Monthly Archives: October 2016

Citizen Supporters in Police Unions

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In the back of my fevered mind has always been this idea: create a non-voting Citizen Supporter status for law enforcement proponents who’ve never served to join police unions. I’m treading lightly so as not to step on any toes, active, retired or reserve. My purpose is formalizing a united front in favor of ” blue rights ” to contest well-funded, anything but well meaning anti-police agitation.

It creates a national body of screened advocates, ” FOP Citizen Supporters, ” in the case of the Fraternal Order of Police, to lobby politicians and push back propaganda on key issues. They can graduate from Citizen Supporter Academies, similar to Citizens Police ones, but hosted by local lodges or associations.

It’s not meant to encroach upon the special bond between officers. It’s meant to add another fiber to that bond, interweaving citizens ready to stand up for law enforcement who put time and commitment where their mouths are.

The opposition is organized and exerting enormous negative pressure upon policing and its supporters. We need to exert enormous counter-pressure as a broadened, united front supporting law enforcement.

Otherwise, enemies of officer safety and civilian self-defense undermine both until neither substantively exists.

-Nadra Enzi aka Cap Black, Your UrbanSafetyist. @nadraenzi on twitter.

NOPD Disciplinary Regs

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On May 15, 2016, the NOPD enacted new disciplinary regulations. The effects of these disciplinary regulations have not been felt up to this point. This is because investigations resulting from dates of occurrence before May 15 have been handled under the old procedure. However, investigations resulting from alleged incidents occurring after May 15 will be handled using the new procedure.

There are two major impacts to the disciplinary system resulting from the new regulations. First, the number of repeat offenses is going to increase. Whether a sustained violation is a second or third offense will be based on the category of the offense and its proximity to other incidents in a similar category. The categories are determined by looking for a letter near the violation which will correspond to a particular penalty range.  In the past, an officer needed to commit the same violation for the violation to become a second offense.  Now, the violations could be completely unrelated and still become a second or third offense.

The second significant impact will be the way disciplinary hearings are conducted.  The bureau conducting the investigation will now make the determination of whether the investigator’s recommend a disposition stays as recommended or not in a pre-disposition conference. In the not so distant past, the investigator’s recommended disposition would be reviewed by the officer’s command to make a determination as to whether that recommended disposition stood.

For example, if an officer assigned to the Operations Bureau was investigated by PIB for a violation which was ultimately sustained, the disciplinary hearing would have been held in its entirety by a member of the Operations Bureau. Now, in those same circumstances, a pre-disposition conference would be held by PIB which would determine the final disposition of the matter and only the penalty would be decided by the Operations Bureau.  If the Operations Bureau conducts the investigation, then the Operations Bureau would conduct the pre-disposition conference and the pre-disciplinary hearing to determine the penalty.  If the officer is assigned to ISB, MSB, or the Superintendent’s staff, you can substitute ISB, MSB, or Superintendent’s Staff for Operations Bureau in the above example.

This removes one of the checks and balances that previously existed. I suspect that the results will be an increased number of sustained violations and an increased number of Civil Service appeals. Fortunately, you have the FOP Legal Defense Plan and dedicated attorneys.  If you do not have the FOP Legal Defense Plan, it is never too late to join.

For alleged violations which occurred before May 15, 2016, the old system and the old disciplinary penalty matrix should be used. For any alleged violations occurring after May 15, the new system and the new penalty matrix will be used.

I want to encourage members to call as soon as they learn about an investigation. It is better for me to be involved as early as possible. If more of these investigations end up in appeals, as I suspect, it will be better for the officer if I am involved earlier in the process.

Remember, there is no cost to the member for legal services covered by the FOP Legal Defense Plan. Also, it is important to remember that in order to qualify for the salary reimbursement option, you must be represented by an FOP attorney during the course of the investigation.

