TRENTON, N.J. (CN) — New Jersey’s high court ruled Wednesday that Newark did not have the authority to delegate investigative powers, including subpoena power, to a newly created civilian police review board.
The ruling further neuters the board’s power to ensure Newark’s police department does not fall back into the abusive tactics it was found to have in a 2014 federal investigation.
Made up of municipal council members, the city’s inspector general and representatives from various organizations, Newark’s 11-member Civilian Complaint Review Board was established via ordinance after federal authorities found police abuse and excessive force.
In addition to granting the board subpoena and investigative powers, the ordinance endowed it with the right to recommend disciplinary measures against individual officers to the Public Safety Director.
During a webcast with reporters this afternoon, Newark Mayor Ras Baraka said board’s mission was curtailed by the court’s ruling but that it still has some investigative powers and can initiate reviews if citizens go first to the board. “It is not as strong as it started out to be, it has been weakened immensely,” he said.
Baraka vowed that the city will appeal. “It will take a fight still, but we have fight in us,” he said.
James Stewart Jr., president of the city's Fraternal Order of Police, said the city should work with it.
“The Newark FOP has always been willing to have real conversations with the city administration on how we can improve police/community relationships because the FOP recognizes that is how we can make Newark a safer place, and that is what every single person that lives or works in Newark wants,” Stewart said in a statement Wednesday. “We simply believe that changes must abide by the law, and the New Jersey Constitution, and we did not believe that the ordinance creating the Newark CCRB abided by either.”
Stewart's union brought the suit in 2016, claiming the ordinance rendered internal affairs meaningless and stripped the police chief of his powers. At the trial court level, a judge credited the union's claims that the board and underlying ordinance created the “potential for political mischief” and violated the police department’s internal disciplinary system.
But the state’s appeals court overturned that judgment last year, writing that the ordinance creating the review board was valid. The appellate opinion noted that the board could not issue binding rules and should not be allowed to disclose police officer and complainant identities.
“It is important to remember that the CCRB does not adjudicate cases,” Judge Douglas Fasciale wrote in that 77-page opinion. “It operates as an investigatory and oversight body. It has no authority to discipline officers.”
Mayor Baraka meanwhile credited the board with bringing down city homicides. Seeking a reversal, he said “the narrative that we need to keep arresting people … is not the narrative of Newark.”
But the state Supreme Court curbed the board further in its 6-1 ruling Wednesday, finding that some of the board’s investigatory powers in fact conflicted with existing state law.
For example, if internal affairs was already conducting an investigation into police misconduct, a concurrent investigation by the board would hamper the police chief’s responsibility over internal affairs and undermine the purpose of the public safety director.
“The plain language of section 118 consistently refers to ‘the appropriate authority,’ not multiple appropriate authorities,” Justice Jaynee LaVecchia wrote in the 52-page opinion, citing the municipal code authorizing the public safety director as the appropriate authority over such matters. “And the defining provision adds to the certainty that the Legislature intended that there be only one.”
The Internal Affairs process, LaVecchia wrote, “must remain a self-contained, confidential process … responsive to the chief who has ultimate responsibility for the IA operation, and separated on a reporting basis from others on the force.”
Further, the city council has no inherent authority to delegate its subpoena power to a nonlegislative body, and that the city council can subpoena only for legislative purposes, the court found.
“The CCRB is plainly not the council itself,” LaVecchia wrote. “Moreover, this CCRB — a commission, comprised of various public members, executive branch officials, and council members or their designees — is also plainly not a subcommittee of the council itself.”
Chief Justice Stuart Rabner wrote the lone dissent, saying the board was an “equally valid course” to oversee the city’s police department and that the board was properly vested with subpoena power.
“Indeed, without the power to compel witnesses and over evidence by subpoena, it is difficult to see how the CCRB or a similar review board could gather the information it would need,” Rabner wrote.
Rabner also noted that Newark’s internal affairs department received hundreds of excessive force complaints from 2007 to 2012, but that it sustained only one.
The Justice Department started its three-year investigation of Newark police at the prompting of the ACLU in 2011. The department found Newark police had 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 agency’s report also found police disproportionately targeted Black people: From 2009 through June 2012 about 80% of stops involved Black people, who make up 53% of the city’s population.
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, requiring its disciplinary recommendations to be binding in most cases.
Lawrence Lustberg of Gibbons, who represented the ACLU in its amicus brief on the case, lamented the court's findings Wednesday.
“While allowing CCRBs to have input into police operations and even to investigate certain instances of misconduct, the opinion unfortunately stops short of allowing the kind of truly meaningful oversight that Newark courageously sought to effect by refusing to allow CCRBs to act when Internal Affairs is doing so and by not allowing for the subpoena power that is necessary for a CCRB to function in an effective manner,” Lustberg said in a statement.
New York City, Atlanta and Pittsburgh have all recently joined the ranks of cities to form civilian review boards that work independent of police departments. During the Black Lives Matter protests, such boards have helped provide investigators and advocacy groups with police disciplinary records.
Matthew Areman of Markowitz Richman, an attorney for the police union, did not respond to a request for comment.
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