San Rafael files reveal new details in police abuse probe

A former San Rafael police officer charged with assaulting a resident and falsifying his report about it had sparked concerns about his trustworthiness even before the incident, according to a trove of internal files obtained by the Independent Journal.

The files also reveal that an internal review of Brandon Nail and another officer who was involved in the incident cleared them both of using excessive force — even though prosecutors later determined that their conduct justified criminal charges.

The Independent Journal obtained the records — including police reports, department correspondence, graphic injury photographs and audio files — after suing the city, which initially refused to release them. San Rafael released the materials on Monday in response to a recent order by Marin County Superior Court Judge Andrew Sweet.

The files show that the San Rafael Police Department fired Nail over his actions in arresting Julio Jimenez Lopez on July 27, 2022. The other officer involved in the incident, Daisy Mazariegos, was released from employment as well. She was a relatively new officer and still on probation.

Lopez, 37, suffered injuries from a struggle that ensued when Mazariegos and Nail attempted to handcuff him. The confrontation happened after Mazariegos began questioning Lopez and two other men about drinking alcohol in public in violation of a city ordinance.

Police typically treat such violations as an infraction and issue a citation. In this case, however, Lopez was booked into Marin County Jail on allegations of resisting police.

Based on the police reports, the Marin County District Attorney’s Office initially filed a felony case against Lopez, but prosecutors dismissed it after viewing footage from the arrest.

In January, Lopez filed a claim against the city stating that he suffered nose fractures, cuts, bruises and a torn labrum in his shoulder that required surgery.

The district attorney’s office has charged both Nail and Mazariegos with assault by an officer under color of authority and making false statements in a crime report. They have pleaded not guilty.

Mazariegos’ attorney, Christopher Shea, said Frugoli hired her own expert, David Blake, to examine the performance of the officers. Blake told her “there was no unlawful force used by the officers,” Shea said.

“She chose to ignore that report and file criminal charges anyway,” said Shea, a former Marin County prosecutor.

Frugoli, in an email, responded: “Our thorough review in this case included Mr. Blake’s report and findings which we took into consideration in our filing decision.”

San Rafael hired private investigator Paul Henry, a former Santa Rosa police lieutenant, to determine whether Nail and Mazariegos violated department rules. Henry submitted his report to the city in April.

The Independent Journal obtained Henry’s reports as part of its lawsuit. Henry found that the evidence did not sustain the allegation that the officers failed to accurately document the facts and circumstances of their arrest of Lopez in their written reports.

But a memo sent from San Rafael police Lt. Lisa Holton to Capt. Roy Leon on Aug. 25, 2022, shows that Frugoli and members of her staff viewed the circumstances differently.

Holton wrote that Chief Deputy District Attorney Dori Ahana had said that “she and DA Frugoli watched the body-worn camera footage and had concerns about the use of force and inconsistencies in the report.”

“DA Ahana told me that their office had a prior issue with inconsistencies in a report written by Officer Nail,” Holton wrote. “In the prior case, DA Frugoli decided to handle the issue by speaking to Chief Bishop about it and letting the police department handle it internally.”

Diana Bishop, who retired in 2020, said, “That would have been a significant call from a DA to a police chief, and I don’t recall that at all.”

Bishop’s successor, David Spiller, was out of the office and could not be reached for comment. San Rafael police Lt. Scott Eberle said, “I don’t know anything about that.”

In another email on Friday, Frugoli wrote, “The prior incident did not involve the use of force. And to be clear the inconsistencies mentioned in the prior case did not include false statements or accounts of events.”

Frugoli said she was prevented from elaborating because of Nail’s ongoing prosecution. Julia Fox, an attorney for Nail, declined to comment.

Holton also wrote that Ahana said the DA’s office would consider putting Nail’s name on the state’s “Brady List.”

The 1963 U.S. Supreme Court case Brady v. Maryland prohibits the prosecution from suppressing any evidence that might be favorable to a defendant who has requested it. As a result, prosecutors must notify defendants and their attorneys if a police officer in their case has a sustained record of falsifying information. The state’s list of such officers, available to prosecutors and law enforcement organizations but not the public, is commonly referred to as the “Brady list.”

Frugoli wrote in an email that her office maintains its own notification/disclosure list, and that a committee of experienced prosecutors decides whose names go on the list.

“I’ve received Brady material on Brandon Nail regarding incidents that occurred before his abuse of my client,” said Charles Dresow, who was Lopez’s attorney before turning the case over to another lawyer.

Dresow declined to provide details regarding the material.

Marin County Public Defender David Sutton said, “Our office was involved in one of the prior instances.” He also declined to provide any details.

