http://metrocrime.org/wp-content/uploads/2017/05/NO-CJS-Accountability-Report-May-2017.pdf

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Current NOPD Issues: Negotiated Settlements, Education in Lieu of Discipline, and Discipline in the Consent Decree

The Crescent City Lodge of the Fraternal Order of Police represents 1,009 active New Orleans Police Department Officers, or about 90% of all current police officers in New Orleans. There are 1,022 other members of the Crescent City Lodge, including 863 retirees, 43 NOPD Reserve Officers, 12 terminated NOPD Officers, 89 other active law enforcement officers, 4 associate members, and 11 honorary members. The Crescent City Lodge offers unmatched legal representation and offers services and benefits to members that are unrivaled. It is impossible for me to keep everyone up to date on everything the FOP is working on on behalf of our members. Here are a few highlights:

  • The FOP employs a lobbyist, Joe Mapes of Mapes & Mapes, to represent our interests in Baton Rouge during the legislative session. Since this current legislative session has been in session, there have been a number of bills introduced which are adverse to law enforcement officers. We have participated in numerous discussion, telephone conferences, meetings, etc. to either eliminate these bills or minimize their impact on FOP members. We have been working closely with the Louisiana FOP and other law enforcement groups from around the state to try to get the best outcome for law enforcement officers. In particular, a recent article in one of the law enforcement blogs, the headline read that the legislature had stripped officers of due process rights. The headline is misleading, but it is misleading because the FOP fought to ensure the due process rights of law enforcement officers were protected. You may receive emails from the Louisiana FOP asking you to participate in Voter Voice. This system allows you to send emails to your elected officials on our legislative priorities.
  • The FOP is representing several officers in civil suits resulting from accidents in police cars. In addition to providing legal representation through the FOP Legal Plan, the FOP is working with the administration to change the City’s policies as they relate to take-home cars.
  • The FOP paid for the families of Officers Jude Lewis and Natasha Hunter, both killed in the line of duty, and two escort officers, to attend the National FOP Police Week functions where their names will be added to the National Law Enforcement Memorial.

NEGOTIATED SETTLEMENTS

There seems to be an increase in the NOPD’s use of negotiated settlements. From the Department’s perspective, the use of negotiated settlements gives the Department a way to deal with disciplinary investigations and their impact on manpower. The Department’s interpretation of the consent decree has created a disciplinary system which strains our already strained manpower. Negotiated Settlements allow the Department to dispose of complaints by taking action in a way that doesn’t result in hours upon hours of work by multiple employees. Click here to view the regulation on Negotiated Settlements.

How does it work?

When complaints are received by PIB, they are analyzed for classification. Criminal allegations are sent to the criminal section, some are sent to the Independent Police Monitor for mediation, and some are deemed appropriate for Negotiated Settlement. These are minor infractions that seem fairly straightforward. Once a case is deemed appropriate for Negotiated Settlement, PIB sends a packet to the officer’s commander. Once the commander receives the packet, a Presentation Meeting is scheduled. This could be the first time the officer becomes aware of the pending complaint.

At the Presentation Meeting, the commander will provide the officer with the information regarding the complaint. This should include details of the allegations, including the particular infraction(s) and the evidence, and where the violation falls on the penalty matrix should the allegation be sustained and what the penalty will be if the officer accepts the Negotiated Settlement.

At the conclusion of the Presentation Meeting, the officer has three choices. The officer can 1) accept the offered settlement and penalty; 2) request a reflection period; or 3) reject the offered settlement.

If the officer accepts the offered settlement and penalty, then that is the end of the line. The complaint is not sent out for investigation and the settlement documents are sent up the chain of command for the necessary approvals.

If the officer requests a reflection period, then the officer gets 5 days to think about whether or not to accept the settlement and penalty. At the conclusion of the 5 days, the commander and the officer have a settlement meeting where the officer informs the commander of his decision. If the officer chooses to accept the settlement, then that is the end of the line and the paperwork is sent up the chain of command. If the officer rejects the settlement, then it is sent out for investigation. The decision to accept or reject the settlement offer can be made prior to the end of the 5 days. If no decision is made within 5 days, it is sent out for investigation.

What are the considerations?

First of all, I recommend you contact your FOP attorney regarding any Negotiated Settlement. Your FOP attorney is in a position to discuss whether or not the Negotiated Settlement is a good idea. The rules and regulations, including the disciplinary regulations, are not necessarily something officers study on a regular basis. Consulting with your FOP attorney will increase your chances of making the best possible decision. Also, bringing your FOP attorney into the situation will make you eligible for the FOP’s salary reimbursement option should you end up with a suspension.

The primary reasons for accepting a Negotiated Settlement should be that the officer did, in fact, commit the alleged infraction, and the penalty will be less than the penalty should the complaint go through the normal disciplinary process. For those officers on a promotional register, Negotiated Settlements have the added benefit of resolving a complaint as quickly as possible so that a pending investigation doesn’t interfere with a promotion.

The Bottom Line

The bottom line is that it is beneficial for some, but not all. If the officer didn’t commit the alleged dereliction, then the officer might not want to take the settlement. If the investigation, should it be investigated fully and sustained, would result in a Letter if Reprimand, and the settlement offer is a Letter of Reprimand, then the officer might want to consider letting the Department investigate. However, if the pending investigation would prevent a promotion and the officer did, in fact, violate the rules as alleged, then it may very well be in the officer’s best interest to accept the settlement. Call your FOP attorney. It will make the analysis a little easier.

