Impacting Legislation on Police Reform in Louisiana

Efforts at “Police Reform” have been ongoing every since the unfortunate death of George Floyd. Those reform efforts seem to have been focused on qualified immunity, but have ventured into other areas as well. Click here for more information particular to reform efforts in Louisiana. The Fraternal Order of Police has not shied away from the challenge. These reformers’ efforts appear to focus on being able to punish individual officers instead of making change where it matters.

The U.S. Department of Justice Civil Rights Division often finds itself tasked with entering into consent decrees with local police department in order to disrupt an alleged pattern and practice of unconstitutional policing. In order to do so, the consent decrees entered in federal court seek to ensure the rules and regulations lay out a structure that leads to constitutional policing. The consent decrees do NOT regulate the behavior of individual police officers. The consent decrees seek to regulate the administration of the department as opposed to regulating individual officers.

The fact is that, while there are always exceptions to the rule, police officers are doing exactly what is expected of them by their supervisors and leadership. If a police department’s administration says “don’t worry about the complaints” or “use stop and frisk on everyone,” it is no surprise when officers comply with those attitudes. The attitudes and behaviors are a direct result of the instructions and directives from the top down. When officers engage in behaviors the community does not support, it is almost certainly the result of directives and attitudes from their superiors — all the way up to elected officials.

Unfortunately, these “reform” efforts have focused on the individual officers instead of the elected officials and police administrators. Reform efforts have sought to make it easier to punish individual officers instead of making any real change.

YOU MUST JOIN THE FIGHT AGAINST THESE BILLS BECOMING LAW

By using Voter Voice, you can easily send emails to the appropriate legislators letting them know how you feel. If we want to see a law enforcement profession that will continue into the future, we cannot lose qualified immunity. Who would take a job that could result in that person losing everything they own because they made an honest mistake? What if that honest mistake led not only to the individual who took a job as a law enforcement officer, but that individual’s whole family? If you had to worry about losing the college savings when you had for your children when working in a certain profession, would you take that job in that profession? If you did take a job in that profession, I would question whether you should have passed the psychological exams during the application process.

Click here to go to the Louisiana FOP Voter Voice. You can either use pre-fabricated emails or modify the email to suit your own feelings. Emails are the most common method when constituents contact their legislators. The FOP, as an organization, has fought for you, our members, every day. The FOP has engaged in dialogues with legislators who are pro-police and those who were anti-police. The FOP has been working with a lobbyist in Baton Rouge for years now. Louisiana FOP President Darrell Basco had a seat on the Police Reform Committee and was able to represent the rank and file police officers. I testified before the Civil Law Committee at the Louisiana Capitol regarding qualified immunity. I also testified before the Police Reform Committee on behalf of our members regarding the Police Officer’s Bill of Rights.

Of immediate interest, HB 609 seeks to deny officers the benefit of qualified immunity. The potential loss of qualified immunity may be the single biggest threat to the law enforcement profession. It is also the best example of how these “reforms” target individual police officers.

Police officers in Louisiana have to step up and let their elected officials know they oppose HB 609. Police officers in Louisiana should also encourage their friends and family in Louisiana to do the same and let their elected officials know they oppose HB609. You can click here to go to Voter Voice above to do so easily.

However, none of this will mean anything without your individual efforts. Also, these are complicated issues requiring negotiations that may not seem normal. Please do not rush to judgment. Rest assured that the FOP is always doing its best for its members.

Please click here to familiarize yourself with the issues facing Louisiana Law Enforcement.

Please click here to access the Louisiana FOP Voter Voice to let your elected officials know how you feel about pending legislation.

NOPD Update 4/6/21

The following went out via NOPDALL on April 6, 2021:

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Subject: NOPD Short Forms 

Members of the Department,

IAPro is now able to generate NOPD Short Forms. Attached is a “Request for Public Integrity Bureau Short Form” (NOPD Form 355), please complete the form in its entirety and send a scanned copy to pibshortforms@nola.gov. The request will be completed within 48 hours after receiving the emailed request (excluding weekends and holidays).

