Since George Floyd died in the custody of the Minneapolis Police, local political leaders have been rushing to pass "police reform laws" giving leaders the appearance of being tough on "systemic racism" and "police abuse," despite the existence of statistical evidence actually calling such accusations into question.
These include the banning of proven police tactics, appointment of untrained civilian review boards, and defunding schemes that are siphoning funds from cash-strapped police budgets to give them to politically-friendly social programs.
However, the question remains — are these reforms (hastily passed) lawful.
Despite recent riots in Chicago and Wisconsin in reaction to police shootings, without the facts being accurately reported, a recent court ruling says otherwise.
On Wednesday, New Jersey’s top court limited civilians’ ability to investigate the police in a ruling that sets up a broader fight in the state legislature, and in other jurisdictions, regarding how much power politically-appointed, untrained civilians should have in investigating allegations of alleged police abuse.
In a 6-1 decision, the New Jersey Supreme Court ruled that the City of Newark’s Civilian Complaint Review Board (CCRB) may not have subpoena power, nor may it launch investigations at the same time a law enforcement agency’s internal affairs division is conducting a probe.
The justices did allow the board to retain some other review powers. "We hold that this 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," Justice Jaynee LaVecchia wrote for the majority.
However, the justices found "no authority" to support broader investigatory powers.
In order to establish a law where such a civilian board could issue subpoenas, state lawmakers would have to pass legislation to change the law, LaVecchia ruled.
Only one judge, Stuart Rabner offered a dissenting opinion. "Indeed, without the power to compel witnesses and other evidence by subpoena, it is difficult to see how the CCRB or a similar review board could gather the information it would need," he wrote.
This ruling was the first in New Jersey to side with the general opinion of law enforcement executives, and unions, who fear politicalized terminations and prosecutions.
Many in the law enforcement community feel that, if the community "calls for their head," they will be indicted or fired for lawful police action.
For example, recent cases, as in the instances of the indictments of two Atlanta Police Officers in the shooting of Rashard Brooks, and the charging of two Philadelphia Police Officers in separate protest-related arrests, have shown charges pressed by elected prosecutors — before the completion of a formal law enforcement investigation — confirm the worst fears of police unions.
Newark Mayor Ras Baraka, an outspoken critic of law enforcement, said he was "disappointed" the board had been "weakened immensely," but he remained optimistic about what it could still accomplish.
The Newark Citizen Complaint Review Board has already hired attorneys and receives complaints, Baraka said, and "trained" investigators would soon be able to review some internal police files because of new rules from the state attorney general.
The Board’s investigators, however, are not sworn officers who graduated accredited law enforcement academies where they would be certified on matters like the use of force continuum and laws relating to lawful stops, searches and seizures.
Going forward, Newark officials said they would ask the attorney general to loosen restrictions on the information review boards can have access to, as well as lobby lawmakers to essentially give subpoena power back and appeal the decision to a federal court.
The ruling was a result of a lawsuit filed by the Newark Fraternal Order of Police Lodge No. 12, the union representing Newark police officers.
Union President James Stewart Jr. said the ruling validated their belief that some on the review board were exceeding their lawful authority. "The Newark Police has improved greatly over the last several years,” Stewart said in a statement, and "we look forward to bettering our relationship with the community to bring about true change in Newark."
Newark’s review board troubles are signs of both state and national trends.
New Jersey Assemblywoman Angela McKnight, introduced legislation in June requiring all municipalities to create a civilian complaint review board like Newark’s.
Additionally, lawyers for the New Jersey chapter of the American Civil Liberties Union (ACLU) released a statement claiming they would push lawmakers to give outside investigators more powers
Regardless of the sentiment of New Jersey’s democratic legislators, the New Jersey Supreme Court’s decision was the most recent chapter in a battle brewing since 2016.
This is when Newark’s City Council passed the ordinance creating the board, following a report from the Obama-administration's Justice Department (DOJ) that claimed that more than one-fifth of Newark’s police department, (made up of majority African-American and Latino officers) targeted Black residents disproportionately — for stops and arrests.
Over 70% of Newark’s residents are Black and Hispanic.
Due to the report, Newark signed a consent decree with the DOJ and a federal monitor was assigned, which was when the 11-member civilian board was formed to investigate allegations of abuse.
The ordinance creating the board was challenged in court by the police union.
It argued that the board would interfere with the department’s own internal affairs process.
New Jersey Attorney General Gurbir Grewal agreed: supporting the union’s argument, stating that the city "exceeded its authority" when it created a board that could influence police discipline [without due process].
Meanwhile, Newark Mayor Baraka, like his counterparts in Minneapolis, Philadelphia, Seattle, New York, and Los Angeles has signed-off on an ordinance that diverted $11.4 million from the police department, toward social services after anti-police protests swept the nation.
In an almost direct correlation, violent crime in the cities that have politicized prosecution, bail reform, and created these hasty police reforms, have seen a sharp rise.
All of this begs the question: can case law such as this, described above, be used on a federal level to protect our protectors and thus, help keep our communities safe.
A. Benjamin Mannes, MA, CPP, CESP, is a Subject Matter Expert in Security & Criminal Justice Reform based on his two and a half decade career on both sides the criminal justice system. Mannes served in both federal and municipal law enforcement in though the 9/11 attacks, D.C.-area sniper task force, homeland security exercises and natural disasters. Mannes' work in D.C. led to personal encounters with the D.C.'s unlawful personnel actions, unconstitutional gun laws and criminal justice inequalities, which led him to become an advocate for public integrity. Thereafter, Mannes served for nearly nine years as the Director, Office of Investigations for North America's largest medical board, as a Chief Compliance Officer, consultant, expert witness, nonprofit board member and political adviser. Read A. Benjamin Mannes' Reports — More Here.
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