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.
There is an interesting case that would normally fall in the “Hard to Believe” category and remembered only for its entertainment value. Unfortunately, the case comes out of the U.S. 5th Circuit Court of Appeals. Therefore, the case sets precedent in the federal court circuit in which we live. The case is Brandon Coker and Michael a Golden v. Julian Whittington and Charles Owens. The case arises out of the Western District of Louisiana (we are in the Eastern District of Louisiana) and involves two Sheriff’s Deputies. Since they are Sheriff’s Deputies, they are at-will employees and do not have Civil Service protection.
The case involves two employees of the Bossier Parish Sheriff’s Office, Coker and Golden. Coker and Golden swapped wives. Actually, they swapped families. Golden moved into Coker’s house and Coker moved into Golden’s house. Nothing else changed and nobody got divorced. When Chief Deputy Owens learned of this arrangement, he told Golden and Coker that they either went back to their own homes or they would be considered voluntarily terminated. Needless to say, the two deputies did not comply with the Chief Deputy’s instructions. They were terminated for a provision of the Sheriff’s Code of Conduct that states employees must “Conduct yourselves at all times in such a manner as to reflect the high standards of the Bossier Sheriff’s Office … [and] Do not engage in any illegal, immoral, or indecent conduct, nor engage in any legitimate act which, when performed in view of the public, would reflect unfavorabl[y] upon the Bossier Sheriff’s Office.” This is similar to NOPD’s Professionalism rule. They were also charged with failing to notify a supervisor of a change of address within 24 hours.
One thing that is disconcerting about this case is that Coker and Golden lost not once, but twice – Western District and the 5th Circuit. The District Court held that the disciplinary action was to be upheld because the policies at issue are “supported by the rational grounds of preserving a cohesive police force and upholding the public trust and reputation of the Sheriff’s Department.”
The 5th Circuit Court of Appeals held that precedent in the 5th Circuit has uniformly upheld terminations for sexually inappropriate conduct. Furthermore, the Court held that there are no decisions which stand for the proposition that an officer’s freedoms to associate under the 1st Amendment means freedom to associates with the other’s wife before a formal divorce. They went on to say that pursuant to the U.S. Supreme Court’s holding in Garcetti, public employees “shed some of their constitutional rights as a legitimate exchange for the privilege of their positions.” They went on to say the rule was not constitutionally vague.
The rest of the justification for the holding speaks best for itself. So, here is the Court’s reasoning:
We find no reversible error of fact or law in the district court’s decision. Sexual decisions between consenting adults take on a different color when the adults are law enforcement officers. Their enforcement duties include, for instance, crimes of human trafficking and spousal abuse that place them in sensitive positions with members of the public. Their involvement in relations that openly and “notoriously” violate the legally sanctioned relationships of marriage and family is likely to besmirch the reputation of the Sheriff’s Department and hinder its ability to maintain public credibility. Moreover, these officers’ extramarital relationships, even if consensual and loving at the outset, have great potential to create internal dissension within the force. Finally, it is not hard to envision how the existence of Coker’s and Golden’s cohabitation with each other’s wives prior to divorce and remarriage might be adversely used in litigation concerning the deputies’ official conduct.
The Supreme Court’s recent decision in Obergefell v. Hodges does not alter applicable law. ––– U.S. ––––, 135 S.Ct. 2584, 2598, 192 L.Ed.2d 609 (2015). Whatever ramifications Obergefell may have for sexual relations beyond the approval of same-sex marriage are unstated at best, but Obergefell is expressly premised on the unique and special bond created by the formal marital relationship and children of that relationship. Id. at 2594–95. Obergefell does not create “rights” based on relationships that mock marriage, and no court has so held.
While I don’t think I would recommend house-swapping, I am baffled by the connection between an officer’s ability to investigate human trafficking or domestic violence and the officers’ decisions to swap households. The moral to this story is that, as law enforcement officers, one cannot rely on the Constitution to provide the protection is does for everyone else – at least in the eyes of some ultra conservative jurists.
The case can be downloaded here (.pdf): Coker v. Whittington, 858 F.3d 304, 2017 WL 2240300 (C.A.5 (La.)), 2 (C.A.5 (La.), 2017)
Garrity v. State of New Jersey, 87 S.Ct. 616 (Jan. 16, 1967) is a very important case for law enforcement officers everywhere. It is also widely misunderstood and there are aspects of its implementation that are as of yet undecided. The fact that this case is very important to law enforcement officers and still widely misunderstood underscores the value of the FOP Legal Defense Plan and attorneys who practice law on behalf of law enforcement officers every day.
