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'DAMNING AND DISTURBING': SFPD OFFICER SUSPENDED FOR ILLEGALLY SEARCHING MAN WHO
PARKED IN A RED ZONE


Sukey Lewis
Apr 15
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SFPD Officer Brett Hernandez was suspended for violating a man's Fourth
Amendment rights in 2019. The Department of Police Accountability found that
Hernandez 'escalated a parking violation to an intrusive detention, pat search,
and take down.'  (Courtesy of the San Francisco Department of Police
Accountability)

A San Francisco police officer was suspended in February for violating a man’s
Fourth Amendment rights in 2019, newly released internal police accountability
documents show.

That finding of misconduct, which was appealed by SFPD Officer Brett Hernandez,
was upheld in February, paving the way for its release under Senate Bill 16, an
expanded police transparency law that opens up records of false arrests and
illegal searches, discrimination and excessive use of force by police officers.

The first documents released by the city to KQED this week under the new law
shed light on one of the most complex and robust police accountability systems
in the state. The city's police department and the independent department that
investigates civilian complaints both are overseen by the San Francisco Police
Commission, which found that "the basic values that we as a society hold dear"
were at stake in the case.


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Still, the documents also raise a question: Why were concerns about the
officer’s credibility never addressed?

On January 24, 2019, around 11 a.m., Ibrahim Nimer Shiheiber pulled up to the
curb in front of a sandwich shop in the Inner Sunset to grab a Philly
cheesesteak for lunch. He parked in a red zone with his tail end blocking a fire
hydrant. Shiheiber put his hazards on and headed toward the shop.

At that moment, an SFPD cruiser pulled up and two officers jumped out. Officer
Hernandez and a female officer named Jacqueline Hernandez, no relation,
approached the then-30-year-old and turned on their body cameras.







Above, SFPD officer bodycam footage shows the 2019 incident between Officer
Brett Hernandez and Ibrahim Nimer Shiheiber, over his stopped vehicle. (Courtesy
of the San Francisco Department of Police Accountability)

“You're detained, buddy,” Hernandez told Shiheiber in the footage.

“For what? Why are you guys just bothering me?” Shiheiber asked.

The officers said his car was illegally parked, and Shiheiber argued with them
briefly about whether or not he was “stopped” or “parked,” but said he’d move
his car. They told Shiheiber he could not move his car because he was being
detained, and Hernandez began to pull on his blue latex gloves.

“Here’s my ID, and that’s all that I’m giving you,” Shiheiber said, passing the
officer his identification. “You have no right to touch me.”

“Yes, I do,” Hernandez said.

Shiheiber continued to insist that the officers did not have the right to touch
him, even as they forcibly grabbed him, took him to the ground and handcuffed
him.

“I was scared,” Shiheiber said in a recent interview. “You have no options. If
my fight-and-flight instinct kicks in, and I try to defend myself, they’re going
to say I’m resisting. And if I don’t try to defend myself, I don’t know what
this guy’s going to do.”

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The officers ultimately released Shiheiber with a citation. Shiheiber said his
shirt was torn, his face and side were scraped up and his hip hurt from where an
officer held him down.

“I decided it was time that I needed to take action,” he said.

First, Shiheiber walked into the police station at 850 Bryant Street and told
the desk officer he wanted to “file an assault charge” against a police officer.

“We don’t do that here,” she told him, Shiheiber, now 33, recalled.

She directed him to the Third Street police station. There an officer told him
to go back to Bryant Street. Finally, Shiheiber said a Black female officer
whispered to him where he needed to go: the Department of Police Accountability.

An SFPD spokesperson declined to comment for this story, saying in an email,
“Because this involves a personnel disciplinary matter, we are unable to provide
public comments.”

Hernandez's lawyer Christopher Shea said the discipline his client later
received was "unwarranted" and that an internal investigation into the incident
by the department found "he acted within his discretion and committed no
misconduct."

However, unlike most police accountability systems across the state, which rely
on officers inside the department to investigate civilian complaints, San
Francisco also has an investigative body entirely independent of the police
department. The DPA receives complaints from people like Shiheiber, investigates
and makes findings, which it passes along to the police chief or, in more
serious cases, the San Francisco Police Commission for disposition.

“If we recommend that an officer be sustained for misconduct and we recommend
less than 10 days' suspension, the chief can say yes or no,” explained Stephanie
Wargo-Wilson, the DPA attorney who handled Shiheiber’s complaint. “If we
recommend an 11-day suspension or more, then that case is eligible to go to the
police commission.”

The San Francisco Police Commission also is unusual in that it has the authority
to discipline officers. Most civilian oversight bodies can recommend
disciplinary action, but only the chief or the sheriff have the power to impose
it.

Ibrahim Nimer Shiheiber, 33, filed a complaint with the Department of Police
Accountability against SFPD Officer Brett Hernandez on Jan. 24, 2019. Hernandez
was suspending for violating his Fourth Amendment rights. (Sukey Lewis/KQED)

Shiheiber said he was “treated very respectfully” at the DPA. Investigators took
photos of his injuries, listened to his story, and opened a case.

