Arbitrator report faults San Rafael in police abuse probe

An arbitrator’s decision to reinstate a San Rafael police officer accused of assaulting a detainee boils down to the officer’s “discourteous” language, not the severe injuries he inflicted, according to the arbitration report.

The Independent Journal obtained a copy of the report after the arbitrator ruled that Brandon Nail should get his job back. The arbitrator, Daniel Saling, said the city should have pursued “progressive discipline” against Nail for using profanity rather than proceeding to termination.

Saling also accused the city of overreacting in response to intense public pressure and media coverage about the bloody arrest in 2022.

While Nail is facing criminal assault charges in connection with the arrest, Saling’s report does not consider the question of excessive force. Saling cited an earlier independent review by Paul Henry — the consultant whom San Rafael hired to investigate the incident — that concluded the excessive force allegation was “unfounded.”

“The Department’s decision to terminate the Appellant was not for just cause,” Saling wrote. “The Department’s decision to terminate the Appellant was excessive and unjust based on the totality of the circumstances.”

San Rafael police Lt. Scott Eberle declined to comment on the arbitration report.

The incident happened on July 27, 2022, on Windward Way in the Canal area. Officer Daisy Mazariegos approached Julio Jimenez Lopez and some companions because they appeared to be drinking alcohol along the street. Nail arrived to assist.

The officers ordered Lopez to sit down, but he stood to get his identification out of a pants pocket. Nail, using a profanity, commanded him to sit.

Both officers tried to handcuff Lopez after he allegedly disobeyed their orders to sit down. When Nail performed a leg sweep to bring him down, Mazariegos lost her grip on Lopez and all three people fell, according to court testimony.

Mazariegos testified that Nail punched Lopez in the face during the struggle after Lopez grabbed his police vest, which had pepper spray. Lopez said he suffered injuries such as a broken nose and a concussion.

The city fired Nail in the aftermath, and the Marin County District Attorney’s Office charged him with assault and submitting a false police report. The prosecution filed the same counts against Mazariegos, who lost her police job.

Nail appealed the firing, leading to the report by Saling, the court-appointed arbitrator. Saling wrote that the city’s outside investigation determined that Nail did not use excessive force against Lopez.

However, the investigation also determined that Nail failed to de-escalate the situation and was disrespectful toward Lopez.

“The appellant used profanity, but there was no evidence that any other department employee had received any form of discipline for using profanity while on duty or in uniform,” Saling wrote.

Saling said that the police department should have pursued progressive discipline, which involves correcting but not firing an employee for all but the most serious offenses. He said Nail had no record of discipline issues before the Lopez incident.

“In this case, the department did not attempt to correct the appellant’s alleged misconduct, but used discipline to punish him based on the protest demands of the community for the appellant to be terminated,” Saling wrote.

Brian Affrunti and Allison Hernandez, the attorneys who represented the city in the Nail arbitration case, could not be reached for comment.

Charles Dresow, a San Rafael attorney who once represented Lopez, criticized the arbitration’s outcome.

“The conclusions of the report are as disgraceful as the conduct of the officers involved,” he said Monday.

Saling declined to comment on the Nail arbitration when the Independent Journal contacted him.

In the wake of the arbitration ruling, Nail has been placed on paid administrative leave pending the outcome of his criminal case. A felony conviction would disqualify him from police work.

Nail’s next court hearing is Jan. 22 to set a trial date.

The court has dismissed the charges against Mazariegos.

San Rafael City Manager Cristine Alilovich said that the Lopez case has been difficult for the community and the police.

“While the city will respect and abide by the decision of the state arbitrator, the incident is not reflective of the values of our organization,” she said Thursday.