About Donovan Livaccari

Louisiana FOP Lawyer

Tropical Storm Barry and the FLSA

UPDATE 2 (7/13/19): During the implementation of a crisis management plan, regular communication is crucial. As such, there are regular conference calls involving management from various departments and amongst leaders of those departments. So, there was a conference call at 1:00 this afternoon. One of the issues addressed was that all compensable time will be paid as such. As I noted below in my original version of this post, a crucial function of any emergency plan implementation is the identification of problem areas and discussion of ways to fix them up. Hurricane Barry (It did become a hurricane at some point, however short) was unique. Forecasters have become better at identifying these storms and better at creating accurate predictions. Barry, however, did not give anyone much advance notice. As such, plans which dictated the availability of certain assets at 48, 72, or 96 hours had to be revised as quickly as possible and re-implemented. Officers may have noticed some of those things, but without an overall view of the plan, it is difficult to make realistic assessments of how the plans were implemented. Over the course of 7/23/19, I spoke with Chief Noel more than once. Chief Noel has assured me that before any decision was made with regard to holding employees over that an analysis was made of whether it was affordable to do so. Once it was determined they could afford the extra pay, it was determined, yet again, that it was still necessary and/or worth the extra expense. Finally, Chief Noel assured me that Supt. Ferguson is committed to ensuring the NOPD makes payment to its employees for any compensable time accrued during the emergency. Again, the law about what time is compensable as per the FLSA is below. Officers will benefit themselves by learning what constitutes compensable time and how that fits into the FLSA 7(k) overtime sceme for law enforcement.

UPDATE 1 (7/13/19): I think it is important to point out that we have no reason to believe that any compensable time will not be compensated. That’s why it is important to learn what is compensable time and what is not. The law can be found below.

As you are aware New Orleans is making preparations for the landfall of a tropical storm, The National Hurricane Center is predicting that Tropical Storm Barry will make landfall along the southern coast of Louisiana relatively soon.

In addition, each tropical weather event gives the #NOPD a chance to implement emergency plans, look for weaknesses in those plans, and make adjustments. It never fails to take a number of people by surprise.

The next thing that comes up, inevitably, is that NOPD is not letting employees go home and they are not going to pay us. If you were thinking about calling and asking how they can get away with that, you are not the first. If the Department issues orders which interfere with an employee’s ability to spend off time however they want, it is compensable. There is more of a discussion on this topic below. It has to be more than “you have to answer the phone.” It also has to be more than “you can’t drink alcohol.” It could be those things if they were combined in some way that increases the restrictions on how you spend your free time. As you could imagine – it could be different on a case by case basis.

Clicking here will bring you to the Code of Federal Regulations which govern the application of the Fair Labor Standards Act (FLSA) for employees of state and local governments. That includes NOPD police officers. If you scroll on down to subpart C Fire Protection and Law Enforcement Employees of Public Agencies. Fact Sheet 22 is a little shorter and more general, but not necessarily better.

If you scroll down just a little further, you will see 553.220, “Tour of Duty” defined. Below that is what we are currently interested in. That describes what hours you work that you have to be compensated for – that you have to be paid for.

“Tour of Duty”

(a) The term “tour of duty” is a unique concept applicable only to employees for whom the section 7(k) exemption is claimed. This term, as used in section 7(k), means the period of time during which an employee is considered to be on duty for purposes of determining compensable hours. It may be a scheduled or unscheduled period. Such periods include “shifts” assigned to employees often days in advance of the performance of the work. Scheduled periods also include time spent in work outside the “shift” which the public agency employer assigns. For example, a police officer may be assigned to crowd control during a parade or other special event outside of his or her shift.

(b) Unscheduled periods include time spent in court by police officers, time spent handling emergency situations, and time spent working after a shift to complete an assignment. Such time must be included in the compensable tour of duty even though the specific work performed may not have been assigned in advance.

(c) The tour of duty does not include time spent working for a separate and independent employer in certain types of special details as provided in § 553.227. The tour of duty does not include time spent working on an occasional or sporadic and part-time basis in a different capacity from the regular work as provided in § 553.30. The tour of duty does not include time spent substituting for other employees by mutual agreement as specified in § 553.31.

(d) The tour of duty does not include time spent in volunteer firefighting or law enforcement activities performed for a different jurisdiction, even where such activities take place under the terms of a mutual aid agreement in the jurisdiction in which the employee is employed. (See § 553.105.)

§ 553.221 – Compensable Hours of Work

(a) The general rules on compensable hours of work are set forth in 29 CFR part 785 which is applicable to employees for whom the section 7(k) exemption is claimed. Special rules for sleep time (§ 553.222) apply to both law enforcement and employees in fire protection activities for whom the section 7(k) exemption is claimed. Also, special rules for mealtime apply in the case of employees in fire protection activities (§ 553.223). Part 785 does not discuss the special provisions that apply to State and local government workers with respect to the treatment of substitution, special details for a separate and independent employer, early relief, and work performed on an occasional or sporadic and part-time basis, all of which are covered in this subpart.

(b) Compensable hours of work generally include all of the time during which an employee is on duty on the employer’s premises or at a prescribed workplace, as well as all other time during which the employee is suffered or permitted to work for the employer. Such time includes all pre-shift and post-shift activities which are an integral part of the employee’s principal activity or which are closely related to the performance of the principal activity, such as attending roll call, writing up and completing tickets or reports, and washing and reracking fire hoses.

(c) Time spent away from the employer’s premises under conditions that are so circumscribed that they restrict the employee from effectively using the time for personal pursuits also constitutes compensable hours of work. For example, where a police station must be evacuated because of an electrical failure and the employees are expected to remain in the vicinity and return to work after the emergency has passed, the entire time spent away from the premises is compensable. The employees in this example cannot use the time for their personal pursuits.

(d) An employee who is not required to remain on the employer’s premises but is merely required to leave word at home or with company officials where he or she may be reached is not working while on call. Time spent at home on call may or may not be compensable depending on whether the restrictions placed on the employee preclude using the time for personal pursuits. Where, for example, an employee in fire protection activities has returned home after the shift, with the understanding that he or she is expected to return to work in the event of an emergency in the night, such time spent at home is normally not compensable. On the other hand, where the conditions placed on the employee’s activities are so restrictive that the employee cannot use the time effectively for personal pursuits, such time spent on call is compensable.

