'Damning and Disturbing': SFPD Officer Suspended for Illegally Searching Man Who Parked in a Red Zone

A San Francisco police officer was suspended in February for violating a man’s Fourth Amendment rights in 2019, newly released internal police accountability documents show.

That finding of misconduct, which was appealed by SFPD Officer Brett Hernandez, was upheld in February, paving the way for its release under Senate Bill 16, an expanded police transparency law that opens up records of false arrests and illegal searches, discrimination and excessive use of force by police officers.

The first documents released by the city to KQED this week under the new law shed light on one of the most complex and robust police accountability systems in the state. The city’s police department and the independent department that investigates civilian complaints both are overseen by the San Francisco Police Commission, which found that “the basic values that we as a society hold dear” were at stake in the case.

Still, the documents also raise a question: Why were concerns about the officer’s credibility never addressed?

On January 24, 2019, around 11 a.m., Ibrahim Nimer Shiheiber pulled up to the curb in front of a sandwich shop in the Inner Sunset to grab a Philly cheesesteak for lunch. He parked in a red zone with his tail end blocking a fire hydrant. Shiheiber put his hazards on and headed toward the shop.

At that moment, an SFPD cruiser pulled up and two officers jumped out. Officer Hernandez and a female officer named Jacqueline Hernandez, no relation, approached the then-30-year-old and turned on their body cameras.

Above, SFPD officer bodycam footage shows the 2019 incident between Officer Brett Hernandez and Ibrahim Nimer Shiheiber, over his stopped vehicle. (Courtesy of the San Francisco Department of Police Accountability)

“You’re detained, buddy,” Hernandez told Shiheiber in the footage.

“For what? Why are you guys just bothering me?” Shiheiber asked.

The officers said his car was illegally parked, and Shiheiber argued with them briefly about whether or not he was “stopped” or “parked,” but said he’d move his car. They told Shiheiber he could not move his car because he was being detained, and Hernandez began to pull on his blue latex gloves.

“Here’s my ID, and that’s all that I’m giving you,” Shiheiber said, passing the officer his identification. “You have no right to touch me.”

“Yes, I do,” Hernandez said.

Shiheiber continued to insist that the officers did not have the right to touch him, even as they forcibly grabbed him, took him to the ground and handcuffed him.

“I was scared,” Shiheiber said in a recent interview. “You have no options. If my fight-and-flight instinct kicks in, and I try to defend myself, they’re going to say I’m resisting. And if I don’t try to defend myself, I don’t know what this guy’s going to do.”

The officers ultimately released Shiheiber with a citation. Shiheiber said his shirt was torn, his face and side were scraped up and his hip hurt from where an officer held him down.

“I decided it was time that I needed to take action,” he said.

First, Shiheiber walked into the police station at 850 Bryant Street and told the desk officer he wanted to “file an assault charge” against a police officer.

“We don’t do that here,” she told him, Shiheiber, now 33, recalled.

She directed him to the Third Street police station. There an officer told him to go back to Bryant Street. Finally, Shiheiber said a Black female officer whispered to him where he needed to go: the Department of Police Accountability.

An SFPD spokesperson declined to comment for this story, saying in an email, “Because this involves a personnel disciplinary matter, we are unable to provide public comments.”

Hernandez’s lawyer Christopher Shea said the discipline his client later received was “unwarranted” and that an internal investigation into the incident by the department found “he acted within his discretion and committed no misconduct.”

However, unlike most police accountability systems across the state, which rely on officers inside the department to investigate civilian complaints, San Francisco also has an investigative body entirely independent of the police department. The DPA receives complaints from people like Shiheiber, investigates and makes findings, which it passes along to the police chief or, in more serious cases, the San Francisco Police Commission for disposition.

“If we recommend that an officer be sustained for misconduct and we recommend less than 10 days’ suspension, the chief can say yes or no,” explained Stephanie Wargo-Wilson, the DPA attorney who handled Shiheiber’s complaint. “If we recommend an 11-day suspension or more, then that case is eligible to go to the police commission.”

The San Francisco Police Commission also is unusual in that it has the authority to discipline officers. Most civilian oversight bodies can recommend disciplinary action, but only the chief or the sheriff have the power to impose it.

Shiheiber said he was “treated very respectfully” at the DPA. Investigators took photos of his injuries, listened to his story, and opened a case.

