but not limited to, the charges filed on April 2, 2015 and the First Amended Charges filed on April 17, 2015; Take no further action with regard to the charges filed against DAUGHERTY in connection with POLICE COMMISSION Case No. ALW- IAD 2015-0038, including, but not limited to, the charges filed on April 2, 2015 and the First Amended Charges filed on April 17, 2015; ‘Not impose or take any other further action related to the text messages obtained ftom former Sergeant Ian Furminger's cell phone that were in the POLICE DEPARTMENT'S possession in or before December 2012; ‘Withdraw, all Commission Charges filed in connection with POLICE COMMISSION Case No. ALW- TAD 2015-0038 against DAUGHERTY (including, but not limited to, the charges filed on April 2, 2015 and the First Amended Charges filed on April 17, 2015), and take no further action in connection therewith; “14 "VERIFTED WAIT PETITION AND COMPLAINT FOR EXTRAORDINARY RELIEF & CIVIL PENALTY Daugher iy of San Francisco etewer an ren 10 12 B 4 15 16 17 18 19 20 21 2 23 24 25 26 28 ¢. Remove, and purge any and all documents supporting or related to POLICE COMMISSION Case No. ALW-IAD 2015-0038 from any and all files; f. Remove and purge any investigation reports, memoranda, or other documents or materials referencing or related in any way to the text, messages between DAUGHERTY and Furminger that were in the POLICE DEPARTMENT's possession as of December 2012; g. Require that any and all sustained findings referencing or related in any ‘way to the text messages between DAUGHERTY and Furminger that were in the POLICE DEPARTMENT'S possession as of December 2012 be removed and purged from DAUGHERTY 's personnel file as well as any other filed used by the CITY OF SAN FRANCISCO, its POLICE DEPARTMENT, and/or its POLICE COMMISSION; h. Rescind the order placing DAUGHERTY on indefinite unpaid leave effective May 4, 2015; and i, Require that DAUGHERTY be made whole for any and all incidental damages suffered as a consequence of the violation of Government Code section 3304. 4, For extraordinary relief under Government Code section 3309.5(d)(1) to remedy the violation of Government Code section 3304 enjoining the CITY OF SAN FRANCISCO, its POLICE DEPARTMENT, and the POLICE COMMISSION from taking any punitive action against Petitioner DAUGHERTY and all other public safety officers in a like or similar position, including, but not limited to, the subject officers in TAD Case No. 2015-0036, 2015-0038, 2015-0076, 2015-0078, 2015-0079, 2015-0080, 2015-0082, 2015-0083, 2015-0084, and 2015-0087; 5, For extraordinary relief under Government Code section 3309.5(d)(1) for Petitioner DAUGHERTY and all other public safety officers in a like or similar position, -1s- "VERTED WITT PETITION AND COMPLAINT FOR EXTRAORDINARY RELIEFS CIVIL PENALTY Daughery Cy ofS France, eatComoran een 10 rt 12 13 14 15 16 7 18 19 20 a 2 23 24 25 26 21 28 including, but not limited to, the subject officers in IAD Case No. 2015-0036, 2015- 0038, 2015-0076, 2015-0078, 2015-0079, 2015-0080, 2015-0082, 2015-0083, 2015- 0084, and 2015-0087, which orders the CITY OF SAN FRANCISCO, its POLICE DEPARTMENT, and the POLICE COMMISSION, as follows: Rescind all charges filed with POLICE COMMISSION, and take no further action in connection therewith; Rescind any punitive actions imposed on these subject officers; Rescind any orders placing these subject officers on indefinite unpaid leave; Not impose or take any other further action related to the text messages, obtained from former Sergeant Ian Furminger's cell phone that were in the POLICE DEPARTMENT’ possession in or before December 2012; Remove, and purge all any and all documents supporting or related