Bob Egelko, Chronicle Staff Writer
Copyright 2006 The Chronicle Publishing Co.
All Rights Reserved
A federal judge in the case of two San Francisco men who claim they were beaten by Officer Alex Fagan Jr. in his early months on the force has dismissed all claims against the city, finding no evidence that police officials knew of Fagan’s alleged tendency to use excessive force.
Fagan’s having been referred to counseling for his use of force as a police trainee, his supervisor’s assessment that he showed a “lack of anger management,’' and his own admission of past criminal violations and a “fiery temper’’ were not enough to put the department on notice that he would violate a suspect’s constitutional rights, U.S. District Judge Martin Jenkins ruled Friday.
The department’s treatment of Fagan, son of then-Assistant Chief Alex Fagan Sr., did not demonstrate “a policy or custom of permitting the use of excessive force and failing to punish officers for such conduct,’' Jenkins said.
He also rejected requests by the two plaintiffs to defer a ruling and allow them to seek more evidence based on a series in The Chronicle in February, which found that fewer than 100 San Francisco officers, including the now-departed Fagan Jr., were responsible for one-fourth of all reported incidents of force between 1996 and 2004 and that the department did a poor job in controlling their behavior.
Jenkins said The Chronicle articles did not address the question of whether the police had “a policy of unlawful use of force’’ during the period covered by the case.
One plaintiff, James Henry Washburn, said he was crossing a street near Golden Gate Park in January 2002 when Fagan and Officer Walter Contreras tackled him, threw him to the pavement and took him to jail. The officers said he was blocking traffic and resisted arrest. Charges against him were dismissed, said his lawyer, Dennis Cunningham.
The second plaintiff, Kevin Jordan, said he was looking for his keys in a parking lot in July 2002 when he was attacked by Fagan and his partner, who had been summoned by security guards. Jordan suffered two rib fractures and a lung puncture. Fagan’s partner said the officers had to subdue Jordan after he tried to grab Fagan’s gun. Jordan was granted diversion on a misdemeanor charge of resisting arrest.
Four months later, Fagan and two other off-duty officers got into a scuffle with two men outside a Union Street pub after an argument over a bag of fajitas. The three officers were later acquitted of criminal charges. A civil suit against the officers is pending in Superior Court, but another federal judge cleared the city of legal responsibility for the incident April 6.
Suits by Washburn and Jordan against the officers in their cases are pending in federal court, where Jenkins’ ruling removed the city as a defendant. Jury selection started Monday in Washburn’s suit, and Jordan’s case is scheduled to go to trial in June.
Cunningham said he would appeal the ruling after Washburn’s trial. He said the city ignored numerous warning signs in Fagan’s record, and courts at all levels “look the other way.’'
Deputy City Attorney Sean Connolly said in a statement that the ruling validated the city’s view that claims of a police policy condoning excessive force were “self-serving conjecture.’'