San Rafael Police Officer Reinstated After Unjust Termination

JULIA D. FOX
Partner
Rains Lucia Stern St. Phalle & Silver, PC

In 2022, Brandon Nail worked patrol, was an FTO and worked on the CSI team for the San Rafael Police Department. He had no previous discipline. Since the beginning of this case, it was obvious, even through the department’s poker face, it had nothing in its hands. Despite the department’s attempt at arranging the cards to indicate otherwise, Officer Nail was clearly terminated as a direct result of critical public opinion. The department held tight to its position in order to preserve the job of the police chief by sacrificing Officer Nail. The sacrificial termination of Officer Nail worked until Arbitrator Daniel Saling’s binding arbitration opinion and award exposed it as a factually and legally insufficient charade.

The Incident

On July 27, 2022, Officer Daisy Mazariegos was patrolling the city of San Rafael in an area known as “the canal.” The canal had a reputation for frequent drinking in public violations and other crimes such as shootings, stabbings and theft. In fact, more than once, the department had directed officers to pay special attention to this area during their patrols because of the crime and complaints from the community members.

Officer Mazariegos observed three Hispanic subjects, later identified as Julio Jimenez Lopez, Andres Jimenez Velasquez and Pedro Camacho, in the canal listening to music and drinking in public.

She exited her patrol car to contact the subjects, asking them to put down their alcohol, sit down on the curb and produce their IDs. The first individual, Lopez, sat down initially and directed his companions, who only spoke Spanish, to sit down on the curb as well.  Camacho and Velasquez sat down on the curb as directed. After his initial compliance, Lopez got up from the curb. Officer Mazariegos requested a “routine back” and repeated her directive for Lopez to sit down multiple times. Officer Nail, who was Officer Mazariegos’ beat partner, was dispatched to the call. When Officer Nail arrived, Lopez was standing up, and Officer Mazariegos was still repeating commands in both English and Spanish for him to sit down. 

At this point, after overhearing Lopez being instructed to sit down several times over the radio, Officer Nail told Lopez to “sit the f*ck down,” which initially gained the compliance Officer Nail was aiming for. Lopez sat down again, but not for long. After the officers’ repeated directives to sit and warning Lopez that he would be placed in handcuffs if he got up again, Lopez got back up more than once with no direction to do so, saying that he needed to stand up to get his ID out of his pocket, even though his ID was already in his hand. As Lopez was clearly refusing their orders, the officers attempted to place Lopez in handcuffs as they had previously warned him that this would happen if he did not comply with their directives.

Lopez was as uncooperative with being handcuffed as he was with sitting down, which led the officers to utilize their training and take Lopez to the ground to gain compliance. During the struggle, Lopez’s hand grabbed the outer carrier of Officer Nail’s vest, where he kept many of the tools used to do his job, such as his taser. Officer Nail struck Lopez with one punch to the face to gain compliance and prevent Lopez from grabbing any of the items on his vest and using them against the officers. The punch worked. Lopez quit struggling, and the officers were able to place him in handcuffs. 

Lopez was arrested for several criminal charges. Initially, the District Attorney’s Office filed a criminal complaint against him. However, the assigned prosecutor later dismissed the criminal charges against Lopez.

The Police Department’s Use-of-Force Investigation

Following the arrest of Lopez, and consistent with the department’s policy for use-of-force reviews, the department required Officer Nail’s immediate supervisor, Corporal O’Con, to review the use of force by Officer Nail and determine whether the use of force was within policy. Corporal O’Con found the use of force to be within policy, and his conclusion was approved by his lieutenant. Officer Nail’s assignment to patrol remained unchanged as a result of that review process.

The Media Leak and the Aftermath

On September 1, 2022, the body-worn camera footage of the encounter was “leaked” to reporter Dan Noyes with ABC7 News. Mr. Noyes did a story and showed a portion of the video. The issue of excessive force by the police had been front and center in the news in many communities, including San Rafael, following the death of George Floyd in 2020. 

Immediately following the leak of the BWC footage to the media and the airing by Mr. Noyes, there was widespread public outrage. Members of the San Rafael community and others from across the country and other countries expressed anger over the incident. On September 2, 2022, the department was overrun with telephone calls and emails, which continued for weeks and included threats and profanity being used against the staff answering the calls and emails at the department. 

Protests and marches were held. Members of the community attended a city council meeting to express their anger and concern. The community was calling loudly for the termination of Officer Nail and Chief Spiller. Public opinion became a heavy weight on the desk of the command staff at the department. The department placed Officer Nail on administrative leave, asserting to him that it was a decision rooted in safety considerations for him.

The public outcry resulted in a decision by the police chief to initiate an “outside” internal affairs investigation into the incident despite the use-of-force review process up to that point having “cleared” Officer Nail of excessive force. The city attorney, with the police chief’s consent, retained the outside investigator and retired Santa Rosa P.D. Lieutenant Paul Henry to determine whether Officer Nail’s use of force was within policy. Ultimately, Mr. Henry’s investigation resulted in a determination that the allegation of excessive force was “unfounded,” while he concluded that Officer Nail brought “discredit” on the department and sustained that allegation.

