Help is a Phone Call Away #FOPLegal

90% of active NOPD officers are members of the Crescent City Lodge of the Fratetnal Order of Police. Crescent City Lodge members are also enrolled in the FOP Legal Defense Plan. The Legal Defense Plan provides its members with legal protection in criminal, administrative, and civil matters. Administrative matters are most common.

I was a member of the NOPD from 1993 to 2008. I graduated from law school in 2004. Also in 2004, the Crescent City Lodge was in a rebuilding phase which would lead to it becoming the largest representative organization for officers of the New Orleans Police Department. Being an officer, FOP member, and recent law school graduate, I was approached by Lt. Henry Dean, who was president at the time, and Sgt Jimmy Gallagher about the legal services offered to members. We discussed creating a position called Employee Representative which would be both an arm of the legal plan and a way to address other employment issues experienced by members that wouldn’t be part of the legal plan. The FOP was, and still is, dedicated to providing its members with the best possible legal defense benefit. In 2008, I began representing officers full time. That was nearly 10 years ago. All of that is to say that my experience with the NOPD, NOPD Policies and Procedures, Civil Service, appeals, and the FOP work to the advantage of Crescent City Lodge members.

The disciplinary system is part of the job that officers don’t interact with regularly. For that reason, it is beneficial to have a resource available to guide members through that process. The Legal Plan attorneys provide that service to our members.

Here are some basic guidelines;

  • Nothing is too unimportant to call.
  • We (the attorneys) are not too busy to talk to you about minor investigations.
  • You should call about negotiated settlements – you could still be eligible for the FOP’s salary reimbursement option.
  • Don’t resign.
  • If someone is talking to you about resigning because of an alleged disciplinary infraction, you should be represented. You should probably call if anyone is telling you to resign for any reason.
  • Once you resign, you lose any legal protection you may have had through Civil Service.
  • You should call if you did what you are accused of. You are eligible for the FOP’s salary reimbursement option only if you are represented by an FOP attorney during the course of the investigation (calling two months after you pick up the disciplinary letter is insufficient).
  • You should call even if you are being interviewed “just as a witness.” Witnesses can become accused officers too.
  • You should call if you get an email from Civil Service about the Department’s request for an extension of time.
  • You should call if you have any questions about when you should call.

The FOP Legal Defense Plan is designed to provide FOP members with the best possible representation when you need it. However, we don’t know you need it until you call. Also, calling after you have resigned does not leave you with any real, viable options.


2017 in Review

At the beginning of the year, I like to review and compare the prior year’s activity with other years. In addition, since there have been so many new hires at NOPD, it always helps to give some context to the system that most officers don’t come into contact with often enough to be familiar with.

The FOP continues to provide the best legal assistance for law enforcement officers through its Legal Defense Plan. The Legal Defense Plan offers its members legal representation for any administrative disciplinary proceeding, civil defense resulting from on-the-job actions, and criminal allegations. There is no judgment involved. If a member requests legal services, they get it.

There is no situation which is too big or too small. The Legal Plan is set up to be able to handle situations that garner national attention. At the same time, we recognize how much law enforcement officers value their service record and we treat the most minor of circumstances with the same attention.

It is most beneficial to everyone when an officer who finds themselves involved in any way in one of the covered types of events contacts us as early as possible. I got a call from someone recently who had resigned under pressure to do so and felt like it shouldn’t have gone that way. I can’t argue with that – I don’t think anyone should be pressured into resigning without at least having the opportunity to meet with counsel. However, this person didn’t call until after he had resigned. As much as I would have loved to be able to help, the act of resigning eliminates almost every avenue of redress. So, call early and stay in touch.

My brother-in-Law, Corey Lloyd, was admitted to the Louisiana Bar in 2017. He had been helping me with Civil Service appeals while he was in law school. Since he is now a certified member of the Bar, he is now available to assist in situations which call for more than one attorney or when calendar conflicts prevent me from being somewhere. It is always nice to have another attorney committed to helping FOP members. He has also been helping FOP members with Family Law issues. The FOP offers a $400 (4 hrs at $100/hr) benefit per year to each member for Family Law issues.


