.New legal battle emerges from San Rafael cops’ use of force

A legal battle has erupted because the City of San Rafael says it needs a witness’ help to prevent ex-cop Brandon Nail from getting his job back. Police Chief David Spiller terminated Nail last year.

Julio Jimenez Lopez, the witness, wants his testimony in the employment arbitration proceeding between Nail and the city kept confidential. San Rafael refuses. Consequently, Jimenez Lopez isn’t keen on testifying, despite the subpoena he received from the arbitrator.

On Tuesday, attorneys for San Rafael and Jimenez Lopez will square off in a Marin County courtroom. San Rafael wants Judge Stephen Freccero to compel Jimenez Lopez to testify without any restrictions, while Jimenez Lopez’s motion asks the judge to issue a protective order requiring confidentiality of his testimony.

San Rafael’s attorneys maintain that Jimenez Lopez’s account of a July 27, 2022 police use of force incident could sway the arbitrator to uphold Nail’s termination. It just might.

Jimenez Lopez testified in a criminal hearing last year that Nail and then-officer Daisy Mazariegos assaulted and injured him during questioning about an open container of beer. 

As a result of that hearing, Judge Beth Jordan ordered both Nail and Mazariegos to stand trial for assault under color of authority with a sentencing enhancement for causing “great bodily harm” to Jimenez Lopez. Nail also faces a felony charge for making false statements in a police report.

It’s curious that San Rafael refuses Jimenez Lopez’s request for confidentiality, even as its attorneys repeatedly state his arbitration testimony is important.

“There can be no dispute that Mr. Lopez is a key witness and recipient of the conduct underlying the City’s decision to terminate Mr. Nail’s employment,” San Rafael’s outside counsel wrote in their opposition to Jimenez Lopez’s motion to keep his testimony confidential.

Theo Emison and Anthony Label, civil attorneys representing Jimenez Lopez, believe the city has a hidden agenda—namely to use their client’s testimony against him in yet another upcoming legal proceeding based on the use of force incident.

Last year, Jimenez Lopez filed a lawsuit in federal court against San Rafael, the police department and the two former officers for violating his civil rights. One can hardly blame him. Medical reports and his testimony at the criminal hearing indicate that he suffered a broken nose, concussion and injuries to both knees and shoulders, with the left shoulder requiring surgery.

Adding insult to injury, the police arrested Jimenez Lopez on felony and misdemeanor charges, stating in a report that he hit Nail and attempted to put him in a headlock. While the videos from the then-officers’ body-worn cameras verify Jimenez Lopez’s account of the incident, they do not show him striking or putting Nail in a chokehold. The Marin County District Attorney dropped all charges against Jimenez Lopez after watching the videos.

“Though Mr. Lopez supports the City’s efforts to keep Mr. Nail off its police force, the City refuses to agree not to use Mr. Lopez’s testimony in Nail’s employment arbitration as a double-edged sword against Mr. Lopez in his pending federal civil rights trial against the City,” Emison said. “This raises serious questions about the City’s motive in calling Mr. Lopez to testify at Nail’s employment arbitration.”

San Rafael’s outside counsel, the attorneys who are opposing Jimenez Lopez’s motion requesting confidentiality for his arbitration testimony, call Emison’s claim “speculation and unsupported by any facts.”

If Emison’s theory is wrong, why not simply agree to the confidentiality request? In fact, Spiller and Rob Epstein, city attorney for San Rafael, both told me that Nail’s employment arbitration is confidential.

I called Epstein to discuss the arbitration, and he agreed to consult with outside counsel and provide written answers. However, many of his responses simply do not shed light on the issues raised.

“This arbitration is a confidential proceeding, which means that members of the public cannot observe or listen to the arbitration hearing,” Epstein wrote. “The question whether any or all of the arbitration transcript will remain confidential after the arbitration is concluded is an open question that may need to be decided in a future court proceeding.”

Does a court really need to decide? San Rafael could simply agree to keep the confidential arbitration, well, confidential.

I asked whether Jimenez Lopez could receive a transcript of the entire arbitration to use in his civil rights case against the city, police and ex-cops. After all, what’s good for the goose should be good for the gander. Again, Epstein wrote that this, too, remains “an open question that may need to be decided in a future court proceeding.”

Epstein also noted that the city can’t waive the rights—“whatever they may be”—of the other defendants to use the arbitration transcript against Jimenez Lopez in the federal lawsuit.

It sure seems like all the parties would want the answers to these questions before they put up their witnesses, including Nail and Spiller. But by now, more than a month after the arbitration began, they’ve likely already provided their testimony. The roadblock to finishing the arbitration is Jimenez Lopez’s refusal to testify without a confidentiality protection, according to San Rafael.

Although 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 and initiate the arbitration process, it does not specify the parameters of the arbitration—except that the arbitrator’s decisions are binding and final.

It’s unclear whether the city and Nail made any agreements before the arbitration began. Could they have agreed not to use arbitration testimony against each other at Jimenez Lopez’s civil rights trial? 

Jimenez Lopez is a witness and “recipient of Mr. Nail’s improper, disrespectful and aggressive behavior,” according to the city. Even as the city admits he’s a victim, he remains in the dark about any of the arbitration stipulations that could impact him.

I’m speculating now, but a sentence in the city’s opposition to Jimenez Lopez’s motion for confidentiality appears quite telling.

“Live testimony will also allow the parties and Arbitrator to note any inconsistencies between the testimony and the prior statements made by Mr. Lopez, and assess his credibility,” the city’s outside counsel wrote in the court filing.

If the city’s only motive is to keep Nail from returning to the police department, wouldn’t inconsistent testimony hurt the city’s case?

And could inconsistencies assist San Rafael and Nail in their defenses to Jimenez Lopez’s civil rights lawsuit? I asked if in this instance, do the city’s and ex-cop’s goals align?

Epstein didn’t respond to any of these questions.