(e) Normal home to work travel is not compensable, even where the employee is expected to report to work at a location away from the location of the employer’s premises.

(f) A police officer, who has completed his or her tour of duty and who is given a patrol car to drive home and use on personal business, is not working during the travel time even where the radio must be left on so that the officer can respond to emergency calls. Of course, the time spent in responding to such calls is compensable.

(g) The fact that employees cannot return home after work does not necessarily mean that they continue on duty after their shift. For example, employees in fire protection activities working on a forest fire may be transported to a camp after their shift in order to rest and eat a meal. As a practical matter, the employee in fire protection activities may be precluded from going to their homes because of the distance of the fire from
their residences.

[52 FR 2032, Jan. 16, 1987; 52 FR 2648, Jan. 23, 1987, as amended at 76 FR 18857, Apr. 5, 2011; 82 FR 2229, Jan. 9, 2017]

§ 553.222 – Sleep time.

(a) Where a public employer elects to pay overtime compensation to employees in fire protection activities and/or law enforcement personnel in accordance with section 7(a)(1) of the Act, the public agency may exclude sleep time from hours worked if all the conditions in § 785.22 of this title are met.

(b) Where the employer has elected to use the section 7(k) exemption, sleep time cannot be excluded from the compensable hours of work where
(1) The employee is on a tour of duty of less than 24 hours, which is the general rule applicable to all employees under § 785.21, and
(2) Where the employee is on a tour of duty of exactly 24 hours, which is a departure from the general rules in part 785.

(c) Sleep time can be excluded from compensable hours of work, however, in the case of police officers or employees in fire protection activities who are on a tour of duty of more than 24 hours, but only if there is an expressed or implied agreement between the employer and the employees to exclude such time. In the absence of such an agreement, the sleep time is compensable. In no event shall the time excluded as sleep time exceed 8 hours in a 24-hour period. If the sleep time is interrupted by a call to duty, the interruption must be counted as hours worked. If the sleep period is interrupted to such an extent that the employee cannot get a reasonable night’s sleep (which, for enforcement purposes means at least 5 hours), the entire
time must be counted as hours of work.

[52 FR 2032, Jan. 16, 1987, as amended at 76 FR 18857, Apr. 5, 2011]

More light reading on the FLSA – Scroll with to shifts fewer than 24 hours.

How to determine if on-call time is compensable.

More on whether sleeping is compensable time.

Time suffered or permitted to work.

All that being said, my guess is nobody had a hard time getting to work on time this morning due to the weather.

Be safe. Don’t drown any police cars. It is deeper than it looks.


VERY IMPORTANT – 1st Amendment Update

I have written or reported information about police officers and the 1st Amendment Right to Free Speech before. See U.S. Fifth Circuit Case Update – 1st Amendment and Terry Stops and Police Officer First Amendment Rights. I have also written about Facebook and Free Speech rights. It is time to go over it again.

As time passes, the popularity of Internet websites comes and goes. Facebook has ceased to be a tool for the younger generation, but 1.56 billion people still log into Facebook every day. That number includes a lot of police officers (and firefighters). This article is probably just as applicable to firefighters as it is to police officers. The executive summary of this article is: “DON’T USE FACEBOOK TO SHARE YOUR POLITICAL VIEWS.” If you think that nobody is paying attention, you are mistaken.

That brings me to the Plain View Project. The Plain View Project says the following about itself:

The Plain View Project is a database of public Facebook posts and comments made by current and former police officers from several jurisdictions across the United States.


We present these posts and comments because we believe that they could undermine public trust and confidence in our police. In our view, people who are subject to decisions made by law enforcement may fairly question whether these online statements about race, religion, ethnicity and the acceptability of violent policing—among other topics—inform officers’ on-the-job behaviors and choices.


To be clear, our concern is not whether these posts and comments are protected by the First Amendment. Rather, we believe that because fairness, equal treatment, and integrity are essential to the legitimacy of policing, these posts and comments should be part of a national dialogue about police.

The website goes on to explain:

In the summer of 2016, a team of attorneys in Philadelphia learned that numerous local police officers had posted content on Facebook that appeared to endorse violence, racism and bigotry. In some of these posts, officers commented that apprehended suspects—often black men— “should be dead” or “should have more lumps on his head.” In other Facebook conversations, officers advocated shooting looters on sight and using cars to run over protestors. Numerous posts deemed Islam “a cult, not a religion” and referred to Muslims as “savages” and “goat-humpers.” And, in still others, officers appeared to joke about beating and raping women.

This discovery inspired the creation of the Plain View Project (PVP), a research project that has identified thousands of Facebook posts and comments by current and former police officers. We believe that these statements could erode civilian trust and confidence in police, and we hope police departments will investigate and address them immediately.

The website claims to search for Facebook accounts belonging to law enforcement officers. They claim to verify that the person is really a law enforcement officer employed by a law enforcement agency. They then collect posts from those officers and publish them to a searchable database. Right now, the database only consists of a limited number of jurisdictions:

  • Philadelphia, PA
  • Dallas, TX
  • St. Louis, MO
  • Phoenix, AZ
  • York, PA
  • Twin Falls, ID
  • Denison, TX
  • Lake County, FL
  • Others

Some officers believe that the First Amendment protects speech like posts made to Facebook or other social media outlets.


What constitutes speaking as a private citizen? If you want to be safe, the answer is NOTHING. A private citizen doesn’t have information which is only available because of that person’s position as a law enforcement officer. A private citizen isn’t trying to promote a law enforcement officer’s career or adversely impact someone else’s.

Just forget about the First Amendment coming to your rescue.

In short, these posts could easily lead to disciplinary action or even termination. We have seen several of these cases, but nothing like what you can find in the Plain View Project database.

Do yourself a favor and read through some of the info collected. Hopefully, it will make you think twice about posting anything but cute pictures of kittens on social media. Just don’t do it.