*Any incomplete forms will delay the request.

Feel free to contact me with any question or concern.

Sincerely,

Sergeant Omar Garcia

Public Integrity Bureau

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Form 355 can be downloaded here.

I recommend checking you short form periodically to make sure you are aware of what it says and to make sure it is accurate. You certainly need to check your short form if you are considering leaving NOPD. The last thing you need is to inadvertently leave while “under investigation.” It happens more often than you imagine.

Call me if you have any questions about this or if you have any questions about your short form – sometimes they aren’t the easiest to interpret.

Police Reform Legislation

Legislators on the State and Federal levels clearly have qualified immunity in their crosshairs. Click here for info on Federal legislation from National FOP President Pat Yoes. There are other things the reformers are gunning for, but weakening qualified immunity for law enforcement officers seems to be a major goal. It is important to recognize that the “reforms” to qualified immunity will still apply to all other public officers as it has always been. In other words, the Legislators proposing and voting on this legislation will still be able to benefit from from qualified immunity, as will all other public officers exercising the discretionary functions of their office.

I would like to start by saying that Legislators are gunning for the wrong thing. Qualified immunity only relates to civil lawsuits alleging Constitutional violations. Qualified immunity does not apply to criminal matters.

In Louisiana, lawmakers have proposed that qualified immunity would not be available to law enforcement officers for any wrongful death or injury resulting from a use of force. In those cases, the trier of fact would have to decide if the use of force leading to the lawsuit was unreasonable. If the judge decides it is unreasonable, then the lawsuit would be allowed to continue.

Contrast that with the current way qualified immunity is applied. There is a two-prong test to determine if a public officer is entitled to qualified immunity: 1) Did the public officer’s actions actually constitute a violation of the plaintiff’s Constitutional rights? 2) Was the public officer on notice that his actions constituted a violation of someone’s Constitutional rights? If the answer to both of those questions is yes, then qualified immunity does not apply. If the answer to either of those questions is no, then the lawsuit will be dismissed as to that public officer.

From the standpoint of law enforcement officers, the current application of qualified immunity serves to protect them from civil lawsuits in a profession that is dangerous and often leads to tense, rapidly evolving circumstances where the lives of law enforcement officers and civilians are in danger. A Tulane University Police Officer and Deputy Constable, Martinus Mitchum, was killed on February 26. 2021 when he intervened in a dispute over wearing a mask at a basketball game. Let that sink in. The shooter wanted to be allowed in the gym during a basketball game and was refused entry because he was not wearing a mask. When the interaction became contentious, Officer Mitchum stepped in to de-escalate the situation. In spite of Officer Mitchum’s efforts, the individual was so interested in not wearing a mask at the basketball game that he pulled a gun and shot and killed Officer Mitchum. It is a dangerous profession.

Other reform legislation includes bans in choke holds, bans on no-knock warrant service, and restrictions on the time of day warrants can be served. I don’t object to those efforts except to say that when someone’s life is in legitimate peril, all options should be on the table. Actually, this legislative efforts are much more reasonable than attacks on qualified immunity.

With regard to qualified immunity, I will point out that I am unaware of any insurance product that would provide liability insurance for law enforcement officers. Elimination of qualified immunity, even under restricted circumstances, would expose law enforcement officers to the same type of civil exposure that doctors are exposed to. As we all know, one reason we pay so much to see the doctor is because the doctor has to pay expensive insurance premiums. The problem is that I am unaware of any insurance product available to law enforcement officers and law enforcement salaries have historically been low.

Without qualified immunity, I think I would have to question the sanity of anyone choosing to work in law enforcement – at least a law enforcement agency without qualified immunity. In his monthly podcast, noted public safety attorney Will Aitchison said that taking a law enforcement job without qualified immunity should be the equivalent of failing the psych exam.

