Fraternal Order Police v. City of Newark

• Decision Date: 18 June 2019
• Docket Number: DOCKET NO. A-3298-17T3
• Citation: 212 A.3d 454,459 N.J.Super. 458
• Parties: FRATERNAL ORDER OF POLICE, NEWARK LODGE NO. 12, Plaintiff-Respondent, v. CITY OF NEWARK, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

459 N.J.Super. 458

212 A.3d 454

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

v.CITY OF NEWARK, Defendant-Appellant.

DOCKET NO. A-3298-17T3

Superior Court of New Jersey, Appellate Division.

Argued May 13, 2019

Decided June 18, 2019

Avion M. Benjamin argued the cause for appellant (Kenyetta K. Stewart, Newark Corporation Counsel, attorney; Avion M. Benjamin and Alana Miles, of counsel and on the briefs).

Matthew D. Areman argued the cause for respondent (Markowitz & Richman, attorneys; Matthew D. Areman, on the brief).

Avram D. Frey argued the cause for amici curiae American Civil Liberties Union of New Jersey and Newark Communities for Accountable Policing (Gibbons, PC, attorneys; Jeanne LoCicero, Legal Director, American Civil Liberties Union, attorney; Lawrence S. Lustberg, Avram D. Frey, Newark, and Jeanne LoCicero, on the brief).

Gurbir S. Grewal, Attorney General, attorney for amicus curiae Attorney General of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Joseph C. Fanaroff, Assistant Attorney General, on the brief).

Before Judges Messano, Fasciale and Rose.

The opinion of the court was delivered by

FASCIALE, J.A.D.

This appeal requires that we determine the validity of an Ordinance (the Ordinance) enacted by defendant City of Newark (the City), which created a civilian complaint review board (the CCRB) in response to an alarming "pattern or practice of constitutional violations" by the Newark Police Department (NPD). The United States Department of Justice (DOJ) uncovered the violations after a lengthy and thorough investigation of the NPD, which led to the entry of a consent decree in a federal lawsuit. The creation of the CCRB is the City's decisive legislative policy response to the DOJ's findings, which tackled the problem head on.

The City appeals from an order granting summary judgment to plaintiff Fraternal Order of Police, Newark Lodge No. 12 (FOP). FOP is the exclusive collective negotiations representative for NPD officers. The order permanently enjoined the City from "implementing and/or enforcing" the Ordinance, "except to the extent" that the Ordinance authorized the CCRB to "serve strictly in an oversight capacity ...." The practical effect of the order stopped the CCRB from functioning as intended because it precluded the CCRB from investigating alleged police misconduct, prevented the CCRB from utilizing subpoena power, and thwarted implementation of the City's policy decision, which was intended to definitively promote accountability, transparency, and public confidence in the NPD.

We must address numerous legal questions, especially whether the City validly set policy. We acknowledge that N.J.S.A. 40A:14-118 expressly authorizes the City to create a board – such as the CCRB – to investigate and examine allegations of police misconduct. But the same statute charges the Chief of Police (the Chief) with responsibility for efficient and routine day-to-day operations of the police force. Therefore, one of the primary legal questions on this appeal is whether the Ordinance has infringed upon the Chief's statutory mandate.

Understanding that the Ordinance also cannot alter the NPD's obligation to follow the Attorney General Guidelines (AG Guidelines) when undertaking its own internal affairs (IA) investigations, we hold that the Ordinance is valid on its face with two exceptions. First, the Ordinance infringes upon the Chief's statutory rights by making the CCRB's findings of fact binding, absent clear error, and second, the Ordinance improperly permits disclosure of complainant and police officer identities. Otherwise, we conclude that the CCRB can function as intended under the Ordinance, including providing an oversight role by investigating alleged police misconduct, conducting hearings, participating in the development of a disciplinary matrix, making recommendations, and issuing subpoenas.

We therefore affirm in part and reverse in part.

I.

In May 2011, the DOJ, in conjunction with the Special Litigation Section of the Civil Rights Division and the United States Attorney's Office for the District of New Jersey, opened an investigation of the NPD. It did so after receiving "serious allegations of civil rights violations" by NPD officers. The investigation spanned a period of three years.