EDUCATION IN LIEU OF DISCIPLINE

On May 21, newly revised regulations on discipline will become effective. One of the new options available to supervisors will be the use of education in lieu of discipline. In the case of minor, rank-initiated complaints, education may be available to replace suspensions of 10 days or less. For violations that fall in the “D” class or higher, education cannot be used to eliminate discipline, but it can still be used to reduce it. In short, for A, B, and C violations, training can be used to eliminate suspensions 10 days or fewer. For D, E, F, or G violations, or suspensions greater than 10 days, training can serve to reduce the penalty. Click here to see the new regulation on Non-Disciplinary Responses to Minor Violations and the Disciplinary Penalty Matrix (includes education in lieu of discipline).

DISCIPLINE AND THE CONSENT DECREE

After many meetings and much complaining by the FOP, there are some pending changes to the consent decree, particularly paragraphs 143, 328, and 404. The changes will relieve supervisors from responding to a level 1 use of force. In addition, disciplinary investigations which can be conclusively resolved through the use of video evidence (BWC or MVU) can be disposed of without further investigation. We recognize that investigation of complaints is an extremely important aspect of modern policing. That being said, the FOP remains committed to reducing the adverse impact these investigations have on the efficiency of an officer’s ability to do the job expected of him or her. Click here and here to see the impending changes to the consent decree. The FOP also remains committed to fair outcomes of these investigations.

One of the biggest problems facing the legal profession is that many of the people who need legal services the most cannot afford those legal services. The FOP Legal Defense Plan makes legal services available to its members at an affordable price, all contained in bi-weekly dues. Appealing a suspension would likely be beyond the financial resources of your average officer. When that appeal goes to the 4th Circuit Court of Appeal or the Louisiana Supreme Court, the ability to absorb that cost becomes even more unlikely. When an officer falls into a situation like we have seen around the country in places like Missouri, Maryland, and Minnesota, where legal representation is not an option but a requirement, it can have a life-changing impact that no officer can survive on his own. Fortunately, as an FOP member, YOU ARE NEVER ALONE. Click here for contact info.

URGENT NOPD EMPLOYEES – Take-Home Vehicles

THE FOLLOWING IS EXTREMELY IMPORTANT FOR NOPD EMPLOYEES:

The New Orleans Police Department, like many other police departments, issues take-home vehicles to some employees.  In fact, the NOPD intends to expand the number of take-home vehicles in use by department employees soon.  Recently, the NOPD ordered the first 100 of 400 new police vehicles which will be issued to FTO’s and platoon personnel.  For those officers who are issued take-home vehicles or may be issued take-home vehicles in the future, it is imperative that these officers understand the City’s take-home vehicle policy or risk personal liability in connection with these vehicles.

CAO Policy Memorandum 5(R) states that the NOPD can assign marked take-home vehicles to officers who live in Orleans Parish and travel to and from work to that location in Orleans Parish.  Otherwise, officers must live in Orleans Parish and have less than a 40-mile commute and be available and regularly called out on a 24-hour basis (think unmarked cars for detectives).  CAO Policy Memo 5(R) further states that officer assigned take-home vehicles can only use these vehicles for official purposes, including details, with one big exception.  Officers assigned take-home cars are allowed to use these vehicles for personal use when they are incidental to driving to or from work.  In other words, an officer can stop at the cleaners on the way home to pick up clean uniforms, assuming the dry cleaners is not in Tangipahoa Parish.

City vehicles should not be used to perform personal business. However, in some instances, take-home vehicles may be used to perform incidental, personal errands outside the course and scope of City business, so long as the errands are conducted to and from work without significant deviation, are brief in nature, and do not detract from the employee’s activities as a public servant.

This leads to the BIG CATCH.  The City is self-insured.  As such, it regulates its own insurance policies in conjunction with state law.  With regard to take-home vehicles, if an officer uses the vehicle for personal use, including driving to and from details, the City WILL NOT PROVIDE INSURANCE COVERAGE OR REPRESENTATION in the event of an accident and a lawsuit.

Such limited personal use, while permitted, does not fall under any coverage provided by the City’s self-insurance program.

CAO Policy Memo 5(R) Sec. XVI, Paragraph F reads as follows:

Insurance: Each Department or Authorized External User, authorized by contract, will require that every employee with a take-home vehicle provide a copy of their current personal automobile insurance policy or their current personal non-owned automobile insurance policy to the Appointing Authority. It shall be the responsibility of each department to ensure that insurance policies or proof of insurance coverage are submitted as they are renewed. Copies shall be provided to the City’s Risk Manager.