In 2017, I represented 410 individual officers in one capacity of another. That is up a little from 2016’s 398 officers. For those 410 officers, I appeared with FOP members at:

  • 103 disciplinary hearings (up from 83 in 2016)
  • 251 Statements (up from 228 in 2016)
  • 102 Civil Service Extension Request Hearings
  • 17 Accident Review Board Hearings (down from 36 in 2016)
  • 13 Civil Service Appeal Hearings (down from 23 in 2016)
  • 2 Officer Involved Shootings

In addition, I assisted FOP members with:

  • 85 Notary Service
  • 31 Personal Legal Needs
  • 10 Negotiated Settlements

While it appears that complaints were down a little from 2016-2017, it was still a busy year. Improvements were made to the disciplinary system in the penalty matrix and the use of BWC’s to clear complaints. Civil Service appeal hearings are down primarily because more Civil Service appeals were settled amicably before a hearing was necessary. The Personal Legal category refers to legal needs of members that are not covered by the Legal Defense Plan. The FOP offers each member a benefit of 2 hours of legal services per year for things outside of the Legal Defense Plan. This might include wills, living wills, successions, etc. It is separate from the Family Law benefit. Notary services are available to FOP members at no cost. I also continue to serve as Employee Representative for Crescent City Lodge members, helping them to address almost any employment related issues with NOPD.

At Livaccari Law, we also represent officers who have been involved in automobile or motorcycle accidents on a regular basis. My father, Tony Livaccari, heads up that aspect of the practice with more than 30 years of experience. Anyone who has worked with Tony knows that he looks out for FOP members.

I cannot stress enough the importance of picking up the phone and calling. I will respond to the scene of officer involved shootings. We can’t help when we don’t know a member is in need of help. In addition, as noted above, sometimes things happen which preclude our helping in any meaningful way. So, as I stated above, call early on. Nothing is too trivial and I’m not too busy to talk, even if I have to call you back – you can always text.

As I have stated numerous times, I feel as though I am blessed to be able to represent FOP members. I was admitted to the Louisiana Bar after serving 11 years with NOPD. I started representing law enforcement officers, primarily in New Orleans, in 2008 when I retired from NOPD. I still spend the majority of my time representing NOPD members. I do represent FOP members in other jurisdictions in Louisiana and do work for both the Crescent City Lodge and the Louisiana State Lodge. I look forward to doing more of the same in 2018. Additionally, the addition of Corey Lloyd to available counsel will make it easier to do this job better. So, thank you to the FOP Crescent City Lodge, particularly Jimmy Gallagher, who got me involved with the FOP back in 2004. Thanks to Darrell Basco, President of the Louisiana FOP, for allowing me to represent the over 6,000 FOP members in Louisiana. Finally, thanks to you, the FOP members for keeping me on your speed dial.

Assessment Center Prep

The Fraternal Order of Police will be having two classroom training dates to help members of the NOPD prepare for the December 20, 2017 Sergeants Exam Assessment Center.

On December 9 and December 16, 2016, NOPD Commander Louie Dabdoub will be teaching his successful assessment center methodology on behalf of the FOP.

The December 9 class will be held at the NOPD Academy and will begin at 3:00 pm.

The December 16 class will be held at Lakeview Presbyterian Church, located at 5914 Canal Blvd. and will begin at 3:00 pm.

It is likely that both of these classes will last several hours.

Since the assessment center is just a few weeks ago, we decided to post a video of the introductory lecture here for officers to review. Download the two-page method steps here. You will need it.

Feel free to watch these videos as many times as you need. At the classroom sessions, Commander Dabdoub will apply these steps to actual scenarios and give feedback on answers given by the class.

Part 1 of 2

Part 2 of 2

Click here to download the Civil Service Department’s NOPD Sergeant Work-Sample Test.

FOP Family Fund

The Thanksgiving season is upon us which leads to the biggest giving season of the year, Christmas. The FOP hopes that you will consider contributing to the FOP Family Fund.

The New Orleans FOP Family Fund is a function of the Louisiana FOP Foundation, a 501(c)(3) charitable foundation. The FOP Family Fund is mainly funded by donations made by active and retired NOPD employees through payroll/pension deduction.  The FOP Family Fund also accepts  donations from private citizens and businesses wishing to support law enforcement.


The FOP Family Fund assists police officers who are facing severe financial difficulty because of an on-the-job injury or personal tragedy.

It is an unfortunate reality of police work that officers get injured on a regular basis. Injuries occur when officers are in car crashes, when perpetrators resist arrest, or a myriad of other ways. When these work-related injuries result in officers being out of work, their income becomes suddenly dependent on workers compensation law. Workers compensation law entitles an officer to 2/3 of his or her salary for temporary disability benefits. The maximum amount changes each year in September. For the period of September, 2017 through September, 2018, the maximum benefit is $653/wk. That represents approximately 5 hours of an officer’s 8 hour day. The officer’s remaining salary must be made up by using sick leave, if available. Overtime and police detail income are never figured into workers’ compensation, and that portion of salary is simply lost to the officer.

