A Superior Court judge upheld the city’s termination of a former Morgan Hill police officer who illegally deleted photos from a suspect’s cell phone and repeatedly lied about his actions following a 2011 incident that led to an internal investigation, according to court documents.
An Aug. 25 decision written and signed by Santa Clara County Superior Court Judge Erica Yew, found former MHPD K-9 Officer David Ray’s conduct “egregious” when he arrested two Gilroy women without probable cause and tampered with evidence of his own transgressions. The decision was a response to Ray’s claim of wrongful termination, filed more than two years ago.
Police Chief David Swing said the judge’s decision will help the city and MHPD put the controversy behind them.
“I am grateful the court upheld our standards of conduct by affirming our decision in this matter,” Swing said. “More importantly, this decision closes the final chapter and allows our department and the community the opportunity to move on, of which I am confident both are ready.”
On July 16, 2011, Ray and other officers responded to a call reporting BB gun shots fired in the area of LaRocca Court in Morgan Hill. While Ray was investigating the call, Gilroy residents Casey Serrano and Regina Partida arrived to find his patrol car blocking the driveway of the home where they were staying.
The women, who had been drinking alcohol, took pictures of the vehicle with Serrano’s smart phone, according to Yew’s decision.
Other officers noticed that Ray had left his vehicle unattended, with the doors unlocked, windows open and key in the ignition—a “breach of protocol,” according to the court document. Ray allegedly remarked to a fellow officer that he would not want to get into trouble for such a violation of the rules.
Ray then arrested Serrano and Partida on suspicion of public drunkenness “within 20 seconds of encountering the two women,” Yew’s decision reads.
Upon their release, the women were never charged with a crime, and complained about the officers’ conduct after they noticed that Serrano’s phone had been tampered with and some photographs had been deleted. Serrano also noticed that a nude photo of herself had been uploaded from her phone to her Facebook account while she was in custody.
MHPD’s command staff conducted an investigation, finding that Ray had no reason to arrest the women and he violated the state constitution by deleting photographs from Serrano’s phone—her personal property—without her permission, according to the Aug. 25 decision.
Other MHPD officers who contacted Serrano and Partida July 16, 2011 testified the women did not appear to be unable to care for themselves or others, and therefore not subject to arrest for public drunkenness, according to the court documents.
Swing concluded Ray should be fired after the investigation, and City Manager Steve Rymer upheld the chief’s decision, according to the Aug. 25 decision.
The internal investigation also found MHPD Det. Mindy Zen—a corporal at the time—had uploaded Serrano’s photograph depicting a “naked breast” onto Serrano’s Facebook account while she was in custody, according to the court decision.
Zen, who was Ray’s on-duty supervisor at the time, testified during the internal investigation that she “inadvertently” uploaded the photo to Facebook, and she did not know Ray had deleted any photographs from Serrano’s phone, according to Yew’s decision.
City staff—citing privacy privileges of public safety employees and personnel matters in general—have repeatedly declined to comment on the details surrounding any discipline given to Ray or any other officers involved in the incident. Details about the disciplinary action have only been available through court documents and other public records.
City staff listings showed Zen was demoted to the rank of officer—which makes a lower salary than a corporal—shortly after the 2011 incident. She is now an MHPD domestic violence detective.
In June 2012, the city agreed to pay Serrano a settlement of $75,000 in response to a claim she filed, resolving her claims of damages resulting from the incident.
Ray filed the wrongful termination lawsuit against the city of Morgan Hill and Rymer in April 2012.
Yew’s Aug. 25 decision identifies key differences between Ray’s and Zen’s response to the 2011 incident, justifying the apparent differences in discipline handed to each one.
While Ray apparently tried to cover up his conduct with inconsistent and false statements, Zen admitted wrongdoing and kept her story straight during the internal investigation, the court documents say.
The internal investigation found that deleting the photos from Serrano’s phone was a violation of the state constitution, the Aug. 25 decision says.
Although the Santa Clara County District Attorney’s Office did not recommend any criminal charges against Ray, the city’s investigation found he violated the law by improperly seizing Serrano’s property and deleting data without permission of the owner, according to Judge Yew.
Furthermore, due process does not allow any officer to discard facts or evidence he or she feels is unimportant or damaging, the judge’s decision says.
Ray had a history of favorable performance evaluations prior to the July 2011 incident, according to the Aug. 25 decision.
However, in Dec. 2012 the city settled an unrelated claim of police misconduct in relation to an incident involving Ray in 2009. Morgan Hill resident Gary Easley, who accused Ray of using excessive force against him, filed the claim. The city settled with Easley for $35,000.
Ray’s attorney William Rapoport did not respond to a phone call requesting comment on the Aug. 25 court decision.
