Updated from Jan. 8, 2025. Part one of a two-part article.
A San Rafael police officer, Brandon Nail, fired in 2023 for violating department policies, won an arbitration proceeding that reversed his termination.
On Dec. 16, arbitrator Daniel Saling issued his ruling, stating the San Rafael Police Department must reinstate Nail to his position as a police officer. Nail will also receive back pay plus 8% interest for the termination period, which spanned almost 20 months. Any amount earned by Nail during that time will reduce the amount the city must pay him.
The city defended its position during the arbitration that it had just cause to terminate Nail, but Saling’s ruling went against San Rafael on almost every point. The decision is binding, and the city cannot appeal.
“While officers need to be supervised, they do not need to be second-guessed,” Saling wrote in his decision.
Criminal Charges
Still, residents won’t see Nail back on patrol just yet. In October, a state agency temporarily suspended Nail’s certification to work as a police officer.
The certification suspension was based on Nail’s “criminal proceedings pending—physical abuse/excessive or unreasonable use of force,” according to the California Commission on Peace Officer Standards and Training.
Nail’s felony charges for assault and lying on a police report stemmed from a July 2022 use of force incident that occurred when he and another officer approached three men on the street for public drinking. Video evidence and hearing testimony indicate that Nail punched one of the men, Julio Jimenez Lopez, in the face and used a maneuver to take him to the ground, leaving him bloodied and injured.
This use of force, caught on police body-worn cameras, enraged the public. During protests, marches and lengthy city council meetings, residents demanded the termination and criminal prosecution of Nail and Daisy Mazariegos.
Both were terminated, and Marin County District Attorney Lori Frugoli filed felony charges against them. Mazariegos’ charges were subsequently dismissed by a judge, although she could not appeal her termination, as she was still on her probationary period.
Arbitrator’s Reasoning
An independent investigation commissioned by San Rafael determined Nail did not use excessive force against Jimenez Lopez. But Spiller based Nail’s termination on other department policy violations, including unacceptable behavior, unsatisfactory work performance, negligence of duty and using profanity while on duty.
Saling discounted the city’s claims of misconduct by Nail. In his decision, the arbitrator from Orange County stated the police department fired Nail “to appease the demand of the community protesters.” When Nail yelled at Jimenez Lopez to “Sit the fuck down,” it was an attempt at de-escalation, according to Saling. Additionally, he deemed Nail’s termination unjust because the officer had no previous discipline record.
“For most offenses, the Department should use one or more warnings before suspensions, and suspensions before discharge,” Saling wrote. “In this case, the Department did not attempt to correct the Appellant’s alleged misconduct…”
Unwelcome Return
Public reaction to Nail’s reinstatement mirrors the anger displayed when news of the Jimenez Lopez beating first emerged. At a meeting of San Rafael’s Police Accountability and Advisory Committee on Jan. 11, community members expressed their dismay.
Nevertheless, Nail was well within his rights to appeal. 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.
San Rafael Police Chief David Spiller spoke with the Pacific Sun in March about employment arbitration while Nail’s appeal was underway.
“It’s a super awkward position for the city,” Spiller said. “An arbitrator can make a decision for the [terminated] employee to return.”
At the time, Spiller didn’t want to comment on how he would feel if the arbitrator cleared the way for Nail’s reinstatement to the department.
“I terminated Brandon Nail, so I’ll leave it at that,” he said.
Apparently, the City of San Rafael is not welcoming Nail back with open arms, instead trying to distance itself from the arbitrator’s decision.
“The Nail incident has been profoundly difficult for our entire city—impacting the community, the police department, and the organization,” city manager Cristine Alilovich said in an emailed statement. “While the City will respect and abide by the decision of the State arbitrator, the incident is not reflective of the values of our organization.”
Others familiar with Nail’s criminal case also object to Nail returning to the police force under these conditions. Attorney Theo Emison, who is representing Jimenez Lopez in a civil lawsuit against San Rafael, has strong words of indictment for the law enforcement system that allowed Nail to return to his job.
“In what other industry would an employee who is facing criminal felony assault charges and who was fired from their job by their supervisor, based on findings their conduct violated department rules and protocols and brought shame to the department, have a right to request a private and confidential arbitration conducted in a star chamber by a single non-court appointed arbitrator to challenge their supervisor’s decision to fire them?” Emison asked.
“Only police enjoy these excessive rights and privileges. These officers must feel untouchable and above the law. The community of San Rafael is not safer or better with Officer Nail back on the streets,” he continued.
Whether or not Nail will return to performing his duties as a San Rafael police officer depends on the outcome of the criminal trial. Until then, he remains on paid leave.
However, attorney Julia Fox, who is representing Nail in the criminal trial, believes that DA Frugoli and prosecutor Geoff Iida should consider dropping the case in light of the arbitrator’s decision.
“I have faith in both Ms. Frugoli and Mr. Iida giving this case a thoughtful review, given the posture in which we now all find ourselves: Wrongdoing by Officer Nail could not be proven in an administrative forum with a dramatically lower burden of proof than beyond a reasonable doubt,” Fox said.
Nail’s next court date on his felony charges is Jan. 22 in Marin County Superior Court.
Arbitration Decision: Brandon Nail v City of San Rafael
Thank you for you continued excellence in the reporting of this developing story.
What was the reason given as to why the officer was reinstated? That goes to the heart of the story yet it’s missing here. It should have been addressed in the story.