Click here for AP Story,,

Click here for 6/19/19 AP Story

NOPD Accident Review Board Update

I guess this was coming ever since NOPD updated the disciplinary penalty matrix (Chapt. 26.2.1). First, let me take this opportunity to say that the old adage that you can’t help if you don’t get there is true. Secondly, and easily as important, wear your seatbelt. It may be uncomfortable or you may feel like it slows you down when exiting the vehicle, but there is no doubt that seatbelts save lives and it could be yours that gets saved. You could be exercising all of the care and diligence possible and still find yourself involved in an accident. You will be better off wearing your seatbelt. Finally, don’t leave loose items laying around that can interfere with your ability to drive. You should be thinking clipboards, shoulder mics, and the like.

All that being said, it used to be the case that everyone deemed to have been in an at-fault accident would eventually be summoned before the Accident Review Board. The vast majority of those people would get a Letter of Reprimand. Usually, one or two people would be deemed to not be at fault and one would get slammed, Those days are gone.

I attended the Accident Review Board today. What I learned is that for those minor, first-offense accidents, the driver was offered a negotiated settlement. If accepted, the negotiated settlement resulted in a letter of reprimand. If the officer did not accept the negotiated settlement, then the officer was ordered to attend the Accident Review Board (“ARB”).

At today’s ARB, two people were found to be not at fault. One was responding to a 108 and had the right-of-way, traveling at a reasonable speed. The other was also traveling at about the speed limit and bottomed out on a defective roadway. One person got a LOR because the damage was only to one rim. The remainder got at least a 1-day suspension for first offenses, a 5-day suspension for second offenses, and a 10-day suspension for third offenses.

What does this mean for you? If you are offered a negotiated settlement for an accident you know you were at fault in, you should probably take the negotiated settlement. An example might be a backing accident or striking a parked car. If you are unsure, don’t hesitate to call me. I will help you make a determination of the best course of action. If you know the accident is a second or third offense, make sure to call and let me know about the ARB so you can keep the FOP’s Salary Reimbursement Option in play. Don’t assume someone else has already called.

As a reminder, the FOP’s Salary Reimbursement Option (“SRO”) will repay you for up to 5 suspension days at $150/day for cases you are not going to appeal. However, it is required that you be represented by an FOP attorney. If you don’t want to call me for some reason, call one of the others. Bur, it is not unusual for me to represent everyone who appears before the ARB like I did today. I spent my last 4 years on the job as Commander of Traffic Fatality Investigations. So, I have some experience with the subject matter.

As usual, the FOP is looking out for you. In addition, the FOP provides benefits which are unmatched by any other organization. 90% of active officers belong to the FOP. Take advantage of the benefits you pay for. If you are part of the 10% who don’t belong to the FOP, consider joining. The benefits are worth it. You may feel like you will never need them, but you never know, It is better to be prepared. Maybe you can be lucky enough to never need the legal services – maybe. However, everyone eventually makes use of the guaranteed death benefit. Don’t hesitate to pick up the phone.

Donovan Livaccari

You Should Make a Last Will and Testament

Members of the Crescent City Lodge of the Fraternal Order of Police are entitled to 2 hours per year of legal services for whatever legal needs you may have as a benefit of membership. The legal needs do not have to be related to the performance of your duty in any way. In fact, legal issues resulting from the performance of your duty as a police officer are covered by other elements of the FOP Legal Defense Plan. I am recommending that you consider using those 2 hours to draft a last will and testament. I cannot speak for any other attorney who does FOP Legal Defense Plan work, but, assuming you don’t need complicated estate planning and a complicated last will and testament to accompany the complicated estate planning, I will take care of your last will and testament that doesn’t cost you anything out of pocket. I will even throw in a living will, if you want. If the information below makes your head spin or generally causes confusion, feel free to call for an explanation or with any questions. You can also skip to the last paragraph and I will do whatever I can to help.

If you die without a will in Louisiana then you have died intestate. In the event an individual dies intestate in Louisiana, then that person’s estate devolves by the laws of intestacy. What does that mean? That means that whatever property the deceased has at the time of death after the bills are paid, is distributed based on the Louisiana Civil Code articles setting the order of heirship.

An heir is someone who receives a share of an estate by law or judicial process. A legatee is someone who receives a share of an estate as a result of a bequest in a last will and testament. A beneficiary is someone who receives some benefit as a result of being designated the beneficiary during the lifetime of the decedent. Things with a beneficiary, such as insurance policies, pensions, 401k’s, etc., are not part of one’s estate and operate outside of a last will and testament or the laws of intestacy.

If someone dies without a will in Louisiana, the estate will go to descendants or ascendants in equal portions in the following order: 1) children; 2) siblings; 3) parents; 4) surviving spouse; 5) other ascendants; 6) other collateral relatives by degree. The surviving spouse is entitled to the surviving spouse’s share of the community property but does not become an heir of the decedent’s community property unless there are no children, siblings, or parents that are heirs first. As you can see, it gets a little complicated. It gets even more complicated when there are 1/2 siblings or if siblings predecease the decedent.

In addition to all that intestate confusion, we have to mention the civil law concept of usufruct. Let’s say, hypothetically, that Officer A dies intestate with 2 children and a surviving spouse. In this case, Officer A’s children each receive a 50% “naked ownership” interest in the estate and the surviving spouse would get usufruct for life. What the fruct?

There are three elements to ownership: 1) usus, 2) fructus, and 3) abusus. The usus is the use of the thing. The fructus is the fruits of the thing (for example rent from a rental property is the fruit of the rental property). The abusus is the right to destroy or dispose of the property. If one is a naked owner, then that person only has the abusus. The usufructuary (the person with the usufruct) has the usus and the fructus. Together, the naked owner and the usufructuary combine to have full ownership. Apart, neither has a right to sell or dispose of the property.

In Louisiana, we also have forced heirs. Forced heirs are any first line descendants who are 23-years-old or younger or first line descendants who are incapable of caring for themselves due to physical or mental infirmity, regardless of age. Forced heirs must receive a portion of the decedent’s estate unless the forced heir is disinherited. Please note this is a very brief, simple discussion of forced heirship. As you could imagine, it gets more complicated.

Unborn children are entitled to a portion of the estate, assuming they are conceived prior to the decedent’s death. Children of heirs can take based on representation. There is more. Intestacy can be easy at times and complicated others.

