NJ Supreme Court rules Newark civilian board can provide police oversight — with limits

The state Supreme Court has decided a civilian review board in Newark can provide oversight to the city's police department, but does not have subpoena power or the ability to investigate internal affairs.

The decision comes after years of legal strife between Newark officials and the police union. The board, meant to provide accountability, was first suggested following a federal investigation into allegations of racial discrimination by the department.

The 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” when there is no internal affairs investigation, decided the court.

Written by Justice Jaynee LaVecchia, the opinion was joined by justices Barry Albin, Anne Patterson, Faustino Fernandez-Vina, Lee Solomon and Walter Timpone.

“However, the board cannot exercise its investigatory powers when a concurrent investigation is conducted by the Newark Police Department’s Internal Affairs (IA) unit,” LaVecchia wrote. “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.”

Similarly, the court upheld the Board’s ability to review overall operations of the police force but did not preserve the subpoena power that was given to them originally. The decision states the council has subpoena power as a legislative body and can exercise that power based on a report from the Board.

Justice Stuart Rabner wrote a dissent that states the Newark City Council had the right to pass its ordinance. Rabner wrote oversight boards do have subpoena power and that this board should be able to function in a similar fashion to other civilian oversight boards throughout the nation.

“I respectfully differ with the majority, however, because I believe the Newark City Council chose an equally valid course when it passed an ordinance to create a civilian review board with stronger oversight authority, as modified by the Appellate Division,” Rabner wrote.

Newark Mayor Ras Baraka said he is disappointed in the decision.

“Our expectation was something different,” he said. “The court ruled to the letter of what they thought the law allowed them to do. I disagree with that and so did the Chief Justice.”

The decision upheld the Board’s right to investigate but it does “hamstring” its abilities by not letting it issue subpoenas, Baraka said. The Board has begun preparing by hiring investigators and lawyers as complaints have already been brought to board members.

Baraka and city counsel Kenyatta Stewart said the city will likely appeal the decision in federal court.

“I think it’s going to take a fight still but we have a fight in us. After we assess what’s going on, we might take this to a higher court,” Baraka said. “We are going to use many paths here. Obviously the path that is at our disposal is to go to a higher authority and we’re going to do that. Secondly, we are going to engage our state legislators around changing the law altogether and we are going to engage the Attorney General’s office to go a little further."

New Jersey's chapter of the American Civil Liberties Union responded to the decision on Wednesday.

“As designed, Newark’s Civilian Complaint Review Board provides a powerful example for police accountability and oversight over misconduct," said Jeanne LoCicero, ACLU-NJ's legal director.

"Today’s decision prevents Newark from fully implementing the CCRB, but residents and community groups have known that this would be a long-term proposition," she said. "While the CCRB begins the work it can do, the ACLU-NJ, N-CAP, and other advocates now turn to the Legislature to ensure that communities will be fully empowered to hold police officers accountable.”

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A report of the investigation that started in 2011 was published in 2014 and shows the U.S. Attorney’s Office and the Civil Rights Division of the Department of Justice found a pattern and practice of unconstitutional policing by the department.

The city’s police union opposes the board, claiming it will interfere with the department’s internal affairs. The city maintained the board will provide oversight and transparency.

The case has been in litigation for more than four years and followed the investigation by the U.S. Attorney's Office and the Civil Rights Division of the Department of Justice. The 2014 report states federal authorities found 80% of the Newark Police Department’s stops and arrests involved Black people over a three-year span, among other misconduct.

A judge initially sided with the union and ruled the board could not investigate alleged police misconduct, use subpoena power or impact policy decisions, which was to promote accountability, transparency and public confidence.

The city appealed that decision and last June, an appellate court decided the ordinance is valid and the board can function as designed to provide an oversight role in the investigation of alleged police misconduct, conduct hearings, participate in the development of a disciplinary matrix, make recommendations and issue subpoenas. The findings, though, are not binding and the identity of complainants and police officers must remain confidential.

The original report

During the three-year investigation, federal officials found violations in the stop-and-arrest practices, response to people exercising their First Amendment guarantee of free speech rights, use of force and theft by an officer in the Newark Police Department.

The story continues below the report. You can also read it here.

The investigation also found deficiencies in the department's system to prevent and detect misconduct, including reviewing force and investigating complaints regarding officer conduct. After the report was finalized, the city agreed to a consent decree that led to the review board. Though by agreeing to the consent decree the city and the department are not admitting wrongdoing, the investigation found that “Black people in Newark have been stopped and arrested at a significantly higher rate than their white and Hispanic counterparts.”

“This disparity is stark and unremitting," the report reads. "Approximately 80% of the NPD’s stops and arrests have involved Black individuals, while Newark’s population is only 53.9% Black. Black residents of Newark are at least 2.5 times more likely to be subjected to a pedestrian stop or arrested than white individuals. Between January 2009 and June 2012, this translated into 34,153 more stops of Black individuals than white individuals.

"Nonetheless, regardless of why the disparity occurs, the impact is clear: because the NPD engages in a pattern of making stops in violation of the Fourth Amendment, Newark’s Black residents bear the brunt of the NPD’s pattern of unconstitutional policing."

Katie Sobko is a local reporter for NorthJersey.com. For unlimited access to the most important news from your local community, please subscribe or activate your digital account today.

Email: sobko@northjersey.com  Twitter: @katesobko