A Gilroy woman who plans to file a lawsuit against the city of Morgan Hill claims to be the victim of false arrest and invasion of privacy in an incident that resulted in a police department internal investigation.
The city last month rejected a claim for damages filed by Casey Serrano, who accused Morgan Hill police of illegally using her smart phone to post a “personal photograph” stored on the device to her Facebook account, according to her attorney.
The city rejected the claim Jan. 13, according to city attorney Danny Wan.
The city’s police chief launched an internal investigation into the involved officers’ conduct shortly after the July 16 incident, and the department took unspecified punitive action against them. Chief David Swing did not name the officers involved, but other sources indicate the city’s K-9 officer David Ray was one of the arresting officers.
Serrano plans to file a civil lawsuit next month claiming more than $25,000 in damages, her attorney Dan Siegel said.
Serrano was arrested on suspicion of public drunkenness about 2 a.m. July 16, 2011. The Santa Clara County district attorney never filed charges against Serrano, and Siegel said she was arrested because she asked officers to move a patrol car from the front of her residence at the time on LaRocca Drive.
Just before her arrest, Serrano also took photographs of the patrol car, which was in the area on an unrelated call, Siegel said.
“She was arrested because she objected to a police car blocking her driveway for two hours,” Siegel said. “The officers thought she had no right to object, so they arrested her.”
While Serrano was detained, an officer or officers “took her mobile phone” and downloaded a photograph to Facebook that “she did not intend to share with the public,” Siegel said.
A friend of Serrano’s was arrested with Serrano in the same incident, Siegel said. He is not representing Serrano’s friend.
Swing said last week that he launched an internal investigation of the officers involved in the July 16 incident shortly after Serrano’s arrest, though at that time he did not mention Serrano by name. The investigation followed a verbal complaint by one of the suspects, who visited the police department shortly after she was cited and released and accused an officer of improperly accessing personal information on her cell phone.
“We took immediate action to investigate the complaint, and we initiated our investigation without waiting for a formal (written) complaint,” Swing said.
The department contacted the D.A.’s office, which found the officers who were the subject of the investigation did not commit any illegal conduct, Swing said.
However Morgan Hill police continued an internal investigation, which “did find that the officers acted inappropriately, and we responded with corrective action to hold them accountable,” Swing said.
The chief declined to name the officers involved in the case, citing state laws prohibiting him from releasing any more details of the case, including what kind of punitive or corrective action the city took toward the officers, and details about the nature of the complaint.
The Times filed a Public Records Act request for the police report of the incident with the city clerk’s office this week, but the city has not yet provided a copy of the report. By state law the city has 10 days to respond to a PRA request.
One of the officers involved in the arrest signed the public drunkenness citation “D. Ray,” according to Siegel. The city’s K-9 officer is David Ray, who is still employed by the city, Wan said. The city attorney said he cannot disclose if Ray or any officer is currently on leave.
According to a source with close knowledge of the case who wanted to remain anonymous, Ray was a subject of the department’s internal investigation.
Serrano filed a claim for damages at city hall listing her accusations of police misconduct Dec. 2, 2011, Wan said. The city denied the claim Jan. 13 in an “administrative” process that does not require city council action.
Wan declined to comment on this specific claim or the July 16 case, but said it is “not uncommon” for cities to summarily deny claims for damages and then wait for court proceedings or settlement negotiations.
Siegel added that other officers were involved in Serrano’s arrest and booking, but he does not know who they are. “They haven’t given us a copy of the police report,” he said.
While state law allows authorities to search mobile communication devices in search of evidence in certain cases, the use of Serrano’s phone in this case was illegal, Siegel said. He said the officer who accessed Serrano’s personal photograph and Facebook account violated her right to privacy under the state constitution.
“What evidence could they possibly find (on her phone) that would support the claim that she was intoxicated when she asked them to move their police car from the front of her driveway?” Siegel said.
