FOP’s week on Capitol Hill

This past week FOP representatives from across the nation flew to Washington DC for the annual “Day on the Hill” event where the FOP’s national legislative agenda is discussed with members of the House and Senate. With 300,000+ members nationwide, a lobby presence, and state and national legislative offices, the FOP is often able to gain support for, and advance legislation that benefits those who serve this nation in law enforcement and public safety generally.


Louisiana 5th District Congressman Ralph Abraham, MD

Fraternal Order of Police Louisiana representatives included Darrel Basco, State President; Patrick Yoes, National Secretary; Dawn Powell, State Legislative Committee Chair; James Gallagher, Secretary-Treasurer; and myself, Jacob Lundy, Policy Chairman. Meetings throughout the week included Congressman John Flemming (R); Congressman Charles Boustany (R); Congressman Cedric Richmond (D); Senator Bill Cassidy (R); Senator David Vitter (R); Congressman Steve Scalise (R); Congressman Ralph Abraham (R), and Congressman Garrett Graves (R).

The 2016 FOP national legislative agenda was discussed throughout the week (details below), however FOP Louisiana and FOP New Orleans would like to point out that the murder of Officer Ashley Guindon in nearby Prince William County Virginia on February 27 during her first day on the job dominated talk in Washington and FOP addressed the anti-law enforcement climate around the nation and its effects on public safety with all members of congress from the beginning.

All representatives were predictably alarmed and engaged on this topic and pledged their support in helping to guide discourse in a reasonable and constructive direction, both in Washington and via national media. Our representatives also openly acknowledged their concern over what appears to be a national police recruiting drought with growing vacancies and increasing delays in calls for help as a result of the current climate.

I should make special mention here that each and every member of Congress personally sent their sincere thanks to the men and women of Louisiana law enforcement who continue to serve their communities day in and day out.




Candid discussions of public safety, criminal justice, and law enforcement specific issues took place during the week with members of congress, many of whom sought FOP’s input on their own agenda items currently underway (body cameras, sentencing reform, opiate/opioid legislation, etc).

FOP’s national legislative agenda for 2016 included the following items of note for Louisiana members;

  • H.R. 973/S. 1651 the “Social Security Fairness Act,” FOP sought and received considerable support for restoring full social security benefits for law enforcement officers who pay into social security via details and additional side-employment throughout their careers but are denied full benefits at retirement
  • Enact S. 125/H.R. 228 to reauthorize the Bulletproof Vest Partnership Grant Program which would provide for matching federal funds in purchasing body armor for state and local law enforcement
  • Support for restoration of the Department of Defense 1033 Surplus Equipment Program. As everyone knows, a single media event resulted in the knee-jerk decision to kill the 1033 program which provides demilitarized equipment to state and local law enforcement; equipment most commonly used to rescue victims of natural disasters or respond to active shooter scenarios – most recently to safely neutralize two well-armed terrorists in San Bernardino following a mass casualty shooting
  • Full funding of the COPS hiring and other grant programs
  • Full funding of the Edward Byrne Memorial Justice Assistance Grant (Byrne-JAG) Programs

All national agenda items received overwhelming support from our representatives, many of whom requested follow-up from the FOP’s national legislative office in Washington DC.


Louisiana 4th District Congressman John Flemming, MD

In addition to scheduled agenda items, Jim Gallagher and Jacob Lundy were asked to meet with Congressman Cedric Richmond outside of the in-progress House Judiciary Committee hearing on the FBI-Apple debate where we provided input to Congressman Richmond on FOP’s general position as well our direct experience negotiating such obstacles in the course of major felony investigations, namely homicides. Our discussion with Congressman Richmond may be seen on Canal+ television. It is worth noting just after our meeting with Congressman Richmond at the House Judiciary Committee hearing that East Baton Rouge District Attorney  Hillar Moore was scheduled to testify on the murder of Brittney Mills, 29, pregnant at the time of her murder, and whose case may hinge on the contents of an Apple product currently inaccessible to law enforcement.