Finally, I want to recommend to FOP members that you use the app Signal for private text communications. This app is available for iOS, Android, and Chrome for desktop. It is free and is super simple to set up. No account is needed — only a phone number.  Best of all, all messages sent and received using Signal can only be read by the sender and recipient because they are encrypted end to end.

To recap, I want to encourage all members to call your FOP attorney as soon as you learn of a disciplinary investigation. If you are notified via email of a Civil Service extension hearing, that means you are an accused officer in a formal disciplinary investigation (also a good time to call).  The changes to the disciplinary regulations make it more important than ever for you take advantage of the representation available to you.

Warning from a Chicago Police Officer

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The superintendent of the Chicago Police Department recently said a badly beaten female officer told him she didn’t shoot her attacker for fear of news coverage and retaliation against her family. I scrolled down to read the story’s comment section and saw some speculation that the statement wasn’t true. The argument was made that it’s counter-intuitive for an armed person not to shoot a life-threatening attacker. Had I not repeatedly heard, seen and read this same concern from retired and active officers, I’d agree her story seemed far fetched.

But in an era where riots are held honoring cop beaters and shooters, it’s not too much of a stretch to hear officers willing to endure severe thrashings instead of living in seclusion for the rest of their lives. In the name of sins past and present, real and imagined, police officers are now tried in a court of public opinion. Sadly, it’s not law abiding citizens trying policing.

Often, delusional social justice warriors from outside urban centers unite with career criminals and enabling activists to declare any police use of force, or the institution itself, racist without exception.

Law abiding citizens, in all communities, should heed this warning from a Chicago police officer. If law enforcement second guesses itself while under attack, everyone loses our supposedly inalienable right of self-defense. That’s hardly a path to peace in the streets.

-Nadra Enzi aka Cap Black, Your UrbanSafetyist. @nadraenzi on twitte

What to expect when you’re not expecting it – OIS

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In spite of the near constant media coverage of officer involved shootings, they are so rare that most officers have no idea what is going to happen when they find themselves in those situations.  As of October 1, 2016, there has only been one officer involved shooting in New Orleans.  I am hoping this trend of not having officer involved shootings continues.  If, however, an officer is involved in an officer involved shooting, he or she should know what to expect.  For the most part, this article is particularly about New Orleans, but there are bound to be similarities to other jurisdictions. 

First of all, I recommend that once it is safe to do so that you call your FOP attorney.  I have been on the scene of almost every officer involved shooting in the past several years, and I will continue to respond in an officer’s time of need.  

Every officer involved in an officer involved shooting is the subject of a criminal investigation.  There could also be an administrative investigation, depending on the circumstances.  

It is most important that an officer make sure a scene is safe, or as safe as possible, following an officer involved shooting.  Make sure enough backup has been requested and the proper notifications have been made.  If the scene is not safe, take cover or do whatever is necessary to make the scene as safe as possible.  Make sure emergency medical services have been ordered for anyone injured and the scene is safe enough for EMS to respond. 

Once enough officers have arrived to secure the scene, any officers involved in actually firing a weapon will be sequestered.  That means that if you are the officer who had to pull the trigger, you will be removed from active participation in the scene and put in an area by yourself.  That usually means sitting in a car by yourself in a safe location.  

IT IS VERY IMPORTANT that you are aware of your body-worn camera.  It should be turned off as soon as you are removed from active participation in the scene.  You also need supervisory approval to turn off the camera.  So, as soon as you are sequestered, ask a supervisor for permission to turn off the body-worn camera.  Also, be aware of what you say when the camera is running.  While you certainly want to tell other responding officers of any imminent danger or about evidence which might be lost or damaged, you do not want to discuss how the shooting came to be at this point in time.  I have witnessed well-meaning rank asking officers “what happened” while the camera was recording.   It just isn’t in anyone’s best interest to answer that question on video in the middle of a stressful situation before all of the information is available.  

It is my experience that I usually get to a scene shortly after an officer has been sequestered.  I have gotten there before cameras were turned off though and you certainly don’t want to have privileged conversations with your attorney being recorded on a body-worn camera.  Same thing for dash camera. 

