What types of disciplinary investigations should I contact my #FOP attorney about?

IMG_0153

The short answer to this question is ALL of them.  There is no investigation too simple or straightforward.  Quite often I hear “I didn’t call you because it was just a missing court case” or “I didn’t call you because it was just a BWC case.”  Unfortunately, my response is commonly “Well, one of the rules of the Salary Reimbursement Option is that you have to be represented by one of the FOP attorneys in order to qualify for the SRO.”  What is an SRO you ask?

The FOP Legal Defense Plan includes what is known as the Salary Reimbursement Option (“SRO”).  The SRO allows officers to make up for salary lost as a result of an unpaid suspension.  In New Orleans, the SRO allows officers to recover up to 5 days of suspension at $150 per day.  In other words, when you get a 1-day suspension for missing court, the FOP will pay you $150 if you choose not to file a Civil Service appeal.

Why not file a Civil Service appeal?  Well, that is the benefit of having one of the FOP attorneys on the case from the beginning.  Your FOP attorneys have been handling disciplinary actions for years.  By the end of the investigation, your FOP attorney should be able to give you a pretty good idea of your chances of success on appeal.  So, after a disciplinary hearing, you and your FOP attorney can discuss whether you are better off filing an appeal with Civil Service or submitting the disciplinary letter for the Salary Reimbursement Option.

I deal with disciplinary investigations every day.  Most officers deal with disciplinary investigations 2 or 3 times in a career.  As such, one cannot expect officers to be thoroughly familiar with the ins and outs of being an accused officer in a disciplinary investigation.  What is the legal burden?  What evidence is allowed?  When does the 60-day rule apply?  When does the 60 days begin and end?  Is the disciplinary hearing considered part of the 60 days?  How long after a disciplinary hearing can an officer expect to receive the disciplinary letter or suspension days?  When can I file a Civil Service appeal?  What is this email I received about a hearing about an extension that cannot be continued?

The answers to some of these questions change based on rulings of appellate courts in Louisiana.  The answers to other questions changes based on changes in an administration.  The point is that even if an officer is tasked with completing disciplinary investigations, there are still aspects of disciplinary investigations which are unknown.

As a member of the FOP Legal Defense Plan, an officer is entitled to representation at no cost to the officer.  We do not judge whether or not an officer deserves legal defense.  We do not judge the accused officer.  If you are a member of the FOP Legal Defense Plan and you become the accused officer or a witness officer in an internal disciplinary investigation, your legal representation is guaranteed.  We are there to protect your rights.  Calling your FOP attorney can also make you eligible for the FOP’s salary reimbursement option when you don’t have a chance on appeal.  Call, text, or email today.

File Dec 24, 11 55 40 AM

       FOP CCL2    

Powered by Como

 

 

Advertisements

The Standard for Use of Force

I have heard some talk recently about a need to re-visit the standard for determining whether a use of force by police officers is excessive.  This article in the New York Times written by Yale Law students illustrates the nature of the movement.  Here are some problems with the arguments presented in this article.

At the most basic level, the law in Louisiana does not give law enforcement any extra authority to use force against others except that La. C.Cr. P. Art. 220 provides:

A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.

It is the word “reasonable” which causes consternation for folks such as the authors of the above referenced N.Y. Times article.  Here, the reasonableness referred to is the degree or type of force.  Of course, the flip-side to this article is that people have the right to use reasonable force to resist an unlawful arrest.

In order for something to be “reasonable” it has to be in compliance with the law.  For that guidance, we look to La. R.S. 14:19 and La. R.S. 14:20.  It is important to note that La. R.S. 14:19 and La. R.S. 14:20 are not specifically directed toward law enforcement, but are the general rule that governs everyone within the boundaries of the State of Louisiana.

