North Jersey Media Group v. Twp. of Lyndhurst, 229 N.J. 541 (2017) and Paff v. Ocean Cnty. Prosecutor's Office, 235 N.J. 1 (2018)
The Lyndhurst case began when reporters of The Record sought to obtain police use of force reports (UFRs) and other records relating to a multicar police chase and fatal shooting of Kashad Ashford in 2014. The Open Public Records Act (OPRA) request was denied and the New Jersey Attorney General’s Office took a firm stance that all records relating to police-involved shootings and the names of officers who shoot suspects are strictly confidential. Although the trial court ruled that the records and information must be released, the Appellate Division reversed the decision and, in doing so, shut down access to nearly all police records.
“The Attorney General’s Use of Force policy requires police officers to complete UFRs any time they use any level of force against a subject, whether it is striking a wrist, using a taser, or using deadly force. The Attorney General argued those reports could not be accessed by the public because there was no ‘law’ that required them to be made, maintained, or kept on file and thus one of OPRA’s criminal investigatory records exemptions applied. We argued that the Attorney General’s Use of Force Policy itself was a law that required the creation of the reports and negated the exemption.” CJ Griffin, Pashman Stein Walder Hayden
After losing in the Appellate Division, our attorneys took the case all the way to the New Jersey Supreme Court and obtained a landmark ruling that UFRs and the names of officers who use force against citizens are accessible to the public through OPRA. The New Jersey Supreme Court agreed that the attorney general’s Use of Force Policy had the “force of law” and because the policy required that the UFRs be made, they were not exempt from access.
The court’s ruling in Lyndhurst was praised by the New York Times.
“This was a big win for the public’s right to know,” said Pashman Stein Walder Hayden attorney Sam Samaro. “We argued that nondisclosure of information relating to police-involved shootings undermines confidence in law enforcement. It was gratifying to see that the court agreed.”
The landmark win in the Lyndhurst case made UFRs widely available, giving the media and public interest organizations access to the data to quantify and analyze trends regarding police use of force.
“As a direct result of the Lyndhurst decision, we are able to identify troubling patterns concerning racial disparities in policing, including the fact police officers use force against Black and Latino individuals more often than they do against white individuals. This data allows us to more effectively advocate for change.” Richard Rivera, co-chair of the Latino Leadership Alliance of New Jersey Civil Rights Protection Project
In Lyndhurst, the court also granted access to dashcam footage, but access was granted only under the common-law right of access because neither party pointed to a “law” that required dashcam footage to be made, maintained, or kept on file. The court left open the question as to whether a local directive of the chief of police constitutes a law that would satisfy that standard and defeat OPRA’s criminal investigatory records exemption.
The New Jersey Supreme Court tackled that question next in Paff v. Ocean Cnty. Prosecutor’s Office, 235 N.J. 1 (2018). There, the requestor sought access to a dashcam video that depicted a 2014 incident in which a Tuckerton police officer released a police canine on a woman during an arrest. The agency denied the request and argued that there was no law that required the dashcam video to be made or maintained.
The court considered whether a local directive by a municipality’s chief of police could also satisfy the “required by law” standard, just as an attorney general directive does. Thus, the Paff case became a new opportunity for transparency advocates to convince the court that dashcam videos are accessible under OPRA.
On a pro bono basis, Pashman Stein filed an amicus curiae brief and argued before the New Jersey Supreme Court on behalf of the following organizations: Latino Leadership Alliance of New Jersey, Garden State Equality, People’s Organization for Progress, and the New Jersey Chapter of the Society for Professional Journalists. We stressed the importance of making dashcam footage accessible as a matter of right under OPRA.
Unfortunately, a split court (4-3) held that local directives are not laws and thus OPRA’s criminal investigatory records exemption applies to all dashcams that relate to criminal investigations since there is no other law or attorney general directive that requires them to be made. Although the New Jersey Supreme Court ruled contrary to the position of full transparency, it is obvious from the oral argument that Pashman Stein’s role in this case had a significant impact and likely contributed to three justices dissenting.
Pashman Stein Walder Hayden collected a legal fee for North Jersey Media Group v. Twp. of Lyndhurst.
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Police shooting videos should be public, N.J. attorney general says | NJ.com | January 30, 2019
We Have Police Videos. Now What? | The New York Times | July 14, 2017