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Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark

Superior Court of New Jersey, Appellate Division

June 18, 2019

CITY OF NEWARK, Defendant-Appellant.

          Argued May 13, 2019

          On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-000177-16.

          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, 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.

          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-today 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.


         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 CCRB, the City joined multiple other cities nationwide with similar boards.[4] The Ordinance is the embodiment of the City's legislative policy decision to enable transparent investigation and examination into allegations of police misconduct. The Ordinance details the CCRB's structure, power, and duties, which we will outline.

         As to its structure, the CCRB shall consist of eleven members of the public, appointed by the Mayor, with the advice and consent of the Municipal Council. Newark, NJ, Code (Code) 2:2-86.1(a)(2)(a).[5] One member shall be the City's Inspector General, who will "serve as the administrative head of the Board," Code 2:2-86.1(a)(2)(c); three members shall be elected members of the Municipal Council, or their designees; and the remaining seven members shall be selected from individuals recommended by seven organizations identified in the Ordinance. Code 2:2-86.1(a)(2)(a).[6]"In selecting representatives to serve on the CCRB, nominators are encouraged to consider potential members' professional experience in law, civil rights or law enforcement." Code 2:2-86.1(a)(2)(a). But "[n]o member of the [CCRB], excluding the Inspector General, shall be former employees of the NPD." Code 2:2-86.1(a)(2)(c). Training for CCRB members "shall be predominately obtained from such independent, third party bodies or institutions that have experience with regard to [IA] and civilian review investigations and audits." Code 2:2-86.5, § 1-23.

         As to the CCRB's powers and duties, the Ordinance authorizes the CCRB to "consider and make recommendations to the Public Safety Director, [7] Mayor, Municipal Council, and the public [pertaining] to policies and procedures concerning the general investigation of complaints by the Division of Police as well as its [IA] procedures." Code 2:2-86.3(d). It authorizes the CCRB to "investigate and make recommendations regarding practices and/or patterns of behavior that are problematic with regard to" police interactions with the public. Code 2:2-86.3(d). Along these lines, the CCRB must request certain information from the NPD on a quarterly basis. Code 2:2-86.5, § 1-21(b).

         The Ordinance also authorizes the CCRB to review the findings, conclusions, and recommendations arising from the NPD's internal investigations of individual complaints of police misconduct, as follows:

At the conclusion of the [NPD]'s investigation of a complaint or behavior, the [CCRB] shall have the power to conduct a review of the findings, conclusion and recommendations of the Division of Police (Investigation Review). The [CCRB] shall report its findings of the Investigation Review to the Public Safety Director. A semi-annual report of the Investigation Reviews shall be submitted to the Mayor, Public Safety Director and the Municipal Council. The [CCRB] may utilize all the powers set forth in this Section 2:2-86 to carry out the Investigation Reviews.
[Code 2:2-86.3(b) and Code 2:2-86.5, § 1-02(d).]

         The City expressly declared that the Ordinance was intended to allow the CCRB to make recommendations to the Public Safety Director. The City did not create the CCRB to impose discipline on police officers. Specifically, the City, via the Ordinance, empowered the CCRB to consider and make recommendations as to policies and procedures concerning

the general investigation of complaints by the Division of Police as well as its [IA] procedures, and with regard to evidence of practices or patterns of behavior or practice that is problematic with regard to the interaction of the Division of Police with the public at large, as well as any failures of communication with regard thereto.
[Code 2:2-86.5, § 1-02(c).]

         The Ordinance authorizes the CCRB to conduct its own investigations of complaints filed by members of the public (including NPD members) against any member of the NPD. The CCRB can do so not to adjudicate complaints or impose discipline - as it lacks such power under the Ordinance - but rather to investigate alleged police misconduct and make recommendations. The Ordinance therefore gives the CCRB concurrent jurisdiction with the NPD to investigate complaints or behavior. Code 2:2-86.3(c). More specifically, the ordinance states:

The [CCRB] shall have the power to receive, investigate, hear, make findings and recommend action upon complaints by members of the public (including, but not limited to[, ] complaints made by other police officers or personnel) against uniformed and sworn personnel of the NPD that allege misconduct involving inappropriate behavior or actions, including but not limited to[, ] excessive use of force, abuse of authority, unlawful arrest, unlawful stop, unlawful searches, discourtesy or use of offensive language, including, but not limited to, slurs relating to race, ethnicity, religion, gender, age, sexual orientation, gender identity or expression, and disability, theft, and any other categories protected under law. Any member of the public is intended to have the broadest possible meaning and interpretation.
[Code 2:2-86.3(a).]

         The CCRB shall notify the NPD of any complaints it receives and indicate whether it will (1) "contemporaneously initiate a parallel investigation of the [c]omplaint or behavior with the Division of Police; and/or" (2) "not investigate the [c]omplaint or behavior but will conduct an Investigation Review upon the Division of Police's conclusion of its investigation . . . ." Code 2:2-86.5, § 1-06. The Ordinance prevents the CCRB from "constrain[ing] or chang[ing] . . . the obligations of the Division of Police to conduct appropriate and timely investigations of NPD uniform and sworn members of [the] NPD and to be compliant and consistent with the requirements of N.J.S.A. 40A:14-147." Code 2:2-86.5, § 1-16(d).

