~F Trir: sr,~T y;~-~:Fon ~,r~~~~~i K<`~<< ~~. r S ~ ~. ~ k::~ ins State of New Jersey PHILIP D. MURPHY OFFICE OF THE ATTORNEY GENERAL Gouerr~or DEPARTMENT OF LAW AND PUBLIC SAFETY PO Box 080 TRENTON, NJ 08625-0080 SHEILA Y. OLIVER GURBIR S. GREWAL Attorney General Lt. Gove~•r~or ATTORNEY GENERAL LAW ENFORCEMENT DIRECTIVE NO.2018-3 TO: All Law Enforcement Chief Executives FROM: Gurbir S. Grewal, Attorney General DATE: March 20, 2018 SUBJECT: Statewide Mandatory Early Warning Systems I. Background An Early Warning System ("EW System") is an important management tool designed to and trends in police conduct before that conduct escalates. An effective EW patterns detect System can assist a law enforcement agency in identifying and remediating problematic officer conduct that poses a potential risk to the public, to the agency, and to the officer. EW Systems, therefore, serve to not only increase public safety and public confidence in law enforcement, but also to assist officers through early intervention. Indeed, many law enforcement agencies throughout the State have recognized the utility of such systems and some County Prosecutors already require agencies within their jurisdictions to use them. For all of these reasons, this Directive now mandates that all law enforcement agencies in New Jersey adopt and implement EW Systems consistent with the requirements set forth below. Accordingly, pursuant to the authority granted to me under the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 to -117, which provides for the general supervision of criminal justice by the Attorney General as chief law enforcement officer of the State to secure the benefits of a uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the State, I, Gurbir S. Grewal, hereby DIRECT all law enforcement and prosecuting agencies operating under the authority of the laws of the State of New Jersey to implement and comply with the following policies, procedures, standards, and practices. ,...•.., " ~`: New Jersey Is An Equal, Opportunity Employer • Pr•ar~ted orc Recycled, Paper' and is Recyclable Page 2 II. Implementation A. A~~licabilitY This Directive shall apply to all state, county, and municipal law enforcement agencies and sworn officers who are responsible for enforcing the criminal laws in New Jersey, come under the jurisdiction of the Police Training Act, and are authorized to carry a firearm under N.J.S.A. 2C:39-6. B. Establishment of EW System Policy All state, county, and municipal law enforcement agencies shall adopt and/or revise their existing EW System policies, consistent with this Directive, either by rule, regulation, or standard operating procedure ("SOP"), as required by state law. C. Selection of Performance Indicators An EW System may monitor many different categories of officer conduct which indicate potentially escalating risk of harm to the public, the agency, and/or the officer. The following performance indicators shall be included in all EW Systems, but also can be supplemented based upon the unique characteristics of the department and the community it serves. The chief executive of the department shall determine any such supplemental performance indicators. To the extent possible, supplemental performance indicators should be objectively measurable and reasonably related to potentially escalating harmful behavior by the officer. 1. Internal affairs complaints against the officer, whether initiated by another officer or by a member of the public; 2. Civil actions filed against the officer; 3. Criminal investigations of or criminal complaints against the officer; ~ 4. Any use of force by the officer that is formally determined or adjudicated (for example, by internal affairs or a grand jury) to have been excessive, unjustified, or unreasonable; 5. Domestic violence investigations in which the officer is an alleged subject; 6. An arrest of the officer, including on a driving under the influence charge; 7. Sexual harassment claims against the officer; 8. Vehicular collisions involving the officer that are formally determined to have been the fault of the officer; 9. A positive drug test by the officer; 10. Cases or arrests by the officer that are rejected or dismissed by a court; 11. Cases in which evidence obtained by an officer is suppressed by a court; 12. Insubordination by the officer; 13. Neglect of duty by the officer; 1 If EW System notification to the officer could jeopardize an ongoing criminal investigation, the County Prosecutor may in his or her discretion permit delayed notification to the officer or delayed initiation of the EW System review process. Page 3 14. Unexcused absences by the officer; and 15. Any other indicators, as determined by the agency's chief executive. D. Initiation of Early Warning Process At a minimum, an agency's EW System policy shall provide that three separate instances of performance indicators (as listed in Section C, above) within any twelve-month period will trigger the EW System review process. If one incident triggers multiple performance indicators, that incident shall not be double- or triple-counted, but instead shall count as only one performance indicator. The agency's chief executive may in his or her discretion determine that a lower number of performance indicators within atwelve-month period (i.e., one or two performance indicators) will trigger the