A3650

An Act concerning certain investigations and supplementing Title 40A of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in P.L. , c. (C. ) (pending before the Legislature as this bill):

“Director” means the Director of the Office of Public Integrity and Accountability.

“Independent investigator” means the law enforcement entity tasked with primary responsibility for investigating a law enforcement incident and, if appropriate, determining whether to present a proposed indictment regarding the principal for the principal’s role in a law enforcement incident.

“Independent supervisory reviewer” means the official tasked with reviewing the factual findings, legal analysis, and charging recommendations prepared by the independent investigator at the conclusion of the investigation.

“Law enforcement incident” means any of the following incidents:

a. use of force by a law enforcement officer resulting in death or serious bodily injury;

b. use of deadly force, including the discharge of a firearm, by a law enforcement officer regardless of whether the force resulted in injury;

c the death of any civilian during an encounter with a law enforcement officer; and

d. the death of any civilian while in the custody of law enforcement.

“Law enforcement incident footage” means recordings captured by a law enforcement officer’s body-worn camera, a camera mounted in an officer’s patrol car, a camera embedded in an officer’s conductive energy device, a surveillance or security camera, or a camera or smartphone belonging to a witness.

“Office of Public Integrity and Accountability (OPIA)” means the OPIA in the Department of Law and Public Safety established to conduct sensitive investigations, including those involving allegations of misconduct by law enforcement officers.

“Principal of the investigation” means any State, county, or municipal law enforcement officer or other law enforcement officer regardless of whether the officer was acting in the performance of the officer’s official duties or in the officer’s personal capacity who is subject to investigation for the officer’s role in a law enforcement incident.

2. a. When a law enforcement incident occurs, every State, county, and municipal law enforcement agency shall notify the county prosecutor’s office of the county in which the incident occurred, who shall immediately notify the director or a designee.

b. Immediately following a law enforcement incident, emergency first responders shall address any imminent threats to public safety and minimize the loss of life without undermining the integrity of a subsequent investigation of the law enforcement incident. Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be construed to preclude any law enforcement officer or emergency medical professional from responding to the scene of the law enforcement incident for the following purposes:

(1) providing or facilitating prompt medical assistance to any injured person;

(2) responding to any ongoing threat to public safety;

(3) preserving evidence and securing the scene, including by controlling traffic or preventing members of the public from interfering with the activities of first responders;

(4) identifying eyewitnesses and requesting them to remain near the scene until appropriate investigators can interview them; and

(5) participating in the pursuit or be-on-the-lookout search for any person suspected of committing a crime related to the law enforcement incident, including any investigative stops in furtherance of the pursuit.

3. a. The director shall, as soon as possible after learning of the law enforcement incident, determine which State or county law enforcement agency shall serve as the independent investigator, taking into account the provisions set forth in this section, unless the selected law enforcement agency is unable to do so because of an actual, potential, or perceived conflict of interest. In this case, the director shall mitigate the conflict or identify another agency to serve as independent investigator.

b. The independent investigator shall not be the law enforcement agency that employs the principal of the investigation, possess any other actual, potential, or perceived conflict of interest pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill), or rely on the investigative assistance of any person who works for the same law enforcement agency as the principal, except as provided in section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill):

c. The OPIA shall serve as the default independent investigator in the following circumstances, subject to a conflict check pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill):

(1) the use of force by a law enforcement officer resulting in death or serious bodily injury likely to result in death;

(2) the death of a civilian during an encounter with a law enforcement officer;

(3) the death of a civilian while in the custody of law enforcement, where the death could plausibly be linked to the actions of a law enforcement officer, whether through the intentional use of force or a reckless indifference to human life;

(4) where the principal of the investigation is a member of the Division of Criminal Justice or the New Jersey Division of State Police; or

(5) any other law enforcement incident where, in the discretion of the director, justice would be served by appointing the OPIA as the independent investigator.

d. The county prosecutor’s office in the county where the law enforcement incident occurred shall serve as the default independent investigator in the following circumstances, subject to a conflict check conducted pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill):

(1) the use of force by a law enforcement officer resulting in serious bodily injury, but unlikely to result in death; or

(2) the use of deadly force by a law enforcement officer acting in the officer’s official capacity, except those resulting in death or likely to result in death.