La. R.S. 14:19 reads as follows:

A. (1) The use of force or violence upon the person of another is justifiable under either of the following circumstances:
(a) When committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense.
(b)(i) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40) when the conflict began, against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person using the force or violence reasonably believes that the use of force or violence is necessary to prevent the entry or to compel the intruder to leave the dwelling, place of business, or motor vehicle.
(ii) The provisions of this Paragraph shall not apply when the person using the force or violence is engaged, at the time of the use of force or violence in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous Substances Law.
(2) The provisions of Paragraph (1) of this Section shall not apply where the force or violence results in a homicide.
B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of force or violence was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises or motor vehicle, if both of the following occur:
(1) The person against whom the force or violence was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.
(2) The person who used force or violence knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using force or violence as provided for in this Section and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used force or violence in defense of his person or property had a reasonable belief that force or violence was reasonable and apparently necessary to prevent a forcible offense or to prevent the unlawful entry.

Paragraph A(2) tells us that this does not apply if the force used results in a homicide.  For that we have to look to La. R.S. 14:20, which reads as follows:

A. A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
(3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle.
(4)(a) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40) when the conflict began, against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the dwelling, place of business, or motor vehicle.
(b) The provisions of this Paragraph shall not apply when the person committing the homicide is engaged, at the time of the homicide, in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous Substances Law.
B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of deadly force was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the dwelling, place of business, or motor vehicle when the conflict began, if both of the following occur:
(1) The person against whom deadly force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.
(2) The person who used deadly force knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

Again, I will point out that this is the standard that applies to all within the political boundaries of the State of Louisiana.

Specifically for law enforcement, we look to the U.S. Supreme Court’s holding in the case of Graham v. Connor, 490 U.S. 386.  Prior to Graham, the court used the test developed in Johnson v. Glick, 481 F.2d 1028, to determine if a use of force by law enforcement was constitutionally excessive.  The test in Johnson required that there be proof that the force was applied maliciously and sadistically to cause harm based on the 8th Amendment to the U.S. Constitution.

In Graham, the Court decided that the standard should be based on the 4th Amendment to the U.S. Constitution instead of the 8th Amendment.

The Fourth Amendment “reasonableness” inquiry is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

Graham v. Connor, 490 U.S. 386, 387, 109 S. Ct. 1865, 1867, 104 L. Ed. 2d 443 (U.S. 1989).

Folks such as the authors of the N.Y. Times article referenced above, suggest that the law should embody the DOJ’s necessity standard which states:

 

The necessity to use deadly force arises when all other available means of preventing imminent and grave danger to officers or other persons have failed or would be likely to fail.

I think this is an interesting argument, particularly in light of the fact not one officer involved shooting involving an FBI agent has ever been deemed excessive.  See this N.Y. Times article.

The Graham standard has served us well and it should not be disturbed.  If the Graham standard is turned into a necessity standard, I would recommend that everyone in law enforcement get out — unless you work for the FBI.

2015 #FOP #Legal Year in Review

IMG_0153

2015 has been a banner year for both the FOP Legal Defense Plan and the firm of Livaccari Villarrubia Lemmon.  Hopefully, next year Livaccari Villarrubia Lemmon LLC will transition to Livaccari Law.  The staff, office location, phone number, etc., will remain the same – only the name will change.

This firm began in the early 80’s as Brough and Livaccari, made up of William R. Brough and Anthony J. LIvaccari, Jr..  Brough and Livaccari was mainly an insurance defense firm.  In the 90’s, there were a number of notable insurance company failures in Louisiana, such as Champion Insurance.  The Louisiana Insurance Guaranty Association (LIGA) was responsible for picking up where these failed companies left off.  Brough and Livaccari began representing LIGA.  In addition, they began to handle more plaintiff work, specifically automobile accidents and other personal injury cases.  Since then, Todd Villarrubia joined Tony Livaccari.  Todd has subsequently left to run his own firm, the Wealth Planning Law Group, which is next door to my office.  My sister, Jenifer Lemmon, graduated law school and subsequently began working in the 5th Circuit Court of Appeal.  So, Livaccari Villarrubia Lemmon no longer contains a Villarrubia or a Lemmon.  I joined the firm on part-time basis when I graduated from law school and was admitted to the bar, and on a full-time basis when I left the NOPD in 2008.

