FOP Vigilance on the Fake News Front

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Members,

As some of you may have seen in the past week, Antigravity Magazine recently published a story (Get Behind the Mask, February 2017) disparaging the Fraternal Order of Police and law enforcement generally. Most importantly, author Jules Bentley leveled a serious allegation directed at a fictitious NOPD officer in her feature.

While I in no way wish to legitimize this fringe publication, it is troubling to consider that this writer is also a frequent contributor to Gambit Weekly. The FOP takes seriously the growing number of platforms in which conspiracy theorists spread nonsense and outright falsehoods that damage our relationship with the communities we serve. In such instances I make no distinction between legitimate media and this gratis alternative rag – if it has a circulation, the editorial board has a responsibility to fact-check. If they refuse to fact-check, the FOP will step in to rebuke such openly false claims.

Bentley’s incoherent stream-of-consciousness story makes little sense as it weaves between Nazis, police, and untruthful allegations of police misconduct during recent anti-Trump protests; the relevant excerpt can be found in the initial message of the email chain pasted below.

As always, the Fraternal Order of Police, New Orleans, remains vigilant in protecting our members (both real and fictional) and our profession from outright lies and we believe our duty to do so applies especially when such allegations are made in a public forum. While the exchange is humorous, keep in mind that at least some number of readers of this magazine believe this is journalism and the claims to be factual.

___________________________________________

To: Jules Bentley and Editorial Board, Antigravity Magazine (February 9, 2017)

From: Jacob Lundy, Fraternal Order of Police

In re: Get Behind the Mask, February 2017
The Fraternal Order of Police; New Orleans, requests this publication issue a retraction to the above captioned story produced by Jules Bentley for the February 2017 print edition.
The story contains the following graf; “‘Turn off your body cameras,’ NOPD’s Brian Mcadam yelled to other officers as he waded into the anti-Trump crowd that fateful Friday night, grabbing for and indiscriminately whaling on every non-cop within reach.”
In Ms. Bentley’s colorful account of this criminal act, the story references a fictitious employee, Brian Mcadam, who is neither a current or past police officer of this jurisdiction.
While your magazine does not hold itself out as journalism (clearly), it is no less reckless to pander such falsehoods to inadvertent consumers of satire who are not at all aware of the difference. Such wild assertions are tantamount to my callously referring to Ms. Bentley as a writer, without regard for the truth of the matter.
If your interns insist on venturing into print, perhaps they should spread their wings at the Hullaballoo, where they can be monitored by a more experienced editorial board.
Jacob Lundy
Fraternal Order of Police
Policy Advisor, State of Louisiana
Policy Advisor, New Orleans
Member, Louisiana Legislative Committee
Member, National Legislative Committee
__________________________________________________
From: Jules Bentley (cc Editorial Board
To: Jacob Lundy, Fraternal Order of Police
oh word what’s mcadam’s first name then? happy to correct that
p.s. “pander” doesn’t take a direct object without the preposition “to.”
p.p.s. louis ackal
__________________________________________________
From: Jacob Lundy, Fraternal Order of Police
To: Jules Bentley (cc Editorial Board)
No one with the surname “Mcadam” is employed by the City of New Orleans, in any division or department. That isn’t a correction, it’s a retraction.
____________________________________________________
 (No one from Antigravity Magazine has responded to the last email.)
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NOPD Pre-Disposition Conference (Waivers)

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I have been trying to keep everyone up to speed on the recent changes to the NOPD disciplinary system.  I have written on such topics as the new penalty matrix and the way progressive discipline functions in the new system.  I have also written about some of the excessive penalties that have resulted from the new system.  I have also recently been told that the NOPD plans on revising the system to alleviate some of the pressure placed on the department by handing out 20-day suspensions like they were candy.  One thing I feel like I have not really touched on are hearings in the current system.  It needs to be discussed because people have been signing documents entitled “Waiver of Predisposition Conference.”

If you are sustained for a violation of the rules and regulations of the NOPD, there will be 2 disciplinary hearings.  Under some circumstances those hearings could be handled as one.  An officer sustained for a violation of the rules and regulations of the NOPD pursuant to a formal disciplinary investigation will be required to attend a pre-disposition conference and a pre-disciplinary hearing.

The pre-disposition conference is an officer’s chance to submit evidence or convince the hearing officer that the charges should not have a disposition of sustained.  If the investigation is conducted by PIB, then PIB will conduct the pre-disposition conference.  If someone in the officer’s chain of command conducts the investigation, then the officer’s commander or bureau chief will conduct the pre-disposition conference.  The pre-disposition conference will be the ONLY chance to change the disposition of the investigation.

If an officer chooses to waive the pre-disposition conference, that officer is pleading guilty to the charges.  One would sign this form if one wanted to waive the pre-disposition conference.  Make sure you read through this form fully.  Of course, it could just say “I plead guilty to all of the charges no matter how ridiculous and request that I be suspended forthwith.”  If an officer is going to plead guilty, that officer would be well-served to do that in the beginning as part of a negotiated settlement in order to at least secure a reduction in the penalty.  It is my belief that officers are waiving these hearings, and thereby waiving their due process, without giving much thought to it.  I do not recommend anyone waive a pre-disposition conference without a really good reason.