How does one avoid all that? By executing a last will and testament. In a last will and testament, one can specify who they would like to receive property in an estate. A last will and testament can’t override the laws on forced heirship, but otherwise, it gives one some control over how their estate is distributed after death. For the purposes of this post, I am going to leave it here. If you have questions, feel free to call me.

A living will is different from a last will and testament. A living will is a declaration of how you want to be handled if you are unable to make those decisions for yourself. Again, I am happy to go over that with people individually if necessary.

I want to conclude by suggesting that every member of the Crescent City Lodge (NOPD employees) should take advantage of the opportunity to draft and execute a last will and testament. As I stated above, I can generally do that with no out of pocket expense for the FOP member. Call me and we can set up an appointment to discuss the matter further.

Louisiana Concealed Carry Laws for Law Enforcement

Depending on who you believe, either 10.98 million (University of New Orleans) or 17.74 million (City of New Orleans) people visited New Orleans in 2017, spending $7.51B or $8.7B (respectively) while they were here. I do not know how many of those individuals were law enforcement professionals, but in 2012, the FBI said there were about 700,000 sworn officers. If reality bears out the averages, then that means there were somewhere between 21,960 and 35,480 law enforcement officers who were part of those visitors to New Orleans.

In August 2019, there will be thousands of active and retired law enforcement officers in New Orleans for the FOP’s 64th Biennial Conference. While I have no idea how many of those law enforcement visitors will be armed and carrying concealed weapons during their visit, I can imagine there will be a few. Some of those visitors carrying a concealed weapon might be visiting local eating and/or drinking establishments. While there are lots of things New Orleans is known for, drinking and eating must be near the top of the list.


For those of you who don’t want to read the reasons why, here is a summary of the law in Louisiana:

  • Law enforcement officers are not forbidden from carrying concealed weapons in bars and/or restaurants
  • Any active or retired law enforcement officer approached by the NOPD while visiting New Orleans should 1) comply with all requests; and 2) be prepared to produce identification compliant with the requirements of LEOSA.
  • Guns and alcohol don’t mix in New Orleans or any other jurisdiction. Play it smart. If you are going to be drinking, leave your weapon in the hotel safe.

If you are interested in the “why,” feel free to keep reading.

La. R.S. 14:95.5 says that nobody is allowed to intentionally possess a firearm while on the premises of an alcohol beverage outlet. It goes on to define an alcoholic beverage outlet (ABO) as any business which sells alcohol in individual servings that are intended to be consumed on the premises, without regard for how much of the business’s revenues are derived from the sale of alcohol. As you might imagine, there are exceptions – exceptions which should not be conflated. In addition to the exceptions found in La. R.S. 14:95.5, there is also a federal law which likely preempts the state law, at least as it applies to the FOP members visiting in August, or the thousands of law enforcement officers who visit New Orleans every year.

La. R.S. 14:95.5(C)(1) says that the provisions of La. R.S. 14:95.5 do not apply to the owner or lessee of an ABO, an employee of the owner or lessee of an ABO, or to a law enforcement officer, or to a law enforcement officer or other person vested with law enforcement authority or listed in R.S. 14:95(G) or (H). La. R.S. 14:95.5(C)(2) says that someone with a concealed handgun permit can carry pursuant to 40:1379.1 or 40:1379.3 if the ABO has a Class A restaurant permit.

I am not aware of any definition of law enforcement officer in Louisiana statutes. La. R.S. 40:2402 defines “Peace Officer” in terms of Louisiana POST and is often cited as a starting point for defining “law enforcement officer.” However, that is not what the statute says.

La. R.S. 14:95(G) provides exemptions to La. R.S. 14:95, Illegal Carrying of Weapons (except La. R.S. 14:95(4) which I will touch on at the end) for Sheriffs, their deputies, state and city police officers, etc. in the course of their duties. It also provides an exemption for Sheriffs, their deputies, state and city police officers, as long as they are POST certified. It exempts retired law enforcement with at least 12 years and annual qualification with the appropriate id and reserve or auxiliary police officers as long as they have the appropriate identification and qualify annually with the POST firearms course.

La. R.S. 14:95(H) provides exemptions for justices, judges, and other members of the judicial or legislative branches of government as long as they have the proper identification and qualify annually with the POST firearms course.

All that is pretty complicated when La. R.S. 14:95.5(C)(1) simply exempts law enforcement officers. Furthermore, unlike the exemptions found in La. R.S. 14:95, the exemptions in La. R.S. 14:95.5(C)(1) do not require qualification on a POST course (other jurisdictions don’t necessarily have a POST Council – although other jurisdictions do have some variation of POST).

As it relates to those with concealed handgun permits, the statutory limitations are listed in La. R.S. 40:1379.3. These, however, do not apply to law enforcement officers.

La. R.S. 14:1379.1.3 provides that law enforcement officers can, generally speaking, carry a concealed weapon anywhere in Louisiana, including anywhere open to the public, given certain conditions. This statute was modeled after LEOSA, which is described below.

The Law Enforcement Officers Safety Act (LEOSA) is a United States federal law, enacted in 2004, that allows two classes of persons – the “qualified Law Enforcement officer” and the “qualified retired or separated Law Enforcement officer” – to carry a concealed firearm in any jurisdiction in the United States or United States Territories, regardless of state or local laws, with certain exceptions. (https://leosaonline.com/) This law is sometimes referred to as H.R. 218 after the bill introduced before its passage.

(c) As used in this section, the term “qualified law enforcement officer” means an employee of a governmental agency who—

(1) is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and has statutory powers of arrest or apprehension under section 807(b) of title 10, United States Code (article 7(b) of the Uniform Code of Military Justice);

(2) is authorized by the agency to carry a firearm;

(3) is not the subject of any disciplinary action by the agency which could result in suspension or loss of police powers;

(4) meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm;

(5) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and

(6) is not prohibited by Federal law from receiving a firearm.

(d) The identification required by this subsection is the photographic identification issued by the governmental agency for which the individual is employed that identifies the employee as a police officer or law enforcement officer of the agency.

(e) As used in this section, the term “firearm”—

(1) except as provided in this subsection, has the same meaning as in section 921 of this title;

(2) includes ammunition not expressly prohibited by Federal law or subject to the provisions of the National Firearms Act; and

(3) does not include—

(A) any machinegun (as defined in section 5845 of the National Firearms Act);

(B) any firearm silencer (as defined in section 921 of this title); and

(C) any destructive device (as defined in section 921 of this title).

