Category Archives: Police Transparency

Another Agency Far Less Transparent After AG Directive 2020-5

As we recently blogged here and here, there are serious concerns about the recent major discipline disclosures that police departments made pursuant to Attorney General Law Enforcement Directive 2020-5. Here is yet another problematic example:

The Star Ledger published an editorial this week panning the disclosures as “not the kind of transparency that was promised when the database was conceived, in the aftermath of the George Floyd tragedy and the universal demand for more police accountability.”

The first problematic example the newspaper gave was Guttenberg Police Department’s disclosure that an officer was “currently still suspended with pay.” That’s it. No other details about the officer’s conduct, despite the requirement that agencies provide a “brief summary of [each officer’s] transgressions.”

Thankfully, unlike most other agencies in the state, all of police departments in Hudson County complied with the old version of the AG’s internal affairs policy which required them to publish the major discipline report without names. Thus, we are able to view Guttenberg’s anonymous version of its major discipline report, which Hudson County View first published here.  (See page 8).

Guttenberg’s initial report (without names) said:

Please be advised that one (1) member of this agency had faced major disciplinary action during 2020. This officer (Sergeant) was suspended without pay since February for violations of this department’s rules and regulations. The officer failed to properly supervise and report an arrest and use of force incident.

Now the disclosure merely tells us the officer is “currently still suspended with pay.” Unless someone knew about the prior report, they would have no idea what this officer actually did and why he was being disciplined.

The failure to supervise and report an arrest and the use of force is a very serious offense. And, the officer has been suspended (with pay) for at least 494 days per the AG’s Major Discipline Database (see p. 38). But, the public was not told about this officer’s conduct and would have no way of knowing what the officer did based on the database. In order to determine whether there is appropriate accountability (i.e. whether the sanction was appropriate), the public needs to know about the officer’s actual transgression.

When Attorney General Grewal issued Directive 2020-5, he promised the public much greater transparency and that it would lead to better accountability. But, as the New Jersey Monitor recently wrote, the Directive turned out to be “a dud.” Many police departments are now far less transparent than they were before the Directive and there seems to be no oversight by the Attorney General’s Office.

For information about this blog or OPRA, please contact CJ Griffin at 201-488-8200 or cgriffin@pashmanstein.com.

Police Department Falsely States Officer Was “Terminated” In Major Discipline Report

The New Jersey Attorney General has published a database of all of the major discipline reports that police departments have released this week in response to Law Enforcement Directive 2020-5. Although the AG is heralding the disclosures as “an important and necessary step to build greater public trust,” we are already identifying discrepancies. Here is another troublesome one from Lower Alloways Creek Police Department, in Salem County.

According to Lower Alloways Creek Police Department’s 2020 Annual Major Discipline Report, officer Jared Adkins “was terminated for incidents of Insubordination and Neglect of Duty.” Because that disclosure does not tell us what the officer actually did, we Googled his name to see if any news stories might reveal the details of the misconduct.

What we found instead are the meeting minutes of the Township Council’s November 16, 2020 public meeting. Those minutes state that, “The motion to accept the resignation of Officer Jared Adkins was passed by a vote of the Township Committee[.]” The Township Clerk subsequently confirmed in response to an OPRA request that Adkins “submitted a letter of resignation effective 11/30/2020, accepted at a meeting held 11/16/2020.”

Telling the public that an officer was “terminated” makes it sound like definitive action was taken against the officer to hold him accountable for misconduct. In reality, this officer was permitted to resign (possibly “in good standing”). Last year, the Appellate Division criticized an agency that told an OPRA requestor that a corrections officer was “charged with a disciplinary infraction and was terminated” when in reality he was permitted to retire in good standing, despite the fact that he admitted to “engaging in sex with two inmates and bringing them contraband, including bras, underwear, cigarettes and a cellphone.” The court called it “inaccurate spin.”

Lower Alloways Creek Police Department’s major discipline report shows that other agencies are similarly involved in such “inaccurate spin” when making their major discipline disclosures. Unfortunately, internal affairs records are shrouded in complete secrecy in New Jersey, so the public has no ability to review the actual internal affairs files to see whether agencies are telling the truth in these disclosure reports.

Still, community members and journalists should review these annual discipline reports carefully, along with news articles, meeting minutes, and other publicly available documents to try to fact-check the disclosures.  Please let us know if you find discrepancies or need assistance filing an OPRA request.