 

Vehicle use outside the scope and purpose of employment by the City, whether permissible or not, is not covered by the City’s self-insurance program. [Note that Authorized External Users are not covered by the City’s self-insurance program – See Certificate of Insurance Letter] Every employee with a take- home vehicle must endorse their current Personal Automobile Policy to provide coverage for Non-Owned Autos, including Physical Damage Coverage and provide evidence of the coverage in force. Minimum personal automobile insurance coverages and limits required of employees with take-home autos are as follows:

 

i. Automobile Liability, Bodily Injury and Property Damage Liability – Mandatory State Minimum Financial Responsibility Limits.
ii. Uninsured Motorist – No less than the Minimum Financial Responsibility limits, or your liability limits, whichever is greater.
iii. Comprehensive and Collision – Any deductibles will be the sole responsibility of the employee and will not be borne in any way by the City, for damage due to accidents outside the scope and purpose of employment by the City.
iv. Non-owned coverage including Bodily Injury and Property Damage Liability and Physical Damage (“Comprehensive” and “Collision”).

 

Any employee with a take-home vehicle that does not own a personal vehicle or have a Person Automobile Insurance Policy in force must purchase a Personal Non-Owned Automobile Liability and Physical Damage Coverage (“Comprehensive and Collision”).

 

The Auto Liability limits shall be at least the Mandatory State Minimum Financial Responsibility Limits for bodily injury and property damage. Any deductibles will be the sole responsibility of the employee and will not be borne in any way by the City, for damage due to accidents outside the scope and purpose of employment by the City.

Police Officer Jason Samuel was involved in an automobile accident driving his take-home police car on November 14, 2010.  Officer Samuel was on his way home from a detail when, while sitting at a red light, his foot slipped off the brake and he struck the vehicle in front of him.  Fortunately for Officer Samuel, he was a member of the FOP Legal Defense Plan.  The City Attorney’s office advised Officer Samuel that they would not be representing him in connection with the lawsuit following this accident.  Officer Samuel’s insurance company told him the same thing.  Officer Samuel was ultimately represented by Tony Livaccari, Livaccari Law, through the FOP Legal Defense Plan.  While the FOP Legal Plan provided Officer Samuel an attorney, it did not pay the settlement in the matter.  Ultimately, that would end up costing Officer Samuel more than $5,000.00.

Police Officer Robert Ponson is in the same boat.  Officer Ponson was involved in an accident on the way home from a detail and was involved in an accident in his assigned take-home vehicle.  Officer Ponson was also advised that the City Attorney would not provide him with representation since he was on the way home from a detail.  His insurance company indicated the City should be representing him.  Again, the FOP Legal Plan will be providing representation for Officer Ponson.

It is imperative that officers who are assigned a take-home vehicle call their insurance agents or insurance companies and arrange for non-owned vehicle coverage.  Officers should make the situation perfectly clear.  If the insurance company does not write that coverage, then the officer needs to either get an additional non-owned vehicle policy, change insurance companies, or give the take-home vehicle back.

Officers have to understand that their personal assets are exposed should they get in an accident if they are not properly insured.  It is simply not worth the risk to operate a take-home vehicle if the security of the officer’s family is compromised.  Soon, the NOPD will be offering 400 take-home vehicles to officers who might not otherwise have the opportunity to be assigned a vehicle.  The temptation will be strong.  Leaving the car at the station is not an option if the car will be used to drive to and from details.  The bottom line is get the insurance or give the car back and make sure you belong to the FOP and the FOP Legal Defense Plan.

U.S. Fifth Circuit Case Update – 1st Amendment and Terry Stops

See the below two cases for important case law out of the U.S. 5th Circuit.  Case summaries compiled by The Federal Law Enforcement Informer, Federal Law Enforcement Training Center (FLETC).

United States v. Monsivais, 848 F.3d 353 (5th Cir. Tex. Feb. 2, 2017)

While on patrol in a marked police car, two officers saw Monsivais walking on the side of an interstate highway away from an apparently disabled truck. The officer stopped the patrol car in front of Monsivais and activated the car’s emergency lights, planning to ask Monsivais if he needed assistance. As Monsivais approached, he ignored the officers and walked past their patrol car. At this point, the officers exited their vehicle, and asked Monsivais where he was going, where he had been and if he needed any help. Monsivais told the officers where he was going, and while he appeared to be nervous, he responded politely to all of the officers’ questions. After approximately four-minutes, one of the officers told Monsivais that he was going to pat Monsivais down for weapons “because of his behavior” and for “officer safety reasons.” Monsivais then told the officer that he had a firearm in his waistband. The officer seized the firearm and the government subsequently charged Monsivais with possession of a firearm while being unlawfully present in the United States.

Monsivais filed a motion to suppress the firearm. Monsivais argued that the officer violated the Fourth Amendment because he did not have reasonable suspicion to believe Monsivais was involved in criminal activity when he detained him.

The court agreed. First, the court determined that the officer seized Monsivais for Fourth Amendment purposes when he told Monsivais that he was going to pat him down. At this point, the officer had converted an offer for roadside assistance into an investigative detention or Terry stop.

Second, the court noted that police officers may briefly detain a person for investigative purposes if they can point to “specific and articulable facts” that give rise to reasonable suspicion that the person has committed, is committing, or is about to commit a crime.

