Legislators on the State and Federal levels clearly have qualified immunity in their crosshairs. Click here for info on Federal legislation from National FOP President Pat Yoes. There are other things the reformers are gunning for, but weakening qualified immunity for law enforcement officers seems to be a major goal. It is important to recognize that the “reforms” to qualified immunity will still apply to all other public officers as it has always been. In other words, the Legislators proposing and voting on this legislation will still be able to benefit from from qualified immunity, as will all other public officers exercising the discretionary functions of their office.
I would like to start by saying that Legislators are gunning for the wrong thing. Qualified immunity only relates to civil lawsuits alleging Constitutional violations. Qualified immunity does not apply to criminal matters.
In Louisiana, lawmakers have proposed that qualified immunity would not be available to law enforcement officers for any wrongful death or injury resulting from a use of force. In those cases, the trier of fact would have to decide if the use of force leading to the lawsuit was unreasonable. If the judge decides it is unreasonable, then the lawsuit would be allowed to continue.
Contrast that with the current way qualified immunity is applied. There is a two-prong test to determine if a public officer is entitled to qualified immunity: 1) Did the public officer’s actions actually constitute a violation of the plaintiff’s Constitutional rights? 2) Was the public officer on notice that his actions constituted a violation of someone’s Constitutional rights? If the answer to both of those questions is yes, then qualified immunity does not apply. If the answer to either of those questions is no, then the lawsuit will be dismissed as to that public officer.
From the standpoint of law enforcement officers, the current application of qualified immunity serves to protect them from civil lawsuits in a profession that is dangerous and often leads to tense, rapidly evolving circumstances where the lives of law enforcement officers and civilians are in danger. A Tulane University Police Officer and Deputy Constable, Martinus Mitchum, was killed on February 26. 2021 when he intervened in a dispute over wearing a mask at a basketball game. Let that sink in. The shooter wanted to be allowed in the gym during a basketball game and was refused entry because he was not wearing a mask. When the interaction became contentious, Officer Mitchum stepped in to de-escalate the situation. In spite of Officer Mitchum’s efforts, the individual was so interested in not wearing a mask at the basketball game that he pulled a gun and shot and killed Officer Mitchum. It is a dangerous profession.
Other reform legislation includes bans in choke holds, bans on no-knock warrant service, and restrictions on the time of day warrants can be served. I don’t object to those efforts except to say that when someone’s life is in legitimate peril, all options should be on the table. Actually, this legislative efforts are much more reasonable than attacks on qualified immunity.
With regard to qualified immunity, I will point out that I am unaware of any insurance product that would provide liability insurance for law enforcement officers. Elimination of qualified immunity, even under restricted circumstances, would expose law enforcement officers to the same type of civil exposure that doctors are exposed to. As we all know, one reason we pay so much to see the doctor is because the doctor has to pay expensive insurance premiums. The problem is that I am unaware of any insurance product available to law enforcement officers and law enforcement salaries have historically been low.
Without qualified immunity, I think I would have to question the sanity of anyone choosing to work in law enforcement – at least a law enforcement agency without qualified immunity. In his monthly podcast, noted public safety attorney Will Aitchison said that taking a law enforcement job without qualified immunity should be the equivalent of failing the psych exam.
Legislators should be focusing on banning chokeholds. NOPD has banned chokeholds for years and it has had a good result. Changing qualified immunity will have unforeseen consequences that will damage law enforcement forever. Law enforcement officers are not the 1%. Law enforcement officers are blue collar workers who live next door to you. Their kids go to school with your kids. They are much more likely to be able to relate with you than with the 1%. In addition, law enforcement officers are not the ones setting policy within police departments. Those policies are being set and implemented by elected officials and people appointed by those elected officials. When the Dept. of Justice sought to implement a consent decree in New Orleans, the consent decree did not contain mandates for each individual police officer. The consent decree contains mandates for the administration. That is because the administration is responsible for how law enforcement officers perform their jobs.
I am not sure changing qualified immunity for law enforcement officers only will be Constitutional. We are entitled to equal treatment under the law. One way or another, legislators need to keep their eye on the ball and prop up law enforcement so that the profession can best serve their respective communities. Legislators should NOT be taking actions that will forever damage law enforcement as a profession.