to these investigations from any and all files; Remove and purge any investigation reports, memoranda, or other documents or materials referencing or related in any way to the text messages with Furminger that were in the POLICE DEPARTMENT's possession as of December 2012; ‘Require that any and all sustained findings referencing or related in any way to the text messages with Furminger that were in the POLICE DEPARTMENT’s possession as of December 2012 be removed and purged from each subject public safety officer’s personnel file as well as any other filed used by the CITY OF SAN FRANCISCO, its POLICE DEPARTMENT, andior its POLICE COMMISSION; and ‘Require that each subject public safety officer be made whole for any and all incidental damages suffered as a consequence of the violation of Government Code section 3304. -16- “VERIFTED WATT PETITION AND COMPLANGT POR EXTWA ORDINARY RELIEF & CIVIL PENALTY eanghery City of Sn FranciscoCaer aunaeun 10 n 12 1 15 16 WW 18 19 20 2 22 23 24 25 26 2 28 6. Fora finding under Government Code section 3309.5(e) that the CITY OF SAN FRANCISCO and its POLICE DEPARTMENT maliciously violated the rights of Petitioner DAUGHERTY and all other public safety officers in a like or similar position, including, but not limited to, the subject officers in IAD Case No. 2015-0036, 2015- 0038, 2015-0076, 2015-0078, 2015-0079, 2015-0080, 2015-0082, 2015-0083, 2015- 0084, and 2015-0087, with intent to injure, and award a civil penalty not to exceed ‘twenty-five thousand dollars ($25,000) for each public safety officer whose rights were violated and to whom the protections of Government Code section 3304 were not provided, as well as actual damages and reasonable attorneys fees; 7. For other damages as permitted by law; 8. For costs of suit herein; and 9. For such other and further relief as the Court may deem just and proper. Dated: Jf may Du” Respectfully submitted, Berry | Wilkinson | Law Group TH] Attorneys for Petitioner RAIN O. DAUGHERTY -17- ‘VERIFIED WRIT FETITION AND COMPLAINT FOR EXTRAORDINARY RELIEF & CIVIL PENALTY Deuphery» Cl of San Frenlce, eaVERIFICATION 1, RAIN O, DAUGHERTY, am the Petitioner/Plaintiff fn the instant action, and have read the VERIFIED PETITION FOR WRIT OF MANDATE, AND STAY APPLICATION; COMPLAINT FOR EXTRAORDINARY RELIEF, and CIVIL PENALTY filed here and know its contents. The facts stated therein are truc and within my personal knowledge, except as to those matters stated on information and belief and as to those, I believe them to be true. declare under penalty of perjury under the laws of the State of California tht the foregoing is trac and correct. Executed this //, day of May 2015 in San Francisco, California. wer ane ene Rain O. Daugherty -18- “ERTHTED WRUCPETITION AND COMPTAINT FOR ERTRAOHDN AR ERESFRCTVIL PRATT SSCS Dasphar Ci of Sox Prone eaSUMMONS sola pan use Beta Conrey (CITACION JUDICIAL) NOTICE TO DEFENDANT: AVISO AL DEMANPADO® of -Sarnd Frewnais CO,Sind Fie wt, SA Pencil e i Rolie Dep AATaEwT Cod OW Fhmciace Pl YOU ARE BEING SUED BY PLAINTIFF: {LO ESTA DEMANDANDO EL DEMANDANTE): RAIN O. DAUGHERTY : sUM-10 'HOTIGEI Vou have bean ed. The cout may dese agalnt You without your Bang heard ules you respond wih SO Gays: Read the Womalion below "You have 30 CALENDAR DAYS afer his summons and lage popars are served on you ofl awit response she cout and have 3 copy serve onthe pati Aleta o phone cal il ne prefect you. Your rita response must be ht proper lgal form f you wat the cout het your ‘ase, Thare may be court form tht you can Use for yout egponee. YoU can ines court ore ard oro Information ate Callie Cours ‘ria Sala Cartar (wa. courtiiaca gowaa), your county law vary, rte courthouse