In its appeal before a three-judge panel, Newark argued Judge Donald Kessler got it wrong 14 months ago when he ruled the city’s Civilian Complaint Review Board would infringe on the day-to-day duties of the police chief or public safety director. One judge challenged the city’s attorney.
“Would you say that disciplining a particular police officer for some transgression large or small, would that be part of the day-to-day operations of the police department?” asked New Jersey Superior Court judge Carmen Messano.
“Well, your honor, I would say that’s twofold. Yes, it’s the day-to-day operations of the police department, but specifically in our case, there was a problem with that being done,” replied Avion Benjamin, first assistant corporation counsel for the city of Newark.
Five years ago the Justice Department found some Newark police officers were trampling on the constitutional rights of residents and that the Internal Affairs Division did little, if anything, about it for years. Newark then created what advocates call the strongest CCRB law in the nation, giving the board the power to investigate complaints, to recommend discipline, and to have the public safety director come and explain in public any disagreement over the facts of the case.
One judge suggested the process could bog down in politics. The lawyer representing the ACLU and Newark Communities for Accountable Policing responded.
“The impetus behind this was clearly that what was going on with regard to decision making was a black box, Not only it wasn’t working, but it was a black box that the citizenry had no idea why these decisions were being made. And if they thought that there was a case, for example, that was in the media in which it seemed like discipline should have been imposed, they were very confused that that was no discipline, or if the discipline fell below what the public expected,” said Avram Frey, an attorney for the city of Newark.
Matthew Areman, the attorney for the Fraternal Order of Police said what the city and its advocates are trying to do is troubling.
“Under this ordinance, the police chief is expressly carved out of process,” said Areman. “There is not even a need for an internal affairs investigation because it is meaningless. The internal affairs investigation, if there’s a parallel CCRB investigation, carries no weight whatsoever.”
This month, the state attorney general said Newark’s CCRB law impermissibly interferes with the statutory duties of Newark’s police chief.
Newark Mayor Ras Baraka responded that it’s time for the attorney general’s guidelines to be updated to permit the kind of civilian investigation of police misconduct that takes place in New York and other cities.
Currently, New York’s Civilian Complaint Review Board lawyers are prosecuting the officer involved in the death of Eric Garner. It’s a disciplinary trial. The difference between New York City’s and Newark’s CCRBs? Newark’s lawyers say New York state’s attorney general does not have guidelines that govern the makeup or function of a CCRB.
“Newark is using its local powers to bring change to a police department that is long overdue,” said Benjamin.
The appellate court typically takes three to six months to rule on cases after hearing oral arguments.
To watch the entire oral argument before the Appellate Division, watch here.