Vallejo cops accused of bending badges to mark kills may be bulletproof from consequences

San Francisco Chronicle, by Rachel Swan & Demian Bulwa, Aug. 9, 2020

Vallejo police officers accused of bending their badges to commemorate their killings may be immune from consequences because the city waited too long to investigate, according to legal experts and the attorney for the fired ex-captain who blew the whistle on the purported practice.

Police Chief Shawny Williams said last week that his department is opening an “official inquiry” into allegations by a former police captain that some officers bent the tips of their seven-point stars, which he said would amount to misconduct. “I’m not going to tolerate something like that,” Williams said.

But the state’s Peace Officers’ Bill of Rights sets a one-year deadline for taking disciplinary action against officers after police officials learn of alleged misconduct. That sets up a potential legal fight in Vallejo if badge-bending officers are identified.

The ex-captain, John Whitney, who was second-in-command in the Vallejo force, said through his attorney that he learned of the badge-bending ritual in April 2019, informed then-Chief Andrew Bidou that month and unsuccessfully sought an investigation. Whitney was fired four months later.

His attorney, Alison Berry Wilkinson, said that before his ouster he ordered supervisors to inspect officers’ uniforms and collect any bent badges. After 10 badges were turned in and held in a box in the office of Bidou’s executive assistant, Wilkinson said, Bidou told Whitney the repair costs could raise suspicion and cost him his job. Instead, the chief had the badges returned to officers, who were to fix them on their own, Wilkinson said.

“We’re skeptical that any investigation of badge-bending will be effective in holding any officer accountable, both because they destroyed the evidence of the misconduct, by returning the badges to the officers, and because the statute of limitations has expired,” Wilkinson said.

She said then-Chief Bidou and Vallejo City Manager Greg Nyhoff “were aware of the badge-bending in April 2019 but did nothing. The statute of limitations runs from the date of discovery. Anyone involved can now deny it with impunity.”

Assistant City Manager Anne Cardwell told The Chronicle on July 28 that the city is aware of previous complaints about badge-bending.

“In conferring this evening with the City Manager,” Cardwell wrote, “he noted that the Mayor had advised him last year regarding rumors of such a prior practice in years past at the Police Dept., and that he, the City Manager, then immediately consulted with former Police Chief Bidou, who indicated it had been previously investigated and such claims had not been substantiated.”

Attempts to reach Bidou and Nyhoff were unsuccessful Friday. Williams said the investigation would go on regardless of these concerns.

“There is no statute of limitations on moral obligations,” he said. “The ethical standards of conduct and the moral imperative to honor dignity and life exceeds legal statutes of limitations. As chief of police, it is my responsibility to uncover the truth, increase trust through accountability and take corrective actions when warranted.”

A badge-bending investigation could be important for reasons besides discipline, if it led to changes in department policies or mended public distrust. It could also be driven by a desire to improve training, said San Francisco union attorney Gregg Adam, who has represented police officers in disciplinary proceedings and has no involvement with the Vallejo case.

Still, Adam agreed with Wilkinson’s analysis, saying she “is 100% correct.”

“The chief is quoting from the gospel, not the Peace Officers’ Bill of Rights,” Adam said.

California legislators enacted the one-year deadline to force police agencies to promptly address misconduct.

The statute carries several exceptions that can allow the one-year limit to be extended, including if an allegation is also the subject of a pending criminal investigation or lawsuit or if an investigation “involves more than one employee and requires a reasonable extension.” But authorities would need to show they were stymied by one of these factors.

Adam noted that the statute’s clock starts ticking when someone of sufficient authority “knew or should have known” about the alleged misconduct. And the person initiating the investigation doesn’t necessarily have to be a chief or city manager, Adam said. It could have been Whitney himself.

“If a captain knew about it, there’s a strong argument that that’s when the clock started,” he said.

Vallejo Mayor Bob Sampayan insisted there is no statute of limitations on the issue, and that Vallejo is still pursuing it. Bidou’s successor, Chief Williams, who was sworn in in November, has hired an outside investigator to do a “deep dive analysis into this culture of the bent badge,” Sampayan said.

He recalled feeling alarmed and distressed when Whitney approached him with the allegations, some time after he’d purportedly gone to Bidou.

Sampayan is a former police officer who joined Vallejo’s force in 1985 and trained many in the rank and file — including Whitney, he said. He’s frustrated with the recent string of alleged misdeeds in the city.

“If indeed they come up with things, then people will be disciplined,” the mayor said. “My position is because these have all been people of color that have been shot, I’m curious if this is not a civil rights violation” that could initiate an investigation by state Attorney General Xavier Becerra.

“This isn’t right to me — you don’t do this,” Sampayan said. “I’m appalled, I’m angered, and this is not what policing is all about.”

Whitney, who now works for another Bay Area police agency, is planning to sue Vallejo for wrongful termination after filing a legal claim seeking back pay, benefits, attorneys’ fees and $25,000. He says he was targeted for speaking out.

According to his claim, the city tied his firing to an investigation into a leak of confidential information, saying he improperly erased data from his phone amid the probe. Whitney said he had only erased personal information; he was exonerated in the leak case, Wilkinson said.

The Peace Officers’ Bill of Rights came into play during a 2015 scandal in San Francisco, in which several police officers were accused of exchanging racist, sexist and homophobic text messages.

Sent in 2011 and 2012, the texts included “white power” jeers and slurs against African Americans. Department brass learned about the content when it surfaced during a corruption investigation in 2012, but did not disclose it to the public until March 2015. At that point, Chief Greg Suhr announced he would fire nine of the officers involved, and discipline others.

A San Francisco Superior Court judge halted the disciplinary proceedings that December, however, ruling that the one-year time limit had run out. A state appeals court overturned that decision in 2018. In the 3-0 decision, Justice Martin Jenkins argued that the messages “displayed unacceptable prejudice against members of the communities SFPD is sworn to protect.”

At least one Vallejo police officer involved in a pending disciplinary case is seeking to assert the one-year deadline, according to Solano County Superior Court records.

In a court filing last month on behalf of an unnamed officer, attorney Justin Buffington said he was seeking to prevent the city from “imposing discipline that is time-barred by the relevant statute of limitations.” A judge sealed details of the case, and Buffington did not respond to requests for comment.

Rachel Swan and Demian Bulwa are San Francisco Chronicle staff writers.