Third, the court concluded that while Monsivais’ behavior might not have been typical of all stranded motorists, the officer could not point to any specific and articulable facts that Monsivais had committed, was committing, or was about to commit a crime before seizing him. The officer testified that he never suspected Monsivais was involved in criminal activity, but rather that Monsivais was acting “suspicious.” As a result, the court found that the officer seized Monsivais without reasonable suspicion and that the firearm seized from Monsivais should have been suppressed.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/15-10357/15-10357-2017-02-02.pdf?ts=1486081834

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Turner v. Driver, 848 F.3d 678 (5th Cir. Tex. Feb. 16, 2017)

In September 2015, Turner was videotaping the Fort Worth Police Station from a public sidewalk across the street from the station. During this time, Fort Worth Police Officers Grinalds and Dyess pulled up in their patrol car and approached Turner. Officer Grinalds asked Turner if he had identification, but Turner continued videotaping. When Turner asked the officers if he was being detained, Officer Grinalds told Turner that he was being detained for investigation because the officers were concerned about who was videotaping their building. After Turner refused Officer Grinalds’ continued request for identification, the officers handcuffed Turner, took his video camera, and placed Turner in their patrol car.

A short time later a supervisor, Lieutenant Driver, arrived and spoke briefly with Turner as well as Officers Grinalds and Dyess. After Lieutenant Driver left, the officers went back to their patrol car, released Turner, and returned his video camera to him.

Turner sued Lieutenant Driver and Officers Grinalds and Dyess under 42 U.S.C. § 1983 claiming that they violated his rights under the First and Fourth Amendments. The officers filed a motion to dismiss Turner’s suit, claiming they were entitled to qualified immunity.

First, the court found that at the time of the incident, in the Fifth Circuit1, there was no clearly established First Amendment right to record the police2. As a result, the court held that all three officers were entitled to qualified immunity as to Turner’s First Amendment claim.

Although the right was not clearly established at the time of Turner’s activities, the court held that going forward in the Fifth Circuit, a First Amendment right to record the police exists subject only to reasonable time, place, and manner restrictions. The court did not determine which specific time, place, and manner restrictions would be reasonable, but stated that restrictions must be “narrowly tailored to serve a significant governmental interest.”

Concerning Turner’s Fourth Amendment claims, the court held that the officers’ initial questioning and detention of Turner, before he was handcuffed and placed in the patrol car was reasonable. The court noted that an objectively reasonable person in Officer Grinalds’ or Dyess’ position could have suspected that Turner was casing the station for an attack or stalking an officer. As a result, the officers could have found Turner’s videotaping of the station sufficiently suspicious to warrant questioning and a brief detention.

However, the court held that Officers Grinalds and Dyess were not entitled to qualified immunity on Turner’s claim that handcuffing him and placing him in the officers’ patrol car amounted to an unlawful arrest. The court found that a reasonable person in Turner’s position would have understood the officers’ actions constituted a restraint on his freedom of movement to the degree associated with a formal arrest. The court commented that the officer’s actions in this regard were disproportionate to any potential threat that Turner posed or to the investigative needs of the officers. Consequently, the court concluded that handcuffing Turner and placing him in the patrol car was not reasonable under the circumstances.

Finally, the court held that Lieutenant Driver was entitled to qualified immunity as to Turner’s Fourth Amendment claims. First, under §1983, supervisors are not liable for the direct actions of their subordinates. Second, by the time Lieutenant Driver arrived, Turner had already been handcuffed and placed in the officers’ patrol car. Third, after Lieutenant Driver arrived, he immediately investigated the situation by talking with Officers Grinalds and Dyess as well as Turner, and he then promptly ordered Turner’s release.

1 The First and Eleventh Circuits have held that the First Amendment protects the rights of individuals to videotape police officers performing their duties.

2 While no circuit has held that the First Amendment does not extend to the video recording of police activity, the Third, Fourth and Tenth Circuits have held that the law in their circuits is not clearly established, without specifically determining whether such a right exists under the First Amendment.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/16-10312/16-10312-2017-02-16.pdf?ts=1487291433

The Garrity Case and Law Enforcement Officers

Garrity v. State of New Jersey, 87 S.Ct. 616 (Jan. 16, 1967) is a very important case for law enforcement officers everywhere.  It is also widely misunderstood and there are aspects of its implementation that are as of yet undecided.  The fact that this case is very important to law enforcement officers and still widely misunderstood underscores the value of the FOP Legal Defense Plan and attorneys who practice law on behalf of law enforcement officers every day.

It has been well-documented that one of the biggest legal issues people face is that they cannot afford access to the legal assistance they need.  Many legal issues go unaddressed.  I am sure that if you haven’t experienced this yourself, you probably know someone who has.  The FOP Legal Plan helps FOP members access the legal services they need.  I cannot say this enough:  Pick up the phone and call.  It doesn’t matter how important or unimportant it seems, pick up the phone and call.  As an FOP member, you have access to legal professionals at no cost to you beyond your monthly dues.  Pick up the phone and call.  Now, on to Garrity v. State of New Jersey.

Six individuals, including Police Chief Edward Garrity, four police officers, and a clerk of court were investigated by the New Jersey Attorney General at the direction of the New Jersey Supreme Court in connection with a ticket fixing racket.  During questioning, the employees were advised that:

  1. Anything he or she said might be used in a criminal proceeding;
  2. He or she had the privilege to refuse to answer if the answer would tend to be self-incriminatory; and
  3. Refusal to answer would be cause for removal from office.

The answers to their questions were used in their prosecution, over their objections, to secure their conviction for conspiracy to obstruct the administration of traffic laws.  The convictions were affirmed by the New Jersey Supreme Court and an appeal was taken to the U.S. Supreme Court.