FOP also discussed and voiced opposition to the recently published Police Executive Research Forum’s paper Use of Force: Taking Policing to a Higher Standard, which, among other items, seeks to abandon 30 years of guiding Supreme Court jurisprudence on the objective reasonableness standard established in Graham v. Connor. While FOP pointed out that the paper contains some items all can agree on, and that law enforcement has and always will strive to improve training – the idealism in the PERF document reflects just how untenable law enforcement employment has become. The PERF document and discussions on its premise highlight the ever growing trend of ignoring social issues until they must be confronted by law enforcement, often during violent encounters, only to have law enforcement take the blame for decades of social neglect by all other stakeholders.


Senator Bill Cassidy

Overall, FOP representatives nationwide, including Louisiana, described 2016’s Day on the Hill as very productive and engaging. Law enforcement and pubic safety generally were very much on the agenda in Washington DC, a city which has lost 800 police officers since 2014 and saw a 50% increase in homicides through 2015. All parties however expressed their commitment to turning that phenomenon around in future.



FOP Louisiana and FOP New Orleans would like to thank the following for their support during 2016’s Day on the Hill;

  • All members of Congress listed above, as well as their respective legislative staff members
  • Chuck Canterbury, FOP National President
  • Andy Maybo, Capitol Police Department, President FOP Lodge 1 Washington DC
  • All members of the Capitol Police Department
  • Josh Hodges, National Security Policy Advisor – Senator Vitter
  • Jim Pasco, Executive Director FOP Legislative Office, Washington DC
  • Robert Jenkins, President William Nichols Lodge 8, Miami FL
  • Captain David Bernhardt, FOP West Palm Beach FL

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FOP in the news – Court overturns firing of NOPD officer who shot up his car

Court overturns firing of NOPD officer who shot up his car


Signs of a DI-1

20121202-133353.jpgGenerally, officers are not notified by the NOPD that there is an active internal investigation.  Most of the time, officers find out that they are involved in an internal investigation when they receive a letter from Civil Service about an extension hearing or they receive a Notice to Render Statement.

The Extension Hearing

The Louisiana Police Officer’s Bill of Rights (LSA 40:2531) requires that administrative investigations be completed within 60 days.  The Department has the option of requesting an extension of up to an additional 60 days from the Civil Service Commission.  NOPD investigators routinely request the extension in almost every case.  Once the investigator requests the extension Civil Service generates a letter to the officer notifying them of the upcoming hearing.

The letter from Civil Service informs the officer of the PIB Control number, the date and time of the hearing, the identity of the hearing officer, and the location of the hearing.  Receipt of this letter is often a surprise to officers.  The letter also informs the officer of the right to have counsel and that the hearing will not be continued.

If you receive one of these letters, you should contact your FOP attorney, if you have not already done so.  If you have already contacted your FOP attorney regarding the investigation, you should still contact your attorney and advise him of the upcoming hearing date.  Your FOP attorney can appear on your behalf at this hearing.

An officer is not required to appear at an extension hearing.  If the officer does not appear and does not have an attorney appear on his behalf, the extension will simply be granted.  The officer also has the option of having his FOP attorney appear on his behalf.  Of course, an officer can attend the extension hearing, if he is so inclined.

What happens at an extension hearing?  The only issue under consideration at an extension hearing is whether or not the investigator has shown “good cause” for the extension.  The facts of the investigation or the propriety of the officer’s actions are not an issue under consideration at an extension hearing.  Generally, the investigator is the only person who testifies.  The officer or his attorney can ask some limited questions relative to the need for the extension or make a statement with regard to the need for an extension.  Again, any questions or statements are relative to the need for an extension.  It would not be relevant to ask the investigator about the statement he took from the complainant or a witness.

