Sunday, October 9, 2016

OPRA lawsuit seeks Use of Force Reports filed by officers who "struggled" with "belligerent" man shortly before he died.

Prosecutor Andrew C. Carey
On Thursday, November 17, 2016 at 10 a.m., Middlesex County Assignment Judge Travis L. Francis will hear argument on an Open Public Records Act (OPRA) case that seeks the names of police officer who struggled with an allegedly belligerent man who was lying in a Highland Park street and who died shortly thereafter.  The suit also seeks Use of Force Reports, police incident reports as well as e-mails and text messages related to the incident.

The lawsuit--Libertarians for Transparent Government (LFTG) v. Middlesex County Prosecutor's Office (MCPO), et al, Docket No. MID-L-5006-16--seeks records pertaining to the June 2, 2016 death of Daniel Nagahama.  The only information thus far released about the twenty-eight year old's death is contained in the MCPO's June 4, 2016 press release entitled "Man dies hours after struggle with police."  The press release states only that Nagahama "was found on South Fifth Avenue in Highland Park on June 2, 2016 at 5:15 p.m" and that he was pronounced dead at 8:28 p.m. at Robert Wood Johnson University Hospital after "he became belligerent and struggled with" unnamed police officers who "had revived him."

The MCPO denied LFTG's request for the police incident reports and Use of Force Reports related to the incident claiming that they are Criminal Investigatory Records and thus exempt in accordance with the Appellate Division's June 11, 2015 ruling in North Jersey Media Group, Inc. v. Township of Lyndhurst.  The MCPO also refused to name the officers who had interacted with Nagahama and denied as "unduly burdensome" LFTG's request for case-related e-mails and texts sent or received by MCPO employees during a 17-day period surrounding Nagahama's death.

In her brief, LFTG's lawyer, Hackensack attorney CJ Griffin, argued that the Lyndhurst case (the case relied upon by the MCPO) was wrongly decided and that Judge Francis ought to instead follow the Appellate Division's June 30, 2016 conflicting opinion in John Paff v. Ocean County Prosecutor's Office.  Griffin wrote that the Lyndhurst case, which is being reviewed by the New Jersey Supreme Court, "has essentially shut down access to all law enforcement records that even tangentially relate to criminal investigations."  She wrote that Judge Francis is free to follow either the Lyndhurst or the Ocean County Prosecutor decision until the matter is resolved by the Supreme Court.  The MCPO filed an opposition brief on October 21, 2016.

The Borough of Highland Park was also named in the lawsuit because LFTG also requested records from the Borough's police department that related to Nagahama's death.  In its response, the Borough said that it "has been instructed by the MCPO to not release any documents while the MCPO's investigation is pending. As the MCPO is the lead law enforcement agency for Middlesex County, the Borough must follow this order, and accordingly cannot release any documents independently." 

The hearing is open to the public and press.  Its date, hour and location, however, are subject to change.  Anyone who plans to attend, should call the court offices at 732-519-3413 the day prior to confirm that the hearing date and hour have not changed.

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