In addition to helping FOP members injured in the line of duty, the FOP Family Fund makes immediate assistance available to the families of NOPD officers killed in the line of duty.

Officers are the victims of natural disasters just like everyone else, from time to time, and when that happens, the FOP Family Fund stands ready to help.  As an example, the FOP Family Fund (through the National FOP Foundation) provided over $1,000,000 in financial assistance to law enforcement officers throughout the State following Hurricanes Katrina and Rita.

In August, 2016, a dangerous tornado touched down in New Orleans and there was destructive flooding in southeast Louisiana. Several of our members suffered significant losses as a result of the tornadoes and flooding.  The FOP Family Fund was able to provide assistance to those members, some of whom had lost their homes.


The FOP Family Fund cannot survive without donations from our members and members of the public. Officers who are interested in donating to the FOP Family Fund, even if it is just $1 per pay period, can do so by visiting the NOPD Payroll office to sign up for payroll deduction. Anyone else who would like to make a tax deductible donation to the FOP Family Fund can mail a check to the FOP Family Fund, P. O. Box 24154, New Orleans, LA 70184.

The FOP Family Fund pays no administrative fees from direct contributions.  Every penny of every donation goes to assist our local law enforcement officers..


Our federal tax ID number is 20-3484575.


NOPD Sergeants Exam Multiple Choice Study Resources

The Sewerage & Water Board, the New Orleans Civil Service Commission, and the Media Attention

The following is the entirety of my post regarding the NOLA.COM story entitled Sewerage & Water Board, not Civil Service, to blame for hiring delays.

The Civil Service Commission Chairman is right that the Sewerage & Water Board asked that the ability to hire people be delegated to the Sewerage & Water Board. At that time, I stood up and argued against that delegation on behalf of the Fraternal Order of Police. It was not that the request to delegate that authority directly impacted the police department, but that it adversely impacted the civil service system in general.

The Civil Service Commission Chairman correctly states that the Sewerage & Water Board has failed in hiring new people, not the Civil Service Department. What she fails to state is that in spite of these failures, the Civil Service Commission has not revoked that delegation of authority and continues to facilitate weakening Civil Service.

As the article points out, the Landrieu administration has attempted to “reform” the Civil Service Commission since 2010. The “reforms” they have instituted are antithetical to the purpose and goals of the Civil Service system. The Civil Service Commission has been complicit in these “reforms” since Mayor Landrieu began replacing Commissioners on the Civil Service Commission with people who are inclined to give the Mayor what he wanted in spite of the basic tenets of any merit-based system of employment.

As I stated above, I argued against delegating hiring authority to the Sewerage & Water Board. What they have done is reduce funding and staffing for the Civil Service Department and then complain about how the Civil Service Department is unable to meet the needs of various departments and then used this to justify decimating the Civil Service system in New Orleans. The other “reforms” the Landrieu administration and the Civil Service Commission have implemented are as much of a failure as the Sewerage & Water Board hiring delegation. Unfortunately, those failures do not result in street flooding or maybe they would have gotten some media attention. So, while we are on the subject of Civil Service, let’s talk about some other stuff.

The Mayor’s Great Place to Work Initiative, which was the greatest part of the “reforms” implemented by Landrieu, changed the way promotions were made. In effect, employees seeking a promotion take a test and all persons who pass the test are eligible to be promoted. Unfortunately, Louisiana Constitution Article X, Section 7 reads as follows:

“Permanent appointments and promotions in the classified state and city service shall be made only after certification by the appropriate department of civil service under a general system based upon merit, efficiency, fitness, and length of service, as ascertained by examination which, so far as practical, shall be competitive. The number to be certified shall not be less than three; however, if more than one vacancy is to be filled, the name of one additional eligible for each vacancy may be certified. Each commission shall adopt rules for the method of certifying persons eligible for appointment, promotion, reemployment, and reinstatement and shall provide for appointments defined as emergency and temporary appointments if certification is not required.

Promotions under the Great Place to Work are not competitive and the test is not used to determine merit, efficiency, fitness, or length of service, as the Constitution requires. In addition to these recently acquired deficiencies, the Civil Service Rules on promotions prior to the Great Place to Work Initiative were the product of a consent decree in the matter of Larry Williams v. City of New Orleans, 725 F2d 1554 (5th Cir. 1984). The consent decree in the Williams case set out to eliminate discrimination in the promotional process.

