Cops Who SPY

After Rapagnani uncovered the phone logs, he felt an obligation to alert Van Derbeken; Dawydiak informed Sward. "I found it incredible that the San Francisco Police Department would get the records to the press room," Rapagnani recounts. "It just blew me away."

At Fifth and Mission the reaction was forceful and immediate. Delivered by FedEx and fax, a series of furious letters from a Chronicle attorney wound up on the desk of SFPD Chief Heather Fong in late 2004 and early 2005. "I write on behalf of the San Francisco Chronicle, a Hearst newspaper, to bring to your attention highly disturbing conduct by the San Francisco Police Department 'SFPD') in violation of the Chronicle's and its reporter's constitutional rights," wrote the attorney, Jonathan Donnellan, in a December 2004 letter.

Donnellan, senior counsel for the Hearst Corporation, described the Stansberry memo and the Chronicle's coverage of it, continuing, "We have learned that in the course of investigating who may have provided this memo to the Chronicle, the SFPD obtained and reviewed records reflecting the private calls from telephones used by Chronicle reporter Jaxon Van Derbeken in the Press Room at the Hall of Justice. This was done without the Chronicle's knowledge or consent. The SFPD never provided the Chronicle any notice that it was surreptitiously reviewing records of its reporter's private telephone conversations with a view towards identifying that reporter's sources, much less provide the Chronicle with a chance to oppose such action."

The letter, evidently, elicited no response from Fong. A month later Donnellan hit the chief with a second missive, this one CCed to Mayor Gavin Newsom. "I am surprised and disappointed not to have heard from you concerning this important and urgent matter. In the event that I do not receive a substantive response from you by the week's end, we will have no choice but to pursue legal remedies against the SFPD, [and the] City and County of San Francisco," the lawyer wrote.

Though the Chronicle talked tough in its correspondence with the department, it has yet to publish a single story or editorial about the matter, which is puzzling since the paper has been dogged in its defense of Lance Williams and Mark Fainaru-Wada, who are facing jail time for refusing to tell the feds who leaked them information in the BALCO steroids case. And the paper has devoted a bunch of ink to the HP spying imbroglio.

So why hasn't the Chronicle dealt with the issue, either through reportage or editorial commentary?

We're still wondering about that. The paper didn't return our repeated phone calls seeking comment.

For Rapagnani and Dawydiak, some vindication arrived last December, when the department abandoned the misconduct charges and wrote a check for about $25,000 to the couple to settle a lawsuit claiming their colleagues had sought to punish them for their stance on the Pitchess motions.

"My attorney sat me down and said, ÔWhat do you want?' I said, 'I want to clear my name.' The money we got almost covered our attorney's fees," Rapagnani recalls. Dawydiak still works for the department but is out on disability for a bum shoulder; Rapagnani retired from the force and now runs a dignitary protection service, guarding political figures with another ex-cop.

But the story doesn't conclude with the quiet exit of a veteran cop.

For one thing, there's the "Who Knew?" factor. The Chronicle memos show Chief Fong and Mayor Newsom are both aware of the phone monitoring, yet have chosen to remain silent about the matter.

Newsom spokesman David Miree tells us, "Mayor Newsom does not have a position or a comment at this time."

Second, there's the possibility that Tabak and his detectives trampled department rules regarding the First Amendment and got away with it. Those rules were established as the department was sifting through the wreckage left behind by Tom Gerard, an SFPD detective who spied on scores of civilians while assigned to the SFPD's intelligence unit, the predecessor to the Special Investigations Division.

In one of the more surreal episodes in this town's modern history, Gerard was busted in 1993 for compiling dossiers on hundreds of Bay Area leftist groups — many of them pro-Palestinian or anti-apartheid formations — and sharing the files with a freelance spy employed by the Jewish Anti-Defamation League of B'nai B'rith and the white supremacist government of South Africa. He pled guilty to unauthorized use of a police computer and caught a 45-day jail sentence; meanwhile, the city got hit with several costly lawsuits.

Responding to the espionage case, the police department revamped its First Amendment guidelines, which are covered by Department General Order 8.10. Those guidelines require detectives to exercise caution when conducting investigations that scrutinize legitimate First Amendment activity, including "speaking, meeting, writing, marching, picketing, or other expressive conduct."

In such cases, investigators are required to get written approval from the deputy chief of investigations and the chief of police. In addition, information about the probe is supposed to be forwarded to the Police Commission.

There's no proof in the case files that Tabak received authorization from the chief and deputy chief to pull the phone records for the press room phones or collect the personal phone numbers of journalists — if he did, in fact, get written permission, the document wasn't turned over to Rapagnani and Dawydiak. Several well-placed SFPD sources, speaking anonymously, say no one in the department has been sanctioned for their conduct during the leak probe.

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