Category Archives: police

Hate Crimes and the Blue Lives Matter Law

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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:

  1. A person
  2. must select a victim
  3. of one of the enumerated offenses
  4. because of
    1. actual or perceived race, or
    2. age, or
    3. gender, or
    4. religion, or
    5. color, or
    6. creed, or
    7. disability, or
    8. sexual orientation, or
    9. national origin, or
    10. ancestry of that person or the owner or occupant of that property, or
    11. actual or perceived membership or service in, or employment with, an organization, or
    12. because of actual or perceived employment as a law enforcement officer, firefighter, or emergency medical services personnel.
  5. The enumerated crimes are:
    1. first or second degree murder, or
    2. manslaughter, or
    3. battery, or
    4. aggravated battery, or
    5. second degree battery, or
    6. aggravated assault with a firearm, or
    7. terrorizing, or
    8. mingling harmful substances, or
    9. simple or third degree rape, or
    10. forcible or second degree rape, or
    11. aggravated or first degree rape, or
    12. sexual battery, or
    13. second degree sexual battery, or
    14. oral sexual battery, or
    15. carnal knowledge of a juvenile, or
    16. indecent behavior with juveniles, or
    17. molestation of a juvenile or a person with physical or mental disability, or
    18. simple or aggravated criminal damage to property, or
    19. contamination of water supplies, or
    20. simple or aggravated burglary, or
    21. criminal trespass, or
    22. simple, first degree, or armed robbery, or
    23. purse snatching, or
    24. extortion, or
    25. theft, or
    26. desecration of graves, or
    27. institutional vandalism, or
    28. 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.

First Amendment for Public Employees Update

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I was recently contacted by a law enforcement officer asking if I was aware of a case out of North Carolina which ruled in favor of some police officers in regard to a disciplinary action involving posts made to Facebook.  I was aware of this case and I think it is important to put this in context for FOP members in Louisiana.  First and foremost, it is important to recognize that this case, Hebert E. Liverman and Vance R. Richards v. City of Petersburg, et al, 2016 WL 7240179 (not yet published) ,comes out of the U.S. Court of Appeals, Fourth Circuit.  This is important because the case does not constitute binding precedent for the U.S. Court of Appeals, Fifth Circuit — Louisiana’s court.  This case could be persuasive precedent, but it is not binding.  That means the argument could be adopted by the Fifth Circuit if a similar case were to be brought here, but the court does not have to adopt it.

More particularly, two officers of the City of Petersburg Bureau of Police were disciplined with an oral reprimand and 6 months of probation for violating the department’s regulations on social media.  The department’s regulations on social media read as follows:

J.A. 161 – Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected b the First Amendment free speech clause, in accordance with established case law.

J.A. 162 – Officers may comment on issues of general or public concern (as opposed to personal grievances) so long as the comments do not disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer.  The instances much be judged on a case-by-case basis.

Generally, Liverman made a post on Facebook expressing his opinion on rookie officers being assigned as instructors for his department.  Richards replied to Liverman’s post expanding on that post discussing new officers being placed in specialized units.  Liverman replied again and Richards again replied to Liverman’s reply.

In short, the court held that the Supreme Court set forth how to analyze whether a public employee’s speech was protected speech in its rulings in Pickering and Connick.  There are three questions that have to be answered:

  1. Was the employee speaking as a member of the public on a matter of public concern?
  2. Does the employee’s interest in First Amendment expression outweigh the employer’s interest in the efficient operation of the workplace?
  3. Was the protected speech a substantial factor in the employer’s decision to take adverse employment action?

The Fourth Circuit came to the conclusion that the officers were, in fact, speaking as members of the public on a matter of public concern.  The court went on to conclude that the second and third prongs of the test set forth in Pickering and Connick were also met, making the Facebook comments protected speech.

More importantly, the court held that the regulations themselves were unconstitutionally overbroad.  The reasoning of the court was that the regulations constituted prior restraint of protected speech.  As evidenced by this case, the regulations did lead to discipline of protected speech.