nearest you. Ifyou cant pay th fg fee, 33k ‘he cout rk for afew wav farm. you dono fla Your Fespenge on Ue, you may los the cace by default, and your wages, money, end propery ‘ay b taken wahout ure warring fom the cout "Ther we other legal equemans. Vou may want focal an atlomey sight sway. Iyou do nol know an atlorey, you may want to call an atornoy referral sence. you cant ford an attorney, you maybe able fo ee lgal serves ffom @ onprof legal services program, You can ocala ‘hate nanproft cups at Callonla Legal Services Web ss (wiv enencalfonia.o), te Calfomla Cau Onine Self-Help Cerler (orn courthte.ca goat), by contacting you Ica court or cory bar aseacilan, HOTE: The court hae a etautory fn for welved fees and {Costs on any eetloment or erbtraon award of $1,000 o more a chil casa, The caus lan rust be pad before tbe court wil disse the case JAVISO! Lo hn demandedo, Sine respordo den de 30 las, carte puode dec en su conta sh escuchar eu verti. Leal ifomacin @ ‘ontnvace.| Tne 30 IAS DE CALENDARIO despuds de quel entrequon esta clas y papelas gales pare presenter una respvess por esc en eta ‘carts y hacer que we stroqus una cole demendants. Une carte ure Jamace ‘elena oo prtegen, Su respueste po ero lene que elar (en famalo aga corecn dese gue pocesan au easo ola cote. Esposble que haya un frmutaro quo usted pueda Usa pra eu eepuoso ‘Puede encontrar esi fomulrios de la cote ymde hvormeciin enol Cena de Ayuda de las Corts de Cella (we suorte.ca go), of Dboteca de yen de eu condado oan la corte quo Je quede mds cece. Sino puede pogar la cuts de prsentect, pid a secretro dol corte {ue ea un mularo do exencin de pago de cuolasS/70 presenta su respuesta a ompe, puede porta’ el caso por hcunpniento le coe Ie ‘Podréqutar au eli, coro yblenes sn mas advertercie. ay os reuilos legates. £8 recommendable que lame a Un abogedo inmecatements. Sno conoce a un ebogada, puede ema aun servicio de remisin a abogedos. Sno puede pegar «un abogedo, ws pasble que cups con os requstos pare obiner ois legal grates co un ‘rograma de serio egaes sin Anes oo lure. Puede anconter esos grupos si es do lcre ana silo web de Callona Lope! Sanvices, (Ger awhelpcaoria. og), 99 al Cendo de Ayuda de las Corie de Cello (wu. sucara.ca gos) 0 porlandose en conc con fa covle el ‘aloglo de abogados locales, AVISO: Por ly, Ia oarte ane derecho &reclamar fs cuole os caste anos por mporer un grevaman Soe ‘Gatjulr recuparatn do $10,000 6 maa Ge valor recide mediate tn acvordo o una cavcsion de arbre en un orso do Sesto GM ne Que ‘Papal gravamen de la corto artes de quel core puede devecher cas. ‘The name and address of the courts: Tagen ve fa corte es): SAN FRANCISCO SUPERIOR COURT |fimgwan taney (Elnombre y deccién de ta corte): BP Fo15 514302 400 McAllister Street, San Francisco, CA 94102 The name, ado, and tolophone numberof plant stlomey,o pli without an alomey, (Cpa a dec y hos ela dl aoango de eng © dl demande uo fare abou ax “Alison Benyy Wilkinson 4040 Civic Center Dr, Ste, 200, San Raiael, CA 94905; folephone: 415 FRA iN MORAN Y AN oom 9011 205. cueM OF THE couRT ee, IVEY ANN as (For proof ofsonvce oFihis summons, use Proof of Service of Summons form POS-O70)) (Pare pruobe de entraga de esta citatiin use ol formulario Proof of Service of Summons, (POS-010). NOTICE TO THE PERSON SERVED: You are served 4. [J as an individual defendant Pree carmeacmmn BY FAX 3, 2) onbehalt of (specty): under: 5]. cop 416.10 (corporation [J cor at6%0 (minor TF cP 416.20 (defunct corporation) Scop 416.70 (conservatee) TS cop 416.40 (association or partershiy [=] CoP 416.80 (ethorized person) [2 other (speci: Public Entity 4. by pertonaldevery on (ty: ruta [ee ‘SUMMONS Comair at U0 De, ay 9, 200 —