2006-09-27 "Cops Who SPY"
by A.C. THOMPSON from "San Francisco Weekly" newspaper [www.sfweekly.com/2006-09-27/news/cops-who-spy/full/]:
This is a story nobody wants you to read.
Not your city government, which has done its best to entomb the basic facts within a mausoleum of official secrecy. Not Mayor Gavin Newsom, who is familiar with the controversial information at issue, but has chosen, at least publicly, not to utter a word about it. Not the region's major daily newspaper, the San Francisco Chronicle, which has, for reasons that remain unclear, failed to report on a significant story that is, quite literally, in its own backyard.
It's a tale about aggressive journalists, the First Amendment, and a classified probe conducted by a secretive branch of the San Francisco Police Department, a cloak-and-dagger investigation that may have transgressed the department's own rules — and definitely torched the careers of a pair of ethical police officers who dared to air their criticisms of the SFPD.
In many ways, this story echoes the troubles currently engulfing Hewlett-Packard Co., the Palo Alto-based computer behemoth that has stood in the center of a law enforcement tornado since early September. The company, as you're probably aware, is accused of hiring private detectives who, in a bid to discover whether unhappy board members were dribbling confidential information to journalists, engaged in some decidedly unwholesome activities. Allegedly, the detectives illegally obtained the private phone records of board members as well as those of nine reporters, including writers with San Francisco's CNET, the New York Times, and the Wall Street Journal.
The allegations against HP have played quite poorly with the authorities. At press time, the California attorney general, the Federal Bureau of Investigation, the U.S. Congress, and the federal Securities and Exchange Commission were all tunneling toward the heart of the scandal. Meanwhile, Chairwoman Patricia Dunn has resigned as a result of the mess.
Here in San Francisco, however, it's the detectives with badges who've been snooping on journalists. Dealing with a leak problem of its own in 2003, the police department used HP-style tactics, covertly examining the phone records — reflecting 2,478 phone calls — of journalists covering the department. By doing so, the SFPD could quickly identify any anonymous tipsters or inside sources within the department who communicated with the reporters.
Stitched together from insider accounts and internal police documents, the story you're about to read examines the collateral damage caused by a cover-up, a noirish tangle implicating at least one high-ranking SFPD officer, Deputy Chief Morris Tabak, and, quite possibly, Chief Heather Fong.
Told of the secret phone monitoring, members of the San Francisco Police Commission, the seven-member board overseeing the force, recently expressed serious displeasure. Commisssioner David Campos, for one, is worried the department may be violating privacy laws and its "own general orders."
"You have privacy issues, you have issues of respect for the press," Campos says, adding, "This needs to be looked into — quickly. I'm not going to stand for it."
It started with those infamous steak fajitas.
It was the early hours of November 20, 2002, and Jade Santoro and Adam Snyder were walking to their cars on Union Street after leaving the Blue Light bar, where Snyder toiled as a bartender. Anyone who follows the news around here knows what happened next. Three young off-duty cops — one of them Alex Fagan Jr., the son of then-Assistant Chief Alex Fagan — allegedly demanded the paper bag of steak fajitas Snyder was carrying home. Words were exchanged. Then the cops purportedly stomped and pummeled Santoro, breaking his nose, speckling the pavement with his blood.
A day later San Francisco Chronicle reporter Jaxon Van Derbeken tapped out a story about the incident while sitting at his desk in the dingy third-floor press room at the Hall of Justice. The piece ran on page A-1, and in it Fagan Sr., the No. 2 cop on the force, insisted there wouldn't be "any form of cover-up."
But it quickly became clear the assistant chief's son wasn't exactly facing the sort of scrutiny given to most people accused of felonious behavior. While investigating the beat-down, the department from the beginning refused to hew to basic police procedures — the officers who responded to the scene failed to test the off-duty cops to see if they were drunk; failed to examine the officers' clothes for bloodstains; failed to inspect the truck they were riding in; and, most importantly, failed to allow Santoro and Snyder to ID their assailants and explain which officers had allegedly committed which acts.
