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Fired police returned to the streets

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Last year, Police Chief William McManus explained to an arbitrator why he had decided to fire an who was heard on a body camera repeatedly calling a handcuffed prisoner the n-word.“How can you have an officer working in the community that is as diversified as here with African-Americans as part of the population, after the public sees that he’s out here calling people the n-word, the (expletive) n-word, to quote?” McManus said. “That is the most inappropriate language I have ever heard used during an arrest, especially to a minority.”Until then, the police chief’s decision wasn’t controversial. A review board made up of civilians and sworn officers had unanimously recommended the firing of officer Tim Garcia for his conduct that morning in July 2018 while arresting a black man accused of criminal trespassing at the Shops at Rivercenter.But the arbitrator — Thomas Cipolla, an Austin lawyer selected in part by the San Antonio Police Officers Association to decide Garcia’s fate on appeal — disagreed.Despite Garcia’s “continued barrage of racially charged words,” the officer likely just was “off that day and said some awful things he should not have said and is now sorry for them,” Cipolla wrote. “I do not think there is convincing evidence to conclude that (Garcia) is a racist. One diatribe does not automatically denote a racist.”With that, Cipolla overruled the judgment of McManus and the review board, unilaterally reducing Garcia’s punishment to a 10-month suspension. The officer now is back on patrol.The reversal was the most recent in a string of local appeals in which officers fired for serious misconduct were returned to the Police Department by third-party arbitrators, a process tilted in the officer’s favor and enabled by state law and a collective bargaining agreement between the union and the city.Under state law, officers have the right to appeal to a “qualified neutral arbitrator.” It offers no limits to an arbitrator’s authority to re-evaluate disciplinary decisions.In the past decade, arbitrators have returned 10 fired officers to the force, reversing McManus’ judgment in about 14 percent of 71 terminations, city records show.Two of the officers, including Garcia, won their jobs back despite internal investigations that found allegations of racist behavior.In that same period, arbitrators upheld 13 terminations. Under the threat of arbitration, McManus himself allowed 20 officers to return to the force after he fired them — another 28 percent of terminations.As continue demanding an end to systemic racism and police brutality following the killing of George Floyd while in the hands of Minneapolis officers, some reforms have begun to take hold.Among them, the Texas agency that regulates police has agreed to require every officer in the state to complete implicit bias training. And in San Antonio, police no longer are permitted to shoot projectiles such as wooden or rubber bullets unless McManus directly approves such use of force.But new rules are rendered toothless when officers who break them are shielded from accountability by state law and union contracts, said Stephen Rushin, a law professor at Loyola University Chicago who specializes in police accountability.“Policy changes can only do so much if you’re unable to regularly and rigorously enforce them,” Rushin said.Last year, Rushin published an that considered police union contracts from 656 agencies across the country. He found the final word on how officers are punished frequently rests with outside arbitrators who are given expansive authority to serve as “the true adjudicators of internal discipline” in many police departments.Nearly half of all the union contracts analyzed by Rushin — including the held by police in San Antonio — allow officers to appeal to an arbitrator; give the union some power in selecting the arbitrator; allow the arbitrator to override previous decisions; and make the arbitrator’s decision final and binding.The union contract in San Antonio goes even further, barring the police chief from punishing officers for any misconduct that occurred more than six months earlier, or invoking any discipline handed down more than two years before any new allegations.Under these circumstances, Rushin said, police chiefs effectively are reduced to prosecutors arguing a case to a third party who might agree with the allegations yet disagree with the severity of a punishment.More for youMcManus said that in San Antonio, arbitrators have rarely — if ever — challenged the findings of internal investigations.“If there’s a fact issue, prove me wrong and I’ll concede and bring the person back,” McManus said. “But I can’t remember any fact issues that have caused somebody to be returned to duty.”He added, “When I fire somebody, they need to stay fired.”Mike Helle, president of the police union, defended the use of arbitrators as a check on McManus, who he said “tries to rule as if he’s a monarch.”A “case in point,” Helle said, was McManus’ failed attempt to fire Garcia for using the n-word.Garcia “said, ‘Look, I shouldn’t have said it, it was a lapse in my moment,’” Helle said. “And if anybody knows a lapse in a moment when they lose their composure, our mayor (Ron Nirenberg) said the exact same offensivelike cuss word when he used the word G-D (goddamn) when he was on TV in front of the entire crowd and audience, right?”to a crowd protesting police violence outside the Bexar County Courthouse this month, Nirenberg said, “Hold me