(f) For the purposes of this section, a law enforcement officer of the Amtrak Police Department, a law enforcement officer of the Federal Reserve, or a law enforcement or police officer of the executive branch of the Federal Government qualifies as an employee of a governmental agency who is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and has statutory powers of arrest or apprehension under section 807(b) of title 10, United States Code (article 7(b) of the Uniform Code of Military Justice).


Preemption is the doctrine which basically stands for the proposition that based on the Supremacy Clause of the U.S. Constitution (Article VI, Clause 2) federal law preempts state and local law when they attempt to govern the same topic. In this case, LEOSA, a federal law, states that certain law enforcement officers, active and retired, can carry concealed firearms anywhere in the United States except that it recognizes a state’s right to pass legislation allowing private persons to restrict firearms possession on their property or to restrict possession of firearms in government buildings or installations. Finally, LEOSA does not override the Gun-Free School Zone Act.

I defended a law enforcement officer from Mississippi who had been arrested in a bar in the French Quarter for carrying a concealed handgun. Ultimately, the District Attorney’s Office reached the same conclusion as I did considering the above and refused the charges. The officers who made the arrest in that case confused the laws on concealed handgun permits with the laws governing law enforcement officers. The officer who was arrested realized he had made a mistake by carrying a concealed firearm in a bar because guns and alcohol don’t mix.


Guns and alcohol do not mix. LEOSA and Louisiana Law both exempt intoxicated persons from the protection of the law, and for good reason. Actually, the legislation uses the language “under the influence of. . .” What does that mean? I have seen that language interpreted to mean “the presence of any alcohol at all – even the slightest bit.”

On behalf of the Louisiana Fraternal Order of Police and the FOP Crescent City Lodge, we are looking forward to the thousands of FOP members who will be coming to visit in August. We do want everyone to enjoy themselves. Furthermore, poor decision making is probably forgivable. However, if someone ends up hurt or dead because of the mixture of guns and alcohol, or drinking and driving, the law is not going to be quite so forgiving.

Do you want to be in the movies?

I received an email from Central Casting Louisiana. The test of the email is below. Anyone who is interested (and available) can email Hunt@CentralCasting.com.

Central Casting Louisiana is seeking military/police types!

We are a background casting company that has been in business for over 90 years. We have worked on such projects as Jurassic World, LBJ, LoganDeepwater HorizonThe Magnificent Seven, MTV’s Scream, and Cloak and Dagger.

Filming is will soon begin the feature – The Hunt.

This horror/thriller film is set in Eastern Europe, but will film in New Orleans through April. We are in need of military or police types to work as the featured military border agents at a refugee camp.

We are reaching out to you and your organization for submissions!

Work Dates: Thursday 2/21, Friday 2/22, Friday 3/22, AND Monday 3/25

Please feel free to share this email with your friends or anyone who may be interested!

To submit, please email to Hunt@CentralCasting.comfull namecurrent photo(s)military or police experience, and phone number.

If you would like additional information about Central Casting, please call us at 504-684-2550 ext 1 between 9 AM – 6 PM, CST. We thank you for any help that you may be able to provide.

Please click the links below to follow us on social media!

26-23 – The Super Bowl Gets Much Less Interesting

It is hard to describe the feeling in New Orleans that existed the evening of January 20, 2019. There was little to no interest in the AFC Championship between the Pats and the Chiefs because the Saints has just been screwed out of a trip to Atlanta for Super Bowl LIII. This will be bad for the NFL.

After the heart-breaking loss to the Rams, Saints fans everywhere struggled with how that game turned out. Saints fans are used to losing games. It isn’t that. I fought the urge to say we were cheated. Cam Jordon tried to do the same thing – trying to focus on other opportunities that had been missed during the game.

There was a dropped catch in the back on the end zone that ended up leading to a field goal. There was the first and ten pass play that preceded “the missed call” where Drew Brees, our Hall of Fame football savior, threw the ball at the receivers feet for some inexplicable reason. Why did we pass the ball anyway? If we had just given it to Ingram or Kamara, or even Taysom Hill, the Rams would have been forced to use their last time out and the clock would have kept on ticking after that.

But, those are the things you see with 20/20 hindsight. Yep, the 4 point difference between the dropped pass and the field goal may have changed the ending also. However, that simply wasn’t the case. It didn’t happen that way. The Saints drove down to the red zone and, on third and ten, Drew Brees threw a pass to Tommylee Lewis. Nickell Robey-Coleman, the Rams’ DB recognized the situation for what it was. Lewis was open a few short feet from the goal line, Brees saw it, threw the ball, and Lewis was going to catch it and score a touchdown, making it much more difficult to send the game into overtime. Or, what is even more likely, Lewis would have been pushed out of bounds, having gained a first down, leaving the Saints in a game winning position. Robey-Coleman did what we have seen defensive backs do in that situation for years. It is better to take the penalty than to give up the score.

As Robey-Coleman admitted in post game interviews, he knew he was early when he hit Tommylee Lewis. He knew had hadn’t turned around to try to find the ball. He knew he hadn’t made any effort to make a play on the ball. He intended to interfere with Lewis’ ability to catch the ball. He said that he fully expected to see yellow flags flying. So did everyone else in the Superdome. So did everyone else watching television in New Orleans. So did everyone in Las Angeles. So did everyone everywhere except the guys in black and white stripes shirts on the field. Robey-Coleman said a ref told him the ball had been tipped. That’s the only way the pass interference would have been justified. It wouldn’t have justified the helmet-to-helmet hit on a defenseless receiver, but it would have justified the PI. Tipped balls are reviewable, right?

Anyway, we know how it turned out. Nobody threw a flag on an egregious foul. I don’t have any problem with letting the players play. That’s one of the justifications I have heard since Sunday. The refs had been letting the players play. Fine. This wasn’t one of those situations. It was a clear pass interference by one player on another. It wasn’t two players hand fighting down the field or jostling for position. Even worse, letting the players play doesn’t justify not calling the helmet-to-helmet contact when that has been a safety focus of the NFL all year long. There is a linebacker for the Green Bay Packers who did everything but put a pillow under the QB’s head on a sack that resulted in a roughing the passer call. There was a roughing the passer call in the Pats/Chiefs game where the defensive player hit Brady in the chest, missing the helmet all together. There is simply no justification for missing that call when Robey-Coleman hit Tommylee Lewis early, helmet to helmet.