All law enforcement officers and those individuals supporting law enforcement should contact their elected officials and let them know that you do not support elimination of qualified immunity for law enforcement officers in any way. Emails, letters, and/or phone calls can be used to serve that purpose. Don’t be shy. This is extremely important.
Southeast Louisiana VETERANS: Starting today, Tier 1C is now eligible for vaccines at the New Orleans VA. To get scheduled, call: 1-800-935-8387 x72819
Eligibility: ANY AGE with any of the following conditions (per CDC recs): Cancer Chronic kidney disease Lung disease (COPD, Emphysema, etc.) Heart conditions (heart failure, coronary artery disease, or cardiomyopathies, etc.) Obesity and Severe Obesity (BMI ≥30) Sickle Cell Disease Smoking Type II Diabetes Pregnancy
Patients of ANY AGE who are considered essential workers as defined by CDC (must bring proof of work):￼ Transportation and logistics Food service Shelter and housing (construction) Finance IT and Communication Energy workers Media workers Legal workers Public safety (engineers) Water and wastewater workers
PLUS: Existing Eligible Group Veterans who are eligible to receive care with VA who are: Age 65 or older
Any age in the following very high risk groups: Dialysis Chemotherapy Homeless or congregate living Long term care facility Spinal Cord Injury (inpatient or outpatient) Transplant
Any age who are considered frontline essential personnel as defined by CDC: First responders (firefighters, police) Healthcare workers Education (teachers, support staff, daycare) Agriculture and food processing workers Manufacturing Corrections workers US Postal Service workers Public transit workers Grocery store workers
Louisiana Fraternal Order of Police Darrell Basco served on the Police Training, Screening, and De-Escalation Task Force. President Basco was the only person on the task force representing rank and file law enforcement officers in Louisiana — our members.
This task force was created by Louisiana Legislators following George Floyd’s death in Minnesota. It is important to remember that these are only recommendations by the task force. The individual recommendations from the task force will have to be considered again to be made part of any legislation. The following was written by President Basco. The Louisiana FOP’s website can be found by clicking here.
The Police Training, Screening, and De-Escalation Task Force culminated on Thursday, January 14th.
During the Extraordinary session of 2020, Senate Concurrent Resolution 7 passed the Legislature and created the Police Training, Screening, and De-Escalation Task Force. The Task Force was composed of over 20 members, with the Louisiana Fraternal Order of Police being the only rank-and-file police organization represented on the Task Force.
The Task Force was divided into Subcommittees to discuss issues and hear testimony from the public and subject matter experts about contemporary issues between the public and law enforcement. Subcommittees were assigned specific issues such as Community Relations, Internal Operations, and Policy & Oversight.
Subcommittees reported their findings with recommendations to the full Task Force.
At the culmination, the full Task Force heard 22 recommendations and accepted all, but one of them. All recommendations were amended from their original language to the language that will be filed in the 2021 Regular Legislative Session.
Please keep in mind that these are recommendations, that will translate into individual legislation introduced in the 2021 Legislative Session. All pieces of future legislation will be debated in committees and in both chambers proceeding through the regular legislative process.
Here is a brief overview of the recommendations.
Changes the time frame from 30 to 14 days that an officer has to get an attorney for representation during an internal investigation, unless the officer is incapacitated or in medical facility.
Initially drafted to require polygraphs on all internal investigation. Language was amended to a future study resolution by a joint committee of the House Committee on Judiciary and Senate Judiciary B.
Changed the 60 day requirement to complete an investigation to 75 days and to be inclusive of Saturdays, Sundays and legal holidays.
Resolution urging the State Police Commission, which acts as the Civil Service system for commissioned employees of the Department of Public Safety, to adopt policies similar to those listed in the Police Officers’ Bill of Rights.
Recommendation was that an officer would be prohibited from viewing camera footage before being interviewed as part of an administrative investigation. This recommendation was voted to not be recommended by the Task Force.
Recommended that only sustained complaints will remain in an officers file for 10 years.
