NJ Push to Order Disclosures of ‘Bad Apple’ Police Officers Hits Court Roadblocks

Attorney General Grewal’s efforts to increase police transparency meet concerted resistance from state’s police unions, shunted aside by New Jersey’s appellate court
Credit: Edwin J. Torres/ Governor's Office (CC BY-NC 2.0)
NJ Attorney General Gurbir Grewal

Attorney General Gurbir Grewal’s newfound fervor for police reform hit a roadblock Wednesday, when a New Jersey appeals court temporarily froze his recent order to publicly disclose the identities of “bad-apple” cops who have been disciplined for serious infractions. The setback comes in what promises to be a protracted showdown between his office and powerful police unions throughout the state.

Last month, Grewal had ordered all law enforcement agencies in New Jersey to release the names of officers who were fired, demoted or hit with more than a five-day suspension for disciplinary matters. Currently, agencies release that information but do not identify the officers.

The police unions’ response was swift and strong: In a joint statement — from three state troopers unions — they argued that Grewal’s order would not lead to any reform, and would only  “harass, embarrass, and rehash past incidents during a time of severe anti-law enforcement sentiment.”

Then came the lawsuits.

Police unions push back

The first to object on June 25, the day after they met with Grewal, was the State Troopers Fraternal Association. Jumping on board since that opening salvo have been the powerful New Jersey State Policemen’s Benevolent Association on behalf of all its locals, as well as unions representing superior officers and state corrections officers.

Grewal’s order was a direct reaction to the millions of people who protested nationwide after the May 25 killing of George Floyd, who died when a Minneapolis police officer, Derek Chauvin, kneeled on Floyd’s neck for over eight minutes.

And while the police-movement has suddenly found a new life in New Jersey and across the country, police unions are defiantly digging in, arguing that releasing old records of problem officers would achieve no progress and would only victimize cops. Their court victory Wednesday, although temporary, nonetheless demonstrates the power and resistance police unions will deploy in efforts to reform police departments.

“Police unions are not like traditional labor unions,” said Christopher Hayes, a labor historian at the Rutgers School of Management and Labor Relations. “They look out almost entirely for themselves, and they have no perceptible commitment to social justice.”

For decades police unions have incrementally added layers of protections for police officers, including keeping their disciplinary records secret, through collective-bargaining concessions.

“Police unions are a formidable political force. They often wield enough money and political clout to sway local and statewide elections,” said Paul Hirschfield, a Rutgers University sociology professor. “And, of course, police are often a vital source of revenue for local governments’ public-safety budgets. I think the desire to avoid antagonizing police unions is one of the biggest reasons that they have managed to secure so many concessions from local officials over the years.”

Held to higher standard

Hirschfield said it’s also reasonable that police be held to a higher standard because “lives and liberties are often literally at stake — far more so than where other public employees accused of misconduct are concerned.”

A 2018 Oxford University study of the hundred largest American cities takes Hirschfield’s argument up a notch: It concluded there is a direct correlation between police abuse and a long string of concessions made during collective-bargaining sessions with police unions. Also, a 2017 Reuters special report on police-union contracts in 82 cities found that most  departments were required to erase disciplinary records — sometimes after only six months. Eighteen cities expunged suspensions records in three years or less.

Last month, Reuters analyzed Minneapolis Police Department officer complaints over the past eight years and found that nine of 10 misconduct investigations were resolved without punishment or intervention with regard to behavior modification. Of 3,000 complaints during the same period, only five officers were fired. Also last month, the Illinois Supreme Court turned back a police-union lawsuit and ruled that Chicago police-misconduct records more than five years old must be made available to the public.

In New Jersey, state Appellate Judge Allison E. Accurso wrote in the ruling that even “the Attorney General candidly acknowledges … the sea change in his Department’s position on the confidentiality of internal affairs,” and thus requires a full hearing. Echoing the union’s argument, she also stated that a  “significant number of their members entered into voluntary settlements over the past 20 years accepting major discipline in reliance on the department’s assurance that those records would remain confidential.”