Eventually, the melee and subsequent machinations ballooned into Fajitagate, a fully inflated scandal featuring allegations of a cover-up, criminal indictments against 10 officers from the chief on down, a torrent of civil litigation accusing the cops of bad behavior, a major reshuffling of the leadership ranks of the 2,200-officer force, and disciplinary charges against a number of officers — charges that today, nearly four years later, are still pending.
Along the way, Van Derbeken got a hold of a seething memo penned by Fagan Jr.'s supervisor, Sgt. Vickie Stansberry, and published its contents in a February 13, 2003, story. "Officer Fagan," Stansberry wrote in the confidential memo, "has displayed a pattern with lack of anger management, not being respectful of supervisors, not following direct orders from supervisors, driving too fast, and treating the public unprofessionally." The sergeant had typed up the memo after Fagan Jr., while on duty, got into fisticuffs with a man on a Haight Street Muni bus.
Around the same time, somebody slipped the memo to ABC 7 news reporter Heather Ishimaru, who used the document in a TV broadcast.
The leak set off a chain of events that were illustrative of the department's priorities.
With the shot-callers in upper echelons of the department signaling they had no intention of truly investigating the Fajitagate morass, key players within the department directed their energies in a different direction, covertly opening a vigorous criminal probe dedicated to discovering who leaked the Stansberry memo to the media. And during the course of the probe, a secret team, helmed by Morris Tabak, then head of the Special Investigations Division, gathered up a fat stack of documents: the records of more than 2,400 phone calls to and from journalists working in the Hall of Justice press room. In addition to Van Derbeken, reporters with local TV and radio affiliates use the room — and its phone lines — as does the Daily Journal, a newspaper covering legal affairs.
The phone records, which the SF Weekly has reviewed, indicate police detectives scrutinized phone calls made to and from the press room between December 1, 2002, and February 28, 2003, in hopes of ferreting out the cop who passed the memo to Van Derbeken. By scouring the data, which looks like a home phone bill, the detectives could figure out which cops were talking to Van Derbeken and the other journalists.
But the records also contained the phone numbers of dozens of people who didn't work for the department — be they prosecutors, defense attornies, judges, probation officers, deputy sheriffs, crime victims — and were interviewed for articles and broadcasts that had nothing to do with the Stansberry memo. With the records in hand, the police could unmask all of the anonymous sources who talked to the reporters over the phone lines, if they so desired. Any confidentiality the reporters had promised to their sources had just ceased to exist, although the press corps didn't know it — the detectives never alerted them to the fact that they were poring over the phone data.
Not surprisingly, word of the phone monitoring by the police does not sit well with those in the media world. "It's outrageous," says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, an advocacy group based in the D.C. area. "What we have here is deception, bad faith, and sneakiness in an effort to find the leakers."
While the private investigators in the HP scandal apparently lied to phone companies to gain access to the personal phone records of reporters and HP board members, the police didn't have to go to those lengths. Because the main phone line running into the press room belongs to the city, Tabak and his team could simply request the phone records from the city's Department of Telecommunications and Information Services. Given the circumstances, Dalglish figures there's probably no potential lawsuit facing the department for collecting the data. Still, she says, "I can certainly think of no better way to declare war on the press corps. You have just eviscerated any trust you had with the news media."
At the national level, Dalglish notes, federal guidelines — with some post-9/11 national security exceptions — require U.S. attorneys to inform journalists when they intend to go plowing through their phone records.
Peter Scheer, a journalist and lawyer who heads the California First Amendment Coalition, says, "for reporters there is the interest in being free to get the news out without being seen as extensions of the government or police. But if every phone call is a means to capture evidence by the police, that jeopardizes the ability of the media to do their job."
In his view, though, the journalists may share some culpability. "If I were one of these reporters I would be very angry," Scheer says, adding, "I'd kind of feel stupid, too, for using a [city phone line]. I'd certainly know that I'd have to use a cellphone, and not even to trust a cellphone with sources who are especially sensitive."
The department, which defends the tactics employed in the leak probe, isn't saying much about the matter. "We've determined that no departmental procedures or policies were violated, and no First Amendment rights were violated," relates Sgt. Steve Mannina, a spokesperson, in a terse statement.