The U.S. Supreme Court overturned the convictions, holding that police officers were “not relegated to a watered-down version of constitutional rights.”  Basically, the U.S. Supreme Court held that since they were given the choice of self-incrimination or job-forfeiture, the statements were coerced.  Since the statements were coerced, they were inadmissible.

We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.

Garrity v. State of N.J., 385 U.S. 493, 500, 87 S. Ct. 616, 620, 17 L. Ed. 2d 562 (1967).

What that boils down to for police officers is that any time their employer, or someone who is authorized to terminate the officer’s employment, informs an officer that the choice is answer questions or be fired, those answers, and any fruits of those answers, will be inadmissible in criminal proceedings against that officer.

First issue:  The person asking the questions must have the authority to terminate the officer’s employment.  For example, if an FBI Agent tells a city police officer that they are required to answer questions or be terminated, Garrity does not apply.  If a city police officer is ordered by his employer to answer the Agent’s questions or be fired, then clearly Garrity will control.

Second issue:  In order for Garrity to control, the officer must reasonably believe that he will be terminated should he refuse to answer.  If the penalty for refusing to answer is minor or non-existent, the answers will be considered voluntary and will be admissible.  It is preferable to have this ultimatum in writing.  At the very least, it should be audio recorded.  If it is not in writing or read into the record by someone in a position of authority, the officer will have to prove that he had a reasonable belief that he was under an order to answer questions or face termination.  This is not a sure thing.

Third issue:  Garrity does not stand for the proposition that officers have the option of refusing to answer incriminating statements.  It only stands for the proposition that police officers cannot be coerced into making incriminating statements by threatening their employment.  The cases known as Uniformed Sanitation I and Uniformed Sanitation II address refusal to answer and, basically, if the statements are immunized, an officer can be terminated for refusing to answer.

Fourth issue:  Garrity protects an officer from incriminating himself.  It does not mean that the statements cannot be used against someone else.

Fifth issue:  Garrity stands for the proposition that coerced statements are inadmissible in a criminal proceeding.  That may not include grand jury proceedings.

There are many other questions about the application of Garrity.

  • Can the ADA get copies of Garrity protected statements?  Yes.  If they do, they run the risk of having evidence ruled inadmissible as a result.  The DA may very well be able to use Garrity statements for Grand Jury proceedings.
  • What is the remedy if an ADA gets copies of Garrity protected statements?  That depends.  If it is possible to continue the prosecution if the statements or their fruits are excluded, it could be continued.  If, however, the statements or their fruits are so intertwined with the prosecution that there is no way to separate them from excluded statements, then the remedy could be dismissal.
  • What about statements made in police reports?  While officers are probably required to complete police reports or face disciplinary action, statements in police reports are not likely to qualify as immunized statements.  In general, statements made in the normal and usual course of business will not be immunized statements.
  • What if I write in my own Garrity warning?  There is a school of thought that if an officer perceives that he is answering questions under a thread of termination, that he should write that in.  I do not see a downside to that.  However, there is no real reason to believe it will be successful.
  • If I am ordered to answer questions, can I assert my 5th Amendment right to remain silent?  No.  In the Uniformed Sanitation II case, the court held that once you are immunized, you no longer have the right to remain silent.
  • Do the holdings in Garrity apply to breathalyzers, blood tests, etc.?  No.  Garrity applies ONLY to statements (testimonial or communicative communication).  See Schmerber v. State of California, 384 U.S. 757, 86 S. Ct. 1826 (June 20, 1966).
  • Are the contents of police reports subject to the provisions of Garrity?  No.  Documents written in the regular course of business are not going to be covered by Garrity.  In prosecution of police officer for beatings and assaults, the government’s introduction in evidence of the arrest report made out by defendant concerning the drug raid in which the complainants were arrested, and his grand jury testimony, did not implicate in any way his right against self-incrimination.  U.S. v. Rios Ruiz, C.A.1 (Puerto Rico) 1978, 579 F.2d 670.
  • What about Force Statements?  One could make the case that Force Statements are compelled testimony as the documents are created as a result of an order specifically related to the act in question.  This is not settled.  It is worth noting that most prosecutors believe these are NOT Garrity protected documents.  This may be a good place to include your own Garrity statement, but may very well turn into a trial-time fight about admissibility.

Is this a special perk of being in law enforcement?  Are police officers given some benefit not available to the average citizen?  No.  Everyone has the right to remain silent pursuant to the 5th Amendment to the U.S. Constitution.  Most people do not have government agents as employers.  Police officers, and other public employees, can be ordered to answer questions posed by government agents or face termination.  Private employers can order an employee to answer questions, but answering those questions does not place a private employee in the position of having to incriminate themselves to a government agent.  One way or another, the fact is that the application of Garrity simply allows police officers and other government employees to make use of the same constitutional protections as everyone else.

There are plenty of resources available on the internet regarding Garrity.  You can download the Garrity case by clicking here (.pdf).  You can download the Schmerber case here (.pdf).

Don’t hesitate to contact your FOP attorney with any questions about Garrity or any other legal issues you may encounter as a police officer.

