James Lewis and Wendy Hurley are San Francisco police officers who participated in a series of videos made by fellow SFPD Officer Andrew Cohen. Lewis and Hurley received 360-day suspensions for their actions in what became widely known as “Videogate.” Cohen himself quit the force.
Lewis and Hurley acted out several skits in the videos including one in which Hurley, who is white, handed a watermelon to Lewis, who is black. Several years later, the Department released several of the videos, including the watermelon video, to the public. Lewis sued, contending the release of the video violated his rights under California’s statutory police Bill of Rights.
Lewis’ claims lay under Section 3303 of California’s Government Code. Section 3303 provides that a police officer who is “under investigation” and is “subjected to interrogation by…the employing public safety department, that could lead to punitive action,” may be interrogated. Subsection (e) provides that while the officer is under interrogation, he shall not be subjected to “offensive language,” threats of “punitive action,” or promises of reward as an inducement for answering questions. It also provides that while the officer is under interrogation, the employer shall not subject the officer to “visits by the press or news media” without his consent, and shall not provide the news media with the officer’s home address or photograph without his consent.
Lewis argued that the release of the watermelon video amounted to a release of his photograph to the press without his permission. The Court disagreed, finding that “there are no facts alleged showing that Lewis was ‘subjected to interrogation’ by the Department at the time the video clip was released. Indeed, the Department’s investigation had concluded almost four years previously, with the filing of the disciplinary charges in October 2006. Lewis’ claim under the Bill of Rights must be dismissed.”
Lewis v. City and County of San Francisco, 2012 WL 2367877 (N.D. Cal. 2012).