ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 1 of 94 Trans ID: LCV2019774409 PASHMAN STEIN WALDER HAYDEN A Professional Corporation Court Plaza South 21 Main Street, Suite 200 Hackensack, NJ 07601 (201) 488-8200 cgriffin@pashmanstein.com CJ GRIFFIN, ESQ. (#031422009) Attorneys for Plaintiff, Richard Rivera, LLC RICHARD RIVERA, LLC SUPERIOR COURT OF NEW JERSEY LAW DIVISION: ESSEX COUNTY Plaintiff, DOCKET NO: v. ESSEX COUNTY PROSECUTOR’S OFFICE and LEEANN CUNNINGHAM in her official capacity as Records Custodian for the Essex County Prosecutor’s Office, Civil Action VERIFIED COMPLAINT Defendants. Plaintiffs, Richard Rivera, LLC, through its undersigned counsel, Pashman Stein Walder Hayden, A Professional Corporation, complains against the Defendants as follows: INTRODUCTION 1. This is an action alleging violations of the New Jersey Open Public Records Act, N.J.S.A. 47: 1A-1 to -13, (“OPRA”), and the common law right of access to public records. 2. Plaintiff filed an OPRA request in early March 2019 for government records and information relating to a police-involved shooting that occurred on January 28, 2019 in the City of Newark. The Essex County Prosecutor’s Office is investigating the shooting. The records that Plaintiff sought, which included Use of Force Reports and police videos, would identify the name of the police officer who fatally shot a man during a motor vehicle stop. The officer’s ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 2 of 94 Trans ID: LCV2019774409 name is statutorily required to be disclosed pursuant to N.J.S.A. 47:1A-3(b). 3. Defendants responded to Plaintiff’s OPRA request in mid-March by producing many of the records, but they redacted the name of the officer involved in the shooting. Defendants claimed that the matter was being presented to a Grand Jury and that they would not release the officer’s name because there was a serious concern that if his/her name were public, then the officer may no longer agree to voluntarily testify before the Grand Jury. Defendants claimed the matter would be presented to the Grand Jury “within the next two weeks.” 4. Although Plaintiff did not feel the delay was justified, Plaintiff nonetheless waited and renewed his OPRA request in early April 2019 after more than two weeks had passed. Defendants again refused to release the officer’s name, this time indicating that the matter would be presented to the Grand Jury on April 25, 2019. 5. Plaintiff once again waited and then renewed his OPRA request on April 26, 2019. Defendants again refused to release the officer’s name. This time, they said that the Grand Jury was unable to meet, but that it would convene on May 2, 2019 and thereafter it would take two to three weeks to present the case to the Grand Jury 6. Plaintiff believes there is no basis to delay access to the officer’s name, nor the police video recordings for this incident. More than three months have elapsed since this shooting occurred and the public has been deprived of critical information about the incident. The Supreme Court has made it clear that the public’s interest in police-involved shootings is substantial and that the public is entitled to learn the identities of the officers involved in the shootings and see the videos from those shootings. The Court held that information and videos of police-involved shootings should be released within a few days after the incident, after statements from observers have been taken. Defendants cannot establish the high bar to 2 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 3 of 94 Trans ID: LCV2019774409 overcome the presumption in favor of access and their actions violate OPRA. PARTIES 7. Plaintiff Richard Rivera, LLC, a limited liability company in New Jersey. 8. Defendant Essex County Prosecutor’s Office (ECPO) is a government entity formed under the laws of the State of New Jersey, with a primary place of business at the Veteran’s Courthouse, 50 W Market St # 3, Newark, NJ 07102. 9. Defendant LeeAnn Cunningham is the Custodian of Records for ECPO. She is being sued in her official capacity only and also maintains an office at the Veteran’s Courthouse, 50 W Market St # 3, Newark, NJ 07102. VENUE & JURISDICTION 10. Venue is properly laid in Essex County because Defendant ECPO is located in Essex County and because the cause of action arose in Essex County. 11. This Court has subject matter jurisdiction pursuant to N.J.S.A. 47:1A-6. FACTUAL ALLEGATIONS About Plaintiff 12. Plaintiff Richard Rivera, LLC is a company that provides expert witness services and consultations regarding police practices and policies. It is owned by Richard Rivera, a retired municipal police officer, private consultant, civil rights advocate, and expert witness in police practices and policies. 13. On a regular and ongoing basis since 2008, Mr. Rivera volunteers his time and resources to the Latino Leadership Alliance of New Jersey, a community advocacy organization, where he co-chairs the Civil Rights Protection Project. Mr. Rivera monitors civil rights issues, particularly those involving police activity, statewide. He regularly meets with law enforcement 3 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 4 of 94 Trans ID: LCV2019774409 executives and county prosecutors throughout the state regarding current trends in police practices and provides pro bono expert advice to them on compiling and analyzing report data to improve accountability and supervision while reducing liability. 14. As a police practices expert consultant, he has reviewed specific actions by police officers, supervisors and policymakers in more than 900 completed internal affairs (“IA”) investigations and disciplinary actions. Over the years, he has reviewed hundreds of employee personnel files. His ongoing research in the law enforcement field includes compiling and analyzing over 1,300 Internal Affairs Annual Summary Reports (“IAASR”) and more than 8,500 Use of Force Reports. He has authored numerous studies, including co-authoring a 2009 report by the ACLU of New Jersey called “The Crisis Inside Police Internal Affairs.” 15. Mr. Rivera often provides the records he receives from OPRA requests to the media and is frequently quoted by the state and national media in news stories about police matters. See, e.g., Joe Atmonavage, “Aggressive Cops Are ‘Out Of Control’ In This N.J. City, Insiders Say, Costing Taxpayers Millions.” NJ ADVANCE MEDIA (Jan. 8, 2019); Sara Barchenger, “Ocean County's Top Cop to Lakewood: Fix Police Internal Affairs.” ASBURY PARK PRESS (June 5, 2018); Ryan Ross, “Police Misconduct: Former Cop, Whistleblower Weighs in on NJ's Internal Affairs Failures.” ASBURY PARK PRESS (Jan. 19, 2018); Isaac Avilucea, “Mercer County Assistant Prosecutor Suspended After DWI Arrest,” THE TRENTONIAN (Sept. 11, 2017); David Hutchinson, “Police Must Name Officers, Release Video in Fatal Shooting, Judge Rules.” NJ.COM (Feb.7, 2017); Suzanne Russel, “Former Cop Looks To Analyze Diahlo Grant Use-OfForce Reports,” MYCENTRALNJ.COM (Feb 7 2017). The Police Shooting 16. On January 28, 2019, Newark police officers attempted to pull over a motor 4 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 5 of 94 Trans ID: LCV2019774409 vehicle. The vehicle, however, sped off and several police vehicles pursued the vehicle for approximately one mile through the City. 17. The media reported that one of the officers observed a handgun in the vehicle and that the officer fired shots at the vehicle at three separate locations. [Attached hereto as Exhibit A is a true and accurate copy of a January 29, 2019 news article from NJ.com]. 18. The driver, Gregory Griffin, died as a result of the gun shot wounds. The passenger, Andrew J. Dixon, was listed in critical condition. 19. ECPO is investigating the shooting. The OPRA Requests 20. On March 5, 2019, Plaintiff filed an OPRA request (through counsel) with ECPO seeking the following records: Background: In January 2019, a Newark police officer shot and killed Greg Griffin. The police officer has now been suspended: https://abc7ny.com/nj-officer-suspended-following-deadly-policeshooting/5157843/ Records sought: 1. Use of Force Reports for the incident 2. All N.J.S.A. 47:1A-3(b) information, including the name of the officer who shot and killed Griffin 3. Body-worn camera footage 4. Dash camera footage 5. AG Use of Deadly Force Notification Report [Attached hereto as Exhibit B is a true and accurate copy of the March 5, 2019 OPRA request.] 21. On March 6, 2019, ECPO submitted its initial response to Plaintiff’s request for N.J.S.A. 47:1A-3(b) in relevant part as follows: 5 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 6 of 94 Trans ID: LCV2019774409 With respect to Item #2, please find attached copies of the ECPO’s Press Advisory, Complaint-Warrant and Arrest Report. Please note that the records have been redacted because the ECPO is not releasing the name of the Newark police officer, at this time, for the reasons set forth in detail below. Request for records under OPRA First, the request for the name of the officer who shot and killed Griffin is denied on the ground that the investigation of the use-offorce incident is still in its infancy; it is not nearly “substantially complete.” Consequently, the ECPO has determined that the release of the officer’s name would jeopardize and undermine the reliability and effectiveness of this ongoing investigation. See N.J.S.A. 47:1A-3(b); Attorney General Law Enforcement Directive No. 2018-1. Please note that the officer is currently suspended without pay. And as set forth in the attached Press Release, “‘[t]he investigation is active and ongoing, but the evidence gathered, so far, raises serious questions about the officer’s conduct. Consequently, this matter will be presented to a Grand Jury for possible criminal charges,’ said Acting Essex County Prosecutor Stephens.” Although suspended without pay, the officer has expressed his/her willingness to voluntarily testify before the Grand Jury within the next several weeks. Should the officer’s name and other records be released to the public, there is serious concern that the officer may no longer voluntarily agree to testify before the Grand Jury. Thus, release of the officer’s name may jeopardize the criminal investigation and spoil a potential statement, which would also be interfering with the Grand Jurors’ investigation. After the officer testifies, however, the ECPO will revisit this issue. N.J.S.A. 47:1A-3(a) exempts from disclosure records that “pertain to an investigation in progress by any public agency” if their examination will be “inimical to the public interest,” and the records were not available to the public before the investigation began. N.J.S.A. 47:1A-3(b) identifies categories of “information concerning a criminal investigation” that “shall be available to the public within 24 hours or as soon as practicable, of a request.” The statute requires disclosure of “information as to the identity of the investigating and arresting personnel and agency.” 6 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 7 of 94 Trans ID: LCV2019774409 An agency, however, may withhold the identity of the officers under section 3(b), the public safety exception, when disclosure “will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to release.” Ibid. This exception “shall be narrowly construed to prevent disclosure of information that would be harmful to a bona fide law enforcement purpose or the public safety.” Ibid. In North Jersey Media Group, Inc. v. Township of Lyndhurst, 229 N.J. 541 (2017), the Supreme Court of New Jersey ruled that: [a]s to the integrity of an ongoing investigation, courts must consider the particular reasons for non-disclosure in a given matter. Among a number of relevant factors are the nature of the details to be revealed, how extensive they are, and how they might interfere with the investigation.” Id. at 576 Here, the ECPO has made a particularized showing under section 3(b) that disclosure of the officer’s name would jeopardize and undermine the reliability and effectiveness of this ongoing investigation. N.J.S.A. 47:1A-3(b). Clearly, there is cause for serious concern that if the officer’s name is released this early in the investigation, the officer may not voluntarily testify before the Grand Jury, which the officer has currently expressed his/her willingness to do. Also, the disclosure of the identity of the officer “would be harmful to a bona fide law enforcement purpose.” Id. at 572. The ECPO therefore satisfies the standards set forth in section 3(b), and the request for the officer’s name is denied in part on this basis. Second, the request is being denied on the separate and independent ground that records of “investigations in progress” are exempt from disclosure as codified in N.J.S.A. 47:1A-3(a). . . . Third, the request is being denied on the separate and independent ground that the Prosecutor’s criminal investigatory file, open or closed, is not a public record and is exempt from disclosure under N.J.S.A. 47:1A-1.1. See Kovalcik v. Somerset County Prosecutor’s Office, 206 N.J. 581, 591 (2011) (recognizing that criminal investigatory records are exempt from disclosure under OPRA); Bent v. Twp. of Stafford Police Dep’t, 381 N.J. Super. 30 (App. Div. 2015). ... 7 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 8 of 94 Trans ID: LCV2019774409 And in a recent case pertaining to an incident in which police used deadly force against a suspect, the New Jersey Supreme Court held that dash cam videos (MVR recordings), investigative reports and witness statements are covered by the criminal investigatory records exemption because those items are “not required by law to be made, maintained or kept on file,” and because the actions of the police pertained to an investigation into actual or potential violations of criminal law. See North Jersey Media Group v. Township of Lyndhurst, 229 N.J. 541 (2017). Your request for the officer’s name is thus denied in part for the above reasons. Fourth, the request is being denied on the separate and independent ground that the OPRA statute excludes disclosure of 21 categories of information “deemed to be confidential.” N.J.S.A. 47:1A-1.1. These categories are excluded to further the legislature’s recognition that “a public agency has the responsibility and an obligation to safeguard from public access a citizen’s personal information with which it has been entrusted when disclosure thereof would violate the citizen’s reasonable expectation of privacy.” N.J.S.A. 47:1A-1. To the extent the documents requested fall within this category the request is not a proper OPRA request. Fifth, the request is being denied on the separate and independent ground that OPRA does not require disclosure of certain privileged materials defined as any “inter-agency or intra-agency advisory, consultative, or deliberative material.” See N.J.S.A. 47:1A-1.1. . . . Sixth, the request is being denied on the separate and independent ground that the “Confidentiality” section of the Attorney General’s Guidelines on “Internal Affairs Policy & Procedures” (Guidelines), declares that “[t]he nature and source of internal allegations, the progress of internal affairs investigations, and the resulting materials are confidential information” and “shall only be released under . . . limited circumstances.” Guidelines at 11-46. One such limited circumstance permitting disclosure is “for good cause.” Ibid. [Attached hereto as Exhibit C is a true and accurate copy of ECPO’s March 6, 2019 Response, with attachments.] 22. ECPO’s response letter also denied access to the officer’s name pursuant to the common law right of access. See Exhibit C. 8 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 9 of 94 Trans ID: LCV2019774409 23. The Press Advisory that ECPO attached to its response advised the public that the matter was going to be presented to a Grand Jury and that video footage of the incident would not be released. See Exhibit C. 24. On March 12, 2019, ECPO responded to the remainder of Plaintiff’s OPRA request. ECPO released redacted copies of the Use of Force Reports and AG Use of Deadly Force Notification Report and denied access to the dash camera and body camera videos in their entirety. The March 12 response re-stated the language from the March 6 letter, but added in relevant part: With respect to Items #3 and #4, although transparency is the utmost importance in police-involved shootings, the ECPO cannot release the officer’s name and the BWC and dash-cam videos, at this time, without compromising the integrity of the ongoing investigation. See N.J.S.A. 47:1A-3(b); Attorney General Law Enforcement Directive No. 2018-1. After the Grand Jury returns its determination, disclosure will no longer present an issue with regard to the investigation’s integrity. Consequently, at that time, the ECPO will release unredacted copies of the Use of Force Reports and all dash-cam and BWC videos. Please be advised that the matter will be presented to a Grand Jury for possible criminal charges within the next two weeks. [Attached hereto as Exhibit D is a true and accurate copy of the March 12, 2019 response letter. True and accurate copies of the Use of Force Reports and AG Deadly Notification report are attached hereto as Exhibits E, F, and G.] 25. While Plaintiff disagreed that the officer’s name and the police videos could be withheld, he nonetheless decided to wait the two weeks for the information. 26. On April 8, 2019, Plaintiff (through counsel) filed a new OPRA request with ECPO, stating: Please consider this a renewal of Mr. Rivera’s prior OPRA request, 9 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 10 of 94 Trans ID: LCV2019774409 seeking un-redacted Use of Force Reports, policy body camera footage, police dash camera footage, and the name of the officer who shot Greg C. Griffin on January 29, 2019. On March 14, you indicated you should be able to produce such information “within the next two weeks.” [Attached hereto as Exhibit H is a true and accurate copy of Plaintiff’s April 8, 2019 OPRA request.] 