In July 2014, upon the conclusion of its investigation, the DOJ released a forty-nine page report that communicated its findings and recommendations to City officials and the NPD (the DOJ report). The DOJ acknowledged the "skills and dedication of the many [NPD] officers who abide by the rule of law and commit themselves daily to the difficult, and too often thankless, job of protecting public safety." Indeed, the DOJ report expressly states that the DOJ's findings "are not meant to detract from these officers' efforts." We also do not intend to undermine the important work that police officers perform.

Nevertheless, the DOJ report reflects that its investigation

showed a pattern or practice of constitutional violations in the NPD's stop and arrest practices, its response to individuals' exercise of their rights under the First Amendment, the [NPD's] use of force, and theft by officers. The investigation also revealed deficiencies in the NPD's systems that are designed to prevent and detect misconduct, including its systems for reviewing force and investigating complaints regarding officer misconduct. The investigation also identified concerns that do not appear to amount to patterns of constitutional misconduct, but which nonetheless are significant and warrant consideration by the NPD. These concerns relate to the NPD's practices in dealing with potentially suicidal detainees, the NPD's sexual assault investigations, and the impact of the NPD's policing on the [lesbian, gay, bisexual, and transgender] LGBT community.

The DOJ found recurrent problems with the IA function of the NPD,¹ such as the failure to collect evidence from complainants, to "probe officers' accounts or assess officer credibility," and to give witness statements "sufficient weight." The DOJ identified instances of needless and unnecessary use of Miranda ² warnings when interviewing complainants and witnesses with the effect of intimidating and discouraging their participation. And it determined that the disciplinary system lacked "transparent [and] objective criteria," resulting in arbitrary decisions. The DOJ report concluded that the NPD failed to investigate "officers with high numbers of credible complaints," and that these officers "continued to work on the force ... without any discipline or other corrective action[.]" The DOJ concluded that these patterns and practices undercut the community's trust and confidence in the NPD.

Like the DOJ, the New Jersey Attorney General (AG) has similarly recognized that a failure in the IA function leads to a "negative impact on the administration of criminal justice and the delivery of police services," which inevitably erodes "the respect and support of the community" and possibly results in civil lawsuits. AG Guidelines on Internal Affairs Policy & Procedures, at p. 5.

As to its finding that the constitutional violations resulted in a significant lack of accountability, the DOJ report stated:

The NPD has neither a functioning early warning system nor an effective [IA] structure. Those inadequacies undermine the Department's ability to identify and address officer misconduct. The NPD's data collection and analysis, and its system for regular review of officer use of force, are similarly deficient.

One indication of the ineffectiveness of the NPD's [IA] system is that the [IA] Unit ... sustained only one civilian complaint of excessive force out of hundreds received from 2007 through 2012. While there is no "right" rate at which force complaints should be sustained, only one finding of unreasonable force out of hundreds of complaints over a six-year period is symptomatic of deeply dysfunctional accountability systems. The NPD also has failed to adequately collect or analyze data about officers' use of force, stops, or arrests. Nor has the NPD taken adequate steps to implement an early warning system that would track and identify officers' problematic behavior. As a result of these systematic deficiencies, the NPD does not discern or respond to problematic trends in officer conduct that could constitute or lead to misconduct.

[ (Emphasis added).]

The DOJ determined that the IA system "tacitly permit[ted] [police] officers to engage in such conduct," and crucially, that the NPD knew about the problems but failed to address them. The DOJ report itself reflects that the City agreed in principle to "establish a civilian oversight entity for the NPD" and to "revise its [IA] practices to ensure effective complaint intake, objective investigations of misconduct, and fair and consistent discipline."³

On March 3, 2016, the United States of America filed a complaint against the City in the United States District Court for the District of New Jersey, alleging that the City was liable for the acts or omissions of the NPD. The complaint referenced the DOJ report and its investigative findings and conclusions. By filing the complaint, the United States attempted to remedy the "pattern or practice" of the NPD that "has deprived persons of rights, privileges, and immunities secured and protected by the Constitution and laws of the United States." The United States sought to enjoin the NPD from further alleged misconduct, and requested that the City "adopt and implement policies and procedures to remedy the pattern or practice of unconstitutional and unlawful conduct described [in the complaint]." This litigation was resolved a few weeks later, on March 30, 2016, with a consent decree, which was subsequently revised on April 29, 2016.

On March 17, 2016, fourteen days after the federal complaint was filed, the City enacted the Ordinance, establishing the CCRB. In creating the...