EW System review process. E. Administration and Tracking The agency's chief executive shall assign personnel to conduct the EW System function. Typically, the EW System should be administered by the agency's internal affairs unit. Supervisory officers in the subject officer's chain of command also should be directly involved in any EW System review process. Every department shall adopt a tracking system to enable the department to identify officers who display the requisite number of performance indicators necessary to trigger the EW System review process. Many departments in New Jersey have adopted automated systems that are capable of flagging emerging behavioral patterns. At least every six months, personnel assigned to manage the EW System shall audit the agency's tracking system and records to assess the accuracy and efficacy of the tracking system. F. Remedial/Corrective Action Once an officer has displayed the requisite number of performance indicators necessary to trigger the EW System review process (as set forth in Section II.C, above) assigned supervisory personnel shall initiate remedial action to address the officer's behavior. When an EW System review process is initiated, personnel assigned to oversee the EW System should (1) formally notify the subject officer, in writing; (2) conference with the subject officer and appropriate supervisory personnel; (3) develop and administer a remedial program including the appropriate remedial/corrective actions listed below; (4) continue to monitor the subject officer for at least three months, or until the supervisor concludes that the officer's behavior has been remediated (whichever is longer); (5) document and report findings to the appropriate supervisory personnel and, if warranted, the internal affairs unit. Any statement made by the subject officer in connection with the EW System review process may not be used against the subject officer in any disciplinary or other proceeding. Remedial/corrective action may include but is not limited to the following: 1. Training or re-training; Page 4 2. 3. 4. 5. 6. G. Counseling; Intensive supervision; Fitness-for-duty examination; Employee Assistance Program (EAP) referral; and Any other appropriate remedial or corrective action.2 Notification to Subsequent Law Enforcement Employer If any officer who is or has been subject to an EW System review process applies to or accepts employment at a different law enforcement agency than the one where he or she underwent the EW System review process, it is the responsibility of the prior or current employing law enforcement agency to notify the subsequent employing law enforcement agency of the officer's EW System review process history and outcomes. Upon request, the prior or current employing agency shall share the officer's EW System review process files with the subsequent employing agency. H. Notification to County Prosecutor Upon initiation of the EW System review process, the agency's chief executive or a designee shall make a confidential written notification to the County Prosecutor or his/her designee of the identity of the subject officer, the nature of the triggering performance indicators, and the planned remedial program. Upon completion of the EW System review process, the agency's chief executive shall make a confidential written notification to the County Prosecutor or his/her designee of the outcome of the EW System review, including any remedial measures taken on behalf of the subject officer. I. Annual Report to Attorney General By January 31st of each year, each County Prosecutor shall submit a report to the Attorney General, through the Division of Criminal Justice's Prosecutors' Supervision and Training Bureau. This summary shall include a statement indicating those agencies under the County Prosecutor's supervision that are in compliance with this Directive and those that are not. III. Public Accessibility and Confidentiali All EW System policies adopted by law enforcement agencies shall be made available to the public upon request and shall be posted on the agency's website. Annual reports from the 2 This Directive, and EW Systems generally, are focused on corrective actions to remediate officer behavior and to provide assistance to the officer. This Directive, and EW Systems generally, do not address disciplinary actions that might be warranted against an officer. Such disciplinary actions — to include the decision to suspend, terminate or, if applicable, charge an officer with criminal conduct —remain within the purview of the agency's internal affairs function, and may be imposed in accordance with existing internal affairs guidelines and applicable law, separate from and independent of the EW System. Page 5 County Prosecutors to the Attorney General (as required by Section II.I, above) also shall be made available to the public upon request and shall be posted on the agency's website. All written reports created or submitted pursuant to this Directive that identify specific officers are confidential and not subject to public disclosure. IV. Effective Date This Directive shall take effect immediately upon issuance. All EW System policies shall be adopted and/or revised in accordance with this Directive within 60 days. Gurbir S. Grewal Attorney General ATTEST: Elie Honig Director, Division of Criminal Justice Issued on: March, 2018