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As he was testifying in court about a citation he had issued a homeless man, San Diego Police Officer Colin Governski set the scene: When he approached Tony Diaz, Diaz was sleeping in the back of his truck in a public parking lot on Mission Bay.
Diaz was challenging a citation he’d received for vehicle habitation. So the officer’s testimony that he was observed sleeping in the truck was crucial.
The problem: It wasn’t true.
The judge found Diaz guilty of the infraction. But Diaz’s lawyer appealed the case, and then the city attorney’s office found body camera footage of the incident.
It revealed Governski had given false testimony under oath multiple times about the encounter. The footage directly contradicted his description of what happened and backed up Diaz’s account that Governski approached him as he was leaving a public restroom.
The deputy city attorney on the case, Steven Hansen, notified Diaz’s lawyer and filed a motion to throw out the conviction. Hansen did not, however, alert the San Diego Police Department that Governski had given false testimony in court.
A spokesman for the city attorney’s office said he notified SDPD last week – after I contacted him for this story, and several weeks after the discovery of the footage.
The same officer has been in trouble before for his conduct toward homeless San Diegans.
On Aug. 15, 2015, Governski and another officer, both members of SDPD’s quality of life team, arrived at a public park on Mission Bay near the Bahia Hotel, and began rousing people who were sleeping in a tent and in a camper, body camera footage shows. Eventually, Goversnki splits away and walks over to a public bathroom, and comes upon Diaz as he’s exiting.
From the outset, Governski insists that Diaz has been living out of his vehicle illegally, and that he’s been generating complaints from residents and Bahia guests. Diaz replies that he couldn’t be the source of complaints, because he had only just arrived at the park to use the restroom. Governski initially tells Diaz to consider their interaction a warning, but immediately changes his mind and issues him a citation for vehicle habitation. Throughout the encounter, the footage shows, Diaz repeats that he only just arrived at the park to use the restroom.
The same disagreement played out in Superior Court on June 3, 2016.
But Governski, on the witness stand, changed a key fact about the interaction.
While under oath, Governski said, “I contacted Tony in the back of his camper,” and “On the date of the violation on the ticket, Aug. 25, 2015, he was sleeping in the back,” according to transcripts of the testimony.
Superior Court Commissioner John Blair asked Governski directly: “When you first made contact with Mr. Diaz, he was sleeping in the back of the vehicle on the date of the violation. Is that correct?” Governski answered: “Yes.”
Diaz told the court that when Governski approached him, he’d just pulled up at the public bathroom. Governski contacted him as he exited the restroom, Diaz testified.
The body camera footage was not introduced during the trial. SDPD policy says that officers should include a note on citations indicating the violation in question was captured on camera. Diaz’s citation did not include such a note.
“I know the guy’s lying. And truly, my situation is, ‘What am I going to do?’” Diaz recalled of hearing Governski’s testimony. “I do my best to stay out of the way, stay out of trouble. I’ve had drug problems. I’ve had problems in the past. But right now, I’m making due the best I can. And for him to lie over an infraction like this, it’s like, what if it was actually something serious? How can you trust an officer like that? You can’t.”
Diaz told me he does sleep in his vehicle at night but has the permission of a local business to park in its lot, off city streets. That puts Diaz in an impossible situation, his attorney said: Because there’s evidence he lives in his vehicle, he can potentially cited any time he ventures onto a public street, even if he doesn’t actually sleep in his car in public.
Blair, the court commissioner, found Diaz guilty. He agreed to suspend $100 of the $280 fine, and to allow Diaz to work off the remaining $180 through volunteer work.
But Coleen Cusack, Diaz’s attorney, was eager to challenge the underlying law for which Diaz had been cited, the city code that says it’s illegal to live or sleep overnight in one’s vehicle. A similar law in Los Angeles was struck down by the U.S. 9th Circuit Court of Appeals in 2014. Cusack filed an appeal, arguing the law is unconstitutional.
That triggered a review by the San Diego city attorney’s office. When Hansen, the deputy city attorney, reviewed the case, he discovered body camera footage that backed up Diaz’s version of events. He filed a motion to vacate Diaz’s conviction earlier this month.
“The video is exculpatory evidence because it contradicts the officer’s testimony and corroborates Appellant’s testimony. The video undermines the officer’s credibility and removes a major pillar of the case against Appellant, an allegation that he was found sleeping in the back of his truck,” Hansen wrote in the motion.
Cusack said that when Hansen alerted her to the footage, she asked him whether he had reported the officer’s false testimony to SDPD officials. Hansen said no, Cusack said.
The city attorney’s office didn’t alert SDPD officials of the incident until last week, when approached by Voice of San Diego with questions.
“When we learned that a body-worn camera video containing potentially exculpatory evidence existed, we immediately notified defense counsel and provided her with a copy of the video,” Gerry Braun, a spokesman for the city attorney’s office, wrote in an email last week. “We filed a motion with the court to vacate the conviction and dismiss the case. Any circumstance such as this is potentially a matter to be reviewed by our Brady Committee” – a group that reviews whether officers’ testimony in court cases has been called into question.
Braun didn’t alert internal affairs or the police officer’s supervisor. Cusack filed her own complaint with internal affairs.
“I notified Lt. Scott Wahl at the San Diego Police Department today [July 25],” Braun wrote. “We expect the Police Department will review the matter and, if there is misconduct, take appropriate action.”
Wahl is an SDPD media spokesman.
“The San Diego Police Department is investigating this situation and the complaint filed on behalf of Tony Diaz. We take all matters regarding the performance of our employees very seriously and will investigate this situation fully,” Wahl wrote in an email statement.
This is not the first time Governski has been accused of inappropriate interactions with homeless residents.
In February, the city of San Diego agreed to pay a homeless Pacific Beach man $15,000 as a result of a 2016 lawsuit in which Zack Green accused Governski of harassing and illegally arresting him.
Wahl said Governski is no longer working on the quality of life team and is assigned to Mid-City patrol.
Cusack said that this case, and others she’s worked pro bono on behalf of homeless clients, has convinced her everyone facing an infraction or traffic citation should have access to a lawyer, as well as an easy way to access body camera footage.
“Every time I see a trial proceed that should have body cam evidence but it’s not being presented, I wonder, ‘Why not? Why wasn’t this evidence presented? What would it show?’” she said. “If it helps the officer, it would be shown, so it must not really be showing what the officer wants.”