In some cities, police departments fire cops who break the law. In San Francisco, they're attempting to fire one for trying not to break the law.
Homicide inspector Frank Lee, a 24-year veteran, thought he was doing the right thing when he tried to coax a potential witness to give evidence in a murder case.
Lee had recently come over to the homicide division from the sex crimes unit, where he used his calm and respectful personality to help get convictions. One time he talked a handyman into confessing to rape. Another time he encouraged a reluctant couple to help convict a neighborhood flasher.
But Lee's April 2009 investigation was far more convoluted. Alex Welsh, a photography student at SF State had, detectives believed, seen his friend shot to death by gang members on the northeast edge of the Oakdale housing projects in the Bayview.
The Norris Bennett murder was Lee's first case as lead homicide inspector. As Lee tried to reassure and persuade a terrified Welsh to testify, his superiors insisted on searching Welsh's apartment to get photographs Welsh had taken at the crime scene. Lee feared a search would turn Welsh against the cops.
Welsh's lawyer informed police that his client would invoke California laws shielding journalists from search warrants and subpoenas. “I discussed with my supervisors my concern that the Shield Law would apply here, and whatever photos the witness had taken as a student journalist could not be seized without his consent and full cooperation,” Lee wrote in a statement to the San Francisco Police Commission.
The commission is considering a still-pending 2010 request by then-police chief and current District Attorney George Gascón to have Lee fired on charges related to his handling of the search warrant issue.
Lee isn't accused of having performed the kind of illegal searches that have recently become a scandal for the department. Instead, he's charged with insubordination for allegedly failing to follow orders. He's accused of not swiftly and effectively executing the warrant at Welsh's apartment, which a judge eventually ruled was illegal.
There was reason to know the search would violate state law. Gascón's complaint said that Welsh said he'd invoke his right not to hand over evidence and states that Lee was “reluctant” to serve the warrant.
In his commission statement, Lee says his lieutenant responded to this reluctance by screaming, “It's fucking bullshit, your soft bullshit approach. You're not in sex crimes anymore. You're in homicide. This is the way we do things. I want that evidence.”
At the time, the homicide division's “way” produced one of the worst murder solve rates in America, with only about one-third of cases being cleared. Lee still argues that the division needed a fresh, lower-key approach. Cozying up to witnesses and suspects instead of intimidating them is endorsed by researchers who study police interviewing techniques.
Also backing him up in the Welsh case were the penal and evidence codes of California, which clearly state that police can't execute warrants seeking journalists' work product.
Lee did execute the warrant six days after it was issued. But the search turned up no evidence helpful to the investigation. Welsh's invocation of state laws shielding journalists became a cause célèbre, with Welsh earning a journalism award for supposedly broadening journalists' protections.
Lee was soon moved out of Homicide. And Gascón moved to fire him on charges of “repeated failure to serve a search warrant as ordered by a superior.”
This case is extraordinary, coming at a time when the SFPD is mired in scandal stemming from accusations that officers routinely conducted illegal searches and then lied about them. The FBI is investigating a string of allegedly warrantless police searches in the Tenderloin that has resulted in 120 cases being dropped. Despite a growing pile of San Francisco cases thrown out because of illegal searches, the officers involved have not been disciplined. At press time, I hadn't heard back from the SFPD about whether any of the officers had been disciplined, and my requests to interview Gascón and Police Chief Greg Suhr had not been granted.
“Once a judge signs a warrant, officers are duty bound to execute them,” says Richard Hechler, the SFPD attorney assigned to seek Lee's dismissal.
Still I'm left wondering: Must police in this town conduct illegal searches to keep their jobs?
“The right thing to do is not to purposefully and knowingly break the law,” says David Greene, executive director of the First Amendment Project in Oakland. “It does seem odd to me that that decision would be considered grounds for discipline against an officer.”