Will Pastor’s OPRA requests reveal Police misconduct during COVID lockdown?

By Rubashov


Responding to an appeal by another member of the Clergy, Pastor Phil Rizzo  reached out to Police Chief Christopher M. Leusner of the Middle Township Police Department in Cape May County.  The former Commander of the Cape May County Regional SWAT Team, Chief Leusner is past President of the Cape May County Chiefs of Police Association and currently serves as President of the New Jersey State Association of Chiefs of Police.
 
Pastor Rizzo started City Baptist Church in Hoboken and another in North Bergen.  He was one of three pastors who founded a Christian school and he ministers to inner city youth.  Pastor Rizzo serves as the Chairman of an organization called AriseNJ which works with school boards and seeks to re-engage education with the core American values contained in the Bill of Rights.
 
In their telephone conversation, Pastor Rizzo explained the following to Chief Leusner:  “A local church within your jurisdiction was denied the right to have ‘drive-in‘ church services.  The pastor and congregation were prohibited from exercising their First Amendment rights by the directives coming out of your office.  They claim they were threatened with arrest and being processed with a third-degree felony.”
 
Pastor Rizzo asked for “clarification on the situation should there be any misunderstanding.”  He also asked to know the “determining factors of your decision that coerced that church to shut down.” 
 
In reply, Chief Leusner explained that he was merely following the orders of Governor Phil Murphy.  When asked by Pastor Rizzo if he could receive a written copy of those orders under the Open Public Records Act (OPRA), Chief Leusner explained that the OPRA law only applied to documents and that the orders he received were not written but rather verbal, conveyed telephonically, by conference call.
 
Pastor Brad Winship made the point last month that by his reading, the Governor’s written directives specifically exempted Houses of Worship from closure.  Pastor Rizzo left a follow-up voicemail with Chief Leusner seeking any written documents by which police were authorized to close down religious services and gatherings.  He received no response.
 
Was it possible that the citizens of an entire state had been systematically stripped of their Constitutional rights simply by verbal “orders” passed mouth to mouth by police officials?  When other members of the Clergy heard that Pastor Rizzo was asking questions, they came to him with their stories of bullying, threats, and intimidation.  They continue to come. 
 
Pastor Rizzo heard enough, now he’s using the OPRA law and formally asking law enforcement agencies across the state to account for their actions.  Even if they refuse or deny his request, he will ask senior law enforcement to memorialize, in writing, “the decisions and directives you have given your officers concerning this matter.”  Pastor Rizzo intends to write a report, detailing each case, to every religious body in New Jersey sometime in 2021 – when Governor Phil Murphy will need to explain himself to the voters.
 
Pastor Rizzo's search for answers in timely.  In one of his most famous essays, columnist George Will argued that "overcriminalization" was responsible for the death of Eric Garner, a sidewalk merchant who was killed in a confrontation with police trying to crack down on sales tax scofflaws. 
 
Will raised the question of how many new laws are created by state legislatures and by Congress in the rush to be seen to be "doing something"?  Will's brilliant column is a must read for legislators thinking about proposing their next round of ideas that will end up being enforced by men with guns.  An excerpt is printed below:

America might at long last be ready to stare into the abyss of its criminal-justice system.
 
By history’s frequently brutal dialectic, the good that we call progress often comes spasmodically, in lurches propelled by tragedies caused by callousness, folly, or ignorance. With the grand jury’s as yet inexplicable and probably inexcusable refusal to find criminal culpability in Eric Garner’s death on a Staten Island sidewalk, the nation might have experienced sufficient affronts to its sense of decency. It might at long last be ready to stare into the abyss of its criminal-justice system.
 
It will stare back, balefully. Furthermore, the radiating ripples from the nation’s overdue reconsideration of present practices may reach beyond matters of crime and punishment, to basic truths about governance.
 
Garner died at the dangerous intersection of something wise, known as “broken windows” policing, and something worse than foolish: decades of overcriminalization. The policing applies the wisdom that when signs of disorder, such as broken windows, proliferate and persist, there is a general diminution of restraint and good comportment. So, because minor infractions are, cumulatively, not minor, police should not be lackadaisical about offenses such as jumping over subway turnstiles.
 