Not everybody shares that opinion — just ask the officers who found themselves ensnared by the leak probe.
Blue blood rushes through Reno Rapagnani's veins. His dad was a San Francisco cop. His mom worked as a civilian in the department's internal affairs bureau. He even married a cop, a woman named Leanna Dawydiak, a sergeant.
During nearly three decades as a sworn peace officer, Rapagnani performed just about every job you could imagine. He defused explosives with the bomb squad, guarded Mayor Art Agnos, collared wife-batterers for the domestic violence unit, and, late in his career, served as a department lawyer. For his street-level heroics, department officials awarded him seven medals of valor.
"I was as cop as you can get," says Rapagnani, who climbed to the dual rank of sergeant-inspector.
That changed when he and Dawydiak were blamed for leaking the Stansberry memo, while working as lawyers for the department. Today, Rapagnani, a thin, solemn 60-year-old man with a ruddy complexion and a mustache going to gray, is wrangling with deeply conflicting emotions about the department to which he devoted his life.
His connection to the department started fraying in the closing months of 2002, as the Fajitagate scandal broiled, when he and Dawydiak discovered their colleagues were mishandling evidence pertaining to police misconduct. They decided to go public, telling anyone who would listen, including print and radio outlets.
The issue was this: Under state law, defense lawyers can file what's known as a Pitchess motion to obtain the disciplinary records of cops. The records, which the couple processed while working in SFPD's legal unit, must be relevant to an ongoing criminal case. The idea is that defense attorneys deserve to know if an officer has a history of offering perjurious testimony or kicking people's asses or any other nasty behavior.
But, as Rapagnani and Dawydiak learned, instead of turning over all salient material to the defense bar, the department was withholding evidence, notably the field training files of troubled young cops — characters like Alex Fagan Jr., who thrust himself into 16 violent confrontations during his first 13 months in uniform. The duo's revelations — carried by the Chronicle, among others — prompted San Francisco Superior Court officials to appoint a special master to review some 3,500 cases in which evidence might have been hidden from defense lawyers.
The pair, says Rapagnani, went public because they weren't willing to ignore the law when it came to the Pitchess motions. "Bottom line," he says, "nothing was being done" to fix the evidentiary problem. "The department was absolutely refusing to follow the law," adds Dawydiak. To be sure, the move didn't win Rapagnani and Dawydiak many fans around the Hall of Justice.
As Tabak and his team began stealthily hunting for the cops who smuggled the Stansberry memo to the media, they zeroed in on Rapagnani and Dawydiak, as well as a handful of other cops. In many respects the couple were logical targets. As lawyers for the department they were in frequent contact with administrators and record-keepers around the SFPD, people who had access to piles of paperwork, including documents like the Stansberry memo. And both were obviously distressed about the department burying evidence.
But Rapagnani insists they had nothing to do with passing the Stansberry memo to Van Derbeken or anyone else. The way the ex-cop tells it, "[Van Derbeken] called me and asked about the memo. I told him, 'I'm not confirming or denying its existence, but under no circumstance will you get it, if it even exists.'"
When Rapagnani learned about the department's probe, he laughed it off. "We both thought it was ludicrous we were being investigated. I just thought it was silly," he recalls. "Then I got very angry. ... I had 30 years with no discipline on my record. For them, on a whim, to disregard my 30 years of history and accuse me of violating my ethics as an officer and attorney, was insulting. It pisses me off now."
Another unhappy officer is Capt. Paul Chignell, now head of Ingleside Station. "The investigation of sergeants Rapagnani and Dawydiak was a political witch hunt," argues Chignell, who was also investigated, and who is a longtime friend of the couple.
By August 2004 the department pressed formal misconduct charges against Dawydiak and Rapagnani for leaking the Stansberry memo. Prepping for litigation, the couple's lawyer demanded all the evidence — some 2,000 pages stuffed into three huge binders — used to damn them. Scrutinizing the evidence, the pair finally realized just how far Tabak and his detectives had pushed it.
