Proposed Consent Decree

I am sure that most of you have either read or taken a look at the proposed consent decree for the New Orleans Police Department.  If not, it can be found here.  It is very long and covers a lot of ground.

It is important to remember that as of today (July 24, 2012), none of what is contained in the proposed consent decree represents the procedures and/or policies of the New Orleans Police Department unless it already exists in the Operations Manual (CALEA Manual), General Orders, Operations Bureau Policies, or other official instruction from the New Orleans Police Department.

First of all, the proposed consent decree has not yet been signed by a judge.  Secondly, many of the policy mandates found within the proposed consent decree have time frames for implementation.  In short, some of the items found in the proposed consent decree may not be implemented by the New Orleans Police Department for up to a year or longer.  The NOPD has already begun the process of overhauling the Operations Manual and some of those new policies and procedures have been put into effect (Lexipol).  As these new policies are placed into effect by the administration, they will become the new policies and procedures espoused by the New Orleans Police Department.  NOPD officers are responsible for abiding by the rules and regulations of the New Orleans Police Department as they exist at the time.

Many of the topics covered in the proposed consent decree are already in place.  However, there may be subtle differences between what is in the proposed consent decree and what is already in place.  Don’t get caught in a trap by following a rule or regulation that is not a rule or regulation yet or by anticipating that a rule or regulation will be changed at some point in the future.

The proposed consent decree is not the document that governs the operation of the New Orleans Police Department or the actions taken by NOPD officers.

If there is any confusion, ask a supervisor.  Also, as usual, the Fraternal Order of Police will continue to provide attorneys who will be happy to assist in any way they can.

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Reporting Use of Force in NOPD

I am going to start this off by saying that I am making some assumptions based on the DOJ report issued on March 16, 2011 and what may be in a Consent Decree which may be implemented in the future.

The first 25 pages of the March, 2011 DOJ report on the New Orleans Police Department are about Use of Force.  In summary, the Department of Justice is of the opinion that the New Orleans Police Department, its management, its supervisors, and all of its employees are derelict in their Constitutional obligations with regard to the use of force by police officers.

We find reasonable cause to believe that NOPD engages in a pattern or practice of unconstitutional force.

DOJ Report, P. 1.  The DOJ report goes on and on about use of force policies, use of force training, use of force reporting, use of force investigation, use of force review, and use of force tracking and analysis.

My intention here is not to legitimize what I believe is a document that contains as much creative writing as it does factual information (aorta of corruption, my ass).  However, I think that the men and women of the New Orleans Police Department can expect to see additional changes in reporting Use of Force instances.  In fact, we have already seen an increase in the number of DI-1 investigations centered around the reporting of a use of force.  In addition, the New Orleans Police Department is currently re-writing its Operations Manual and I am confident (read “hopeful”) that there will be some changes to the current policies with regard to use of force and its reporting.  One way or another, there will be an increased emphasis on reporting use of force incidents because that is the only way for the NOPD to prove that it is not engaged in a pattern or practice of unconstitutional force (much like FIC’s are the easiest way to prove that the NOPD is not engaged in a pattern or practice of unconstitutional stops).

You can rest assured that any DI-1 investigation which contains even a whisper of a use of force will lead the investigators to look for a Resisting Arrest Report.  You can also rest assured that additional accused officers will be added to the DI-1 investigation if there is no Resisting Arrest Report whether the force used was appropriate or not.

For line officers and supervisors:

  1. Familiarize yourselves with Operations Manual Chapters 1.2 and 1.3.
  2. If you have to put hands on any individual other than the common application of handcuffs, you should notify your supervisor immediately.  If in doubt, notify a supervisor.
  3. Call EMS.
  4. Remember:  The camera can be your best friend.  Make sure the camera in your car and on your TASER is functional and use it as efficiently as possible.  Using your TASER for its camera is probably a use of force (notify your supervisor).
  5. Generate a report associated with the incident and document who you notified and when.

For supervisors who have been notified of a use of force by a subordinate:

  1. Make the scene;
  2. Interview all parties and witnesses;
  3. When speaking with officers and witnesses, make sure you are comparing apples to apples and oranges to oranges.  In other words, if an officer says he used an arm bar, make sure that your understanding of an arm bar matches the officer’s understanding of an arm bar.
  4. Remember that it will be necessary to write a Resisting Arrest Report for any incident which results in injury or complaint of injury by the officer or a member of the public as a result of any police action.
  5. If in doubt, write the Resisting Arrest Report.
  6. Don’t forget to write a First Report of Injury for the officer if the officer is injured, complains of injury or might reasonably have been injured in the incident.

As usual, if you are the accused officer or a witness in any DI-1 investigation, you should call one of the FOP attorneys and obtain representation.  FOP members are entitled to legal representation as a benefit of membership in Crescent City Lodge #2.  If you are a member of another FOP Lodge, and you are a member of the FOP Legal Defense Plan, you can click here for a list of approved attorneys.