It has been well-documented that one of the biggest legal issues people face is that they cannot afford access to the legal assistance they need. Many legal issues go unaddressed. I am sure that if you haven’t experienced this yourself, you probably know someone who has. The FOP Legal Plan helps FOP members access the legal services they need. I cannot say this enough: Pick up the phone and call. It doesn’t matter how important or unimportant it seems, pick up the phone and call. As an FOP member, you have access to legal professionals at no cost to you beyond your monthly dues. Pick up the phone and call. Now, on to Garrity v. State of New Jersey.
Six individuals, including Police Chief Edward Garrity, four police officers, and a clerk of court were investigated by the New Jersey Attorney General at the direction of the New Jersey Supreme Court in connection with a ticket fixing racket. During questioning, the employees were advised that:
- Anything he or she said might be used in a criminal proceeding;
- He or she had the privilege to refuse to answer if the answer would tend to be self-incriminatory; and
- Refusal to answer would be cause for removal from office.
The answers to their questions were used in their prosecution, over their objections, to secure their conviction for conspiracy to obstruct the administration of traffic laws. The convictions were affirmed by the New Jersey Supreme Court and an appeal was taken to the U.S. Supreme Court.
The U.S. Supreme Court overturned the convictions, holding that police officers were “not relegated to a watered-down version of constitutional rights.” Basically, the U.S. Supreme Court held that since they were given the choice of self-incrimination or job-forfeiture, the statements were coerced. Since the statements were coerced, they were inadmissible.
We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.
What that boils down to for police officers is that any time their employer, or someone who is authorized to terminate the officer’s employment, informs an officer that the choice is answer questions or be fired, those answers, and any fruits of those answers, will be inadmissible in criminal proceedings against that officer.
First issue: The person asking the questions must have the authority to terminate the officer’s employment. For example, if an FBI Agent tells a city police officer that they are required to answer questions or be terminated, Garrity does not apply. If a city police officer is ordered by his employer to answer the Agent’s questions or be fired, then clearly Garrity will control.
Second issue: In order for Garrity to control, the officer must reasonably believe that he will be terminated should he refuse to answer. If the penalty for refusing to answer is minor or non-existent, the answers will be considered voluntary and will be admissible. It is preferable to have this ultimatum in writing. At the very least, it should be audio recorded. If it is not in writing or read into the record by someone in a position of authority, the officer will have to prove that he had a reasonable belief that he was under an order to answer questions or face termination. This is not a sure thing.
Third issue: Garrity does not stand for the proposition that officers have the option of refusing to answer incriminating statements. It only stands for the proposition that police officers cannot be coerced into making incriminating statements by threatening their employment. The cases known as Uniformed Sanitation I and Uniformed Sanitation II address refusal to answer and, basically, if the statements are immunized, an officer can be terminated for refusing to answer.
Fourth issue: Garrity protects an officer from incriminating himself. It does not mean that the statements cannot be used against someone else.
Fifth issue: Garrity stands for the proposition that coerced statements are inadmissible in a criminal proceeding. That may not include grand jury proceedings.
There are many other questions about the application of Garrity.
- Can the ADA get copies of Garrity protected statements? Yes. If they do, they run the risk of having evidence ruled inadmissible as a result. The DA may very well be able to use Garrity statements for Grand Jury proceedings.
- What is the remedy if an ADA gets copies of Garrity protected statements? That depends. If it is possible to continue the prosecution if the statements or their fruits are excluded, it could be continued. If, however, the statements or their fruits are so intertwined with the prosecution that there is no way to separate them from excluded statements, then the remedy could be dismissal.
- What about statements made in police reports? While officers are probably required to complete police reports or face disciplinary action, statements in police reports are not likely to qualify as immunized statements. In general, statements made in the normal and usual course of business will not be immunized statements.
- What if I write in my own Garrity warning? There is a school of thought that if an officer perceives that he is answering questions under a thread of termination, that he should write that in. I do not see a downside to that. However, there is no real reason to believe it will be successful.
- If I am ordered to answer questions, can I assert my 5th Amendment right to remain silent? No. In the Uniformed Sanitation II case, the court held that once you are immunized, you no longer have the right to remain silent.