4. a. Prior to the director appointing a law enforcement agency as the independent investigator, the OPIA shall conduct a comprehensive inquiry to determine whether it has any actual, potential, or perceived conflicts of interest that might undermine public confidence in the impartiality and independence of the investigation and shall promptly report its finding to the director.

b. As part of the conflict review, the agency shall identify whether any of the following circumstances exist:

(1) whether any person who will supervise or participate in the investigation has had any personal or professional interaction with or relationship to the principal that might reasonably call the person’s impartiality into question;

(2) whether the law enforcement agency is prosecuting any case in which the principal is expected to testify on behalf on the State; or

(3) whether, within the past five years, the principal has been assigned to a task force operating under the direct supervision of the law enforcement agency.

c. As part of the conflict review, the director may request from any State, county, or municipal law enforcement agency, and each agency shall provide, any information that the director deems necessary to determine whether any law enforcement agency has a conflict of interest.

d. In order to facilitate the conflict review process, the director may issue standardized Statewide forms and other material for use by law enforcement agencies.

e. If the director becomes aware of an actual, potential, or perceived conflict, the director shall take one or more of the following remedial measures:

(1) appoint the law enforcement agency to serve as the independent investigator, but only on the condition that any person who has a conflict be recused from the investigation;

(2) appoint a different law enforcement agency to serve as the independent investigator; or

(3) require any other action necessary to ensure the impartiality and independence of the investigation.

f. If the director mitigates a conflict by appointing a different law enforcement agency to serve as the independent investigator, the director shall use the following guidelines:

(1) where the OPIA is the default agency, the director shall appoint the Division of Criminal Justice as the independent investigator; and

(2) where a county prosecutor’s office is the default agency, the director shall appoint a different county prosecutor’s office as the independent investigator. If the director is unable to identify a county prosecutor’s office that is able to serve in this capacity, or if justice requires, the director may appoint the OPIA as the independent investigator.

5. a. The director shall seek to complete the conflict review and select the independent investigator as soon as possible after learning of the law enforcement incident, but no later than 24 hours after the law enforcement incident occurs.

b. To avoid delay in the collection of evidence in the immediate aftermath of a law enforcement incident, the director may temporarily designate one or more persons employed by the county prosecutor’s office where the law enforcement incident occurred as Special Deputy Attorneys General or Special State Investigators, who, for the purpose of temporary designation, shall report directly to the director and shall carry out any investigative functions deemed necessary by the director.

c. Once selected, the independent investigator shall have an ongoing responsibility to notify the director of any actual, potential, or perceived conflicts of interest that arise during the course of the investigations, whether involving the entire agency or one or more persons operating under the supervision of the independent investigator.

d. If the director becomes aware of a conflict during the course of the investigation, the director shall seek to address the conflict pursuant to subsections e. and f. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill).

6. a Upon selection by the director, the independent investigator shall promptly begin investigating the law enforcement incident. The investigation shall include any steps that are deemed appropriate by the independent investigator, including canvassing, witness interviews, evidence collection, forensic analysis, and the issuance of grand jury subpoenas. As part of the initial investigation, the independent investigator shall make all reasonable efforts to preserve and obtain any video or audio recordings that depict any aspect of the law enforcement incident. To ensure the independence of the investigation, only law enforcement officers working under the direct supervision of the independent investigator may participate in the investigation or share or receive information about any aspect of the investigation, except as authorized pursuant to subsection b. of this section.

b. Subject to the authorization process pursuant to subsection d. of this section, the following personnel may assist the independent investigator in the investigation of a law enforcement incident:

(1) personnel employed by the OPIA, New Jersey Division of State Police, or the Division of Criminal Justice, including members of the Attorney General’s Shooting Response Team;

(2) law enforcement personnel with expertise in crime scene investigation for the purpose of collecting or documenting physical evidence at the scene;

(3) law enforcement personnel with expertise in forensic examinations including, but not limited to, the examination of DNA, fiber, fingerprints, firearm, hair, serology, or toxicology evidence, as well as personnel assigned to the State Medical Examiner’s Office or county medical examiner’s office, as the director designates, for the purpose of conducting forensic analysis or an autopsy;

(4) foreign language translators;

(5) any other personnel who can assist the investigation through their specialized knowledge or skills, provided that the independent investigator lacks sufficient specialized expertise; and

(6) a designee of any federal, State, county, or municipal law enforcement agency who can serve as a liaison to the independent investigator and facilitate the performance of ministerial functions, including obtaining agency documents and information and providing contact information for employees, witnesses, and other local residents.