Click here to download the NOPD Handbook app for your smart phone – https://apps.appmachine.com/nopdhandbook/promote/js

U.S. Fifth Circuit Case Alert

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Officer should be aware of the below case.  The Fifth Circuit held that officers who are aware of a constitutional violation can be liable under bystander liability if they fail to intervene.  In such a case, because the law is clearly established, an officer will be denied qualified immunity.  It is additionally a violation of many department policies (including NOPD) to fail to intervene in an unlawful use of force.

Fifth Circuit

Hamilton v. Kindred, 2017 U.S. App. LEXIS 623 (5th Cir. Tex. Jan. 12, 2017)

Brandy Hamilton and Alexandria Randle were pulled over by Officer Turner for speeding. After Officer Turner smelled marijuana, he ordered the women to exit their vehicle. Hamilton was wearing a bikini bathing suit, and Randle was similarly dressed. Officer Turner handcuffed the women and searched their vehicle. During this time, Officers Ron Kinard and Amanda Bui arrived. After Officer Turner searched the vehicle, he asked Officer Bui to search Hamilton and Randle. Officer Bui conducted a body cavity search on both women while on the side of the road. Hamilton and Randle subsequently filed a lawsuit against the three officers under 42 U.S.C. §1983 claiming the invasive cavity searches violated their Fourth Amendment rights to be free from unreasonable searches and seizures. Officers Turner and Bui reached settlement agreements with Hamilton and Randle. Officer Kindred argued that Hamilton and Randle failed to adequately allege that an excessive use of force occurred. In addition, Officer Kindred argued that he could not be liable under 42 U.S.C. § 1983 as a bystander for not intervening to prevent the body cavity searches; therefore, he was entitled to qualified immunity.

The district court denied Officer Kindred qualified immunity. The court found that Hamilton and Randle had adequately alleged a claim of excessive force. The court also held it was clearly established at the time of the incident that bystander liability applied. In addition, the court concluded that there was a serious dispute as to material facts in the case regarding the objective reasonableness of Officer Kindred’s actions. Officer Kindred appealed to the Fifth Circuit Court of Appeals.

First, to bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must show that she was seized. Here, the court of appeals found that Hamilton and Randle clearly alleged in their complaint that they were seized during the traffic stop when they were handcuffed and placed in the officers’ patrol cars. In addition, the women alleged that they were detained for over thirty minutes and subjected to invasive body cavity searches in violation of the Fourth Amendment.

Second, the court held that Officer Bui’s insertion of her fingers into the plaintiffs’ body cavities constituted a use of force, which the plaintiffs allege occurred during their seizure.

Third, at the time of the incident, it was clearly established that it was not reasonable to conduct a roadside body cavity search, unless there were exigent circumstances that required the search to be conducted on the roadside rather than at a medical facility. Consequently, the court found that Hamilton and Randle alleged facts showing that they were subjected to an unreasonable use of force “excessive to its need.”

The court further held, at the time of the incident, it was clearly established in the Fifth Circuit that an officer could be liable as a bystander in a case involving excessive force if he knew a constitutional violation was taking place and he had a reasonable opportunity to prevent the harm.

However, because there were serious disputes as to material facts regarding Officer Kindred’s potential liability as a bystander, the court of appeals lacked jurisdiction to hear this portion of the case and dismissed Officer Kindred’s appeal.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/16-40611/16-40611-2017-01-12.pdf?ts=1484267434
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Unclassified Positions and Reform in the #NOPD

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Recently, I wrote about the New Orleans Police Department’s request to the New Orleans Civil Service Commission for the creation of 16 new unclassified jobs in the NOPD.  The NOPD made its pitch at the February 20, 2017 meeting of the Civil Service Commission and it received some media attention here and here.  The Civil Service department opposed the creation of these unclassified positions, referring to the request as “unprecedented.”  After hearing from the NOPD, myself, on behalf of the FOP, Capt. Mike Glasser, PANO, Lt. Keith Joseph, BOP, and a few others, the Civil Service Commission took no action to allow the Civil Service Department to complete its work and put the matter on the agenda for the March meeting (March 20 if anyone wants to accompany me on behalf of the FOP).

I do not intend to re-post my argument against the creation of the unclassified positions, but for those who have not had the chance to read this article or my letter to the Civil Service Commission in this regard, the Civil Service Rules, which have the force and effect of law, require that in order for a position to be considered unclassified, the job’s responsibilities are not appropriate for anyone in the classified service and should not be performed by anyone in the classified service.  Furthermore, someone serving in an unclassified position must have policy-making authority which is not subject to further review or modification.  Finally, the Civil Service Commission is required to audit the position regularly to make sure that it is still not fit for the classified service.  As both Superintendent Harrison and myself made a point of saying, unclassified positions are the exception to the rule in a merit-based system of employment like Civil Service.

Currently, there is no “Commander” position, really.  There is a “Commander” assignment.  The Commander assignment, which must be filled by someone holding the rank of Police Lieutenant or higher, comes with a special rate of pay.  While I am unaware of anyone actually pushing this particular issue, the NOPD stated that one of the reasons we need to reconsider this special rate of pay is that a special rate of pay does not confer any grant of authority.  So, the question is does a Police Lieutenant in the position of Commander have the authority to issue orders to a Police Major?  While I am unaware of anyone pushing this issue, there are reasons to reconsider the use of a special rate of pay for commanders.  The majority of people assigned to Commander positions are in the rank of Police Lieutenant.  Police Lieutenants are non-exempt employees.  That means they should make overtime like all other non-exempt personnel under the FLSA.  However, they do not get overtime.  They are currently being treated as exempt employees.  While their pension is controlled by their actual rate of pay, terminal leave is paid to these individuals based on their Civil Service classification.  Finally, it is just an abuse of the special rate of pay provisions.  This special rate of pay scheme was put in place in 2011 after the Civil Service Commission told then Superintendent Serpas that he could not have 16 unclassified Police Colonel positions.