Many of you may have regulations similar to the regulations at issue in this case.  It has long been my belief that these regulations are overbroad and I still think that they are.  This case supports my contention that they are overbroad.  The NOPD regulation on social media reads as follows:

Employees shall not post any material on the internet including but not limited to photos, videos, word documents, etc. that violates any local state or federal law, and/or embarrasses, humiliates, discredits or harms the operations and reputation of the Police Department or any of its members.

It is my opinion that this regulation suffers the same constitutional shortcoming identified in the Petersburg case.  However, the Petersburg case means does not control what happens in Louisiana.  We may, one day, have a chance to argue for a similar ruling here.  But until that happens, please be careful with posts made to Facebook, Twitter, etc.

A Move in the Right Direction?

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Some public safety watchers greet the January 3rd, 2017 return of the ” Targeted Marigny, ” to the New Orleans Police Department’s  5th District with alarm and skepticism.

Currently in the French Quarter-focused 8th District, its robust violent crime statistics, critics say, will now be added to the 5th Districts loaded ledger. Less suspicious, but equally concerned, observers wonder about active complaints and investigations which may soon land in limbo. They join skeptics in asking, is moving the ” Targeted Marigny ” to the incident-rich 5th District a move in the right direction?

-Nadra Enzi aka Cap Black, RLSH. Creator,#CapBlackStreetPatrol. *Walking escorts* *Victim advocacy* Last but never least, police support

Citizens Patrol Amid Depolicing

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New Orleans Police Department is in a stranglehold of external oversight leaving little room for being proactive. This scarcity of proactivity is exploited daily by criminals in captive communities.

Citizens on patrol are acutely aware of this drought and list it as part of why they hit the pavement. A 40-year high in low retention and surplus of violent offenders mean citizens on patrol, like less adventurous peers, can’t assume fast police response to 911 calls. Combined with external pressure on case management, citizens on patrol realize local partners in blue are less willing to act on complaints brought by the public. The incentive skews now toward not investigating complaints to avoid career ending outside inquiry.

Such sobering restrictions are part of the landscape for citizens patrol amid depolicing. Some ask, what good is being extra eyes and ears for a department with its hands tied by red tape?

-Nadra Enzi aka Cap Black, RLSH. #CapBlackStreetPatrol creator. @nadraenzi on twitter.

Will Election End War on Cops?

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Crunch time arriveth regarding who will be the next president of the United States.

Safety voters have myriad concerns on the table, from gun rights to homeland security. Overshadowing either is whether this election cycle’s conclusion also means an end to a major safety voter concern: the war on cops? Riots and mass ambushes of police hallmarked this campaign season, as overly indulged disrupters and lone assassins drowned out voices of reason.

This climate has federal consent decrees leading police departments and changing policing itself. Our next president will have to decide on these and related issues. I hope his or her decision making includes making the end of the War on cops a top priority.

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

Citizen Supporters in Police Unions

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

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

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

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

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

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

Warning from a Chicago Police Officer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For example, a public safety statement could include the questions

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

The public safety statement generally takes less than 5 minutes. 

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

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

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

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

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

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

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

Help Your Local Police Union.

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Americans feel we have a God-given right to express our opinion. Americans wearing badges and blue uniforms aren’t allowed to openly voice thoughts contrary to department policy or directives issued by commanding officers. The exception to this rule are police union representatives, who take to the air waves and create content on behalf of this constituency.

Law enforcement supporters should contact local police unions and build a united front. Political campaigns and use-of-force incidents are times when such unity is key.

Candidates and activists contrary to public safety must be contested in the public square. We need look no further for examples than the 2016 presidential election cycle. One candidate won his primary with a battle cry of, ” law and order. ” Clearly, this resonated with millions of safety voters concerned about the future amid ambushes and riots. He was endorsed by the nation’s largest police union, while his opponent refused to even fill out the questionaire. This is a textbook case of police and public sentiment lining up behind a safety-minded politician.

As communities are targeted by enraged mobs and dubious policy proposals, helping your local police union transitions from mere civic duty to shoring up a besieged society. It’s high time we realized we’re simply parts of the same side!

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

Public Not Police Brutality Poem

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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.