The facts that there were other missed opportunities and questionable calls by Sean Payton during the game are irrelevant. There are always missed opportunities and questionable calls in every game. The situation that existed in that now infamous third and ten existed independently of any other missed opportunity or questionable call. The refs blew it bad. If the Saints get that call, it becomes first and ten. The Saints can run the clock down to a point where the ensuing field goal would have sealed the deal, cementing the Saints’ trip to Super Bowl LIII.

Now, Super Bowl LIII will be the Patriots versus Rams. I couldn’t be any less interested in that game. We are well aware that Brady is the GOAT. As much as I love Brees and appreciate everything he has done for Saints Football, the City of New Orleans, for ME, TB12 didn’t throw an interception to a defender lying on his back in overtime to lose the game. TB12 drove down the field and scored a touchdown, keeping Pat Mahomes and the Chiefs offense off the field. The Pats didn’t give up a single negative yardage play in the AFC Championship. Say what you want, that is hard to argue with.

Now, leading up to Super Bowl LIII, the media coverage is about the blown call in the Saints game and the good work done by the Patriots’ offensive line. BORRRRING! We won’t get to enjoy Brees, Alvin Kamara, Michael Thomas, Taysom Hill, Cam Jordan, Sheldon Rankins, and on and on and on. We also won’t get to enjoy Pat Mahomes and the future of the NFL. We will have a Super Bowl between a team that should have lost the NFC Championship and Belichick and Brady. I just don’t care and my gut says that there are plenty other people outside of Boston who don’t care either. I’m not saying the Patriots don’t deserve to be in the game. Clearly they do. I just don’t care who wins – like Brady needs another ring.

I know I am not a sports writer and this article is way outside of my normal writing topics. I am, however, a lifelong resident of New Orleans. And as a lifelong resident of New Orleans, I am a lifelong fan of the New Orleans Saints. That won’t change. Next season, I will be ready to yell “Who Dat!” with fellow Saints fans, whether they are from New Orleans or not. I will be ready to yell “Who Dat!” when Brees retires and Taysom Hill takes over.

I do think Super Bowl LIII is the worst case scenario for the NFL. Whether you like the Saints or not, there is simply no denying they should have beat the Rams in the NFC Championship. I guess the football fans who love offensive line play the most will be excited about the Patriots winning another one. I did like Todd Gurly’s Instagram post of him trading jerseys with the ref, but the refs won’t be rooting against Brady on February 3. My conclusion is f ’em. I doubt I will watch LIII. I certainly won’t forget about this no call that cost us a trip to the Super Bowl. Finally, I don’t blame anyone for feeling that way (except the NFL officiating crew from the 2019 NFC Championship game).

Thanks tor letting me vent. Feel free to agree or disagree in the comments.

Edit: I have seen a number of comments that the refs didn’t call a face mask on Goff at the 5, or there were other no calls throughout the game. I admit that. The difference is that we don’t know what impact, if any, calling that face mask would have had. We know with a great deal of certainty that had pass interference been called on the third and ten pass attempt to Tommylee Lewis, the Saints would have won the game.

UPDATE 2/4/19 – I was right. SB LIII was a dud. Anyone who thinks the game wouldn’t have been better with Saints v. Chiefs is delusional. Who dat!

Apps for Saving, Investment, and Retirement

As a former police officer and an attorney who regularly represents police officers and other public servants, I have a good idea of what financial life is like for police officers and other public servants. It can be tough. It often means that police officers work a combination of overtime and off-duty details that would make working two jobs seem inviting. Add a family and that challenge just gets more difficult.

The U.S. Supreme Court has held that police need a search warrant to look through someone’s smart phone. Why? Because, these days, we have the most intimate details of our lives stored on our phones — the type of information that should be protected. Some of that information is financial information.

I have made a few posts of Facebook and Twitter, but it is a little disjointed and hard to make sense of in that format. So, I thought I would put it here, together. I am going to share my experience with 3 apps: Acorns, Robin Hood, and Stash. A little disclaimer — I do use these 3 apps and clicking on the links I provide will give me and the clicker (you) a $5 bonus for signing up. While I did not write this to hustle $5 bonuses, who would turn down a free $5? The point is that the $5 is not my motivation.


Acorns takes a unique approach to saving and investing. When you set up Acorns, you tell the app what level of risk you are willing to undertake. For example, you can set up the investments as conservative, moderately conservative, moderate, moderately aggressive, or aggressive. Acorns invests your money in one of five funds that invest in things that fit the appropriate risk profile. You link your bank account and/or credit card accounts to Acorns. As you spend money, Acorns rounds up your purchases to the nearest dollar. When the rounded up change reaches $5, it transfers the money to your Acorns account and invests it in the appropriate fund. It essentially invests yours spare change for you.

You can also tell Acorns you want to invest a lump sum each month in addition to the spare change it invests it on a regular basis. Finally, you can ask Acorns to transfer funds as needed. You can withdraw funds from Acorns pretty easily using the app. It takes 3-5 business days before you see the funds appear in your account, but the funds do appear in your account.

You can also open a debit account and a retirement account with Acorns. The money grows without having to pay any attention to it. I transfer my spare change and $100 extra per month set at moderately aggressive and my account has returned 1.88%. So, not the greatest return, but it is certainly better than any savings account.

The fee is $1/month or .002% for balances over $10,000.

Acorns is intended to be used through an app on your phone, but you can access your account through the Acorns website.

Click here to download Acorns.


Stash may be my favorite. Stash is a cross somewhere between Acorns (it does not invest spare change like Acorns) and Robin Hood (which will be next, but is more like traditional investing). Stash links to your bank account and you can set an “auto-stash” or you can manually transfer funds to invest. Once you transfer the funds you have to choose your own investment vehicles.