c. Subject to the authorization process set forth in subsection d. of this section, the independent investigator may share investigative information with other law enforcement personnel only under the following circumstances:

(1) the independent investigator may provide information regarding the status of the investigation to the leadership of the county prosecutor’s office and the municipal law enforcement executive in the county and municipality in which the law enforcement incident occurred so that these officials may address or prepare for any public safety concerns in that county, provided that they do not share the information publicly or with other law enforcement personnel; or

(2) any other circumstances where the independent investigator concludes that the dissemination of investigative information would serve the public interest.

d. (1) Prior to seeking investigative assistance or disseminating investigative information, the independent investigator shall conduct a conflict check and take any necessary remedial actions pursuant to section 4 of the P.L. , c. (C. ) (pending before the Legislature as this bill).

(2) After addressing any actual, potential, or perceived conflicts, the independent investigator may, for good and sufficient cause, authorize the use of investigative assistance or the dissemination of investigative information. If the authorization is granted, the independent investigator shall record the names and titles of any personnel who will provide investigative assistance or will receive investigative information and provide a record of this information to the OPIA.

(3) In any case involving any of the circumstances set forth in paragraphs (1) through (3) of subsection c. of section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), the independent investigator may not obtain investigative assistance from the personnel set forth in subsection b. of this section, unless those personnel are designated as Special Deputy Attorneys General or Special State Investigators and are operating under the direct supervision of the independent investigator.

(4) To facilitate the prompt designations of Special Deputy Attorneys General or Special State Investigators, the director may issue standing orders, procedures, and standardized forms for use by federal, State, county, or municipal law enforcement agencies.

e. A law enforcement officer, other than the independent investigator, shall not make any public statement regarding the conduct of a law enforcement officer in connection with a law enforcement incident during the pendency of an investigation of that incident.

7. a. Law enforcement incident footage as defined in section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be released to the public according to the following procedures:

(1) If any individual or organization sends a written request to the independent investigator seeking the release of law enforcement footage, the independent investigator shall authorize the release of the footage when the initial investigation is substantially complete subject to the conditions set forth in paragraph (2) and paragraph (5) of this subsection and any other legal restrictions that would limit public release. The initial investigation shall be deemed substantially complete once all available material witnesses have been interviewed and the physical and documentary evidence most relevant to the case has been gathered.

(2) Prior to releasing any law enforcement incident footage, the independent investigator shall consult with persons depicted in the footage, including law enforcement officers and civilians involved in the law enforcement incident; however this shall not include bystanders or those appearing only in the background of the footage. In the case of decedents, the independent investigator shall consult with the decedent’s family or next of kin. During these consultations, the independent investigator shall consider whether the depicted persons believe that the release of the footage would threaten their safety or privacy.

(3) The independent investigator may authorize the digital blurring of footage to obscure the identity of any person, including a law enforcement officer, if the independent investigator concludes that the public release would substantially threaten the safety or privacy of that person. The editing shall be done in a manner that does not conceal the actions of any person who is using physical force against another. Any digital blurring shall be made to a copy of the recording intended for public release. The independent investigator shall not alter the master copy of the recording.

(4) If the independent investigator possesses footage recorded by anyone other than a law enforcement officer, the independent investigator shall consult with the person or entity who provided the footage, unless that person or entity has previously made it publicly available and take into account any legitimate safety or privacy concerns they raise. If the footage was obtained through legal process, the release shall comply with any applicable laws and procedures for public dissemination of that material.

(5) The independent investigator shall release the law enforcement incident footage within 20 days of the law enforcement incident, unless the Attorney General or a designee authorizes a delayed release. The independent investigator may seek a delayed release if additional time is needed to interview all available material witnesses, complete other essential investigative steps, review or redact videos to protect privacy interests, or conduct a safety assessment associated with the public release of the video.

b. After releasing any relevant video footage, the independent investigator shall continue the investigation until its conclusion, at which point the independent investigator shall prepare a summary of the factual findings, legal analysis, and preliminary recommendations as to whether any principal should be criminally charged for involvement in the law enforcement incident.

c. Upon the conclusion of the investigation, the independent investigator shall submit factual findings, legal analysis, and preliminary charging recommendation for an independent assessment by the independent supervisory reviewer.

