Tag Archives: deadly force

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.

AG Issues New Police Shooting Video Directive

Last week, Attorney General Gurbir S. Grewal issued Attorney General Law Enforcement Directive No. 2018-1, which provides instructions to law enforcement agencies in this State regarding public access to dash camera and body camera footage of police-involved shootings.  We find that there are both pros and cons to this new directive.

Pros:
On one hand, we are very happy to see that the new Attorney General clearly understands that transparency advances public trust in law enforcement. The overall spirit of this directive is positive and it recognizes that law enforcement do not need permanent confidentiality over their records–the directive requires disclosure of police shooting videos within 20 days, in most cases. The presumption of access is important and we hope that agencies will follow the directive and will not seek constant extensions of time to release these videos.

Cons:
On the other hand, the new directive does not give the public any more access than already existed pursuant to the Supreme Court’s decision in North Jersey Media Group v. Township of Lyndhurst. If anything, the new directive may make access to police shooting videos slower, as the Lyndhurst decision held that access must be granted “within a few days” and the new directive sets a timeline of 20 days.  We fear that  requestors will now need to wait for 20 days after an incident to file an OPRA request, then wait an additional 7 business days to gain access to the video. This is much slower than what we have experienced the past several months since the Lyndhurst decision was issued.

We are also disappointed that the directive only applies to videos which depict the use of deadly force or where other force results in “serious bodily injury.”  We think that the spirit of the Lyndhurst decision makes it clear that most police videos should be released relatively soon after an incident occurs, but the new directive applies Lyndhurst very narrowly and the public will still struggle to gain access to police video which shows other types of misconduct or more minimal uses of force.  For example, we think that if a police officer uses a racial slur toward a suspect while arresting them, the public should be able to see the video.  The new directive, however, would not require disclosure unless the suspect was seriously injured.  This is problematic.

News Coverage:
PSWH Partner CJ Griffin was quoted in NJ Advance Media’s article on the new directive.

 

For assistance with OPRA matters, please contact CJ Griffin at 201-488-8200 or cgriffin@pashmanstein.com.

How to Monitor Police Agencies: Part 1

Police officers have the ability to arrest and detain suspects, to seize property, and to lawfully use force against people when justified by law.  Because police officers are given these tremendous powers, we should hold them to very high standards— we expect that they will be honest, trustworthy, and follow the law and the Constitution.

In a three-part series, we will discuss how you can use OPRA to monitor police conduct. This blog highlights records you can request to monitor the use of force by police officers.

Use of Force Reports:

Pursuant to the Attorney General’s Use of Force Policy, every time an officer uses any level of force against an individual they must complete a Use of Force Report (“UFR”).  A UFR is a simple one-page report that provides information about a specific use of force incident, such as the names and biographical data of those involved and the type of force that was used. A model form is available here.

You can request UFRs relating to a single specific incident of force that you read about in the news or you can request all of an agency’s UFRs for a specific time frame. By requesting all of an agency’s UFRs during a specific time frame, you can determine how often force is used and whether there are any patterns that emerge, such as whether a specific officer uses force far more frequently than other officers or whether certain races are the target of force more often than others.

A great example of how such data can be put to use is NJ Advance Media’s “The Force Report“–a database of more than 70,000 UFRs that were created by police agencies in NJ from 2012 to 2016. We highly recommend looking up the force data in your own town to see how your town fares compares to others.

Sample OPRA requests:

  • “Pursuant to OPRA and the common law, I would like all of your police department’s Use of Force Reports from January 1, 2017 to present date.”
  • “Pursuant to OPRA and the common law, I seek all UFRs that were created as a result of the police-involved shooting that occurred on May 1, 2017 involving a suspect named Bob Jones.”

Police Use of Deadly Force Attorney General Notification Report:

Where deadly force is used, a “Police Use of Deadly Force Attorney General Notification Report” must also be completed. This is true even if the deadly force does not actually result in death. If a police officer shoots at someone, that action constitutes the use of deadly force even if the officer misses and no one is shot. A model AG Notification Report is available here.

Sample OPRA request:

  • “Pursuant to OPRA and the common law, I would like the Police Use of Deadly Force Attorney General Notification Report that was created for the incident that occurred last night at 34 Main Street in Montclair.”

Body-Worn Camera Footage:

Recently, The Lab @ DC released a report which suggests that Body Cams do not change police behavior and cause them to use force less often.  Body Cams do, however, promote transparency in policing and permit us to see what occurred for ourselves. For example, The Trentonian has recently published Body Cam footage that has exposed police officers bragging about roughing up suspects. The public obviously has a significant interest in knowing that its officers are behaving this way so that it can advocate for discipline or leadership change.

Because Body Cam Footage is required to be made and maintained by Attorney General Law Enforcement Directive No. 2015-1, it cannot be exempt under OPRA’s criminal investigatory records exemption. It may, however, be exempt under the ongoing investigation exemption depending on the nature of the tape, when it was created, and whether releasing it would be harmful to the public interest. The Supreme Court has said, though, that the public’s interest is in disclosure where police use of force is involved and that an agency should not need to withhold police video for more than a few days in most instances.

Sample OPRA request:

  • “Pursuant to OPRA and the common law, I seek all Body-Worn Camera Footage for the police-involved shooting that occurred on 5/1/17 at 29 Main Street in Clifton.”

Dash Camera Footage:

The Supreme Court has recently ruled that dash camera videos that relate to criminal incidents are not subject to OPRA because they are subject to the criminal investigatory records exemption.  Nonetheless, the Court has made it clear that dash cam footage should be routinely disclosed under the common law right of access.  Accordingly, always make sure to invoke the common law when filing a records request.

Dash camera footage that relates to a non-criminal incident, however, is subject to OPRA. So, if your mayor was caught on tape after being pulled over for a DWI, that video should be publicly accessible. The criminal investigatory records exemption could not apply.

Sample OPRA request:

  • “Pursuant to OPRA and the common law right of access, please provide all dash camera footage from the incident that occurred on October 1, 2017 wherein Mayor Jones was pulled over for a DWI.”
  • “Pursuant to OPRA and the common law right of access, please provide dash camera footage of the police-involved shooting that occurred last night in Trenton. Please note that the public has a significant interest in reviewing dash cam footage of police-involved shootings.”

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