Included in the language for Recommendation # 12
Places a ban on choke holds under certain circumstances. They would be prohibited unless the officer is in fear of great bodily harm or death of themselves or another.
Adds language to Title 9 under immunity that states:
“No element of qualified immunity shall be available to law enforcement officers as a defense to liability for claims brought under state law for wrongful death, physical injury, or personal injury inflicted by law enforcement officers through any use of physical force in a manner determined by a finder of fact in a judicial proceeding to be unreasonable.”
Addition to the malfeasance statute:
“If the individual is a full-time or part-time or reserve peace officer, knowingly or with reckless disregard either refuses or fails to perform any duty lawfully required of him as a peace officer”
No knock warrants. Language to be added to the statute that follows best practices of executing no knock search warrants. Officers must have approval for no knock warrants from the judge that establishes probable cause that exigent circumstances, such as protecting life and limb. The officer must knock and use a clear announcement and be in uniform. The announcement must be reasonable that the occupants would have heard the announcement.
P.O.S.T. will implement a training program for all officers that include anti bias training with topics that include procedural justice, cultural diversity, community relations, and peer intervention.
That P.O.S.T. training curriculum implemented in Recommendation #12 will occur by January 1, 2022. Training developed will be in person or online.
If a police unit is equipped with a dash camera and the camera has the technology to be activated upon lights/siren activation then the agency shall utilize the technology.
No later than January 1, 2022 any agency with body worn cameras shall have a policy that outlines the activation and deactivation of the body worn camera.
Became Recommendation #21.
All government entities that employ peace officers shall develop a policy to recruit minority candidates.
Requires federally established Giglio reporting by agencies to prosecutors.
Pulled from consideration
Law enforcement agencies are required to provide P.O.S.T. within 45 days of employment status of law enforcement personnel. Failure to do so will result in a $500 fine.
Agencies will have to be certified and have at least 3 certified officers within their department to investigate an officer involved shooting. The certification and training will be developed by P.O.S.T..
Allows P.O.S.T. to develop and implement policies and procedures to suspend or revoke certification for misconduct.
As this progresses in the 2021 Legislative session the Louisiana FOP will keep the membership informed of updates/changes in the legislation.
The following is reposted from the Louisiana Fraternal Order of Police. The original article can be found here.
Funeral Arrangements: Tommy Tizzard
The funeral services for Louisiana National Trustee Tommy Tizzard will be held on Friday, January 22nd at Garden of Memories Funeral Home, 4900 Airline Dr, Metairie, LA 70001. Visitation will begin at 10AM with a service to follow. Everyone must wear a mask and observe COVID-19 restrictions at the funeral home.
Tommy was a long-time member of the Louisiana Fraternal Police Executive Board and a 32 year veteran with the Jefferson Parish Sheriff’s Office, where he retired from the rank of Lieutenant. Tommy also served on the Board of Directors of the Easter Seals of Louisiana, the New Orleans Police Emerald Society, and many more.
If you are traveling and need overnight accommodations we suggest the Hilton New Orleans Airport they are offering a rate of $71.00 plus tax (14.2%) for Thursday, January 22, 2021 – Saturday, January 24, 2021. They have shuttle service to and from the airport every 15 minutes.
To reserve a room at the $71.00 rate, guests must call 504-465-1159 and ask for Brandie 8:00am-5:00pm Monday –Friday. A credit card guarantee will be required for each reservation at the time of booking.
To know Tommy was to love him. He touched everyone’s life that he met.
Tommy was a supporter of Easter Seals in Louisiana, the Louisiana FOP’s charity of choice. Here is a link to make a direct donation to Easter Seals in Tommy’s name.
Tommy’s family has asked in lieu of flowers you can make a donation to the Louisiana FOP by clicking here.
Please keep Tommy and his wife, Nancy, in your prayers.
We appreciate Mayor Cantrell’s move to exclude public safety employees from the unpaid furlough days at the beginning of 2021. Hopefully, it will not be necessary to reinstitute unpaid furlough days as a result of COVID-19 (or anything else for that matter). However, there are always officers getting to retire after years and years of service.