Once the investigator has testified, the hearing officer makes a recommendation to the Civil Service Commission as to whether or not the extension should be granted.  The officer usually receives another letter in the mail form Civil Service which informs the officer that the hearing officer’s recommendation is to be presented to the Civil Service Commission for ratification at their next regular meeting.  Generally, there is no testimony at this meeting relative to extension requests  The Civil Service Commission merely considers the recommendation of the hearing officer and then ratifies it as its own.  Again, an officer who receives such a letter should notify their FOP attorney so that the attorney can appear on his behalf.

The Notice to Render Statement

Sometimes, an officer learns of an open DI-1 when they receive a Notice to Render Statement from the investigator.  Sometimes this form is delivered by email or through the officer’s admin officer.

The Notice to Render Statement form contains several important pieces of information.  At the top of the document, the form lists the investigator’s identity as well as the charges being investigated.  The form constitutes a written order to appear at a specific location on a specific date at a specific time to render a statement.  The location, date, and time can also be found on this form.

If you receive one of these forms, you should contact your FOP attorney if you have not already done so.  If possible, you should forward a copy of the Notice to Render Statement form to your FOP attorney.  By law, you have up to 30 days to secure representation.  However, it is important to make contact with your FOP attorney as quickly as possible.  What you do not want is for the date to render a statement to come and go without making contact with the investigator.  If the statement date is inconvenient for one reason or another (AWP, furlough, etc.), it is usually possible to reschedule.

Your FOP attorney will discuss the actual statement with you in greater detail with your specific case in mind.  The form also lists numerous other things that you can be ordered to do.  For example, you can be ordered to take a CVSA, take a urinalysis, or stand up in a physical lineup.  These things rarely happen.  99 times out of 100, all you would be required to do is render a verbal statement.

You can contact me directly at 504-905-8280 or DAL@LIVLAW.COM.

The link to this article is  Feel free to share it with your fellow employees.


Recent 4th Circuit Decisions

Robinson v. Dept. of Police

Mulvey v. Dept. of Police



FOP Legal Plan Primer

The Crescent City Lodge of the Fraternal Order of Police provides its members with an outstanding legal plan.  The FOP Legal Plan provides an attorney to any member who is the subject of an administrative or criminal investigation.  It will also provide an attorney if you become the defendant in a civil law suit arising out of the course and scope of your employment.  But wait, there’s more. . .

Fraternal Order of Police

Fraternal Order of Police (Photo credit: Wikipedia)

The FOP Legal Plan will also provide you with an attorney if you are a witness in an administrative or criminal investigation.  The FOP Legal Plan will provide you with an attorney if you become the subject of an administrative or criminal investigation because of an incident that occurred while you were off-duty.

The FOP Legal Plan will provide you with an attorney for any Civil Service appeals or other Civil Service matters.  If the matter warrants action beyond the Civil Service Commission, the FOP Legal Plan will provide an attorney for appeals through the court system.

The FOP Legal Plan provides complimentary notary services.  The FOP Legal Plan will pay for the first two hours of legal services for ANY personal legal matter.

Finally, the FOP Legal Plan will reimburse you for up to five suspension days if you choose not to appeal (you have to be represented by an FOP attorney to qualify).

These are benefits you pay for every other week by payroll deduction.  You should take advantage of these benefits.

**PLEASE NOTE that the above specifically relates to the FOP Legal Plan as administered by Crescent City Lodge #2.  Certain benefits, such as the two hours on any personal legal matter, are not available through the National Legal Plan and may not be available to members employed by agencies other than the New Orleans Police Department.  If you have any questions and are not employed by the New Orleans Police Department, please call me or the FOP Legal Plan at 1-800-341-6038.

What types of investigations should I call about?

Any type of investigation.

People frequently tell me that they did not call, or were not sure if they should call, because the investigation seemed minor.  It is as if somehow this minor investigation would be an imposition on the attorney.  Nonsense.  Wouldn’t you use your health insurance for the most minor appointment with your doctor?

