Court challenges crack open police records

IAN T. SHEARN, CONTRIBUTING WRITER | JUNE 21, 2021

NJ Spotlight News

Attorney General Gurbir Grewal

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If you want to know if any New Jersey judge has been disciplined for ethical misconduct, you can simply go to a judiciary website, type in a name and look it up. Same goes for lawyers in public or private practice who have been punished for professional transgressions. Teachers too.

How about your doctor, plumber or accountant? The state Department of Consumer Affairs also posts a searchable database for final disciplinary action taken against individuals in more than 50 licensed professions.

New Jersey police officers, however, are not licensed and have been immune from such scrutiny — the result of decades of collective-bargaining concessions and political timidity. There is no public database where you can type in a cop’s name and see his or her disciplinary history.

But the state Supreme Court cracked that door open with a decision earlier this month that validated a directive issued last year by Attorney General Gurbir Grewal, which ordered local and county police departments to annually publish — and name names — all “major” disciplinary action for the police.

Disclosure disparity

In the unanimous decision, Chief Justice Stuart Rabner noted this disclosure disparity between police and other professions. Grewal’s directive, he said, simply “implement a practice that is common in other professions. When doctors, lawyers (and) judges … are disciplined for misconduct, their names are made public.”

Police unions argue that officers should be afforded this privacy because publishing their names serves no purpose other than to embarrass them or even encourage retaliation. Transparency advocates argue that because of the broad, life-altering powers assigned to police, they should be subject to a higher degree of scrutiny than less volatile professions.

“The attorney general’s policy changes represents a small, but important step forward in providing transparency,” ACLU-NJ attorney Alexander Shalom wrote in a brief in the Supreme Court case. “Broad distrust of police officers, particularly in the Black community, will not dissipate with requests from law enforcement to ‘trust us.’”

Even with the court ruling, New Jersey still lags behind many states when it comes to police transparency, its progressive reputation notwithstanding. Sen. Loretta Weinberg (D-Bergen) has sponsored a bill to open up all police internal affair files, though its prospects for a vote during this, an election year, appear unlikely. Two related bills have also stalled in the Legislature. One would provide investigative authority to civilian review boards, including subpoena power. The other would eliminate “qualified immunity,” which protects officers from civil suits.

Making progressives ‘cringe’

“One thing that New Jersey has over many states is a long and proud tradition of home rule by small municipalities,” said Matthew Hale, chairman Seton Hall University’s  Department of Political Science and Public Affairs. “Most people in New Jersey trust local government and local police far more than they trust Trenton. Many super-progressive people in New Jersey reflexively cringe when the state says they want to do something to help out localities.”

Home rule’s endurance notwithstanding, the Supreme Court ruling shows just how swiftly and dramatically public sentiment, politics and policy can shift. Last year, Grewal was firmly in the police-privacy camp, and he said so in a court filing (Libertarians v. NJ State Police). In that case, he explained his opposition to releasing the identity of a disciplined state trooper under the state Open Public Records Act (OPRA):

“It has been suggested that the only way to ensure public trust in IA (Internal Affairs) issues is to provide the public with access to IA files,” Grewal wrote. “The integrity and accountability of the IA process is ensured through robust oversight and reporting, not disclosure of the identities of all law-enforcement officers subject to internal discipline.”

In the same statement, however, he did concede that “a police department’s internal disciplinary process, typically administered through the police force’s ‘IA’ unit,” is the “principal mechanism for officer accountability.”

In other words, his opponents argued, cops investigating cops, with little outside oversight or disclosure.

Naming names would only “expose those involved to unwarranted attention,” and possibly corrupt internal investigations, Grewal asserted. ”Public condemnation under OPRA is not the remedy for misconduct.”

The George Floyd factor

Just nine days after that filing, George Floyd was killed by Minneapolis police. That ignited national public protests. Grewal immediately reversed course.

“After George Floyd was murdered, the AG quickly gave us the name, paid us to dismiss the case and released the directives (June 9) that were upheld by the Supreme Court,” said CJ Griffin, a prominent New Jersey First Amendment attorney, who represented the plaintiffs in the case, which was cited by Rabner in justifying the court decision.