The Williams consent decree developed the use of banding test scores to allow the NOPD greater flexibility in choosing promotional candidates to ensure racial equity while maintaining the Louisiana Constitution’s requirements of assessing merit, efficiency, fitness, and length of service through competitive testing. In addition the usage of banding allowed the Civil Service to reduce the error inherent in testing, making test results more accurate. The Williams consent decree, and the resultant banding system, was the result of a number of expert psychometricians and experts from other relevant fields under the oversight of a federal judge. The Great Place to Work Initiative undid the changes implemented by the those experts via the Williams consent decree. The Great Place to Work Initiative re-opened the door to discrimination, favoritism, nepotism, and other ism’s. The Great Place to Work Initiative was not compiled by experts in the field, but it negated changes that were made by experts.

The Great Place to Work Initiative has also led to morale problems. Employees are now uncertain about what it takes to get promoted. Given that uncertainty, it is nearly impossible to resist the conclusion that promotions are being made on the basis of who you know instead of what you know or your ability to perform the job. None of this inspires confidence in the system or the department’s leadership.

In addition to the changes made to the promotional system, the Civil Service Commission has recently added 16 unclassified positions to the New Orleans Police Department. These 16 unclassified positions were previously held by classified employees. The Civil Service Commission approved this request in spite of objections by the Civil Service Department and arguments presented by myself and others. Simply put, the addition of these unclassified positions was contrary to the Civil Service Rules and the underlying notion of the merit-based system of employment. Unclassified positions are the exception to the rule and the addition of these unclassified system effectively denies classified employees a promotional opportunity because they have effectively replaced the classified position of Police Captain.

This just skims the surface of what is wrong with the Civil Service Commission now and the problems caused by the Great Place to Work Initiative. The New Orleans Fire Department has experienced many of the same problems as the NOPD. I am sure there are issues I am unaware of. Deputy Mayor Andy Kopplin, CAO at the time, once told me that the Civil Service Department was too overly concerned with fairness. Maybe in private enterprise an employer can place other things ahead of fairness. However, in public service, fairness is the cornerstone of a healthy Civil Service system.

The Civil Service Commission was right to point the finger at the Sewerage & Water Board regarding these hiring problems. But, the Civil Service Commission needs to look a little closer to home regarding the Great Place to Work Initiative. Maybe they can avert the inevitable disaster that will result from this wanton destruction of the Civil Service Rules.

The Great Place to Work Initiative needs to be repealed. There is nothing wrong with implementing changes to improve the efficiency of the Civil Service Department. However, wholesale changes to a system which was the biggest reform to public service this country has ever seen is a tremendous mistake — a mistake which has already been made.

Donovan Livaccari, Spokesman
Fraternal Order of Police
Crescent City Lodge #2

#NOPD 2017 Pay Plan Initiative

The New Orleans Police Department announced new pay increases on July 5, 2017. Since then, I have been approached with numerous questions about this pay plan. The following is my appreciation for the plan as it exists now. The plan has to go before the Civil Service Commission and the City Council for approval, but that seems like that won’t be a problem. During recent discussions of a proposed special rate of pay for Homicide Detectives, the FOP suggested that the NOPD needed to examine all special rates of pay and advocated for a bold pay initiative to help with recruitment and retention. This plan, which was put together by the NOPD’s Deputy Chief of Staff, is a step in the right direction. We made some additional suggestions and there are a few questions about this plan that remain unanswered. The following is the plan as it exists today. Salaries below do NOT include state pay or millage. 

Police Recruit salaries will remain unchanged at $40,391.84. Our suggestion was that NOPD increase this and all other salaries by an additional 5% so new hires also benefit from the round of increases.

Police Officer I will become Police Officer and the base salary will increase to $46,885.00, a 10.45% increase.

Police Officer II, III, and IV will be consolidated as Senior Police Officer. The base salary for Senior Police Officer would be $51,783.84, a 16.08% increase over P/O II, 10.45% over P/O III, and 5.09% over P/O IV. Anyone who is a P/O II, III, or IV will automatically become a Senior P/O at the time the plan is implemented. The FOP is encouraging the department to allow P/O II promotions prior to the implementation of the plan to maximize the number of officers who are eligible to become Senior P/O. 

