In One State, a Battle Over Publicly Naming Disciplined Police Officers

The names of police officers who have faced major disciplinary action may soon be made public in New Jersey, making it the latest state to increase transparency around police misconduct proceedings. 

Following a challenge to the state attorney general’s new policy brought by police unions, a state appeals court on Friday ruled that departments can be required to release the names of disciplined officers. Previously, police departments released an annual list of major disciplinary actions but never revealed officers’ names.

New Jersey Attorney General Gurbir Grewal in June issued two directives requiring the disclosure of police disciplinary actions since 2000 and making regular reporting requirements going forward. Only cases where officers have been subjected to major discipline are required to be made public, such as those where an officer was fired, demoted, or suspended for more than five days at one time. 

Offenses that could result in major discipline include dangerous misuse of a firearm, drunk driving, sexual harassment and domestic abuse. The directives require each law enforcement agency in the state to publish an annual report including all cases that meet this threshold, including the names of the officers involved.

Police unions sued the attorney general’s office over the policy, saying that Grewal lacked the authority to require the disclosures. The appeals court ruling disagreed, writing that while the three-judge panel isn’t evaluating whether it is the right choice, they conclude the state attorney general was within “his authority to implement the policy choice he has made.”

In a statement, Grewal said that the “decision marks a new day for police transparency and accountability in New Jersey.”

“When officers fall short, we need to take those infractions seriously and we need to be candid with the public,” he said. “It is time to stop protecting the few to the detriment of the many, and it is time to strengthen the relationship between law enforcement officers and the communities they serve."

The court granted a stay until Wednesday before the AG can take action in order to give the police unions time to appeal. Wayne Blanchard, president of the State Troopers Fraternal Association, said that his organization filed a request for an extended stay with the state Supreme Court, but the high court has yet to rule on it. 

Blanchard questioned why names from 20 years ago should be released, saying that retroactively publishing names served “no legitimate purpose” and that the process might be traumatic for officers who were disciplined for conduct related to problems like substance abuse, which they might since have overcome. “We have a very good system for catching misconduct and we promote accountability,” he said. “In no way, shape, or form are we in the business of protecting bad apples.”

If New Jersey does soon require the names of disciplined officers to be publicly disclosed, they will join more than 20 other states that make police misconduct records fully or partially open to the public. 

But compared to many other states, New Jersey’s level of public disclosure would still be fairly minimal. The appellate court noted in its decision that what the attorney general had proposed was "quite limited, and far less than what some of our neighboring states have done in response to similar concerns." A dozen states, including Washington, Florida, and Ohio, make most police internal affairs records available, excluding cases where complaints are unsubstantiated or still in the process of investigation. An additional 15 states, including Illinois, Texas, and Massachusetts, require some disclosure of records, but only when the discipline is severe.

Since the police killing of George Floyd last May and subsequent calls for police and criminal justice system reform, many civil rights and government transparency organizations have called for an end to hidden disciplinary records, which they say erode public trust and opens the door to officers with a history of misconduct finding jobs in new departments.

Police unions have argued against changes to records disclosure laws when they were proposed in several states this year. In New Jersey, union representatives argued that releasing the names of officers could make them targets for harassment. 

Several organizations, including the ACLU of New Jersey, the NAACP of New Jersey, and Libertarians for Transparent Government filed an amicus brief in support of the attorney general. In their brief, they wrote that law enforcement had framed the issue as a disagreement between the unions and the attorney general, but “ignored a critical third party implicated by the dispute: the public.” They also argued that police concerns that a more transparent process would lead to harassment of disciplined officers were unfounded. 

“More than a dozen other states already allow for public access to police disciplinary records. There exists no evidence that police officers in those states are harassed or unable to safeguard legitimately private information,” the groups wrote.

Jeanne LoCicero, the legal director of the New Jersey ACLU, said in a statement after the court ruling that there is “no legitimate reason to limit transparency” with police disciplinary records. “New Jerseyans can easily obtain disciplinary information about dozens of regulated professions, including lawyers, manicurists, and plumbers,” she said. “But only with a court order can information about police misconduct see the light of day—and, especially given the extraordinary powers police officers hold, secrecy surrounding their misconduct is unacceptable.”

But LoCicero noted that the state Legislature will need to act if the public is to get access to more police records in the state. The ACLU and other civil rights organizations are supporting a police transparency bill that has been stalled in a state Senate committee since June. The bill would officially make law enforcement disciplinary records, including complaints, allegations, disciplinary meeting transcripts, body camera footage, charges, and the names of the officers involved subject to the state’s public records law. The bill would also require disciplinary records to be maintained for at least 20 years from the date they’re filed.

The ruling “underscores the urgent need for permanent legislation that provides the public with all the information needed to hold police departments accountable for misconduct,” LoCicero said.