New Jersey Attorney General Gurbir Grewal on Monday said police dashcam and body cam videos documenting use of deadly force should be subject to public release once the corresponding initial investigation is complete.
According to a release, the directive is being issued in the interests of “transparency in police community relations,” though it will not go into effect until it has undergone an analysis for compliance with attorney ethics rules.
In a statement to the Law Journal, Grewal said: “One of my top priorities is strengthening police-community relations, and since coming on board five weeks ago, I have been pushing to update a range of policies that promote both public safety and public accountability.”
Grewal’s announcement came on the eve of the Supreme Court’s scheduled oral arguments in Paff v. Ocean County Prosecutor’s Office, where the applicability of the state Open Public Records Act to dashcam footage is at issue.
Grewal’s directive says videos should be released once the initial investigation of a deadly force incident is completed, which is typically done within 20 days.
The directive seeks to provide guidance to prosecutors and law enforcement agencies in light of the 2017 decision in North Jersey Media Group v. Lyndhurst, which made such footage potentially available to the public on formal request.
But because the Lyndhurst decision and the directive both implicate Rule of Professional Conduct 3.6, which generally prohibits public release of evidence in a pending criminal matter, the Attorney General’s Office is seeking clarification from the court’s Advisory Committee on Professional Ethics on whether releasing lethal-force videos under the directive would comply with the rule.
Under Grewal’s directive, there would be a presumption of the release where an officer uses deadly force resulting in death or serious bodily injury.
In cases where it takes more than 20 days to substantially complete the initial use-of-force investigation, a county prosecutor or the Attorney General’s Office could decline to release the video footage, but would have to document the reasons that additional time is necessary and estimate when substantial completion will be achieved.
Before releasing a deadly force recording, prosecutors would be directed to consult with persons appearing in the video footage or, in the case of decedents, their families.
In the Paff case, a divided appeals court ruled in a 2016 published decision that dashcam recordings are documents that must be released under the Open Public Records Act. The majority said the recordings should not be shielded under the privilege for ongoing criminal investigations, affirming a decision by Ocean County Superior Court Judge Vincent Grasso to make public the Barnegat Police Department dashcam recording at the request of open-government activist John Paff. The dissent said such recordings should be considered records of criminal investigations. Because of the split ruling, the prosecutor’s office had an automatic right to appeal. The ruling involves an incident that occurred on Jan. 29, 2014, when a Tuckerton police officer attempted to stop a driver, leading to a chase that eventually ended in Barnegat. The driver was charged with eluding, but the Tuckerton officer, in an incident that was captured on the Barnegat cameras, also was charged with assault and misuse of a police dog.
Reached Monday, Paff’s attorney, Montclair solo Richard Gutman, said Grewal’s directive does not go far enough. Under the court’s ruling in Lyndhurst, deadly force videos are already presumed public records subject to release. Gutman said any arrest that is recorded should be subject to release.
“In our case, the person was just bitten by a police dog,” he said.
Grewal, in his statement to the Law Journal, said he didn’t believe his directive would have an impact on Tuesday’s oral arguments.
“I will be making additional changes in the weeks and months to come,” he said. “We do not believe that the upcoming argument is directly impacted by the policy announced today, but the fact that the Supreme Court is hearing a case on a related subject simply highlights how important this issue is for the people of New Jersey.”
The Attorney General’s Office declined to respond to Gutman’s comments about the scope of the directive.
How the court rules in Paff could also impact another case in which a plaintiff is seeking dashcam footage: Ganzweig v. Township of Lakewood, which the Supreme Court took up earlier this year. There, a divided appeals court said a police dashcam could be considered a public record, available for release. The majority largely affirmed a decision from October 2016 by Grasso, who ruled the footage does not fall within the list of exemptions in the Open Public Records Act that allows government officials to keep certain records from public view. The plaintiff is seeking footage taken from the dashcam of a Lakewood police officer who was charged with official misconduct following a traffic stop, from which he charged a driver and passenger with drug-related offenses that were later dropped.