So, if the positions were not fit to be unclassified in 2011, what has changed that would make them appropriate today?  Well, while not answering the preceding question, Superintendent Harrison said that Department of Justice report which led to the current Consent Decree indicted the prior leadership “had largely acquiesced to wide-spread abuses by officers at all ranks.”  Superintendent Harrison went on to praise the accomplishments of individuals currently in the position of Commander.  Finally, the Superintendent insisted that it was critical that he be able to “swiftly replace leaders who are not performing to standard.”

What is exceedingly clear from the arguments made by Superintendent Harrison is that the NOPD has some good leaders in the position of Commander and that Commanders are performing the jobs previously held by officers in the classified service and that Commanders do not have the type of policy-making authority that is not subject to further review or modification.  What is clearly lacking is any logical connection between the existence of the Commander special rate of pay and any of the accomplishments of the folks holding those positions.

During the meeting, Commissioner Stephen Caputo, the newest member of the Civil Service Commission, noted that on several instances in my letter to the Commission I stated the position of Commander had been historically held by Police Captains and Police Majors.  He then asked if I was advocating for the status quo, or doing things as they have always been done.

My response was that I was not arguing for the status quo, but that the Civil Service Rules require that the job responsibilities be unfit for performance by anyone in the classified service.  History shows us that prior to 2011, the job responsibilities were performed by employees in the classified service.  Nothing has changed to make the jobs unfit for the classified service.

That does not mean that we have to maintain the status quo.  For example, the NOPD has the longest working-test period for employees.  Working-test periods, otherwise known as probationary periods, are set at 6 months in the Civil Service Rules with a maximum of 1 year.  The NOPD has 1-year working-test periods across the board.  That means that if someone is promoted to the rank of Police Captain and is unable to meet expectations, they can be demoted to their prior classified position — for just about any reason.  Generally speaking, if someone is incapable of performing a job, that incompetence will reveal itself within a year.  My point is that before we go shopping for a new toolbox, maybe we should make sure that we are making the best use of the tools we already have.

Civil Service Commission Chair Michelle Craig said that the Commission wanted the opportunity to examine best practices.  While the idea of “best practices” aggravates me to no end, I was fascinated by Superintendent Harrison’s reply that NOPD was re-writing the best practices and, therefore, what they are doing is the de facto best practice.

In today’s environment of instant gratification, we have to be able to point out real-time problems to demonstrate why these ideas that run contrary to the civil service philosophy should be avoided.  That is an impractical demand.  However, make no doubt about it, it is coming.  There will be a discriminatory application of the “Great Place to Work Initiative,” if there hasn’t been one already.  The creation of 16 unclassified Commander positions, would eventually prove problematic.

The first merit-based civil service system can be traced back to Imperial China and Emperor Wen of Sui (AD 605).  It wasn’t until the 1940’s that Louisiana embraced the civil service system.  Even then, it was repealed in 1948 and re-established in 1952.  Since then, more than a few changes have been made to how civil service systems are administered.  However, the idea of a merit-based system of employment utilizing objective standards and competitive testing has persisted.

So, while I am not advocating doing things as we did them in 1992, I am advocating the maintenance of the underlying set of guiding principles which have served us well for a long time.  We don’t have to throw the baby out with the bath water.  We don’t ditch democracy just because there is a more efficient way to administer the Department of Education.  The New Orleans Civil Service Commission has taken some steps recently which are downright scary.  The “Great Place to Work Initiative” dismissed important civil service principles relating to promotions and competitive exams.  Of course, the NOPD would point to successes of newly promoted sergeants or lieutenants as if that is the result of the new system in some way.  If you are thinking they wouldn’t do that, that is exactly what they are doing with the Commander position.  Granting the NOPD 16 unclassified positions to replace the special rate of pay for Commanders would be counter to the underlying fundamentals of the civil service system.  Does that mean it has to be done the old way?  No.  It just means it shouldn’t be done the way the NOPD has proposed.

New Orleans Civil Service Commission Meeting 2/20/2017

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The New Orleans Civil Service Commission is set to hold its regular monthly meeting on Monday, February 20, 2017.  At that meeting, the Commission will consider a request by the New Orleans Police Department to add 16 unclassified positions.  These 16 unclassified positions would seek to legitimize the position of Commander, which is currently a special rate of pay based on the assignment as commander of one of the Department’s 16 divisions.

The Crescent City Lodge of the Fraternal Order of Police opposes this request.  In short, the Department should use classified positions wherever possible.  This protects the employee, the public, and the integrity of the system.  Since the beginning of time until Chief Serpas’s recent tenure as Superintendent, these positions have generally been held by officers holding the classified rank of Police Captain and Police Major.  Those classifications are still available.

