Police Use of Lethal Force Analysis

This analysis, compiled by the Dolan Consulting Group, is one of the most thorough I have seen.  It is a little long, but worth the time it takes to read.

Click here to download Dispelling the Myths Surrounding Police Use of Letha Force (.pdf)

 

Advertisements

Opinions on Police Unions and Officer Involved Shootings

I read an opinion piece by Times-Picayune writer Jarvis DeBerry, a frequent critic of police officers and the FOP who believes he is the only one entitled to righteous indignation, which disparages police unions for supporting union members.  The claim is that police unions ignore what is plainly obvious to everyone else in order to protect their members.  I have a couple of thoughts about that assertion. 

Police unions have a responsibility to look out for their members.  These situations are often complex legal situations which the media and some members of the public see as crystal clear.  In investigations such as those following an officer involved shooting, police officers are not relegated to a watered down version of their constitutional rights, as the U.S. Supreme Court has stated.  They have the same constitutional rights as everyone else.  

Officers’ constitutional rights seem to be something else that opinion writers have a problem with.  I have seen opinions lately lamenting the fact that officers don’t have to make a statement about an officer involved shooting for 30 days.  This statutory provision specifically relates to administrative investigations, not criminal investigations and it should be pointed out that no FOP attorney has ever advised an officer to sit quiet for those 30 days.   Every American is entitled to not make a statement to police in a criminal investigation.  In fact, most Americans don’t ever have to make a statement to police.  Police officers can be compelled to make a statement even if they wish to assert their constitutionally guaranteed right to remain silent.  If we had to read opinions every time a member of the criminal defense bar advised a client not to speak to the police, we wouldn’t have time to read anything else. 

Next, even if an officer was wrong, that does not necessarily mean that the officer’s actions constitute a crime.  The criminal law is what it is.  It is not my responsibility to defend the legislation, but we as a society value freedom and have implemented some pretty steep burdens to meet in order to send someone to jail.  

As spokesman for the Fraternal Order of Police in New Orleans and an attorney who frequently represents police officers, I think that we have taken a pretty reasonable position regarding recent events in Baton Rouge and Minnesota.  That position can be summed up pretty easily as we should not jump to conclusions because we lack crucial information.  If it turns out that these officers acted with criminal intent such as Antoinette Frank or Len Davis, then we would hope the criminal justice system would do what it is supposed to do.  If it turns out that the officers’ actions do not rise to the level of a criminal violation, then we can only hope that the officers will not have to defend themselves in court.  Recent criminal prosecutions in Baltimore seem to be an examples of cases which should never have been brought.  One way or another, I would go down fighting for the constitutional rights of FOP members.  So, if the accusation is that the FOP is always fighting for its members, I admit it.

The Fraternal Order of Police is the largest police organization in New Orleans, representing over 1,000 active New Orleans Police Officers and another 1,000 retired law enforcement officers.  In Louisiana, the FOP represents over 6,000 commissioned law enforcement officers and retirees.  

The Fraternal Order of Police is the world’s largest organization of sworn law enforcement officers, with more than 330,000 members in more than 2,200 lodges. We are the voice of those who dedicate their lives to protecting and serving our communities. We are committed to improving the working conditions of law enforcement officers and the safety of those we serve through education, legislation, information, community involvement, and employee representation. No one knows the dangers and the difficulties faced by today’s police officers better than another officer, and no one knows police officers better than the FOP.

NOPD’s Instructions from an Authoritative Source Revision

On May 15, 2016, the NOPD put a revised disciplinary penalty schedule into effect.  Alleged violations which occurred prior to May 15, 2016 will be governed by the old disciplinary penalty schedule.  Alleged offenses occurring on or after May 15, 2016 will be guided by the new disciplinary penalty schedule.  The changes to Instructions from an Authoritative Source are worth noting for officers and supervisor who might be tasked with conducting formal disciplinary investigations.  

An Instruction from an Authoritative Source is any instruction which would govern the actions of a police officer.  Most commonly, the rules and regulations found in the NOPD Operations Manual are Instructions from an Authoritative Source.  Verbal orders from a superior officer are Instructions from an Authoritstive Source.  Instructions can go beyond that.  For example, CAO memorandum apply to all city employees (unless they specifically state otherwise), so they are Instructions from an Authoritstive Source.  Operations Bureau Policies are Instructions from an Authoritstive Source for officers assigned to the Operations Bureau, but not officers assigned to ISB or MSB. 

