Secrecy for Disciplined Police Officers Fought at Top NJ Court

The panel voiced reluctance about giving police an exemption not available to other professions when it comes to keeping their misconduct quiet.

TRENTON, N.J. (CN) — The New Jersey Supreme Court appeared likely Tuesday to give force to new state directives that would identify police officers disciplined for misconduct.

“Attorneys do this, we have an attorney disciplinary process; the medical community and many other professions do this,” Justice Barry Albin said at oral arguments. “Why should law enforcement be exempted from what so many other professions do in terms of disclosing those people who have been disciplined?” 

New Jersey Attorney General Gurbir Grewal adopted the shift in the wake of nationwide protests last summer after George Floyd was killed by a Minneapolis police officer, part of a bid to have more transparency and accountability in law enforcement.

Announced as amendments to the Internal Affairs Policy and Procedures, the directives would require all police agencies in the state to publish a synopsis of all complaints in which an officer was terminated, demoted or suspended for more than five days. Further, they require the name of the officer and a summary of the misconduct. 

Police unions across the state pushed back on these directives and seek a reversal after an intermediate state appeals court gave Grewal the green light.

Arguing before the panel Tuesday, attorney Kevin Jarvis for the New Jersey Superior Officers Law Enforcement Association held firm that the directives, though well intentioned, will not help.

“In the attorney general’s understandable desire to do something in response to the tragic death of George Floyd and the nationwide protests that followed, he overstepped his authority by issuing directives based on politics as opposed to policy,” said Jarvis, who is with the firm O'Brien, Belland and Bushinsky.

But the argument was one that the court found it difficult to swallow.

“Transparency, accountability — you don’t think that those are furthered by the release of names,” asked Albin. “You may not like it, you may have reasons for opposing, but on a rational basis the disclosure of names of people who have had serious discipline, you don’t find that is enhancing some rational public policy?”

Jarvis meanwhile said that Grewal should supply evidence to support that releasing the names would be helpful. He also questioned whether a synopsis of disciplinary proceedings, with the name of the officer omitted, is enough to inform the public about officer misconduct. 

When Albin continued to push the idea that releasing officer names would provide some accountability, Jarvis insisted that police are in a different position than lawyers, doctors and others whose disciplinary proceedings can be public.

“A chiropractor who has been disciplined and lost his or her license is not going to be subjected to the same type of physical violence that perhaps a police officer would be,” said Jarvis.

Assistant Attorney General Jeremy Feigenbaum asked the court to affirm, saying Grewal is working to “manage law enforcement in the middle of a once-in-a-generation reckoning over transparency and accountability in policing.”

Feigenbaum assured the panel that the attorney general most certainly has the authority to make such directives.

“The Legislature gave the attorney general power to settle directives governing law enforcement and in particular to oversee the internal affairs process, and that is precisely what the attorney general has done here,” said Feigenbaum.

Justice Lee Solomon questioned a part of the directives that asks agencies to report misconduct from officers as early as January 2000, asking about the logic in disclosing an officer's name for misconduct that may have happened years ago. 

Feigenbaum called it very important for transparency, especially for officers who bounce around to different agencies.

“Disciplinary history will say quite a lot about how serious the law enforcement agency has taken the problem — whether it historically remedies the problem for the still active officer or whether it has had no impact on the career after it,” said Feigenbaum.

C.J. Griffin, appearing as a friend of the court on behalf of nonprofit groups National Coalition of Latino Officers and Law Enforcement Action Partnership, said many officers disagree with the unions and are for transparency and accountability. 

“The unions have to stop seeing transparency as a punishment, it isn’t, it is a way to build trust with the public,” said Griffin, with Pashman Stein law firm. “They have to stop demanding secrecy because it undermines that trust.” 

Other New Jersey police unions involved in the case are represented by James Mets with Mets Schiro and McGovern; Frank Crivelli with Crivelli and Barbati; and Matthew Areman with Markowitz and Richman. Alexander Shalom with the American Civil Liberties Union also appeared as a friend of the court.

The Tuesday panel was round out by Chief Justice Stuart Rabner as well as Justices Anne Patterson, Jaynee LaVecchia, Faustino Fernandez-Vina and Fabiana Pierre-Louis.

After arguments, Jarvis continued to stress that releasing names of officers would do more harm than good.

“Releasing the names of officers who have received major discipline, not just prospectively but from 20 years ago, will not improve the Internal Affairs process in any meaningful way,” Jarvis said in an email. “Many instances of major discipline are unrelated to the excessive use of force or other issues associated with Mr. Floyd’s death and would provide no relevant information to the public on the effectiveness of the Internal Affairs process. Rather, it would place law enforcement personnel and their respective families at risk of retaliation.”

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