Legislators should be focusing on banning chokeholds. NOPD has banned chokeholds for years and it has had a good result. Changing qualified immunity will have unforeseen consequences that will damage law enforcement forever. Law enforcement officers are not the 1%. Law enforcement officers are blue collar workers who live next door to you. Their kids go to school with your kids. They are much more likely to be able to relate with you than with the 1%. In addition, law enforcement officers are not the ones setting policy within police departments. Those policies are being set and implemented by elected officials and people appointed by those elected officials. When the Dept. of Justice sought to implement a consent decree in New Orleans, the consent decree did not contain mandates for each individual police officer. The consent decree contains mandates for the administration. That is because the administration is responsible for how law enforcement officers perform their jobs.

I am not sure changing qualified immunity for law enforcement officers only will be Constitutional. We are entitled to equal treatment under the law. One way or another, legislators need to keep their eye on the ball and prop up law enforcement so that the profession can best serve their respective communities. Legislators should NOT be taking actions that will forever damage law enforcement as a profession.

All law enforcement officers and those individuals supporting law enforcement should contact their elected officials and let them know that you do not support elimination of qualified immunity for law enforcement officers in any way. Emails, letters, and/or phone calls can be used to serve that purpose. Don’t be shy. This is extremely important.

FOP Legal Plan 2020

We visit every NOPD Academy class and explain to them, to the best of our ability subject to time restraints, why the FOP’s Legal Defense Plan is not only necessary for today’s law enforcement professionals, but the best possible legal plan available. There are other legal plans that offer legal services, but none of those are specifically geared to law enforcement officers like the FOP’s Legal Defense Plan is. Furthermore, I can give you all a run down of the legal services I provided to FOP members in Louisiana, but I cannot speak for anyone else. In addition, my practice involves representing police officers. That is it. 100% of my legal practice is representing FOP members.

Being able to devote my entire practice to representing FOP members is a benefit to FOP members for a number of reasons. First of all, I am generally available on short notice. If I am not available for some reason, I can get things rescheduled. Devoting my entire practice to representing FOP members also allows me to be, and remain, well-versed in issues facing today’s law enforcement professionals. I do not know any other attorneys in Louisiana who can say they only represent police officers.

In 2020, I represented more than 400 individual FOP members in the following capacitates:

Accident Review Board Hearings – 38
Civil Service Appeal Hearings – 8
Pre-Disciplinary Hearings/Pre-Disposition Conferences – 133
Civil Service Extension Request Hearings – 101
NOPD Rule IX Hearings – 10
Interviews/Statements – 184

I responded personally to 6 officer-involved shooting scenes and represented 20 police officers involved in officer-involved shootings in Louisiana, including interviews and statements with investigators. Most of these were in New Orleans, but there were several in other jurisdictions in southwest Louisiana.

2020 has been an odd year. I know I am not saying anything people do not already know. There were fewer appeals to the 4th Circuit Court of Appeals. However, I am currently awaiting decisions from the 4th Circuit on the emergency rate of pay and one Civil Service appeal where the appeal was granted in part and denied in part by the Civil Service Commission (I won 45 of 80 suspension days and had to appeal for the other 35).

The FOP’s Legal Defense Plan is the only plan to offer the Salary Reimbursement Option. If you are represented by an FOP attorney and, after consulting with your FOP attorney you come to the conclusion that there is no point in appealing discipline, the FOP will pay the officer for up to 5 suspension days if they choose not to appeal. I assisted 27 NOPD officers with the Salary Reimbursement Option.

In New Orleans, the Crescent City Lodge provides members with free notary services. I provided notary services to 46 NOPD officers over the course of 2020. I also settled 16 Civil Service appeals with the City in lieu of proceeding with an appeal hearing. Those are 16 disciplinary actions rescinded or reduced for my clients.

I also had the opportunity to assist Louisiana FOP President Darrell Basco with his work on various committees in the Louisiana Legislature. I was called upon by the police reform committee to testify at the State Capitol in Baton Rouge about Louisiana’s Police Officer’s Bill of Rights.