Shortly after that, on July 16, Grewal explained his epiphany when he appeared before the state Senate Law and Public Safety Commission.

“There’s one area where New Jersey lags behind the pack. We are one of a shrinking number of states where police disciplinary records remain shrouded in secrecy, virtually never seeing the light of day,” he testified. “In recent months, I have come to recognize that our policy isn’t just bad for public trust, it’s bad for public safety. And it’s time for our policy to change.”

Grewal also announced during his testimony, he would be reversing his position on another court case in which the Asbury Park Press was seeking the internal affairs file of former Neptune Township Police Sgt. Philip Seidle, who shot and killed his wife in 2015.

“As part of my ongoing commitment to strengthening the culture of transparency and accountability in law enforcement, I directed the release today of Philip Seidle’s internal affairs file,” Grewal said. “I hope that these disclosures, which build on the information and records already in the public domain, will shine further light on this matter and inform the debate over what, if any, changes are necessary to avoid such tragic incidents in the future.”

Seidle’s internal affairs file is voluminous and includes multiple instances of domestic violence, as well as information implicating disputes with other officers, disciplinary actions, other investigations and numerous, competing privacy interests.

When the 800 pages of his file were released, the public learned that in 2012 Seidle had received a two-day suspension and confiscation of his service weapon, which was eventually returned to him. Seidle used that weapon to gun down his wife on a crowded street in Asbury Park in 2015 in front of his 7-year-old daughter. After Seidle pleaded guilty to aggravated manslaughter, and sentenced to a 30-year prison term, the Asbury Park Press sued for his personnel records.

Ignoring warning signs

Seidle’s file shows how police officials ignored clear warning signs contained within a dozen domestic violence incidents involving his wife, before and after their divorce.

“His history of numerous violations of departmental rules and regulations and prior domestic violence incidents are clear indications that he has little or no regard for his responsibility as a member and supervisor of this department,” one fellow officer wrote in a report about a March 2014 incident.

“It is evident from his past history of family issues and disciplinary incidents that there is reason for concern,” a supervisor added.

Seidle was cleared to return to work on Aug. 18, when his service revolver was returned to him. A year later, he killed his ex-wife.

Starting in August, county and local police departments must publish the names of all officers who have been subject to major disciplinary action. It will bring the police into line with judges, lawyers, doctors and scores of licensed professionals.

New Jersey — along with California, Hawaii, Massachusetts and Rhode Island — is one of only five states that does not license police officers. Last June, Grewal announced his intention to leave that small club. He cited the case of a white Woodlynn police officer charged with simple assault — pepper spraying a Black teen without provocation — as “a strong example of why we need a statewide licensing program for police officers.” The officer, Ryan Dubiel, jumped from job to job, working for nine police departments over a decade. Along the way, he amassed multiple disciplinary infractions and one firing.

“Just as we license doctors, nurses, and lawyers, we must ensure that all officers meet baseline standards of professionalism, and that officers who fail to meet those standards cannot be passed from one police department to another while posing a threat to the public and other officers,”

Grewal said. In a plea deal, Dubiel resigned, was sentenced to one year of probation and prohibited from holding any public-office job in New Jersey.

But comparing disclosure protections afforded police to other public-sector employees does not address the fundamental problem, attorney Griffin said in an interview with NJ Spotlight News.

“Most public employees enjoy secrecy over their personnel records, so I am not sure if the police stand out among public employees other than that there’s so much more of it because complaints come from the public too.”

Even more critical, she says, is “that they investigate themselves,” where discipline is monitored by governing boards for public-sector employees and regulated professionals. “Police IA units conduct the investigations and it’s all a secret; often the governing body knows nothing about it,” she said. “They also have unique powers to arrest, carry weapons and use deadly force, which requires more transparency. That’s different than in the situation of teachers and other public employees.”

The better comparison to be made, according to Alexi Karteron, director of the Rutgers Constitutional Rights Clinic, is with other states. “Police here are just so very good at protecting themselves in a variety of ways. Obviously, they have a lot of influence historically in the Legislature or other places in creating their own protection,” she said. “We need to go in the direction of the legislation that’s pending …that would put New Jersey more in line with other states.”

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published this page in News and Politics 2021-06-21 03:46:53 -0700