         To make its own investigation meaningful, the CCRB enjoys subpoena power under the Ordinance. "Upon a majority vote of members of the [CCRB], the [CCRB] may issue subpoenas ad testificandum and duces tecum, which may be served to the extent permitted by law." Code 2:2-86.3(f) and 2:2-86.5, § 1-10(e) (emphasis added). Under the Ordinance, the CCRB may: (1) make written or oral requests for information or documents; (2) interview the complainant, witnesses, and the subject officer to the extent consistent with the rights afforded to officers by law, the NPD, and in collective negotiations agreements (CNAs); and (3) make field visits to the site of the alleged misconduct. Code 2:2-86.5 §§ 1-10, 1-11.

         As to interviews of police officers and other individuals, the Ordinance importantly refers to officers' constitutional protections and their rights set forth in CNAs.

(a) It is the intent of these Rules not to alter the rights afforded to police officers by the NPD in standing orders or other rules and procedures or in collective negotiations contracts with respect to interviews so as to diminish such rights, if any, including but not limited to[, ] any existing right to notice of an interview, the right to counsel, and the right not to be compelled to incriminate oneself.
(b) A member of the Division of Police who is the subject of a complaint shall be given two business days' notice prior to the date of an interview, to obtain and consult with representatives. A member of the Division of Police who is a witness in an investigation of a complaint shall be given a period of time, up to two business days, to confer with [his or her] representatives.
(c) All persons interviewed may be accompanied by up to two (2) individuals to act as their representative, inclusive of their chosen counsel. Such counsel or representative may advise the person interviewed as circumstances may warrant, but may not otherwise participate in the proceeding.
(d) Prior to the commencement of the interviewing of a police officer, the following statement shall be read to such officer:
You are being questioned as part of an official investigation of the [CCRB]. You will be asked questions specifically directed and narrowly related to the performance of your duties. You are entitled to all the rights and privileges guaranteed by the laws of the State of New Jersey, the Constitution of this State and the Constitution of the United States, including the right not to be compelled to incriminate yourself and the right to have legal counsel or such other representative present at each and every stage of this investigation, however that person may not unduly interfere or disrupt the proceedings.
(e) Interviews shall be scheduled at a reasonable hour, and reasonable requests for interview scheduling or rescheduling shall be accommodated. If possible, an interview with a police officer shall be scheduled when such officer is on duty and during daytime hours. Interviews may be conducted at the [CCRB's] offices or other locations designated by the [CCRB].
(f) The interviewer shall inform the interviewee of the name and position of the person in charge of the investigation, name and position of the interviewer, the identity of all persons present at the interview, whether the interviewee is a subject or a witness in the investigation, the nature of the complaint and information concerning all allegations, and the identity of witnesses and complainants, except that addresses need not be disclosed and confidential sources need not be identified unless they are witnesses to the alleged incident.
(g) The interviewer shall not use off-the-record questions, offensive language or threats, or promise of reward for answering questions.
(h) The interviewer shall regulate the duration of question periods with breaks for such purpose as meals, personal necessity and telephone calls. The interviewer shall record all recesses.
(i) Interviews shall be recorded by the CCRB. No other recordings are permitted.
(j) If an interviewee needs an interpreter, he or she shall advise the interviewer of such need as soon as possible after being notified of the date and time of the interview. A qualified interpreter will be obtained from an official registry of interpreters or another reliable source.
(k) Reasonable accommodations shall be made for persons with disabilities who are participating in an interview. Persons requiring such accommodations shall advise the [CCRB] of such need as soon as possible after being notified of the date and time of the interview.
[Code 2:2-86.5 § 1-11 (emphasis added).]

         The Ordinance requires the CCRB to report its review of every complaint to the Public Safety Director, as well as "all relevant forms, memoranda and background information to assist the Public Safety Director in making [his or her] final disciplinary determination." Code 2:2-86.5 § 1-17(a).

         The Ordinance contemplates that the CCRB will make findings of fact and propose disciplinary recommendations to the Public Safety Director. For example:

The [CCRB] shall use an established discipline matrix and guidelines to recommend discipline for outcomes resulting from investigations and complaints filed with the [CCRB] and/or the NPD. Said discipline matrix and guidelines shall act as safeguards to ensure the consistent application of discipline and should include aggravating and mitigating factors. The discipline matrix and guidelines should be developed by the Public Safety Director and affected bargaining units, in conjunction with the CCRB, and must accord with any Consent Order or Judgment with the United States [DOJ].
[Code 2:2-86.3(j).]

