Former San Rafael officer in abuse case seeks reinstatement

A former San Rafael police officer is fighting to get his job back nearly a year after he was fired over alleged mistreatment of an arrestee.

Brandon Nail is undergoing an appeals process to reverse the city’s decision to dismiss him.

City officials said they stand by their decision.

“The city is vigorously defending its employment decision at the arbitration and believes that termination was the appropriate decision in this matter,” San Rafael City Attorney Rob Epstein said.

The arbitration process is facing a hurdle.

Julio Jimenez Lopez, the San Rafael man who accused Nail and former officer Daisy Mazariegos of assaulting him, has refused to testify as a witness in the proceeding.

An internal affairs investigation of the officers’ 2022 confrontation with Lopez cost the officers their jobs and led the Marin County District Attorney’s Office to file assault and false police report charges against them. A judge has since dismissed the false report charge against Mazariegos.

Lopez declined to provide testimony in Nail’s employment arbitration hearing despite being subpoenaed by the arbitrator. Pedro Camach, a witness to the Nail incident, also objected to the arbitrator’s subpoena for his testimony.

The city filed a motion in Marin Superior Court to compel Lopez to comply with the subpoena. Judge Stephen Freccero will hear the matter on Tuesday.

Lopez’s attorney, Theo Emison, has proposed to have his client testify but keep the testimony confidential. Lopez is also involved in a federal lawsuit against the city for alleged civil rights violations by Nail and Mazariegos. Emison wants Lopez’s testimony in the employment hearing to be confidential so it cannot be used in his client’s federal suit.

“The city is aware of no legal basis supporting the demand made by Mr. Lopez’s attorneys,” Epstein said about Lopez’s legal challenge.

Emison and other attorneys at the Veen Firm in San Francisco argued in a joint declaration that only a California state judge has the power to enforce a subpoena for a third-party witness in an arbitration case.

The attorneys also wrote in their March 28 challenge that Lopez already testified against Nail at the criminal case’s preliminary hearing last year. Judge Beth Jordan determined there was enough evidence to justify a criminal trial. A trial date has not been set.

“All relevant information is on the table and there is no utility in an additional examination or cross examination,” the Veen Firm’s lawyers wrote in the declaration.

They noted that the city possesses the video footage of the use-of-force incident that was recorded by the body-worn cameras of Nail and Mazariegos.

The city is challenging Lopez’s refusal to testify in Nail’s hearings.

“Lopez has repeatedly attempted to cripple the city’s ability to effectively and fully put on its case for discipline by refusing to testify at the arbitration hearing,” wrote Brian Affrunti, the private attorney representing the city, in an opposition filing.

The attorney noted that the arbitrator, identified in court documents as Daniel Saling, declined the use of the court transcript that has Lopez’s testimony in Nail’s preliminary criminal hearing. He said that Saling then left the record open for Nail’s employment arbitration so that the city could compel Lopez’s testimony.

Affrunti wrote there is no assurance that Nail’s arbitration hearing will be fair if there is no ability to enforce witness subpoenas.

“Moreover, Mr. Lopez was the recipient of Mr. Nail’s improper, disrespectful, and aggressive behavior,” he wrote. “As the recipient of this conduct, Mr. Lopez is the best witness to testify regarding what occurred.”

On July 27, 2022, Mazariegos contacted Lopez when she saw him drinking alcohol with two people in public. Nail arrived and got into a confrontation with Lopez when the officer ordered him to sit while he stood up to retrieve his identification. The situation escalated when Nail and Mazariegos attempted to handcuff him. Nail allegedly tripped him and punched his nose before placing him in handcuffs.

The Marin County District Attorney’s Office dropped criminal charges against Lopez after reviewing the police body-worn camera footage of the incident. Nail was fired from the police force in June and he began appealing the city’s decision two days after his dismissal, according to court documents.

Epstein said that Nail exercised his due process rights under the city’s labor agreement with the San Rafael Police Association to an arbitration in order to recover his job.

In addition to the civil court hearing on Lopez’s subpoena, the criminal case of Nail and Mazariego will also have its next hearing on Tuesday.