A new classification titled Master Police Officer would have a base salary of $57,194.53. The Master Police Officer position would be unlike Senior Police Officer insofar as there will be a limited number of Master P/O positions available and the test will be a competitive test. Everyone who qualifies to be a Senior P/O will become a Senior P/O. Master P/O’s would be selected in much the same way Sergeants are selected now (which, frankly, is a mystery to me). Master P/O’s will be limited by assignment. For example, each district may have one Master P/O per platoon. Master P/O’s may also have some supervisory responsibility. There will probably not be an educational requirement for Master P/O.

Police Sergeant will have a base pay of $63,170.56. This represents an increase of 16.08%.

Police Sergeant will have a base pay of $69,771.01. This represents an increase of 19%.

Police Captain will be increased to $77,061.11, an increase of 10.45% and Police Major will be increased to $80,987.01, an increase of 6.41%. Of course, we are operating under the belief that there won’t be any new Captains or Majors any time soon.

The plan also includes 4 detective “positions.” Detective would be the effective equivalent of Senior Police Officer. Lead Detective will be the effective equivalent of Master Police Officer. Detective Sergeant would be the effective equivalent of Police Sergeant and District Detective Lieutenant would be the effective equivalent of Police Lieutenant.

I do not think that a decision has been made about whether the detective positions would be actual classifications, some type of sub-classification, or a special rate of pay. Based on the administration’s recent addition of unclassified commanders and an overall assessment of the department’s current philosophy about various positions, it is my belief that the department will want to be able to un-make a detective easily. In order to be able to un-make a detective easily, the detective’s positions has to either be a special rate of pay or some type of sub-classification. Any change of classification which results in a reduction in actual pay (not a special rate of pay) is a demotion. Demotions must be supported by cause expressed in writing and are disciplinary actions. It is my belief that the department wants to be able to make and un-make detectives much like they can make and un-make Commanders now. We will see how this shakes out, but I think we can count on detectives making 10% more than their effective equivalent. Of course, this is speculation.

So, the questions that remain are things like:

  1. How much time in grade will be required for Senior P/O? I believe the answer will end up being 3-4 years.
  2. How much time in grade will be required for Master P/O? I believe the answer will likely be the same as for Police Sergeant.
  3. Will the minimum requirements for Police Sergeant change? I don’t think so.
  4. How will the detective positions shake out? It may not be a true career path.

If there are questions, feel free to ask. I don’t know if I have the answer, but I will try. Also, any NOPD employees who have thoughts or suggestions about the foregoing, feel free to share. A copy of the proposal can be downloaded here (.pdf).



The New Orleans Police Department, like many other police departments, issues take-home vehicles to some employees.  In fact, the NOPD intends to expand the number of take-home vehicles in use by department employees soon.  Recently, the NOPD ordered the first 100 of 400 new police vehicles which will be issued to FTO’s and platoon personnel.  For those officers who are issued take-home vehicles or may be issued take-home vehicles in the future, it is imperative that these officers understand the City’s take-home vehicle policy or risk personal liability in connection with these vehicles.

CAO Policy Memorandum 5(R) states that the NOPD can assign marked take-home vehicles to officers who live in Orleans Parish and travel to and from work to that location in Orleans Parish.  Otherwise, officers must live in Orleans Parish and have less than a 40-mile commute and be available and regularly called out on a 24-hour basis (think unmarked cars for detectives).  CAO Policy Memo 5(R) further states that officer assigned take-home vehicles can only use these vehicles for official purposes, including details, with one big exception.  Officers assigned take-home cars are allowed to use these vehicles for personal use when they are incidental to driving to or from work.  In other words, an officer can stop at the cleaners on the way home to pick up clean uniforms, assuming the dry cleaners is not in Tangipahoa Parish.

City vehicles should not be used to perform personal business. However, in some instances, take-home vehicles may be used to perform incidental, personal errands outside the course and scope of City business, so long as the errands are conducted to and from work without significant deviation, are brief in nature, and do not detract from the employee’s activities as a public servant.

This leads to the BIG CATCH.  The City is self-insured.  As such, it regulates its own insurance policies in conjunction with state law.  With regard to take-home vehicles, if an officer uses the vehicle for personal use, including driving to and from details, the City WILL NOT PROVIDE INSURANCE COVERAGE OR REPRESENTATION in the event of an accident and a lawsuit.

Such limited personal use, while permitted, does not fall under any coverage provided by the City’s self-insurance program.