- Do the holdings in Garrity apply to breathalyzers, blood tests, etc.? No. Garrity applies ONLY to statements (testimonial or communicative communication). See Schmerber v. State of California, 384 U.S. 757, 86 S. Ct. 1826 (June 20, 1966).
- Are the contents of police reports subject to the provisions of Garrity? No. Documents written in the regular course of business are not going to be covered by Garrity. In prosecution of police officer for beatings and assaults, the government’s introduction in evidence of the arrest report made out by defendant concerning the drug raid in which the complainants were arrested, and his grand jury testimony, did not implicate in any way his right against self-incrimination. U.S. v. Rios Ruiz, C.A.1 (Puerto Rico) 1978, 579 F.2d 670.
- What about Force Statements? One could make the case that Force Statements are compelled testimony as the documents are created as a result of an order specifically related to the act in question. This is not settled. It is worth noting that most prosecutors believe these are NOT Garrity protected documents. This may be a good place to include your own Garrity statement, but may very well turn into a trial-time fight about admissibility.
Is this a special perk of being in law enforcement? Are police officers given some benefit not available to the average citizen? No. Everyone has the right to remain silent pursuant to the 5th Amendment to the U.S. Constitution. Most people do not have government agents as employers. Police officers, and other public employees, can be ordered to answer questions posed by government agents or face termination. Private employers can order an employee to answer questions, but answering those questions does not place a private employee in the position of having to incriminate themselves to a government agent. One way or another, the fact is that the application of Garrity simply allows police officers and other government employees to make use of the same constitutional protections as everyone else.
There are plenty of resources available on the internet regarding Garrity. You can download the Garrity case by clicking here (.pdf). You can download the Schmerber case here (.pdf).
Don’t hesitate to contact your FOP attorney with any questions about Garrity or any other legal issues you may encounter as a police officer.
Click here to download the NOPD Handbook app for your smart phone – https://apps.appmachine.com/nopdhandbook/promote/js
In the 2016 Regular Session of the Louisiana Legislature, La. R.S. 14:107.2 was revised to amend paragraph A and add paragraph E via Act No. 184, H.B. 953 by Representative Lance Harris. The change to paragraph A added the following phrase “or because of actual or perceived employment as a law enforcement officer, firefighter, or emergency medical services personnel” to the motivations which can qualify a crime as a hate crime. Paragraph E included definitions of emergency medical services personnel, firefighter, and law enforcement officer. For the purposes of this discussion, law enforcement officer is defined as follows:
“an active or retired city, parish, or state law enforcement officer, peace officer, sheriff, deputy sheriff, probation or parole officer, marshal, deputy, wildlife enforcement agent, state correctional officer, or commissioned agent of the Department of Public Safety and Corrections, as well as a federal law enforcement officer or employee, whose permanent duties include making arrests, performing search and seizures, execution fo criminal arrest warrants, execution of civil seizure warrants, any civil functions performed by sheriffs or deputy sheriffs, enforcement of penal or traffic laws, or the care, custody, control, or supervision of inmates.”
There have been a few missteps in the application of this law. On September 5, 2016, the perpetrator of criminal damage to a French Quarter hotel was charged with violating La. R.S. 14:107.2 based on racial and gender slurs used against the arresting officer. On October 26, 2016, another individual was charged with violating La. R.S. 14:107.2 with the underlying crime being terrorizing when he told the 911 operator that “he was going to shoot and kill any officer that responded to the call.” Neither of these charges made it very far. The charge was refused by the District Attorney in the September 5, 2016 case and the Magistrate dismissed the hate crime charge and the terrorizing charge in the September 5, 2016 case, opting for La. R.S. 14:59, criminal mischief, instead.
What constitutes a hate crime?
As with any other crime, La. R.S. 14:107.2 hate crimes, has necessary elements that must be met. The law reads as follows:
It shall be unlawful for any person to select the victim of the following offenses against person and property because of actual or perceived race, age, gender, religion, color, creed, disability, sexual orientation, national origin, or ancestry of that person or the owner or occupant of that property or because of actual or perceived membership or service in, or employment with, an organization, or because of actual or perceived employment as a law enforcement officer, firefighter, or emergency medical services personnel: first or second degree murder; manslaughter; battery; aggravated battery; second degree battery; aggravated assault with a firearm; terrorizing; mingling harmful substances; simple or third degree rape, forcible or second degree rape, or aggravated or first degree rape; sexual battery, second degree sexual battery; oral sexual battery; carnal knowledge of a juvenile; indecent behavior with juveniles; molestation of a juvenile or a person with a physical or mental disability; simple, second degree, or aggravated kidnapping; simple or aggravated arson; communicating of false information of planned arson; simple or aggravated criminal damage to property; contamination of water supplies; simple or aggravated burglary; criminal trespass; simple, first degree, or armed robbery; purse snatching; extortion; theft; desecration of graves; institutional vandalism; or assault by drive-by shooting.