One of the first things to do is call your family members and let them know you are safe.  There will undoubtedly be some type of media coverage and you don’t want your loved ones worrying about your safety.  

After being involved in an officer involved shooting, you generally have to do three things:

  1. Give a public safety statement; 
  2. Walthrough; and
  3. Complete a Force Statement

The public safety statement will take place shortly after the officer is sequestered.  The short interview will be conducted by the PIB Force Investigation Team (FIT).  There will likely be a a number of other people present, but only one will ask questions.  The questions are limited to issues which have the potential for impacting the safety of police personnel or the public and information about evidence. 

For example, a public safety statement could include the questions

  •  “How many perpetrators were there?”
  • “Where did the other perpetrator run?”
  • “Did the other perpetrator have a weapon?”
  • “What was the other perpetrator’s description?”
  • “Where should there be shell casings?”

The public safety statement generally takes less than 5 minutes. 

PIB will take your body-worn camera and the Academy will take the weapon used.  If they take your service weapon, they will issue you a loaner. 

You will also be expected to do a “walk-through” of the incident.  It is a strange thing and I’m not quite sure what the purpose is.  You will be be required to walk through the events leading to the shooting without any verbal narrative.  You won’t be asked any questions or expected to say anything.  I guess I have seen this lead to information relative to the location of shell casings and the preservation of evidence. 

You are also required to complete a Force Statement.  I don’t want to get into the nuts and bolts of the Force Statement here, but I have found that the time sitting around sequestered is generally a good time to get the Force Statement written.  It gives you an opportunity to write it and discuss with your attorney prior to submitting the Force Statement.  

The Force Statement is an administrative document only.  It is not shared with the criminal investigators.  It is important to be accurate and thorough with the Force Statement.  

Generally, that is about it.  Officers who are involved in a fatal officer involved shooting will likely be placed on administrative reassignment and sent home.   You get to spend an ample amount of time by yourself.  This isn’t always the best thing as it leaves you to replay the events in your mind while wondering what is going on around you.  

It is good to have your FOP attorney with you for a number of reasons.  It is important to get the necessary information conveyed and to make sure your rights are protected.  It is also helpful to have someone who can tell you who everyone is and what they are doing.  

I hope it doesn’t happen to you.  But, if it does, I will be available for you.  

Opinions are like ________. Everybody has one.

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Today (9/30/16), Jarvis DeBerry published his opinion on the recent interest in the NOPD’s investigation into the sex crimes unit and several officers that resulted from a report by the Office of Inspector General.  Mr. Debeery’s opinion is not that of a reporter — someone interested in ascertaining the facts of a situation.  Mr. Debeery’s opinion is exactly that — an opinion — based on fallacies and prejudice.

Let’s start with what is true (partly).  Mr. Debeery charges that my statements about this investigation prove “the unions (the FOP) reflexively defend their members, no matter the details of criticism.”  I am an attorney.  Several of the officers investigated by the NOPD in this matter are my clients.  The relationship is attorney (me) – client (officer).  The FOP is not a party to that relationship.  A lawyer should act with “commitment and dedication to the interests of the client and with zeal in advocacy on the client’s behalf.”  I have a responsibility to defend my clients.  That is what I was hired to do.  While it is true that the Fraternal Order of Police in New Orleans does not hesitate defend its members when it is called for, that simply does not fit into the equation in these circumstances.

Mr. Debeery seems to find it incredulous that I indicated that I did not know what the officers were accused of.  He says “But there’s no excuse for Livvacari not knowing what the accusations are.”  He then refers to the November, 2014 report by the Office of the Inspector General making which made their “transgressions” “quite plain.”

Mr. Debeery states that the Inspector General “didn’t treat it’s investigation in to the sex-crimes unit like the typical report that accuses an agency of being wasteful with its resources.”  I agree with that statement and maybe this investigation is an indication that the Inspector General should stick with what he knows.

