JERSEY CITY POLICE SUPERIOR OFFICERS ASSOCIATION v. CITY OF JERSEY CITY (C-000003-21, HUDSON COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2594-20
JERSEY CITY POLICE
SUPERIOR OFFICERS
ASSOCIATION,
Plaintiff-Appellant,
v.
CITY OF JERSEY CITY,
Defendant-Respondent.
_________________________
Argued March 7, 2022 – Decided March 14, 2022
Before Judges Messano, Accurso and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. C-000003-21.
Michael A. Bukosky argued the cause for appellant
(Loccke, Correia & Bukosky, LLC, attorneys; Michael
A. Bukosky, of counsel and on the briefs).
James B. Johnston, Assistant Corporation Counsel,
argued the cause for respondent (Peter J. Baker,
Corporation Counsel, attorney; James B. Johnston, on
the brief).
PER CURIAM
The Jersey City Police Superior Officers Association (SOA) represents
superior officers in the Jersey City Police Department (JCPD). The SOA filed
a verified complaint and order to show cause on behalf of J.C., a captain on the
force and member of the SOA, against defendant City of Jersey City (City). The
complaint sought to enjoin the demand issued by the JCPD's Internal Affairs
Unit (IAU) that J.C. produce copies of certain billing records for his personal
cell phone.
I.
The facts and procedural history are undisputed. The IAU initially made
a demand for the cell phone billing records on May 1, 2020, during its
investigation of J.C. for conduct unbecoming an officer, based on the contents
of a particular Twitter account, "Goldbitch201." The IAU claimed the account
"posted disparaging, racist, and homophobic tweets about the [JCPD], its
members, its policies[,] the governing body of Jersey City, and its citizens." The
investigation focused on the photo of a particular intersection in Jersey City
"taken from the interior of a vehicle assigned specifically to" J.C. and posted on
the "Goldbitch201" account at approximately 7:34 a.m. on September 3, 2019.
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Before serving its demand on J.C., the IAU referred the matter to the
Hudson County Prosecutor's Office (HCPO) for possible criminal investigation
and to secure a communications data warrant (CDW). After conducting its
review, on October 18, 2019, the HCPO referred the investigation back to the
JCPD to handle administratively, noting a judge had declined to issue the CDW
because "the facts and circumstances presented did not meet the burden for
authorization, as the matter was found not to be criminal in nature."
After temporarily agreeing to hold its initial May demand for J.C.'s
records "in abeyance" to address privacy concerns raised by his counsel, on
December 22, 2020, the IAU issued a directive pursuant to JCPD General Order
10-18, Section 202.9(b), requiring J.C. submit legible copies of his personal
cell phone billing records "for September 3, 2019[,] between the hours of 0700
hours to the end of [his] shift that day." 1 The SOA filed its verified complaint
on January 15, 2021.
1
In August 2020, a retired JCPD deputy chief and his wife, also a retired police
officer, filed a complaint against J.C., the City, the Police Director and Police
Chief, alleging the contents of the Twitter account defamed them, the Chief and
Director retaliated against them in violation of the Conscientious Employee
Protection Act, N.J.S.A. 34:19-1 to -14, and all defendants violated the Law
Against Discrimination, N.J.S.A. 10:5-1 to -50, and the New Jersey Civil Rights
Act, N.J.S.A. 10:6-1 to -2. The appellate record does not reveal the status of the
litigation, although public records reflect it is still pending.
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The SOA argued that J.C.'s expectation of privacy in his personal cell
phone billing records was of constitutional dimension and outweighed any
marginal connection the records may have to the IAU investigation. The SOA
also asserted J.C. denied taking the photo in question, denied maintaining the
Twitter account, and the investigation had little to do with the normal
functioning of the department. The SOA argued J.C. met all criteria for
injunctive relief.