The use of Police Captain and Police Major for these positions not only shores up the integrity of the system, but provides officers with a well-defined career path.  As it stands today, these positions are being held by Police Lieutenants who have no job security.  So, the administration can cut their pay significantly for any number of unlisted reasons.

This, along with the changes made to the recent promotional system, has taken much of the fairness out of the promotional system of the NOPD and left it vulnerable to the type of political interference the Civil Service system was designed to eliminate.

CLICK HERE TO READ THE LETTER SUBMITTED TO THE COMMISSIONERS OF THE NEW ORLEANS CIVIL SERVICE COMMISSION.

Happy Black History Month, NOPD.

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Why I back NOPD should be a no-brainer. As a reasonably well adjusted ( lol) adult man, it should be expected that l support those risking life and limb for public safety. Now lets add the cultural nitroglycerine of race and see what I stir up, especially since it’s Black History Month 2017.
Hats off to the New Orleans Police Department ( NOPD ) for not quitting en masse when this morale and performance killing federal consent decree was applied to its cultural carotid artery. While many sought bluer pastures elsewhere, to the tune of a 40 year staffing shortage, enough remained in a city desperate for protectors.
Despite much publicized marches held by professional police protesters, scant attention is paid to arrests made whose net effect is fewer low income, urban lives being targeted. Every inner city gang dismantled, armed robber caught or rapist captured means our lives are spared or at least avenged in this majority Black city.
NOPD, against gale force opposition from one federal judge and police-handcuffing lawyers, nonetheless proves Black lives matter by the criminals it captures and frankly, the abuse taken trying to prove it isn’t racist to fringes who hate blue regardless of what reforms are enacted.
I’m one Black man speaking for myself and silent others when sharing why I back NOPD in a violent city needing it now more than ever. If our lives truly matter, then we who support protectors over predators can’t afford to be silent.
Happy Black History Month 2017 to the New Orleans Police Department. I even suspended my years long debate on the need for this observance to give you some well deserved credit.
Nadra Enzi aka Cap Black is creator of the Cap Black Street Patrol. 504 214 3082.

FOP Vigilance on the Fake News Front

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Members,

As some of you may have seen in the past week, Antigravity Magazine recently published a story (Get Behind the Mask, February 2017) disparaging the Fraternal Order of Police and law enforcement generally. Most importantly, author Jules Bentley leveled a serious allegation directed at a fictitious NOPD officer in her feature.

While I in no way wish to legitimize this fringe publication, it is troubling to consider that this writer is also a frequent contributor to Gambit Weekly. The FOP takes seriously the growing number of platforms in which conspiracy theorists spread nonsense and outright falsehoods that damage our relationship with the communities we serve. In such instances I make no distinction between legitimate media and this gratis alternative rag – if it has a circulation, the editorial board has a responsibility to fact-check. If they refuse to fact-check, the FOP will step in to rebuke such openly false claims.

Bentley’s incoherent stream-of-consciousness story makes little sense as it weaves between Nazis, police, and untruthful allegations of police misconduct during recent anti-Trump protests; the relevant excerpt can be found in the initial message of the email chain pasted below.

As always, the Fraternal Order of Police, New Orleans, remains vigilant in protecting our members (both real and fictional) and our profession from outright lies and we believe our duty to do so applies especially when such allegations are made in a public forum. While the exchange is humorous, keep in mind that at least some number of readers of this magazine believe this is journalism and the claims to be factual.

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To: Jules Bentley and Editorial Board, Antigravity Magazine (February 9, 2017)

From: Jacob Lundy, Fraternal Order of Police

In re: Get Behind the Mask, February 2017
The Fraternal Order of Police; New Orleans, requests this publication issue a retraction to the above captioned story produced by Jules Bentley for the February 2017 print edition.
The story contains the following graf; “‘Turn off your body cameras,’ NOPD’s Brian Mcadam yelled to other officers as he waded into the anti-Trump crowd that fateful Friday night, grabbing for and indiscriminately whaling on every non-cop within reach.”
In Ms. Bentley’s colorful account of this criminal act, the story references a fictitious employee, Brian Mcadam, who is neither a current or past police officer of this jurisdiction.
While your magazine does not hold itself out as journalism (clearly), it is no less reckless to pander such falsehoods to inadvertent consumers of satire who are not at all aware of the difference. Such wild assertions are tantamount to my callously referring to Ms. Bentley as a writer, without regard for the truth of the matter.
If your interns insist on venturing into print, perhaps they should spread their wings at the Hullaballoo, where they can be monitored by a more experienced editorial board.
Jacob Lundy
Fraternal Order of Police
Policy Advisor, State of Louisiana
Policy Advisor, New Orleans
Member, Louisiana Legislative Committee
Member, National Legislative Committee
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From: Jules Bentley (cc Editorial Board
To: Jacob Lundy, Fraternal Order of Police
oh word what’s mcadam’s first name then? happy to correct that
p.s. “pander” doesn’t take a direct object without the preposition “to.”
p.p.s. louis ackal
__________________________________________________
From: Jacob Lundy, Fraternal Order of Police
To: Jules Bentley (cc Editorial Board)
No one with the surname “Mcadam” is employed by the City of New Orleans, in any division or department. That isn’t a correction, it’s a retraction.
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 (No one from Antigravity Magazine has responded to the last email.)
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