Judge Orders City of West Sacramento to Provide List of Counsel in Police Misconduct, Use of Force Cases
By Crecenzo Vellucci
WOODLAND, CA – A Yolo County Superior Court judge Wednesday – in response to a lawsuit filed by The Davis Vanguard – ordered the City of West Sacramento to turn over the names of all law firms and lawyers it has consulted with in police misconduct and use of force cases.
The Davis Vanguard filed the lawsuit earlier this year after the City of West Sacramento admitted it had destroyed all information relating to an incident involving Ernesto and Fermin Galvan, who were badly beaten by West Sacramento police in 2005.
The Davis Vanguard had specifically sought the Galvan records in a January 8 records request filed under SB 1421, a landmark police transparency bill that took effect Jan. 1 of 2019. The City of West Sacramento, however, in response to The Davis Vanguard’s request, admitted it had “purged” those records.
Municipalities throughout the state have largely complied – though usually begrudgingly – with the police transparency law. Some agencies originally balked, claiming they did not have to turn over the files to the public and news organizations if incidents occurred before Jan. 1 of this year. The courts have uniformly rejected that “retroactive” argument.
The Galvan excessive force case began on June 14, 2005, when officers from the West Sacramento Police Department stopped Ernesto and Fermin Galvan along the dark Riverbank Road, noting one of them “was sweating profusely, was fidgety, and would not look him in the eyes.”
What followed was a confrontation that left Ernesto Galvan and his brother badly beaten – Ernesto had permanent injuries, including numerous broken bones in the face. The DA’s office charged the men with resisting arrest by threats and violence and misdemeanor battery on a police officer.
As the brothers alleged in a civil complaint originally filed in 2008, “police officers used excessive and potentially deadly force, or force likely to cause, and which did cause, serious bodily injury to plaintiff (Ernesto Galvan).”
The case went to trial in 2007 and twice in 2010 but the jury hung 11-1 for guilt in 2007 and in the first trial in 2010. After a 7-5 vote for acquittal in the third trial, the Yolo County District Attorney’s office dismissed all the charges and did not try them a fourth time.
Ernesto, according to court documents, “suffered multiple skull and facial fractures, a severe concussion, fractures of the fingers on both hands, lacerations and bruising….he was comatose for several weeks (and) suffered a permanently diminished mental capacity, as well as partial paralysis on one side of his body.”
“This is an important case. It is probable there are other public agencies that destroyed records relating to police misconduct and use of force. This case demonstrates how these agencies can recover these destroyed records and, if they won’t do it voluntarily, how they can be compelled to recover the destroyed records that the public is very interested in accessing and reviewing,” said Davis attorney Paul Nicholas Boylan, who is representing The Davis Vanguard.
“Destroying records before the law (SB 1421) was active, or per a pre-existing ‘records retention schedule’ is a way around the law. This case is unique,” added Mr. Boylan. He said The Davis Vanguard is arguing that records sought and destroyed by the city of West Sacramento are in the possession of the City’s attorneys.
The Davis Vanguard sent interrogatories – questions that the City of West Sacramento is required to answer – asking the city to provide (1) the names of the attorney(s) who represented the city in reference to the Galvan case; and (2) the contact information for these attorneys; and (3) the “caption information” for any lawsuits associated with the Galvan case.
According to The Davis Vanguard publisher, David Greenwald, emails obtained from the city indicate there is some evidence that, “given the timing of the legislation and the emails, these files were knowingly purged to prevent public dissemination.”
For reasons currently unknown, Mr. Boylan explains, the City doesn’t want the public to know who the City hired and paid to represent the City in connection with the Galvan case.
Mr. Boylan said that while the city may have purged its paper and electronic records, copies of the records may well exist with outside lawyers working on the Galvan civil case. That’s why The Davis Vanguard is seeking the identities of the city of West Sacramento’s legal counsel.
The judge agreed and Wednesday ordered the City to identify their legal counsel and provide their attorneys’ contact information in 20 days.
The Vanguard then has a number of options, one of which is to depose the attorneys identified and ask them to describe the kinds of records the City provided them pertaining to the Galvan case. The Davis Vanguard can then ask for a court order to obtain any and all records requests that aren’t privileged, such as Internal Affairs investigation records and reports.
“The public is deeply interested in how law enforcement agencies work to prevent excessive force issues and, when they happen, how law enforcement agencies respond. The California legislature recognized this public interest and amended the Public Records Act to expressly require public agencies to provide records that allow the public to examine how well law enforcement agencies are working to address and prevent excessive force events. The City of West Sacramento did not provide access to these records,” Mr. Boylan said.
The Vanguard has filed similar requests in all jurisdictions in Yolo County and has received the full police records in the 2012 Davis Police Tasering of Jerome Wren and Tatiana Bush.
In Sacramento, the Sacramento Bee and LA Times filed suit on January 25 against the Sacramento Sheriff’s Department, “charging that the department is refusing to follow the statute that requires the release of records on deputies who fired their weapons or engaged in misconduct on duty.”
Sheriff Scott Jones has since relented and promised to provide those records.