The City argued the SOA, on behalf of J.C., failed to demonstrate
preliminary injunctive relief was appropriate and asked the court to dismiss the
complaint. See, e.g., Crowe v. De Gioia, 90 N.J. 126, 132–34 (1982) (holding
the successful applicant for preliminary injunctive relief must demonstrate
"irreparable harm," settled legal right to the relief sought on undisputed material
facts, and the balance of equities weigh in the applicant's favor). Among other
things, the City contended J.C. failed to allege imminent irreparable harm or a
reasonable likelihood of success on the merits. Quoting our decision in In re
Att'y Gen. Law Enf't Directive Nos. 2020-5 & 2020-6, the City asserted police
officers "can expect a higher degree of scrutiny of their performance, and have
a lower expectation of privacy." 465 N.J. Super. 111, 147–48 (App. Div. 2020),
aff'd as mod., 246 N.J. 462 (2021) (citations omitted).
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Assignment Judge Jeffrey R. Jablonski heard argument on the return date
of the order to show cause and issued an oral opinion on the record on May 11,
2021. He rejected the SOA's argument that J.C. had a reasonable expectation of
privacy regarding the billing records, citing the language from In re Att'y Gen.
Law Enf't Directive we quoted above. The judge noted that J.C. acknowledged
receipt of General Order 10-18, which provided in Section 202.9, entitled
"Private Communications Devices," in the event an "administrative
investigation indicates improper use" which includes any violations of laws,
rules, or regulations, "the billing records of that device may be requested for
review."
Judge Jablonski cited Section 35 of the City's Policies and Procedures
Manual (JCPP), "which prohibits any form of harassment based upon [among]
other things, gender or sex, against both co-workers and third parties." The
judge concluded that "[b]y signing the General Order, J[.]C[.] knew or should
have known that his or her on-duty use of his or her personal cell phone billing
records could be requested for review if it contributed to a violation of any law,
rule, regulation or order." Judge Jablonski found the SOA failed to "establish[]
a reasonable probability of success on . . . its claims." The judge also concluded
the SOA failed to establish J.C. would suffer irreparable harm by the release of
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his cell phone billing records, and "that a balance of the hardships favor[ed] not
granting the injunctive relief." The judge's May 11, 2021 order dissolved the
temporary restraints previously entered.
The SOA sought a stay pending appeal, which Judge Jablonski denied.
During oral argument on the motion, the judge indicated that he had dismissed
the verified complaint because the "entirety of the Order to Show Cause was
incorporated in the verified complaint." Without objection, the SOA's counsel
asked for an order to that effect, noting "that will change the complexion of this
case before the Appellate Division." The judge indicated he would include
language dismissing the complaint in the order denying the stay request. The
SOA's counsel responded, "Yes. If you would put that in the order . . . that will
be helpful. The Appellate Division will definitely question me about that." The
judge's May 14, 2021 order denied a stay pending appeal and dismissed the
verified complaint, because, as the judge explained, "[t]he entirety of the relief
requested" by the SOA "was the restraints at issue," and his earlier order was
"dispositive of this action."
Although we permitted the SOA to move for a stay pending appeal on an
emergent basis, upon review of the motion, we denied the SOA a stay. It sought
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review by the Court. On September 27, 2021, the Court stayed Judge Jablonski's
order and ordered this court to consider the SOA's appeal on an expedited basis.
II.
Before us, the SOA argues there is no "public employee exception" to the
warrant requirement permitting the IAU to compel production of copies of J.C.'s
private cell phone billing records; nor does the "special needs exception" to the
warrant requirement apply and, even if it did, the facts presented do not justify
the demand for J.C.'s records. The SOA also claims disclosure of the billing
records implicates "independent constitutional privacy interests" of other
parties, and any "attempt to unmask the anonymity of Twitter postings violates
the First Amendment."
In response, the City notes that the SOA failed to address any of the
traditional Crowe factors in its brief, and, therefore, we should dismiss the
appeal. Alternatively, it contends the SOA's arguments lack merit. 2
Having considered the arguments, we affirm substantially for the reasons
expressed by Judge Jablonski in his oral decision. We add the following.
