A San Francisco firefighter who allegedly attacked an off-duty Marin County sheriff’s deputy at Italian restaurant Original Joe’s is set to have his case dismissed by the district attorney’s office as part of a diversion program. 

Prosecutors say Eigil Qwist assaulted David Gallegioni in October. Gallegioni had confronted Qwist and his boss, Deputy Fire Chief Patrick Rabbitt, saying one of them touched his daughter’s butt.

Qwist was charged with misdemeanor assault and battery months later, on Jan. 20. A San Francisco Superior Court judge ruled Wednesday that Qwist’s case will be dismissed if he pays $2,000 restitution and remains out of trouble for 45 days. 

This is not the first time Qwist has been charged with a crime or participated in a diversion program allowing him to avoid a criminal conviction. In 2016, he was charged by Marin County prosecutors with a DUI and carrying a loaded gun in public. In that case, he was granted diversion after taking DUI and anger management classes and performing 40 hours of community service. He was put on probation for three years.  

Some legal experts are crying foul at the light approach to Qwist by the district attorney’s office, calling the ruling an example of a two-tier justice system. DA Brooke Jenkins has taken a tough approach to diversions, fighting many such efforts by defense attorneys.

“It looks like this firefighter may have gotten special treatment in a city where getting diversion is increasingly difficult,” said civil rights attorney Adante Pointer. “There’s many people who can face more serious charges and punishment for similar cases.” 

Qwist did not respond to a request for comment. 

The district attorney’s office said in a statement that it makes charging decisions based on facts, evidence, and the law. 

“In this case, Mr. Quist was charged with a statutorily diversion-eligible misdemeanor case, and we had no grounds to object. We object to diversion in cases where we believe diversion is not suitable; for example, in cases where a defendant may have other cases pending or has been previously convicted,” a spokesman said in a statement. “In all cases, we consider the individual’s conduct, regardless of who they are.”

Gallegioni is suing the city in civil court, claiming that Qwist and Rabbit sexually assaulted his daughter and attacked him. He is seeking unspecified damages. 

According to the arrest warrant and the lawsuit, Qwist and Rabbit were in Original Joe’s in North Beach on Oct. 12, along with members of Gellanioni’s family. Gellanioni’s daughter felt someone touch her butt and turned to confront one of the two firefighters standing behind her. Surveillance video obtained by police failed to capture someone touching her in that manner.  

After telling a restaurant security guard, who took no action, she called her father, who was outside, for help. Gellanioni and his wife then confronted the two men, according to the lawsuit, which says one responded, “Don’t mess with us,” while “gesturing toward the surrounding group of San Francisco Fire Department personnel accompanying him.” 

This led to a shoving match between Gellanioni and one of the firefighters, which security broke up. The two firefighters then left the restaurant via a back door. 

But minutes later, Qwist returned through the front door and struck Gellanioni in the back of the head, according to the suit and the warrant, which did not name those involved but described the event.

Qwist and Rabbitt fled, police were called, and Gellanioni was taken to a hospital. 

Although other firefighters were there, and witnesses noted the suspects’ department T-shirts, police didn’t identify them for more than two weeks — and only after photos circulated within the San Francisco Police Department, the warrant says. An officer recognized Qwist as one of the suspects Oct. 31.

Rabbitt, Qwist, and representatives of Original Joe’s have denied the allegations in the lawsuit. 

The city attorney’s office is investigating the incident, and SFFD Chief Dean Crispen has instructed the department to cooperate with the investigation.