Charged With Felony Being a Police Officer: The Trial of Brandon Nail

ANDREW GANZ
Partner
Rains Lucia Stern St. Phalle & Silver, PC

It is a scary, sobering and life-altering experience to believe in and spend your whole life working to uphold the rule of law, only to see it ignored when applied to you. For virtually every peace officer I have represented in criminal cases, they have experienced that same horrible phenomenon. When a cop is charged criminally for their use of force, it is typically motivated by “politics,” and even when it is not, those politics are still almost always a significant factor in how the case is handled. Such is the story of Brandon Nail.

When he went to work on July 27, 2022, Officer Nail was a well-respected and valued member of the San Rafael Police Department. He had served as a field training officer on the Crime Scene Investigation Team. He had no history of misconduct. He was a good co-worker. He believed in the system.

The call that led to his life being turned completely upside down was not particularly unusual. With a thin shift and a good amount of area to patrol, when he heard Officer Daisy Mazariegos was alone with three subjects in a high-crime area, he dutifully responded to cover her. She was dealing with three men who appeared to have been drinking in a parking area by the canal. He knew Officer Mazariegos very well, and he had that gut feeling that something was not right.

When he arrived, it became obvious that one of the three men was up to something. While the other two followed directions without much issue, he was doing that thing we have all seen a million times that raises concerns — trying to buy time, not following commands, finding reasons to stand up when told to sit down and reaching toward his pockets. Of course, it all could have been just a confused drunk guy or possibly a language issue, but it didn’t seem that way. The officers were just trying to identify him so they could at least confirm or deny whether his behavior was due to an outstanding warrant or consistent with any prior contacts with the police.

Seeing that the man was not taking their commands seriously, and with officer safety concerns growing, Officer Nail believed (based on his significant experience) that an escalation in his tone and language might be worth trying to obviate the need for any physical contact. In other words, he was trying to de-escalate the overall contact in a meaningful way, not in a superficial or performative manner. He also warned the man that he would be placed in handcuffs if he did not sit down on the curb. That worked, and Nail “used time and distance” for as long as that compliance lasted. But it did not last long. When the man stood up again, both officers had the same instinct and moved in, each grabbing a wrist to try to detain him in handcuffs.

The man resisted, pulling and holding his arms in front of his chest. Nail and Mazariegos could not get his hands behind his back, so Nail brought him to the ground. A struggle on the ground over the next few seconds ended when, after the man grabbed and pulled on Nail’s outer-carrier vest, Nail delivered one strike (a punch) to his face. Although the strike ultimately worked, and they were able to handcuff the man after some continued resistance, it resulted in a very bloody broken nose. Nail believed the man had struck him and tried to place him in a headlock during the struggle before the punch, and he wrote what he perceived in his report.

Officer Nail was not charged initially. Unfortunately for Nail and Mazariegos, they were not facing a mere legal analysis or careful review of the facts. They faced the political reality of the time, including repeated and vocal calls for their respective “heads,” as well as well-attended and aggressive protests. Approximately a year after the incident, both officers were charged with felonies. While a judge stepped in and thankfully dismissed the charges against Mazariegos, Nail faced a jury on charges of felony assault with a great bodily injury enhancement, felony false police report and the possibility of around seven years in state prison.

The trial was long and intense. I joined the fight long after my colleague, Julia Fox, had already spent years in the trenches with Officer Nail. She won Nail his job back through arbitration after San Rafael P.D. fired him. I got my first taste with days on days of pretrial motions and hearings, well before the jury was empaneled.

I could see early on during these hearings how the DA’s office was going after Officer Nail with everything they had. I hadn’t witnessed this level of resources and prosecutorial fervor in the many homicide cases, child sexual assault cases and other horrific crime trials that I have observed in court throughout my career. They even paid a guy around $100,000 to create an “animation” of the incident. They claimed the suspect did not resist but was just surprised and sort of flinched, and they brought in an expert who had no problem testifying to such bogus claims. They insisted on making other factual assertions that contradicted the evidence (such as claiming there was no grab of the vest, only a “touching,” or that the man was not given a warning, even though the video unquestionably showed Nail warning him).

They claimed in their closing argument, and then in comments to the press after the not-guilty verdicts were handed down, that the jury was there to serve essentially as the “voice of the community” to decide if the conduct of Officer Nail was acceptable. They did their best to equate a failure to abide by de-escalation ideals with crimes, and to equate bad language with guilty verdicts.

For those like Nail who believe(d) in the American system of justice and the rule of law, this was surreal and horrifying to watch unfold. One of the beautiful and vital aspects of our Constitution and system of laws is that, when applied properly, it protects people against the tyranny of the majority or similar unjust results. Some of the loudest voices in protests, like the one that led to the charges in this case, very well understand how the system has been blighted by the historical failure to apply justice apolitically, with even more tragic, horrific and despicable results. The hypocrisy of advocating for any type of mob justice must be called out.

The role of law enforcement, including prosecutors, is to follow the law and seek the truth. Cases should be charged and presented to a jury when, after a careful and thorough investigation and analysis, the evidence proves beyond any reasonable doubt that a crime has been committed. There is no special exception for cases of public interest, for cases where there is a threat of political repercussions or that allows a district attorney to pass that responsibility off to the “community” or a jury. That is precisely the sort of case where this role becomes so important — where human emotion and public sentiment may lead to disregard for the law and the facts.

Fortunately, after over three years of living a nightmare, culminating in several weeks of an intense and dramatic trial, the rule of law prevailed for Nail. “Not guilty on all charges,” read the unanimous verdicts from the jury. The relief for all of us, but particularly Nail and his family, was overwhelming.

While this final result is, in some ways, like waking up from a nightmare, in real life the damage done during the interim is all too real. Only those who have been through it can truly understand. It is a huge moral and legal failure to place people like Officer Nail and his family, who sacrifice everything to protect all of us, under the real threat of mob justice for over three years for following his training while doing his best in an extremely dangerous job. It is hard to think of anything more perverse.

Julia and I are very proud of the work we did to achieve just verdicts in this case and give Officer Nail and his family their life back. We relish our role in righting these wrongs and “speaking truth to power” in these cases, and we will continue to do so as long as we are needed. But we would much rather live in a world where we never had to, and where people like Officer Nail did not have to endure any of this for simply doing their job.

Nail is expressly thankful to RLS and to PORAC LDF for their unwavering support throughout this ordeal.

About the Author

Andrew M. Ganz is a partner and trial attorney in the RLS Legal Defense Practice Group. Andrew defends public-sector employees in criminal matters, administrative investigations, critical incident investigations and disciplinary appeals. He also represents public-sector employees in disciplinary actions and related litigation. Prior to joining RLS, Andrew worked as a prosecutor for over 13 years, during which time he handled virtually every type of criminal matter.