Stash has a number of funds that are organized by the types of companies the funds invest in. The funds are categorized into “I Believe,” “I Want,” and “I Like.” The categories are supposed to represent things you might believe in, want, or like. For example, one of the funds in I Believe is called Clean & Green and invests in companies that use or produce clean energy sources such as wind and solar. Another is Defending America which invests in America’s military suppliers. Women Who Lead invests in companies lead in the area of gender equality. I’m not sure what the I Want category is supposed to be. I mean, I could guess, but I don’t know that I would be right. It has a fund called Corporate Cannabis. I am sure you can guess what that is about. There are also funds that describe the risk level – Aggressive Mix, Conservative Mix, Long-Term Mix, etc. The funds in I Like are things you might be interested in, I guess. They have names such as American Innovators (Google, Facebook, Apple, etc.), BLOK (companies working on the block chain), and On Cloud Nine (companies developing cloud computing). Finally, there are a selection of companies you can invest in directly.

The list of companies you can invest in directly include such companies as Alphabet (Google), Amazon, General Dynamics, Boeing, Facebook, Netflix, and others. The beauty of this is that you can invest however much you would like. For example, if you were to buy Amazon (AMZN) from your stock broker, each share would cost you more than $1,500 ($1,691 as I write this). Alphabet (Google – GOOGL) is $1,092.18 per share as I write this. With Stash, you can invest $50.00 in Amazon and own approximately .003 shares. Now, you won’t be controlling the voting at Board meetings, but if 1 share of Amazon goes up by 5%, 1000 shares go up by 5% and .003 shares goes up by 5%. If your goal is a hostile takeover of Mr. Bezo’s empire, you should choose another vehicle. If your goal is similar to mine — saving some money that earns more than what savings accounts are paying in interest — then this may be a good option for you. I think Amazon is a good investment. Amazon is into everything these days and the companies it does not own have to use Amazon services to make money. It would cost me $169,100 to buy 100 shares and I don’t have that sitting around ready to invest. I can, however, find $50 to invest in Amazon. You could tell Stash to invest $5/week in Amazon. Or you tell Stash to invest $5/week in Amazon and $15/week in the fund composed of companies picked by IBM’s Watson.

One of the things I really like about Stash is that it allows you to open custodial accounts for your minor children. The custodial accounts work just like the main accounts. Stash also has a debit account and a retirement account option available.

The fee is $1/month or .002% if your balance is over $10,000 — the same as Acorns.

You can download Stash here.

Robin Hood

Robin Hood is more like a traditional investment account. You buy shares of companies at the prices everyone else buys shares of stock. If you had $169,100 in your Robin Hood account, you could buy 100 shares of AMZN. There is not a limited number of companies. You can also buy and sell options and Bitcoin and other cryptocurrencies.

There are no fees (account fees or trading fees) associated with Robin Hood unless you borrow money from them using Robin Hood Gold (margin trading). The company also earns interest on the un-invested cash in your account.

You can download Robin Hood here.

I hope this information is helpful to everyone who reads this. It is important to take a minute to plan for the future. If it is fun, you may be more likely to do it. So, do your research. There are other articles on these apps. There is another called Betterment which I don’t have any experience with. However, there are numerous articles online that compare and contrast Acorns, Stash, Robin Hood, and Betterment. Maybe we can both get $5 out of the deal.

A look back at 2018

For the last few years, I have tried to give a short tally of my FOP Legal Defense Plan activities. I think where I have fallen short in the past is that my short tallies haven’t been very short. So, this time is going to be different.

If you are in law enforcement, you should be in the FOP Legal Defense Plan. If you work for NOPD, that means you should be a member of Crescent City Lodge #2. If you work for another agency, then you should belong to your local lodge. If you don’t have a local lodge, you might be able to join Lodge 100 or another lodge in your area. You may also be able to start a new lodge. The point is that in 2019, the FOP Legal Plan is as important to a law enforcement officer as what tools are on his duty belt. Police officers should never go to work without wearing a bullet proof vest. Likewise, police officers should never go to work without the FOP’s Legal Defense Plan protecting them also.

In New Orleans, I believe things related to disciplinary investigations have begun to level off. I think the total number of DI-1 investigations or formal disciplinary investigations is probably close to the total for 2017. My stats are pretty close to 2017 also.


413 is the number of individual law enforcement officers I provided some type of legal service. Most of those 413 law enforcement officers were active members of the New Orleans Police Department. Some, however, were from other departments in southeast Louisiana. A few of those 413 law enforcement officers were retirees. Most were administrative disciplinary actions. Some were criminal investigations. Some were civil issues, workers compensation issues, issues with pay, or other issues associated with their employment.


I accompanied officers to 248 interviews in connection with formal disciplinary investigations. This includes statements at NOPD PIB, district stations, and at other agencies.


I attended 98 disciplinary hearings with FOP members. This includes Commander’s hearings, Bureau Chief hearings, Pre-Disposition Conferences, and any other hearings that resulted from a sustained charge in a disciplinary investigation.


I have 110 New Orleans Civil Service extension request hearings in my records. That is almost certainly very low. Sometimes it is better to lay low at extension hearings.


I accompanied 25 FOP members to an Accident Review Board hearing.


I represented FOP members in 14 Civil Service appeal hearings.


In 2018, the Civil Service Commission released 6 decisions in cases I took to a hearing before the hearing officer. In 3 of those decisions, the Civil Service Commission granted the appeal, at least in part. In addition, at least 7 appeals were settled before the hearing. 2018 also included a decision in the protests of 3 police sergeants which I would consider a win. Counting that, my average would go up to .667. In 2017, there were 10 decisions in cases I took to hearing before the hearing officer. In 6 of those 10 cases, the appeal was granted, at least in-part. I recall when I first started handling these types of cases, the Louisiana State Civil Service used to keep detailed records on appeals. 8% of employees were successful in their appeals. I am confident my 50% – 60% win percentage is much better than average. Published Civil Service decisions can be found here.


I was able to notarize 75 documents for FOP members over the course of 2018.


The FOP provides each one of its members 2 hours of legal services for whatever the FOP member may need. I was able to do that for FOP members on 18 occasions in 2018. Sometimes that means drawing up and executing a Last Will and Testament or a Living Will. Sometimes those two hours are put toward something else, like a succession. One way or another, I try to get as much done within the 2 hours as possible.

So, that’s my review of 2018. I will leave everyone with one story from early 2019 before I hit publish.

