Top NJ Court Handcuffs Police Oversight Board's Powers

By Kevin Penton | August 23, 2020, 8:02 PM EDT

New Jersey's highest court has defanged the powers of a civilian board meant to oversee police actions in the state's largest city, barring it from investigating alleged police misconduct at the same time that internal investigators are probing a matter.

The New Jersey Supreme Court on Wednesday determined that the Civilian Complaint Review Board can continue to investigate complaints against police in Newark, New Jersey, and make recommendations on policy or discipline to police brass, but it should not have subpoena power or the ability to examine an allegation at the same time as internal police investigators.

"We conclude that concurrent investigations would interfere with the police chief's statutory responsibility over the [internal affairs] function and that the review board's separate investigatory proceedings would be in conflict with specific requirements imposed on [internal affairs] investigations and their results," the opinion reads.

Newark created the review board in March 2016, following years of allegations that police officers were getting away with brutality and discrimination against residents in the city and were making unwarranted stops and arrests.

The Fraternal Order of Police, Newark Lodge No. 12, however, soon challenged the review board in a complaint filed in state court in August 2016, arguing that it conflicted with existing laws giving the police chief sole power to investigate officers.

Counsel for the police union could not be reached for comment on Friday.

"Given the important role [civilian complaint review boards] play in making sure police officers are held accountable and promoting community trust, I am disappointed with the court's ruling," Avion M. Benjamin, an attorney representing the city of Newark, said to Law360 on Friday.

The Civil Rights Division of the U.S. Department of Justice had begun investigating the department in 2011, noting in a subsequent report that from 2007 to 2012, the police department's internal investigators sustained only one allegation of excessive force.

Newark's legislators established the 11-member review board to address complaints filed against police. They granted the board the power to subpoena information, to investigate allegations of police misconduct and to recommend discipline to the city's public safety director to carry out.

Unless its findings were found to include "clear error," the review board's findings of fact were considered binding for the public safety director, who retained final authority on the discipline to be imposed.

The police union, however, asserted that the ordinance that created the board was unlawful because it conflicted with state statutes that call for complaints and investigations against officers to be the sole power of a police chief.

The trial court later agreed with the police union, holding that because city legislators did not have the authority themselves to investigate allegations against police officers, they could not somehow transfer that power to others.

Following an appeal by the city of Newark, an appellate court clarified that the review board's factual findings could not be binding on the public safety director, as that could lead it to overrule findings by the police department's own internal affairs department, according to court documents. The appellate court also invalidated the power of the review board to disclose the identity of those making complaints, as that could thwart investigations and others from coming forward.

But it reversed the trial court on the review board's subpoena power, finding that state statutes allowed it. And it allowed the review board to continue to conduct investigations at the same time as probes by the police department's internal affairs division.

The state Supreme Court last week was the third court to weigh in on the review board, allowing it to continue, but with the reduced investigative powers that the justices say are bound by state statute.

"Despite the sound intentions to address municipal and community concerns in Newark ... the [review board's] operation, as originally codified in the ordinance, must bend to the legislative infrastructure within which such entities must operate under present law," the opinion reads.

For the review board to have the oversight powers that its creators intended, state legislators would need to amend state statutes to either allow for two investigations to occur concurrently or to clarify that probes by a police department's internal affairs division are no longer paramount, according to the high court's opinion.

Barring a legislative change at the state level, the Supreme Court also barred the review board from having subpoena power. But the justices noted that the review board could potentially work around that restriction in part by preparing oversight reports to city legislators requesting that they use their subpoena power to obtain documents on the performance of Newark's internal affairs, according to the opinion.

The American Civil Liberties Union of New Jersey, which filed an amicus brief in the case supporting the review board, plans to work to encourage state legislators to amend state laws so that Newark and other towns in the Garden State may independently investigate allegations of police misconduct, Jeanne LoCicero, the group's legal director, said in a statement on Wednesday.

"In the wake of George Floyd's murder, people around the country and here in New Jersey have been marching and calling for an end to systemic racism in policing and for police accountability," LoCicero said. "As designed, Newark's Civilian Complaint Review Board provides a powerful example for police accountability and oversight over misconduct."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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