In November of 2019, the DPA sent its findings to Police Chief Bill Scott.

“Officer Brett Hernandez escalated a parking violation to an intrusive
detention, pat search, and take down that caused [redacted] pain. He could have
just as easily left a ticket on the car,” the report found.

The DPA also found that Hernandez violated Shiheiber’s Fourth Amendment rights,
which protect the public from unreasonable searches and seizures. Investigators
also did not find Hernandez’s justification for the search believable.

Hernandez told the DPA and police commission investigators that Shiheiber “was
constantly” reaching into his pockets and that his baggy clothing “can conceal
weapons.”

'I was scared ... You have no options. If my fight-and-flight instinct kicks in,
and I try to defend myself, they're going to say I'm resisting. And if I don't
try to defend myself, I don't know what this guy's going to do.'Ibrahim Nimer
Shiheiber

“The fact that he was walking away, failing to comply with commands, being
verbally aggressive towards us, it’s my training and experience that that is an
indicator that somebody might have weapons on their persons and for the safety
of myself and my partner, fear of our safety I conducted a pat search,” he said,
according to a recording of the interview released by the DPA.

But the report pointed out that, during the exchange, the only time Shiheiber
reached into his pocket was when he gave the officers his identification, which
can be seen on body camera footage. He does not act violent in any way, and
there are no visible bulges that would indicate a weapon.

“Officer Brett Hernandez used buzzwords in place of facts — ‘totality of
circumstances,’ ‘aggressive,’ and ‘officer safety’ are words often used in place
of hard facts,” the report found. Shiheiber, according to the report, “failed
the attitude test. He deigned to argue with police officers and assert his
Fourth Amendment rights.”

Hernandez also told investigators that Shiheiber tried to flee from officers.

“This is simply not true – once it was clear that the police were detaining
[redacted] he made no attempt to ‘flee,’” the report reads.

This is a stunning finding because a police officer’s credibility is at the
heart of their ability to do their jobs — to write police reports and provide
sworn testimony.

If a police officer with credibility issues is called to testify in a criminal
case, the district attorney also is required to notify the defendant in that
case, according to the Supreme Court ruling Brady v. Maryland. To meet this
obligation, Rachel Marshall, director of communications and policy adviser for
the San Francisco DA, said in an email that the SFPD has formally agreed it will
proactively notify prosecutors “when they learn that one of their members has
potential Brady materials in their personnel file.”

Marshall wrote that her office is “not aware of this incident and are unaware of
any cases impacted by it.” She said recent police transparency laws SB 16 and SB
1421 have helped prosecutors comply with Brady.

"Officer Hernandez was never formally accused of dishonesty and no finding of
dishonesty was suggested during this process," Shea wrote in an email.

The DPA did not charge Hernandez with dishonesty, according to the documents.
Wargo-Wilson said she could not comment on the reasons for that.

The San Francisco Police Commission suspended Hernandez for 10 days with another
five days that would be imposed if Hernandez violated policy again, and it
ordered him to get more training.

In its conclusion, the commission found video of the incident “damning and
disturbing.”

“If [redacted] can be mistreated this way by the police under the circumstances
of this case, then anyone on the street may be subject to a pat search on flimsy
grounds,” the DPA's report reads.

“This case involves poor policing that resulted in a violation of [redacted’s]
rights, but the potential damage of police misconduct such as that of Officer
Hernandez implicates the community as a whole, not just [redacted].”

The documents released this week do not definitively indicate whether Chief
Scott agreed with the DPA’s findings, and his spokesperson said he declined to
comment on the case. But the documents show that Hernandez’s attorney told the
police commission that the chief disagreed with the DPA.

"The plight of Officer Hernandez is an example of the overreach and lack of
knowledge regarding the law by the Police Commission and the Department of
Police Accountability," Shea wrote in an email.

Hernandez appealed his discipline, but on Feb. 1, 2022, an administrative law
judge with the city’s Office of Administrative Hearings ruled the discipline
would stand.

Shiheiber said he didn’t know about the officer’s suspension until KQED
contacted him for an interview. He said he’s gratified by the findings of the
DPA and the commission, but questioned why Hernandez was still on the force at
all.

“Police are supposed to be held to a higher standard,” he said. “They’re not
supposed to be above the law.”

Shiheiber also filed a civil lawsuit against the city, which is ongoing. He said
police officers do have a difficult and dangerous job.

“If I was a police officer, I wouldn’t make my job harder and go mess with
people that didn't warrant my attention,” he said. "'Cause there's actual things
out there."

This story has been updated to include comment from SFPD Officer Brett
Hernandez’s attorney Christopher Shea.




Above, read the full transcript of Officer Brett Hernandez's administrative
hearing, hosted on DocumentCloud.



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