27. On April 16, 2019, ECPO responded to Plaintiff’s second OPRA request by again stating that it would not release the officer’s name or the videos “at this time.” It indicated that “the matter will be presented to a Grand Jury for possible criminal charges on April 25th, but Director/Assistant Prosecutor Alexander Albu anticipates that it may require more than one day to present.” [Attached hereto as Exhibit I is a true and accurate copy of ECPO’s April 16, 2019 response.] 28. On April 26, 2019, Plaintiff (through counsel) wrote: “My client would like an update on this request.” [Attached hereto as Exhibit J is a true and accurate copy of Plaintiff’s April 26, 2019 e-mail.] 29. On April 30, 2019, ECPO wrote: Director/Assistant Prosecutor Alex Albu informed me that an insufficient number of grand jurors showed up last week. He believes that it was due to spring break for most schools. The matter is now scheduled to start on Thursday, May 2nd. Alex believes it will likely take 2-3 weeks to present. [Attached hereto as Exhibit K is a true and accurate copy of ECPO’s April 30, 2019 response.] 30. It is clear that ECPO has violated OPRA by withholding the names of the police officer involved in this incident, as such information should be available within 24 hours or soon thereafter pursuant to N.J.S.A. 47:1A-3(b). ECPO has not stated a lawful reason to justify non10 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 11 of 94 Trans ID: LCV2019774409 disclosure. 31. Moreover, it is clear that ECPO has violated OPRA and the common law by refusing to release the body camera and dash camera recordings as the Supreme Court has ruled that such videos should be released “shortly after the incident” after those who have observed the incident have been interviewed. See North Jersey Media Group, Inc. v. Twp. of Lyndhurst, 229 N.J. 541 (2017). 32. Finally, it is clear that ECPO’s position is also not supported by Attorney General Law Enforcement Directive No. 2018-1, which orders police videos of deadly shootings to be released to the public when upon “substantial completion of the initial investigation, generally such initial investigation should be concluded within 20 days of the use-of-force event.” (emphasis added). [Attached hereto as Exhibit L is a true and accurate copy of AG Directive 2018-1.] 33. ECPO is instead insisting that the entire investigation, not the initial investigation, must be complete before it will release the officer’s names and videos and that such includes presentation to the Grand Jury. This is not supported by N.J.S.A. 47:1A-3(a) and (b); the Supreme Court’s decision in North Jersey Media Group, Inc. v. Twp. of Lyndhurst, 229 N.J. 541 (2017); or Attorney General Law Enforcement Directive No. 2018-1. 34. At the time of this filing, more than three months have passed since the shooting occurred and the public is still left in the dark about this matter of significant public interest. Defendants have thus violated OPRA and undermined transparency in this State. FIRST COUNT (Violation of OPRA) 35. Plaintiffs repeat and incorporate by reference the allegations set forth in the 11 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 12 of 94 Trans ID: LCV2019774409 preceding paragraphs as though fully set forth at length herein. 36. Pursuant to N.J.S.A. 47:1A-1, all government records must be “readily accessible” to the citizen of this State unless specifically exempt by law. 37. The records requested by Plaintiffs are government records subject to OPRA because they were “made, maintained or kept on file,” or “received in the course of … [Defendant’s] official business.” N.J.S.A. 47:1A-1.1. 38. Defendants refused to produce the requested records, despite the fact that they are not subject to any exemption. 39. Moreover, N.J.S.A. 47:1A-3(b) requires disclosure of specific information, including the names of police officers, and Defendants have not stated a lawful basis to deny or delay access to such information. 40. Accordingly, Defendants have violated OPRA by failing to grant Plaintiffs access to the requested records and information. 41. Accordingly, Defendants have violated OPRA by: a) Failing to make the records “readily accessible for inspection, copying, or examination,” in violation of N.J.S.A. 47:1A-1; b) Failing to disclose nonexempt government records or nonexempt portions of government records, in violation of N.J.S.A. 47:1A-5(g); c) Failing to provide N.J.S.A. 47:1A-3(b) information; d) Failing to provide a lawful basis for denying access to government records and information in violation of N.J.S.A. 47:1A-5(g); e) Failing to base a denial of access upon a bases “authorized by law” in violation of N.J.S.A. 47:1A-6; and 12 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 13 of 94 Trans ID: LCV2019774409 f) Failing to identify the specific public records responsive to the requests and the specific basis for withholding each of those records, in violation of N.J.S.A. 47:1A-5(g). WHEREFORE, Plaintiffs demand judgment against Defendants: a) Declaring said actions of Defendants to be in violation of OPRA, N.J.S.A. 47:1A-1 et seq. by failing to provide access to the requested records; b) Directing Defendants to identify each record responsive to the Plaintiffs’ OPRA requests; c) Directing Defendants to identify each record withheld from access and the legal justification therefor through preparation of a Vaughn index or other means; d) Directing Defendants to grant access and release the requested records with redactions removed and information to Plaintiff forthwith. e) Alternatively, if the Court believes that any information may be exempt from public access, Plaintiff respectfully ask the Court to review the records in camera and then require Defendants to delete or excise from the records the portion(s) which are exempt from public access and promptly permit access to the remainder of the record; f) Ordering Defendants to preserve the requested records pending resolution of these proceedings or as otherwise required by law; g) Awarding counsel fees and costs pursuant to N.J.S.A. 47:1A-6; and h) For such other relief as the Court may deem just and equitable 13 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 14 of 94 Trans ID: LCV2019774409 COUNT TWO (Common Law Right of Access) 42. Plaintiff repeats and incorporates by reference the allegations set forth in the preceding paragraphs as though fully set forth at length herein. 43. The public’s need for access to these records is greater than Defendants’ need for secrecy. 44. Defendants’ failure to disclose the requested government records violated Plaintiff’s common law right of access. WHEREFORE, Plaintiff demands judgment against Defendants: (a) Declaring said actions of Defendants to be unlawful and invalid; (b) Directing Defendants to release the requested records to Plaintiff forthwith; (c) Awarding counsel fees and costs; and (d) Granting such other relief as the Court may deem just and equitable. PASHMAN STEIN WALDER HAYDEN A Professional Corporation, Attorneys for Plaintiff, Richard Rivera, LLC Dated: May 2, 2019 By: /s CJ GRIFFIN 14 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 15 of 94 Trans ID: LCV2019774409 CERTIFICATION PURSUANT TO R. 4:5-1 Plaintiff, by its attorney, hereby certifies that the matter in controversy is not the subject of any other action pending in any Court and is likewise not the subject of any pending arbitration proceeding. Plaintiff further certifies that it has no knowledge of any contemplated action or arbitration regarding the subject matter of this action and that Plaintiff is not aware of any other parties who should be joined in this action. PASHMAN STEIN WALDER HAYDEN A Professional Corporation, Attorneys for Plaintiff, Richard Rivera, LLC Dated: May 2, 2019 By: /CJ GRIFFIN 15 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 16 of 94 Trans ID: LCV2019774409 VERIFICATION Richard Rivera, of full age, deposes and says: 1. I am the owner of Richard Rivera, LLC, the Plaintiff in the foregoing Verified Complaint. 2. I have read the Verified Complaint. The allegations of the Verified Complaint contained are true and I asked my attorney to file the OPRA request on Richard Rivera LLC’s behalf. The said Verified Complaint is based on personal knowledge and is made in truth and good faith and without collusion, for the causes set forth herein. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Dated: May 2, 2019 16 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 17 of 94 Trans ID: LCV2019774409 VERIFICATION CJ Griffin, of full age, deposes and says: 3. I am Attorney in the State of New Jersey and I represent the Plaintiff in this lawsuit. 4. I have read the Verified Complaint. At Mr. Rivera’s request, I personally filed the OPRA request on behalf of Plaintiff and certify that the facts alleged in Paragraphs 22-31 are true and accurate. The attached OPRA request and OPRA response are true and accurate copies of those documents. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. /s CJ GRIFFIN 17 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 18 of 94 Trans ID: LCV2019774409 EXHIBIT A ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 19 Of 94 Trans ID: LCV2019774409 5/1/2019 1 dead, 1 in critical condition after being shot by Newark police officer during car chase - nj.com com True Jerse . ESSEX 1 dead, 1 in critical condition after being shot by Newark police officer during car chase Updated Jan 29. 2019: Posted Jan 29, 2019 45 shares By Taylor Tiamoyo Harris NJ Advance Media for NJ.com Essex County Prosecutor?s Office announced that a Newark man has died after being shot by a Newark police officer following a car chase on Monday evening. The driver, Gregory Griffin, 46. died this afternoon at University Hospital, according to a press release from the Essex County Prosecutor's Office. The passenger. Andrew J. Dixon, 35, is currently listed in critical condition. The men were at Clinton Avenue and Thomas Street around 11:20 pm. on Monday when Newark police attempted to pull them over, said Katherine Carter. the prosecutor?s spokeswoman. It's time to significantly fund pre-k expansion - i?iil? PRE-K UURWAY aha:- 1/3 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 20 of 94 Trans ID: LCV2019774409 1 dead, 1 in critical condition after being shot by Newark police of?cer during car chase - nj.com 5/1/2019 Officers tried to stop the vehicle ?in which a handgun was observed," said Catherine Adams, a spokeswoman for the city?s Department of Public Safety. Police began the pursuit after the driver of the vehicle refused to pull over, and shots were fired at the vehicle by an officer at three separate locations, Carter said. The mile-long pursuit ended in the area of Irvine Turner Boulevard near Kinney Street. A loaded semi-automatic handgun was found in the suspect?s car, prosecutors say. The investigation by the county prosecutor's office is ongoing. Anyone with information is urged to contact the office's Professional Standards Bureau at 862-520-3700. Prudential Cente Newark given it"? ?Ms; 7K '9 I?f? at I Walgreens '1?2 L, a, 50% Q. "723?, 03> USCIS Field Office Hz) a g? .- A Nat Turner a, C. :2 Park :0 SC 0: 55 ?dwfofd JrIii/Worm Si Tj; 980m Lincoln Park 0% of o) .. a #055 ?r 3 Jesse i C) 5 Allen Park (\1Avo? AVG 0.1. r? [In' a 4 K0 If) 801E?ZPass Customer 0?39 Ave Atom? Map data @2019 Google Terms\ 500 ft Tay/or Tiamoyo Harris may be reached at tharris@njadvancemedia.com. Fol/Twitter @ladtytiamoyo. Find NJ.com on Facebook. Have a tip? Tell us. nj.com/tips Get the latest updates right in your inbox. Subscribe to NJ.com?s newsletters. View Comments (45) 2/3 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 21 of 94 Trans ID: LCV2019774409 EXHIBIT 5/1/2019 05/02/2019 2:08:51 PM Pg 22 of 94 Trans ID: LCV2019774409 OPRARequest.com OPRARequestcom ESSEX COUNTY, NJ OPRA Request #2849 Below is your OPRA request. Submitted By: CJ Griffin Date Submitted: 03/05/2019 10:35 AM Date Due: 03/14/2019 10:35 AM Department Essex County Prosecutor's Office Method of Payment No Fee Preferred Delivery: Pick-up Short Description Police shooting records Record Request Information On behalf of Richard Rivera, please produce the following records pursuant to OPRA and the common law right of access: Background: In January 2019, a Newark police officer shot and killed Greg Griffin. The police officer has now been suspended: Records sought: 1. Use of Force Reports for the incident 2. All NJSA information, including the name of the officer who shot and killed Griffin 3. Body worn camera footage 4. Dash camera footage 5. AG Use of Deadly Force Notification Report Please produce all records electronically via e-mail and they will be sent to Mr. Rivera. 1/2 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 23 of 94 Trans ID: LCV2019774409 5/1/2019 OPRARequest.com Work Log Below is the work log for OPRA request #2849. Date Action 03/14/19 09:57 Request status Update from Pending to Closed (OPRA Coordinator) 03/14/19 09:57 Records emailed and uploaded to portal. (OPRA Coordinator) 03/14/19 09:49 (Essex County Prosecutor's Office) 03/14/19 09:49 (Essex County Prosecutor's Office) 03/14/19 09:48 (Essex County Prosecutor?s Office) 03/14/19 09:48 (/index.php/request/download? download_id=42939) (Essex County Prosecutor's Office) 03/06/19 11:36 FEB 1 RAN URY_.pdf (Essex County~ Prosecutor's Office)? 03/06/19 11:35 (lindex.php/request/download? download_id=42452) (Essex County Prosecutor's Office) 03/06/19 11:34 (Essex County Prosecutor's Office) . 03/06/19 11:34 (lindex.php/request/download? download_id=42450) (Essex County Prosecutor's Office) 03/05/2019 10:35:12 AM Request submitted (cgriffin@pashmanstein.com) OPRARequest.com is not responsible for, and expressly disclaims all liability for, damages of any kind arising out of use, reference to, or reliance on any information contained within the site. All users of the site should only enter necessary data requested as all information provided through this site is considered public information subject to disclosure under applicable law. 2/2 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 24 of 94 Trans ID: LCV2019774409 EXHIBIT ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 25 Of 94 Trans ID: LCV2019774409 OFFICE OF THE ESSEX COUNTY PROSECUTOR THEODORE N. STEPHENS, II ACTING ESSEX COUNTY PROSECUTOR ESSEX COUNTY VETERANS COURTHOUSE, NEWARK, NEW JERSEY 07102 Tel: (973) 621-4700 Fax: (973) 621-5697 3T . OFFICE ROMESH C. SUKHDEO ACTING FIRST ASSISTANT PROSECUTOR MITCHELL G. ACTING CHIEF OF DETECTIVES March 6, 2019 CJ Griffin cjgriffin?pashmantein.com Re: OPRA request #2849 Dear Ms. Griffin: On March 5, 2019, the Essex County Prosecutor's Office received your request under the Open Public Records Act (OPRA) and the common law right of access pertaining to a police?involved shooting that resulted in the death of Greg C. Griffin on. January' 29, 2019. See N.J.S.A. et_ seq. Specifically, you have requested the following records: 1.Use of Force Reports for the incident 2.All NJSA information, including the name of the officer who shot and killed Griffin Body-worn camera footage 4. Dash camera footage 5..AG Use of Deadly Force Notification Report With respect to Item please find attached copies of the Press Advisory, Complaint-Warrant and Arrest Report. Please note that the records have been redacted because the ECPO is not releasing the name of the Newark police officer, at this time, for the reasons set forth in detail below. Request for records under OPRA First, the request for the name of the officer who shot and killed Griffin is denied on the ground that the investigation of the use-of-force incident is still in its infancy; it is not nearly ?substantially complete.? Consequently, the ECPO has determined that the release of the officer?s name would AN EQUAL OPPORTUNITY EMPLOYER ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 26 Of 94 Trans ID: LCV2019774409 Ms. CJ Griffin, Esq. Page 2 of 7 March 6, 2019 jeopardize and 'undermine the reliability and effectiveness of this ongoing investigation. See N.J.S.A. Attorney General Law Enforcement Directive No. 2018?1. Please note that the officer is currently suspended without pay. And as set forth in the attached Press Release, investigation is active and ongoing, but the evidence gathered, so far, raises serious questions about the officer's conduct. Consequently, this matter will be presented to a Grand Jury for possible criminal charges,? said Acting Essex County Prosecutor Stephens." Although suspended without pay, the officer has expressed his/her willingness to voluntarily testify before the Grand Jury within the next several weeks. Should the officer's name and other records be released to the public, there is serious concern that the officer? may' no longer ?voluntarily' agree to testify before the Grand Jury. Thus, release of the officer's name may jeopardize the criminal investigation and spoil a potential statement, which would also be interfering with the Grand Jurors? investigation. After the officer testifies, however, the ECPO will revisit this issue. N.J.S.A. exempts from disclosure records that ?pertain to an investigation in progress by any public agency" if their examination will be ?inimical to the public interest,? and the records were not available to the public before the investigation began. N.J.S.A. identifies categories of ?information concerning a criminal investigation? that ?shall be available to the public within 24 hours or as soon as practicable, of a request.? The statute requires disclosure of ?information as to the identity of the investigating and arresting personnel and agency.? An agency, however, may withhold the identity of the officers under section the public safety exception, when disclosure ?will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to release.? .gbid. (Emphasis added). This exception ?shall be narrowly construed to prevent disclosure of information that would be harmful to a bona fide law enforcement purpose or the public safety." Ibid. ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 27 Of 94 Trans ID: LCV2019774409 Ms. CJ Griffin, Esq. Page 3 of 7 March 6, 2019 In North Jersey Media Group, Inc. v. Township of et.al., 229 N.J. 541 (2017), the Supreme Court of New Jersey noted that: [a]s to the integrity of an ongoing investigation, courts must consider the particular reasons for non?disclosure in a given matter. Among a number of relevant factors are the nature of the details to be revealed, how extensive they are, and how they might interfere with an investigation.? Li. at 576. Here, the ECPO has made a ;particularized showing' under section 3(b) that disclosure of the officer?s name would jeopardize and 'undermine the reliability' and. effectiveness of this ongoing investigation. N.J.S.A. Clearly, there is cause for serious concern that if the officer's name is released this early in the investigation, the officer may not voluntarily testify before the Grand Jury, which the officer has currently expressed his/her willingness to do. Also, the disclosure of the identity of the officer ?would be harmful to a bona fide law enforcement purpose." 1d; at 572. The ECPO therefore satisfies the standards set forth in section and the request for the officer's name is denied in part on this basis. Second, the request is being denied on the separate and independent ground that records of ?investigations in progress? are exempt from disclosure as codified at N.J.S.A. The exemption applies to any ?record or records . . . [that] pertain to an investigation in progress by any public agency.? N.J.S.A. This definition is broader in scope than the ?criminal investigatory record? exemption because it applies to any agency investigation, not only criminal ones. Conversely, it is narrower than the criminal investigatory records exemption because it applies solely to investigations that are ongoing. Accordingly, N.J.S.A. applies to criminal investigatory records while the investigation is still in progress. Third, the request is being denied. on. the separate and independent ground that the Prosecutor's criminal investigatory file, open or closed, is not a public record and is exempt from disclosure ?under' See IKovalcik if. Somerset County Prosecutor's Office, 206 N.J. 581, 591 (201l)(recognizing that criminal investigatory records are exempt from disclosure under Bent v. Twp. of Stafford Police Dep't, 381 N.J. Super. 30 (App. Div. 2005). ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 28 Of 94 Trans ID: LCV2019774409 Ms. CJ Griffin, Esq. Page 4 of 7 March 6, 2019 Criminal investigatory records are defined in OPRA as those records which are not required by law to be made, maintained or kept on file and which are held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding. N.J.S.A. Parker v. Essex County Prosecutor's Office, GRC Complaint No. 2009-225 (October 2010). Accord Hwang v. Bergen County Prosecutor?s Office, GRC Complaint No. 2011?348, and Solloway v. Bergen County Prosecutor's Office, GRC Complaint No. 2011?39. The Government Records Council (GRC) has long held that once a record is determined to be a criminal investigatory record, it is exempt from access. See Janeczko v. Division of Criminal Justice, GRC Complaint No, 2002-79, et seg., holding that ?criminal investigatory records include records involving all manner of crimes, resolved or unresolved, and includes information that is part and parcel of an investigation, confirmed or unconfirmed.? Moreover, with respect to concluded investigations, the Council pointed out in Janeczko that, ?[the criminal investigatory records exemption] does not permit access to investigatory records once the investigation is complete." See Johnson/Press of Atlantic City v. Division of State Police, GRC Complaint No. 2004-46; Harvey v. Division of State Police, GRC Complaint No. 2004-65. Accord. Daily' Journal v. Police Department, 351. N.J. Super. 110, 120 (App. Div. 2002), certif. den., 174 N.J. 364 (2002). And in a recent case pertaining to an incident in which police used deadly force against a suspect, the New Jersey Supreme Court held that dash cam videos (MVR recordings), investigative reports and witness statements are covered by the criminal investigatory records exception because those items are not ?required by law to be made, maintained or kept on file,? and because the actions of the police pertained to an investigation. into actual. or' potential 'violations of criminal law. See North Jersey Media Group v. Township of 229 N.J. 541 (2017). Your request for the officer?s name is thus denied in part for the above reasons. Fourth, the request is Zbeing' denied. on.'the separate and independent ground that the OPRA statute excludes disclosure of 21 categories of information ?deemed to be confidential." N.J.S.A. These categories are excluded to further the legislature?s recognition that ?a public agency has a responsibility and an obligation to safeguard from public access a citizen?s personal information with which it has been entrusted. when. disclosure thereof would. violate the citizen's ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 29 Of 94 Trans ID: LCV2019774409 Ms. CJ Griffin, Esq. Page 5 of 7 March 6, 2019 reasonable expectation of privacy." N.J.S.A. To the extent that the tiocuments requested. fall within. this category the request is not a proper OPRA request. Fifth, the request is being denied on the separate and independent ground that OPRA does not require disclosure of certain. privileged. materials defined as any ?inter-agency or intra-agency advisory, consultative, or deliberative material." See N.J.S.A. A request under OPRA shall not, therefore, extend to materials which include opinions, deliberative materials, interpretations and advice about agency policies. See Bent v. Township of Stafford Police Department, Custodian of Records, supra, 381 N.J. Super. at 40, citing MAG Ent?t, LLC, supra. Sixth, the request is being denied on the separate and independent ground that the ?Confidentiality? section. of the Attorney General's Guidelines on ?Internal Affairs Policy Procedures" (Guidelines), declares that ?{t}he nature and source of internal allegations, the progress of internal affairs investigations, and the resulting materials are confidential information" and ?shall only be released under limited circumstances.? Guidelines at 11-46. One such. limited circumstance permitting disclosure is ?for good cause." Ibid. Request for Records under the Common Law Right of Access Your request also seeks access to records under the common law right of access to pmblic records. A separate analysis is now required since an OPRA exemption does not prevent a citizen from requesting access under common law principles. Bergen County Improvement Auth. v. New Jersey Media Group, Inc., 370 N.J. Super. 504, 516 (App. Div.), certif. den., 182 N.J. 143 (2004). A common law record is one that is made?by a public official in the exercise of his or her public function, either because the record was required or directed by law to be made or kept, or? because it is filed in e1 public office. Keddie v. Rutgers, State Univ., 148 N.J. 36, 49 (1997). Three requirements must be met in order to access public records under the common law: the records must be common law public documents; (ii) the person seeking access must establish an interest in the subject matter of the material; and the citizen?s right to access must be balanced against the State's interest in preventing disclosure. See North Jersey Media Group, Inc., v. Dep?t of Personnel, 389 N.J. Super. 527, 538 (Law Div. 2006). To be sure, under the common law, public records available for ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 30 Of 94 Trans ID: LCV2019774409 Ms. CJ Griffin, Esq. Page 6 of 7 March 6, 2019 insPection include any records made by public officers in the exercise of their functions. They include almost every document recorded, generated, or produced by public officials, whether or not required by law tx: be made, maintained, or kept on file. O'Shea v. Township of West Milford, 410 N.J. Super. 371, 386?387 (App. Div. 2009), quoting Daily Journal v. Police Dep't of Vineland, 351 N.J. Super. 110, 122 (App. Div.), certif. den. 174 N.J. 364 (2002). Indeed, the common law makes a much broader class of documents available than the Open Public Records Act (OPRA), but on a qualified basis. Daily Journal, supra, 351 N.J. Super. at 122. Accord Bergen County Improv. Auth. v. North Jersey Media Group, Inc., supra, 370 N.J. Super. at 504. (emphasis added). See also, Mason v. City of Hoboken, 196 N.J. 51, 67-68 (2008), quoting Keddie v. Rutgers, supra, 148 N.J. at 50. Our Supreme Court has established that a court engaging in the required balancing test may consider the following: the extent to which disclosure will impede agency functions by discouraging citizens from. providing information to the government; (ii) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed; the extent to which agency self?evaluation, program improvement, or other decision?making will be chilled by disclosure; (iv) the degree to which the information sought includes factual data as opposed to evaluative reports of policy?makers; whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency; and (vi) whether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the individual's asserted. need for the materials. O?Shea Township of West Milford, supra, 410 N.J. Super. at 387. Thus, ?the common?law right of access is not absolute.? Drinker Biddle Reath LLP, v. New Jersey Department of Law and Public Safety, Division of Law, 421 N.J. Super. 489, 499 (2011) quoting S.N.J. Newspapers, Inc. v. Twp. Of Mt. Laurel, 141 N.J. 56, 72 (1995); see also Home News v. State, Dep't of Health, 144 N.J. 446, 453 (1996). The entity seeking access must prove that its interest in obtaining the information is superior to the government's right to confidentiality. Here, the interest in withholding the identity of the officer, at this time, far outweighs your client's right to access, because disclosure of his/her name would jeopardize and undermine the reliability and effectiveness of this investigation in progress. See Renna v. ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 31 Of 94 Trans ID: LCV2019774409 Ms. CJ Griffin, Esq. Page 7 of 7 March 6, 2019 County of Union, 2013 1953566 (App. Div. 2013). The State therefore grants in part and denies in part your request for documents under OPRA and the common law right of access. With respect to Items 1, 3, 4 and 5, the Prosecutor's response is due on March 14, 2019. Finally, if your request for access to a government record has been denied or unfilled within the seven (7) business days required by law, you have a right to challenge the decision by the Prosecutor's Office and/or the County' of Essex, to :deny access. At your option, you may either institute a proceeding in the Superior Court of New Jersey or file a complaint with the Government Records Council (GRC) by completing the Denial of Access Complaint Form. You. may contact the GRC by toll-free telephone at 866-850-0511, by mail at P.O. Box 819, Trenton, NJ, 08625, by e-mail at grc@dca.state.nj.us, or at their web site at The GRC can also answer other questions about the law. All questions regarding complaints filed in Superior Court should be directed to the Court Clerk in your County. Very truly yours, LeeAnn Cunningham Assistant Prosecutor/ Special Deputy Attorney General LeeAnn.Cunningham?njecpo.org C: Acting Prosecutor Theodore N. Stephens Deputy Chief Assistant Prosecutor Ahmad Rasool Director/Assistant Prosecutor Alexander Albu Katherine Carter, Media Relations Courtney M. Gaccione, Essex County Counsel Valentina Palchetti, Essex County OPRA Custodian of Records Gary S. Lipshutz, Asst. Corporation Counsel, City of Newark ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 32 Of 94 Trans ID: LCV2019774409 . . . . .. Essex County Veterans Courthouse THEODORE . STEPHENS, II Newark, New Jersey 07102 ACTING ESSEX COUNTY PROSECUTOR (973) 621-4700 Contact: Katherine Carter (973) 621-4021 (Of?ce) (973) 289-9704 (Cell.51.,34? I . 1" Police Involved Shooting Referred to Grand Jury Newark -- Acting Essex County Prosecutor Theodore N. Stephens, 11, announced today that the police?involved shooting that occurred on Jan. 28, in which a Newark police of?cer shot and killed one individual and injured another, will be presented to a Grand Jury in accordance with New Jersey Attorney General directives governing these incidents. ?The investigation is active and ongoing, but the evidence gathered, so far, raises serious questions about the officer?s conduct. Consequently, this matter will be presented to a Grand Jury for possible criminal charges,? said Acting Essex County Prosecutor Stephens. Attorney General Directive (2018- 1) requires disclosure of body worn video within 20 days or upon substantial completion of the investigation. Although transParency is of the utmost importance in this kind of investigation, our of?ce cannot release the footage at this time without compromising the integrity of the ongoing investigation. ?Serious investigations, as always, have been handled in a thorough and competent manner by this office for many years and the Essex County Prosecutor?s Office is ready, willing and able to represent the public in the interest of justice,? Acting Prosecutor Stephens added. The shooting occurred on Monday, Jan. 28, at approximately 11:30 pm when at Newark police officer attempted to stop a motor vehicle for erratic driving in the area of Avenue and Thomas Street. During that stop, it is alleged that the officer saw a handgun. While the of?cer called for backup, the driver of the vehicle drove away. Page 1 of 2 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 33 Of 94 Trans ID: LCV2019774409 A pursuit ensued involving multiple police cars. It is alleged that an officer that joined the pursuit fired multiple gunshots, hitting both the driver and the passenger of the vehicle in the head. The driver ultimately died, while the passenger survived. The investigation is being conducted by the Essex County Prosecutor?s Of?ce Professional Standards Bureau. Anyone with information is asked to contact the Professional Standards Bureau at 862-520?3700. Page 2 of 2 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 34 Of 94 Trans ID: LCV2019774409 i?ttlt?lgt?tiet It: IAIN .4 .. . . - . f1" W?tb?s?n. 1855:: TINU BERE 35NEW JERSEY 53-0 344 933.1 I I: 9"Ii 33.9051 45? VS, IR.- :ac'e?r'rqoumqe?z. sesame: in. me. 5 YEAR: "a New I ANDREW DIXON NEWARK MUNICIPAL COURT ADDRESS 3 1 GREEN STREET 12 AVE NEWARK NJ 07102?0000 973-733-6520 COUNTYOF: ESSEX NEWARK NJ 07108-0000 of CHARGES POLICE CASE DEFENDANT INFORMATION 2 (219004963 SEX: EYE COLOR: BROWN DOB: 03/04/1984 COMPLAINANT perm LIC. DL STATE: NAME: 22 smut: s'r SOCIAL SECURITY SBI 5 63 57 6C ATTN RECORD BUREAU TELEPHONE NEWARK NJ 07102 LIVESCAN PCN 071418015439 By certification or on oath, the complainant says that to the best of his/her knowledge. information and belief the named defendant on or about NEWARK CITY ESSEX County,NJ did: WITHIN THE JURISDICTION OF THIS COURT, DEFENDANT DID KNOWINGLY AND PURPOSELY COMMIT THE ACT OF BEING IN POSSESSION OF AN UNLAWFUL HANDGUN FOR UNLAWFUL PURPOSE. IN VIOLATION OF NJS . WITHIN THE JURISDICTION OF THIS COURT, DEFENDANT DID KNOWINGLY AND PURPOSELY COMMIT THE ACT OF BEING IN POSSESSION OF PROHIBITED WEAPONS AND DEVICES - HOLLOW IN VIOLATION OF NJS in violation of: Original Charge 1) 2) 3) AmendedCharge CERTIFICATION: I certify that the foregoing statements made by me are true. I am aware that If any of the foregoing statements made by me are willfully false, I am subject to punishment. Signed: PENA Date: 01/29/2019 You will be notified of your Central First Appenrmce/CJP date to be held at the Superior Court In the county of ESSEX at the following address: ESSEX COUNTY COURTS VETERANS COURTHOUSE 50 WEST MARKET STREET NEWARK NJ 07102-0000 Date of ArrestAppearance Date: Time: PhonePROBABLE CAUSE DETERMINATION AND ISSUANCE OF WARRANT CI Probable cause IS NOT found for the issuance of this complaint. Signature of Court Administrator or Deputy Court Date Signature of Judge Date Probable cause IS found for the issuance ofthis complaint JUDE NKAMA JUDICIAL OFFICER 01/29/2019 Signature and Title of JudicIal Of?cer Issuing Warrant Date TO ANY PEACE OR OTHER AUTHORIZED PERSON: PURSUANT TO THIS WARRANT YOU ARE HEREBY COMMANDED TO ARREST THE NAMED DEFENDANT AND BRING THAT PERSON FORTHWITH BEFORE THE COURT TO ANSWER THE COMPLAINT. Bail Amount Set: by: (it different from judicial of?cer that Issued warrant) Cl Related Traffic Tickets Serious Personal Injury] Death El Domestic Violence Confidential or Other Complaints Involved Special conditions of release. 321.3; ?5533? C1 No phone, mail or other personal contact wlvictim . 35.1.93.. 2- '3 "1?35 a '37: No possession firearms/weapons attir 5. an .. A "231::2 - . . aim Rim wagOther (Spec'm I ESTER . A Edit peat/11201.7 {tor 7t. .??rthti ESX- L- 003296? 19 05/02/2019 2:08:51 PM Pg 35 of 94 Trans ID LCV2019774409 I. use: af?rm . I tic-r: raring-??11?? FTA Bail Information STATE V. ANDREW DIXON Related Traffic Tickets and Complaints: Date Bail Set: Amount Bail Set: by: El Bail Recog. Attached Released R.O.R. Committed Committed Date Referred to on Bail Default w/o Bail (4) Place Commlued: County Prosecutor: Date Of First . . Defendant Desires Counsel: [It A Appearance: Ised fR by Yes El No Prosecuting Attorney Information Defense Counsel Information Name: Name: State County Municipal Other None Retained Public Def Assigned Waived Other Original Charge 1) acne-4M1) 2) 3) Amended Charge Waiver Plea/Date of Plea Plea: Date: Plea: Date: Plea: Date: . . - Finding Finding Adjudicatlon ?e Code: Date: Code: Date: Code: Date: Jail Term . . . all time credit Susp. imp Jail time credit Susp. imp Jail time credit Susp. imp Probation Term Susp. imp Susp. imp Susp. imp Cond. Discharge Term Community Service DIL Suspension Term Fines/Costs Fines: Costs: Fines: Costs: Fines: Costs: VCC NSF vcce: SNSF: VCCB: SNSF: vcce; SNSF: Fee DEDR: LAB: DEDR: LAB: DEDR: LAB: CD Fee/Drug Ed CD: DAEF: CD: DAEF: CD: DAEF: DV Surch/Other Fees Other. DV: Other. By: Other. Restitution Bene?ciary: Miscellaneous Information, Adjournments, Companion Complaints, Co-Defendants, Case Notes: 1-Gullty' Finding Codes 2 - Not Guilty 3 - Dismissed Other 4 - Guilty but Merged Dismissed-Rule 8 Dismissed Lack of Prosecution 7 - Dismissed - Pros MotionMc Req 8 - Conditional Discharge - Dismissed- Prosecutor Discretion - Dismissed- Mediation Agreement 5 - Disposed at Superior W- Dismissed-False iD To xA 3 ogg?gg?l-QLN?L wl9?'BRsA?nN? 