Fired SLO officer files lawsuit claiming city exaggerated drug offense

Former law enforcement official says he was misled into pleading guilty in federal court because he was under the belief he didn’t commit a fireable offense

mfountain@thetribunenews.comJanuary 17, 2014 

The San Luis Obispo police station at Santa Rosa and Walnut streets.

DAVID MIDDLECAMP — dmiddlecamp@thetribunenews.com

A former San Luis Obispo police officer, who is suing the city to get his job back after being fired for carrying misbranded pharmaceuticals across the border from Mexico, argued in court filings that the city exaggerated the offense and let him go to save face.

An attorney for Daniel McDow, 35, filed a legal brief Tuesday in San Luis Obispo Superior Court arguing that in 2010, McDow was misled into pleading guilty in federal court to a misdemeanor charge of introducing misbranded drugs into the county, believing the conviction was not a fireable offense.

McDow and fellow officer Armando Limon brought some 850 pills containing methylphenidate, a component of the attention deficit disorder medication Ritalin, across the border.

According to the filing, McDow purchased what he thought were diet pills with Limon to get a discount price from the pharmacist.

McDow separately purchased muscle relaxers while Limon also bought Ritalin for his son, who had been diagnosed with ADHD, according to the filing.

When they crossed the border, they produced the drugs for inspection. The drugs were later tested and did not match the Spanish-language label on the containers, the filing said.

Limon did not appeal his subsequent termination.

McDow appealed his termination, and an independent hearing officer later suggested that he be returned to duty under a “last-chance agreement.” However, the City Council upheld his termination in May.

In his filing Tuesday, McDow argued that he wasn’t alone in not understanding complex federal laws about bringing prescription drugs across the border.

“… [The Federal Drug Administration] often issues travel advisories and alerts to help stave off the purchase of and importation of drugs not approved in the United States, and counterfeit drugs,” the legal brief reads. “Petitioner Dan McDow fell into this trap.”

The court filing notes that McDow was not charged with unlawful possession of drugs and contends that the charge he was convicted of does not require the knowledge of mislabeling.

“The department just thought, despite the absence of any moral turpitude, McDow had some free-floating duty, without any evidence, to have known better,” it reads.

During the city’s investigation from September 2009 to August 2010, McDow was placed on paid administrative leave, as required by the Police Officers Bill of Rights, and collected $150,530, according to the city.

McDow’s Fullerton-based attorney, Michael Morgess, said in an email Friday that the pharmacy was at fault for mislabeling the product McDow purchased.

“Officer McDow did what thousands of tourists do every day — he purchased and paid for pharmaceuticals from an established brick-and-mortar pharmacy in the tourist town of Ensenada,” Morgess wrote. He said the tablets were put in a mislabeled bottle, which was written in Spanish.

He added that his client was accused of a violation of the Federal Food, Drug, and Cosmetic Act, which prohibits introducing mislabeled food, drug and cosmetics items into commerce.

“This is the same violation that food, drug and cosmetics company executives are accused of when, even personally unbeknownst to them, their companies similarly introduce mislabeled items,” he wrote. “[It] requires no intent to violate on the part of the accused.”

Morgess argued the Police Department “conflated” the mishap into a case of drug possession, a violation of the California Health and Safety Code.

“The City conceded McDow engaged in no such violation, but terminated him anyway to save face,” he added, noting that a third-party arbitrator sided with the officer during an administrative hearing.

McDow is seeking reinstatement with full back pay, seniority and rank; the removal of all evidence of the disciplinary action from his personnel file; and reimbursement for all costs of the lawsuit.

San Luis Obispo City Attorney Christine Dietrick said her office has reviewed the brief and disagrees with McDow and Morgess’ argument.

“We continue to believe the council’s termination was well-founded, and we will vigorously defend against Mr. McDow’s claim,” Dietrick said Thursday.

An opposing brief is due to be filed by the city in mid-February. Both parties are scheduled to appear for a hearing March 17 in San Luis Obispo Superior Court.

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