accountable. … I’m the mayor of this goddamn city and we’re going to make change together.”Asked whether he really believes the word used by Nirenberg is as offensive as the n-word, Helle said: “For me, yes, it is. Why don’t you go ask one of our pastors or anybody that that’s their faith?”During Garcia’s hearing before the arbitrator, a supervisor also downplayed the officer’s use of the n-word, calling it “bantering” between Garcia and the prisoner.It wasn’t the first time a San Antonio police officer’s career has survived allegations of racism.By the time Lt. Lee Rakun retired in February, he had been fired no fewer than seven times and otherwise suspended 10 times by four police chiefs over a span of decades — and weathered all attempts to jettison him from the department, thanks in large part to his right to arbitration.In 2005, then-Sgt. Rakun told another Anglo sergeant that “he was not the right skin color for the shift,” an internal affairs investigation found. That earned Rakun a 20-day suspension, later reduced to three days.By 2012, Rakun had survived four firings in connection with a variety of offenses, including allegations of domestic violence, and ascended to the rank of lieutenant when he once again faced allegations of racist behavior.That year, Rakun and a group of friends hired a limousine to take them to nightclubs around the city. Shortly before midnight, they arrived at Silo, an upscale restaurant and bar, and Rakun tried to enter with a bottle of Bacardi rum.A Bexar County deputy constable who was working security that night stopped the off-duty officer, who protested that he “was SAPD.” Eventually, Rakun returned to the limo to leave the bottle.“That (expletive) Mexican wouldn’t let me in,” Rakun said, according to the testimony of the limo driver.Rakun again tried to enter the bar, and the deputy once again stopped him — this time because Rakun appeared to be drunk. That allegedly caused the lieutenant to unleash a torrent of racial slurs on the deputy, including “wetback,” “spic” and “beaner,” according to the deputy’s testimony.Rakun later denied to investigators that he used those words. McManus fired him anyway, in part because he believed Rakun was lying.An arbitrator wasn’t particularly troubled by either of these allegations — the racial slurs or the lying.“I want to make clear that this finding should not be interpreted to suggest that Lt. Rakun is racist,” wrote William McKee, a resident of Denton. “The evidence shows that (Rakun) was somewhat intoxicated and that he was angry. It seems equally or more likely that Lt. Rakun chose his words to be hurtful to their target rather than to voice his personal feelings about Mexicans or Hispanics in general.”McKee also explained that he doesn’t necessarily consider it lying to deny something that’s true.“Many arbitrators, including myself, are reluctant to sustain a charge of untruthfulness based solely on the fact that an appellant denied the charges and put a city and department to its proof,” he wrote. “I recognize the city’s position that officers are required to be truthful at all times, but I am also aware that there is a distinction between making an affirmative misrepresentation … and simply declining to admit the wrongdoing of which the officer is accused.”McKee reduced Rakun’s discipline to a 45-day suspension — an outcome that surprised Bexar County Sheriff Javier Salazar. At the time, Salazar was an SAPD sergeant in internal affairs and lead investigator on Rakun’s case.“If you can’t show enough restraint to not hurl those kind of insults at somebody, then my opinion, you have no business serving as a peace officer,” Salazar said in an interview.This month, Salazar had another chance to put this philosophy into practice.On June 3, police arrested then-sheriff’s Deputy Luis Lopez on charges of firing a weapon and resisting arrest. While Lopez was being booked, he resigned from the Sheriff’s Office. According to Salazar, the former deputy also spat racial slurs, including the n-word, at an African-American detention sergeant.Two days later, Tanner Barnes, an attorney with the Combined Law Enforcement Associations of Texas, sent Salazar a letter disputing the validity of Lopez’s resignation due to his “intoxication.”“Such resignation may not be legal due to the intoxication of Deputy Lopez on this night,” Barnes wrote.Like San Antonio police officers, Bexar County sheriff’s deputies have a right to appeal to an arbitrator, whose decisions on punishments may override Salazar’s.Salazar wrote back that the deputy’s resignation will stand.“Mr. Lopez was recorded on body camera video hurling racial slurs at a detention sergeant for the city of San Antonio who happens to be African-American,” the sheriff told the attorney. “He was observed and recorded referring to the sergeant as ‘That Black Lives Matter Sergeant’ and the N-Word.“In our line of work, intoxication is not a defense,” Salazar added in the letter, “nor will I allow a former employee to use it as an excuse to justify his illegal actions and racist behavior.”Arbitrators who return fired San Antonio police officers to the force rarely dispute the allegations leveled by internal investigators, records show.There was no disputing of facts when McManus fired Detective Emanuel Keith last year for threatening to kill his estranged girlfriend in a slew of text messages and voicemails.