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Tony Diaz

Other Non-Felony Exonerations with Official Misconduct
Shortly after 7 a.m. on August 25, 2015, San Diego police officer Colin Governski cited 56-year-old Tony Diaz for sleeping in the back of his truck at Bahia Point Park in violation of a city prohibition against “vehicle habitation.”

Diaz was homeless and did sleep in his vehicle, but had permission from a San Diego business to park in the business’s parking lot. As a result, the back of his truck contained bedding. He claimed he had just arrived at the park and was coming out of the bathroom.

Diaz was indigent and appeared in court in November 2015 representing himself. He asked for a continuance and the case was set for trial on June 3, 2016.

On the day of the trial, Diaz appeared with attorney Coleen Cusack, who was representing him without charge. Cusack’s motion to declare the illegal habitation code unconstitutional was denied.

Governski, who was a member of the San Diego police quality of life team, testified that he had warned Diaz in the past about sleeping in the back of his truck at the park and had cited him a year earlier. Governski said that when he came to the park that morning, Diaz was sleeping in the back of the truck.

Diaz testified that he arrived at the park just minutes earlier and was just coming out of the park bathroom when Governski waved him over and issued the citation.

“He said that they had already talked to me before and that I was gonna get a ticket for habitation,” Diaz said. “And if I didn’t like it, that he was going give me…a ticket every time he saw me. And if he didn’t see me, he was gonna give my truck a ticket.”

“Okay, were you sleeping in your (truck) on the date that you were given the citation,” Cusack asked.

“No, I was not,” Diaz said. He explained that he came to the park early because he was a free diver and used a spear to catch fish. He said that to get to the best fishing spots, he had to come early before people with fishing poles arrived.

After Diaz finished his testimony, San Diego County Superior Court Commissioner John Blair asked Governski to return to the witness stand. “When you first made contact with Mr. Diaz, he was sleeping in the back of the vehicle on the date of the violation, correct?”

“Yes,” Governski replied.

Blair then convicted Diaz and fined him $180. Because Diaz was indigent, he was allowed to work off the fine by performing 12 hours of community service.

In February 2017, the city of San Diego agreed to pay $15,000 to settle a lawsuit filed by Zack Green, a homeless man who claimed that Governski had harassed him repeatedly.

In April 2017, Cusack appealed Diaz’s conviction, arguing that the illegal habitation code was unconstitutional and noting that the Ninth Circuit U.S. Court of Appeals had found a similar law in Los Angeles unconstitutional.

While preparing a response to Cusack, Deputy City Attorney Steven Hansen discovered that Governski was wearing a body camera when he cited Diaz. Footage from the camera showed that Diaz was telling the truth when he said he was coming out of the bathroom, and that Diaz was not sleeping in the back of his truck when Governski saw him.

The footage showed Governski and a partner arriving and beginning to roust a couple who were sleeping in a tent and a man who was sleeping in a camper. While asking for their identification and informing them that it was illegal to sleep there, Governski turned and spotted Diaz walking from the park bathroom.

Governski told Diaz that he had warned him in the past and that residents of the area had complained about him sleeping in his truck. When Diaz responded that there couldn’t have been any complaints because he just got there, Governski decided to issue a complaint against Diaz.

San Diego police policy requires officers to note on complaints if there is body camera footage, but there was no such notation on Diaz’s complaint. Hansen turned over the footage to Cusack and filed a motion to vacate the conviction.

“The video is exculpatory evidence because it contradicts the officer’s testimony and corroborates (Diaz’s) testimony,” the motion said. “The video undermines the officer’s credibility and removes a major pillar of the case against (Diaz), an allegation that he was found sleeping in the back of his truck.”

On August 31, 2017, the motion was granted and the case was dismissed.

Governski was subsequently transferred to a different unit and the police department began an internal investigation.

– Maurice Possley

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Posting Date: 9/18/2017
County:San Diego
Most Serious Crime:Other Nonviolent Misdemeanor
Additional Convictions:
Reported Crime Date:2015
Age at the date of reported crime:56
Contributing Factors:Perjury or False Accusation, Official Misconduct
Did DNA evidence contribute to the exoneration?:No