Judge dismisses punishment against police sgt. for alleged 'rac - WSFA.com Montgomery Alabama news.

Judge dismisses punishment against police sgt. for alleged 'racy' photos

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TUCSON, AZ (Tucson News Now) -

A Superior court judge dismissed a punishment made by the Tucson Civil Service Commission against a former Tucson Police Lieutenant who was demoted after sending alleged sexually provocative photos to her boyfriend.

In a two page ruling, Judge Charles Harrington called the judgement called the punishment an "abuse of discretion", "arbitrary", "capricious", and "without just cause."

He remanded the matter back to the civil service commission.

Diana Lopez's lawyer Michael Piccarreta applauded the ruling.

"It was wrong on so many levels.  First of all Diana did nothing illegal.  All of her activity was constitutionally protected.  She had no idea the photos she shared with a loved one in a committed relationship would go any farther," said Piccarreta.

Lopez was demoted after someone sent an anonymous letter to the police department, that sparked an internal affairs investigation.  In his "Under Advisement Ruling" the judge stated the sharing of the photos did not come to light for about a year after the incident.  The male officer who shared the photos was suspended for 80 hours without pay, while Lopez lost her rank.

In court documents city officials said Lopez's action had been an embarrassment for the department, and they cited her poor judgement in sharing the photos, saying it was not a quality they wanted in a department leader.

The judge disagreed, saying the department had no policy, rule or order informing members of the department that they cannot make and share sexually explicit materials, electronically, or otherwise, with someone with whom they are intimately involved in a relationship.  The ruling goes on to say, there is also no policy or rule forbidding members of the department from dating each other.

The ruling cites a former case and says "the employee must have had fair notice, express or implied, that such conduct would be grounds for sanction."

In this case, the ruling states this was a "discreet liaison between two consenting unmarried adults. Plaintiff did not know nor should she have known that this was prohibited conduct.  Plaintiff did not know nor should she have known that her boyfriend would share the intimate digital images that she had shared with him."

The court concluded that Lopez did not have fair notice that her conduct was punishable, and that there was testimony that the police department had never attempted to sanction this type of conduct in the past.

The judge also stated the Commission "failed to give enough consideration to Lopez's excellent employment record with the Department", and that although the department feared Lopez's ability to command would be impaired, there was enough evidence at the hearing from her co-workers that this was not the case.

"It takes a lot of internal moxie to fight city hall in an area that's personally embarrassing.  She was always comforted by the support she had from the people at the police department who knew her, and worked with her," said Piccarreta.

We asked Piccarreta if any of the internal investigation officials or civil service commission members had actually seen the alleged photos or video.

"No.  There is no evidence that these photos existed or have existed for the last couple years."

"The police did a thorough investigation.  They contacted anyone who may have viewed them.  Everyone said they do not have them, or they have been destroyed," added Piccarreta.

Lopez declined to comment today.  In addition to her rank of Lieutenant, she is also seeking back pay and attorney fees.  Piccarreta said the commission could appeal this ruling, but he hoped they did not waste any more time or money.

"My hope is they listen to some expert legal advice and let them know they're only prolonging the inevitable.  All they're going to do is increase their own legal cost, and they cost they owe to Diana Lopez," said Piccaretta. 

We reached out to the Tucson Police Department for a comment.  A spokesman said they could not comment at this time as this is still on-going civil litigation.  The city attorney's office did not return our call seeking a comment today.

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