Powers of Newark’s Civilian Police Review Board Restored on Appeal

TRENTON, N.J. (CN) — A New Jersey appeals court on Tuesday restored many of the powers that Newark gave its newly created civilian police review board, reversing a judge who had defanged the board.

The 11-member civilian board — comprised of municipal council members, the city’s inspector general, and representatives from various organizations — was established after federal authorities found police abuse and excessive force.

Tuesday’s 70-page ruling from the Appellate Division restores the board’s ability to issue subpoenas and investigate police misconduct. Writing for a three-judge panel, Judge Douglas Fasciale said the ordinance creating the review board was valid except in two ways: the board’s findings could not be binding, and it improperly allowed disclosure of police officer and citizen complainant identities.

Fasciale found the ordinance specifically limits the board’s authority and did not supersede the Public Safety Director’s ultimate authority to discipline police officers. He also said the civilian board and internal affairs could simultaneously investigate misconduct.

“It is important to remember that the CCRB does not adjudicate cases,” Fasciale wrote. “It operates as an investigatory and oversight body. It has no authority to discipline officers.”

Fasciale found that if the board recommends disciplinary action, officers would then be subject to internal disciplinary proceedings by the police department. “On its face, the ordinance does not interfere with any due process rights that officers may have in these other proceedings,” he wrote.

While finding that Newark had “widespread authority” to allow the board to issue subpoenas, Fasciale emphasized that  the New Jersey attorney general did not raise any objections to that power in his amicus brief.

Fasciale did curtail some of the board’s power, such as saying it could not publish the identity of complainants or police officers. Doing so could thwart internal affairs investigations or criminal prosecutions, or taint an innocent police officer’s reputation, he wrote.

In a press conference praising the decision, Mayor Ras Baraka noted that homicides have dropped in Newark over the last few years and that police have worked diligently to reduce crime and take guns off the streets.

“The narrative that we need to keep arresting people … is not the narrative of Newark,” Baraka said.

“I think this is a historical moment for this city,” Baraka added. “I wish my father was alive to see how far we’ve come.”

Board member Richard Robinson, who chairs the Newark NAACP Criminal Justice Committee, said during the press conference that the decision is not a negative mark against law enforcement. “It’s nothing against the police, the police are magnificent,” Robinson said. “It is now a measure where we can actually eliminate some of the bad apples that have been associated with this great fraternal organization and we can be more productive.”

The Department of Justice opened its three-year investigation of Newark based on prompting from the ACLU. It found in 2014 that Newark police used excessive force during many civilian stops, and that officers failed to provide sufficient constitutional justification for nearly three-quarters of their pedestrian stops.

The report also said police disproportionately targeted black people: From 2009 through June 2012 about 80 percent of stops involved black people, who make up 53 percent of the city’s population.

Investigators also found that the internal affairs department failed to adequately investigate and act upon citizen complaints, with problematic officers remaining on the force without any corrective action.

A federal monitor was appointed for the Newark Police Department, and the city agreed in a 2016 consent decree with the Justice Department to prohibit racial profiling and other unconstitutional tactics.

Newark approved an ordinance creating the civilian board to help curtail abuses that same year, granting the board subpoena powers and requiring its disciplinary recommendations to be binding in most cases.

The police union in Newark took umbrage at civilian oversight, claiming in a 2016 lawsuit that the ordinance essentially rendered internal affairs meaningless and stripped the police chief of his powers.

Essex County Superior Court Judge Donald Kessler did away with many of the board’s powers in a 2018 ruling, writing that the “potential for political mischief” could impair the board, and that the underlying ordinance violated the police department’s internal disciplinary system.

At the time Mayor Baraka called Kessler’s ruling “a setback to criminal justice reform in America” and said it was based on “longstanding antiquated guidelines.”

Matthew Areman of Markowitz Richman, who represented the police union, did not return a request for comment.

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