'Zl-i if SIGNATURE DATE midi :2 113228173?; ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 36 Of 94 Trans ID: LCV2019774409 '43333. 333333 353.- 33: 3 3 33. m3" '3i35wtse -- 33:? . :33: r3.3v3. 3.3.3 . 3.3. "vi 3i 3 3. 3:35- 3. 3 3 3.3 53.3.. 31'qu as? ?1133? :31 0303 I I ej!? 3.. - .3 31c" . I: .35. t. 3333 33 33:333. 3 3 3 3 :35 31-523. 3.42. )3 I ?ft? LVN .J I: 3 . J'l'l'ul $323.3 I: it? fiiglu 3.3 54:3.? THE STATE OFNEWJERSEY OGURTGODE. .: PREFJX 5 5. ANDREW DIXON NEWARK MUNICIPAL COURT ADDRESS. 3 J. GREEN STREET 12 AVE NEWARK NJ 07102?0000 973-733-6520 COUNTYOF: ESSEX NEWARK NJ 07108-0000 of CHARGES CO-DEFTS POLICE CASE DEFENDANT INFORMATION 2 C19004963 sex: EYE COLOR: BROWN DOB: 03/04/1984 COMPLAINANT LIC. DL STATE: NAME: rem. SOCIAL SECURITY ser 56 3 57 6C TELEPHONE By certi?cation or on oath the complainant says that to the best of his/her knowledge, information and belief the named defendant on or about 01/28/2019 NEWARK CITY . essax County. NJ did: WITHIN THE JURISDICTION OF THIS COURT, DEFENDANT DID KNOWINGLY AND PURPOSELY COMMIT THE ACT OF BEING IN POSSESSION OF AN UNLAWFUL HANDGUN FOR UNLAWFUL PURPOSE. IN VIOLATION OF NJS 2C: 39? 4A(l). WITHIN THE JURISDICTION OF THIS COURT, DEFENDANT DID KNOWINGLY AND PURPOSELY COMMIT THE ACT OF BEING IN POSSESSION OF PROHIBITED WEAPONS AND DEVICES - HOLLOW IN VIOLATION OF NJS in violation of: Original Charge 1) 2) 3) Amended Charge CERTIFICATION: I certify that the foregoing statements made by me are true. I am aware that if any ofthe foregoing statements made by me are willfully false, I am subject to punishment Signed: PENA Date: 01/29/2019 You will be noti?ed 0f your Central First Appearance/CUP date to be held at the Superior Court in the county of ESSEX at the following address: ESSEX COUNTY COURTS VETERANS comm-rouse so mass MARKET STREET NEWARK. NJ 07102 - 0000 Date of ArrestAppearance Date: Time: PhonePROBABLE CAUSE DETERMINATION AND ISSUANCE OF WARRANT CI Probable cause IS NOT found for the issuance of this complaint. Signature of Court Administrator or Deputy Court Administrator Date Signature of Judge Dale Probable cause IS found for the issuance of this complaint. JUDE NKAMA JUDICIAL OFFICER 01(29[2019 Signature and Title of Judicial Officer Issuing Warrant Date TO ANY PEACE OFFICER OR OTHER AUTHORIZED PERSON: PURSUANT TO THIS WARRANT YOU ARE HEREBY COMMANDED TO ARREST THE NAMED DEFENDANT AND BRING THAT PERSON FORTHWITH BEFORE THE COURT TO ANSWER THE COMPLAINT. Bail Amount Set: by: (if di?erent tram judicial of?cer that issued warrant) . . . . Related Traffic Tickets Serious Personal injury! Death El Domestic Violence - Confidential or Other Complaints Involved Special conditions of release: El No phone, mail or other personal contact wivictim No possession. Cl Other (specify): Page 3.. 6157' 1,122017? 05/02/2019 2:08:51 PM Pg 37 Of 94 Trans ID: LCV2019774409 ?En-5 CMMITMEN I A Ju" ?n?m mug. . . .059 "t Qr A . Hr.? ami?huam L. I . groomer?Tm NEWARK MUNICIPAL COURT 31 GREEN STREET THE STA TE 0F NEWJERSEY VS. ANDREW DIXON ADDRESS: 12 AVE ATTN RECORD BUREAU NEWARK NJ 07102 NEWARK NJ 07102-0000 973-733-6520 COUNTYOF: ESSEX NEWARK NJ 07108-0000 of CHARGES CO-DEFTS POLICE CASE DEFENDANT INFORMATION 2 019004963 SEX EYE COLOR: BROWN DOB: 03/04/1984 COMPLAINANT PENA LIC. DL STATE: NAME: 22 FRANKLIN S'l? SOCIAL SECURITY -xx- SBI 56357 6c LIVESCAN 071418015439 To any Law Enforcement Official of New Jersey, You are commanded to transport this defendant to the Warden of this county who is required to keep the defendant in custody until a release or detention decision is made. Offense AUX Offense Drug Code Degree Offense Description 1- 2 POSS 0F WEAPON 2- 4 PROHIBITED WEAP 3. 4. Commitment Reason: Criminal Justice Reform You will be noti?ed of your Central First. Appearance/OJ? date to be held at the Superior Court in the county of ESSEX at the following address: ESSEX COUNTY COURTS VETERANS COURTHOUSE 50 WEST MARKET STREET mama NJ 07102-0000 DateofArrest: 01/28/2019 Phone: 973?775-9300 JUDE NKAMA JUDICIAL OFFICER 01/29/2019 Signature and Title of Judicial Of?cer issuing Warrant Date Page4of7 05/02/2019 2:08:51 PM Pg 38 Of 94 Trans ID: LCV2019774409 NEWJERSEY .. .522911939?2 VS- PREFIX ., -: -. ANDREW DIXON NEWARK MUNICIPAL COURT ADDRESS: 31 GREEN STREET 12 AVE NEWARK NJ 07102?0000 973-733-6520 comwvoe ESSEX NEWARK NJ 07108-0000 Of CHARGES CO-DEFTS POLICE CASE DEFENDANT INFORMATION 2 (219004963 SEX: EYE COLOR: BROWN DOB: 03/04/1984 COMPLAINANT PENA LIC. DL STATE: NAME: 22 FRANKLIN ST SOCIAL SECURITY m-xx- SBI 5 63 57 6C ATTN RECORD BUREAU TELEPHONE NEWARK LIVESCAN PCN 071418015439 Purpose! This Af?davit/Certification is to more fully describe the facts 0; tgle alleged o?'ense so that a judge or authorized judicial of?cer may determine pro a cause. 1. Description of relevant facts and circumstances which support probable cause that (1) the offense(s) was committed and (2) the defendant is the one who committed it: UNIT 596A (OFFICER V.SANCHEZ) INITIATED A MOTOR VEHICLE STOP AT THOMAS STREET AVENUE. THE DISPATCHER ASKED THE OFFICER DID SHE NEED A BACKUP. THE OFFICER RESPONDED THAT SHE OK. I (SERGEANT D. SPENCER) ADVISED THE DISPATCHER THAT I WOULD RESPOND. ANOTHER UNIT ALSO ADVISED THE DISPATCHER THAT THEY WOULD RESPOND. ANOTHER UNIT ALSO ADIVISED THE DISPATCHER THAT THEY WOULD RESPOND. WHILE WE WERE RESPONDING, OFFICER SAID I HAVE A 646, WHICH MEANS A WEAPON, AND SHE SAID I NEED UNITS To MY LOCATION. NOW UNITS WERE HURRYING TO GET To HER LOCATION. OFFICER SAID THE VEHICLE IS TAKING OFF, AND I SAW A HAND GUN. BEFORE I COULD GET TO HER LOCATION, THE VEHICLE HAD LEFT. UNIT 588 (OFFICERS EH. ORTIZ) ALONG WITH OTHER UNITS WERE IN PURSUIT. THE SUSPECT VEHICLE CONTINUED To ELUDE THE OFFICERS. AS THE SUSPECT VEHICLE GOT To THE INTERSECTION OF MADISON AVENUE 5. BERGEN STREET, I WAS INFORMED THE PASSENGER POINTED A GUN AT THE OFFICERS, AND OFFICER FIRED - SERVICE WEAPON. THE SUSPECT VEHICLE CONTINUED ELUDING THE OFFICERS. AS THE SUSPECT VEHICLE GOT To THE INTERSECTION OF BERGEN STREETS: SPRINGFIELD AVENUE, AGAIN I WAS INFORMED THE PASSENGER POINTED A GUN AT THE OFFICERS AND OFFICER FIRED -SERVICE WEAPON. THE SUSPECT VEHICLE CONTINUED ELUDING THE OFFICERS. WHEN THE SUSPECT VEHICLE TUNRED ONTO IRVINE TURNER BOULEVARD APPROACHING s4 IRVINE TURNER BOULEVARD, AGAIN I WAS INFORMED THE PASSENGER POINTED A GUN AT THE OFFICERS, AND OFFICER FIRED -SERVICE WEAPON. THE SUSPECT VEHICLE CAME TO A COMPLETE STOP BOTH OCCUPANTS OF THE SUSPECT VEHICLE WERE STRUCK. THE DRIVER APPEARED TO BE STRUCK IN THE HEAD. AT THE TIME OF THIS REPORT, THE IDENTITY OF THE DRIVER IS UNKNOWN. THE DRIVER WAS UNRESPONSIVE WHEN HE WAS TAKEN OUT OF THE VEHICLE BY LIEUTENANT T.RUANE 9214. THE LIEUTENANT CHECKED FOR A PULSE, AND DID NOT FEEL ONE. THE LIEUTENANT BEGAN TO ADMINISTER CPR TO THE DRIVER UNTIL EMS ARRIVED ON SCENE. THE PASSENGER, WHO WAS IDENTIFIED AS ANDREW DIXON APPEARED TO BE STRUCK IN THE FACIAL AREA. HE WAS SEMI- ALERT WHEN HE WAS TAKEN OUT OF THE VEHICLE. BOT SUSPECTS WERE TAKEN TO RUTGERS HOSPITAL. BOTH OFFICERS 8: H.0RTIZ) WERE ALSO TAKEN TO RUTGERS HOSPITAL. I TOOK CONTROL OF BOTH 8: H.0RTIZ SERVICE WEAPONS AT RUTGERS HOSPITAL. THE POLICE OFFICERS SERVICE WEAPONS WERE TURNED OVER TO CAPTAIN STEVEN ROBERTS AND LIEUTENANT THOMAS SHEEHAN OF THE ESSEX COUNTY OFFICE. . .. . 7: 955:! ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 39 Of 94 Trans ID: LCV2019774409 Affidavit of Probable cause. . . COMPLAINT NUMBER THE .STA TE OF NEW JERSEY 0714 2019 00145 . VS- cm??mm Yam ANDREW DIXON 2. i am aware of the facts above because: (Included. but not limited to: your observations,statements of eyewitnesses, defendant's admission, etc.) ONE 45CAL HANDGUN WAS RECOVERED LOADED WITH FIVE HOLLOW POINT BULLETS IN THE VEHICLE. J.DAVIS, WHO RESIDES AT 999 BROAD STREET, APT #303. NEWARK NJ 07102. THE VEHICLE WAS TOWED FOR INVESTIGATION. 3. If victim was injured, provide the extent of the injury: NO INJURY TO THE VICTIM Certification: I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Signed: PENA LAW ENFORCEMENT OFFICER Date: 01/29/2019 Affidavit of Probable Cause Page 6 of? 21202017: ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 40 of 94 Trans ID: LCV2019774409 I - . ?in; ?mg: {wi?wig :ilgiza 'isg13351,gw ?.?Iii THE STATE OF NEWJERSEY 5-32.. g/?nafy? 33:56:20? 'ulJ?? VS. . . . 95-5? Einms?eumqsumm ANDREW DIXON NEWARK MUNICIPAL COURT ADDRESS: 3 1 GREEN STREET 12 AVE NEWARK NJ 07102-0000 973-733?6520 COUNTYOF: ESSEX NEWARK NJ 07108-0000 of CHARGES CO-DEFTS POLICE CASE #2 DEFENDANT INFORMATION 2 019004963 SEX: EYE COLOR: BROWN DOB: 03/04/1984 COMPLAINANT PENA LIC. DL STATE: NAME: 22 FRANKLIN ST SOCIAL SECURITY SBI #1 5 63 57 5C ATTN RECORD BUREAU TELEPHONE NEWARK NJ 07102 LIVESCAN PCN #1 071413015439 Purpose: The Preliminary Law Enforcement Incident Report (PLEIR) is intended to document basic information known to the officer at the time of its preparation. It Is recognized that additional relevant information will emerge as an investigation continues. The PLEIR shall be In addition to, not in lieu of. any regular police arrest. incident. or investigation reports. Note that the PLEIR Is specific to each defendant charged in an investigation. -Another law enforcement officeris) personally observed the offense, List the officerts) and their hadgeii -The offense/incident was recorded using electronic/surveillance via: IBody-Worn Camera -A weapon was involved in the incident: IHandgun -Physica1 evidence was seized/recovered: IWeaponts) -The defendant fled, attempted flight, or resisted arrest. *Motor Vehicle pursuit Certification: I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, lam subject to punishment. Signed: PENA LAW ENFORCEMENT OFFICER Date: 01/29/2019 ermi- ~c ?arm wen-W. 55:; mg?aqwi'pa- 5134? I . .3p25. . I, f1 i ?'72 19.3.. 9-1. mg I mm; ?51? I929 1.835;? ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 41 of 94 Trans ID: LCV2019774409 NEWARK POLIC ARREST REPORT I LAST NAME FIRST MIDDLE 2 TIME AND DATE OF ARREST a SECTOR 4 PRECINCT 5 DIST COMPLT No a CENT ARREST No ANDREW a 03:55 01/29/2019 516 PRECS 2.1900706 IASFS (OR MAIDFN NAMF IF FFMAI Fl 11 OTHER 1? TNO 12 EENNSILVRNIR AVE NEWARK NJ 07102 01900 4963 13 ARRESTED 14 DATE OF BIRTH 15 Pl ACF OF FIIRTH '15 AGE 17 HFIGHT 18 19 HAIR an FYFS 91 ROMPI FXION 54 IRVINE TURNER BLVD 3/4/1984 FLORIDA RACE 23 24 HISPANIC 25 MARRIED 26 CLOTHING 27 00R #1 OR CITY ORDINANCE 3 14/; SUM . 20 SOC SEC NUMBER 29 DRIVERS LICENSE NO 30 STATE 31 VEH REG NO 32 SCHOOL AND GRADE OF JUVENILE SUM . OCCUPATION 35 NAME OF EMPLOYER OR GOVERNMENT AGENCY as SCARS MARKS AND OTHER DESCRIPTIVE DATA . 2019 001451 - 37 SPECIFIC STATUTE NO f?.l ARR JUDGE C01 IRT NO DISPOSITION DATE OF DISPO FINAL CHARGE I UNLAWFUL POSSESSION 2C - WEAPON - 2c:39?3E nrm? DIM OR BODY IV 3R TIME AND DATE OF (mm 1/28/2019 23 :17 :19 TYPF OF PRFMISFS TREET 40 Pl ACF OF BERGEN AVENUE, NEWARK NJ 07108 41. OCCURRED ON PUBLIC HOUSING PROPERTY 7 .NO 42 VICTIM OR NAME 43 VICTIM 0R ADDRESS 44 TEL HOME 81 BUSINESS INVESTIGATOR I UNIT 588 480 CLINTON AVENUE. NEWARK NJ 07108 973-733-6000 . pRanI-I'ry RAG FNCF RFI 46 STRANGFR Tn STRANGFR CRIME: 4? CHECK REPORTS 219041501 UNKNOWN DP 1:002 45 OE THE ABOVE LISTED PERSON Is ARRESTED FOR THE ABOVE LISTED CEARGES REFER To DP 1:802 . NJTR -1 DNA STATUS IN CODIS DATE or INCIDENT: 01/29 .2019 WARRANT NUMBER: 2019 001451 DP 1:152 DP 1:152:1 OP CDR 48 OTHER PERSON ARRESTED (NAME) 49 CENT ARREST N0 50 OTHER PERSON ARRESTED (NAME) 51 CENT ARREST NO. 52 RECORD CHECK BY 53 RESULT OF RECORD 54 Is 55 IF WANTED aY 57 CRT NOTIPIED 5a PARTIES OF am 59 INTAKE POLICE AIDE I RECORD NOTIFIED BY JOHNSON . N0 RECORD 0 JUV REMEASED TO 01 ADDRESS PERSON RELEASED To 02 HOME TELEPHONE 63 BUSINESS TELEPHONE 64 JUVENILE DETAINED AT as PRISONER To BE YES as PRISONER TO EE V53 57 PRISONER SEARCHED BY 68 MONEY IN 69 RESTRICTIONS 70 ICE NOTIFIED FINGERPRINTED PHOTOGRAPHED NO N0 DYES NO DYES 71 SIGNATURE OF OFFICER ICOMMAND IID NO OF DUTY 72 READ CLASSIFIED AND APPROVED BY 5th Prec E3 6690 LT RUBEL, KIRK 73 ASSIGNFD To 74INVESTIGATIDN COMPLETED (SIGNATURE or 75 Ta Down 77 mm INT 7A RAII SFT OR En RY 79 SIGNATIIRF OF PFRSON PAROI Fn TD 80 LIEUTENANT ACCEPTING BAIL OR ING PRISONER BI COMMITTED IN DEFAULT OF BAIL EYES EINO COMMITTED WITHOUT BAIL DIRECTLY TO ARRAIGNMENT TDYES DNO 02 OFFICER IN CHARGE OF PRISONER 83 SENT To CELL BLOCK BY RA AT I FII RY FIB TIMF AND DATE RFC Ra CPI I NC 87 TIME AND DATE T0 COURT OFFICER as POSTPONED To 89 TIME AND DATE FORM COURT OFFICER 90 PREVIOUS ARRESTS FOR BAIL DETERMINATION 91 TIME AND DATE OF JAIL OFFICER 92 NAME OF ICEAGENT 93 No am No 04 INDEXED BY 95 MICRO PROCESSED BY 9R RESERVED 97 FINGERPRINTED BY PHOTOGRAPHED BY 98 NO 56357 SC I PO CAIN CLAUD FBINO 946790x39 DFI ROD RFV194 TO BE FORWARDED TO THE MUNICIPAL COURTWHEN THE DISPOSITION IS COMPLETED TO BE FORWARDED TO THE RECORD AND IDENTIFICATION BUREAU Page 1 Of 1 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 42 of 94 Trans ID: LCV2019774409 EXHIBIT ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 43 Of 94 Trans ID: LCV2019774409 OFFICE OF THE ESSEX COUNTY PROSECUTOR THEODORE N. STEPHENS, II ACTING ESSEX COUNTY PROSECUTOR ESSEX COUNTY VETERANS COURTHOUSE, NEWARK, NEW JERSEY 07102 Tel: (973) 621-4700 Fax: (973)621-5697 "2 OFFICE MITCHELL G. ACTING CHIEF OF DETECTIVES ROMESH C. SUKHDEO ACTING FIRST ASSISTANT PROSECUTOR March 12, 2019 CJ Griffin cjgriffin@pashmantein.com Re: OPRA request #2849 Dear Ms. Griffin: On. March 5, 2019, the Essex County Prosecutor?s Office received your request under the Open Public Records Act (OPRA) and the common law right of access, pertaining to a police-involved shooting that resulted in the death of Greg C. Griffin on January 29, 2019. Se_e N.J.S.A. FEEL- Specifically, you requested the following records: 1.Use of Force Reports for the incident 2.All NJSA information, including the name of the officer who shot and killed Griffin 3. Body-worn camera footage 4. Dash camera footage 5..AG Use of Deadly Force Notification Report On March 6, 2019, with respect to your request for information to be released within 24 hours pursuant to N.J.S.A. the ECPO jprovided. you. with copies of the ECPO's Press Advisory and redacted copies of the Complaint-Warrant and Arrest Report, for the reasons set forth in my March 9$ correspondence. At this juncture, the ECPO will address the balance of your OPRA request. With respect to Items #1 and 5, please find attached redacted copies of the Use of Force Reports and the AG Use of rmadly Force Notification Report. Please note that the records have been redacted for the reasons set forth in detail below. AN EQUAL OPPORTUNITY EMPLOYER ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 44 of 94 Trans ID: LCV2019774409 Ms. CJ Griffin, Esq. Page 2 of 8 March 12, 2019 With respect to Items #3 and although transparency is of the utmost importance in police-involved shootings, the ECPO cannot release the officer's name and the BWC and dash?cam videos, at this time, without compromising the integrity of the ongoing investigation. gee N.J.S.A. Attorney General Law Enforcement Directive No. 2018-1. After the Grand Jury returns its determination, disclosure will no longer present an issue with regard to the investigation?s integrity. Consequently, at that time, the ECPO will release unredacted copies of the Use of Force Reports and all dash-cam and BWC videos. Please be advised that the matter will be presented to a Grand Jury for possible criminal charges within the next two weeks. Request for records under OPRA First, the records have been redacted. because the investigation of the use?of?force incident is still in its infancy; it is not nearly ?substantially complete." Consequently, the ECPO has determined that the release of the officer's name who shot and killed Greg Griffin would jeepardize and undermine the reliability and effectiveness of this ongoing investigation. See N.J.S.A. Attorney General Law Enforcement Directive No. 2018?1. As previously set forth in my letter dated March 6, 2019, the officer is currently suspended without pay. And as set forth in the ECPO's Press Release, investigation is active and ongoing, but the evidence gathered, so far, raises serious questions abOut the officer's conduct. Consequently, this matter will be presented to a Grand Jury for possible criminal charges,? said Acting Essex County Prosecutor Stephens.? Although suspended without pay, the officer has expressed his/her willingness to voluntarily testify before a Grand Jury. Should the officer?s name and other records be released to the public, there is serious concern that the officer may no longer voluntarily agree to testify befOre a Grand Jury. Thus, release of the officer?s name may jeopardize the criminal investigation and spoil a potential statement, which would also be interfering with the Grand Jurors' investigation. After the officer testifies, however, the ECPO will release the records. N.J.S.A. exempts from ?disclosure records that ?pertain to an investigation in progress by any public agency? ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 45 Of 94 Trans ID: LCV2019774409 Ms. CJ Griffin, Esq. Page 3 of 8 March 12, 2019 if their examination will be ?inimical to the public interest,? and the records were not available to the public before the investigation began. N.J.S.A. identifies categories of ?information concerning a criminal investigation? that ?shall be available to the public within. 