CAO Policy Memo 5(R) Sec. XVI, Paragraph F reads as follows:

Insurance: Each Department or Authorized External User, authorized by contract, will require that every employee with a take-home vehicle provide a copy of their current personal automobile insurance policy or their current personal non-owned automobile insurance policy to the Appointing Authority. It shall be the responsibility of each department to ensure that insurance policies or proof of insurance coverage are submitted as they are renewed. Copies shall be provided to the City’s Risk Manager.


Vehicle use outside the scope and purpose of employment by the City, whether permissible or not, is not covered by the City’s self-insurance program. [Note that Authorized External Users are not covered by the City’s self-insurance program – See Certificate of Insurance Letter] Every employee with a take- home vehicle must endorse their current Personal Automobile Policy to provide coverage for Non-Owned Autos, including Physical Damage Coverage and provide evidence of the coverage in force. Minimum personal automobile insurance coverages and limits required of employees with take-home autos are as follows:


i. Automobile Liability, Bodily Injury and Property Damage Liability – Mandatory State Minimum Financial Responsibility Limits.
ii. Uninsured Motorist – No less than the Minimum Financial Responsibility limits, or your liability limits, whichever is greater.
iii. Comprehensive and Collision – Any deductibles will be the sole responsibility of the employee and will not be borne in any way by the City, for damage due to accidents outside the scope and purpose of employment by the City.
iv. Non-owned coverage including Bodily Injury and Property Damage Liability and Physical Damage (“Comprehensive” and “Collision”).


Any employee with a take-home vehicle that does not own a personal vehicle or have a Person Automobile Insurance Policy in force must purchase a Personal Non-Owned Automobile Liability and Physical Damage Coverage (“Comprehensive and Collision”).


The Auto Liability limits shall be at least the Mandatory State Minimum Financial Responsibility Limits for bodily injury and property damage. Any deductibles will be the sole responsibility of the employee and will not be borne in any way by the City, for damage due to accidents outside the scope and purpose of employment by the City.

Police Officer Jason Samuel was involved in an automobile accident driving his take-home police car on November 14, 2010.  Officer Samuel was on his way home from a detail when, while sitting at a red light, his foot slipped off the brake and he struck the vehicle in front of him.  Fortunately for Officer Samuel, he was a member of the FOP Legal Defense Plan.  The City Attorney’s office advised Officer Samuel that they would not be representing him in connection with the lawsuit following this accident.  Officer Samuel’s insurance company told him the same thing.  Officer Samuel was ultimately represented by Tony Livaccari, Livaccari Law, through the FOP Legal Defense Plan.  While the FOP Legal Plan provided Officer Samuel an attorney, it did not pay the settlement in the matter.  Ultimately, that would end up costing Officer Samuel more than $5,000.00.

Police Officer Robert Ponson is in the same boat.  Officer Ponson was involved in an accident on the way home from a detail and was involved in an accident in his assigned take-home vehicle.  Officer Ponson was also advised that the City Attorney would not provide him with representation since he was on the way home from a detail.  His insurance company indicated the City should be representing him.  Again, the FOP Legal Plan will be providing representation for Officer Ponson.

It is imperative that officers who are assigned a take-home vehicle call their insurance agents or insurance companies and arrange for non-owned vehicle coverage.  Officers should make the situation perfectly clear.  If the insurance company does not write that coverage, then the officer needs to either get an additional non-owned vehicle policy, change insurance companies, or give the take-home vehicle back.

Officers have to understand that their personal assets are exposed should they get in an accident if they are not properly insured.  It is simply not worth the risk to operate a take-home vehicle if the security of the officer’s family is compromised.  Soon, the NOPD will be offering 400 take-home vehicles to officers who might not otherwise have the opportunity to be assigned a vehicle.  The temptation will be strong.  Leaving the car at the station is not an option if the car will be used to drive to and from details.  The bottom line is get the insurance or give the car back and make sure you belong to the FOP and the FOP Legal Defense Plan.

U.S. Fifth Circuit Case Alert


Officer should be aware of the below case.  The Fifth Circuit held that officers who are aware of a constitutional violation can be liable under bystander liability if they fail to intervene.  In such a case, because the law is clearly established, an officer will be denied qualified immunity.  It is additionally a violation of many department policies (including NOPD) to fail to intervene in an unlawful use of force.

