A state appeals court heard more than four hours of arguments on whether the state attorney general has the power to reveal the names of officers disciplined for misconduct, in a case that pits the state’s top law enforcement official against its most powerful police unions.
A total of 14 attorneys argued virtually Wednesday before the three-judge panel, presenting contrasting views of Attorney General Gurbir S. Grewal’s directive mandating that law enforcement agencies start identifying officers who have been fired, demoted or suspended for more than five days and a separate edict releasing the names of all State Police troopers who have faced that level of discipline over the last 20 years.
The case highlights the debates over police violence and transparency that have raged in recent months amid widespread protests over the high-profile deaths of Black people in interactions with law enforcement.
Jeremy Feigenbaum, a counsel to the attorney general, argued that during a “once-in-a-generation reckoning over transparency and accountability in policing,” Grewal’s directives would increase the public’s trust in law enforcement and in the internal affairs system that investigates allegations of police misconduct.
He noted that all the officers who would be named faced substantiated allegations that required “major discipline.”
“We’re trying to really open up the books and let people see how the IA (internal affairs) process works and how the IA process doesn’t work,” he said.
A group of attorneys representing the state’s largest police unions argued the directives exceeded the attorney general’s authority, violated promises of confidentiality previously offered to officers and amounted to a “modern-day public stockade,” a “public stoning” and a “scarlet letter” that would embarrass and discredit the named officers.
Kevin Jarvis, an attorney representing the New Jersey Superior Officers Law Enforcement Association, said the attorney general needed a “surgical approach” when balancing the need for public information with an officer’s privacy rights, likening it to “a scalpel as opposed to a machete.”
“If we’re just going to release everything, that’s not a scalpel, that’s almost by definition the machete of we’re just going to release everything and we’ll let the chips fall where they may without necessarily looking at the context of what the information is that’s being released and whether or not it’s really relevant toward questions that these directives were intended to address,” Jarvis said.
Jarvis said some of the officers whose names would be released under the order committed offenses as minor as uniform infractions or falling asleep on the job.
One officer who would be named died in the 9/11 attacks and his widow fears his name will be besmirched. In another case, a victim of a domestic violence incident committed by an officer fears being identified, the unions’ attorney said.
Grewal announced a plan in June, at the height of nationwide protests following George Floyd’s death while in the custody of the Minneapolis police, to begin naming officers accused of misconduct by July. Previously, departments released an annual list of actions that merited major discipline, but did not identify the officers involved.
The decision came amid an intense outcry over what protesters called an opaque and broken system for investigating officer misconduct and following extensive reporting by the Asbury Park Press and other news outlets identifying police abuses in New Jersey.
Police reform advocates cheered the move and pushed the attorney general to go further, but the directives drew a swift backlash from police unions.
The State Troopers Fraternal Association of New Jersey, which represents about 1,500 state police troopers and detectives, filed suit June 25 to block the measure. Several other police unions and law enforcement organizations signed on in support.
An appeals court halted the disclosures in July until judges could rule in the case.
Feigenbaum, arguing for the attorney general, said the offenses committed by the officers include dangerous behavior with firearms, drunken driving, bar fights, domestic violence and sexual harassment or abuse.
“All sorts of things that show early warning signs and other signs of potential recklessness or dangerousness with a particular officer that the public has a right to know and a need to know has been fully remedied,” he said.
Nearly 500 State Police officers would be named under the state’s plan to identify officer misconduct in the agency dating back 20 years, which is about 11% of all officers working for the agency over that span, according to court filings.
The disclosures would not include medical information or details about a victim’s relationship to a disciplined officer, Feigenbaum said.
He said identifying the officers would prevent “agency-hopping” where officers who commit misconduct while working for one department use their anonymity to join other law enforcement agencies.
Attorneys for the unions contended the attorney general could not unilaterally decide to change policy on internal affairs records.
Paul Kleinbaum, an attorney representing the New Jersey State Policemen’s Benevolent Association, suggested a move of that scale should be passed through the state Legislature.
“In this case, the attorney general has gone too far,” he said. “He has usurped the role of the Legislature when implementing a directive, which even he acknowledges represents a sea change in how the attorney general’s office has treated the confidentially of personnel records.”
Kleinbaum noted that the attorney general has recently fought attempts by news organizations and public records advocates to obtain the identity of a state trooper who was fired for having “questionable associations and engaging in racially offensive behavior.”
The attorneys also argued that Grewal’s directives would break promises that law enforcement officials made to officers facing discipline that their identities would never be released.
They cited statements from State Police officials who said they personally assured officers during internal negotiations that if they agreed to admit wrongdoing, their identities would remain confidential. Many officers decided to settle misconduct claims rather than face a public hearing, the lawyers said.
The judges — Mitchel Ostrer, Allison Accurso and Francis Vernoia — sharply questioned attorneys on both sides. Oster challenged Feigenbaum on the issue of confidentiality, saying officers “signed on the dotted line” to admit misconduct believing their name would never reach the public.
They appeared skeptical of the union’s argument that the state’s public records law, which keeps personnel and pension records sealed, prevents the attorney general from deciding on his own to release records.
Alexander Shalom, senior supervising attorney for the American Civil Liberties Union of New Jersey, who argued on behalf of the ACLU and 23 other advocacy organizations that have filed a court brief in support of Grewal’s actions, said many in the state don’t feel that the internal affairs process “will ever provide fairness.”
Shalom said other professions including attorneys, judges and plumbers already identify members who commit misconduct.
“Do we really trust the public so little as to think they are going to tar and feather this person because he didn’t pull up his socks or she didn’t wear the appropriate uniform?” he said. “We can trust the public to separate the wheat from the chaff to recognize that drunk driving, domestic violence, racism, inappropriate handling of evidence, planting drugs on people, that those are a big deal, and wearing your uniform wrong might not be.”
“We trust the public to make these decision with respect to plumbers, with respect to judges and with respect to lawyers,” he added. “We need it all the more with respect to law enforcement officers.”
Andrew Goudsward: [email protected]; @agoudsward on Twitter.