24 hours or as soon. as practicable, of a request The statute requires disclosure of ?information as to the identity of the investigating and arresting personnel and agency.? An agency, however, may withhold the identity of the officers under section the public safety exception, when disclosure ?will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to release.? Ibid. (Emphasis added). This exception ?shall be narrowly construed to prevent disclosure of information that would be harmful to a bona fide law enforcement purpose or the public safety." lbig; In North Jersey Media Group, Inc. v. Township of et.al., 229 1N.J. 541 (2017), the Supreme Court, of ZNew niersey noted that: [a]s to the integrity of an ongoing investigation, courts must consider the jparticular reasons for' non-disclosure in. a given matter. Among a number of relevant factors are the nature of the details to be revealed, how extensive they are, and how they might interfere with an investigation.? Ed; at 576. Here, the ECPO has made: a 3particularized showing 'under section 3(b) that disclosure of the officer?s name would jeopardize and 1xndermine the reliability? and. effectiveness of this ongoing investigation. Clearly, there is cause for serious concern that if the officer?s name is released this early in the investigation, the officer may not voluntarily testify before a Grand Jury, which the officer has currently expressed his/her willingness to do. Also, the disclosure of the identity of the officer ?would be harmful to a bona fide law enforcement purpose.? Ed; at 572. The ECPO therefore satisfies the standards set forth in section and the request for the officer?s name is denied in part on this basis. Second, the requests are being denied on the separate and independent ground that records of ?investigations in progress? ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 46 Of 94 Trans ID: LCV2019774409 Ms. CJ Griffin, Esq. Page 4 of 8 March 12, 2019 are exempt from disclosure as codified at N.J.S.A. The exemption applies to any ?record or records . . . [that] pertain to an investigation in progress by any public agency.? N.J.S.A. This definithmi is broader in scope than the ?criminal investigatory record" exemption because it applies to any agency investigation, not only criminal ones. Conversely, it is narrower than the criminal investigatory records exemption because it applies solely to investigations that are ongoing. Accordingly, N.J.S.A. 47zlA-3 applies to criminal investigatory records while the investigation is still in progress. Third, the requests are being denied on the separate and independent ground that the Prosecutor's criminal investigatory file, open or closed, is not a public record and is exempt from disclosure 'under' N.J.S.A. See Kovalcik; v. Somerset County Prosecutor's Office, 206 N.J. 581, 591 (2011)(recognizing that criminal investigatory records are exempt from d?sclosure under Bent in Twp. of Stafford Police Dep?t, 381 N.J. Super. 30 (App. Div. 2005). Criminal investigatory records are defined in OPRA as those records which are not required by law to be made, maintained or kept on file and which are held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding. N.J.S.A. Parker v. Essex County Prosecutor?s Office, GRC Complaint No. 2009?225 (October 2010). Accord HMang in Bergen County Prosecutor?s Office, GRC Complaint No. 2011?348, and Solloway v. Bergen County Prosecutor's Office, GRC Complaint No. 2011?39. The Government Records Council (GRC) has long held that once a record is determined to be a criminal investigatory record, it is exempt from access. See Janeczko v. Division of Criminal Justice, GRC Complaint No, 2002-79, at seg., holding that ?criminal investigatory records include records involving all manner of crimes, resolved or unresolved, and includes information that is part and parcel of an investigation, confirmed or unconfirmed.? Moreover, with respect to concluded investigations, the Council pointed out in Janeczko that, ?[the criminal investigatory records exemption] does not permit access to investigatory records once the investigation is complete." See Johnson/Press of Atlantic City v. Division of State Police, GRC Complaint No.. 2004?46; Harvey v. Division of State Police, GRC Complaint No. 2004?65. Accord. Daily' Journal v. Police Department, 351. N.J. Super. 110, 120 (App. Div. 2002), certif. den., 174 IJHI. 364 (2002). ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 47 of 94 Trans ID: LCV2019774409 Ms. CJ Griffin, Esq. Page 5 of 8 March 12, 2019 And in a recent case pertaining to an incident in which police used deadly force against a suspect, the New Jersey Supreme Court held that dash cam videos (MVR recordings), investigative reports and witness statements are covered by the criminal investigatory records exception because those items are not ?required by law to be made, maintained or kept on file,? and because the actions of the police pertained to an investigation into actual or potential violations of criminal law. See North Jersey Media Group v. Township of 229 N.J. 541 (2017). Thus, under BWC and dash-cam footage that records potential criminal offenses are exempt from OPRA. See also, Attorney General Law Enforcement Directive No. 2018?1. Fourth, the requests are being denied on the separate and independent ground that the OPRA statute excludes disclosure of 21 categories of information ?deemed to be confidential." N.J.S.A. These categories are excluded to further the legislature's recognition that ?a public agency has a responsibility and an obligation to safeguard from public access a citizen?s personal information with which it has been entrusted.?when. disclosure thereof would. violate the citizen's reasonable expectation of privacy." N.J.S.A. To the extent that the records requested fall within this category the request is not a proper OPRA request. Fifth, the requests are being denied on the separate and independent ground that OPRA does not require disclosure of certain privileged 'materials defined as any ?inter?agency or intra-agency advisory, consultative, or deliberative material." See N.J.S.A. A request under OPRA shall not, therefore, extend to materials which include opinions, deliberative materials, interpretations and advice about agency policies. See Bent v. Township of Stafford Police Department, Custodian of Records, supra, 381 N.J. Super. at 40, citing MAG Entertainment, LLC v. Division of Alcohol Beverage Control, 375 N.J. Super. 534 (App. Div. 2005). Sixth, the requests are being denied on the separate and independent ground that the ?Confidentiality? section of the Attorney General's Guidelines on ?Internal Affairs Policy Procedures" (Guidelines), declares that ?{t}he nature and source of internal allegations, the progress of internal affairs investigations, and the resulting materials are confidential information? and ?shall only be released under limited circumstances.? Guidelines at 11-46. One such limited circumstance permitting disclosure is ?for good cause.? Ibid. ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 48 Of 94 Trans ID: LCV2019774409 Ms. CJ Griffin, Esq. Page 6 of 8 March 12, 2019 Request for Records under the Common Law Right of Access Your request also seeks access to records under the common law right of access to public records. A separate analysis is now required since an OPRA exemption does not prevent a citizen from requesting access under common law principles. Bergen County Improvement Auth. v. New JeIsey Media Group, Inc., 370 N.J. Super. 504, 516 (App. IDiv.), certif. den., 182 IJHI. 143 (2004) . A common law record is one that is made by a public official in the exercise of his or her public function, either because the record was required or directed by law to be made or kept, or because it is filed in a public office. Keddie v. Rutgers, State Univ., 148 N.J. 36, 49 (1997). Three requirements must be met in order to access public records under the common law: the records must be common law public documents; (ii) the person seeking access must establish an interest in. the subject matter of the material; and the citizen's right to access must be balanced against the State's interest in preventing d?sclosure. See North Jersey Media Group, Inc., v. Dep?t of Personnel, 389 N.J. Super. 527, 538 (Law Div. 2006). To be sure, under the common law, public records available for inspection include any records made by public officers in the exercise of their functions. They include almost every document recorded, generated, or produced by public officials, whether or not required by law to be made, maintained, or kept on file. O'Shea v. Township of West Milford, 410 N.J. Super. 371, 386-387 (App. Div. 2009), quoting Daily Journal v. Police Dep?t of Vineland, 351 N.J. Super. 110, 122 (App. Div.), certif. den. 174 N.J. 364 (2002). Indeed, the common law makes :1 much broader class of documents available than the Open Public Records Act (OPRA), but on a qualified basis. Daily Journal, supra, 351 N.J. Super. at 122. .Accord. Bergen. County" Improv. .Auth? vu North Jersey Media Group, Inc., supra, 370 N.J. Super. at 504. (emphasis added). See also, Mason v. City of Hoboken, 196 N.J. 51, 67?68 (2008), quoting Keddie v. Rutgers, supra, 148 N.J. at 50. Our Supreme Court has established that a court engaging in the required balancing test may consider the following: the extent to which disclosure will impede agency functions by discouraging citizens from providing information to the government; (ii) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed; the extent to which agency self?evaluation, program improvement, or other decision-making will be chilled by disclosure; (iv) the degree ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 49 Of 94 Trans ID: LCV2019774409 Ms. CJ Griffin, Esq. Page 7 of 8 March 12, 2019 to which the information sought includes factual data as opposed to evaluative reports of policy?makers; whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency; and (vi) whether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the individual's asserted. need for the materials. O'Shea v. Township of West Milford, supra, 410 N.J. Super. at 387. Thus, ?the common?law right of access is not absolute." E22 Drinker Biddle Reath LLP, v. New Jersey Department of Law and Public Safety, Division of Law, 421 N.J. Super. 489, 499 (2011) quoting S.N.J. Newspapers, Inc. v. Twp. Of Mt. Laurel, 141 N.J. 56, 72 (1995); see also Home News v. State, Dep?t of Health, 144 N.J. 446, 453 (1996). The entity seeking access must prove that its interest in obtaining the information is superior to the government's right to confidentiality. Here, the ECPO's interest in udthholding the identity of the officer, at this time, far outweighs your client's right to access, because disclosure of his/her name would jeopardize and undermine the reliability and effectiveness of this investigation in progress. And the release of BWC and dash-cam videos would risk tainting potential witnesses who have not yet given statements. See Renna v. County of Union, 2013 ?g 1953566 (App. Div. 2013). As set forth previously, the ECPO will release the records after the Grand Jury returns its determination. The State therefore grants in part and denies in part your request for records under OPRA and the common law right of access. Finally, if your request for access to a government record has been denied or unfilled within the seven (7) business days required by law, you have a right to challenge the decision by the Prosecutor?s Office and/or the County of Essex, to deny access. At your option, you may either institute a proceeding in the Superior Court of New Jersey or file a complaint with the Government Records Council (GRC) by' completing the IDenial of Access Complaint Form. You ?may contact the GRC by toll?free telephone at 866?850-0511, by mail at P.0. Box 819, Trenton, NJ, 08625, by e?mail at grc@dca.state.nj.us, or at their web site at The GRC can also answer other questions about the law. ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 50 Of 94 Trans ID: LCV2019774409 Ms. CJ Griffin, Esq. Page 8 of 8 March 12, 2019 All questions regarding complaints filed in Superior Court should be directed to the Court Clerk in your County. Very truly yours, \?hu/Mvw Cow/3W LeeAnn Cunningham Assistant Prosecutor/ Special Deputy Attorney General LeeAnn.Cunningham?njecpo.org C: Acting Prosecutor Theodore N. Stephens Deputy Chief Assistant Prosecutor Ahmad Rasool Director/Assistant Prosecutor Alexander Albu Katherine Carter, Media Relations Courtney M. Gaccione, Essex County Counsel Valentina Palchetti, Essex County OPRA Custodian of Records ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 51 of 94 Trans ID: LCV2019774409 EXHIBIT ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 52 Of 94 Trans ID: LCV2019774409 Page: 1 Use of force IOP No: F2019-027 Received: Feb 08, 2019 23:17 Event P19041501 Use of Force 1 Serious Level Type of service being performed at time of incident: Police Action Reason for use?ofii'orce: Other Of?cer assessment of citieen condition: Unknown Citizen was injured: Yes Gtizen was taken to hospital: Yes Citizen was chargediarrested in relation to the Incident: Yes Of?cer was Injured: Yes Of?cer was taken to hospital: Yes Distance officer was from Involvedcitlzen: Involved citizen: Medium Involved citizen Height: 5'10? to 6'0" Involved citizen: Gregory Grif?n Resistance(s): Other PO w/ Firearm Injuries/conditions: Bullet Wound(s) Charges against citizen in relation to the incident: Eluding Unlawful Possession of Weapon Of?cers inirolved: wo? Of?cer current info: Department: Chief's Of?ce Bureau: Support Services Division: Communications Snapshot: - Of?cer information at time of incident: ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 53 Of 94 Trans ID: LCV2019774409 Page: 2 Department: Chief's Office Bureau: Support Services Division: Communications Unit: 911 Call Center] Tel Rep Rank/title: Age: 26 Years of employment: 1 Years with unit: 1 Off duty: Off duty employed: Use(s) Of Force: Service Weapon: Effective Injuries/conditions: Hypertension Of?cer witnesses: Hector G. Ortiz [10395] Of?cer current info: Department: Chief's Of?ce Bureau: Operations Division: 7th Summary: On January 28, 2019 at approximately 2317 hours, Uniti: 595A (Police Of?cer Valerie Sanchez) conducted a motor vehicle stop at the intersection of Thomas Street Avenue. During the stop, Of?cer V. Sanchez said I have a 646, and i need some Units immediately. After speaking, the vehicle took off. As the Units arrived, a vehicle pursuit began. As the eluding vehicle approached the intersection of Madison Avenue Bergen Street, the passenger pointed a gun at Unit#588. Of?cer ?red at the suspects. The vehicle continued eluding the Officers. As the vehicle approached the intersection of Bergen Street St Spring?eld Avenue, the passenger pointed a gun at Unit# 588. Of?cer fired .weapon at the suspects. The vehicle again eluded the Of?cers. As the vehicle turned onto irvine Turner Blvd., again the passenger pointed his weapon at Unit# 588. Of?cer -lired .weapon at the suspects. The vehicle stopped at 54 Irvine Turner Blvd. Both suspects had been shot. The driver, Greg Grif?n was unresponsive as he was taken out of the vehicle. He appeared to have been shot in the head area. The passenger, identi?ed as Andrew Dixon appeared to be shot In the facial area. He was semi-reSponsive. Both suspects were transported to Rutgers's hOSpitai. The vehicle was towed for investigation. When/where: Date/time occurred: Jan 28 2019 23:17 Location of incident: Thomas Thomas Street Bl Ave Newark NJ 07114 Precinct: 5th County: Essex Linked files: F2019-027 (pdf) ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 54 Of 94 Trans ID: LCV2019774409 Page: 3 P19041501: Constructive Authority P19041501: Vehicle pursuit P19041501: Constructive Authority P19041501: Constructive Authority P19041501: Constructive Authority F19041501: Constructive Authority P19041501: Use of force Status] assignment information: Status: Completed Priority: High Opened: Assigned: Due: Completed: 02/11/2019 Disposition: Campleted (UOF, Pursuit} Unit assigned: Handled at field/unit level: No Investigator assign: Supervisor assign: Source of information: Online Organizational component(s): Department: Chief's Office Bureau: Support Services Division: Communications Unit: 911 Call Center:f Tel Rep Blue?ream chain routings Feb 08, 2019 16:51: Sent from SGT Derek Spencer [8027] to Rollins, Tawana J. LT [7809] Instructions: The use of Force for ?gainst Greg Grif?n. Reviewed by LT Tawana J. Rollins [7809] on Feb 11, 2019 at 00:00 Decision: Reviewer comment: Routing was NOT handled in BIueTeam. The incident was forwarded into iAPro by user DET Barbara Rosario of this roo?ng were sent to the following: Entered via BlueTeam by: SGT Derek Spencer [8027] on Feb 08, 2019 at 16:20 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 55 Of 94 Trans ID: LCV2019774409 Newark Police Department Use Of Force Report Incident Entered av: SGT Derek Spencer incident Details Date Received Date of Occurrence ?aw of Occurrence 218/2019 ?2812019 23:17 Record ID Event IOP No 39318 P19041501 Date/Time Entered 2/8/2019 16:20 incident Summary On January 28, 2019 at approximately 2317 hours, Unitas 595A (Police Officer Valerie Sanchez) conducted a motor vehicle stop at the intersection of Thomas Street 8: Avenue. During the stop, Of?cer V. Sanchez said I have a 646, and i need some Units Immediately. After speaking, the vehicle took off. As the UmtS arrived, a vehicle pursmt began. As the eluding vehicle approached the intersection of Madison Avenue Bergen Street, the passenger pointed a gun at Unit8588. Of?cer Fined at the suspects. The vehzcle continued eluding the Officers. As the vehicle approached the in ersection of Bergen Street 8: Spring?eld Avenue, the passenger painted a gun at Unltil 588. Of?cer fired .wcapon at the suspects. The vehicle again eluded the Officers. As the vehicle turned on 0 irvine Turner Bivd., again the passenger pointed his weapon at Unit# 588. Officer .lred .veapon at the suspects. The vehicle stopped at 54 lwlne Turner Blvd. Both suspects had been shot. The driver, Greg Griffin was unresponsive as he was taken out of the vehicle. He appeared to have been shot in the head area. The passenger, identified as Andrew Dixon appeared to be shot In the facial area. He was seml~responsive. Both suspects were transported to Rutgers's hosoltal. The vehicle was towed for investigation. Incident Location . Thomas Thomas Street Ave. Newark, NJ 07114 5th Use of Force Specific information Reason for Use of Force Service Being Rendered Other Police Action Weather Condition Lighting Condition Distance to Citizen Dry Night - Lights Citizen Injured Citizen Taken to Nospihl Citizen Arrested Yes Yes Yes More than 1 Citizen Involved Yes Citizen's Build Citizen's Height Medium 5?16" to 6'9" Officer. Assessment of Citizen Condition During Incident Unknown Officer(s) Injured Officer?) Taken to Hospital Yes Yes ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 56 Of 94 Trans ID: LCV2019774409 Citizen Information Gregory Grif?n Doe: Race: Black Gender: Male Types of Resistance Citizen Used Against Other . PO w/ Firearm Injuries sustained by this citizen . . Injury Regions 5 Injury_ Locations Bu?et Wound(s) i1 31 21? 