Major Discipline Disclosures Reveal Serious Flaws in AG Directive

In response to the Supreme Court’s decision upholding Law Enforcement Directive 2020-5, the Attorney General set a deadline of August 9, 2021 for agencies to make major discipline disclosures by posting on their websites “the identity of each officer subject to final discipline, a brief summary of their transgressions, and a statement of the sanction imposed” for all major discipline imposed after 6/15/2020. These disclosures are exposing how police departments will easily evade the very little transparency that AG Directive 2020-5 provides to the public.

As NJ Advance Media writes, “The details provided about each incident vary widely, with some departments offering only a single sentence to describe the misconduct.”  The New Jersey Monitor adds, “the disclosures contain scant details. And some stragglers haven’t yet gotten their reports online.”  Indeed, many agency reports do not tell the public what the officers actually did, instead simply describing the misconduct as an “off-duty incident”, “prohibited activity on duty”, or “failure to conduct one’s self to a high ethical standard on and/or off duty.”

We find Jersey City Police Department’s major discipline report to be very troubling and indicative of what is almost certainly a larger problem: police departments being purposely vague and misleading in their disclosures now that they have to include officer names.

For background, prior to AG Directive 2020-5, agencies had to disclosure major discipline, but they did so without revealing the name of the officer. The reason JCPD’s new report is alarming is because we have a copy of its old report (p.3), without the names, that we can compare to its new report with the names. The differences in the details provided to the public is startling. AG Directive 2020-5 was supposed to provide more transparency, not less.

Below are some examples:

Example 1:

Old Anonymous Report:

JCPD disclosed that, “A member of this agency while off duty retrieved a firearm after consuming 6-8 beers. He negligently discharged a round from the firearm during a dispute. The New Jersey State Police responded and their investigation resulted in his arrest and subsequent placement in Pre-Trial Intervention.” This resulted in a suspension of 19 days and 71 lost days.

New Report With Name:

JCPD describes the misconduct with much less detail, saying that the officer “lost a total of 90 days for violating JCPD Rules and Regulations for:  Conduct, Mishandling of a Firearm, Intoxicants Off Duty” and that he “negligently discharged a firearm while off duty on his personal property.” There is no mention of the number of beers the officer consumed, the fact that he fired his weapon during a dispute with someone else, or that he was arrested by the State Police. These are important facts about this officer’s volatility.

Example 2:

Old Anonymous Report:

JCPD disclosed that, “A member of this agency purposefully and intentionally failed to report and make proper notifications to dispatch and supervisory personnel following an on-duty officer involved in a motor vehicle accident.” This resulted in a loss of 25 days.

New Report With Name:

JCPD describes the misconduct as, a loss of “25 days accrued time for violating JCPD Rules and Regulations for: Failure to Perform Duties and Conduct after failing to submit an MVA report as required.” There is no mention of the fact that the officer “purposefully and intentionally” failed to file the report and that the accident involved another on-duty officer. The new report makes it seem as if the officer was careless, not that he intentionally was covering up another officer’s accident.

Example 3:

Old Anonymous Report:

JCPD disclosed that, “A member of this agency presented a false, fraudulent and altered doctors’ note to the Police medical Unit.” The report says the officer was “terminated.”

New Report With Name:

The new report does not list any corresponding officer as having been “terminated” for presenting a fraudulent doctor’s note, but this entry seems to match with the old entry: the officer “lost a total of 122 days for violating JCPD Rules and Regulations for: Conduct, Neglect of Duty, and Truthfulness. FNDA issue date 9/16/2020. Resignation effective 9/17/2020.”   Assuming these entries are in fact the same, this entry does not tell the public what the officer actually did (forged doctor’s notes) and it falsely states that he was “terminated,” when he really resigned.

These are just some of the flaws in JCPD’s new report, but it is evidence of a larger problem that advocates predicted: agencies will be less than forthcoming in the disclosures they make pursuant to AG Directive 2020-5. Because the public does not have access to the actual internal affairs files, there is no way to fact-check these disclosures.

Moreover, AG Directive 2020-5 only requires disclosure of names for major discipline imposed after 6/15/2020, and JCPD’s old report reveals some egregious misconduct occurring before that date, such as an officer using a “derogatory term” and attempting to remove the body cam footage; an officer engaging in a “physical altercation with a juvenile that escalated” into the officer inadvertently firing his weapon; and an officer entering a public restroom and making an “inappropriate and unwelcome advance toward a female JCPD Officer.” We will likely never know the names of these officers and they are still on the police force.

