A San Francisco police officer accused of fabricating a man’s arrest is back on patrol even after a federal judge threw a case over false testimony, the San Francisco Examiner learned.

Officer Nicholas M. Buckley was put on duty while awaiting the outcome of an administrative investigation after US District Judge Charles Breyer found that his March 2016 testimony in a federal arms case was “completely” disproved by surveillance video.

Buckley testified that a man named Brandon Simpson had his hands hidden when he walked away from an illegal dice game in the Tenderloin in December 2015, which led to his arrest for allegedly being a criminal in possession of a firearm. However, the surveillance video recovered by the defense revealed that Simpson had exposed his hands and was even holding a water bottle, among other things.

The revelation prompted Breyer to dismiss the charges against Simpson and instruct the US attorney general to take appropriate action. He was “not angry” but “deeply sad” about the behavior.

“The worst thing in the world for a judge and a prosecutor is to convict an innocent person or convict a person on a sworn testimony because it is at the heart of a judicial system that must be successful and accepted by the citizens of a country “Said Breyer at the time. “And if that is seriously questioned, then the affront is against us all.”

The case has been referred to federal agencies in the Eastern District of California for criminal investigation into potential perjury and to the San Francisco Police Department for administrative review.

In March last year, the SFPD moved Buckley from his private contact position to Taraval Station, the department confirmed on Wednesday. He was later taken to Bayview Station, where he has been on patrol since last October, making arrests, gathering evidence, and preparing incident reports.

The US Attorney’s Office for the Eastern District of California had closed its investigation into Buckley without bringing charges against him, sources told the investigator.

The results of the SFPD’s administrative investigation were not disclosed.

Tony Montoya, president of the San Francisco Police Officers Association, said Buckley had been “cleared of all charges of dishonesty” both criminally and administratively, but declined to provide further details.

Buckley’s return to the field could create problems for any law enforcement agency looking to prosecute a criminal case on his word only. If Buckley is needed to take the stand, problems with his previous testimony could force the prosecutor to reject a case or refuse the filing altogether.

Defense attorneys could otherwise attack his credibility based on his previous behavior in federal court.

“There are many reasons we may not be able to get a conviction in a particular case,” said District Attorney Chesa Boudin. “We never want to be able to reject a case that we might otherwise be pursuing because there is a dirty cop in the middle.”

At the end of 2019, the SFPD had 123 officers on a confidential list of police officers whose checkered past could cause problems in court, including a member of the command staff and eight commissioned officers such as lieutenants and captains, the department said at the time.

In June last year, Boudin put in place a policy to remedy the problem by forbidding his office to bring charges in any case based solely on the calculation of an official who has a history of dishonesty or other types of wrongdoing. The policy is designed to prevent the accused from being falsely accused.

Buckley’s reassignment also raises concerns about the extent to which the SFPD is holding officials accountable for suspected wrongdoing through its secret internal affairs division, which in most cases is not required to disclose police discipline information under state law.

Ellen Leonida, a former federal defender who represented Simpson in the gun case, was stunned to learn that Buckley was back on duty.

“It is just incomprehensible that he was not charged with a crime, let alone that he is on the street and still interacting with citizens,” said Leonida. “It’s just horrific that he’s still allowed to wear a badge.”

Leonida said Buckley’s testimony was beyond “exaggeration or misconception” and that the surveillance tape was “irrefutable evidence” that Buckley deliberately lied. To prove perjury, prosecutors must show a person who knowingly made a false testimony under oath.

“He just made up a whole series of events that never happened,” said Leonida. “What exactly do you have to do to get fired from the San Francisco Police Department? When it doesn’t, I keep thinking that there was no video evidence. “

Buckley joined the SFPD in May 2013 and is one of two officers of the same name in the force – the other is a sergeant unrelated to the case, department records show. He made as little as $ 182,1896, including benefits as of 2019, according to Transparent California website.

Buckley’s provided attorney James Lassart, provided by SFPOA, did not respond to requests for comment at press time.

Montoya, the police union leader, said he had spotted Buckley at the mission station prior to the Tenderloin incident, calling Buckley an “ethical” police officer.

“He was a hardworking cop who just went out there and did his job well with pride and professionalism,” said Montoya, a police sergeant. “I wouldn’t be concerned about supervising him on the spot.”

The US Attorney’s Office for the Eastern District of California, the FBI Sacramento, believed to have conducted the criminal investigation, and the SFPD each declined to comment on the results of their investigations.

However, in a statement, Police Chief Bill Scott said, “Our internal disciplinary process blames officers.”

Scott also said independent authorities, including a grand jury and the prosecution under former District Attorney George Gascon, were each reviewing Buckley’s statements.

“These allegations have been carefully considered by various agencies outside the department and the city and county of San Francisco,” said Scott. “After independent review of all evidence related to the 2015 incident, none of these reviews found a basis for prosecuting perjury charges against Officer Buckley.”

Scott said he was by Buckley and the “multiple determinations by external, independent evaluations”.

“If we are to reaffirm the principles of procedural and restorative justice for all, we must involve our officials in disciplinary matters,” said Scott. “I have every confidence in Officer Buckley to serve with honors in the San Francisco Police Department.”

Buckley’s testimony does not appear to have led to an investigation by the Department of Police Accountability.

The police guard can recommend discipline to the chief or the police commission, but cannot initiate a dishonesty investigation under the city charter unless a complaint is filed or a case is referred by the SFPD, according to DPA director Paul Henderson.

Under California law, agencies like the DPA and SFPD have only one year to discipline an officer once suspected wrongdoing is discovered. This clock will pause when a criminal investigation or prosecution is in progress.

Court records from a separate civil lawsuit Simpson filed against the city and county of San Francisco show that the statute of limitations for the SFPD has not expired pending the outcome of the FBI investigation.

However, that deadline had expired when the DPA received a complaint from the prosecutor about the matter in 2019, a DPA lawyer wrote in response to the complaint.

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