Las Vegas POA

Release Of Disciplinary Records Does Not Violate Constitution

Written on 03/03/2021
Will Aitchison

Responding to the police reform movement, New Jersey Attorney General Gurbir Grewal announced in June that he would end New Jersey’s decades-long practice of shielding the identities of law enforcement officers receiving major discipline for misconduct. Believing he could best improve the public’s trust in state and local police by instilling greater accountability in the processes that govern officer misconduct, the Attorney General issued Law Enforcement Directive Numbers 2020-5 and 2020-6. The Directives amended the statewide rules for internal affairs investigations, known as the Internal Affairs Policy and Procedures (IAPP), applicable to every law enforcement agency in New Jersey.

Directive 2020-5 amended the IAPP to require every law enforcement agency in the State to publish a synopsis of all complaints in which an officer received final discipline of termination, demotion, or a suspension of more than five days, including the name of the officer, a summary of the misconduct, and the sanction imposed. Initial reports, covering all discipline imposed during this calendar year, are due by December 31, 2020. Subsequent reports must be published at least annually thereafter. The Directive further permits, but does not require, county and municipal agencies to release similar information about earlier incidents of officer misconduct resulting in the same sanctions.

Directive 2020-6 orders all law enforcement agencies within the Department of Law and Public Safety, which the Attorney General supervises, the Division of State Police, the Division of Criminal Justice, and the Juvenile Justice Commission, to publish the same information required by Directive 2020-5 no later than July 15, 2020.

A group of several organizations filed a court challenge to the Directives. A key issue in the challenge was whether the Directives violated the equal protection or due process rights of affected officers or otherwise impaired the constitutional rights of officers.

A state court of appeals upheld the constitutionality of the Directives. The Court held that “substantive due process doctrine does not protect an individual from all government action that might infringe her liberty in violation of a law. Instead, it is reserved for the most egregious governmental abuses against liberty or property rights, abuses that shock the conscience or otherwise offend judicial notions of fairness and that are offensive to human dignity.

“With the exception of certain intrusions on an individual’s privacy and bodily integrity, the collective conscience of the United States Supreme Court is not easily shocked. We are thus confident the Attorney General’s release of a summary of the findings that led to a law enforcement officer’s termination, demotion, or suspension for more than five days does not rise to the level of a substantive due process violation implicating petitioners’ reputation or privacy rights.

“The claims that the Directives violate the officers’ substantive due process right to privacy under our State Constitution fare no better. Simply stated, appellants cannot show they have a constitutionally protected reasonable expectation of privacy in their disciplinary records that is not outweighed by the government’s interest in public disclosure, in light of prior case law establishing their diminished expectation of privacy in those records and the clear statement in every IAPP issued since 2000 that the Attorney General could order the release of the records.

“As to appellants’ procedural due process argument, while we are mindful that our State Constitution extends due process protection to personal reputation. We have held this does not mean that a liberty interest is implicated anytime a governmental agency transmits information that may impugn a person’s reputation. We find no general right to a hearing here, especially as all affected officers have already received all the process they were due for their disciplinary charges, including representation by their union. We do not find any need for notice beyond that necessary to permit affected officers time to bring an as-applied challenge before the initial release of the names of officers who incurred discipline in or after 2000 but before issuance of the Directives.”

In re Attorney General Law Enforcement Directive No. 2020-5 and 2020-6, 465 N.J. Super. 111 (N.J. Super. Ct. App. Div. 2020).

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