Somebody on Tabak's team had compiled a handwritten list of media phone numbers, a list this newspaper has reviewed. Among the phone numbers are the home numbers of Chronicle reporters Susan Sward and Phil Matier; work numbers for numerous former and current Chronicle editors and writers including Van Derbeken, Stacy Finz, Bill Wallace, Trapper Byrne, and Wendy Miller. The list also included phone numbers for KTVU Channel 2 (including that of reporter Rob Roth), ABC 7 (including that of Heather Ishimaru); NBC 11; KCBS Radio; KGO Radio, and Bay City News Service.
Also featured on the list: the personal phone numbers of the beating victims, Jade Santoro and Adam Snyder, as well as the personal cellphone and pager numbers of Rapagnani, Dawydiak, Chignell, and a few other officers.
The provenance of these phone numbers is intriguing. According to the case files, at the same time the SFPD was supposedly seeking out clues about Fagan Jr.'s role in the Fajitagate brawl, Tabak and his detectives were meeting with a private investigator hired by Fagan Jr. The files indicate the PI passed 21 phone numbers to Tabak and his detectives.
Then there were the phone logs of the 2,478 calls in and out of the press room, which Tabak's team had gotten from the city's telecom department. From the case files, Rapagnani says, it's clear Tabak signed off on the plan to collect and analyze those phone records.
Seeking more details about the mechanics of the probe, SF Weekly formally requested from the SFPD photocopies of all the documents amassed by Tabak and company. We made the same request of the City Attorney's office, which is also in possession of the material. Both denied our requests. The City Attorney's office cited a recent court ruling regarding the confidentiality of police personnel files, while SFPD failed to respond.
After Rapagnani uncovered the phone logs, he felt an obligation to alert Van Derbeken; Dawydiak informed Sward. "I found it incredible that the San Francisco Police Department would get the records to the press room," Rapagnani recounts. "It just blew me away."
At Fifth and Mission the reaction was forceful and immediate. Delivered by FedEx and fax, a series of furious letters from a Chronicle attorney wound up on the desk of SFPD Chief Heather Fong in late 2004 and early 2005. "I write on behalf of the San Francisco Chronicle, a Hearst newspaper, to bring to your attention highly disturbing conduct by the San Francisco Police Department 'SFPD') in violation of the Chronicle's and its reporter's constitutional rights," wrote the attorney, Jonathan Donnellan, in a December 2004 letter.
Donnellan, senior counsel for the Hearst Corporation, described the Stansberry memo and the Chronicle's coverage of it, continuing, "We have learned that in the course of investigating who may have provided this memo to the Chronicle, the SFPD obtained and reviewed records reflecting the private calls from telephones used by Chronicle reporter Jaxon Van Derbeken in the Press Room at the Hall of Justice. This was done without the Chronicle's knowledge or consent. The SFPD never provided the Chronicle any notice that it was surreptitiously reviewing records of its reporter's private telephone conversations with a view towards identifying that reporter's sources, much less provide the Chronicle with a chance to oppose such action."
The letter, evidently, elicited no response from Fong. A month later Donnellan hit the chief with a second missive, this one CCed to Mayor Gavin Newsom. "I am surprised and disappointed not to have heard from you concerning this important and urgent matter. In the event that I do not receive a substantive response from you by the week's end, we will have no choice but to pursue legal remedies against the SFPD, [and the] City and County of San Francisco," the lawyer wrote.
Though the Chronicle talked tough in its correspondence with the department, it has yet to publish a single story or editorial about the matter, which is puzzling since the paper has been dogged in its defense of Lance Williams and Mark Fainaru-Wada, who are facing jail time for refusing to tell the feds who leaked them information in the BALCO steroids case. And the paper has devoted a bunch of ink to the HP spying imbroglio.
So why hasn't the Chronicle dealt with the issue, either through reportage or editorial commentary?
We're still wondering about that. The paper didn't return our repeated phone calls seeking comment.
For Rapagnani and Dawydiak, some vindication arrived last December, when the department abandoned the misconduct charges and wrote a check for about $25,000 to the couple to settle a lawsuit claiming their colleagues had sought to punish them for their stance on the Pitchess motions.
