5th Circuit Court of Appeals Upholds Termination of Wife-Swapping Deputies

There is an interesting case that would normally fall in the “Hard to Believe” category and remembered only for its entertainment value. Unfortunately, the case comes out of the U.S. 5th Circuit Court of Appeals. Therefore, the case sets precedent in the federal court circuit in which we live. The case is Brandon Coker and Michael a Golden v. Julian Whittington and Charles Owens. The case arises out of the Western District of Louisiana (we are in the Eastern District of Louisiana) and involves two Sheriff’s Deputies. Since they are Sheriff’s Deputies, they are at-will employees and do not have Civil Service protection.

The case involves two employees of the Bossier Parish Sheriff’s Office, Coker and Golden. Coker and Golden swapped wives. Actually, they swapped families. Golden moved into Coker’s house and Coker moved into Golden’s house. Nothing else changed and nobody got divorced. When Chief Deputy Owens learned of this arrangement, he told Golden and Coker that they either went back to their own homes or they would be considered voluntarily terminated. Needless to say, the two deputies did not comply with the Chief Deputy’s instructions. They were terminated for a provision of the Sheriff’s Code of Conduct that states employees must “Conduct yourselves at all times in such a manner as to reflect the high standards of the Bossier Sheriff’s Office … [and] Do not engage in any illegal, immoral, or indecent conduct, nor engage in any legitimate act which, when performed in view of the public, would reflect unfavorabl[y] upon the Bossier Sheriff’s Office.” This is similar to NOPD’s Professionalism rule. They were also charged with failing to notify a supervisor of a change of address within 24 hours.

One thing that is disconcerting about this case is that Coker and Golden lost not once, but twice – Western District and the 5th Circuit. The District Court held that the disciplinary action was to be upheld because the policies at issue are “supported by the rational grounds of preserving a cohesive police force and upholding the public trust and reputation of the Sheriff’s Department.”

The 5th Circuit Court of Appeals held that precedent in the 5th Circuit has uniformly upheld terminations for sexually inappropriate conduct. Furthermore, the Court held that there are no decisions which stand for the proposition that an officer’s freedoms to associate under the 1st Amendment means freedom to associates with the other’s wife before a formal divorce. They went on to say that pursuant to the U.S. Supreme Court’s holding in Garcetti, public employees “shed some of their constitutional rights as a legitimate exchange for the privilege of their positions.” They went on to say the rule was not constitutionally vague.

The rest of the justification for the holding speaks best for itself. So, here is the Court’s reasoning:

We find no reversible error of fact or law in the district court’s decision. Sexual decisions between consenting adults take on a different color when the adults are law enforcement officers. Their enforcement duties include, for instance, crimes of human trafficking and spousal abuse that place them in sensitive positions with members of the public. Their involvement in relations that openly and “notoriously” violate the legally sanctioned relationships of marriage and family is likely to besmirch the reputation of the Sheriff’s Department and hinder its ability to maintain public credibility. Moreover, these officers’ extramarital relationships, even if consensual and loving at the outset, have great potential to create internal dissension within the force. Finally, it is not hard to envision how the existence of Coker’s and Golden’s cohabitation with each other’s wives prior to divorce and remarriage might be adversely used in litigation concerning the deputies’ official conduct.

 

The Supreme Court’s recent decision in Obergefell v. Hodges does not alter applicable law. ––– U.S. ––––, 135 S.Ct. 2584, 2598, 192 L.Ed.2d 609 (2015). Whatever ramifications Obergefell may have for sexual relations beyond the approval of same-sex marriage are unstated at best, but Obergefell is expressly premised on the unique and special bond created by the formal marital relationship and children of that relationship. Id. at 2594–95. Obergefell does not create “rights” based on relationships that mock marriage, and no court has so held.

While I don’t think I would recommend house-swapping, I am baffled by the connection between an officer’s ability to investigate human trafficking or domestic violence and the officers’ decisions to swap households. The moral to this story is that, as law enforcement officers, one cannot rely on the Constitution to provide the protection is does for everyone else – at least in the eyes of some ultra conservative jurists.

The case can be downloaded here (.pdf): Coker v. Whittington, 858 F.3d 304, 2017 WL 2240300 (C.A.5 (La.)), 2 (C.A.5 (La.), 2017)

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URGENT NOPD EMPLOYEES – Take-Home Vehicles

THE FOLLOWING IS EXTREMELY IMPORTANT FOR NOPD EMPLOYEES:

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 Update – 1st Amendment and Terry Stops

See the below two cases for important case law out of the U.S. 5th Circuit.  Case summaries compiled by The Federal Law Enforcement Informer, Federal Law Enforcement Training Center (FLETC).