         But the Ordinance violates the law, as we will later explain, by requiring the Public Safety Director to accept the CCRB's findings of fact. This part of the Ordinance improperly provides:

The [CCRB] shall provide its findings of fact to the Public Safety Director and, absent clear error, the Public Safety Director shall accept those findings of fact. The [CCRB] shall also make disciplinary recommendations, and the Public Safety Director shall make all disciplinary decisions based on the CCRB's findings of fact, absent clear error, and consistent with the matrix and guidelines.
[Code 2:2-86.3(k).]

         According to the Ordinance: "Clear error exists when the CCRB's findings of fact are based upon obvious and indisputable errors and cannot be supported by any reasonable interpretation of the evidence." Code 2:2-86.5 § 1-17(b). The practical effect of this requirement, as we will explain later, is that it interferes with the Chief's statutory responsibility for the routine day-to-day operations of the force.

         Notwithstanding the binding nature of the CCRB's findings - which we invalidate - the Public Safety Director nevertheless retains the authority and discretion to make final disciplinary determinations. Code 2:2-86.4(d) and 2:2-86.5 § 1-16(a). This is so because the Ordinance specifically limits the CCRB's authority.

The provisions of this section shall not be construed to limit or impair the authority of the Public Safety Director to discipline members of the NPD nor obviate the responsibility of the NPD to investigate citizen complaints or incidents to which NPD is made known, involving uniformed and sworn members of the NPD, and to promptly inform the CCRB of all such complaints or incidents.[8] Nor shall the provisions of this section be construed to limit the rights of members of the NPD with respect to disciplinary action, including, but not limited to[, ] the right to notice and a hearing, which may be established by any provisions of law or otherwise.
[Code 2:2-86.4(d).]

         The Ordinance further states that it should not be construed to interfere with other external investigations of NPD members:

e. The provisions of this Ordinance shall not be construed to prevent or hinder the investigation or prosecution of a member of the NPD for violations of law by any court of competent jurisdiction, a grand jury, [c]ounty or [s]tate [p]rosecutor or any other authorized officer, agency or body.
f. The processing and review of civilian complaints shall not be deferred because of any pending or parallel disciplinary proceeding or criminal investigation unless such request for deferment is made by the office of a [c]ounty [p]rosecutor or a [s]tate or [f]ederal law enforcement agency or prosecutor or by a court order.
[Code 2:2-86.4(e)-(f).]

         The Ordinance also addresses complainant confidentiality and correctly guarantees confidentiality during the investigatory process, but - improperly - not at public hearings.

During the investigatory process, neither the identity of, nor personally-identifiable information about, complainants or witnesses shall be released beyond the CCRB staff, [CCRB] members, and NPD staff engaged in the specific investigation of the complainant's allegation. If the complaint is substantiated and is referred to a CCRB hearing, the complainant's identity may be released in the course of any public hearing about the alleged misconduct.
[Code 2:2-86.5, § 1-07 (emphasis added).]

         We invalidate this part of the Ordinance. A complainant's identity should always remain confidential, for reasons that we express later in our opinion. Moreover, although this section of the Ordinance only addresses the confidentiality of complainants and witnesses, other parts of the Ordinance require the CCRB to maintain the subject officers' confidentiality in its public reporting, see Code 2:2-86.5 §§ 1-17(d), 1-20(a), 1-21(a), consistent with the AG Guidelines at p. 44.[9] We emphasize that a police officer's identity should remain confidential as well.

         The CCRB also must publish certain information on its website, on a quarterly basis, "with personally identifiable information redacted." Code 2:2-86.5, § 1-21(a). And the CCRB must publish an annual report on its website, with statistical information, identifying "trends, patterns, areas of concern, or areas of excellence," in the NPD's practices. Code 2:2-86.5, § 1-21(c) (emphasis added). The Ordinance also sets the procedures for the CCRB to report case dispositions to complainants. Code 2:2-86.5, § 1-22.

         The April 29, 2016 consent decree that terminated the federal litigation against the City reflected the minimum duties and responsibilities of the CCRB. Section V, Paragraph A of the consent decree provides in pertinent part that the CCRB "shall, at a minimum," perform

substantive and independent review of internal investigations and the procedures for resolution of civilian complaints; monitoring trends in complaints, findings of misconduct, and the imposition of discipline; and reviewing and recommending changes to NPD's policies and practices, including, but not limited to, those regarding use of force, stop, search, and arrest.

         The consent decree appointed a former Attorney General of the State of New Jersey to act as an independent monitor and to ensure compliance with the consent decree.

         In August 2016, FOP filed an order to show cause and a verified complaint. FOP alleged ultra vires creation of subpoena power by the Ordinance, in violation of N.J.S.A. 40:48-25 and the Faulkner Act, N.J.S.A. 40:69A-36 (Count One). It contended that there existed an inconsistency between the Ordinance and the AG Guidelines and discipline of police officers by the IA division, in violation of the Law Enforcement Officers Protection Act, N.J.S.A. 40A:14-181 (Count Two). It alleged that the Ordinance deprived officers of due process, in violation of N.J.S.A. 40A:14-147, N.J.S.A. 11A:2-13, and N.J. ...

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