The LGBTQ community has a long history of troublesome encounters with police. The Stonewall riots in 1969 that led to the birth of the modern LGBTQ rights movement was a protest of police harassment and brutality. In recent times, there have been many cases of trans individuals, especially Black and Latinx trans individuals, being targeted and mistreated by police, dying in police custody, or being murdered or otherwise harmed without appropriate police investigation and response.
One way that cities like Newark have tried to address police misconduct is the creation of Civilian Complaint Review Boards (CCRB) to investigate police misconduct cases, make recommendations about discipline of individual officers, and recommend policy changes to the way police conduct and discipline are handled.
In 2016, as part of a consent decree with the federal Department of Justice, Newark’s city council passed an ordinance creating a CCRB to handle complaints against individual police and make policy recommendations for reforming police conduct and discipline. The police union in Newark challenged the ordinance in court, claiming the entire ordinance is illegal under state law. The New Jersey Supreme Court decided on August 19, 2020, that some aspects of the ordinance are valid and can continue while other aspects violate state law as currently written and cannot continue.
The NJ Supreme Court ruled that New Jersey municipalities do have the authority to create Civilian Complaint Review Boards, and that the CCRB’s may do the following: receive complaints against individual police officers and investigate those complaints if there is no police department Internal Affairs investigation into the same complaint; make recommendations to the police department about discipline of the officers involved in such cases; conduct overview of police conduct and policies in general, and make recommendations to the police department and city council regarding the best new policies to adopt regarding police conduct and discipline.
The Court ruled that under current state law municipal CCRB’s in New Jersey cannot conduct investigations into a complaint about police misconduct if the Internal Affairs unit of the police department is already investigating the same complaint. A CCRB also cannot require the police department to adopt its findings of fact, and cannot use subpoena power to force the police department or other parties to testify or produce evidence (but Newark’s ordinance separately requires the police department to cooperate with the CCRB, which means the CCRB can still get evidence and testimony from the police department itself, and the city council does have subpoena power that it can choose to use to acquire other evidence or testimony on behalf of the CCRB when the CCRB is reviewing police procedures). In order for municipalities to be able to give CRBs the powers that the NJ Supreme Court struck down, the state legislature needs to amend certain state statutes.
What does this decision mean for LGBTQ individuals who are harmed by police in a NJ municipality that has a CCRB? Individuals will now need to choose whether to file a complaint with the police department or with the CCRB, as it is no longer possible to have both investigations occur simultaneously. Argentino Fiore Law & Advocacy, LLC can help you make this decision, depending on your own circumstances and the layout of the CCRB, if one exists, in the municipality in which the police misconduct occurred.
On the policy level, it means that the LGBTQ community can and should engage with CCRB’s about policy recommendations for appropriate and just police treatment of our community. If you are working on this in your community, or would like to, Argentino Fiore Law & Advocacy, LLC can provide guidance and assistance.