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Signaling that she will stand behind campaign criticism of Fajitagate, new San Francisco District Attorney Kamala Harris on Friday cleared the way for a key figure in the scandal to be absolved. Harris’ office didn’t put up a fight when Deputy Chief Gregory Suhr — one of several officers who faced conspiracy to obstruct justice charges, then saw them dismissed for lack of evidence — asked a San Francisco Superior Court judge to declare him factually innocent. Suhr is the second member of the San Francisco Police Department cleared by Judge Kay Tsenin, with two more asking for similar treatment. Retired Police Chief Earl Sanders was declared innocent last year. Harris’ office didn’t file a reply to Suhr’s motion. And when Tsenin asked prosecutor David Merin in a succinct hearing Friday if his office had any objection, Merin simply replied, “No, your honor.” “Then the order is granted,” Tsenin said. Bill Fazio, who represents Capt. Greg Corrales, said he hopes Harris’ inaction is indicative of what she’ll do with his client’s motion for a similar finding. “We certainly had hoped, and it appears to be the case, that Harris is getting back to prosecuting and putting politics back where it belongs, in the political spectrum and not in the courtroom,” Fazio said. But Tsenin’s orders may be fodder if the officers decide to pursue civil suits against the city over their treatment. Last week, Sanders filed a multimillion-dollar claim against the city for malicious prosecution, false arrest and civil rights violations. In his claim, Sanders cites his declaration of factual innocence to support his case. Though former District Attorney Terence Hallinan didn’t oppose Sanders’ motion last summer, he said on Friday that he would have fought Suhr’s motion, as well as those recently submitted by Corrales and Lt. Edmund Cota. Hallinan had dropped the conspiracy charges against Sanders and Assistant Chief Alex Fagan Sr. himself, about two weeks after the grand jury handed down indictments against the 10 officers last February. But Hallinan pressed on with the conspiracy cases against Suhr, Deputy Chief David Robinson, Sgt. John Syme, Corrales and Cota. Tsenin dismissed them for lack of evidence last April. Harris had criticized Hallinan during the district attorney’s race last year for how he handled the conspiracy indictments. She said Hallinan allowed the public to believe the police department was corrupt, “knowing that the evidence is not there, allowing it to go forward � and then turning around and having the charges thrown out, either by the DA or by the court.” Harris’ office isn’t tipping its hand on Corrales and Cota’s motions seeking a finding of factual innocence. Spokeswoman Debbie Mesloh said the office won’t comment before the hearings later this month. In Sanders’ claim against the city, he says the court’s finding of factual innocence, unopposed by Hallinan, is “compelling evidence” of malicious prosecution. Sanders will file a suit against the city and Hallinan in federal court if the city rejects the claim. Sanders’ lawyer, Sausalito civil rights attorney Charles Bonner, said Friday he expects the city to do just that. But some attorneys predict that regardless of a finding of factual innocence, or its admissibility, a federal court would find Hallinan had prosecutorial immunity. “A finding of factual innocence would be irrelevant in any suit against the city or the former district attorney,” said Stephen Yagman, a federal civil rights lawyer with Yagman & Yagman & Reichmann & Bloomfield, in Venice Beach. Hallinan would have “absolute” prosecutorial immunity with respect to a claim of malicious prosecution, Yagman said, citing the 1976 U.S. Supreme Court decision, Imbler v. Pachtman, 424 U.S. 409, which rejected a claim against a prosecuting attorney. “It’s one of the hardest immunities to get around,” said Alan Cohen, a senior associate at Oakland’s Meyers, Nave, Riback, Silver & Wilson who defends cities in civil rights litigation. “I won’t say it’s absolute, but it’s damn near absolute.” Still, Bonner said Friday that he wouldn’t be surprised if the other officers seeking a finding of factual innocence also sue the ex-DA and the city. “All of these officers had their reputations damaged, for absolutely no rational, meaningful reason,” Bonner said. But lawyers for Suhr and Cota said their clients aren’t looking for money from the city; they just want to polish their tarnished reputations. “[Suhr] has no interest, even if he had a case, of suing them,” said attorney Stuart Hanlon, of San Francisco’s Tamburello & Hanlon. A finding of factual innocence is “not set up to aid or prevent anybody from bringing civil suits,” Fazio said. But, noting that he doesn’t practice civil law, he said he hasn’t spoken to Corrales about whether he has considered seeking damages. Fazio has advised his client not to talk to the press about the case until it’s over, he added. Hanlon said his client, Suhr, waited until after the election to file his factual innocence motion and planned to follow through regardless of who won. “We weren’t DA shopping,” Hanlon said. “We just thought it would be used and abused by both sides if we filed during the campaign.” A lawyer representing one of the three defendants still facing charges in connection with a November 2002 street fight between two civilians over a bag of fajitas says it’s too soon to tell if their cases will be affected by the change in leadership at the DA’s office. The case is set for trial in June. Without meaningful hearings since Harris took office last month, it’s tough to predict how she’ll handle the case, said criminal defense attorney James Collins, who represents Alex Fagan Jr. “Nothing [has] happened that would’ve let us know one way or the other.”

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