The Louisiana Legislature is currently considering Senate Bill 398 by Sen. Ronnie Johns (R)-Lake Charles. Senate Bill 398 would exempt all body worn camera videos recorded by police from public records disclosure unless the individual or entity seeking disclosure of the video files a lawsuit and gets a court order directing the video be disclosed. It should be noted that the bulk of police body worn camera videos will likely be exempt from disclosure based on the already existing law regarding records of ongoing criminal litigation (See La. R.S. 44:3).
In an opinion piece by the NOLA.COM Editorial Board, it is stated that the bill was introduced at the behest of law enforcement. To clarify that broad assertion, the bill was introduced at the behest of the Louisiana Chief’s Association. What that means is that the bill was introduced at the request of police administrators across the state, not the rank and file officers.
From time to time, I have written to say that it is important to take advantage of the FOP Legal Defense Plan when you find yourself accused in a formal disciplinary investigation. It is important for a number of reasons:
90% of the NOPD are FOP members and, therefore, 90% of NOPD officers are paying for the FOP Legal Defense Plan.
As an attorney who represents police officers every day, I can tell you that it is really beneficial to be involved in a disciplinary case from the beginning, particularly if the case will end up with a disciplinary hearing or Civil Service appeal.
There is no downside to using the FOP Legal Defense Plan. Most investigators expect officers to show up with their FOP attorney. It does not make you look guilty.
There are procedural issues involved that most officers simply aren’t familiar with.
There are significant changes to the NOPD disciplinary procedures going into effect on May 15, 2016.
I’m sure I could go on. I still hear a lot of people saying that they don’t need representation because it is a stupid complaint. While that may be true, it is better to be safe than sorry. I still represent 80-90 different officers every month on average. That being said, I know there are a lot of officers going it alone. It doesn’t need to be that way. It is nice to have someone you know is on your side no matter what.
I believe that these new policies will result in more sustained violations and more civil service appeals. As such it will be more important than ever to contact your FOP Legal Defense Plan attorney as soon as you become aware of a formal disciplinary investigation or any allegation of wrongdoing. It is important to note that we were presented with a version of these regulations some time back which were much, much worse. The NOPD was able to use the written comments provided by myself and FOP Policy Chairman, Jake Lundy, to make some significant changes to these policies. I believe the NOPD is very fortunate the original versions of these regulations were changed based on our suggestions.
There are new policies going into effect on May 15, 2016 (Ch. 26.2, 26.2.1, 52.1, 52.1.1 and 52.1.2). There will no longer be DI-1’s or DI-2’s. Some of the big changes to the disciplinary procedures include:
Following a sustained infraction, there will be two hearings. The first will be the Pre-Disposition Conference. The second will be the pre-Disciplinary Hearing. The pre-Disposition Conference will be conducted by the Bureau that conducted the investigation. For example, if PIB conducts the investigation, then PIB will conduct the pre-dispo conference. If a district supervisor conducts the investigation, then the pre-dispo conference will be conducted by that Bureau. The only thing at issue at the pre-dispo conference will be whether the investigator’s recommended disposition will be accepted or not. It is at that conference, that you might have a shot of getting a sustained disposition changed to not sustained, unfounded, or exonerated. However, you will not be allowed to present any new evidence unless that evidence was not available during the actual investigation or it is newly discovered. The second hearing, the pre-Disciplinary Hearing, will be conducted by someone in your chain of command. This will be similar to what we have now as commanders hearings or bureau chief hearings. The big difference relative to what we have now is that the only thing at issue in this hearing will be the recommended penalty.
The penalty schedule has also changed significantly. The rules look the same (for the most part), but each rule has a letter attached to it. Each letter, A-G, is a different penalty level. For example, Rule 3, Professional Conduct, Paragraph 1, Professionalism, is an A violation. When you look at A, you see that there are three penalties listed: O, R, 1. The middle is the presumptive penalty. That is to say that absent any aggravating or mitigating circumstances, that is the penalty that will be assessed. In this case it is a Letter of Reprimand. If there are mitigating circumstances, you could receive an oral reprimand. If there are aggravating circumstances, you could received up to a 1-days suspension.
The rules regarding multiple offenses has also changed. For violations less than a Level D offense, the rules are largely the same as they are now. If you are sustained for violating the same rule within a 36 month period, then it will be a second or third offense, as the case may be. However, if you are sustained for a D – G offense, then ANY sustained violation within 36 months of the sustained D – G offense.
It will be very important that investigators properly classify alleged offenses. For example, Rule 4, Paragraph 2, Instructions from an Authoritative Source, is currently one of the most frequently sustained violations. However, under the revised penalty schedule, Rule 4, Paragraph 2 is broken into two sections. Both are more serious that their predecessor. Rule 4, Paragraph 2 will be either for a deliberate disregard of department rules and regulations (a Level C offense) or disregard of a direct order (a Level D offense). The appropriate charge for an accidental violation of an order or procedure from the operations manual will be Rule 4, Paragraph 4(b) 6 (a Level B offense).
The rules on BWC usage are now broken down into two categories, both of which fall under Rule 4, Paragraph 11. The first would be for an inadvertent BWC violation and is a Level A violation. The second is for intentional misuse or non-use of the BWC and is a Level F violation. The majority of the BWC violations should be of the first variety.
Everyone should also be aware of the changes to Chapters 52.1.1, 52.1.2, 52.2, and 35.1.7. Again, all of these are scheduled to go into effect on 5/15/2016.
Cast against the background of the tragic murder of former Saints defensive end Will Smith, discussions of tax measures seem much less important. There is a fundamental culture of violence that exists in this city which will not go away until the people who find themselves smack in the middle of it decide they will simply not tolerate it any longer. Until that happens, there will be no meaningful progress in the fight against violent crime in New Orleans. So, I am going to discuss the failure of the April 9, 2016 tax proposal, but I will be doing so while thinking about Will Smith and all of the other victims of needless violence in the city I choose to call home.
Part of being on the cutting edge of anything means that we have to pay particular attention to the lessons learned. The NOPD has been on the cutting edge of body worm cameras in law enforcement and we have learned some lessons. One that comes to mind is there was a case where the arresting officer asked one simple question that proved to be problematic. What was clear from the video was that he asked that question after the suspect was in custody (custodial interrogation) without first advising the suspect of his right to remain silent. As you can imagine, the statements were excluded and the case was lost as a result – lesson learned.
Recently, it has been brought to my attention that text messaging has become an issue. The BWC sits at center mass and records everything. At times an officer’s use of a cell phone for the purpose of sending and receiving text messages has been recorded clearly. The recording is clear enough to read the screen of the officer’s phone. Now, it may very well be the text message is from the officer’s wife asking her husband to stop on the way home for milk. It could be to the officer’s supervisor about the case at hand.
The text messages can become evidence. It can lead to the officer’s personal phone records being subpoenaed. It might become Brady material. What is the lesson learned? Wait until the camera is off before reading and sending text messages, unless you want to risk your private communications becoming less than private.
If you have your own experience you would like to share with your colleagues, please do so. You can either do it here in the comments, or you can email me and I will add it to this article or start a new one. It is important that we share these experiences so we can avoid problems. Like it or not, we will remain on the cutting edge with regard to BWC’s, at least for the foreseeable future.