Newark has petitioned the U.S. Supreme to review last summer’s decision by the New Jersey State Supreme Court that refused to grant subpoena powers to Newark’s Civilian Complaint Review Board (CCRB).
The City filed a Writ of Certiorari with the U.S. Supreme Court on Jan. 19, asking that the court review the case history in which the New Jersey Supreme Court overturned an appellate decision supporting a Newark City Ordinance that gave subpoena power to the City’s CCRB and access to Internal Affairs investigative documents.
“During every step of this journey, I promised we will fight to win this case until all judicial and legislative options are exhausted,” Mayor Ras J. Baraka said. “In the long, tortured history of police brutality against Black Americans, we have learned the only possible guarantee of full police transparency and accountability lies in the hands of the people they are sworn to protect.
“We must have muscular CCRBs with real power to investigate, hear testimony and review Internal Affairs documents to assure equal justice under the law,” Baraka added. “After the events of last year, including the wanton deaths of George Floyd and Breonna Taylor, we must have CCRBs with the legal authority to probe criminal police acts.”
On March 17, 2016, the Newark Municipal Council passed an ordinance that authorizes the CCRB to conduct its own investigations of civilian complaints of police misconduct, as well as review the Newark Police Division’s Internal Affairs Unit’s investigations of police misconduct, and make discipline recommendations to the City Public Safety Director.
The Fraternal Order of Police sued to invalidate the ordinance, saying it was in violation of the New Jersey Attorney General guidelines. New Jersey’s Appellate Division reversed that decision and the FOP appealed to the New Jersey Supreme Court, which ruled in the FOP’s favor.
The City’s challenge to the Supreme Court suggests the New Jersey Supreme Court decision failed to uphold the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. The clause says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The City’s appeal to the U.S. Supreme Court, filed by Raymond M. Brown and Rachel E. Simon of the law firm Pashman, Stein, Walder & Hayden of Hackensack, centers on three questions.
1. Does a state supreme court violate the Equal Protection Clause by reading state statutes to preclude its largest city from protecting Black citizens from institutionalized, racially-disparate, police conduct specifically found unconstitutional by the Department of Justice?
2. Does a state supreme court violate the Necessary and Proper Clause by interpreting state statutes to preclude municipal police review boards from holding subpoena power or accessing certain internal affairs records, when the existing process has been found unconstitutional by the Department of Justice?
3. Does a state supreme court violate the Constitutional Separation of Powers doctrine by holding that the state executive’s police oversight regulations preempt the state legislature’s delegation of police oversight authority to municipalities?
“This is simply about equal treatment and equal protection under the law,” said Kenyatta Stewart, Newark’s Corporation Counsel. “We have appealed to the U.S. Supreme Court because this is about federal law and rights guaranteed by the United States Constitution. We just saw during the Capitol insurrection how white protestors were treated differently by police than the Black Lives Matter protestors this summer.”