The attorney general’s office immediately asked the New Jersey Supreme Court to overturn the appellate division’s order, stating in a court filing that it “unreasonably delays” Grewal’s directives and “prevents the state from taking steps it believes necessary to improve accountability and transparency in law enforcement potentially until 2021.”

The Supreme Court Thursday denied the state’s request, leaving the stay in place. The appellate court will hear oral arguments on Oct. 15 to decide if Grewal’s directive can stand.

“Last month, we announced bold new steps to strengthen the culture of transparency and accountability in law enforcement,” Grewal said in a press release. “Our efforts may have been delayed, but I’m confident they won’t be denied. The Major Discipline Directives are lawful, and they are necessary to maintain the public’s trust and confidence at this important moment.”

Public calls for more transparency

“The public has demanded more transparency and reform from its law enforcement agencies, and the State wishes to heed their call,” the AG’s office wrote in an earlier filing. Reversing his order “means the public cannot hold officers and agencies accountable if they commit a pattern of egregious misconduct, such as excessive use of force or other troubling actions, and jump from agency to agency”

Credit: NJTV News
Patrick Colligan, president of the New Jersey Policemen’s Benevolent Association

After Wednesday’s ruling, state PBA president Patrick Colligan issued a statement saying he was “willing to work with the attorney general towards a resolution that is fair, as we always have.” And then quickly added: “In the absence of partnership that allows us all to root out bad actors without sacrificing individuals who will be unfairly ruined in the rush to secure a soundbite, we will continue to  pursue any and all legal remedies.”

“In too many police departments all around the country, the consequences of police misconduct are too unlikely or too light to serve as an effective deterrent,” said Rutgers’ Hirschfield. “Making such records public not only increases the consequences of misconduct for individual officers but also for police departments …”

Some transparency advocates support Grewal’s decision, but think he doesn’t go far enough.

Tom Cafferty, a New Jersey First Amendment and media-law attorney, is one of them.

“The Attorney General’s revisions to police internal affairs policy is a small step in the right direction of transparency. But the time for small steps is long past,” Cafferty said. “It is critical that the disciplinary-review process of police officers, who are entrusted by citizens of this state with awesome power, ranging from the power to arrest to the ultimate power, the power to take a human life, be fully transparent.”

Ratcheting up police anger

Cafferty and his law firm helped draft a bill introduced last week by state Sen. Loretta Weinberg (D-Bergen), which is certain to anger police unions even more. That measure, S-2656, would allow public access to virtually all police internal affairs records — along with complaints, charges, transcripts of disciplinary hearings, body camera footage and other records, under the state Open Public Records Act.

The attorney general has not taken a position on the bill. But Grewal is pushing a number of reform measures, including the statewide licensing of police officers and a wholesale revision of the state’s policy on the use of force by police, which hasn’t been revamped in 20 years. But it appears Grewal’s efforts to improve police transparency have their limits.

His office intervened in a lawsuit brought by Cafferty on behalf of the Asbury Park Press to keep confidential the internal police records of Philip Seidle, a former Neptune police sergeant who murdered his ex-wife in 2015 in front of their 7-year-old daughter. Gannett, which owns the paper, is suing Neptune Township to get Seidle’s internal file, which the town contends should remain private. Grewal’s office in March offered a legal brief in support of Neptune, arguing the disclosure  “would compromise the integrity of a law enforcement agency’s IA functions.”

Grewal also has sided with the Newark police union, which successfully sued to bar its citizens review board from having subpoena power while investigating complaints against police officers. That case is pending before the state Supreme Court.

“Over the years, Newarkers have come to feel that the Internal Affairs’ process is broken,” Mayor Ras Baraka said last month. “This has contributed to a lack of trust and a disconnect between the community and the Police Division.”

The ACLU of New Jersey, on behalf of itself and 23 organizations, has filed briefs supporting Grewal’s directive to identify bad actors in the police department.

“It comes down to this: There is no legitimate reason to limit transparency regarding police disciplinary records, and lives are at stake,” said ACLU-NJ executive director Amol Sinha. “In a democracy, people must have the power and information to determine whether those put in place to serve them are truly serving their best interests — the police do not get the final say over what information the public should and should not see.”