In addition, you need to be represented by an FOP attorney in order to qualify for the Salary Reimbursement Option (SRO).  You don’t need to have “something to worry about” in order to call.

When should I call?

Immediately.  You should call as soon as you learn that you are either an accused or witness in an administrative or criminal investigation.

You should also call if you receive a letter from Civil Service about the department’s request for an extension of time.

Also, it is almost never too late to call.  Just because you didn’t have an attorney when you made a statement doesn’t mean you don’t get an attorney for the disciplinary hearing or the Civil Service appeal.

Finally, you should call if you have any question about an investigation or the process of conducting these investigations.

Who should I call?

If you know one of the FOP attorneys, you can call that person directly.  If you do not know who to call, you can call Jim Gallagher at 504-442-4050.  You can contact me directly by email, phone, or text.


Urgent Action Needed – HB685 (Please Repost)

HB 685 is scheduled for hearing before the Judiciary Committee on March 29, 2012.  This bill would extend the time limits imposed by the Louisiana Police Officers Bill of Rights on internal, administrative investigations of law enforcement officers employed by the New Orleans Police Department from 60 days to 120 days with an additional 60 days available for a total of 180 days.  That is 6 months.

Please take the time to write your legislators and Representative Moreno to oppose this legislation.



The Louisiana Legislature is set to convene on March 12, 2012. One piece of legislation of particular interest is HB 685, authored by Representative Helena Moreno, which is an attack on the Louisiana Police Officer’s Bill of Rights.

HB 685 would change the provisions of the Police Officer’s Bill of Rights.  In particular, the legislation would change paragraph b(7) which governs the time limits for administrative investigations only for the New Orleans Police Department.

Currently, La. R.S. 40:2531(b)(7) requires that administrative investigations be completed within 60 days.  The appointing authority can request an additional 60 days, for a total of 120 days to complete an administrative investigation.  These time limits do not effect criminal investigations.

The proposed law would change the 60 days allowed to complete the investigation to 120 days and still give the department the option to request an additional 60 days for a total of 180 days.  Again, this legislation specifically states that the change would only be applicable to the New Orleans Police Department.

Those people in other parts of Louisiana should not get too comfortable.  If history tells us anything, this legislation will be implemented state-wide next year if it is passed for New Orleans this year.


I urge all of you to contact your elected officials and tell them that you oppose HB 685.

If you don’t know who your elected officials are, click here.

For information on members of the Louisiana House of Representatives, click here.

For information on members of the Louisiana Senate, click here.

I would like to encourage everyone to contact Representative Moreno and let her know that you are opposed to this legislation in addition to contacting your elected officials.  You can click here for Representative Moreno’s information.  Please remember that Representative Moreno came to the Fraternal Order of Police during the election looking for support from our members and pledging to assist us in Baton Rouge.


Louisiana Police Officer’s Bill of Rights Primer

The Crescent City Lodge of the Fraternal Order of Police has been fortunate to be involved in the maintenance, revision, and defense of the Police Officer Bill of Rights for the State of Louisiana.  Myself, Jim Gallagher, and others have been instrumental in drafting much of the language currently found in the legislation, testifying in front of Legislative Committees, meeting with Legislators, and negotiating with groups whose interests differ from ours like the Louisiana Sheriff’s Association.

The Rights of Law Enforcement Officers While Under Investigation (Police Officer Bill of Rights) can be found in La. R.S. 40:2531.  The law applies to Probation and Parole Officers, State Police, campus police employed by a state-supported university, and law enforcement officers employed by any municipality who are under investigation with a view to possible disciplinary action, demotion, or dismissal.

Certainly, this law applies to employees of the New Orleans Police Department.  The law does not apply to Deputies employed by the Orleans Parish Sheriff’s Office.

The provisions of this law provide minimum standards applying specifically to any investigation of the covered group of law enforcement officers.  This also raises the first interesting question with regard to this law.