“I’m going to end you!” he texted.Keith admitted to sending the messages, called “chilling” and “calculated” by an arbitrator from Dallas. Nonetheless, William Hartsfield reduced Keith’s firing to a 90-day suspension.Hartsfield based his decision on the outcome of a separate case involving McManus’ former driver, officer Jose Zuniga.Three years earlier, Zuniga had “performed a choke” on a woman, police records show, resulting in a 90-day suspension. Hartsfield wrote that he returned Keith to the force because his firing was “not consistent” with Zuniga’s discipline.In an interview, McManus said “the facts were different” in Zuniga’s case. The woman, he said, had broken into Zuniga’s house.“Every case is judged on its own merit,” McManus said.There also was no disputing of facts when McManus fired officer Matthew Luckhurst in 2016 for placing dog feces between two slices of bread and placing it close to a homeless man.Luckhurst admitted to doing so. Nonetheless, an arbitrator reduced the firing to a five-day suspension because McManus had not punished Luckhurst within six months of the incident as required by the union contract.Luckhurst was not returned to the force, however. He was battling another termination for allegedly smearing “a brown substance with the consistency of tapioca” on a toilet seat in the women’s locker room of the downtown bike patrol station.And there was no disputing of facts when McManus fired officer Matthew Belver in 2016 for removing a prisoner’s handcuffs and challenging him to a fight.“I’m going to beat your ass,” Belver told the prisoner in an exchange captured on a dash camera. “Are you ready? Let’s go. Run. … Do something.”The prisoner declined to fight the officer.Defending Belver’s firing in arbitration, the city noted a similar incident had occurred in 2009.That year, Belver arrested someone for DWI who suffered facial injuries requiring medical attention. The prisoner later swore in an affidavit that Belver had taken off his handcuffs, challenged him to a fight and then punched him in the face when he declined.McManus fired Belver for that incident but later agreed to reinstate him if he completed additional training. When McManus tried to invoke the 2009 incident to justify Belver’s 2016 firing, the arbitrator, a resident of Bellaire, rejected it as “inadmissible” due to the union’s contract with the city.The arbitrator reduced Belver’s discipline to a 45-day suspension, citing the officer’s promise to “avoid any similar conduct in the future.”Belver is back on patrol, but a partner always must accompany him.In an introduction to his study on police union contracts, Rushin of Loyola University Chicago described Belver’s case.“Stories like this should worry police reform advocates,” he wrote. “The story from San Antonio is hardly unique.”Rushin noted an alternative used in other cities, such as Grand Rapids, Mich. There, officers may appeal to an arbitrator. But the authority of the third party is limited only to a determination of the facts.If the facts support the violation, then the arbitrator may not modify the discipline.“That could be a remedy for a huge chunk of the problems that we’re dealing with,” Rushin said. “We do want the appeals process to capture sloppy investigations. You want to capture clear factual mistakes on the part of the investigators.“What I think police chiefs are more frustrated by,” he added, “is when they feel their personal judgment is replaced by someone who doesn’t know their departments, has no stake in the community and doesn’t understand what the decision means for the community.”McManus echoed that concern.“That’s my point with arbitration,” he said. “Arbitrators come in and they don’t have to worry about community reaction or community sentiment about this. I do. Law enforcement does. They don’t care about that. It doesn’t concern them. They don’t look at the entire picture.”In the case of Luckhurst, Cipolla — the same arbitrator from Austin who reinstated Garcia after that officer used the n-word — saw a bigger picture.As it turned out, the “brown substance” that Luckhurst smeared on the toilet in the women’s locker room came from a “boba tea smoothie.” Luckhurst admitted he had done this because he had seen a white board with a note requesting the bathroom be kept clean, as well as posters of Dwayne “The Rock” Johnson and Ryan Gosling in the women’s locker room.He “thought the posters were making fun of ‘us,’ meaning the males, by saying they weren’t as muscular or as good looking as the actors,” police records say. Luckhurst admitted he “purposefully left the mess specifically for ‘female officers.’”McManus called Luckhurst’s actions “one of the most disgusting, vile, repulsive things that anybody has ever done.”For once, Cipolla agreed.“I reject the argument that (Luckhurst’s) actions were a ‘prank’ or ‘horseplay’ rather than what they really were — blatantly offensive, revolting, disgusting and demeaning,” he wrote. “Lacking a compelling argument to the contrary, I feel constrained not to intrude upon the police chief’s right to discipline his work force for cause.”Luckhurst’s termination was upheld.Staff Writers Josh Fechter and Emilie Eaton contributed to this report.

Last year, Police Chief William McManus explained to an arbitrator why he had decided to fire an who was heard on a body camera repeatedly calling a handcuffed prisoner the n-word.“How can you have an officer working in the community that is as diversified as here with African-Americans as part of the population, after the public sees that he’s out here calling people the n-word, the (expletive) n-word, to quote?” McManus said. “That is the most inappropriate language I have ever heard used during an arrest, especially to a minority.”Until then, the police chief’s decision wasn’t...

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