Hopefully 2021 will look more like 2019 than 2020. One thing that is certain — The FOP Legal Defense Plan will be there for you when you need it. I will be there when you need me. I always have people tell me they don’t want to bother me with something minor or they don’t want to waste my time.

Nothing is a waste of my time. Nothing is unimportant. Don’t hesitate to call. It does not matter if you are an accused or a witness officer. You can call if you just have a question. I am here to help as much as I can. Furthermore, the FOP will be there for you.

Please note that my phone service now silences phone calls from numbers not in my contact book. I save phone numbers regularly. So, if we spoke on the phone previously, then I probably saved the number and that won’t be an issue. However, if you call and it goes to voicemail, please leave a message or send a text. I am not dodging anyone, but I can’t call anyone back if I don’t know who is calling.

I am looking forward to continuing to serve FOP members in 2021 and beyond. As I have said numerous times, I consider myself lucky to be able to be there for law enforcement officers and blessed to have the FOP Legal Defense Plan to use for that purpose.

Donovan Livaccari

It is always best to call me on my cell phone first.

NOPD Furloughs

By now, everyone is aware that there will be mandatory furloughs of personnel through the end of the year. There are 6 pay cycles starting on October 11 and ending on January 2, 2020. Everyone will be required take one unpaid furlough day in addition to your regular AWP days per 2-week pay cycle. There should be no need to take any more than 6 unpaid furlough days before the end of the year.

I was asked if officers were forbidden from scheduling their furlough day to coincide with AWP days or annual leave days. I was told there is no Department regulation or directive that would not allow taking annual the day before and the day after your scheduled furlough day. If you are AWP on Wednesday and Thursday, nothing prevents your furlough day from being Friday or Tuesday.

However, it is possible that your commander could implement a district directive to that effect. Or maybe your supervisors can’t make the schedule work like that, but it isn’t because of some department-wide directive.

There have been rumors about pay cuts, forced retirements, and all kinds of other unpleasant personnel actions. I am sure that all of those things are on the table. There are somethings the City can’t control. For example, your pension is a state pension. So, that money cannot be used elsewhere. That being said, your pension is the only benefit that will be impacted adversely by the furlough days. By the end of the year, you will be 6 days behind. Otherwise, your benefits will not be affected.

There was a special meeting of the New Orleans Civil Service Commission today (10/8/20). The only item on the agenda was the City’s request to waive the time delays found in Rule XII, Section 9. It does not impact the actual furlough of employees, just how quickly they can implement the furloughs. To the surprise of absolutely nobody, the Commission voted to give the City Administration the waivers they were asking for.

I, on behalf of the FOP, have been working with Aaron Mischler of the New Orleans Firefighter’s Union to find a solution to the mandatory furloughs. Right now, this is looking like a promising exercise. However, there are no guarantees and it isn’t done until its done.

The FOP is working hard on your behalf and we will not stop. There are no guarantees, except that the FOP will be working hard on your behalf.

NOPD Inspection

On August 18, 2020, N.O.P.D. Sergeant Kevin Seuzeneau sent an NOPDALL email reminding everyone about N.O.P.D. Rule 2, Moral Conduct, Paragraph 1, Adherence to Law. Why would he do that? Doesn’t everyone already know that police officers have to comply with the law? Sure we do.

Sgt. Seuzeneau also reminds everyone that there will be a department-wide inspection coming soon. He follows that up with some municipal traffic ordinances police officers in New Orleans are also familiar with. There are probably plenty of officers who have never experienced a department-wide inspection while employed by NOPD, but this is a good time to prepare.

Sgt. Seuzeneau included the municipal ordinances on driver’s licenses, vehicle registration, license plates, etc. These ordinances are included because these are the things they will be checking. You will likely be asked to produce your driver’s license. They will also check to make sure those licenses are valid. Is your driver’s license suspended because of a dispute with the State of Louisiana over taxes? That is a sustained violation. No license on person? Sustained.

They will also check the cars out in the parking lot. The cars should have license plates affixed to the rear number – not on the rear deck. The registration should be readily available. The brake tag should be valid and there should be valid insurance.