United States v. Monsivais, 848 F.3d 353 (5th Cir. Tex. Feb. 2, 2017)

While on patrol in a marked police car, two officers saw Monsivais walking on the side of an interstate highway away from an apparently disabled truck. The officer stopped the patrol car in front of Monsivais and activated the car’s emergency lights, planning to ask Monsivais if he needed assistance. As Monsivais approached, he ignored the officers and walked past their patrol car. At this point, the officers exited their vehicle, and asked Monsivais where he was going, where he had been and if he needed any help. Monsivais told the officers where he was going, and while he appeared to be nervous, he responded politely to all of the officers’ questions. After approximately four-minutes, one of the officers told Monsivais that he was going to pat Monsivais down for weapons “because of his behavior” and for “officer safety reasons.” Monsivais then told the officer that he had a firearm in his waistband. The officer seized the firearm and the government subsequently charged Monsivais with possession of a firearm while being unlawfully present in the United States.

Monsivais filed a motion to suppress the firearm. Monsivais argued that the officer violated the Fourth Amendment because he did not have reasonable suspicion to believe Monsivais was involved in criminal activity when he detained him.

The court agreed. First, the court determined that the officer seized Monsivais for Fourth Amendment purposes when he told Monsivais that he was going to pat him down. At this point, the officer had converted an offer for roadside assistance into an investigative detention or Terry stop.

Second, the court noted that police officers may briefly detain a person for investigative purposes if they can point to “specific and articulable facts” that give rise to reasonable suspicion that the person has committed, is committing, or is about to commit a crime.

Third, the court concluded that while Monsivais’ behavior might not have been typical of all stranded motorists, the officer could not point to any specific and articulable facts that Monsivais had committed, was committing, or was about to commit a crime before seizing him. The officer testified that he never suspected Monsivais was involved in criminal activity, but rather that Monsivais was acting “suspicious.” As a result, the court found that the officer seized Monsivais without reasonable suspicion and that the firearm seized from Monsivais should have been suppressed.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/15-10357/15-10357-2017-02-02.pdf?ts=1486081834

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Turner v. Driver, 848 F.3d 678 (5th Cir. Tex. Feb. 16, 2017)

In September 2015, Turner was videotaping the Fort Worth Police Station from a public sidewalk across the street from the station. During this time, Fort Worth Police Officers Grinalds and Dyess pulled up in their patrol car and approached Turner. Officer Grinalds asked Turner if he had identification, but Turner continued videotaping. When Turner asked the officers if he was being detained, Officer Grinalds told Turner that he was being detained for investigation because the officers were concerned about who was videotaping their building. After Turner refused Officer Grinalds’ continued request for identification, the officers handcuffed Turner, took his video camera, and placed Turner in their patrol car.

A short time later a supervisor, Lieutenant Driver, arrived and spoke briefly with Turner as well as Officers Grinalds and Dyess. After Lieutenant Driver left, the officers went back to their patrol car, released Turner, and returned his video camera to him.

Turner sued Lieutenant Driver and Officers Grinalds and Dyess under 42 U.S.C. § 1983 claiming that they violated his rights under the First and Fourth Amendments. The officers filed a motion to dismiss Turner’s suit, claiming they were entitled to qualified immunity.

First, the court found that at the time of the incident, in the Fifth Circuit1, there was no clearly established First Amendment right to record the police2. As a result, the court held that all three officers were entitled to qualified immunity as to Turner’s First Amendment claim.

Although the right was not clearly established at the time of Turner’s activities, the court held that going forward in the Fifth Circuit, a First Amendment right to record the police exists subject only to reasonable time, place, and manner restrictions. The court did not determine which specific time, place, and manner restrictions would be reasonable, but stated that restrictions must be “narrowly tailored to serve a significant governmental interest.”

Concerning Turner’s Fourth Amendment claims, the court held that the officers’ initial questioning and detention of Turner, before he was handcuffed and placed in the patrol car was reasonable. The court noted that an objectively reasonable person in Officer Grinalds’ or Dyess’ position could have suspected that Turner was casing the station for an attack or stalking an officer. As a result, the officers could have found Turner’s videotaping of the station sufficiently suspicious to warrant questioning and a brief detention.

However, the court held that Officers Grinalds and Dyess were not entitled to qualified immunity on Turner’s claim that handcuffing him and placing him in the officers’ patrol car amounted to an unlawful arrest. The court found that a reasonable person in Turner’s position would have understood the officers’ actions constituted a restraint on his freedom of movement to the degree associated with a formal arrest. The court commented that the officer’s actions in this regard were disproportionate to any potential threat that Turner posed or to the investigative needs of the officers. Consequently, the court concluded that handcuffing Turner and placing him in the patrol car was not reasonable under the circumstances.

Finally, the court held that Lieutenant Driver was entitled to qualified immunity as to Turner’s Fourth Amendment claims. First, under §1983, supervisors are not liable for the direct actions of their subordinates. Second, by the time Lieutenant Driver arrived, Turner had already been handcuffed and placed in the officers’ patrol car. Third, after Lieutenant Driver arrived, he immediately investigated the situation by talking with Officers Grinalds and Dyess as well as Turner, and he then promptly ordered Turner’s release.