For those officers who are preparing to retire, or who may have already submitted paperwork to begin the process of retirement, please be aware that the six (6) unpaid furlough days you have already taken do not count toward your retirement. If you are planning on retiring with 30 years and 0 days, you will be 6 days short. These unpair furlough days are treated like suspension days or LWOP days.
Make sure that you contact LaMPERS to get a correct accounting of creditable pension time before retiring. The pension folks can also be reached by telephone at (800) 443-4248 or (225) 929-7411.
We visit every NOPD Academy class and explain to them, to the best of our ability subject to time restraints, why the FOP’s Legal Defense Plan is not only necessary for today’s law enforcement professionals, but the best possible legal plan available. There are other legal plans that offer legal services, but none of those are specifically geared to law enforcement officers like the FOP’s Legal Defense Plan is. Furthermore, I can give you all a run down of the legal services I provided to FOP members in Louisiana, but I cannot speak for anyone else. In addition, my practice involves representing police officers. That is it. 100% of my legal practice is representing FOP members.
Being able to devote my entire practice to representing FOP members is a benefit to FOP members for a number of reasons. First of all, I am generally available on short notice. If I am not available for some reason, I can get things rescheduled. Devoting my entire practice to representing FOP members also allows me to be, and remain, well-versed in issues facing today’s law enforcement professionals. I do not know any other attorneys in Louisiana who can say they only represent police officers.
In 2020, I represented more than 400 individual FOP members in the following capacitates:
I responded personally to 6 officer-involved shooting scenes and represented 20 police officers involved in officer-involved shootings in Louisiana, including interviews and statements with investigators. Most of these were in New Orleans, but there were several in other jurisdictions in southwest Louisiana.
2020 has been an odd year. I know I am not saying anything people do not already know. There were fewer appeals to the 4th Circuit Court of Appeals. However, I am currently awaiting decisions from the 4th Circuit on the emergency rate of pay and one Civil Service appeal where the appeal was granted in part and denied in part by the Civil Service Commission (I won 45 of 80 suspension days and had to appeal for the other 35).
The FOP’s Legal Defense Plan is the only plan to offer the Salary Reimbursement Option. If you are represented by an FOP attorney and, after consulting with your FOP attorney you come to the conclusion that there is no point in appealing discipline, the FOP will pay the officer for up to 5 suspension days if they choose not to appeal. I assisted 27 NOPD officers with the Salary Reimbursement Option.
In New Orleans, the Crescent City Lodge provides members with free notary services. I provided notary services to 46 NOPD officers over the course of 2020. I also settled 16 Civil Service appeals with the City in lieu of proceeding with an appeal hearing. Those are 16 disciplinary actions rescinded or reduced for my clients.
I also had the opportunity to assist Louisiana FOP President Darrell Basco with his work on various committees in the Louisiana Legislature. I was called upon by the police reform committee to testify at the State Capitol in Baton Rouge about Louisiana’s Police Officer’s Bill of Rights.
Hopefully 2021 will look more like 2019 than 2020. One thing that is certain — The FOP Legal Defense Plan will be there for you when you need it. I will be there when you need me. I always have people tell me they don’t want to bother me with something minor or they don’t want to waste my time.
Nothing is a waste of my time. Nothing is unimportant. Don’t hesitate to call. It does not matter if you are an accused or a witness officer. You can call if you just have a question. I am here to help as much as I can. Furthermore, the FOP will be there for you.
Please note that my phone service now silences phone calls from numbers not in my contact book. I save phone numbers regularly. So, if we spoke on the phone previously, then I probably saved the number and that won’t be an issue. However, if you call and it goes to voicemail, please leave a message or send a text. I am not dodging anyone, but I can’t call anyone back if I don’t know who is calling.
I am looking forward to continuing to serve FOP members in 2021 and beyond. As I have said numerous times, I consider myself lucky to be able to be there for law enforcement officers and blessed to have the FOP Legal Defense Plan to use for that purpose.