All of these potentially sustained violations are avoidable. Take Sgt. Seuzeneau’s advice and use his email as a checklist. It is not worth the hassle of being sustained for R2P1. If it happens, feel free to call me.

Social Media and Law Enforcement Today

Will Aitchison is an attorney in Portland, Oregon. Will has been involved in representing police officers, police organizations, as well as cities and police departments. Recently, Will published a podcast titled “Ten Rules for Police Officer Social Media Posts.” You can listen to the podcast by clicking here. Will’s 10 rules are worth sharing. Here they are:

  1. Your 1st Amendment rights are limited. You are not going to win by relying on your 1st Amendment rights.
  2. Just because something is an internet meme does not mean you should repost it. If you repost it, then you own it. It is the same as if it came straight from your mouth.
  3. Nothing you post is private. While you should check your privacy settings, anything can be forwarded or screen-shotted.
  4. Before you post, ask yourself “How will my employer react to this post?” If the answer is that they will be annoyed or it will lead to an investigation or discipline, then you should ask yourself if it is worth it. I think if you have to ask if it is worth it, just don’t do it.
  5. Confine posts to purely positive posts — posts that don’t have anything to do with the current law enforcement environment.
  6. Will says if you are in doubt about a post, wait 24 hours – sleep on it. Or you can ask a respected senior officer what they think. Again, I say if you are in doubt, don’t post it.
  7. Think – Who are your online “friends?” Are they a tight-knit group? Or do you have “friends” who live on the other side of the country that you do not know? This relates to #3. Nothing is private.
  8. Can someone figure out that you are a police officer from your profile or some other source? If so, you will be treated as if you posted as a police officer.
  9. Brady says any evidence of discriminatory conduct or bias must be turned over to the defense. Is your post evidence of discriminatory conduct or bias?
  10. Before you post or comment, think about your safety and the safety of your job, family, etc. People will find you.

There have been a couple of disciplinary cases here in New Orleans. These are cases that can be prevented. Think before you click post.

Update to Emergency Rate of Pay May 27, 2020

Listen to my discussion with Tommy Tucker on WWL radio this morning regarding the Emergency Rate of Pay:

Listen to Aaron MIschler’s discussion with Tommy Tucker on WWL radio this morning regarding the Emergency Rate of Pay. Aaron Mischler is President of IAFF Local 632 – the Firefighter’s Union. Aaron has been a good partner in seeking the Emergency Rate of Pay.

Emergency Rate of Pay Hearing

On Monday, May 18 at 10:00 a.m., the New Orleans Civil Service Commission will be meeting. The Commission will be considering my request regarding the Emergency Rate of Pay found in Rule 4, Sec. 11.1. You can attend the meeting using Zoom or on the telephone (213-787-0529 meeting 888712). If you want to make a comment on the matter, you can do so by completing a comment form and emailing it to csno@nola.gov. The Emergency Rate of Pay is item 3 on the agenda. It is really the only substantive item on the agenda. This is only for employees under the jurisdiction of the New Orleans Civil Service Commission.

On April 22, I posted about the Emergency Rate of Pay. Click here to download the arguments I provided to the Civil Service Commission. Click here to download Civil Service Rule IV, Sec. 11.1, Emergency Rate of Pay.

I would encourage anyone who thinks police officers, firefighters, and EMS employees should be getting the Emergency Rate of Pay to submit a comment form.

Civil Service Rule IV, Sec. 11.1 states that when the Mayor declares a state of emergency and the Mayor has “requested only essential employees report to work” then those employees are paid at a rate of one and one-half times their regular rate. Review this document for a more in-depth discussion.

The argument against paying the emergency rate of pay is that there have been non-essential employees working during the state of emergency. This is splitting hairs.

One group of employees was told to report to work as usual. The second group of employees was told they could go home. Some of those employees were allowed to work from home and some were carried civil leave. The March 22 CAO Circular Memo on Limited Operations laid out what employees should do effective March 23.