We will blog again soon because there are more problematic disclosures that we want to share. In the interim, if you find anything suspicious in your police department’s major discipline report, please send it our way!

For more information about this post or about OPRA, contact CJ Griffin at 201-488-8200 or cgriffin@pashmanstein.com.

Supreme Court Rules That AG Can Publish the Names of Disciplined Police

On June 7, 2021, the New Jersey Supreme Court ruled in favor of the Attorney General by upholding Law Enforcement Directives Nos. 2020-5 and No. 2020-6, which ordered law enforcement agencies throughout the state to annually publish the names of police officers who were either terminated, demoted or suspended for more than 5 days.  We previously blogged about the Directives here and here.

Chief Justice Stuart Rabner delivered the opinion of a unanimous court finding that Attorney General Gurbir S. Grewal had the authority to issue the Directives, which are, “consistent with legislative policies,” and, “satisfy the deferential standard of review for final agency decisions.”  The Court noted that the Directives are “designed to enhance public trust and confidence in law enforcement, to deter misconduct, to improve transparency and accountability in the disciplinary process, and to identify repeat offenders who may try to move from one sensitive position to another.”

However, one critical aspect of the Directives remains open for further evaluation – the demand that the New Jersey State Police reveal the names of approximately 500 Troopers who were seriously disciplined up to 20 years ago. Calling this a “serious issue,” the Court appointed a Superior Court Judge Ernest Caposela, A.J.S.C., to hear testimony and make a ruling regarding access to past discipline.

CJ Griffin represented amici curiae National Coalition of Latino Officers and the Law Enforcement Action Partnership in favor of transparency. Although the Directives provide some transparency, both organizations have written in support of Senate Bill No. S2656 and Assembly Bill No. A5301, which make police disciplinary records subject to OPRA.

Several newspapers covered the Supreme Court’s decision:

To view the NJ.com article, click here.
To view the NorthJersey.com article, click here.
To view the New Jersey Law Journal article, click here.
To view the Hudson County View article, click here.

New Use of Force Policy Makes Positive Changes, But Also Raises Questions

On December 21, 2020, New Jersey Attorney General Gurbir S. Grewal announced changes to the statewide “Use of Force Policy,” the first revision to the policy in two decades. Among other things, the new policy prohibits the use of deadly force against citizens “except as an absolute last resort.” Because the Attorney General is New Jersey’s “chief law enforcement officer,” this policy is binding upon every law enforcement agency in the state.

The new policy has been widely applauded by both the law enforcement community and the civil rights community. In terms of transparency, we find that it contains positive changes but also raises some questions.

Changes to Use of Force Reporting

Readers may recall that there has been significant litigation regarding public access to Use of Force Reports (UFRs), which are reports that law enforcement officers are required to complete, per the policy, any time force is used against another person. In 2017, the New Jersey Supreme Court ruled that UFRs are subject to OPRA in North Jersey Media Group Inc. v. Township of Lyndhurst, 229 N.J. 541 (2017). In 2020, the Appellate Division rejected an agency’s attempt to withhold UFRs that relate to juveniles, ruling in Digital First Media v. Ewing Township, 462 N.J. Super. 389 (App. Div. 2020), that the agency must instead redact the juveniles name from the UFR and release them.  Both cases were litigated by Pashman Stein Walder Hayden.

The new Use of Force Policy maintains the requirement that officers complete UFRs after each and every use of force, but it modifies the requirement in some positive ways.

First, the old policy did not specify a deadline for completing a UFR and many officers would wait weeks or months to fill them out. This kept the public from learning important details about the incident. The updated policy now requires UFRs to be completed within 24 hours. This will ensure prompt public access.

Second, under both the old policy and the new policy, pointing a firearm at someone is considered “constructive authority” and not a “use of force.” Under the old policy, only uses of force had to be reported on a UFR and therefore there was no requirement that police officers complete a report when they pointed a firearm at anyone. Under Section 3.4 of the new policy, officers are required to report anytime they point a firearm at a person. Section 3.7.5 also requires officers to report Conductive Energy Device (tasers) spark displays as well.

Third, under the old policy, force was reported on a one-page hard copy UFR. Under the new policy, force is reported through an online “Use of Force Portal.” Thus, UFRs now exist in electronic form and they will also capture much more information than ever before, making it much easier to analyze trends in how force is used and which officers are using force more than others.