On May 11, 2023, the department issued a notice of intent to terminate Officer Nail. Although the department’s internal review process and outside investigator Henry had concluded that Officer Nail had not used excessive force during the arrest of Mr. Lopez, the department’s proposed dismissal was premised on alleged failure to deescalate and bringing discredit to the department by use of the phrase, “sit the f*ck down.”

Officer Nail requested a Skelly hearing, which took place on June 21, 2023, with the San Rafael fire chief sitting as the Skelly officer. Following the Skelly hearing, on June 27, 2023, the department issued a final notice to Officer Nail terminating his employment for the allegations contained in the notice of intent to terminate.

While dealing with the police chief’s recommended termination of Officer Nail and preparing for his Skelly hearing, I was also in communication with Marin County District Attorney Lori Frugoli, who had initiated a “criminal investigation” of Officer Nail following the public outcry described earlier. Unfortunately, it was not long after the police department advised us that it was upholding Nail’s termination from employment that we learned that DA Frugoli was also filing criminal charges against him for the use of force against Lopez.

The Arbitration Hearing

On March 18–20, 2024, and August 19, 2024, the department and Officer Nail appeared before arbitrator Daniel Saling, who was mutually selected to decide the issue of whether the department had “just cause” to fire Officer Nail.

Typically, when a police officer we represent has been disciplined for the same conduct, which resulted in the filing of criminal charges, we prefer to file an appeal from the disciplinary action and continue any administrative appeal proceeding until the criminal charges are resolved. In this case, we did not have that luxury, as the department and city insisted on selecting an arbitrator pursuant to the appeal process in the MOU and going forward with the appeal hearing before a criminal trial occurred on the use-of-force issue.

At arbitration, the department’s position was that it had just cause to terminate Officer Nail for his treatment of Lopez. They asserted that Officer Nail purposefully bullied Lopez and that the police chief was unwilling to impose a lesser penalty through progressive discipline because Officer Nail had stated throughout the process that he would not do anything different if the same incident occurred again. The department argued that even with no prior history of discipline, because of the damage done to morale at the department and the relationship with the community resulting from Officer Nail’s conduct, the only remedy possible was termination. The department was steadfast that if a lesser penalty had been given to Officer Nail, it would have been a violation of the public trust.

Officer Nail’s position at arbitration was that the department caved to public outcry based on the video shown in Mr. Noyes’ news story. The department had no credible evidence to establish that Officer Nail failed to deescalate the situation during the incident with Lopez. The community demanded that Officer Nail be terminated based on a portion of a video shown on the news, which triggered misinformation that use-of-force policies were violated. Instead of addressing the misinformation in the community, Chief Spiller made a political determination to terminate Officer Nail.

Sean McCann, a former Berkeley police officer and longtime trainer of police in defensive tactics, testified as an expert on behalf of Officer Nail on police de-escalation and tactics. McCann testified that the use of profanity can be used as a de-escalation technique, and that using profanity as a de-escalation technique had been taught in the POST Learning Domain 20, Use of Force/De-escalation training.

McCann opined that Officer Nail’s use of profanity was an appropriate de-escalation technique because Lopez was told multiple times to sit down but ignored the direct and clear commands to sit. The video showed that Lopez, after being directed to sit down and even after he produced his ID, remained standing and putting his hand in his pocket, creating safety concerns for the officers, especially since Lopez and his companions had not been pat searched.

Arbitrator Saling agreed with the appellant, and on December 16, 2024, he issued an opinion reinstating Officer Nail, with backpay. His opinion stated, in part:

“There was insufficient evidence to establish that the appellant’s use of profanity and his conduct during the July 27, 2022, situation was a violation of department or city policies, rules, regulations and procedures that established just cause for any form of punishment and certainly not termination for a first-time offense. The appellant used profanity, but there was no evidence that any other department employee had received any form of discipline for using profanity while on duty or in uniform. Further, the appellant was charged with conduct that escalated the situation and that he did not use technology to deescalate the situation, but an expert witness testified that the conduct of the appellant was a tactic that can be used to deescalate a situation. The appellant being at the scene of the incident used his training and experience to address the situation. The department did not judge the appellant’s conduct from the perspective of a reasonable officer on the scene but in 20/20 hindsight. The department’s decision to terminate the appellant was made after the community protest and was made to appease the demand of the community protesters for termination of the appellant.”

Officer Nail has been reinstated with full back pay at an 8% interest rate by the department pursuant to the arbitration award by Mr. Saling but remains on paid administrative leave pending the completion of the criminal case relating to the same incident. It is our expectation that a jury hearing the criminal case will come to the same conclusion — Officer Nail was wrongfully charged criminally, as he was administratively, to assuage political unrest, and not as a result of his “crossing the line” from serving as a law enforcement officer to becoming a violator of the law he was sworn to enforce. 

Officer Nail is thankful this lengthy litigation has come to an end and looks forward to returning to the San Rafael Police Department. He is grateful to PORAC LDF for its support through not only the administrative process, but also their continued support in Superior Court as he pursues vindication in his criminal case.

About the Author

Julia D. Fox is a partner in the Rains Lucia Stern St. Phalle & Silver, PC Legal Defense Practice Group. Julia represents peace officers in administrative investigations and disciplinary matters.