"My attorney sat me down and said, ÔWhat do you want?' I said, 'I want to clear my name.' The money we got almost covered our attorney's fees," Rapagnani recalls. Dawydiak still works for the department but is out on disability for a bum shoulder; Rapagnani retired from the force and now runs a dignitary protection service, guarding political figures with another ex-cop.
But the story doesn't conclude with the quiet exit of a veteran cop.
For one thing, there's the "Who Knew?" factor. The Chronicle memos show Chief Fong and Mayor Newsom are both aware of the phone monitoring, yet have chosen to remain silent about the matter.
Newsom spokesman David Miree tells us, "Mayor Newsom does not have a position or a comment at this time."
Second, there's the possibility that Tabak and his detectives trampled department rules regarding the First Amendment and got away with it. Those rules were established as the department was sifting through the wreckage left behind by Tom Gerard, an SFPD detective who spied on scores of civilians while assigned to the SFPD's intelligence unit, the predecessor to the Special Investigations Division.
In one of the more surreal episodes in this town's modern history, Gerard was busted in 1993 for compiling dossiers on hundreds of Bay Area leftist groups — many of them pro-Palestinian or anti-apartheid formations — and sharing the files with a freelance spy employed by the Jewish Anti-Defamation League of B'nai B'rith and the white supremacist government of South Africa. He pled guilty to unauthorized use of a police computer and caught a 45-day jail sentence; meanwhile, the city got hit with several costly lawsuits.
Responding to the espionage case, the police department revamped its First Amendment guidelines, which are covered by Department General Order 8.10. Those guidelines require detectives to exercise caution when conducting investigations that scrutinize legitimate First Amendment activity, including "speaking, meeting, writing, marching, picketing, or other expressive conduct."
In such cases, investigators are required to get written approval from the deputy chief of investigations and the chief of police. In addition, information about the probe is supposed to be forwarded to the Police Commission.
There's no proof in the case files that Tabak received authorization from the chief and deputy chief to pull the phone records for the press room phones or collect the personal phone numbers of journalists — if he did, in fact, get written permission, the document wasn't turned over to Rapagnani and Dawydiak. Several well-placed SFPD sources, speaking anonymously, say no one in the department has been sanctioned for their conduct during the leak probe.
The possible policy violations concern David Campos, the police commissioner. "First Amendment guidelines are critical," he argues. "Any allegation that the Police Department engaged in something similar to what HP did is a serious allegation that needs to be looked into." A lawyer for the San Francisco Unified School District, Campos says he's waiting for all the facts to emerge before passing judgment.
Fellow commissioner Theresa Sparks isn't happy about the phone probe, either. "It's outrageous. It's totally outrageous," she says. "To me the press rooms, both at City Hall and the Hall of Justice, should be neutral territory. The press should be able to call who they want to call. ... To me it just smells bad." Like Campos, Sparks is worried the detectives may have flouted the guidelines.
Over at the SFPD, spokesperson Sgt. Steve Mannina argues the leak probe was legit and conformed to department rules. In a written statement Sgt. Mannina says, "The SFPD's investigation focused on whether or not anyone in the Police Department engaged in conduct that may have been a crime by releasing record(s) that are confidential pursuant to state law. No First Amendment activity was targeted or was implicated in this investigation; therefore, there was no violation of Department policy and no requirement to receive approval under the guidelines set by [Department General Order] 8.10. DGO 8.10 does not apply in this situation."
The investigation, he continues, "did not involve any eavesdropping, wiretapping, or phone monitoring," and was really nothing more than the Department scoping out its own phone lines.
That line of reasoning doesn't appease some high-ranking figures within the department, including Capt. Chignell, perhaps the harshest critic of the probe still on the force. His decision to speak on the record about the issue, even though doing so could effectively derail his career, reflects his level of frustration.
"These allegations of tampering with the First Amendment rights of the press are truly Nixonian," says Chignell, concluding that in his 36 years as a cop — including many as the president of the Police Officers' Association — "he has not seen such an abuse of the investigative process."
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