Brandon Nail, a former San Rafael police officer who will soon stand trial on criminal charges, has appealed his termination from the police department and is seeking reinstatement.
A confidential binding arbitration hearing is scheduled this month to determine whether Nail will get his job back. The City of San Rafael is defending its decision to oust Nail, who was fired on June 27 for violating department policies.
A memorandum of understanding between the City of San Rafael and the San Rafael Police Association gives terminated employees the right to submit a grievance to the city manager and initiate the arbitration process.
The arbitrator’s determination, expected 60 days after the hearing concludes, will be final. Neither side can appeal.
“It’s a super awkward position for the city,” San Rafael Police Chief David Spiller said. “An arbitrator can make a decision for the [former] employee to return.”
In a lengthy memo sent to Nail in May, Spiller spelled out his reasons for recommending the termination, all related to a 2022 use of force incident captured on police body-worn cameras. While Nail provided back up for another officer who had stopped three men for drinking in public, he “unnecessarily escalated” the situation and punched one of the men, causing him to “bleed profusely,” according to Spiller’s memo.
Spiller confirmed that he will testify in the arbitration hearing but didn’t want to comment about how he’d feel if the arbitrator clears the way for Nail to return to the San Rafael Police Department.
“I terminated Brandon Nail, so I’ll leave it at that,” Spiller said.
Even if Nail wins at the arbitration hearing, he must still face criminal charges stemming from the use of force incident. Nail and his co-defendant, former officer Daisy Mazariegos, return to Marin Superior Court next month for a pre-trial proceeding.
In December, after a preliminary hearing, Judge Beth Jordan ordered both defendants to stand trial for assault under color of authority with a sentencing enhancement for causing “great bodily harm” to Julio Jimenez Lopez, one of the men stopped for public drinking.
Jimenez Lopez testified at the hearing that he suffered a broken nose, concussion and injuries to both knees and shoulders, with the left shoulder requiring surgery.
Nail is also charged with making false statements in a crime report. The judge said that based on videos of the incident, she didn’t believe Nail’s written account.
Both Nail and Mazariegos have pleaded not guilty to the charges.
Civil attorney Anthony Label, who represents Jimenez Lopez in a federal lawsuit filed against Nail and Mazariegos, finds it disturbing that Nail is seeking to return to his job as a police officer.
“I can’t think of any other profession where someone could be terminated and facing criminal charges for assaulting a person while on the job and then has the right to file an appeal to get reinstated,” Label said.
And that’s not Label’s only concern.
“Brandon Nail is unfit to be a police officer in San Rafael or any other city,” Label said. “It’s unimaginable that the city might be forced by an arbitrator to rehire a person who treated a member of this community with such inhumanity, disrespect and disregard.”
Julia Fox, Nail’s attorney, did not respond to requests for comment by publication deadline.