Therefore, the elements of the crime are:
- A person
- must select a victim
- of one of the enumerated offenses
- because of
- actual or perceived race, or
- age, or
- gender, or
- religion, or
- color, or
- creed, or
- disability, or
- sexual orientation, or
- national origin, or
- ancestry of that person or the owner or occupant of that property, or
- actual or perceived membership or service in, or employment with, an organization, or
- because of actual or perceived employment as a law enforcement officer, firefighter, or emergency medical services personnel.
- The enumerated crimes are:
- first or second degree murder, or
- manslaughter, or
- battery, or
- aggravated battery, or
- second degree battery, or
- aggravated assault with a firearm, or
- terrorizing, or
- mingling harmful substances, or
- simple or third degree rape, or
- forcible or second degree rape, or
- aggravated or first degree rape, or
- sexual battery, or
- second degree sexual battery, or
- oral sexual battery, or
- carnal knowledge of a juvenile, or
- indecent behavior with juveniles, or
- molestation of a juvenile or a person with physical or mental disability, or
- simple or aggravated criminal damage to property, or
- contamination of water supplies, or
- simple or aggravated burglary, or
- criminal trespass, or
- simple, first degree, or armed robbery, or
- purse snatching, or
- extortion, or
- theft, or
- desecration of graves, or
- institutional vandalism, or
- assault by drive-by shooting.
This law is, by necessity, a specific intent crime. Violation of La. R.S. 14:107.2 results in an additional penalty that runs consecutively with the underlying offense. So, in order to charge someone with a violation of La. R.S. 14:107.2, the officer must have probable cause to believe that the offender violated the underlying offense and then that they selected the victim of the crime based on the reasons listed in the statute (4(a)-4(l) above).
It is not enough that the victim has specific traits or associations. The victim must be chosen for that reason. In the September 5, 2016 incident, the offender allegedly committed the crime of simple criminal damage to property by breaking some windows at the Royal Sonesta hotel in New Orleans’s French Quarter. The offender also made some racially offensive comments to a security guard and other rude and insensitive remarks to the female officer who made the arrest. Being an ass does not make one guilty of a hate crime. Furthermore, even if the comments which led to this charge were sufficient to constitute resisting arrest, it is still not a hate crime. Resisting arrest is not, in and of itself, a hate crime.
Example of what could be considered a hate crime:
John Doe, a sovereign citizen, is sitting at home seething about how much he dislikes law enforcement officers. He knows that active and retired law enforcement officers gather at the FOP lodge. He grabs his firearm of choice and heads over the FOP lodge where he opens fire, striking nobody.
Example of what is not a hate crime:
John Doe, a sovereign citizen, is having a few beers, walking around the neighborhood harassing people. The police are summoned to the area and decide to arrest Mr. Doe for public intoxication. When the police attempt to apply handcuffs, Doe says “I hate you law enforcement professionals and there is no way you are putting those cuffs on me.” He then proceeds to fight like the dickens, but is ultimately subdued and incarcerated.
The Legislature, the Governor, and the people of Louisiana sent a powerful message in passing the law that they support law enforcement and appreciate the dangers our law enforcement officers, firefighters and EMS workers face. However, officers must be circumspect in its application. Officers and the community alike would be better served if this statute were reserved for those unprovoked attacks on police officers that are unrelated to any action taken by the officers.
In any event, if an officer finds himself inclined to charge someone with a hate crime, against a law enforcement officer or any of the other protected classes, that officer should ensure that he can articulate probable cause establishing that the offender specifically intended to commit one of the enumerated crimes because the victim fit one of the protected classes listed in the statute. This usually involves a more in-depth investigation into the motivation of the perpetrator. It may be a good idea to consult with the District Attorney prior to charging anyone with violating La. R.S. 14:107.2. If there is any difficulty articulating the probable cause necessary to demonstrate that the perpetrator intentionally chose the victim of one of the enumerated crimes because the victim was part of a protected class, then perhaps it would be better to consult with the District Attorney and let them add the charge via grand jury or bill of information.