2
We choose not to address the final point in the City's brief arguing we should
sanction the SOA pursuant to Rule 2:9-9.
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Attorneys General (AG) have used powers provided by the Legislature "to
establish standards and policies for the internal affairs review process of the
State's law enforcement agencies," In re Att'y Gen. Law Enf't Directive, 246 N.J.
at 483, and the AG's "guidelines, directives, and policies . . . bind police
departments throughout the State." N. Jersey Media Grp., Inc. v. Twp. of
Lyndhurst, 229 N.J. 541, 565 (2017). The AG's directive regarding Internal
Affairs Policy & Procedures (IAPP) requires local police departments to
investigate and resolve complaints of misconduct by police officers made by
citizens and fellow members of the department. In this case, the IAU
investigation had its genesis in a complaint made by the JCPD's police chief
about comments on the Twitter account.
The IAPP requires "[e]ach agency must thoroughly, objectively, and
promptly investigate all allegations against its officers," §1.0.9(c), and create a
"code of conduct," §2.2.1, that should "identify general categories of misconduct
or inappropriate behavior that are subject to disciplinary action," §2.2.2. This
includes complaints of "bearing, gestures, language[,] or other actions [that]
were inappropriate." §2.2.2(g). The IAPP requires IAUs to investigate "not only
acts of misconduct . . . alleged to have occurred while the subject officer was
on[]duty, but also acts of misconduct that are alleged to have occurred outside
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the employing agency's jurisdiction or while the subject officer was off[]duty."
§4.1.3.
In turn, the JCPP prohibits all City employees from creating a hostile work
environment, which includes "unwelcome behavior of a sexual, racial[,] or
derogatory nature regarding any protected category, that is not directed at an
individual but is part of that individual's work environment." The sexual
harassment policy prohibits "all communications . . . and [i]nternet usage"
involving "explicit sexual propositions, sexual innuendo, slurs, lewd or sexually
suggestive comments, sexual orientated 'kidding' or 'teasing' . . . [and] foul or
obscene language . . . ." A violation of this policy "constitutes conduct
unbecoming a public employee and is cause for disciplinary action up to and
including discharge."
We acknowledge that a departmental general order does not have the same
force of law as a directive issued by the AG. See N. Jersey Media Grp., 229
N.J. at 565 (there is no statute granting chiefs of police authority analogous to
the AG's statutory power to issue binding directives). However, the General
Order here is tethered to multiple sections of the IAPP, which does have the
force of law.
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The IAPP explains "[i]n an internal affairs investigation, the Fourth
Amendment applies to any search the employing agency undertakes." § 7.8.1.
But the law is "somewhat less restrictive" during an "administrative
investigation" because "the employing agency does not need a warrant to
conduct a search . . . [though] the investigator should exercise great care when
searching . . . items in which the subject officer has a high expectation of
privacy." § 7.8.3. Departments should issue a directive regarding the right to
search property because "[t]his notification will help defeat an assertion of an
expectation of privacy. " §§ 7.8.5, 7.8.7. The JCPD did so in this case when it
issued G.O. 10-18, Section 202.9(b).
Against this backdrop, we reject the SOA's constitutional claims. The
Court has recognized cell phone billing records are entitled to some protection
in the context of a criminal investigation based on an individual's expectation of
privacy in those records. State v. Lundsford, 226 N.J. 129, 154 (2016). In the
context of this administrative demand for cell phone billing records pursuant to
a departmental general order, however, we cannot seriously consider J.C.'s
alleged expectation of privacy was reasonable.