Today, the firm is composed of myself, Donovan Livaccari, and my father, Tony Livaccari.  My work is primarily composed of representing law enforcement officers through the FOP Legal Defense Plan.  My father, Tony Livaccari, concentrates on personal injury litigation cases — automobile accidents, motorcycle accidents, etc. as well as other general practice cases.

During 2015, my father represented a number of police officers with automobile accidents and other filled in for me once or twice.  Automobile accidents, motorcycle accidents, scooter accidents, and other injuries are common for law enforcement officers.  When you drive a car 8 hours a day, it is inevitable that accidents happen.  Police officers who are involved in automobile accidents should consult with an attorney, particularly when the other party is at fault.  When consulting with an attorney post-accident, it is extraordinarily helpful to have an attorney who is familiar with law enforcement.  For example, when recovering lost wages, it is vital for an attorney to understand how police details work or the difference between a workers compensation injury and an injured on duty injury.  Here, at Livaccari Law, we can provide that type of knowledge and familiarity to law enforcement officers in addition to the 30+ years of experience handling these types of cases in general.  There is no harm in calling.  Involved in an accident?  Call Tony at 504-621-2636 or me at 504-905-8280.  The office number is 504-488-3702.

With regard to the FOP Legal Defense Plan, I represented 427 individual police officer clients in one capacity or another.  For those 427 police officer clients, the following services were provided:

DI-1 Statements – 253
Disciplinary Hearings – 123
Rule IX Hearings – 24
Accident Review Boards – 10
Civil Service Appeals filed – 26
Civil Service denial of promotion appeals – 5
Civil Service subpoenas – 34
Civil Service hearings – 20
Civil Service extension hearings – 77
Notary services – 63
Officer Involved Shootings – 8
Media interviews – 82

In addition to these regular, repetitive services, I attended numerous City Council meetings, City Council committee hearings, and regular Civil Service meetings.  I represented several officers with regard to reclassifying workers compensation injuries as injured on duty injuries.  In addition, I drafted a rule amendment which was adopted by the Civil Service Commission to include injuries sustained while engaged in traffic enforcement or the investigation of traffic incidents as injured on duty incidents (Rule VIII, Sec. 2.9(a)).

The FOP was also active in the 2015 Louisiana legislative session as usual.  We made several trips to Baton Rouge in furtherance of the FOP’s legislative agenda.  In addition, the FOP is the only rank and file law enforcement group to be included in the Louisiana Body Worn Camera Task Force.  Myself, Jake Lundy, and Jim Gallagher attended the Body Worn Camera Task Force meeting in Baton Rouge in support of Darrell Basco, Louisiana FOP President, who has a seat on the task force.

It has been a busy year and I look forward to continuing to be there for FOP members when they need someone the most in 2016.  Having been a law enforcement officer, I am grateful for the opportunity to represent FOP members.

For 2016, I plan on bringing the FOP’s Critical Incident Response Team online.  When officers are involved in critical incidents, such as officer involved shootings, or in-custody deaths, it is crucial for the FOP to be able to provide prompt, quality legal services to its members.  But it is much more than that.

20151011_221605366_iOS

Being involved in a critical incident can be one of the most traumatic experiences in the life of a law enforcement officer.  Officers are subjected to the type of scrutiny we have never seen before.  At the scene of an officer involved shooting, representatives of the Office of the Independent Police Monitor, federal monitors, FIT investigators, etc., etc., are present.  The media is usually there and very interested in the incident and people involved.  Questions are flying and recordings are being made.

In short, it is important for an officer to be able to have someone by his or her side who is unquestionably looking out for their best interest.  The FOP Critical Incident Response Team will be able to provide that.