I’m a big fan of neighborhood watch. It fits my model of having residents create safety within their comfort zones. For most folks, they’re comfortable peering through the blinds and calling 911.
In combative cities like New Orleans, Neighborhood Walk is my suggestion to folks whose streets are overtaken by violent youth and other criminals. Neighborhood Watch is often organized in relatively stable communities. While high crime areas have it too, stability comes only if visibility is present.
While I created my own citizen patrol, Cap Black Street Patrol, Neighborhood Walk is what I’d like to see proactive folks start doing in captive communities. I’ll gladly help organize them but my purpose isn’t just to recruit people for my group. I’d love new members but want folks hitting the pavement on their own too!
In a city with a police department under a federal consent decree; with plummeting officer morale and man power, deterring crime is our responsibility now more than ever! New Orleans streets belong to those who actively claim them and it’s clear law abiding citizens aren’t currently doing the claiming.
Lets help our communities and our police department, by deterring crime and serving as witnesses when we hit the pavement.
The streets belong to us too.
Nadra Enzi aka Cap lBack, RLSH: real life superhero for folks feeling like zeroes!
ALOT of talk/about police brutality/Very little/about responsibility/or criminality or resisting arrest or committing felonies/
Alot of talk/about police brutality/Very little/about PUBLIC brutality/killing cops & and inner cities/Callously, constantly/…
-Nadra Enzi aka Cap Black, Your UrbanSafetyist. @nadraenzi on twitter.
Today is #GeauxBlue Nola Day, in honor of the embattled NOPD. In what police members and supporters consider an anti-cop climate, it encourages participants to wear blue to show solidarity with our department. There is a wide divide between it and New Orleans urban majority- perhaps this is one more bridge across it?
I communicate with officers and executives nation-wide daily as part of my #IUniteWithBlue effort. The American police officer is under political-and literal!-attack by a movement whom I suspect feels crime is a sick civil right law enforcement violates. Creative, aggressive citizen advocacy is needed to end this department-destroying scheme masquerading as police reform.
At any rate, #GeauxBlue today or go home. Crime is organized, why aren’t we?
-Nadra Enzi aka Cap Black, Your UrbanSafetyist. @nadraenzi on twitter.
The early 21st century may well be called, ” the era when police became obsolete. ” A veteran officer told me once that police were obsolete. He arrived at this conclusion after seeing the profession face unprecedented scrutiny.
Our challenge as stakeholders is to answer this question for ourselves. The media and high profile agitators don’t have final say in the matter. There are lifelong civilians and police retirees whose passionate police support doesn’t make national news. As law abiding people, protesting and creating buzz isn’t their style. I strongly suggest they raise the volume because anti-police voices have seized the airwaves.
The cure for Fergueson Effect depolicing rests in loud, organized public support of police officers. Pro-law enforcement lobbying must hit the streets, media and ballot boxes. It must change the narrative about policing in America. Civilian advocacy for police is the gaping hole between police unions and police protesters. It can be filled by folks who feel police aren’t obsolete, but only if they’re ready to fight. Are you ready to fight for police when they can’t fight for themselves?
Your response shapes safety and society for this century.
-Nadra Enzi aka Cap Black, Your UrbanSafetyist. @nadraenzi on twitter.
*AUTHOR’S NOTE: The public safety/policing tie-in to this post is how this case illustrates what I call, ” urban outcast ” consciousness. A steady diet of alienating rhetoric produces violent criminals, rioters and enablers from communities that can’t absorb more mayhem. It’s the basis of my ” Make Peace With America ” talk given in many forms and venues over the years as a grassroots attempt at deprogramming. Those who don’t stand for the National Anthem also remain seated when cops are killed and also during canvasses for witnesses after yet another urban hostage dies because of stray gun fire.*
As someone who stands during the Pledge of Allegiance ( raised by a Jim Crow vintage grandmother who always stood on arthritic knees and nerve-damaged feet when it played on TV ), I’m not angered by NFL player Colin Kaepernick‘s refusal to stand during this national tradition.
view of America as if no progress has happened. It’s part of a calculated hostility which must be deleted.
-Nadra Enzi aka Cap Black, Your UrbanSafetyist. @nadraenzi on twitter.