There have always been two rules governing Instructions from an Authoritative Source.  Before May 15, 2016, the two rules governing Instructions were Rule 4, Performance of Duty, Paragraph 2, Instructions from an Authoritative Source and Rule 4, Performance of Duty, Paragraph 4(c)(6), Failure to comply with any instructions, oral or written, from any authoritative source.  The penalties for these administrative violations were roughly the same.  One was Letter of Reprimand to 3 days and one was Letter of Reprimand to 5 days.  The May 15, 2016 revision makes two important changes.  

Rule 4, Paragraph 2 is still Instructions from an Auoritative Source.  However, Rule 4, Paragraph 2 is now a “C” offense.  In the new every rule paragraph has its own letter scheme, a “C” offense  means a sustained violation would result in a 2-10 day suspension.  The presumptive penalty is 5 days.  The penalty with mitigating circumstances can go down to 2 days and the penalty with aggravating circumstances can go as high as 10 days.  That is a pretty big jump from the prior penalty of R-3.  There is also a penalty for refusing to give a statement in an administrative investigstion, which carries a presumptive penalty of termination.  

Rule 4, Paragraph 4(c)(6) is changed to Rule 4, Paragraph 4(b)(6).  Rule 4, Paragraph 4(b)(6) is a “B” penalty.  A level “B” offense carries a presumptive penalty of 1 day.  The penalty with mitigating circumstances is Letter of Reprimand and the penalty with aggravating circumstances is 2 days.  So, basically, Rule 4, Paragraph 4(b)(6) has a penalty of R-2, which is less than the prior penalty of R-5.  

The delineation between the two rules is that Rule 4, Paragraph 2 is intended to address more flagrant disregard of the rules or insubordination.  Rule 4, Paragraph 4(b)(6) is intended to address negligent violations of whatever instruction happens to be at issue.  Therefore, the penalty for the flagrant disregard of an order carries a more severe penalty than the purely negligent disregard of an order. 

The problem as I see it is that Rule 4, Paragraph 2 was always the go-to Instructions violation.  This has to change in order to apply the rules as intended and avoid serious penalties that might not be warranted by the circumstances.  It is important for supervisors conducting an internal investigation to make sure the correct rules are in play. It is also important for supervisors to know that they can find one charge not sustained, exonerated, or unfounded and include an additional sustained violation, if necessary.  For example, if Rule 4, Paragraph 2 is inappropriate, one could find Rule 4, Paragraph 2 unfounded and Rule 4, Paragraph 4(b)(6) sustained as an additional sustained violation.  That would help to ensure that come penalty time, the accused officer would not be hit with a “C” penalty when a “B” penalty would be more appropriate.  

Every accused officer is entitled to legal representation during a disciplinary investigation. Witness officers are also entitled to legal representation during a disciplinary investigation.  The FOP Legal Defense Plan provides its members with representation as a witness or an accused officer.  I want to encourage FOP members to call their FOP attorney as soon as they learn of an internal investigation and every step of the way.  I know that officers are generally unfamiliar with the disciplinary procedures.  It is helpful to have someone with you who understands the procedures and is on your side.  

All FOP members are welcome to call me about any disciplinary issues.  I am available for questions about non disciplinary issues as well.  No disciplinary investigation is too unimportant or silly.  Due to progressive discipline, a stupid violation can lead to a serious penalty.  In addition, the FOP Salary Reimbursement Option is only available to Legal Defense Plan members who are represented by an FOP attorney during the course of the investigation.   In addition, it is extremely helpful to have been involved with an investigation from the beginning if the case is going to result in a Civil Service appeal.  

LEO SAFETY NOTICE

From; FOP NOLA Policy Committee

RE: Violence in Dallas 07/07/2016

We encourage officers to keep the following points in mind given current events;

Monitor your messages daily for FUSION and FBI intelligence bulletins and READ them. There will likely be a surge in open-source and other intelligence in the next several days.

Make every effort to partner/stack when possible and be vigilant when responding to suspicious sounding calls for service (use your dispatchers to your advantage if you get a suspicious sounding call before rushing into something; get your call-back if something doesn’t sound right).

Wear your vests at all times and ensure those around you are wearing a vest.

Please keep in mind that relentless media coverage can motivate violent ideation.

Do not perform administrative tasks in your unit while in a vulnerable position (blind spots, open spaces, etc.).

Lastly, please keep in mind that we have more support from our diverse community in New Orleans than we often realize; do not let the actions of a handful of people across the nation affect your relationship with THIS community. Honor those we lost in Dallas by remembering why we do this job, even in our most difficult days.

Keep up the excellent work NOPD, and watch each other’s six.

 

Lundy. FOP NOLA