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In Wake of Recent Police Shootings, Activists Step Up Calls for Accountability

Can Legislature take some of the edge off the issue by mandating independent prosecutor to oversee investigations of police-related shootings?

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Activists are continuing to press for greater transparency and accountability from New Jersey police officers in the wake of recent shootings in Maurice River and Paterson.

The family of Jimmy Testa, who was shot by state troopers November 6 in Maurice River, is disputing accounts provided by the state attorney general’s office. Testa, according to the attorney general, was engaged in a “violent confrontation” that took place during a burglary investigation. The family said that Testa was unarmed and shot in the back as he ran from police. Testa is white. The attorney general’s Shooting Response Team is investigating.

In Paterson, the local chapter of Black Lives Matter is demanding release of the officer’s name, any dashboard-camera or body-camera video, and the creation of a civilian review board to investigate the October 29 nonfatal police shooting of Larry Bouie, a 41-year-old black man, outside of the city’s police headquarters. Black Lives Matter has created a petition at Change.org seeking greater transparency.

The shootings occurred as a bill moves through the state Legislature that would require an independent prosecutor be appointed to investigate deaths at the hands of police or in police custody. At the same time, the state Supreme Court is poised to decide whether police shooting records should be accessible to the public via New Jersey’s Open Public Records Act.

Families and activists have been critical of the responses of local law enforcement to police shootings for several years, with the activist group People’s Organization for Progress holding monthly protests outside of the federal building in Newark in an effort to get the U.S. Attorney’s office to investigate. The same groups also have been demanding greater transparency from investigators, essentially mirroring the demands protesters have been making in Paterson — including the release of video and audio, the names of police officers, and a greater level of independence for investigators from local police departments.

State attorney general guidelines currently call for police shootings to be investigated by county prosecutors when local police departments are involved. The state Shooting Response Team takes over if there is a conflict of interest or if county or state law enforcement are involved in the shooting. Critics of the process, which include the New Jersey chapter of the American Civil Liberties Union and numerous civil rights groups, say investigators are too close to the officers they are asked to investigate and that greater distance is required.

“It becomes an uncomfortable situation,” said the Rev. Charles Boyer, pastor of Bethel AME Church in Woodbury, who is a member of a state coalition on civil rights and criminal justice reform. “It is kind of like me being the prosecutor of my brother or my sister or my child. There is a conflict of interest there if we are working together down the line. You can’t come to the situation impartially if you have to work together in future and you have in past.”

Police unions, who oppose the reforms, have said in the past that the current process has worked well. The vast majority of shootings and deaths in custody have been deemed justifiable, which is why there have been few indictments or convictions, they have said. Patrick Colligan, president of the state Policemen’s Benevolent Association, did not return calls.

Assemblywoman Sheila Oliver (D-Essex), one of the prime sponsors of the bill, said PBA opposition was expected.

“This bill is not about the PBA,” she said. “It is about a family whose loved one is shot by a law enforcement officer.”

The bill — A-1115 in the Assembly and S-2469 in the Senate — would require all deaths at the hands of or involving law enforcement to be reviewed by the state attorney general rather than a county prosecutor. These include deaths in custody, shooting deaths, and others in which law enforcement may be involved. The bill would give the state attorney general power to decide whether to proceed with an independent prosecutor or a state grand jury, or to have the case heard by a county panel in a different county from where the death occurred. It was approved by the full Senate 22-16 and by the Assembly Judiciary Committee 4-2 in October. It has been referred to the Assembly Appropriations Committee, which has yet to schedule a hearing, though Oliver said she expects it to receive a full Assembly vote in January.

The governor’s and attorney general’s offices both said they would not comment on pending legislation. The attorney general’s press office issued guidelines in 2015 in response to national protests over police shootings around the country. Those guidelines set standards for who is to investigate and what to do if a conflict exists. Local departments are removed completely from the investigative process under the guidelines, and the attorney general’s office has to sign off if a county prosecutor opts not to empanel a grand jury.

Boyer said the current guidelines fall short. The attorney general’s office needs to be involved much earlier in the process to ensure it is fair and transparent.

“At the end of the day, this is all about transparency and having a system of accountability that the community feels comfortable with,” he said. “At end of day, the criminal justice system should be servants of the community. If they are servants, and if the community wants an independent prosecutor because they don’t like the incestuous relationship that is in place, then that is where law enforcement should be.”

Oliver agreed. She said shootings like the ones that have made national news — in North and South Carolina, New York, and elsewhere — “happen all too frequently,” which leaves families without closure and mistrustful of police.

“That is why we have to take it out of local law enforcement’s hands, take it out of the prosecutors’ hands and let an independent prosecutor do the investigative work,” she said.

While law enforcement groups say the bill is unnecessary, Dianna Houenou, policy counsel for the ACLU-NJ, said the bill is only a start and could go further. Amendments were introduced during the committee hearing process in the Senate that would have required that the names of police officers be released within 48 hours of a shooting. And the ACLU would like to see the bill’s requirements expanded to include those seriously injured by police or in police custody.

“Survival should not mean you are less deserving of an independent prosecutor and investigation,” she said.

Oliver said political realities played a role in the crafting of the final bill.

“Given all of the various special interests that had to brought to table to have legislative success in Trenton, we had to ask ‘could we conceivably gain 41 votes in the Assembly or 21 votes in Senate?’” she said. “We might not have been able to do that if we included serious injury. But this bill sets a platform, it sets the table. If we have success, then we can look at other issues.”

Houenou agreed. It is important, she said, to move the bill forward as written to ensure that deaths are investigated without worrying that the investigation could be compromised by the relationship between investigators and police. It is not about the capabilities of county prosecutors, but about eliminating even the appearance of conflict.

“It’s a trust issue,” Houenou said. “Community members don’t feel they can trust their county prosecutor to be objective to investigate the police department they work with everyday. This serves to eliminate even the appearance of a conflict of interest.”

Trust also is central to the ACLU’s challenge before the state Supreme Court to an appellate court ruling in 2015 that records pertaining to a car chase and shooting in 2014 did not have to be released under the state’s Open Public Records Act because they were considered part of an ongoing investigation. The North Jersey Media Group, which used to own the Record, sought access to police reports, audio and video records, and other records in the shooting death of Kashad Ashford in Lyndhurst. A superior court judge ruled in favor of the news organization, but the Appellate Division overruled it.

Alexander Shalom, senior staff attorney at the ACLU-NJ, said OPRA was assumed to cover use-of-force reports — the documents filled out by police departments when officers are involved in shootings and other uses of force. The attorney general, however, has backed local departments in recent years as the kind of information that could be available has grown to include department-shot video. The AG and police say the reports, along with video, audio, and other documentary evidence, should be exempted as investigatory material.

This has come to a head in the Ashford shooting case, which has the potential to derail efforts at greater accountability and transparency, Shalom said. If the state’s top court rules in favor of police and the attorney general, he said, citizens will have fewer avenues available to keep tabs on their police departments, which would exacerbate already simmering distrust that exists in many communities.

“We keep talking about body cameras and dashboard cameras as new accountability tools, but if the decision on when to release video is at the sole discretion of prosecutors and law enforcement, they will release tapes when it looks good for them and withhold them when it looks bad.”

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