The union representing Downey police officers has filed a lawsuit asking a judge to force the city into destroying old records of officers’ misdeeds.
The lawsuit comes as some of those records could be made public for the first time under a new police transparency law.
Since the law, Senate Bill 1421, went into effect at the beginning of this year, police unions across California have tried to block access to records that predate 2019, arguing the law wasn’t explicitly retroactive.
But Downey’s police union is going a step further, asking a judge to order the city to purge files more than five years old because that’s how long Downey’s record-keeping policies say they should be stored.
“This is the first action that we’ve seen where a request has been made to destroy the records, and that is truly nefarious,” said Jim Ewert, general counsel for the California News Publishers Association, which advocated for SB 1421.
The lawsuit argues that Downey would do “irreparable injury and damage” to officers if it revealed disciplinary records that should have been destroyed already.
The lawsuit cites city policy that requires the Downey Police Department to retain internal affairs files for five years unless the chief of police decides to extend that time period, according to the lawsuit.
“We’re trying to get them to follow their record-retention policy, and our understanding is there’s a document in existence that should have not been retained as a result of that policy and was inadvertently retained,” Rob Wexler, an attorney that represents the union, said.
Downey City Attorney Yvette Garcia said that policy sets a minimum standard, not a deadline of when documents should be destroyed.
“It doesn’t say you have to do it within five days or 10 days after the expiration date,” she said.
Garcia said it’s not yet clear how many documents would be destroyed if a judge orders the city to comply with the union’s request.
She said Downey had been gathering documents in an effort to comply with SB 1421 when the union threatened legal action.
The law, which took effect Jan. 1, mandates disclosure of police discipline records in certain situations, including when an officer was dishonest or sexually assaulted a member of the public. It also requires police to turn over records about serious uses of force.
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In response to a public records request from the Long Beach Post seeking 10 years worth of files, Downey said it had records of at least one officer being dishonest that it intended to turn over, according to a letter from the city on Jan. 28.
But about a week later, the union intervened and threatened to sue the city to block the release of any records that predate SB 1421, a Feb. 12 letter from the city said.
The union filed its lawsuit on Feb. 28 after it learned the city still had records of a disciplinary case that was adjudicated in May 2013, the lawsuit states.
It’s unclear what the case is about, but in that same month, Downey’s insurer agreed to pay $4.5 million to settle a lawsuit about a man who was mistaken for a suspect and fatally shot in the back by an officer.
Some law enforcement agencies have already started producing documents in response to SB 1421, but others, including Long Beach, have decided to wait until an overarching ruling about whether the law is retroactive.
SB 1421’s author, Sen. Nancy Skinner, D-Berkeley, said the law does apply retroactively.
“Unless the state Supreme Court issues an injunction, which it has chosen not to do, SB 1421 is the law and covers pre-2019 records as the Legislature intended,” she previously said in a statement on Twitter.
Lower courts in some California counties have ordered police agencies to turn over records from before 2019, but those decisions have been stayed or delayed as they work their way through the appeals process, said Glen A. Smith, a legal fellow with the First Amendment Coalition, which has sued California Attorney General Xavier Becerra over the issue.
A hearing in the Downey case is scheduled for Thursday, May 7.