Very early in 2019, I got a call from an officer about an officer involved shooting. The officer who called said that he wasn’t involved, but two other officers were and he gave me the location. I started in the direction of the scene and I was notified that there were three officers involved. Eventually that turned into four officers and one officer was in the hospital. The officer at the hospital was not injured badly thanks to his body armor which functioned as expected. Once I was on the scene and had spoken to the third officer, i learned that there were a total of 5 officers involved.

Now, this incident is not going to turn into any major production. It is a pretty straight-forward officer involved shooting and it was recorded from start to finish on four different cameras in high-definition. However, had it been a more controversial OIS, I am sure you could imagine what the legal costs would have been for five (5) officers. Fortunately, these officers all would have been protected by the FOP Legal Defense Plan if they would have really needed it.

It turns out the 5th officer on the scene of this OIS had recently graduated from the Academy and was in field training. I walked over to talk to him with a member of the FIT team. The FIT sergeant introduced himself and then went to introduce me and the officer in training said “Let me guess – my FOP attorney.” Sure enough. After we talked about public safety statements and what to expect, I asked this officer if he had my phone number. He kind of laughed to himself and said that I had been in his class recently at the Academy recently and I had told everyone to keep my number. He related to me that he had sat there thinking that he would never need it and did not put my number in his phone.

Put mt number in your phone. Who knows when you will need it? You can use it whenever you want. It might be something stupid. It might be something critical. It doesn’t matter to me or the FOP.


New Orleans Lieutenant Exam Candidate Review Sessions

On Monday, November 12, 2018, the New Orleans Civil Service Department sent test results from the recent Lieutenants Exam to the test takers. 74 NOPD Police Sergeants took the exam. Out of those 74, 51 passed the exam (69%) and 23 failed (31%). The highest score 94 and the lowest score was 20. The average score was 57 and 53 was the cut-off between pass and fail (the lowest passing score). The Lieutenants List can be found here.

Starting November 14, 2018, the Civil Service Department will begin having candidate feedback sessions with Ms. Bharati Belwalkar. Ms. Belwalkar is the Civil Service Department’s psychometrician who is dedicated to NOPD testing. The intent of this article is to try to give candidates a realistic idea of what to expect in that candidate feedback session.

First, the candidate feedback session is NOT an appeal of your score or a protest of any questions. Your score on the exam will NOT change as a result of the candidate feedback session. The purpose of the candidate feedback sessions is to help the candidate understand their areas of strength and improvement, and to better prepare for the next opportunity to take the exam.

You will NOT see the test questions, your answers, or how they were scored. You will be given information intended to help you focus your studies next time. If you know where your weakest areas were, then you will be able to prepare better next time.

The meeting, which will probably be recorded, will start off by reviewing the 3 main components of the exam: Part 1: In-Basket, Part 2: Structured Interview, and Part 3: Oral Presentation. All three of these components were equally weighted in calculating the candidate’s final score. You will see a graph that looks like this:

The graph shows each component of the exam, the highest score of each component, and the candidate’s score for each component. On the example above (not real test results), the candidate scored 67% on Part 1, 28% on Part 2, and 54% on Part 3. Clearly, the candidate did the best on Part 1 and the worst on Part 2. Ms. Belwalkar will discuss each component in terms of the candidate’s performance on the types of questions covered in it. If any of the raters had specific comments about the candidate’s answers, that information will be shared with the candidate.

Next, Ms. Belwalkar will go through the six competencies tested by the exam. Those competencies followed by the weight assigned to that competency are:

  1. Demonstrating Department’s Values (12%)
  2. Leadership and Supervisory Responsibility (26%)
  3. Operational Effectiveness (25%)
  4. Critical Thinking and Strategic Planning/Problem Solving and Decision Making (18%)
  5. Communicating Orally and/or in Writing (9%)
  6. Partnering with the Community (10%)

You will see another graph that looks like this:

Like the first graph, this graph shows the total percentage weight of each competency and the candidate’s percentage score for each competency. The example candidate profile indicates that the candidate demonstrated about 50% proficiency in every category. Because the competencies are weighted differently, it may be more important to strengthen up those areas, but it appears this candidate needs an equal amount of work across the board. Ms. Belwalkar will work with the candidate to make the information the most useful.

Finally, you will have an opportunity to ask any questions you may have. Remember, you will not have the opportunity to review your test answers, the scoring rubric, or the questions. I guess you can ask, but I would expect the answer to be that it can’t be shared. The reason for this is test security. Sometimes questions are re-used or are changed a little and then re-used. If the questions or answers to the questions were passed around, they would not be able to use any form of those questions again or risk the validity of the exam.

Each candidate’s answer was scored by 3 different raters who used a common rubric to score the exam. The 3 raters then discussed their ratings in order to eliminate error and reach a consensus score.

If you want to schedule a candidate review session, you can sign up for it here. If you have issues accessing this link, contact Ms. Belwalkar at 504-658-3508 or bbbelwalkar@nola.gov. Ms. Belwalkar is New Orleans Civil Service Personnel Administrator for the Test Development & Validation Division, working in the capacity of Senior Psychometrician.

We know that there are going to be at least 23 people who are not pleased with their test scores. Unfortunately, the New Orleans Civil Service Rules do not contain any process for appealing a score or how your exam was graded. When the exam contains a multiple-choice section, the Civil Service Department allows for protests of questions. In those circumstances, the protest is made before the exam is scored and the answer can be validated specifically by reviewing the appropriate text. In the event that a protest reveals a problem, the answer key can be changed or double-keyed to fix the problem. However, there was no multiple-choice section on this exam. The answers, and the scoring rubric, were developed in consultation with subject matter experts (SME’s) from the NOPD. The overall examination and its scoring rubric were reviewed by another group of NOPD SME’s to ensure accuracy and thoroughness. Since the types of questions and answers do not lend themselves to protest, none were allowed. Each exam was graded the same way by 3 different raters. The Civil Service Department has done there absolute best to make sure that everyone had the best chance to succeed.

I also want to take this opportunity to thank Commander Louis Dabdoub for donating his time to help FOP help NOPD officers prepare for the exam. I also want to thank Travers Mackel of WDSU for helping candidates prepare for the exam. As usual, the FOP is dedicated to providing whatever assistance it can to help FOP members succeed.