If the independent investigator is any law enforcement agency other than the OPIA, the independent supervisory reviewer shall be the director.

If the independent investigator is the OPIA, the independent supervisory reviewer shall be a member of the Attorney General’s Executive Leadership Team.

d. The role of the independent supervisory reviewer shall be to review the sufficiency of the independent investigator’s work and decide whether any additional investigative steps should be taken. The independent supervisory reviewer shall review the independent investigator’s charging and grand jury recommendations and determine whether the independent supervisory reviewer agrees or disagrees with that recommendation.

8. a. In any case involving any of the circumstances set forth in paragraphs (1) through (3) of subsection c. of section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), the independent investigator shall present evidence to a grand jury concerning the law enforcement incident. In these cases, the independent investigator shall take the following actions:

(1) present evidence to a grand jury in a county other than the one where the law enforcement incident occurred;

(2) direct a prosecutor operating under the supervision of the independent investigator to present sufficient evidence to the grand jury to provide the jurors with a full, complete, and accurate representation of the relevant facts of the law enforcement incident;

(3) after presenting sufficient evidence, direct the prosecutor to instruct the grand jury as to the legal elements of the offense, as well as the elements of justification for the use of force by law enforcement pursuant to N.J.S.2C:3-7 and N.J.S.2C:3-9;

(4) in cases where the independent investigator and independent supervisory reviewer agree that one or more principals should be charged criminally for their role in the law enforcement incident, direct the prosecutor to present the grand jury with a draft charging document for the jurors’ consideration and vote; and

(5) in cases where the independent investigator and independent supervisory reviewer agree that none of the principals should be charged criminally, authorize the prosecutor to refrain from presenting the grand jury with a draft charging document. In this case, the independent investigator may instruct the grand jury on its ability to issue a presentment addressing matters of public policy in cases in which no criminal charges are returned by the grand jury.

b. For all other cases involving law enforcement incidents, the independent investigator shall present the matter to a grand jury, except that the independent investigator may decline to do so in cases where the independent investigator and the independent supervisory reviewer agree that the undisputed facts indicate that the principal’s use of force in the law enforcement incident was justified.

c. The underlying offense that gave rise to the law enforcement incident shall be presented to a grand jury different than the grand jury that will decide whether the principals should be charged criminally.

d. In any instance where the matter is not presented to a grand jury or where the matter is presented, but the grand jury declines to criminally charge any of the principals, the independent investigator shall prepare a statement for public dissemination, which shall comply with all rules of grand jury secrecy and be reviewed by the independent supervisory reviewer prior to release. The statement shall include a summary of:

(1) the factual findings of the investigation;

(2) the legal analysis concerning the lawfulness of the principal’s use of force;

(3) the results of the conflicts review conducted pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill); and

(4) an explanation that the matter was reviewed by the independent investigator and the independent supervisory reviewer.

e. At the conclusion of the investigation, the independent investigator shall determine whether any principal should be referred to the appropriate law enforcement agency for administrative review. The independent investigator shall monitor any resulting review and take actions as are necessary to ensure that the review is completed in a timely manner and that appropriate actions are taken based upon the results of the review.

9. a. The OPIA shall investigate, pursuant to the protocols set forth in P.L. , c. (C. ) (pending before the Legislature as this bill), matters in which a death of a person occurs while the person is in the custody of law enforcement and could plausibly be linked to the actions of the law enforcement officer, whether through the intentional use of force or a reckless indifference to human life.

b. Where a death of a person occurs while the person is in the custody of law enforcement and cannot be plausibly linked to the actions of the law enforcement officer, the OPIA shall supervise the investigation of the matter as follows:

(1) The director shall assign the matter to personnel employed by the county prosecutor’s office in the county where the death occurred, with the understanding that those personnel shall be designated as Special Deputy Attorneys General or Special State Investigators for the limited purpose of conducting the investigation under the supervision of the OPIA.

(2) Subject to the approval of the director, the investigative personnel assigned to the matter shall take any investigative steps deemed necessary to determine whether:

(a) any law enforcement officer contributed to the death of a person who was in the custody of law enforcement; or

(b) any person should be criminally charged in connection with the death of a person who was in the custody of law enforcement.