Questions About Public Access

Despite the positive changes, we do have some questions and concerns regarding transparency under the new Use of Force Policy.

First, the Attorney General announced that “a version of the portal will be accessible for public review in the first quarter of 2021.” It is unclear what that public version will look like and whether it will contain as much information as the internal version of the portal. It is also important that the public have access to raw data rather than mere summaries of information and it would be a shame if people still had to file OPRA requests to obtain individual UFRs. We are hopeful that the public portal will be expansive and allow people to download UFRs and analytical reports and that the data is available in real time as UFRs are completed, not on a delay.

Second, we have concerns regarding reporting on deadly force incidents. The old policy required the completion of a UFR for all uses of force, including deadly force. Section 7.3 of the new policy suggests that the new portal will be used to report only non-deadly force because it states: “When an officer uses force as defined in Section 3 of this Policy and the result is not fatal, the officer shall complete a report in the Use of Force Portal[.]”  Section 7.1 then dictates a separate procedure for reporting deadly force: “Notification of fatal and serious bodily injury law enforcement incidents shall be made in accordance with AG Directive 2019-4.”

It is unclear how that deadly force notification actually occurs because Directive 2019-4 simply states: “As soon as any local, county, or state law enforcement agency learns of a Law Enforcement Incident, the agency should immediately notify the County Prosecutor’s Office of the county in which the incident occurred, who shall in turn immediately notify the OPIA Director or their designee.” If those fatal force notifications are made verbally, then there would be no documentation for the public to access. In prior years, agencies would complete a “Police Use of Deadly Force–Attorney General Deadly Notification Report,” but those do not seem to be completed as often now.

If UFRs are no longer required under the new Use of Force Policy for fatal uses of force, that would be a significant departure from the old policy and would shield important details from the public about deadly force incidents.  If the Use of Force Portal does not include data about deadly force incidents, that is alarming and would skew the data in the public portal. The use of deadly force is obviously of significant interest to the public.

For questions about this blog or about OPRA, please contact CJ Griffin at cgriffin@pashmanstein.com.

Body Cams are Rarely Released on Time

Update as of 10/23/2020:  As mentioned below, we filed OPRA requests on September 26, 2020 for videos that had not been released.  On October 6, 2020, the State said it did not have body cam or dash cam footage of the shooting of Luan Agolli. However, it released some surveillance camera videos here. On October 7, 2020, the State identified the man who died in Totowa on June 27th as Sergio Rodgiguez. As of today, it has not released any videos and said such videos might be produced by October 28, 2020 (which will be 123 days from the incident).

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In New Jersey, the Attorney General’s Office is required to investigate “[w]henever a person’s death occurs during an encounter with a police officer . . . or while the decedent was in custody.” N.J.S.A. 52:17B-107. In light of that requirement, the Attorney General issued Law Enforcement Directive No. 2019-4, which outlines procedures for selecting the appropriate Independent Investigator and conducting a proper investigation for these fatal incidents. The Directive also requires the disclosure of videos of these incidents, but we find that the transparency measures are not closely followed.

According to Directive No. 2019-4, the “Independent Investigator must release the . . . Incident Footage within 20 days of the . . . Incident, unless the Attorney General, or designee, authorizes a delayed release.” This blog previously discussed a prior iteration of this Directive, highlighting how the 20-day disclosure requirement actually slowed down the access provided by the Supreme Court in North Jersey Media Group v. Township of Lyndhurst, 229 N.J. 541 (2017), which held that videos should be released “within days of an incident.” Now it appears that even the 20-day disclosure requirement is being consistently ignored.

Based on data collected from the Attorney General’s website, there have been 12 incidents since January 1, 2020 that the Attorney General’s office has investigated. Nine of these incidents were shootings and three were in-custody deaths:

 

 

 

 

 

It appears that the fastest time that any videos of these deadly incidents were released was 16 days. Those videos related to Maurice Gordon, who was shot and killed by an officer on the Garden State Parkway on May 23, 2020. Gordon’s death received significant media attention and activists demanded that the videos be released.

As detailed in the chart above, it appears that the Attorney General’s Office has complied with the 20-day disclosure requirement only a single time this year. Sometimes, investigators have taken more than double the time allotted by Directive No. 2019-4, with three incidents taking 44 days, 48 days, and 50 days. In the case of a man who died after a physical altercation with Trenton police, videos were not released for 153 days.