PLEASE SEE THE BELOW MESSAGE FROM TIGER FOLKS. If you are in one of the jurisdictions covered by Non-Chief District 2 (see the below message from Tiger), please vote for Tiger. We need people like Tiger representing the active members of the Louisiana Municipal Police Employees’ Retirement System.
Brothers and Sisters,
Today I come to you as a candidate for the Non-Chief District 2 trustee seat on the Municipal Police Employees’ Retirement System (MPERS) Board. I have been in law enforcement for over 35 years and have the privilege of serving on the Louisiana Fraternal Order of Police Executive Board for the last 10 years, currently as 2nd Vice President. I have dedicated my life to law enforcement and will do the same for you as MPERS Board Member. I will work diligently to protect your retirement and will make myself available to answer your questions.
If you are an active member of District 2 MPERS you will receive a postcard on or about November 25, 2020, which will have a link and a QR Code, similar to the one in the photo. Please take a few minutes and cast your vote.
Sgt. James “Tiger” Folks
Franklinton Police Department
2nd Vice President – Louisiana Fraternal Order of Police
President – Corbett W. Penton, Lodge #47
District 2 includes the municipalities in the following parishes Acadia, Ascension, Assumption, Calcasieu, Cameron, East Baton Rouge, Iberia, Iberville, Jefferson, Jefferson Davis, Lafayette, Lafourche, Livingston, Plaquemines, Pointe Coupee, St. Bernard, St. Charles, St. Helena, St. James, St. John the Baptist, St. Landry, St. Martin, St. Mary, St. Tammany, Tangipahoa, Terrebonne, Vermillion, Washington, and West Baton Rouge.
If you haven’t read the prior article on Monday’s Civil Service Commission meeting, click here and read it. In that article, I composed 3 comment cards and encouraged everyone to email a comment card to CSNO@NOLA.GOV. You can use one of the comment cards I made, or write your own. Just make sure you do it. It is important, even though it is not likely that this Commission will deny the Administration’s request.
In this article, I have included 4 more comment cards for NOPD and NOFD employees to choose from.
Click here to download Comment 6. Comment 6 is for an NOPD employee willing to say that this may be the last straw and urges the Commission to do the right thing and look out for its employees.
Click here to download Comment 7. Comment 7 is for an NOFD employee willing to say that this may be the last straw and urges the Commission to do the right thing and look out for its employees.
The Civil Service Commission meeting starts the docket portion at 10:00 a.m. and the business meeting at 11:30 a.m on Monday. Comment cards must be submitted before then. Instructions for “attending” the virtual meeting can be found in yesterday’s article (Click Here).
On Monday, November 16, 2020 at 11:30 a.m., the New Orleans Civil Service Commission will hold its monthly meeting. Because of COVID-19 and the associated restrictions, the meeting will be held on Zoom and by teleconference for those who do not have access to a computer.
As I mentioned at the latest Fraternal Order of Police meeting, it would be helpful to have as many comment cards submitted as possible. To be safe, I would recommend emailing the comment card by the end of November 15, 2020.
To join the meeting from PC, Mac, Linux, iOS, or Android, click here.
To join the meeting by telephone, call 1-213-787-0529 and enter conference code 888712.
Mayor LaToya Cantrell has announced that every city employee is required to take one unpaid leave day for the last 6 pay periods of 2020. Mayor Cantrell has also announced her intention to require every city employee, including public safety agencies such as NOPD and NOFD to take one unpaid leave day for each of the 26 pay periods in 2021.
New Orleans Civil Service Rule XII, Sec. 9.1(b) requires that the Mayor get authorization from the New Orleans Civil Service Commission in order to make employees take more than 12 unpaid leave days in any consecutive 12 month period. Approval by the Civil Service Commission requires the Mayor to demonstrate extraordinary circumstances.
The Civil Service Commission will take comments from those interested in commenting. I have drafted three general comment cards. If you choose to use one of my comment cards, you will still be required to fill in the blanks on page 1. I have filled in the blanks that are common for everyone, but you have to put your own name on it.
Once you have decided on one of the pre-written comment cards or have completed a comment card yourself, you need to email it to CSNO@NOLA.GOV. If you do not email the comment card in, it will not be read.