First, it is of the utmost importance that someone notify me as soon as possible.  If I do not know about a critical incident until I read about it in the news the next day, it is impossible to respond to the scene.  I need someone to call me, assuming the officer or officers involved wants someone notified.  Once I receive the call, I will get as much preliminary information as I can get, such as the number and identities of officers involved.

So, for illustrative purposes, let’s assume that there is an incident involving two officers involved in an officer involved shooting which led to the death of a suspect.  I need to know the foregoing.  I also need to know if the officer has a preference with regard to a lawyer to be notified.  I have a list of attorneys who have agreed to answer the phone in the middle of the night, get dressed, and respond to a critical incident scene if possible.  Right now, that list includes:  Bruce Whittaker, Ed Doskey, George Hesni, Kevin Boshea, Roger Jordan, Tanya Faia, Townsend Myers, and William Dunn.  All of these attorneys are experienced criminal attorneys.  So, once I learned there were two officers involved, I would go down the list until I have two attorneys in addition to myself who are able to respond to the scene.

I, along with the two criminal attorneys will respond to the critical incident.  I will attend to any administrative matters and make sure that the criminal attorneys file the proper claim forms with the FOP Legal Defense Plan.  Hopefully, that will clear up the criminal attorneys so that they can attend to the legal needs of the officer involved without having to be concerned about some of the potentially distracting administrative issues.  These criminal attorneys will be available to represent the officer throughout any criminal investigation.  After that, I will be available for administrative proceedings or the officer may be able to continue with the criminal attorney if they wish to do so.

I am also planning on securing a use of force expert to respond to the scenes of critical incidents to advise myself and the criminal attorneys with regard to any use of force issues identified on the scene.  I am excited about the benefit this will provide to officers and I know, from my own experience, how beneficial it is to the officer to have someone by their side during these types of events.

Please feel free to call me or Tony with any legal needs you may have.  We appreciate your business and promise to deliver the type of service that you deserve whether it be with a DI-1, a Civil Service appeal, a 4th Circuit appeal, an automobile accident, a will, a power of attorney, or a succession.

File Dec 24, 11 55 40 AM

#NOPD Use of Force Update – Ch. 1.3

IMG_0153

This is a general review of NOPD policies on the use of force.  The Department should be providing use of force training and nothing contained herein should be considered to supplant any information provided in official training.  In fact, if anyone notes something in this article which is contrary to what is being taught in training, please let me know.

Chapter 1.3, titled Use of Force, will be effective on August 9, 2015 and will replace Policy/Procedure 300.

Continue reading

Critical Incident Quick Reference

What constitutes a critical incident?

Any sudden event involving a police officer that results in an immediate investigation with no advanced notice to the subject officer and potentially resulting in the arrest, suspension, or termination of the subject officer.

Examples:

  • Officer involved shootings
  • In-custody deaths
  • Use of force/weapons discharge (including less-than-lethal force)
  • Car accidents
  • Any allegation of duty-related criminal conduct

4 Things you NEVER do:

  1. NEVER give a voluntary statement
  2. NEVER take a polygraph
  3. NEVER give blood or urine
  4. NEVER talk to crisis response team, victim advocate, debriefing team, peer groups, or anyone unless you have a legally confidential relationship with that person.

Things you should always do when involved in a critical incident:

  • Secure the scene and preserve evidence
  • Notify the dispatcher and appropriate supervisor(s)
  • Notify EMS
  • Contact your FOP attorney and
  • REMAIN SILENT
Things you should always if you are an uninvolved officer at the scene of a critical incident:
  • Make sure the involved officer is OK
  • Assist involved officer in contacting FOP attorney
  • Stand by the involved officer until his/her representative/attorney arrives
  • Do NOT talk about the facts with the involved officer
  • Provide the representative/attorney with as much information as possible
  • Remind the involved officer to REMAIN SILENT

Source:  NFOP Labor Services