The first thing cited by Mr. Debeery from the Inspector General’s report is that 1,290 sexual assault and child abuse cases had been assigned to five detectives and 86% of those had not been followed up on with an investigative report.  He goes on to say that 2/3 of those cases (840) were labeled as miscellaneous incidents.  On its face, this appears to be problematic for those five officers.  However, it was not long before the NOPD determined, and announced publicly, that 677 of those 840 cases were sex offender registry checks.  That is, sex crimes detectives were responsible for verifying that the information provided by sex offenders following their convictions was correct.  Those 677 cases were properly classified as miscellaneous incidents.  The NOPD has since created a new category for sex offender registry checks, but they are still not sex crimes investigations requiring follow-up.  The report, along with Mr. Debeery, also ignores the system of 21-x and 21-y signals designed by the police administration in an attempt to pigeon hole cases which required more information before they could be properly classified.  The report also relies on the lack of supplemental reports by officers on investigations as an indication that detectives were being lackadaisical.  This demonstrates a lack of knowledge of police procedure on both Mr. Debeery’s part and the Inspector General’s part.  The investigation into this matter also revealed that some of the case identified by the Inspector General’s report had already reached their conclusion in the criminal justice system — the cases had already been prosecuted and had come to their conclusion.  This would not be possible if they had been ignored as the Inspector General’s report had declared.  There were likely some cases which did not get the attention they deserved.  But, supplemental police reports are only required when evidence was logged in or an arrest was made.  Otherwise, updates were logged in the case management system (CMS).  This is an overly simplistic explanation, but the short version is that manpower, not indifference, was responsible for cases which were not followed up on as thoroughly as the detectives would have liked.

Debeery then goes on to recount the Inspector General’s allegation that a child younger than 3 appeared at a hospital with a sexually transmitted diseased and that Akron Davis ignored this.  The lack of follow-up by Debeery, or possibly his inattention to information learned at a later time, much like the OIG’s inattention to detail, leads to reckless allegations such as this which are damaging to Detective Davis’s reputation.  First of all, this case was not assigned to Detective Davis.  Secondly, and much more importantly, the NOPD had already investigated this case and was well-aware of how this child had contracted a sexually transmitted disease.  There is a case file several inches thick on this particular child.  So, the NOPD already knew the source of the sexually transmitted disease.  How much time should Detective Davis have spent determining the source of the sexually transmitted disease when there were so many other victims the understaffed unit had to try to help?  He then points to two other cases which Detective Davis would not have enough information to defend, explain or take responsibility for.

The next case cited Mr. Debeery is when Sgt. Merrell Merricks allegedly backdated an investigative report requested by the Inspector General.  This clearly shows a lack of understanding of police procedure.  In any event, those charges were not substantiated against Sgt. Merricks.  I do not represent Sgt. Merricks.  The same is true of the allegations about Detective Williams and his report writing.  Finally, Mr. Debeery cites a statement allegedly made by Detective Damita Williams regarding the applicability of a simple rape charges.  There is no context to this statement.  Did you know there are circumstances when simple rape is not an applicable charge?  For example, a husband cannot be accuse of simple rape of his wife.  Context is important.

Mr. Debeery winds up with his opinion that this should have been enough information for me and the public.  Unfortunately, I know more about this investigation than the public.  I certainly know more about this investigation than Mr. Debeery.

The Louisiana Constitution, something I would think Mr. Debeery would favor being applied to everyone as it was intended, establishes due process for civil service employees.  The process that is due requires that civil servants be apprised of the exact violations leading to disciplinary action.  The obviously flawed report by the Inspector General is insufficient to satisfy that requirement.  I should know the details of the circumstances leading to the discipline of my client.  That is the law.

We agree on one thing:  there has been a significant change in the operation of that unit (except that the detectives are still under water with an exorbitant case load).  This is a good thing.  This is also the only thing that really addresses the problems, in general terms, that existed in the structure of the sex crimes unit.  Disciplinary actions taken against good officers are not what led to this improvement.