Sutton said that under Brady v. Maryland, Marin prosecutors would be required to disclose information about that case and the Lopez case to defendants and their lawyers if Nail was involved.

Nail was a police officer in Sausalito before joining the San Rafael Police Department in September 2019.

In a letter notifying Mazariegos that she was being released from her position, Spiller thanked her for her service. Nail’s termination letter, however, cites a long list of rules and regulations that the city asserts he broke.

The records also show that San Rafael investigated the conduct of San Rafael police Cpl. Oscar O’Con, who was also involved in the Lopez incident. O’Con allegedly failed to complete a supervisor’s use-of-force analysis form until specifically directed to do so nearly a month after the event.

Henry notes in his report that when O’Con arrived on site following the skirmish between the officers and Lopez, he and the officers turned off their body-worn cameras before discussing what happened.

“Not recording these interviews raises suspicion about what the officers may have said to Corporal O’Con about what occurred,” Henry wrote in his report. “Similar interviews should be video recorded in the future.”

Henry said O’Con also should have more critically evaluated Nail’s written reports.

“Corporal O’Con should have followed up with Officer Nail about his documentation in his written supplemental report, regarding Mr. Lopez attempting to put him into a headlock and punching him in the back of his head,” Henry wrote. “These physical assaults by Mr. Lopez are not observed on either officer’s body-worn camera videos. The fact that these assaults could not be seen on the video should have been documented and explained in Officer Nail’s written report.”

O’Con could be suspended for four days without pay for these and other alleged lapses, including not reviewing the footage from either officer’s body-worn cameras until nearly a week after he had read and approved their reports.

Spiller notified O’Con on May 11 that he recommended his suspension, but under state law O’Con is entitled to an appeal to a neutral hearing officer in a process known as a “Skelly” hearing. O’Con declined to comment for this story.

Eberle said it was a violation of department policy for the officers at the scene to turn off their body-worn cameras. Regarding the use-of-force report, Eberle said, “The report should be filed contemporaneous to the use of force.”

Henry concluded that neither Nail nor Mazariegos used excessive force during the arrest of Lopez.

Henry stated that Lopez had been legally detained and was resisting the officers’ efforts to put handcuffs on him, so they were legally justified to take him to the ground to assist with the handcuffing.

Nail told Henry that he feared that Lopez might attempt to take control of one of the weapons on his vest carrier: a Taser, pepper spray and a collapsible baton. As a result, Nail punched Lopez one time in the face, striking him on the nose, Henry wrote.

“A police officer may punch a subject, typically called in law enforcement, a personal body weapon, when the subject is actively resisting the officer’s efforts to detain him and when the officer can articulate a justifiable threat to their safety or the safety of another,” Henry wrote.

Dresow says Henry used “flawed and contradictory logic.”

“They created the need for excessive force and then somehow the force they used wasn’t excessive,” Dresow said. “Anyone who watches the video can see they used excessive force.”

Henry sustained allegations that both Nail and Mazariegos failed to consider alternate tactics to using force and failed to employ de-escalation techniques during the arrest. He also sustained an allegation that Nail was discourteous and disrespectful toward Lopez.

“Officer Mazariegos’s demeanor was stern, confrontational and officious,” Henry wrote.

Henry noted that when Lopez failed to immediately sit down as ordered by Mazariegos, Nail used profanity and told him to sit down.

Spiller, in his notice in May of his intention to terminate Nail, wrote: “At no point during your involvement in this incident did you attempt to develop a rapport with Mr. Lopez or try to gain his voluntary compliance with the directives that you and Officer Mazariegos were giving.”

“Throughout your encounter with Mr. Lopez, you approached him in a confrontational and challenging manner which further escalated the situation and resulted in you using force against Mr. Lopez,” Spiller wrote. “Your conduct toward Mr. Lopez was discourteous and disrespectful.”

Henry also sustained allegations that the conduct of both Nail and Mazariegos brought discredit to the San Rafael Police Department.

In an April memo to Henry, Eberle reported on the effect that public reaction had on the department the day after the video from the officer’s body-worn cameras was aired on television.

“I personally received over 85 voicemail messages,” Eberle wrote. “One caller left a message on my department voicemail and told me that ‘people’ were going to search social media for my family, show up at my house, and do to them what Ofc. Nail did to Julio Jimenez Lopez.”

“People also repeatedly called to say that I was part of the problem in America, all police departments are corrupt, and this incident acts as proof of the corruption,” Eberle said.

Eberle said he witnessed two department phone operators break down in tears from the abuse they received over the phone.

“The callers also would often use sexual assault references to degrade our call takers,” Eberle wrote. He said one caller told a clerk, “You should take a gun to your head and pull the trigger.”