Who qualifies as a “law enforcement officer”?

Commissioned, POST certified police officers employed by a municipal police department qualify as law enforcement officers.  The same is true of State Troopers, and Probation and Parole Agents.

There have been questions recently about whether police officers employed by a state-supported university who do not work on that university’s campus are covered.  For example, the police officers employed by the L.S.U. Medical Center are employed by an arm of a state-supported university.  However, they do not work as “campus police” in the truest sense of the term.  At the same time, the L.S.U. Medical Center is the campus for medical students enrolled at L.S.U.  In the broadest sense, those officers would be included, but if one is trying to exclude individuals from the protection of the statute, an argument could be made.  At present, there is no judicial guidance on this issue.

Another question comes up with regard to employees of a municipal police agency who are not commissioned, POST certified police officers.  For example, what about dispatchers or 911 call takers?  What about Police Technicians?  What about Crime Lab Technicians who are not commissioned, POST certified police officers?  What about jailers?

One of the main sources of interpretation that we have for the Police Officer Bill of Rights is the Louisiana Attorney General.  The Louisiana Attorney General provides legal opinions on questions presented to it by governmental bodies or boards.  These opinions are not binding like a decision from the Supreme Court might be.  These opinions are considered “persuasive” argument on the topic covered in the opinion.  That means that Courts can consider the opinion, but they are not required to agree with it.

The Louisiana Attorney General has opined that whether one qualifies as a law enforcement officer or not is based on function and authority (La. AG Op. 93-52).  The AG looked to the Peace Officer Standards and Training Law for guidance and the definition of Peace Officer found therein.  This definition, which applies specifically to POST, says a Peace Officer is “any full time employee of the state, a municipality, a sheriff, or other agency, whose permanent duties actually include the making of arrests, the performing of searches and seizures, or the execution of criminal warrants, and is responsible for the prevention or detection of crime or for the enforcement of the penal, traffic, or highway laws of this state.”

The AG stated that this definition only gives guidance about who is a law enforcement officer.  The AG is of the opinion that jailers are law enforcement officers, but clerks and radio operators are not.  In the AG’s opinion, the dictating factors appear to be the authority to make arrests, issue criminal warrants, effect seizures, etc.

What constitutes an “investigation”?

The Police Officer Bill of Rights clearly states that it applies to law enforcement officers who are under investigation with a view to possible disciplinary action, demotion, or dismissal.  This question is essential to the determination of when an investigation begins.

The AG looked to Black’s Law Dictionary for guidance (La. AG Op. 93-52).  In 1993, Black’s defined “investigate” as follows:  “To follow up step by step by patient inquiry or observation.  To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry.”  In 2012, the definition is a little shorter:  “1.  To inquire into systematically; to make the subject of a criminal inquiry; 2.  To make an official inquiry.”

The AG summarizes by stating that “if the investigation requires a close study or systematic inquiry into a situation, the protections afforded an officer under LSA R.S. 40:2531 apply.”  The AG further points out that the law requires that this close study or inquiry must be made with a view to possible disciplinary action, demotion, or dismissal.

Furthermore the AG indicates that “possible disciplinary action” should be construed as broadly as possible.  In short, the AG indicates that “any action taken by formal investigating authorities, such as the municipal internal affairs department, which could possible affect the job status of the officer requires that the minimum standards of LSA R.S. 40:2531 apply.”

What are these minimum standards by which investigations of police officers are to be conducted?

1.  The police employee under investigation shall be notified at the commencement of any interrogation of:

    1. the nature of the investigation;
    2. the identity and authority of the person conducting the investigation; and
    3. the identity of all persons present at the time of any interrogation.

It is important to note that the law requires the officer be notified of these things “at the commencement of interrogation.”  This is not necessarily the commencement of the investigation.

2.  Any interrogation of a police officer shall be for a reasonable period of time and allow for reasonable periods of rest and personal necessities of the officer.

