Brandon Nail, a former San Rafael police officer who will soon stand trial on criminal charges, has appealed his termination from the police department and is seeking reinstatement.
A confidential binding arbitration hearing is scheduled this month to determine whether Nail will get his job back. The City of San Rafael is defending its decision to oust Nail, who was fired on June 27 for violating department policies.
A memorandum of understanding between the City of San Rafael and the San Rafael Police Association gives terminated employees the right to submit a grievance to the city manager and initiate the arbitration process.
The arbitrator’s determination, expected 60 days after the hearing concludes, will be final. Neither side can appeal.
“It’s a super awkward position for the city,” San Rafael Police Chief David Spiller said. “An arbitrator can make a decision for the [former] employee to return.”
In a lengthy memo sent to Nail in May, Spiller spelled out his reasons for recommending the termination, all related to a 2022 use of force incident captured on police body-worn cameras. While Nail provided back up for another officer who had stopped three men for drinking in public, he “unnecessarily escalated” the situation and punched one of the men, causing him to “bleed profusely,” according to Spiller’s memo.
Spiller confirmed that he will testify in the arbitration hearing but didn’t want to comment about how he’d feel if the arbitrator clears the way for Nail to return to the San Rafael Police Department.
“I terminated Brandon Nail, so I’ll leave it at that,” Spiller said.
Even if Nail wins at the arbitration hearing, he must still face criminal charges stemming from the use of force incident. Nail and his co-defendant, former officer Daisy Mazariegos, return to Marin Superior Court next month for a pre-trial proceeding.
In December, after a preliminary hearing, Judge Beth Jordan ordered both defendants to stand trial for assault under color of authority with a sentencing enhancement for causing “great bodily harm” to Julio Jimenez Lopez, one of the men stopped for public drinking.
Jimenez Lopez testified at the hearing that he suffered a broken nose, concussion and injuries to both knees and shoulders, with the left shoulder requiring surgery.
Nail is also charged with making false statements in a crime report. The judge said that based on videos of the incident, she didn’t believe Nail’s written account.
Both Nail and Mazariegos have pleaded not guilty to the charges.
Civil attorney Anthony Label, who represents Jimenez Lopez in a federal lawsuit filed against Nail and Mazariegos, finds it disturbing that Nail is seeking to return to his job as a police officer.
“I can’t think of any other profession where someone could be terminated and facing criminal charges for assaulting a person while on the job and then has the right to file an appeal to get reinstated,” Label said.
And that’s not Label’s only concern.
“Brandon Nail is unfit to be a police officer in San Rafael or any other city,” Label said. “It’s unimaginable that the city might be forced by an arbitrator to rehire a person who treated a member of this community with such inhumanity, disrespect and disregard.”
Julia Fox, Nail’s attorney, did not respond to requests for comment by publication deadline.
After watching the body cam videos closely multiple times, the Chief was right, Nail escalated the situation. Mazariegos was speaking respectfully to the men. One of them, Lopez, clearly buzzed, had to stand up to get the requested ID from his front pocket. he was asked to sit down, he did. Was again asked for ID (now in hand) he stood to repeat his explanation why he stood up and Nail barked “SIT THE F DOWN!” over Mazariegos’ request to sit back down. Lopez took offense and replied in an airy buzzed tone ‘Hey hey hey you don’t need to talk to me like that.’ while leaning a bit (perhaps off balance) towards Nail. That was the trigger for Nail to tackle him to the ground. Then Mazariegos had to pile on to protect her partner in the struggle. The man was not obnoxious or combative in tone in explaining why he stood up when he was asked to sit down. I do not know the training of SRPD and I know these situations can go south very fast for the officers who just want to go home too. Perhaps the leaning a bit toward Nail looked like a threat from Nail’s POV but form Mazarieogs’ camera, in my opinion, he overreacted. Should Mazariegos just let him wrestle Lopez on his own? Would that have violated SRPD policy? Would she have lost her job for that? She certainly would have lost her partner’s trust and I suppose other officers trust as well. I think she has less to answer for and should not have been fired over this incident alone. Nail may have a tough time convincing people that he won’t escalate like that again.
