State Supreme Court Limits Powers of Newark’s Civilian Review Board

City’s fight to create review boards with subpoena power dates back decades
Credit: Paul Sableman via Flickr
Newark patrol car parked outside 3rd Precinct

The state Supreme Court handed Newark officials a severe setback Wednesday in a ruling that drastically limits the powers of the city’s fledgling civilian review board to investigate police misconduct.

The 6-1 decision struck down key parts of the city’s 2016 ordinance that created a civilian-complaint review board, which would have been one of the strongest agencies of its kind in the nation. The court ruled the board cannot be granted subpoena power, according to state law, and  it may not conduct investigations at the same time as the police department’s internal affairs office is conducting its own. Only legislative action could grant those powers, the court asserted.

Newark Mayor Ras Baraka issued a statement on the court’s decision. “At this time in our nation’s history, where the world watched the barbarism of Officer Chauvin as he murdered George Floyd with a knee on his neck, the New Jersey Supreme Court’s action is out of step with national sentiment, and failed to remove the knee off the necks of many of us in New Jersey.”

Related content: NJTV News report on the court decision

Baraka has advocated for a review board since the early 1990s. “In a time where our nation demands justice and fairness, today’s ruling was a shocking blow to basic humanity.”

The mayor vowed to take the case to the federal courts and challenged lawmakers and Attorney General Gurbir Grewal to restore what the Supreme Court has taken away. “We have come too far in this battle,” he said. “We will not stop the fight for our collective justice.”

Baraka willing to bring pressure to bear

Baraka then borrowed a famous remark Lyndon B. Johnson made to Martin Luther King Jr., who was urging the president to pass the Civil Rights Act in the early ‘60s: “You’re going to have to make me do it,” the president said.

Behind the scenes, Grewal has recently sent Newark a recommendation that would provide the board additional access to police records, including internal affairs files, the mayor said. That matter is currently being negotiated.

“The attorney general and the City of Newark have been exploring mechanisms that would allow cities like Newark a larger role in oversight of their police department. That effort will continue,” said Peter Aseltine, an OAG spokesman.

Despite the setback, the court did validate the city’s right to create a review board, the first ever in New Jersey. “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,” Associate Justice Jaynee LaVecchia wrote for the majority.

Other cities, including Jersey City and Orange, are contemplating their own review boards. Jersey City recently drafted an ordinance that would have given a board subpoena power. In the meantime, Newark’s 11-member board has already started gearing up — hiring investigators and lawyers — and started hearing some complaints. And the court did note in its decision that the city council possesses subpoena power.

Chief Justice Stuart Rabner offered the sole dissenting opinion, saying Newark’s ordinance is similar to other such boards across the country, and should be legal here.

“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.

Newark police union moved to block review board

The genesis of Wednesday’s ruling was a lawsuit filed by the Fraternal Order of Police, Newark Lodge No. 12, after the enabling city ordinance was passed in 2016. That was the same year the city entered into a legal agreement, called a consent decree, with the U.S. Department of Justice to oversee a host of reform measures in the police department. A three-year investigation, made public in 2014 — just weeks after Baraka took office — revealed widespread misconduct and abuse by Newark police. One component of the consent decree called for the city to establish a civilian review board. But the city went too far, the union claimed.

“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,” said FOP No. 12 president James Stewart Jr. “Based on today’s decision, it appears that the Supreme Court agreed with our view.”

Rutgers sociology professor Paul Hirschfield pointed to an alarming fact in the DOJ report. Between 2007 and 2012, the city’s internal affairs unit received hundreds of excessive-force complaints — and sustained only one.

“The court has declared that police departments must be trusted to police themselves, which is a stale fantasy,” Hirschfield said. “The ball is now in the court of the New Jersey state Legislature, who should declare where they stand on the issue of police accountability.”

Assemblywoman Angela V. McKnight (D-Hudson) has proposed a bill that would establish civilian review boards throughout New Jersey. Newark corporation counsel Kenyatta Stewart said the city has sent her a request to amend her bill so that it will authorize the use of subpoena power for the boards. McKnight did not respond to an email requesting comment.

“Today’s decision prevents Newark from fully implementing the CCRB, but residents and community groups have known that this would be a long-term proposition,” said Jeanne LoCicero, ACLU of New Jersey legal director, who said she “and other advocates now turn to the Legislature to ensure that communities will be fully empowered to hold police officers accountable.”

Baraka expected blowback from the union, but said he was surprised when the attorney general lined up with them. Grewal said granting the civilian board such authority “impermissibly interfered with the statutory duties of Newark’s police chief and intrudes on the force’s internal affairs function.”

Calls for Newark review board stretch back decades

Calls for a civilian review board in Newark can be traced at least back to 1962, when then Mayor Hugh Addonizio rejected such a proposal by local activists shortly after he took office.

When the infamous riots erupted in the summer of 1967, started by the police beating of a Black taxi driver, the issue was raised again during “negotiation” sessions between the Addonizio administration and local activists. Among them were Amiri Baraka, the mayor’s famous militant father, who was severely beaten and jailed during the uprising. Addonizio rejected it out of hand.

The concept was revived again in 1968, when a post-riot report commissioned by Gov. Richard Hughes proposed, among other measures,  a civilian review board that very much resembled the one Newark proposed in 2016: “A board should operate outside the structure of the Police Department, be staffed by its own investigators and equipped with subpoena powers,” the Governor’s Select Commission on Civil Disorder wrote. “It should have the power to recommend disciplinary action to the police director and to publicize its findings.

Newark’s next three mayors — Ken Gibson, Sharpe James and Cory Booker — each endorsed the notion of a civilian review board, but failed to make it happen. Then Baraka arrived in 2014. The board began as a unilateral executive order he signed in 2015 and was then endorsed by the city council in 2016, the year Baraka agreed to enter the consent decree with the DOJ.

Today, there are more than 100 civilian review boards throughout the country, and a handful of them possess the subpoena power Baraka wants, including Berkeley, Dayton, Knoxville, San Francisco, St. Paul and Washington, D.C. “The majority of the public favors independent investigations of police misconduct,” Rutgers’ Hirschfield said. “Civilian review boards uphold basic principles of democratic governance.”

The first civilian review board in the United States was established in Washington. D.C., in 1948, and the issue has been contentious since.

“Civilian review proposals have faced strong political opposition from police unions over the last several decades,” according to Alecia McGregor, who published a study in the Journal of Public Health entitled “Politics, Police Accountability, and Public Health: Civilian Review in Newark, New Jersey.”

“Most proposals in the 1960s were defeated, but by 1992, police departments in 34 of the 50 largest U.S. cities had some form of civilian review in place.”

NJ police unions take on Grewal

Grewal is the target of another lawsuit brought by police unions in New Jersey.

In June, he issued a directive that ordered all police departments to publish the names of law enforcement officers who have received major discipline — that is, those officers who have been fired, demoted or suspended for more than five days. Immediately after, five police unions filed suit to stop the order. The directive has been postponed until the courts can hear oral arguments in October.

“I was surprised, and frankly disappointed, by the reaction of some law enforcement officers to these directives,” he told lawmakers in July. “The reaction demonstrated that, unfortunately, not all of my law enforcement colleagues see the benefit of this type of transparency.”