Justices hear arguments over Newark police challenge to civilian complaint board

The state top’s court Monday heard arguments — via teleconference in this age of COVID-19 and social distancing restrictions — on the bid by the police union in Newark to limit the powers of a civilian oversight group formed in the wake of a federal report showing that officers had routinely violated the rights of residents in New Jersey’s largest city.

At issue is an appeals court ruling largely affirming the validity of the city ordinance establishing a civilian complaint review board to look into allegations of police misconduct and giving the panel broad powers to investigate those claims.

The committee was created in the wake of a 2014 federal Civil Rights Division report showing “a pattern or practice of constitutional violations” in the actions of some city police officers and “deficiencies” in the department’s system for preventing and investigation residents’ complaints. The civilian complaint review committee was one outgrowth of that report, which also prompted the appointment of a federal monitor who has documented improvements in the department’s relationship with the community in the intervening years.

On Monday, lawyers for the Fraternal Order of Police lodge representing Newark officers argued that the committee’s power to subpoena officers violates state law. Only a body of all council members, not a committee of community group members, can have subpoena powers, Matthew Areman, the union’s attorney argued.

“The proposal to confer subpoena power upon a proposed board is illegal since subpoena power can be created only by action of the Legislature,” he said, citing the language of an earlier court decision.

Representing Newark in its defense of the ordinance, First Corporation Counsel Avion Benjamin said the committee has been duly constituted and legally empowered. “It’s an authority that we have and we can choose to delegate to the CCRB,” she said.

Areman also argued that a board made up of mostly members from organizations that historically have demanded more accountability for city police will rob officers of due process.

“Individuals plucked from these advocacy groups are part of these advocacy groups because they have a certain viewpoint,” he said. “Not that there’s anything bad about that certain viewpoint, but when that individual is tasked with making a fair and neutral adjudication of an individual officer, I think it creates a system that is rife for problems.”

The assertion was challenged by Chief Justice Stuart Rabner. “So a sworn, trained office can be trusted, a proposition I can accept,” he said. “But a sworn, trained representative who happens to belong to a community group cannot be?”

The state Attorney General’s Office is siding with the police union in the appeal. Its attorney argued the state appellate court last June misread the law on what kind of appropriate authority can review police conduct.

“The Appellate Division thus opened the door to the very type of political interference with police functions that the police force statute was adopted to prevent,” Deputy Attorney General Daniel Bornstein said.

Rabner challenged that point, too, noting that the city’s attorney has said the civilian review board would not meddle in police affairs. Rather, it would investigate and recommend discipline to the public safety director who would then have the final say.

Benjamin said Newark officials believe it’s imperative to have a review board with teeth, in light of the history of the department’s interactions with the community.

“You also have the opportunity to not only help Newark but other similarly situated municipalities in New Jersey fix a profoundly broken system,” she said.

The seven justices of the state’s highest court — all present, virtually, for the arguments — did not make a ruling Monday.

The Appellate Division had been unanimous in its decision to overturn a summary judgment at the trial court level, setting the ordinance aside. It ruled the ordinance was valid with two exceptions: that it infringed on the power of the police chief by makings the board’s factual findings final, and that it allowed public disclosure of the identities of both the complainant and the police officer.

Update 4/28: A previous version of this article incorrectly identified First Corporation Counsel Avion Benjamin as “he”.

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