Brandon is a criminal threat to the community. We can’t be sure he has any self control beyond that of an unleashed dog. San Rafael has to be rid of him completely. Putting him back on the force not only endangers all of us, but the SRPD will find their own situation to be very hostile. The public won’t accept it and the SRPD can’t manage a hostile public; SRPD morale will plummet if this happens.
Thank you Nikki Silverstein and the Pacific Sun for shining the light on the parts that San Rafael is trying to keep dark. While the city tells a story about prioritizing transparency and building trust and at no point mentions during the community meetings, council meetings, or explanation of how internal investigations work based on the City policies and the Police Officer Bill of Rights did anyone list this agreement between San Rafael and the police union that allows an officer another avenue to be reinstated. An officer terminated for lying in a police report and assaulting a resident, now facing criminal charges for which Nail will go to trial in April, will have a chance to get his job back. Nail and his attorney argued in court that escalating the situation was an appropriate de-escalation tactic. He should not work in our community and San Rafael should answer to having secret and “confidential” agreements with the union. So much for transparency and trust.
I highly recommend reading Malcolm Gladwell’s Talking to Strangers. In it he covers several situations where cops assaulted people, killed them, and mistreated them. He speaks of how we make quick judgments about people. And, most relevant to this issue, he spends a lot of time talking about how cops are trained, and how that has changed over the decades. You will see a lot of the issues in this case represented, from racism to thinking beyond the ticket to what cops are trained to do in terms of maintaining power, as well as the militarization of our police forces. There is also the issue that people who train as cops have unresolved childhood issues to work out, and so they instinctively use violence to do so. Lopez had no chance for getting out of the situation without being harmed.
One issue I’ve raised to the PacSun staff is that the SRPD runs prostitution stings, where they place a sex worker ad on a low end website and wait for the calls to come in. The caller accepts a proposition on the phone for a cheap sex act, always a quickie or a blow job for $50 which undercuts the market by a factor of 10.
More than 70% of the callers are Latino. Racism could be seen to run deep in the SRPD.
I was tracking with you on the first paragraph but the second seems like you are comparing different markets and you are complaining about ‘unfair’ competition. Prostitution is not always a ‘victimless’ crime with underaged girls and boys and of age adults being trafficked. Once caught as a customer, maybe they will think twice about getting another ‘service’ perhaps keeping one of these captive children from one more abuse. they may be able to get information about where they have gotten serviced before as well and work to freeing some so trafficked. Another advantage is the buyer has one less chance of getting an STD to pass along as well. This is a public health issue which, given the target demographic, costs us all to treat.
The third paragraph’s conclusion does use the phrase ‘could be seen’. It could also be seen that the sheer density of Latinos in San Rafael and the majority of contacts will be Latino. SRPD like all departments, have budgets and will focus resources where they can do the most good. Is money better spent on the $50 jobs where there is a larger market or the $500 jobs which are fewer in number. Yes, so the optics are bad but skin deep judgements are also bad. Not saying that you are and we should root out racists but as a society we need be hasty to not jump to conclusions about race.
Police unions are the next big problem for us to tackle. We have this protected class that gets paid upwards of $100k/year each (with our money) and who knows how much training they actually have, and this system somehow produces and churns out sociopaths on a regular basis. Does the police academy do any kind of psych evaluations on their trainees? They can say yes but who knows what really happens. There doesn’t seem to be any public check on this system other than the masses causing an uproar and marching and making our elected official’s lives miserable. That seems to be the only power we have. Every now and then the chief will give some tough or promising words. But they are all scared to take action. If the chief of police COULD do something he won’t, because he doesn’t want to punish one of his own and cause resentment within the force. I remember at the height of the pandemic and the George Floyd protests we were all commenting that there weren’t any police around, they were afraid of us. The police were really second guessing themselves at that time and laying low. During the Maidan Uprising in Ukraine in 2014 the regular people actually defeated the secret police and sent them fleeing to Russia. It reaches a threshold where the police just quit. They give up. The SRPD has walked on eggshells this past year because they know to do so.
He has a lot of nerve to ask to be reinstated. He should be serving time not serving the citizens of San Rafael.