4232 2 $32 2: ?tn-.1 . 9 a. i 4-{ix/(fir; t3.? 1 25:12 2'22 1 3' .5: mum ?wtg-w: Charges against this citizen - Eluding Unlawful Possessmn of Weapon invoived Officers ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 57 of 94 Trans ID: LCV2019774409 [Label Not Set]: - Farce used by this cffmar against the cItizen . Service Weapon - Was farce effective: Yes Semce Weapon mew?? Mob"? . 1* 9.1799993{murms sustained by this of?car I njury . Injury Locations Hypertension '1 1 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 58 Of 94 Trans ID: LCV2019774409 A 1.: mm? - 5% Eff-{jig {o (ifRace: Black .. Gender: Male Officer Witnesaes P10 Hector Ortiz - [Label Not Set]: 10895 Attachments"; u. 1 Chain of Cammand History ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 59 of 94 Trans ID: LCV2019774409 Entering Officer Signature Line 561' Derek Sp?'n?c?e'r ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 60 Of 94 Trans ID: LCV2019774409 EXHIBIT ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 61 Of 94 Trans ID: LCV2019774409 Page: 1. Use of force 10? No: Received: Jan 28, 2019 23:17 Event P19041501 Use of Force] Serious Level Type of service being performed at time of incident: Police Action Reason for usevofwforce: Other Officer assessment of citizen condition: Unknown Citizen was injured: Yes Citizen was taken to hospital: Yes Citizen was chargediarrested in relation to the incident: Yes Of?cer was injured: Yes Of?cer was taken to hospital: Yes Distance officer was from Invoivedcitizen: Involved citizen: Medium Involved citizen Height: 5'4" to 5'6" Involved citizen: Andrew Dixon Resistance(s): P0 w/ Firearm i?njuriesi?icontiitions: Bullet Wound(s) EMS Treated Giarges against citizen in relation to the incident: Linlawful Possession of Weapon Of?cers involved: Of?cer current info: Department: Chief's Office Bureau: Support Services Division: Communications Snapshot - Of?cer information at time of incident: Eiepa!ment: Chief's Of?ce ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 62 Of 94 Trans ID: LCV2019774409 Page; 2 Bureau: Support Services Division: Communications Unit: 911 Call Center/ Tel Rep Rank/title: Age: 26 Years of employment: 1 Years with unit: 1 Off duty: No Off duty employed: No Of?cer witnesses: P10 Hector G. Ortiz [10895] Officer current info: Department: Chief?s Of?ce Bureau: Operations Division: 7th WitneSSes: Gregory Griffin Summary: On January 28, 2019 at approximately 2317 hours, Unlt# 595A (Police Of?cer Valerie Sanchez) conducted a motor vehicle stop at the intersection of Thomas Street Avenue. During the stop, Of?cer V. Sanchez said I have a 646, and I need some Units immediately. After spea king. the vehicle took off. As the Units arrived, a vehicle pursuit began. As the eluding vehicle approached the intersection of Madison Avenue Bergen Street, the passenger pointed a gun at Unit#588. Officer ?red at the suspects. The vehicle continued eluding the Of?cers. As the vehicle approached the intersection of Bergen Street Springfield Avenue, the passenger pointed a gun at Unit# 588. Of?cer ??red.weapon at the su5pects. The vehicle again eluded the Officers. As the vehicle turned onto lrvine Turner Blvd, again the passenger pointed his weapon at Unit# 588. Of?cer??red .weapon at the suspects. The vehicle stopped at 54 Irvine Turner Blvd. Both suspects had been shot. The driver, Greg Griffin was unresponsive as he was taken out of the vehicle. He appeared to be shot in the head area.The passenger, identified as Andrew Dixon appeared to be shot in the facial area. He was semioresponsive. 80th suspects were transported to Rutgers's hospital. The vehicle was towed for investigation. When/where: Date/time occurred: Jan 28 2019 23:17 Location of Incident: Thomas Thomas Street Pennsyivania Ave Newark NJ 07114 Precinct: 5th County: Essex Linked ?les: F2019-027 (pdf) Pi9041501: Constructive Authority P19041501: Vehicle pursuit P19041501: Constructive Authority ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 63 Of 94 Trans ID: LCV2019774409 Page; 3 P19041501: Constructive Authority P19041501: Constructive Authority P19041501: Constructive Authority P19041501: Use of force Status/assignment information: Status: Completed Priority: High Opened: Assigned: Due: Completed: 02111,!2019 Disposition: Completed (UOF. Pursuit) Unit assigned: A-FIT Handled at ?eldiunit level: No Investigator assign: SGT Carlos Silva Supervisor assign: Source of information: Online Organizational componen?s): Department: Chief?s Of?ce Bureau: Operations Division: 501 Unit: Patrol Blue'i'eam chain routings Feb 08, 2019 17:20: Sent from SGT Derek Spencer [8027] to Rollins, Tawana J. LT [7809] Instructions: The use of force for ?agalnst Andrew Dixon. Reviewed by LT Tawana J. Rollins [78092 on Feb 11, 2019 at 00:00 Decision: NIA Reviewer comment: Routing was NOT handled in BiueTearn. The incident was forwarded into by user DET Barbara Rosario of this routing were sent to the following: Entered via BlueTeam by: SGT Derek Spencer [8027] on Feb 08, 2019 at 17:11 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 64 Of 94 Trans ID: LCV2019774409 Newark Police Department Use Of Force Report Incident Entered By: SGT Derek Spencer incident Details Date Received Date of Occurrence Time of Occurrence 2/8/2019 1/28/2019 23: 17 Record ID Event 109 No 39318 P19041501 F2019?027a Date/Time Entered 2/8/2019 16:20 incident Summary On January 28, 2019 at approximately 2317 hours, Unitlr (Police Officer Valerie Sanchez) conducted a moror vehicle stop at the Intersection or Thomas Street a Avenue. During the stop, Officer V. Sanchez said I have a 646, and i need some Units immediately. After speaking, the vehicle took off. As the Units arnved. a pursunt began. As the eluding vehicle approached the intersection of Madison Avenue Bergen Street, the passenger painted a gun at Unlta? SBB. Officer ??red at the suspects. The vehicle continued eluding the Officers. As the vehicle approached the intersection of Bergen Street 8: Spring?eld Avenue, the passenger pointed a gun at Unit# 588. Of?cerP?red Weapon at the suspects. The vehicle again eluded the Of?cers. As the vehicle turned on lrvine Turner Blvd., again the passenger pointed his weapon at Unltit 588. Of?cer?ired .weapon at the suspects. The vehicle stopped at 54 iNine Turner Blvd. Both suspects had been shot. The driver, Greg Griffin was unresponsive as he was taken out of the vehicle. He appeared to have been shot in the head area. The passenger, identified as Andrew Dixon appeared to be shot in the facial area. He was semi-responsive. Both suspects were transported to Rutgers?s hOSpltal. The vehicle was towed for Investigation. incident Location . Thomas Thomas Street 81 Ave, Newark, NJ 07114 - 5th Use of Force Speci?c iniormation Reason for Use of Force Service Being Rendered Other Mime Action Weather Condition Lighting Condition Distance to Citizen Dry Night - Lights Citizen Injured Citizen Taken to Hospital Citizen Arrated Yes Yes Yes More than 1 Citizen Involved Yes Citizen?s Build Citizen?s Height Medium 5'10? to 6?0" Officer Assassrnent of Citizen Condition During Incident Unknown Officer(s) Injured Officer(s) Taken to Hosnital Vets Yes ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 65 Of 94 Trans ID: LCV2019774409 Citizen Information Gregory Griffin DOB: Race: Black Gender: Male Types of Resistance Citizen Used Against Officerw) - Other lert PO w/ Firearm Injuries sustalnw by this citizen Injury .- I Regions .: thingy Locations Suite: Woum?s) . in ?3 3:Aim?g?w-vW'R-v .r 59m "t ?j twp? A .17" Eim?z?M? I I I Eff} 3.. j? NJ Lu?an mn~ .o-c '1 . 2? Km/ Charges against this citizen - Eludlng . Untawful Possession of Weapon ?waived Officers; ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 66 Of 94 Trans ID: LCV2019774409 [Label Not Set}:- Farce used by this an'ucur against the citizen . Service Weapon - Was force e?ective: Yes Payee lags. - ..-. EHcc?ng Serwce Weapon . Yes r. 34:; 4'11.19.10": .- Point-.5 w; ?n-eav saw; unis. ?01? Us: mm 1.M?Tov:51: 3 1 5 132urn?u.4.) ?n hum-ms sustaEnezd by this ofrimr Insurv . Hypertension . .. I. ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 67 Of 94 Trans ID: LCV2019774409 . Citizen Witnesses Andrew Dixon - Race: Black - Gender: Male Officer WStnewes PIO Hector Ortiz - [Label Not Set]: 10895 Attachments attachments Chain of Command Watery ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 68 Of 94 Trans ID: LCV2019774409 Entering Officer Signature Line EEO?emhcer ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 69 Of 94 Trans ID: LCV2019774409 EXHIBIT ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 70 Of 94 Trans ID: LCV2019774409 POLICE USE OF DEADLY FORCE ATTORNEY GENERAL NOTIFICATION REPORT *Immediate notification required pursuant to AG Directive 2006-5* REPORTING AGENCY INFORMATION Atlantic County Prosecutor's Office El Middlesex County? Prosecutor's Office Bergen Courity Presecutor-s Of?ce . Eli Monmouth County Presecutjoris Offirze 1] Burlington County Prosecutor?s Of?ce El 0 Morris. County Prosecutor's Of?ce Camden County Prosecutor" 5 Office Eli Ocean County. P?rosecutorIsZOffice' Cape :May County ?033??me Office; Passaic County Prosecuto??s Office? El Cumberland County Pro?Sch?tor?S O?icc: Ci Salem County Prosecmo?s Office. Essex 00.1.]th Prosecutor?s Office Somerset County Prosecutor's Of?ce Gloucester Coun'ty?P?rosecut?or's Office. CI Sussex COunty Prosecutor?s Office. ?Hudso?n County Prosecutors Of?ce El Union County Prosecutor's Office HUnterdon County Prosecutor?s Office Cl Warren; Coumy Presecutor?js Office Mercer County Prosecutor?s Office Prosecutors Case Date/Time Reported. to This incident?involves (check appropriate box): Shooting Involving Death Shooting Involving Serious Bodily Injury Shooting with No Injury Deadly Force, Other than Firearm, with No Injury Force, Otherthan Firearm, Involving Death El Force, Other than Firearm, w/Serious Injury El Conductive Energy Device (CED) (*requires completion of CED Deployment Review Report) Less Lethal Ammunition Municipal Agency lnvolved:__Newark PD Municipal Case Revised September 2015 Page 1 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 71 of 94 Trans ID: LCV2019774409 POLICE USE OF DEADLY FORCE ATTORNEY GENERAL NOTIFICATION REPORT Total Officers anOIVed*I_7__ POLICE INVOLVED Use additional space if necessary. Newark PD Hector Ortiz Gabriel Lopez Edgardo Gonzalez Valerie Sanchez Christopher Moss Ricardo Macieira White/Hispanic No Injuries Total Persons PERSONS INJURED, KILLED OR INVOLVED *Use additional space if necessary. Person 1: Gregory Griffin 12/31/72 Name (Last, First. MI) DOB Sex Race Newark NJ City State Injury Status: Killed Injured No Injury Description of Injuries: Shot in head Person 2: Andrew Dixon 35 YOA 8 Name (Last, First, MI) DOB Sex Race Newark NJ City State Injury Status: CI Killed Injured No Injury Description of Injuries: Shot in jaw Revised September 2015 Page 2 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 72 Of 94 Trans ID: LCV2019774409 POLICE USE OF DEADLY FORCE - ATTORNEY GENERAL NOTIFICATION REPORT DESCRIPTION OF INCIDENT Date and Time of Incident: 11:30 PM Date and Time Reported to Prosecutor?s Office: 11:35 PM Reported to the Prosecutor?s Office by: Essex County Sheriff?s Office Location of Incident or Street Address: Bergen St. Madison Ave. - Newark, NJ Brief Summary of Incident: On January 28, 2019, Newark Unit 595A Operated by Valerie Sanchez, effected a motor vehicle stop in the area of Ave. and Thomas St. Preliminarily, the stop appears to have been for a motor vehicle infraction. Officer Sanchez approached the vehicle, a 2017 300 bearing NJ registration 221-KUH, which was occupied by two males. While making contact with the driver, the officer observed a handgun in the vehicle and ordered the driver to shut off the vehicle. The driver rolled up the window and drove off from the location. Officer Sanchez radioed that the suspect vehicle fled from her location and broadcasted that the occupants were armed with a handgun. The suspect vehicle was located by NPD Unit 588 operated by Flo Hector Ortiz (driver) and passenger This unit attempted to stop the vehicle which continued to flee. In the area of Bergen St. and Madison Ave., the suspect vehicle stopped due to civilian traffic. At this location, Officer -exited .vehicle and approached the suspect vehicle and discharged. weapon three times. The suspect vehicle then fled north on Bergen. returned to.vehicle and the officers continued their pursuit of the suspect vehicle. In the area of Bergen St. and Springfield Ave., the suspect vehicle was again caught in traffic and -again exited .vehicle and engaged the vehicle. .again fired at the suspect vehicle. The suspect vehicle then fled until it came to a stop near 54 Irvine Turner Boulevard where again approached the vehicle and fired at the vehicle. The suspect vehicle remained at this location. Both suspects sustained gunshot wounds. Revised September 2015 Page 3 ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 73 of 94 Trans ID: LCV2019774409 EXHIBIT ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 74 of 94 Trans ID: LCV2019774409 CJ Griffin From: CJ Griffin Sent: Monday, April 8, 2019 5:12 PM To: 'LeeAnn Cunningham' Cc: Valentina Palchetti Subject: RE: OPRA request #2849 Ms. Cunningham: Please consider this a renewal of Mr. Rivera?s prior OPRA request, seeking un?redacted Use of Force Reports, police body camera footage, police dash camera footage, and the name of the officer who shot Greg C. Griffin on January 29, 2019. On March 14, you indicated you should be able to produce such information "within the next two weeks.? Thank you, Griffin Partner Pashman Stein Walder Hayden, PC 201.270.4930 Direct cgrilfin@pashmanstein.com Court Plaza South, 21 Main St, Suite 200, Hackensack, NJ 07601 201.488.8200 201.488.5556 Fax PashmanStein Wald erH a?yde r1] The information transmitted herein is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Unintended transmission shall not constitute waiver of any privilege, including, without limitation, the attorney-client privilege if applicable. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited. If you received this in error, please contact the sender and delete the e-mail and any attachments from any computer. From: LeeAnn Cunningham Sent: Thursday, March 14, 2019 9:54 AM To: CJ Griffin Cc: Theodore Stephens Ahmad Rasool Alexander Albu Katherine Carter Courtney M. Gaccione Valentina Palchetti Subject: OPRA request #2849 Good morning Ms. Griffin, ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 75 of 94 Trans ID: LCV2019774409 EXHIBIT I ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 76 Of 94 Trans ID: LCV2019774409 OFFICE OF THE ESSEX COUNTY PROSECUTOR THEODORE N. STEPHENS, II ACTING ESSEX COUNTY PROSECUTOR ESSEX COUNTY VETERANS COURTHOUSE, NEWARK, NEW JERSEY 07102 Tel: (973) 621-4700 Fax: (973) 621-5697 OFFICE MITCHELL G. ACTING CHIEF OF DETECTIVES ROMESH C. SUKHDEO ACTING FIRST ASSISTANT PROSECUTOR April 16, 2019 CJ Griffin, Esq. cjgriffin?pashmantein.com Re: OPRA request #3022 Dear Attorney Griffin: On April 9, 2019, the Essex County Prosecutor's Office received your second request under the Open Public Records Act (OPRA) and the common law right of access, pertaining to aa police-involved shooting that resulted in the death of Greg C. Griffin on January 29, 2019. N.J.S.A. gt Egg. Specifically, you have requested the following records: .Unredacted Use of Force Reports .Body-worn camera footage .Dash-camera footage .The name of the officer who shot Greg C. Griffin 95>me As set forth in my previous correspondence dated March 12, 2019, although transparency is of the utmost importance in police?involved shootings, the ECPO cannot release the officer's name and. the BWC and. dash~cam 'videos, at this time, without compromising the integrity of the ongoing investigation? gee N.J.S.A. Attorney General Law Enforcement Directive NO. 2018?1. Please be advised that the matter will be presented to a Grand Jury for possible Criminal charges on April 25am but Director/Assistant Prosecutor Alexander Albu anticipates that it may require more than one day to present. AN EQUAL OPPORTUNITY EMPLOYER ecpo.org ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 77 of 94 Trans ID: LCV2019774409 CJ Griffin, Esq. Page 2 of 8 April 16, 2019 After the Grand Jury returns its determination, disclosure will no longer present an issue with regard to the investigation?s integrity. Consequently, at that time, the ECPO will release unredacted copies of the Use of Force Reports, all dash-cam and BWC videos and the officer's name who shot Greg C. Griffin. Request for records under OPRA First, the ECPO has determined that the release of the officer's name who shot and killed Greg Griffin would jeopardize and undermine the reliability and effectiveness of this ongoing investigation. See N.J.S.A., Attorney General Law Enforcement Directive No. 2018-1. As previously set forth in my March 12th letter, although the officer is currently suspended without pay, the officer has expressed his/her willingness to voluntarily testify before a Grand Jury. Should the officer?s name and other records be released 'to the public, there is serious concern that the officer may no longer 'voluntarily' agree to testify' before a Grand Jury. Thus, release of the officer?s name may jeopardize the criminal investigation and spoil a potential statement, which would also be interfering with the Grand Jurors? investigation. After the cmficer testifies, however, the ECPO will release the records. N.J.S.A. exempts from. disclosure records that ?pertain to an investigation in progress by any public agency? if their examination will be ?inimical to the public interest,? and the records were not available to the :public before the investigation began. N.J.S.A. identifies categories of ?information concerning a criminal investigation? that ?shall be available to the public within 24 hours or as soon. as ;practicab1e, of a request.? The statute requires disclosure of ?information as to the identity the investigating and arresting personnel and agency.? An agency, however, may withhold the identity of the officers under section the public safety exception, when disclosure ?will jeopardize the safety of any person or 3' eopardi ze any investigation in progress or may be otherwise inappropriate to release.? _lbid. (Emphasis added). This exception ?shall be narrowly construed to prevent disclosure of ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 78 Of 94 Trans ID: LCV2019774409 CJ Griffin, Esq. Page 3 of 8 April 16, 2019 information that would be harmful to a bona fide law enforcement purpose or the public safety.? Ibid. In North Jersey Media Group, Inc. v. Township of et.al., 229 541 (2017), the Supreme Court. of iNew .Iersey noted that: [a]s to the integrity of an ongoing investigation, courts must consider the particular reasons for non?disclosure in. a given matter. Among a number of relevant factors are the nature of the details to be revealed, how extensive they are, and how they might interfere with an investigation.? Ed; at 576. Here, the ECPO Ihas made a jparticularized showing ?under section 3(b) that disclosure of the officer's name would jeopardize and 'undermine the reliability' and. effectiveness of this ongoing investigation. N.J.S.A. Clearly, there is cause for seriOus concern that if the officer's name is released this early in the investigation, the officer may not voluntarily testify before a Grand Jury, which the officer has currently expressed his/her willingness to do. Also, the disclosure of the identity of the officer ?would be harmful to a bona fide law enforcement purpose.? Ed; at 572. The ECPO therefore satisfies the standards set forth in section and the request for the officer?s name is denied in part on this basis. Second, the requests are being denied on the separate and independent ground that records of ?investigations in progress? are exempt from disclosure as codified at N.J.S.A. The exemption applies to any ?record or records . . . [that] pertain to an investigation in progress by any public agency." N.J.S.A. This definithmi is broader in scope than the ?criminal investigatory record? exemption because it applies to any agency investigation, not only criminal ones. Conversely, it is narrower than the criminal investigatory records exemption because it applies solely to investigations that are ongoing. Accordingly, N.J.S.A. applies to criminal investigatory records while the investigation is still in progress. Third, the requests are being denied on the separate and independent ground that the Prosecutor's criminal investigatory file, open or closed, is not a public record and is exempt from disclosure under' See Kovalcik: v. Somerset County Prosecutor?s Office, 206 N.J. 581, 591 (2011)(recognizing that criminal investigatory records are exempt from disclosure ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 79 Of 94 Trans ID: LCV2019774409 CJ Griffin, Esq. Page 4 of 8 April 16, 2019 under Bent v. Twp. of Stafford Police Dep't, 381 N.J. Super. 30 (App. Div. 2005). Criminal investigatory records are defined in OPRA as those records which are not required by law to be made, maintained or kept on file and which are held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding. N.J.S.A. Parker v. Essex County Prosecutor?s Office, GRC Complaint No. 2009?225 (October 2010). Accord HMang Bergen COunty Prosecutor's Office, GRC Complaint No. 2011-348, and Solloway v. Bergen County Prosecutor?s Office, GRC Complaint No. 2011?39. The Government Records Council (GRC) has long held that once a record is determined to be a criminal investigatory record, it is exempt from access. See Janeczko v. Division of Criminal Justice, GRC Complaint No, 2002-79, et seq., holding that ?criminal investigatory records include records involving all manner of crimes, resolved or unresolved, and includes information that is part and parcel of an investigation, confirmed or unconfirmed." Moreover, with reSpect to concluded investigations, the Council pointed out in Janeczko that, ?[the criminal investigatory records exemption] does not permit access to investigatory records once the investigation is complete.? See Johnson/Press of Atlantic City v. Division of State Police, GRC Complaint No. 2004-46; Harvey v. Division of State Police, GRC Complaint No. 2004?65. Accord Daily" Journal v. Police Department, 351. N.J. Super. 110, 120 (App. Diva 2002), certif. den., 174 l?uj. 364 (2002). And in a recent case pertaining to an incident in which police used deadly force against a suspect, the New Jersey Supreme Court held that dash cam videos (MVR recordings), investigative reports and witness statements are covered by the criminal investigatory records exception because those items are not ?required by law to be made, maintained or kept on file," and because the actions of the police pertained to an investigation into actual or potential violations of criminal law. See North Jersey Media Group v. Township of 229 N.J. 541 (2017). Thus, under BWC and dash-cam footage that records potential criminal offenses are exempt from OPRA. See also, Attorney General Law Enforcement Directive No. 2018-1. Fourth, the requests are being denied on the separate and independent ground that the OPRA statute excludes disclosure of 21 categories of information ?deemed to be confidential.? N.J.S.A. These categories are excluded to further the ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 80 Of 94 Trans ID: LCV2019774409 CJ Griffin, Esq. Page 5 of 8 April 16, 2019 legislature?s recognition that ?a public agency has a responsibility and an obligation to safeguard from public access a citizen?s personal information with which it has been entrusted. when. disclosure thereof 'would. violate the citizen's reasonable expectation of privacy.? N.J.S.A. To the extent that the documents requested fall within this category the request is not a proper OPRA request. Fifth, the requests are being denied on the separate and independent ground that OPRA does not require disclosure of certain privileged materials defined as any ?inter-agency' or intra?agency advisory, consultative, cn: deliberative material.? See N.J.S.A. A request under OPRA shall not, therefore, extend to materials which include opinions, deliberative materials, interpretations and advice about agency policies. See Bent v. Township of Stafford Police Department, Custodian of Records, supra, 381 N.J. Super. at 40, citing MAG Entertainment, LLC v. Division of Alcohol Beverage Control, 375 N.J. Super. 534 (App. Div. 2005). Sixth, the requests are being denied on the separate and independent ground that the ?Confidentiality? section of the Attorney General's Guidelines on ?Internal Affairs Policy Procedures? (Guidelines), declares that ?{t}he nature and source of internal allegations, the progress of internal affairs investigations, and the resulting materials are confidential information" and ?shall only be released' under limited circumstances.? Guidelines at 11?46. One such limited circumstance permitting disclosure is ?for good cause." Ibid. Seventh, the requests are being denied on the separate and independent ground that CAD reports detailing information received by or from police dispatchers, log book notations, daily activity logs, daily bulletins, daily statistical sheets, tally sheets, and. vehicle logs all fall within the criminal investigatory records exception, because they are ?not required by law to be made, maintained or kept on file? and they ?pertain[] to any criminal investigation." 1.1; North Jersey Media Group, Inc. v. Township of et al;, 441 N.J. Super. 70 (App. Div. 2015). Request for Records under the Common Law Right of Access Your request also seeks access to records under the common law right of access to public records. A separate analysis is ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 81 Of 94 Trans ID: LCV2019774409 CJ Griffin, Esq. Page 6 of 8 April 16, 2019 now required since an OPRA exemption does not prevent a citizen from requesting access under common law principles. Bergen County Improvement Auth. v. New Jersey Media Group, Inc., 370 N.J. Super. 504, 516 (App. Div.), certif. den., 182 N.J. 143 (2004). A common law record is one that is made by a public official in the exercise of his or her public function, either because the record was required or directed by law to be made or kept, or' because it is filed. in. a gpublic office. Keddie \h Rutgers, State Univ., 148 N.J. 36, 49 (1997). Three requirements must be met in order to access public records under the common law: the records must be common law public documents; (ii) the person seeking access must establish an interest in. the subject matter of the material; and the citizen?s right to access must be balanced against the State?s interest in preventing disclosure. See North Jersey Media Group, Inc., v. Dep't of Personnel, 389 N.J. Super. 527, 538 (Law Div. 2006). To be sure, under the common law, public records available for inspection include any records made by public officers in the exercise of their functions. They include almost every document recorded, generated, or produced by public officials, whether or not required by law to be made, maintained, or kept on file. O?Shea v. Township of West Milford, 410 N.J. Super. 371, 386-387 (App. Div. 2009), quoting Daily Journal v. Police Dep?t of Vineland, 351 N.J. Super. 110, 122 (App. Div.), certif. den. 174 N.J. 364 (2002). Indeed, the common law makes a much broader class of documents available than the Open Public Records Act (OPRA), but on a qualified basis. Daily Journal, supra, 351 N.J. Super. at 122. Accord. Bergen. County" Improv. .Auth? v; North Jersey Media Group, Inc., supra, 370 N.J. Super. at 504. (emphasis added). See also, Mason v. City of Hoboken, 196 N.J. 51, 67-68 (2008), quoting Keddie v. Rutgers, supra, 148 N.J. at 50. Our Supreme Court has established that a court engaging in the required balancing test may consider the following: the extent to which disclosure will impede agenCy functions by discouraging citizens from providing information to the government; (ii) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed; the extent to which agency self?evaluation, program improvement, or other decision-making will be chilled by disclosure; (iv) the degree to which the information scught includes factual data as opposed to evaluative reports of policy?makers; whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency; and ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 82 Of 94 Trans ID: LCV2019774409 CJ Griffin, Esq. Page 7 of 8 April 16, 2019 (vi) whether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the individual?s asserted need for the materials. O?Shea. v. Township of ?West Milford, supra, 410 N.J. Super. at 387. Thus, ?the common-law right of access is not absolute.? Drinker Biddle Reath LLP, v. New Jersey Department of Law and Public Safety, Division of Law, 421 N.J. Super. 489, 499 (2011) quoting S.N.J. Newspapers, Inc. v. Twp. Of Mt. Laurel, 141 N.J. 56, 72 (1995); see also Home News v. State, Dep?t of Health, 144 N.J. 446, 453 (1996). The entity seeking access must prove that its interest in. obtaining the information. is superior tx; the government?s right to confidentiality. Here, the interest in withholding the identity of the officer, at this time, far outweighs your client?s right to access, because disclosure of his/her name would jeopardize and undermine the reliability and effectiveness of this investigation in progress. And the release of the BWC and dash- cam videos would risk tainting potential witnesses who have not yet given statements. See Renna County' of ?Union, 2013 1953566 (App. Div. 2013). As set forth previously, the ECPO will release the records after the Grand Jury returns its determination. Finally, if your request for access to a government record has been denied or unfilled within the seven (7) business days required by law, you have a right to challenge the decision by the Prosecutor?s Office and/or the County' of Essex, to deny access. At your option, you may either institute a proceeding in the Superior Court of New Jersey or file a complaint with the Government Records Council (GRC) by' completing the IDenial of Access Complaint Form. You. may contact the GRC Iby toll-free telephone at 866-850?0511, by mail at P.O. Box 819, Trenton, NJ, 08625, by e?mail at grc@dca.state.nj.us, or at their web site at The GRC can also answer other questions about the law. ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 83 Of 94 Trans ID: LCV2019774409 CJ Griffin, Esq. Page 8 of 8 April 16, 2019 All questions regarding complaints filed in Superior Court should be directed to the Court Clerk in your County. Very truly yours, WW. LeeAnn Cunningham Assistant Prosecutor/ Special Deputy Attorney General LeeAnn.Cunningham@njecpo.org C: Valentina Palchetti, Essex County OPRA Custodian of Records Deputy Chief Assistant Prosecutor Ahmad Rasool Director/Assistant Prosecutor Alexander Albu ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 84 of 94 Trans ID: LCV2019774409 EXHIBIT ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 85 Of 94 Trans ID: LCV2019774409 CJ Griffin From: CJ Griffin Sent: Friday, April 26, 2019 7:36 PM To: LeeAnn Cunningham Cc: Valentina Palchetti; Ahmad Rasool; Alexander Albu Subject: Re: OPRA request #3022 My client would like an update on this request. Thank you. Sent from my iPhone On Apr 16, 2019, at 1:32 PM, LeeAnn Cunningham wrote: Good afternoon Attorney Griffin, Please find attached my OPRA response letter pertaining to your OPRA request. Kindly confirm receipt of same. Regards, LeeAnn Cunningham LeeAnn Cunningham Assistant Prosecutor Essex County Prosecutor? 5 Office 973.621.4409 leeann.cunninjham@niecpo.org GRIFFIN OPRA RESPONSE LETTER 4.16.2019.pdf> ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 86 Of 94 Trans ID: LCV2019774409 EXHIBIT ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 87 Of 94 Trans ID: LCV2019774409 CJ Griffin - - From: LeeAnn Cunningham Sent: Tuesday, April 30, 2019 10:21 AM To: CJ Griffin Cc: Valentina Palchetti; Ahmad Rasool; Alexander Albu Subject: RE: OPRA request #3022 Good morning Attorney Griffin, Director/Assistant Prosecutor Alex Albu informed me that an insufficient number of grand jurors showed up last week. He believes that it was due to spring break for most schools. The matter is now scheduled to start on Thursday, May Alex believes it will likely take 2?3 weeks to present. Regards, LeeAnn LeeAnn Cunningham Assistant Prosecutor Essex County Prosecutor's Office 973.621.4409 Ieeann.cunningham@njecpo.org From: CJ Griffin Sent: Friday, April 26, 2019 7:36 PM To: LeeAnn Cunningham Cc: Valentina Palchetti Ahmad Rasool Alexander Albu Subject: Re: OPRA request #3022 My client would like an update on this request. Thank you. Sent from my iPhone On Apr 16, 2019, at 1:32 PM, LeeAnn Cunningham wrote: Good afternoon Attorney Griffin, Please find attached my OPRA response letter pertaining to your OPRA request. Kindly confirm receipt of same. Regards, LeeAnn Cunningham LeeAnn Cunningham ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 88 Of 94 Trans ID: LCV2019774409 EXHIBIT ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 89 Of 94 Trans ID: LCV2019774409 State 0/ New Jersey 1?1 um D. MURPI lY THE GENERAL Gunmn S. Gin-mun. WT or LAW AND PUBLIC Po Box 080 Stu-21m Y. OLIVER 'rnwrox. NJ 08625-0080 Lt. Governor ATTORNEY GENERAL LAW ENFORCEMENT DIRECTIVE NO. 2018-] TO: All Law [Enforcement Chief Executive Of?cers FROM: Gurbir S. Grewal, Attorney General DATE: February 26, 20 8 SUBJECT: Law Enforcement Directive Concerning Public Release of Video Recordings Depicting Police Deadly Force Incidents This Directive instructs that, in any case involving police use ofdeadly force as defined in Attorney General Directive 2006-5, law enforcement agencies presumptively will make available, upon formal request by the media or other public rcquestor, video footage captured by body-worn cameras and patrol vehicle dashboard-mounted cameras (?dash-cams?) once the initial investigation ofthc use-of?force incident is substantially complete. This typically will occur within 20 days of the incident itself. As discussed in Section 3 below. this Directive does not take effect unless and until the Advisory Committee on Professional Conduct advises that such public release comports with applicable Rules ofProfessional Conduct. 