In other words, no marathon interrogations while depriving that officer of sleep, food, etc.

3.  All interrogations of a police officer shall be recorded in full.  The officer can not be prohibited from obtaining a copy of that recording or a transcript of that recording upon their request.

4.  The police officer

    1. whether being questioned as a target or witness has the right to be represented by counsel, representative, or both;
    2. the officer shall be granted up to thirty (30) days to obtain such representation, during which time all questioning must be suspended.
    3. the officer’s counsel shall be allowed to offer advice to the employee or officer and make statements on the record regarding any question asked of the employee or officer at any interrogation, interview, or hearing in the course of the investigation.

5.  No statement made by the police officer during the course of an administrative investigation shall be admissible in a criminal proceeding.

6.  The investigation needs to be completed within 60 days.

One could probably write a book on this one paragraph.  I can assure you that many legal briefs have been written on this topic.  Following is my summary:

The investigating agency has 60 days to complete an administrative investigation of an employee.  The investigator can also petition the Civil Service Commission for an extension of that time limit, up to an additional 60 days.  There is some debate about whether that is the case in New Orleans since New Orleans is not subject to Municipal Fire and Police Civil Service law and does not have a Municipal Fire and Police Civil Service Board, but I will save that discussion for a later day.

With the extension, the investigating agency has up to 120 days to complete an administrative investigation.  These time restraints do not apply to criminal investigations, but they do apply to the administrative investigation of criminal allegations.  For example, if you are going to be charged by the District Attorney with La. R.S. 14:67, that investigation is not hampered by the time limitations found within LSA R.S. 40:2531(b)(7).  If your employer is investigating you for a possible violation of Rule 2, Moral Conduct, to wit: R.S. 14:67, then that investigation is subject to the time restrictions found within LSA R.S. 40:2531(b)(7).

It is important to note that the provisions of LSA R.S. 40:2531(b)(7), commonly known as the 60 day rule, are the only provisions of the Police Officer Bill of Rights not applicable to criminal investigations.

The investigation begins when it begins, but no later than 14 days from the receipt of a formal, written complaint.  This allows a few days for the investigating agency to taken in the complaint, conduct whatever intake functions are necessary, and assign the complaint for investigation.  In New Orleans, it is usually safe to go by the date on the DI-1.  The DI-1 is the result of the intake process.

A bigger question exists about investigations that begin before a DI-1 is initiated or in other agencies with different practices).  The Louisiana Attorney General indicates that an investigation begins “when an authorized person begins to make inquiry or collect evidence concerning a situation with an officer where the end result is “with a view to possible disciplinary action, demotion, or dismissal.””

An investigation ends when the officer under investigation is notified of a pre-disciplinary hearing, or a determination of an unfounded or unsustained complaint.  Exactly what constitutes this notice is the subject matter of another debate and will hopefully be settled by a Court.  I can say that the New Orleans Police Department’s position is that the investigation ends when the officer under investigation is given a form entitled “Notice to Law Enforcement Officer of Pre-Disciplinary Hearing or a Determination of an Unfounded or Unsustained Complaint.”  It is my position that this form is insufficient and the investigation is ended when the officer is issued a form titled “Notification of Disciplinary Hearing.”

LSA R.S. 40:2531(b)(8) specifically applies to Louisiana State Police, but is substantially similar to the provisions of LSA R.S. 40:2531(b)(7) discussed above.

What remedies are provided by the Police Officer Bill of Rights?

LSA R.S. 40:2531(C) provides the employee’s remedies if the minimum standards discussed above are not met.  The law states that “There shall be no discipline, demotion, dismissal, or adverse action of any sort taken against a police employee or law enforcement officer unless the investigation is conducted in accordance with the minimum standards provided for in this Section.  Any discipline, demotion, dismissal, or adverse action of any sort whatsoever taken against a police employee or law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity.”