Fifth Circuit

Hamilton v. Kindred, 2017 U.S. App. LEXIS 623 (5th Cir. Tex. Jan. 12, 2017)

Brandy Hamilton and Alexandria Randle were pulled over by Officer Turner for speeding. After Officer Turner smelled marijuana, he ordered the women to exit their vehicle. Hamilton was wearing a bikini bathing suit, and Randle was similarly dressed. Officer Turner handcuffed the women and searched their vehicle. During this time, Officers Ron Kinard and Amanda Bui arrived. After Officer Turner searched the vehicle, he asked Officer Bui to search Hamilton and Randle. Officer Bui conducted a body cavity search on both women while on the side of the road. Hamilton and Randle subsequently filed a lawsuit against the three officers under 42 U.S.C. §1983 claiming the invasive cavity searches violated their Fourth Amendment rights to be free from unreasonable searches and seizures. Officers Turner and Bui reached settlement agreements with Hamilton and Randle. Officer Kindred argued that Hamilton and Randle failed to adequately allege that an excessive use of force occurred. In addition, Officer Kindred argued that he could not be liable under 42 U.S.C. § 1983 as a bystander for not intervening to prevent the body cavity searches; therefore, he was entitled to qualified immunity.

The district court denied Officer Kindred qualified immunity. The court found that Hamilton and Randle had adequately alleged a claim of excessive force. The court also held it was clearly established at the time of the incident that bystander liability applied. In addition, the court concluded that there was a serious dispute as to material facts in the case regarding the objective reasonableness of Officer Kindred’s actions. Officer Kindred appealed to the Fifth Circuit Court of Appeals.

First, to bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must show that she was seized. Here, the court of appeals found that Hamilton and Randle clearly alleged in their complaint that they were seized during the traffic stop when they were handcuffed and placed in the officers’ patrol cars. In addition, the women alleged that they were detained for over thirty minutes and subjected to invasive body cavity searches in violation of the Fourth Amendment.

Second, the court held that Officer Bui’s insertion of her fingers into the plaintiffs’ body cavities constituted a use of force, which the plaintiffs allege occurred during their seizure.

Third, at the time of the incident, it was clearly established that it was not reasonable to conduct a roadside body cavity search, unless there were exigent circumstances that required the search to be conducted on the roadside rather than at a medical facility. Consequently, the court found that Hamilton and Randle alleged facts showing that they were subjected to an unreasonable use of force “excessive to its need.”

The court further held, at the time of the incident, it was clearly established in the Fifth Circuit that an officer could be liable as a bystander in a case involving excessive force if he knew a constitutional violation was taking place and he had a reasonable opportunity to prevent the harm.

However, because there were serious disputes as to material facts regarding Officer Kindred’s potential liability as a bystander, the court of appeals lacked jurisdiction to hear this portion of the case and dismissed Officer Kindred’s appeal.

For the court’s opinion:

Unclassified Positions and Reform in the #NOPD


Recently, I wrote about the New Orleans Police Department’s request to the New Orleans Civil Service Commission for the creation of 16 new unclassified jobs in the NOPD.  The NOPD made its pitch at the February 20, 2017 meeting of the Civil Service Commission and it received some media attention here and here.  The Civil Service department opposed the creation of these unclassified positions, referring to the request as “unprecedented.”  After hearing from the NOPD, myself, on behalf of the FOP, Capt. Mike Glasser, PANO, Lt. Keith Joseph, BOP, and a few others, the Civil Service Commission took no action to allow the Civil Service Department to complete its work and put the matter on the agenda for the March meeting (March 20 if anyone wants to accompany me on behalf of the FOP).

I do not intend to re-post my argument against the creation of the unclassified positions, but for those who have not had the chance to read this article or my letter to the Civil Service Commission in this regard, the Civil Service Rules, which have the force and effect of law, require that in order for a position to be considered unclassified, the job’s responsibilities are not appropriate for anyone in the classified service and should not be performed by anyone in the classified service.  Furthermore, someone serving in an unclassified position must have policy-making authority which is not subject to further review or modification.  Finally, the Civil Service Commission is required to audit the position regularly to make sure that it is still not fit for the classified service.  As both Superintendent Harrison and myself made a point of saying, unclassified positions are the exception to the rule in a merit-based system of employment like Civil Service.

Currently, there is no “Commander” position, really.  There is a “Commander” assignment.  The Commander assignment, which must be filled by someone holding the rank of Police Lieutenant or higher, comes with a special rate of pay.  While I am unaware of anyone actually pushing this particular issue, the NOPD stated that one of the reasons we need to reconsider this special rate of pay is that a special rate of pay does not confer any grant of authority.  So, the question is does a Police Lieutenant in the position of Commander have the authority to issue orders to a Police Major?  While I am unaware of anyone pushing this issue, there are reasons to reconsider the use of a special rate of pay for commanders.  The majority of people assigned to Commander positions are in the rank of Police Lieutenant.  Police Lieutenants are non-exempt employees.  That means they should make overtime like all other non-exempt personnel under the FLSA.  However, they do not get overtime.  They are currently being treated as exempt employees.  While their pension is controlled by their actual rate of pay, terminal leave is paid to these individuals based on their Civil Service classification.  Finally, it is just an abuse of the special rate of pay provisions.  This special rate of pay scheme was put in place in 2011 after the Civil Service Commission told then Superintendent Serpas that he could not have 16 unclassified Police Colonel positions.