No matter what you call the two groups of employees, one is reporting to work and one is not. Each time the Emergency Rate of Pay has been effective, that has been the case. In my mind, the only question is whether or not the working-at-home group of employees are part of the essential group or the non-essential group. I believe “report to work” entails physically reporting to work. Employees get an Emergency Rate of Pay because they are exposed to the dangers associated with the state of emergency. Finally, we know that police officers were exposed to the risks created by the coronavirus.

Again, review this memo for a more in-depth review of the Emergency Rate of Pay issues. You can also review this post to review the issues. Finally, I encourage everyone to participate in the Civil Service Commission on Monday, May 18 at 10:00 a.m. I also encourage everyone to complete a comment form and submit it via email to CSNO@NOLA.GOV. Call me with any questions.

NOPD Update – Disciplinary Hearings

Back in March, when the City told non-essential employees to either stay at home or to work from home, the NOPD decided to suspend holding disciplinary hearings due to the potential for sharing the virus which has been plaguing us for all of 2020. Exceptions were made for some who were looking to retire, but, for the most part, there have not been any disciplinary hearings conducted since mid-March. Effective May 16, that is going to change.

On May 16, NOPD will begin holding disciplinary hearings again. On May 16, there will be about 2 months’ worth of disciplinary hearings that have not been conducted. Therefore, there will be a backlog of hearings – probably quite a few hearings.

If you have had a sustained disciplinary investigation, but have not had a disciplinary hearing it might be coming sooner than later.

If you have been issued a “Disciplinary Hearing Notification,” then you should call me so that I can put it on my calendar.

If you have been issued NOPD Form 308, the investigator’s recommended disposition, then you are welcome to call. But the NOPD will not be holding a disciplinary hearing on the date indicated on NOPD Form 308.

Why should you call me about your disciplinary hearing?

I have represented officers in more than 1,000 disciplinary hearings.

Since 90% of NOPD officers are members of the Fraternal Order of Police, and, therefore, the FOP Legal Defense Plan, it is safe for me to assume you are an FOP member.

Most NOPD officers have little to no experience with disciplinary hearings.

I can usually answer whatever questions an officer has about disciplinary hearings. I can give you a good idea of what to expect.

If you think you might want to appeal to the Civil Service Commission, it is helpful for me to attend the disciplinary hearings.

If you do not think there is any point in appealing, then you would be eligible for the FOP’s Salary Reimbursement Option if I represent you at the disciplinary hearing.

Actually, just being able to discuss the pros and cons of appealing and the odds of success is very beneficial in making a plan for moving forward.

In the event you are unfamiliar with the FOP’s Salary Reimbursement Option, it has been utilized by many FOP members.

If you are suspended by the NOPD and you do not believe there is any chance of success on appeal, then the FOP will reimburse you for your lost salary in lieu of an appeal destined to fail. The FOP will reimburse you at a rate of $150/day for up to 5 days.

For example, if you are sustained for violating Rule 4, Performance of Duty, Paragraph 2, Instructions from an Authoritative Source, you could be suspended for between 2 and 10 days. The presumptive penalty for a first offense violation of Rule 4, Performance of Duty, Paragraph 2, Instructions from an Authoritative Source, a Level C violation, is a 5-day suspension. If you know that you actually violated the Rule in question and there is ample evidence that you violated the Rule in question and you would lose a Civil Service appeal, then it might be better to get a check for $750. Of course, there is no way to make blanket statements about which way would be better. That is where a healthy discussion between attorney and client is very beneficial.

To conclude, the NOPD will begin holding disciplinary hearings again on May 16. If you are issued a Disciplinary Hearing Notification, you should call me so that I can attend the hearing with you. Doing so will make you eligible for the FOP’s Salary Reimbursement Option. It does not matter if you called me for the early part of the investigation or not. Having the FOP Salary Reimbursement Option as a fail-safe is always good. I have also found that being able to answer questions about the hearing helps officers feel less anxious about the hearing.

Feel free to call.

Donovan