In November of 2019, the DPA sent its findings to Police Chief Bill Scott.

“Officer Brett Hernandez escalated a parking violation to an intrusive detention, pat search, and take down that caused [redacted] pain. He could have just as easily left a ticket on the car,” the report found.

The DPA also found that Hernandez violated Shiheiber’s Fourth Amendment rights, which protect the public from unreasonable searches and seizures. Investigators also did not find Hernandez’s justification for the search believable.

Hernandez told the DPA and police commission investigators that Shiheiber “was constantly” reaching into his pockets and that his baggy clothing “can conceal weapons.”

“The fact that he was walking away, failing to comply with commands, being verbally aggressive towards us, it’s my training and experience that that is an indicator that somebody might have weapons on their persons and for the safety of myself and my partner, fear of our safety I conducted a pat search,” he said, according to a recording of the interview released by the DPA.

But the report pointed out that, during the exchange, the only time Shiheiber reached into his pocket was when he gave the officers his identification, which can be seen on body camera footage. He does not act violent in any way, and there are no visible bulges that would indicate a weapon.

“Officer Brett Hernandez used buzzwords in place of facts — ‘totality of circumstances,’ ‘aggressive,’ and ‘officer safety’ are words often used in place of hard facts,” the report found. Shiheiber, according to the report, “failed the attitude test. He deigned to argue with police officers and assert his Fourth Amendment rights.”

Hernandez also told investigators that Shiheiber tried to flee from officers.

“This is simply not true – once it was clear that the police were detaining [redacted] he made no attempt to ‘flee,’” the report reads.

This is a stunning finding because a police officer’s credibility is at the heart of their ability to do their jobs — to write police reports and provide sworn testimony.

If a police officer with credibility issues is called to testify in a criminal case, the district attorney also is required to notify the defendant in that case, according to the Supreme Court ruling Brady v. Maryland. To meet this obligation, Rachel Marshall, director of communications and policy adviser for the San Francisco DA, said in an email that the SFPD has formally agreed it will proactively notify prosecutors “when they learn that one of their members has potential Brady materials in their personnel file.”

Marshall wrote that her office is “not aware of this incident and are unaware of any cases impacted by it.” She said recent police transparency laws SB 16 and SB 1421 have helped prosecutors comply with Brady.

“Officer Hernandez was never formally accused of dishonesty and no finding of dishonesty was suggested during this process,” Shea wrote in an email.

The DPA did not charge Hernandez with dishonesty, according to the documents. Wargo-Wilson said she could not comment on the reasons for that.

The San Francisco Police Commission suspended Hernandez for 10 days with another five days that would be imposed if Hernandez violated policy again, and it ordered him to get more training.

In its conclusion, the commission found video of the incident “damning and disturbing.”

“If [redacted] can be mistreated this way by the police under the circumstances of this case, then anyone on the street may be subject to a pat search on flimsy grounds,” the DPA’s report reads.

“This case involves poor policing that resulted in a violation of [redacted’s] rights, but the potential damage of police misconduct such as that of Officer Hernandez implicates the community as a whole, not just [redacted].”

The documents released this week do not definitively indicate whether Chief Scott agreed with the DPA’s findings, and his spokesperson said he declined to comment on the case. But the documents show that Hernandez’s attorney told the police commission that the chief disagreed with the DPA.

“The plight of Officer Hernandez is an example of the overreach and lack of knowledge regarding the law by the Police Commission and the Department of Police Accountability,” Shea wrote in an email.

Hernandez appealed his discipline, but on Feb. 1, 2022, an administrative law judge with the city’s Office of Administrative Hearings ruled the discipline would stand.

Shiheiber said he didn’t know about the officer’s suspension until KQED contacted him for an interview. He said he’s gratified by the findings of the DPA and the commission, but questioned why Hernandez was still on the force at all.

“Police are supposed to be held to a higher standard,” he said. “They’re not supposed to be above the law.”

Shiheiber also filed a civil lawsuit against the city, which is ongoing. He said police officers do have a difficult and dangerous job.

“If I was a police officer, I wouldn’t make my job harder and go mess with people that didn’t warrant my attention,” he said. “‘Cause there’s actual things out there.”

This story has been updated to include comment from SFPD Officer Brett Hernandez’s attorney Christopher Shea.

Above, read the full transcript of Officer Brett Hernandez’s administrative hearing, hosted on DocumentCloud.