1. BACKGROUND A. Balancing the Benefits ol"l?ransparencv Against the Need for Conlidentialitv Records generated during a criminal investigation generally are not made available to the public. Increasingly, and with ?nancial and policy support from the Attorney General?s Of?ce. police of?cers in New Jersey are being equipped with BWCs and/or dash-cams that capture investigative activities in real time. Questions have arisen as to whether, when, and to what extent the public will have access to these recordings depicting police activity. Particular interest is focused on videos of incidents in which police of?cers use deadly force. Some advocate that such videos are unique and should. for the sake of transparency, be released immediately. In any criminal investigation, however, if video evidence is released before witnesses are interviewed. the public availability of this evidence may taint witnesses? recollections of the incident and compromise the integrity of the investigation whether that investigation pertains to a law enforcement officer, a civilian, or both. In any context other than the rare instances in which police officers use deadly force. little or no dispute would exist that a grand jury should be able to carry out its important work con?dentially, without piecemeal .IV'eu: Jersey Is All Equal Opportunity Employer - Printed on Recycled Paper and is ltecyclable ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 90 Of 94 Trans ID: LCV2019774409 Page 2 public release of evidence. In the special case of police uses of lethal force, however, the law enforcement community must take special care to foster public con?dence that the incidents will be investigated impartially, thoroughly, and expeditiously. Law enforcement must balance the public?s interest in transparency with the interest of the government and of the individuals subject to criminal investigation in fostering a fair criminal investigatory and judicial process. B. OPRA and the Common Law Right of Access The starting point for this analysis is the Open Public Records Act 47:1A-l e_t s_eq,, pursuant to which the public may request many kinds of government records. OPRA exempts ?criminal investigatory records? from disclosure if such'records are n_ot required by law to be made, maintained, or kept on ?le by a law enforcement agency, and (2) pertain to any criminal investigation. In North Jersev Media Gm. Inc. v. Two. of 229 NJ. 54], 569 (2017), the Supreme Court agreed with the Appellate Division?s ?nding that, ?when an officer turns on a mobile-video recorder to document a traf?c stop or pursuit of a suspected criminal violation of law, that recording may pertain to a ?criminal investigation,? albeit in its earliest stages.? The Supreme Court held that, under OPRA, the media was not entitled to access to dash-cam video recordings of police of?cers? high-speed pursuit and subsequent fatal shooting of a civilian, because the recordings were not required by law to be made or maintained and they pertained to a criminal investigation. Thus, under BWC and dash-cam footage that records potential criminal offenses are exempt ?om OPRA. However, the Court in ultimately granted access to the dash-cam footage under the common law right of access, a second legal basis under which the public may seek access to government records. Under the common law, once a requestor establishes a cognizable interest in the records requested, courts balance the requestor?s interest in disclosure against the govemment?s interest in con?dentiality. Courts at all levels have acknowledged that both the government and the public retain a strong interest in criminal investigations being conducted thoroughly and reliably, without the taint of early disclosure of investigative details. Despite that interest, ?the public?s interest in transparency is heightened when governmental action leads to the death of a civilian.? Lmdhurst at 580. Accordingly, the Court found that the media was entitled to the dash-cam footage under the common law because the public?s interest in disclosure of the recordings outweighed the State?s interest in preventing disclosure. Such footage could ?inform the public?s strong interest in a police shooting that killed a civilian . . . without placing potential witnesses and informants at risk,? and could be ?released without undermining the integrity of an investigation once investigators, shortly after an incident,.have interviewed the principal witnesses . . This Directive therefore assumes, consistent with the Supreme Court in that BWC and dash-cam footage depicting police of?cers? investigations of crimes including, but by no means limited to, video showing of?cers? use of deadly force falls within exemption for criminal investigatory records and therefore could be subject to compelled disclosure, if at all, only pursuant to the common law right of access. C. Building on Ongoing Initiatives to Improve Police-Communig Relations On July 28, 2015, the then-Acting Attorney General issued a Law Enforcement Directive Regarding Police Body-Wom Cameras and Stored BWC Recordings Directive?). The ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 91 Of 94 Trans ID: LCV2019774409 Page 3 BWC Directive encourages police departments to equip patrol officers with these electronic recording devices, and establishes uniform statewide standards governing use of BWCs and access to BWC footage. That same day, the then-Acting Attorney General also issued a Supplemental Directive Amending Attorney General Law Enforcement Directive No. 2006-5 (?2015 Independent Prosecutor Directive?). The 2015 Independent Prosecutor Directive ensures that all police uses of deadly force are thoroughly investigated by specialized teams that have no relationship with the subject of?cers; that all lethal force incidents involving a municipal police of?cer are investigated by the County Prosecutor, and that the police department employing the subject of?cer is excluded from the investigation; that all such cases are presented to a grand jury, unless the Attorney General or Director of the Division of Criminal Justice (?Director?) determines that the justi?ability of force is not in material dispute; that the Attorney General?s O?ice, through the Division of Criminal Justice, supervises and reviews de novo the County Prosecutor?s investigation and any determination that a case should be closed without grand jury presentation; and that the investigating agency issue a detailed public statement of facts at the conclusion of every case. Both the BWC Directive and the 2015 Independent Prosecutor Directive embrace a common overarching theme: for law enforcement agencies to ful?ll their core mission, they must earn and retain the trust, respect, and support of the communities they protect and serve. Police BWCs raise special privacy concerns. BWCs will capture images of crime victims in the moments after they have been victimized, and images of witnesses to those crimes. BWCs will capture images of the interior of private residences. They will capture images of police incident-response tactics and communications protocols, the release of which could put of?cers and members of the public in danger. We recognize, however, that where police video equipment records an event of extraordinary public signi?cance, the common-law balancing test may tip in favor of disclosure at some point. Recordings of of?cers? use of deadly force may be one such category of video where, at least in some cases, courts may compel disclosure under the common law, ?nding that the public has a strong interest in ensuring that police deadly force is used appropriately and that investigations are conducted transparently and fairly. Accordingly, pursuant to my authority under the New Jersey Constitution and the Criminal Justice Act of 1970, N.J.S.A. 52zl7B-97 to -l I hereby DIRECT all law enforcement agencies and of?cers to implement and comply with the following procedures, standards, and practices concerning the public disclosure of police deadly-force BWC and dash-cam recordings. 2. GUIDANCE T0 LAW ENFORCEMENT A. General Rule: Presumptive Disclosure Upon Substantial Completion of initial Investigation When an investigation is conducted pursuant to Attorney General Law Enforcement Directive No. 2006-5 and/or the 2015 independent Prosecutor Directive, it shall be the responsibility of the Director or the County Prosecutor to determine on a case-by-case basis whether and when a deadly-force recording will be made publicly available.I Unless the 1 This Directive applies to all force incidents as de?ned in Paragraph 1 of Directive 2006-5, speci?cally: ?[A]ny use of force by a law enforcement of?cer involving death or serious bodily ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 92 Of 94 Trans ID: LCV2019774409 Page 4 Director, or the County Prosecutor with the Director?s express approval, ?nds speci?c and compelling reasons to delay public disclosure of a deadly-force recording, such recording shall be issued publicly (1) upon substantial completion of the initial investigation and (2) upon formal request by a member of the public or media (pursuant to the common law right of access).2 It shall be within the discretion of the Director or County Prosecutor to determine precisely when the initial investigation is substantially complete. Typically, this will occur after principal, material eyewitnesses to a use-of-force event have been interviewed and a?er physical and documentary evidence most relevant to the actual use of force has been gathered. This does not, however, mean that the entire investigation must be substantially complete before disclosure of a deadly-force recording. While it is impossible to place precise temporal parameters on substantial completion of the initial investigation, generally such initial investigation should be concluded within 20 days of the use-of-force event. The initial investigation may in some cases be substantially complete before 20 days after the event. In such cases, the Director or County Prosecutor may, in his or her discretion, authorize release of the deadly-force recording sooner than 20 days after the incident occurred. Conversely, in some cases, it may take more than 20 days to substantially complete the initial investigation. In such cases, the Director or County Prosecutor may decline to authorize release of a deadly-force recording until such initial investigation is substantially complete. The Director or County Prosecutor must document the reasons that additional time is necessary, and an estimate of when substantial completion will be achieved. Such documentation must be submitted for approval to the Attorney General or designee. The written memorialization of reasons is con?dential and privileged attorney work product. Appropriate reasons for an extension beyond the 20-day period include but are not limited to: the need to review and/or redact videos to protect the privacy of victims or other persons depicted; and the need to complete interviews with principal eyewitnesses or to complete other essential aspects of initial investigation. B. Consultation With Persons Depicted in a Recording or Their Families Before releasing a deadly-force recording, the Director or County Prosecutor should consult with persons appearing in the recording (not including bystanders or people appearing only in the background) or, in the case of decedents, with their families. For example, if a video injury to a person, or where deadly force is employed with no injury, or where any injury to a person results from the use of a ?rearm by a law enforcement of?cer.? 2 As the Court held, video footage of police lethal force incidents is not subject to OPRA because it falls within the ?criminal investigatory records? exemption. However, as the Court also opined, the common law right of access stands on different footing, and may (depending on the circumstances of a given case) weigh in favor of public disclosure. In all cases, the media or a member of the public must formally request access to trigger the potential release of lethal-force video footage by the County Prosecutor or Director, upon substantial completion of the initial investigation. ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 93 Of 94 Trans ID: LCV2019774409 Page 5 tends to show that a decedent acted with the intent to cause police of?cers to end that decedent?s life, the decedent?s family members may prefer that the video not be released. Prosecutors may and should take those wishes into account in deciding how to proceed. Although this Directive permits the Director or County Prosecutor to authorize digital obscuring of civilians or of police officers who use deadly force, Prosecutors may take into account objections from affected persons, including law enforcement of?cers, that such steps will not adequately protect them. Where public release of a video would unduly compromise the safety or privacy of any person, including a law enforcement of?cer, the Prosecutor may seek approval from the Attorney General or a designee not to release the recordings, or to release at a later date. C. Editing Disclosed Cogies of Deadly-Force Recording to Protect Privacy Rights As necessary and within the discretion of the Director or County Prosecutor, the copy of any deadly-force recording publicly released pursuant to this Directive may be digitally modi?ed to obscure the identity of any person, including (but not limited to) any law enforcement of?cer who is the subject of a criminal investigation, unless the identity of such person or of?cer already has been of?cially disclosed or con?rmed. The editing shall be done in a way that does not conceal any actions by any person constituting the use of force. Further, and as made clear in the 2015 Independent Prosecutor Directive, under no circumstances may any person alter in any manner the master copy of any recording. D. Noti?cation to County Prosecutors and Attorney General Law enforcement of?cials who receive OPRA or common-law requests for BWC or dash-camera videos must, per existing policies (including the BWC Directive at Section ll.l), notify the County Prosecutor or Director of such requests within one business day of receipt. In cases involving requests for disclosure of police deadly-force recordings, the County Prosecutor (or the State Police, if it receives such a request) shall notify the Attorney General, the Director, or a designee within 24 hours of receiving the request. 3. ETHICAL CONSIDERATIONS AND EFFECTIVE DATE New Jersey Rule of Professional Conduct 3.6 prohibits an attorney from ?mak[ing] an extrajudicial statement that the lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.? Rule of Professional Conduct 3.8(f) provides that a prosecutor must ?refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.? In its March 16, 1989 notice to the bar concerning extrajudicial statements, the Supreme Court noted that ?the public production of any physical evidence? is ?inappropriate.? And in a February 17, 2017 opinion, the Advisory Committee on Professional Ethics (?Advisory Committee?) held that ?extrajudicial statements featuring displays of seized drugs, weapons, or other. contraband do not accord with the Rules of Professional Conduct 3.6 and 3.8 and are not permitted.? (Op. at 1). Public release by prosecutors of BWC or dash-cam footage of police lethal-force incidents upon substantial conclusion of the initial investigation implicates similar but not identical ethical concerns as public display of seized contraband. Every police lethal force case will result in a criminal investigation - of the involved police of?cer, of a civilian, or in some instances, both. By releasing video footage upon substantial completion of the initial ESX-L-003296-19 05/02/2019 2:08:51 PM Pg 94 of 94 Trans ID: LCV2019774409 Page 6 investigation, the prosecutor will make public evidence that relates to a criminal case that has not yet been tried or, in most instances, charged. To ensure that prosecutors stay well within the bounds of ethical conduct, my Office has submitted a request to the Advisory Committee seeking clarification on whether the public release of lethal-force recordings upon substantial completion of the initial investigation complies with applicable Rules of Professional Conduct. In that submission, my Office argues that such a public release does not con?ict with any Rule of Professional Conduct. It is impossible to know in advance, of course, how the Advisory Committee will rule on this request. Therefore, this Directive does not take effect unless and until the Advisory Committee advises that such public release comports with all applicable Rules of Professional Conduct. 4. PRESERVATION OF PRIVILEGE TO MAINTAIN CONFIDENTIALITY AND NON-ENFORCEABILITY BY THIRD PARTIES This Directive is issued pursuant to the Attorney General?s constitutional and statutory authority to ensure the uniform and efficient enforcement of criminal justice throughout the State. Neither this Directive, nor the release of any recording pursuant to this Directive, shall constitute a waiver of any privilege to maintain the con?dentiality of a record that a law enforcement agency may have under OPRA, any other statute, or the common law right of access. This Directive does not create any new requirement that any record be made, maintained or kept. Nothing in this Directive shall be construed to create any promises or any rights beyond those established under the Constitution, statutes, regulations, and decisional law of New Jersey. This Directive is to be implemented by the Division of Criminal Justice and County Prosecutors, and creates no promises or rights that other persons or entities may enforce. 5. SUPERSEDURE Any provision ofthe BWC Directive or the 20] 5 Independent Prosecutor Directive that is inconsistent with any provision of this Directive is hereby superseded to the extent of such inconsistency. All provisions of the BWC Directive and the 2015 Independent Prosecutor Directive that are not inconsistent with this Directive shall remain in full force and effect. W49. Gurbir S. Grewal Attorney General AT ST- Elie Honig Director. Division ofCriminal Justice Dated: February 26, 20 8