Overcriminalization has become a national plague. And when more and more behaviors are criminalized, there are more and more occasions for police, who embody the state’s monopoly on legitimate violence, and who fully participate in humanity’s flaws, to make mistakes.
 
Harvey Silverglate, a civil-liberties attorney, titled his 2009 book Three Felonies a Day to indicate how easily we can fall afoul of America’s metastasizing body of criminal laws. Professor Douglas Husak of Rutgers University says that approximately 70 percent of American adults have, usually unwittingly, committed a crime for which they could be imprisoned. In his 2008 book, Overcriminalization: The Limits of the Criminal Law, Husak says that more than half of the 3,000 federal crimes — itself a dismaying number — are found not in the Federal Criminal Code but in numerous other statutes. And, by one estimate, at least 300,000 federal regulations can be enforced by agencies wielding criminal punishments. Citing Husak, Professor Stephen L. Carter of the Yale Law School, like a hammer driving a nail head flush to a board, forcefully underscores the moral of this story:
 
Society needs laws; therefore it needs law enforcement. But “overcriminalization matters” because “making an offense criminal also means that the police will go armed to enforce it.” The job of the police “is to carry out the legislative will.” But today’s political system takes “bizarre delight in creating new crimes” for enforcement. And “every act of enforcement includes the possibility of violence.”
 
Carter continues:
 
It’s unlikely that the New York Legislature, in creating the crime of selling untaxed cigarettes, imagined that anyone would die for violating it. But a wise legislator would give the matter some thought before creating a crime. Officials who fail to take into account the obvious fact that the laws they’re so eager to pass will be enforced at the point of a gun cannot fairly be described as public servants.
 
Garner lived in part by illegally selling single cigarettes untaxed by New York jurisdictions. He lived in a progressive state and city that, being ravenous for revenues and determined to save smokers from themselves, have raised to $5.85 the combined taxes on a pack of cigarettes. To the surprise of no sentient being, this has created a black market in cigarettes that are bought in states that tax them much less. Garner died in a state that has a Cigarette Strike Force.
 
Pastor Rizzo wants to know why senior police officers were so intent on following their political masters that they didn’t even ask for written orders, before taking away the freedom of everyone in the state.  What makes people tick who violate the very Bill of Rights they swear to uphold?
 
This is Black Lives Matter… as it applies to everyone. 
 
Unfortunately, Black Lives Matter is a racialist organization, as the great philosopher W.E.B. Du Bois defined the term.  BLM has locked itself into thinking strictly in terms of race, cannot get beyond it, and so a movement that could raise real questions on behalf of all citizens purposefully limits itself to speaking for a fraction of humankind. 
 
Black Lives Matter misses the common element in this and every other similar action by police… economic class.  The justice system treats people with money, power, and privilege – regardless of their race or ethnicity – one way and the poor and working class another.  The data is clear on this.
 
Perhaps this strategic failure is by design?  Especially when you consider who funds BLM. 
 
Will the death of George Floyd result in more reforms than the death of Eric Garner did?  Or will it quickly morph into an absurdity of accusations and demands that alienate and split?  Does anyone doubt that we will be here again?

So long as legislatures make laws, governors issue edicts, and then send men with guns to enforce them.  So long as the police forget that we are fellow citizens and not an enemy population and they an occupying army… 

Professor W.E.B. Du Bois

"At any given moment there is an orthodoxy, a body of ideas which it is assumed that all right-thinking people will accept without question. It is not exactly forbidden to say this, that or the other, but it is 'not done' to say it, just as in mid-Victorian times it was 'not done' to mention trousers in the presence of a lady. Anyone who challenges the prevailing orthodoxy finds himself silenced with surprising effectiveness. A genuinely unfashionable opinion is almost never given a fair hearing, either in the popular press or in the highbrow periodicals."

(George Orwell, aka Eric Blair)

Quoted by Chris Hedges, in his bestseller, “Death of the Liberal Class" (2010).