Fraternal Order of Police v. City of Newark

• Citation: 236 A.3d 965,244 N.J. 75
• Decision Date: 19 August 2020
• Docket Number: 083197,A-15 September Term 2019
• Parties: FRATERNAL ORDER OF POLICE, NEWARK LODGE NO. 12, Plaintiff-Appellant, v. CITY OF NEWARK, Defendant-Respondent.
• Court: New Jersey Supreme Court

244 N.J. 75

236 A.3d 965

FRATERNAL ORDER OF POLICE, NEWARK LODGE NO. 12, Plaintiff-Appellant,

v.CITY OF NEWARK, Defendant-Respondent.

A-15 September Term 2019

083197

Supreme Court of New Jersey.

Argued April 27, 2020

Decided August 19, 2020

Matthew D. Areman argued the cause for appellant (Markowitz & Richman, attorneys; Matthew D. Areman, of counsel and on the briefs).

Avion M. Benjamin, First Assistant Corporation Counsel, argued the cause for respondent (Kenyatta K. Stewart, Corporation Counsel, attorneys, Newark; Avion M. Benjamin, of counsel and on the briefs).

Daniel I. Bornstein, Assistant Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Daniel I. Bornstein, of counsel and on the briefs).

Vito A. Gagliardi, Jr., argued the cause for amicus curiae New Jersey State Association of Chiefs of Police (Porzio, Bromberg & Newman, attorneys; Vito A. Gagliardi, Jr., of counsel and on the brief, and David L. Disler, Morristown, on the brief).

Lawrence S. Lustberg argued the cause for amici curiae American Civil Liberties Union of New Jersey and Newark Communities for Accountable Policing (Gibbons and American Civil Liberties Union of New Jersey Foundation, attorneys; Lawrence S. Lustberg, Michael R. Noveck, Newark, Jeanne LoCicero, and Alexander Shalom, on the briefs).

CJ Griffin submitted a brief on behalf of amici curiae New Jersey Urban Mayors Association, Latino Leadership Alliance of New Jersey, and Libertarians for Transparent Government (Pashman Stein Walder Hayden, attorneys; CJ Griffin, on the brief).

Alexis Karteron submitted a brief on behalf of amici curiae Urban League of Essex County and Junius Williams, Esquire (Rutgers Law School Constitutional Rights Clinic, attorneys; Alexis Karteron, on the brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.

This appeal involves a challenge to the City of Newark's (the City or Newark) authority to create by ordinance a civilian oversight board to provide a greater role for civilian participation in the review of police internal investigations and in the resolution of civilian complaints. Newark was the first municipality in this state to join others across the nation that have created a civilian oversight or review entity to increase police accountability and create stronger relationships between the community and the police. No two civilian oversight or review entities are alike in their genesis, their roles, or the legal landscape in which they arose and are controlled.

This challenge to Newark's civilian oversight entity must be considered in the context of the landscape here in New Jersey. We conclude that state law permits the creation by ordinance of this civilian board with its overall beneficial oversight purpose. Such boards must operate consistently with current statutes, however. To the extent some investigatory powers that the City wishes to confer on its oversight board conflict with existing state law, we are compelled to modify the Appellate Division's judgment. We also invalidate the conferral of subpoena power on this review board. The civilian review board's powers must comply with current legislative enactments unless the Legislature refines the law to specifically authorize certain functions that Newark intends to confer on its review board.

We hold that this civilian review board can investigate citizen complaints alleging police misconduct, and those investigations may result in recommendations to the Public Safety Director for the pursuit of discipline against a police officer. However, the board cannot exercise its investigatory powers when a concurrent investigation is conducted by the Newark Police Department's Internal Affairs (IA) unit. An investigation by the IA unit is a function carefully regulated by law, and such an investigation must operate under the statutory supervision of the police chief and comply with procedures established by Newark's Public Safety Director and the mandatory guidelines established by the Attorney General. We conclude that concurrent investigations would interfere with the police chief's statutory responsibility over the IA function and that the review board's separate investigatory proceedings would be in conflict with specific requirements imposed on IA investigations and their results.