(3) At the conclusion of the investigation, the investigative personnel assigned to the matter shall report their findings to the director. If the director concludes that a law enforcement officer contributed to the death of a person who was in the custody of law enforcement or any person should be criminally charged in connection with the death, then the matter shall be presented to the grand jury pursuant to subsection a. of section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill). If the director concludes that neither of these conditions exist, then the matter shall not be presented to the grand jury.

(4) The director shall document the reasons for not bringing criminal charges and shall ensure compliance with the Death in Custody Reporting Act of 2013, 34 U.S.C. s.60105 et seq.

10. Each county prosecutor shall undertake efforts to educate residents in the county about the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill), with a specific focus on strengthening trust between law enforcement and the public. Within 120 days of the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), each county prosecutor shall report to the Attorney General on public education efforts.

11. The provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) shall apply to criminal investigations involving any State, county, or municipal law enforcement officer, regardless of whether the officer was acting in the performance of their official duties or in the officer’s personal capacity.

12. This act shall take effect immediately.

STATEMENT

This bill codifies an Attorney General Directive concerning criminal investigations of law enforcement use-of-force and in-custody deaths.

Under the bill, when a law enforcement incident occurs, every State, county, and municipal law enforcement agency is required to notify the county prosecutor’s office of the county in which the incident occurred, who is required to immediately notify the Director of the Office of Public Integrity and Accountability (OPIA).

The bill defines a “law enforcement incident” as any of the following: 1) use of force by a law enforcement officer resulting in death or serious bodily injury; 2) use of deadly force, including the discharge of a firearm, by a law enforcement officer regardless of whether the force resulted in injury; 3) the death of any civilian during an encounter with a law enforcement officer; and 4) the death of any civilian while in the custody of law enforcement.

The bill provides that the Director of the OPIA is required to determine which State or county law enforcement agency is to serve as the independent investigator, unless that agency has a conflict. In the case of a conflict, the director is to mitigate the conflict or seek another agency to serve as the independent investigator. The bill also sets forth certain standards for appointing an independent investigator.

In addition, under the bill, prior to the Director of the OPIA appointing a law enforcement agency as the independent investigator, the office is to conduct a comprehensive inquiry to determine whether it has any actual, potential, or perceived conflicts of interest that might undermine public confidence in the impartiality and independence of the investigation. If the director becomes aware of a conflict, the director is to take certain remedial measures.

Upon selection by the director, the independent investigator is required to promptly begin investigating the law enforcement incident. As part of the initial investigation, the independent investigator is required to make all reasonable efforts to preserve and obtain any video or audio recordings that depict any aspect of the law enforcement incident. To ensure the independence of the investigation, only law enforcement officers working under the direct supervision of the independent investigator may participate in the investigation or share or receive information about the investigation, with certain exceptions.

The bill establishes certain personnel that may assist the independent investigator in the investigation of a law enforcement incident and with whom the independent investigator is permitted to share investigative information.

Further, the bill sets forth the standards for releasing law enforcement footage. The bill defines “law enforcement footage” as recordings captured by a law enforcement officers’ body-worn camera, a camera mounted in an officer’s patrol car, a camera embedded in an officer’s conductive energy device, a surveillance or security camera, or a camera or smartphone belonging to a witness.

Under the bill, at the conclusion of the investigation, the independent investigator is to prepare a summary of their factual findings, legal analysis, and preliminary recommendations as to whether any principal of the investigation should be criminally charged for their involvement in the law enforcement incident. The findings, legal analysis, and preliminary charging recommendation are required to be submitted for an independent assessment by the independent supervisory reviewer.

The bill also sets forth the cases which require the independent investigator to present evidence to the grand jury concerning the law enforcement incident and sets forth the actions required by the independent investigator. In cases where the matter is not presented to the grand jury or where the matter is presented, but the grand jury declines to criminally charge any of the principals of the investigation, the independent investigator is to prepare a statement for public dissemination which is to comply with all rules of grand jury secrecy and be reviewed by the independent supervisory reviewer prior to release.

Under the bill, where a death of a person occurs while the person is in the custody of law enforcement and plausibly could be linked to the actions of the law enforcement officer, whether through the intentional use of force or a reckless indifference to human life, the OPIA is required to investigate the matter in accordance with the provisions of this bill. Where the death cannot be plausibly linked to the actions of the law enforcement officer, the office is to supervise the investigation according to procedures established in the bill.

Finally, the bill requires each county prosecutor to undertake efforts to educate residents in the county about the bill’s provisions and report to the Attorney General on public education efforts.