Alleging that city staff violated state law and their own policies when they investigated and took disciplinary action against him, Morgan Hill’s K-9 officer filed a lawsuit against city hall and the police department.
David Ray, whose name is no longer listed on the city’s employee staff directory, was the subject of an internal investigation following the July 16, 2011 incident in which he, and possibly other officers, accessed a suspect’s smartphone while she was in custody, according to the civil complaint filed in Santa Clara County Superior Court March 14.
Ray is seeking an undisclosed amount of damages exceeding $25,000, and is asking the court to order the city to exclude all evidence, statements and testimony it illegally obtained from him, according to the lawsuit. That includes reversing whatever disciplinary action the city took against him, and removing all references to that discipline from his confidential personnel file.
The city has not yet responded to the lawsuit, according to city attorney Danny Wan.
Ray has been the city’s K-9 officer since 2008.
On July 16, 2011, Ray and other officers responded to a “shots fired” call in the area of LaRocca Place. While Ray was attending to that call, an officer on the way to assist noticed two Gilroy residents – Casey Serrano, 36, and Regina Partida, 37 – standing around Ray’s patrol vehicle.
“Two women who had been in a nearby residence (on LaRocca Place) drinking alcohol and eating pizza thought it would be funny to take pictures of them posing with Ray’s patrol car,” the lawsuit filed by Ray said. The women used a mobile smartphone to take the pictures.
When Ray returned to his vehicle he contacted Serrano and Partida, and determined they had ignored officer Jason Broyer’s request for them to return inside the home, according to the police report and Ray’s lawsuit. He subsequently arrested the two women about 2 a.m. on suspicion of public drunkenness.
The women were released from the police station about 6 a.m., but returned about 5 p.m. to complain about the “unprofessional” way they were treated in the arrest, and to report that Serrano’s cell phone had been accessed while she was locked up, according to Ray’s lawsuit, as well as a complaint that Serrano filed against the city.
Ray’s lawsuit says that an officer or officers deleted the photographs of the women posing with the police car from the phone. Also, the women found that a photo that was already on the phone prior to their arrest, “depicting one of the women’s bare breasts had been uploaded to her Facebook account.”
The lawsuit does not say which of the women’s Facebook account had been updated with the topless photo. Serrano’s claim against the city, filed Jan. 13, alleged that an officer had posted an “intimate photograph” from her phone to her Facebook profile in the same incident.
Ray’s supervisor, Sgt. Bill Norman, almost immediately recognized the women’s complaint as “something a little more than just an attitude arrest gone badly,” and told them an internal investigation was going to be initiated, the lawsuit said.
During interviews with supervisors during that investigation, Ray was asked why he deleted the photos. “I made a mistake by deleting them,” Ray said, according to his lawsuit.
The civil complaint does not elaborate on whether or not Ray posted the topless photo to Facebook.
Ray accuses the city and the police department of violating a government code section known as the “Safety officers’ procedural bill of rights.” Among other things, that law guarantees certain rights and protections to police officers who find themselves the subject of certain investigations or types of discipline.
The lawsuit says the investigation of Ray was clearly a case that would be covered by the officers’ bill of rights, because his superiors were “investigating allegations of misconduct that could lead to punitive action.”
One of those protections is that the officer being investigated must be given access to recordings or transcripts of investigation interviews, the lawsuit says. Ray was allegedly denied copies of those documents when he requested them. He was interviewed twice – once by Norman and once by Sgt. Shane Palsgrove – during the internal investigation.
Ray and other officers involved in the incident were also investigated by the Santa Clara County District Attorney’s office, which found no evidence of crime by the officers.
The D.A.’s office also did not file charges against Serrano and Partida in relation to their arrest on suspicion of public drunkenness.
The city denied Serrano’s complaint. Serrano’s attorney, Dan Siegel, said earlier this year that if the complaint was denied, his client would file a lawsuit in superior court. Siegel did not return phone calls Thursday, and no complaints with Serrano’s name are on file in Santa Clara County.
Serrano declined to comment on the case this week.
Also in Ray’s lawsuit, Ray alleges the city violated the law and its own policies by failing to notify him he was under investigation, failing to advise him he was entitled to legal representation, and failing to allow Ray to bring a voice recorder to his internal investigation interviews.
On Oct. 31, 2011, Ray was “placed on administrative leave pending disciplinary action,” according to the lawsuit. That disciplinary action is not specified, and Ray’s attorneys Alison Berry Wilkinson and William Rapoport did not respond to telephone calls.
The city’s attorney had no further comment in response to the lawsuit, and Wan could not confirm that the absence of Ray’s name from the city’s web staff directory means that he no longer works for the city.
The safety officers’ bill of rights prohibits city staff from releasing details of matters relating to personnel or disciplinary action, and police chief David Swing declined to comment.
Ray’s complaint added that Ray will appeal the discipline – a process that could take at least six months.
However, Swing noted, “We still have a K-9 program, and we still have Pax,” the city’s German Shepherd K-9 officer. He declined to say whether or not Pax still lives with Ray, because that is also a personnel matter.
The police supervisor on duty July 16, Mindy Zen, was listed as a “police corporal” in a document from early 2011 listing city employees’ compensation information. She is now listed as an “officer,” a position that is paid less, on the city’s website.
City staff also declined to say why Zen’s job title changed.
Serrano’s complaint against the city says the police violated her privacy and falsely arrested her. The claim says during the alleged false arrest, she and Partida were outside by the patrol car because it was parked in front of their driveway.
When Serrano attempted to take photographs of the patrol car, she was arrested, the claim says. Siegel accused the officers of arresting his client only for questioning the presence of a parked police car in front of her driveway.
“The city of Morgan Hill negligently employed, trained, supervised, retained and assigned police officers knowing that they lacked sufficient training and experience, and were likely to abuse their authority,” Serrano’s claim says.
In another lawsuit filed by Morgan Hill resident Gary Easley against the police department, David Ray is named as a defendant. Ray and others are accused of misconduct in Easley’s arrest. That case is still in the evidence-sharing phase and has not gone to court proceedings, Wan said.