Where there is no existing IA investigation, the review board may conduct investigations in its own right. In addition, the review board may conduct its oversight function by reviewing the overall operation of the police force, including the performance of its IA function in its totality or its pattern of conduct, and provide the called-for periodic reports to the officials and entities as prescribed by municipal ordinance.

Thus, the Ordinance, as modified by this opinion, is sustained. We modify the judgment of the Appellate Division, affirming in part and reversing in part the conclusions reached.

I.

A.

We begin with some general background on civilian oversight entities to place in context the action taken by Newark.

There exists an ever-growing body of scholarship on the development of civilian review or oversight entities. In the concise description provided through the American Bar Association, a citizen review board may fairly be understood as typically operating as "an agency independent of the police department with responsibility for receiving and investigating citizen complaints" of police conduct. Samuel Walker, The Citizen Review Board Model, in Citizen Oversight of Law Enforcement (Justina Cintron Perino ed., 2006). The establishment of such entities generally has derived from the view that the police IA function is not producing fair and thorough investigations. Ibid. Thus, a civilian review board usually functions as an alternative to investigations conducted by IA units of police departments. Ibid.

However, there exists a broad array of forms and structures for civilian oversight, a term used more broadly to capture that variety. Sharon R. Fairley, Survey Says?: U.S. Cities Double Down on Civilian Oversight of Police Despite Challenges and Controversy, 20 Cardozo L. Rev. de novo 1, 5 (2020) ("In the nearly eighty years since the first civilian entity was formed to address police accountability, the concept of civilian oversight has been broadly recognized as a way for community interests to independently check police conduct."). Oversight entities have been categorized, based on a recent survey of the existing forms, as having some or all of the following oversight functions: investigative (review police incidents independently from the police department's investigation); review (review or monitor police investigations of police incidents); audit (audit a sampling of investigations rather than reviewing each one, or all within a certain category of event); adjudicative (conduct the disciplinary hearing or proceeding and make findings and conclusions); appellate review (review outcomes of disciplinary investigations at request of complainant or accused officer); supervisory (make policy and strategic decisions regarding police department operations); and advisory (make recommendations to the police department concerning high-level policy and operational strategies). Id. at 8. Those categories are described as not mutually exclusive. Ibid.

The first formal civilian oversight entity in the United States was created in the 1940s, but with more recent social change civilian oversight of police departments has proliferated: Twenty-two civilian oversight entities have been created since 2014, including the board created by Newark. Id. at 3-4, 14. A recent survey of the one hundred most populous cities in the nation found that sixty-one have some form of civilian oversight. Id. at 6, 9 (describing such oversight as having become "a normative element within the police accountability infrastructure"). Many of those entities (38%) review or monitor investigations conducted by the police department, while some entities (21%) conduct independent investigations of police incidents. Id. at 8-9.

That said, examination of "the broad array of models and systems nationwide" revealed that "no two are alike." Id. at 5. And, as noted, each civilian oversight entity's structure and function must be considered from the perspective of the legal framework of the state in which it operates. In general, though, civilian oversight boards serve to foster public trust, police accountability, and transparency in the review of police conduct.

B.

On March 17, 2016, Newark adopted Municipal Ordinance 6PSF-B (Ordinance), establishing the Civilian Complaint Review Board (CCRB or the Board) -- the Ordinance and CCRB at issue here. The background to that follows.

Almost a decade ago, in May 2011, the United States Department of Justice, Civil Rights Division (DOJ) began an investigation into the Newark Police Department (Department) after receiving complaints of civil rights violations by the Department, including complaints about excessive force, unwarranted stops and arrests, and discriminatory police action.

After a three-year investigation, the DOJ issued a report on July 22, 2014, detailing its finding that the Newark Police Department engaged in a pattern or practice of constitutional violations. In relevant part, the DOJ also found deficiencies in the Newark Police Department's systems "designed to prevent and detect misconduct," specifically mentioning as deficient the Department's methods for "reviewing force and investigating complaints regarding officer conduct." According to the Department's own records, IA "sustained only one excessive force allegation in the six-year period from 2007 through 2012."¹

The day that the DOJ issued its report, the City and the DOJ executed "an Agreement in Principle, which contemplate[d] the negotiation of a Consent Decree with the DOJ to resolve [its] investigation of the Newark Police Department."²

On March 3, 2016, the...