So, if the positions were not fit to be unclassified in 2011, what has changed that would make them appropriate today?  Well, while not answering the preceding question, Superintendent Harrison said that Department of Justice report which led to the current Consent Decree indicted the prior leadership “had largely acquiesced to wide-spread abuses by officers at all ranks.”  Superintendent Harrison went on to praise the accomplishments of individuals currently in the position of Commander.  Finally, the Superintendent insisted that it was critical that he be able to “swiftly replace leaders who are not performing to standard.”

What is exceedingly clear from the arguments made by Superintendent Harrison is that the NOPD has some good leaders in the position of Commander and that Commanders are performing the jobs previously held by officers in the classified service and that Commanders do not have the type of policy-making authority that is not subject to further review or modification.  What is clearly lacking is any logical connection between the existence of the Commander special rate of pay and any of the accomplishments of the folks holding those positions.

During the meeting, Commissioner Stephen Caputo, the newest member of the Civil Service Commission, noted that on several instances in my letter to the Commission I stated the position of Commander had been historically held by Police Captains and Police Majors.  He then asked if I was advocating for the status quo, or doing things as they have always been done.

My response was that I was not arguing for the status quo, but that the Civil Service Rules require that the job responsibilities be unfit for performance by anyone in the classified service.  History shows us that prior to 2011, the job responsibilities were performed by employees in the classified service.  Nothing has changed to make the jobs unfit for the classified service.

That does not mean that we have to maintain the status quo.  For example, the NOPD has the longest working-test period for employees.  Working-test periods, otherwise known as probationary periods, are set at 6 months in the Civil Service Rules with a maximum of 1 year.  The NOPD has 1-year working-test periods across the board.  That means that if someone is promoted to the rank of Police Captain and is unable to meet expectations, they can be demoted to their prior classified position — for just about any reason.  Generally speaking, if someone is incapable of performing a job, that incompetence will reveal itself within a year.  My point is that before we go shopping for a new toolbox, maybe we should make sure that we are making the best use of the tools we already have.

Civil Service Commission Chair Michelle Craig said that the Commission wanted the opportunity to examine best practices.  While the idea of “best practices” aggravates me to no end, I was fascinated by Superintendent Harrison’s reply that NOPD was re-writing the best practices and, therefore, what they are doing is the de facto best practice.

In today’s environment of instant gratification, we have to be able to point out real-time problems to demonstrate why these ideas that run contrary to the civil service philosophy should be avoided.  That is an impractical demand.  However, make no doubt about it, it is coming.  There will be a discriminatory application of the “Great Place to Work Initiative,” if there hasn’t been one already.  The creation of 16 unclassified Commander positions, would eventually prove problematic.

The first merit-based civil service system can be traced back to Imperial China and Emperor Wen of Sui (AD 605).  It wasn’t until the 1940’s that Louisiana embraced the civil service system.  Even then, it was repealed in 1948 and re-established in 1952.  Since then, more than a few changes have been made to how civil service systems are administered.  However, the idea of a merit-based system of employment utilizing objective standards and competitive testing has persisted.

So, while I am not advocating doing things as we did them in 1992, I am advocating the maintenance of the underlying set of guiding principles which have served us well for a long time.  We don’t have to throw the baby out with the bath water.  We don’t ditch democracy just because there is a more efficient way to administer the Department of Education.  The New Orleans Civil Service Commission has taken some steps recently which are downright scary.  The “Great Place to Work Initiative” dismissed important civil service principles relating to promotions and competitive exams.  Of course, the NOPD would point to successes of newly promoted sergeants or lieutenants as if that is the result of the new system in some way.  If you are thinking they wouldn’t do that, that is exactly what they are doing with the Commander position.  Granting the NOPD 16 unclassified positions to replace the special rate of pay for Commanders would be counter to the underlying fundamentals of the civil service system.  Does that mean it has to be done the old way?  No.  It just means it shouldn’t be done the way the NOPD has proposed.