There are three incidents (two of which are in-custody deaths with unidentified decedents) where it does not appear that videos have been officially released. Working alongside our longtime client, Richard Rivera, we filed requests for these videos on September 26, 2020.

The Attorney General has repeatedly spoken out in favor of transparency, arguing that New Jersey should become national leaders on the issue. Ensuring that his office complies with his own Directives would be a good place to start.

For questions or comments about this article or about OPRA in general, please contact CJ Griffin at cgriffin@pashmanstein.com or 201-488-8200.

Court Hears Appeals of AG Major Discipline Disclosure Directives

In mid-June 2020, the Attorney General of New Jersey issued two important police transparency directives, both of which have been challenged and were before the Appellate Division this week.

The first directive, Law Enforcement Directive 2020-5, requires future disclosure of the names of officers who have been subject to “major discipline,” which is described as a sanction of termination, demotion, or five or more days of suspension. 

The second directive, Law Enforcement Directive 2020-6, orders the State Police and other state law enforcement agencies to make a retroactive disclosure, requiring disclosure of the names of those who have received major discipline for the past twenty years.  The Attorney General also gave county and municipal departments the discretion to make retroactive disclosures and some have made the decision to do so.

Unfortunately, several police unions very quickly filed emergent appeals to stop the Directives from taking effect. The Appellate Division granted a temporary stay of the Directives until the appeals could be heard.

On September 16, 2020, the Appellate Division heard oral argument in the appeals, which lasted more than four hours. The full audio of the hearing can be downloaded via the Judiciary here.

CJ Griffin, Partner at Pashman Stein Walder Hayden and Director of firm’s Justice Gary S. Stein Public Interest Center, participated in the oral argument and filed a pro bono friend-of-the-court brief on behalf of the National Coalition of Latino Officers (NCLO) and the Law Enforcement Action Partnership (LEAP), two non-profit organizations comprised of current and former law enforcement officers. These organization’s asked the court to uphold the Directives and argued that transparency earns the public’s trust, which leads to members of the public being more likely to cooperate with investigations, report crimes, and ensure that police departments have proper resources to perform their jobs safely. Additionally, the AG’s transparency Directives would greatly benefit officers of color and women officers because it would allow organizations like NCLO to identify racial and gender disparities in how major discipline has been imposed upon officers.

The Trentonian has published an article summarizing the Appellate Division arguments, which can be viewed here:

CJ Griffin, an attorney for the National Coalition of Latino Officers and the Law Enforcement Action Partnership, said her clients “really want the court to know that not all police officers agree with the unions’ position. In this case, many of the officers are advocates of transparency.”

Griffin said her clients support transparency and believe “transparency really benefits police officers.”

Some of the briefing can be downloaded here:
LEAP & NCLO’s Amici Curiae Brief
ACLU-NJ & 23 Diverse Organization Amici Curiae Brief
ACDL-NJ & Office of Public Defender’s Amici Curiae Brief
Attorney General’s Respondent Brief
Association of Former State Troopers’ Appellate Brief
State Troopers Fraternal Association Appellate Brief
State PBA Appellate Brief
PBA Local 105 Appellate Brief
Superior Officers Association Appellate Brief

For questions about this blog post, please contact CJ Griffin at 201-270-4930 or cgriffin@pashmanstein.com

Using OPRA for Police Transparency in New Jersey

Transparency plays a critical role in  building trust between the police and the community. When members of the public trust the police, they are more likely to follow their commands, cooperate with criminal investigations, and even advocate for more funding for police. When police resist transparency, community trust is seriously undermined. Secrecy also makes it harder to hold police departments accountable and assure that they are complying with the law and meeting the high standards that we set for them. This is why we have been involved in dozens of cases involving police records, including landmark decisions such as North Jersey Media Group Inc. v. Township of Lyndhurst, 229 N.J. 541 (2017).

Although so many law enforcement records are sadly exempt from access under OPRA, something we hope the Legislature will fix, there are several records that are publicly accessible and that shed a light on policing and have the potential to expose misconduct or wrongdoing when it occurs.

We invite you to read our prior three-part blog series titled, “How to Monitor Police Agencies.” The series covers the following topics:

We also recommend reading the wonderful article written by Andrew Ford of the Asbury Park Press, published by ProPublica, titled “I Cover Cops as an Investigative Reporter. Here are Five Ways You Can Start Holding Your Department Accountable.”

If you have a question about this blog or OPRA in general, please contact CJ Griffin at cgriffin@pashmanstein.com or 201-270-4930.