Courts have held "[t]he need for oversight and corrective action is
particularly acute in police departments," Gwynn v. City of Phila., 719 F.3d 295,
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303 (3d Cir. 2013), and therefore "the police industry is probably the most highly
regulated, with respect to performance of its employees, of any industry in New
Jersey." Policeman's Benevolent Ass'n of N.J., Local 318 v. Twp. of
Washington, 850 F.2d 133, 121 (3d Cir. 1988); see also N.J. Transit PBA Local
304 v. N.J. Transit Corp., 151 N.J. 531, 564–65 (1997) (upholding
constitutionality of mandatory drug testing policy for Transit Police noting
"officers' decreased expectation of privacy, the adequate limitations on the
obtrusiveness of the testing, and the compelling state interest in promoting safe
conduct by armed officers"). Our courts have applied this administrative search
exception to the warrant requirement in several closely regulated professions
and businesses.3
Additionally, "[s]earches conducted pursuant to 'reasonable legislative or
administrative standards' that further 'special needs, beyond the normal need for
law enforcement' are excepted from the warrant requirement of the Federal and
3
See In re Martin, 90 N.J. 295, 312, (1982) (casino employees while on casino
premises); State v. Williams, 84 N.J. 217, 223, (1980) (liquor industry); State v.
Hewitt, 400 N.J. Super. 376, 381 (App. Div. 2008) (commercial trucking); State
v. Turcotte, 239 N.J. Super. 285, 291–97, (App. Div. 1990) (horse racing); State
v. Rednor, 203 N.J. Super. 503, 507, (App. Div. 1985) (pharmaceutical
industry); In re Dep't of Env't Prot., 177 N.J. Super. 304, 313 (App. Div. 1981)
(wastewater treatment facilities); State v. Bonaccurso, 227 N.J. Super. 159, 167
(Law Div. 1988) (disposal of meat by-products within meat packing industry).
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State Constitutions." A.A. ex rel. B.A. v. Att'y Gen. of N.J., 384 N.J. Super. 67,
89 (App. Div. 2006). It is axiomatic that police departments have a special need
to regulate the conduct of their officers both on and off duty. See, e.g., Karins
v. Atlantic City, 152 N.J. 532, 555 (1998) ("[A] finding of misconduct . . . 'may
be based merely upon the violation of the implicit standard of good behavior
which devolves upon one who stands in the public eye as an upholder of that
which is morally and legally correct.'" (quoting Hartmann v. Police Dep't of
Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992))); A.A., 384 N.J. Super. at93–94 (noting "common feature of these well-recognized exceptions to the
warrant requirement is that the persons subject to search are distinguished from
members of the general public by conduct related to the search").
The SOA's contention that production of the billing records will not yield
any evidence to further the investigation of the offensive Twitter account is
nothing but speculation. Its belated claim that it was denied the opportunity to
establish this lack of relevance, i.e., the absence of "special needs" for the
information, runs afoul of its on-the-record accession to Judge Jablonski's
dismissal of the complaint. We also reject as ludicrous, the SOA's assertion that
the City never explained the reason for its request of J.C.'s cell phone billing
records. The SOA knows full well why the IAU wants the records; it simply
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asserts the records are not probative of anything in particular. In sum, we reject
the SOA's arguments that the precisely drawn, limited demand the IAU made in
this case for J.C.'s cell phone billing records ran afoul of the administrative
search or special needs exceptions to the warrant requirement.
The SOA's contention that the privacy rights of third parties, and J.C.'s or
those third parties' First Amendment rights would be chilled by production of
the cell phone billing records, requires little comment. The fear of public
disclosure is dispelled by IAPP policies requiring confidentiality of the IAU
investigative files. The progress of internal affairs investigations, the contents
of the case file including the original complaint, and the resulting materials are
confidential information and are only shared in limited circumstances. See, e.g.,
IAPP § 9.6.2.
J.C. denies he maintains the Twitter account or authored the tweets,
therefore any argument regarding his First Amendment rights is specious.
Without opining whether the SOA or J.C. has standing to argue on behalf of others,
we note the SOA acknowledges the billing records provide no information other than
"the caller's phone number, duration of the call, start and end time of the call,
and the cell phone tower the phone was connected to."
Affirmed.
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