Civilian Board Wins Back Muscle To Probe Police Misconduct

By Bill Wichert | June 30, 2019, 8:02 PM EDT

Newark, New Jersey, Mayor Ras Baraka in 2015 unveiled plans for a civilian board to review complaints about police. Last month, a New Jersey court backed the board's power to investigate police misconduct. (AP)

A recent ruling that restored the investigative muscle of a board in Newark, New Jersey, to dig into police misconduct claims but limited the reach of any findings should still rekindle a powerful, civilian voice for police accountability at a time when such reform efforts are being challenged, supporters say.

In a June 18 published opinion, the New Jersey Appellate Division partially reversed a lower court decision in finding that the city's civilian complaint review board is authorized to investigate misconduct allegations, though it decided investigative findings shouldn't be binding on the head of the city's public safety department in determining discipline.

Despite the mixed nature of the decision, advocates framed it as a major victory for a community where the U.S. Department of Justice has uncovered constitutional violations by the police force.

"This board is now empowered to provide independent oversight over the police and really restore trust between community members and law enforcement," said Jeanne LoCicero, legal director of the American Civil Liberties Union of New Jersey, which appeared as a friend of the court in the case.

With more than 200 entities providing such civilian oversight across the country, there has been growth in that work over the last decade in terms of the number of organizations and "the national conversation," said Brian Corr, president of the National Association for Civilian Oversight of Law Enforcement, a nonprofit group that supports the entities.

In recent years, however, "there's been concern that now we may be backtracking," said Corr, citing developments on the federal level, such as the DOJ effort to roll back a consent decree mandating changes at the Baltimore Police Department.

The appellate decision on Newark's board "goes a long way to stating that civilian oversight is here to stay" and that it's "an important element of policing and community-police relationships," Corr said.

"It's really heartening to see a court very clearly lay out the reasons why oversight is important in this particular community and the principles that make oversight necessary and good," he said.

But Eugene O'Donnell, a professor at the John Jay College of Criminal Justice, argued that such boards are inherently biased against police officers. The boards are "sort of like a citizens advocacy model where they're going to advocate for victims," said O'Donnell, a former police officer and prosecutor in New York City.

The presence of those entities can make officers reluctant to use force that might be necessary, O'Donnell argued.

"The purpose of the board is to ... diminish police activity," O'Donnell said. "The real agenda is less policing is best policing."

Newark created its board in 2016 in the wake of a DOJ investigation that revealed "a pattern or practice of constitutional violations" by the Newark Police Department, including in its stop and arrest practices and its use of force, as well as problems with its internal affairs system. The probe led to a consent decree mandating reforms in the department.

The municipal ordinance establishing the board allowed it to investigate police misconduct complaints, including by issuing subpoenas, and to make disciplinary recommendations to the city's public safety director. Under the ordinance, the public safety director had to accept as binding the board's findings of fact, "absent clear error."

The ordinance further required the public safety director to explain in writing, and possibly in person before the board, when he or she disagrees with its findings or chooses to impose discipline below what the board recommends.

But the Newark police officers' union sued the city, and a trial court largely invalidated the ordinance and prohibited the board from engaging in investigations.

In reversing that holding, the appeals court concluded that a state statute allowed for the creation of such a board "for the purpose of investigating and examining, at any time, the operations of the police force."

That statute, however, provides that a police chief is responsible for the day-to-day operations of a police department, which would include supervising the internal affairs division, according to the appellate opinion. Based on that provision, the court threw out the part of the ordinance making the board's findings binding.

"In this respect, the ordinance impermissibly undermines the chief's statutory authority to run the NPD's day-to-day operations by rendering the results of the IA Department's investigation nugatory and commandeering the disciplinary process," the opinion said.

Losing that binding element takes some of the teeth out of the board, and "time will tell" whether the panel can still be effective without it, said Ronald Weitzer, a sociology professor at The George Washington University.

"We'll see to what degree the public safety commissioner abides by whatever recommendations they make regarding sanctions and discipline," Weitzer said.

"The plus side is that the board still has its own investigatory powers," he said. "But the challenge is to transform those powers into actual sanctions and accountability for those officers who are accused."

But LoCicero maintained that the board could still be effective without the binding provision, saying that was "just one element of a comprehensive system that provided significant oversight over police misconduct."

She also noted that the public safety director is "still accountable to the public" to explain his or her reasons for deviating from the board's findings.

Such an encounter between the public safety director and the board can lead to "a positive dialogue," said Corr.

"That sort of thing stops becoming 'who's going to win the tug-of-war' and becomes a conversation," Corr said. "It allows the oversight agency and the law enforcement executive to be in conversation with each other, and I think, over time, it can help to build up a mutual respect between all the parties involved."

O'Donnell offered a different take: the final call by the public safety director can provide a check on the passions of the board in responding to public outrage over a particular incident.

The director has to consider that "the police use force as part of their job," O'Donnell said.

--Editing by Brian Baresch.

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