The pre-disciplinary hearing follows the pre-disposition conference, assuming the disposition of the case remains sustained following the pre-disposition conference.  The pre-disciplinary hearing is conducted by someone in the officer’s chain of command.  Most pre-disciplinary hearings will be conducted by the officer’s commander.  More serious violations will result in pre-disciplinary hearings conducted by one’s bureau chief.  If the investigation was conducted by someone in the officer’s chain of command, then the officer’s commander or bureau chief may conduct both of these hearings in the same sitting.

If you are not sure why I chose to write this relatively short article on these two hearings, the answer is don’t waive pre-disposition conferences.  If you are presented with a document to sign and you aren’t quite sure what to do about it, pick up the phone.  It is better to be informed than to be giving away rights unknowingly.  If, after discussing the matter with someone who knows what they are talking about, you choose to sign the waiver, then there is a good reason for it.  Remember, most of the advice you get from your fellow officers that does not include “call your FOP attorney” is wrong.

Attended A Mediation Session

I recently was invited by a friend who is an NOPD officer to attend a mediation facilitated by members of the Office of Independent Police Monitor. My role was to be his support person and chime in as needed during the discussion.

Across the table was a highly agitated fellow whom my friend has cited and arrested numerous times over the years. Their relationship is replicated endless times around the county and world between police officers and problem people on their beats.

It was a fiery exchange of allegations and not-so-subtle threats which my friend weathered with trademark calm. It provided a ringside seat for how measures to foster understanding between officers and the public they encounter can also be abused by career criminals to berate and accuse an officer.

We emerged the same as we went in, two supporters of proactive policing and community partnerships facing a proponent of crime & excuse making. The experience once again made me appreciate policing in what I call a ” post-police : city where law enforcement is overseen by folks who confuse our streets with mythical Mayberry from the Andy Griffith Show.

As a friend and safety advocate, I could do no less than honor his request to be a support person.

Nadra Enzi aka Cap Black, safety advocate in an unsafe city.

 

 

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.

2016 – Year in Review


First of all, happy New Years to all who happen by this blog.  2016 is behind us and that is probably a good thing.  2017 will present some new challenges for law enforcement and the Fraternal Order of Police will be there for its members.  I would like to extend my usual invitation to any FOP members who would like to advocate on behalf of themselves and other law enforcement officers.  The FOP is an organization run by its members on behalf of its members.  If you want to be involved, all you have to do is let someone know.  

The FOP Legal Defense Plan continues to be the best legal plan available to law enforcement officers.  In 2016, there were some significant changes made to the NOPD disciplinary system.  While these changes were effective in May, 2016, the impact wasn’t felt until late in the year.  In 2017, we will feel the full brunt of these changes and I believe the end result will be more suspensions and more Civil Service appeals.  There could be instances where you would expect a letter of reprimand which may end up being a 30-day suspension.

Late in 2016, I heard more than once “I can’t believe the FOP agreed to these changes (to the disciplinary system).”  The fact is that the FOP did not agree to these changes.  We were given an opportunity to comment on the new disciplinary policy.  I was the only one to submit comments.  I submitted several several pages of comments.  The next time I saw the policy, it was in its current form.  Several of our comments were put into the new policy, but there were plenty of comments that were disregarded.  That was the extent of the input into the current disciplinary policy.  So, what we now have is a system which makes it much easier for a violation to be a second or third offense.  In addition, one of the procedural safeguards which existed previously was changed.  Like I said – more suspensions and more appeals.  Please don’t hesitate to call if you are the accused or a witness in a disciplinary investigation.  You may think the allegation is minor or whatever, and it may be.  But, will it can never hurt to call your FOP attorney.  No case is too nsignificsnt. 

In 2016, I represented 398 individual police officers in some fashion.  I represented officers in:

  • 228 statements or interviews
  • 76 Bureau Chief or Commander’s Disciplinary Hearings
  • 7 Pre-Disposition Conferences (new policy)
  • 36 Accident Review Board Hearings 
  • 51 appearances before the Civil Service Commission
  • 23 Civil Service appeal hearings

Livaccari Law also helped numerous officers with automobile accidents, both on-duty and off. We also created wills, living wills, and power of attorney for FOP members and handled several successions. While Livaccari Law does not practice family law, the FOP has a good family law benefit and I was able to direct a number of officers in the right direction to get the assistance they needed. 

2017 will undoubtedly present similar needs for FOP members.  Likewise, the FOP Legal Defense Plan will be there for you when you need it.  All you have to do is pick up the phone. 

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?

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

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.

Neighborhood Walk: Watch with Our Feet

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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!

Will Election End War on Cops?

 

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.