“for most offenses, employers should use one or more warnings before suspensions, and
suspensions before discharge. Yet, some offenses are sufficiently serious to justify serious
discipline for a first offense. These include theft, physical attacks, willful and serious safety
breaches, gross insubordination, and significant violations of law on the employer’s time or
premises.”
From an expert witness :”Mr. McCann testified that the use of
profanity can be used as a de-escalation technique and the use of profanity as a de-escalation
technique had been taught in the POST Learning Domain 20, Use of Force/De-escalation
training. Further, former Supervising Officer O’ Con testified that the use of profanity was an
effective tool to de-escalate a situation and communicate the seriousness of a situation to a
suspect or detainee. Officer O’Con, the supervisor officer, had reviewed the body-worn camera
footage and believed that the Appellant’s use of a stern commanding voice and profanity with
Mr. Lopez was an effort to de-escalate the situation.”
They fired him for using profanity, telling a drunk, who would not comply with officer’s instructions to “SIT the F… Down’’ According to what I read, they fired an employee for a debatable first disciplinary problem, swearing ? It is debatable because the point was to try to impress on the drunk to sit down, which if complied with, would have de-escalated. (it’s a lot harder to get in a fight when you’re sitting down). With no previous work problems, he was fired for swearing at a drunk? I am no fan of cops, but I am less of a “fan” of belligerent drunks (4-5 beers in the hour preceding the incident by Lopez’ own admission) People in that condition are a danger to themselves and others,
Was Lopez deported?
Many thanks for bringing this turn of events to our attention. Appalling. I want to get on board with any protests and the like. Hopefully the January court date will fix it so he doesn’t come back to San Rafael.
Thank you Nikki Silverstein for your excellent and timely reporting on this disturbing story.
Who was the arbitrator? Can’t we at least know who she/he is and her /his background?
A disgrace. A complete disgrace. One of surely many, all of whom with this exception we don’t know about because Ms. Silverstein is only one person. If she weren’t lifting up the rock, nobody would know about this unfit-for-the-uniform bad penny, worse police officer.
When the incident happened, defense for Nail said he was following police training and procedure. Police need to use force to ensure compliance with their commands or risk personal injury and community chaos. An analogous situation is having a guard dog without teeth.
Without knowing what is said in closed sessions, assume this same defense led to his reinstatement.
Basically too sickening to even comment, but thank you Nikki for letting the public know. Hopefully, Nail’s court date of 1/22, will result in him being convicted and sentenced!
Protests at the court are a good idea!
Lets look at some facts:
Nail was dealing with a drunken person who, prior to his arrival at the scene, had refused to comply with a female officers directives. She was in need of back-up. When he arrived, as a show of force, he used profanity with the subject who was, again, drunk and refusing to comply. When the subject reached into his back pocket, the officers has a split second decision to make: Wait and see what came out or try and establish control of the subject for their own safety. The drunken, non-responsive subject further resisted and they went to the ground.
This is what these officers are trained to do. Ask nicely, ask again more forcefully, direct, then control if needed. If the community wants it handled differently, then they need to talk with their police commission to find different training for the officers.
To fault an officer for handling a situation within the accepted guidelines is holding the wrong entity accountable. He played by the rules. Was he inelegant when he did it? One could argue, yes, but you don’t fire someone for that. Especially if he had never been warned about using profanity in the past. You call them in and direct them not to do it like that in the future. The problem is that most, if not all the force does it that way and they don’t get written-up for it.
Remember, they did an internal use of force investigation when the incident happened. Both officers were found to have acted within guidelines and they were returned to duty. It wasn’t until the “public outcry,” that the officers were suspended. The Chief was fine with it until it became a political liability. Then is was, “How dare they!?”
The fault is not the officers who were playing by the rules of engagement they were taught. The fault is with those who make the rules and try and scapegoat the officers who try and enforce them.
The other option is to allow people to drink in public, be drunk in public, and then be okay with them shining-on the police when they ask them to leave.
The DA needs to cut bait here. It’s a waste of taxpayer money to follow this to the ground. There is no way 12 people, who have heard all the facts, are going to criminally convict (unanimously agree beyond a reasonable doubt) that this previously well thought of and decorated officer should go to jail for what he did…once they hear all the facts.
The problems here are many. The root cause of these issues come from a discreet lack of enlightend leadership for over 7o years. Racism is baked into our system as it stands now, an old system that hasn’t been updated since the 1890s to my view. The police training is unbelievable and fosters the use of force to the extent that a cop can see a pot of hot water and execute a death action to “preserve” himself, however the cognitive health of all the members of todays leadership is myopic, diseased, and avoidant of the truth with the exception of personal subjective feelings, which has replaced the use of logic and understanding. Our whole system is crumbling from a fundamental lack of being able to face the truths around us. This is very common at the end of a dynastic cycle when the people in power are there only because they have spent generations gaming laws and structures built with the intention to protect the people, now the laws only protect the ones with the money, power, and use of violent force. Has anyone noticed how Force is used more and more to accomplish goals? This is a problem that includes all our political parties and the wealthy in general. So we are in a state of collapse until YOU the reader of this decide we need to elect new leadership that is up to date with modern mental health. The lack of justice I have witnessed from our government makes everything we see, from the rise of Al-Queda (thank you for the name there from the CIA), the events of 9/11/01, again the CIA helped faciliate that attack, etc. All the actions are taken with “good” intentions and they have led us to this hell of massive systemic mental disease, mass shootings, and highest ever recorded suicide rates of the youth. Is anyone open to maybe considering a change in leadership at the most fundamental levels? I see the news now as just a record of how things collapse when you have 1890s hierarchies run with mentally diseased leadership. Will we wake up in time?