1 The First and Eleventh Circuits have held that the First Amendment protects the rights of individuals to videotape police officers performing their duties.

2 While no circuit has held that the First Amendment does not extend to the video recording of police activity, the Third, Fourth and Tenth Circuits have held that the law in their circuits is not clearly established, without specifically determining whether such a right exists under the First Amendment.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/16-10312/16-10312-2017-02-16.pdf?ts=1487291433

The Garrity Case and Law Enforcement Officers

Garrity v. State of New Jersey, 87 S.Ct. 616 (Jan. 16, 1967) is a very important case for law enforcement officers everywhere.  It is also widely misunderstood and there are aspects of its implementation that are as of yet undecided.  The fact that this case is very important to law enforcement officers and still widely misunderstood underscores the value of the FOP Legal Defense Plan and attorneys who practice law on behalf of law enforcement officers every day.

It has been well-documented that one of the biggest legal issues people face is that they cannot afford access to the legal assistance they need.  Many legal issues go unaddressed.  I am sure that if you haven’t experienced this yourself, you probably know someone who has.  The FOP Legal Plan helps FOP members access the legal services they need.  I cannot say this enough:  Pick up the phone and call.  It doesn’t matter how important or unimportant it seems, pick up the phone and call.  As an FOP member, you have access to legal professionals at no cost to you beyond your monthly dues.  Pick up the phone and call.  Now, on to Garrity v. State of New Jersey.

Six individuals, including Police Chief Edward Garrity, four police officers, and a clerk of court were investigated by the New Jersey Attorney General at the direction of the New Jersey Supreme Court in connection with a ticket fixing racket.  During questioning, the employees were advised that:

  1. Anything he or she said might be used in a criminal proceeding;
  2. He or she had the privilege to refuse to answer if the answer would tend to be self-incriminatory; and
  3. Refusal to answer would be cause for removal from office.

The answers to their questions were used in their prosecution, over their objections, to secure their conviction for conspiracy to obstruct the administration of traffic laws.  The convictions were affirmed by the New Jersey Supreme Court and an appeal was taken to the U.S. Supreme Court.

The U.S. Supreme Court overturned the convictions, holding that police officers were “not relegated to a watered-down version of constitutional rights.”  Basically, the U.S. Supreme Court held that since they were given the choice of self-incrimination or job-forfeiture, the statements were coerced.  Since the statements were coerced, they were inadmissible.

We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.

Garrity v. State of N.J., 385 U.S. 493, 500, 87 S. Ct. 616, 620, 17 L. Ed. 2d 562 (1967).

What that boils down to for police officers is that any time their employer, or someone who is authorized to terminate the officer’s employment, informs an officer that the choice is answer questions or be fired, those answers, and any fruits of those answers, will be inadmissible in criminal proceedings against that officer.

First issue:  The person asking the questions must have the authority to terminate the officer’s employment.  For example, if an FBI Agent tells a city police officer that they are required to answer questions or be terminated, Garrity does not apply.  If a city police officer is ordered by his employer to answer the Agent’s questions or be fired, then clearly Garrity will control.

Second issue:  In order for Garrity to control, the officer must reasonably believe that he will be terminated should he refuse to answer.  If the penalty for refusing to answer is minor or non-existent, the answers will be considered voluntary and will be admissible.  It is preferable to have this ultimatum in writing.  At the very least, it should be audio recorded.  If it is not in writing or read into the record by someone in a position of authority, the officer will have to prove that he had a reasonable belief that he was under an order to answer questions or face termination.  This is not a sure thing.

Third issue:  Garrity does not stand for the proposition that officers have the option of refusing to answer incriminating statements.  It only stands for the proposition that police officers cannot be coerced into making incriminating statements by threatening their employment.  The cases known as Uniformed Sanitation I and Uniformed Sanitation II address refusal to answer and, basically, if the statements are immunized, an officer can be terminated for refusing to answer.

Fourth issue:  Garrity protects an officer from incriminating himself.  It does not mean that the statements cannot be used against someone else.

Fifth issue:  Garrity stands for the proposition that coerced statements are inadmissible in a criminal proceeding.  That may not include grand jury proceedings.

There are many other questions about the application of Garrity.

  • Can the ADA get copies of Garrity protected statements?  Yes.  If they do, they run the risk of having evidence ruled inadmissible as a result.  The DA may very well be able to use Garrity statements for Grand Jury proceedings.
  • What is the remedy if an ADA gets copies of Garrity protected statements?  That depends.  If it is possible to continue the prosecution if the statements or their fruits are excluded, it could be continued.  If, however, the statements or their fruits are so intertwined with the prosecution that there is no way to separate them from excluded statements, then the remedy could be dismissal.
  • What about statements made in police reports?  While officers are probably required to complete police reports or face disciplinary action, statements in police reports are not likely to qualify as immunized statements.  In general, statements made in the normal and usual course of business will not be immunized statements.
  • What if I write in my own Garrity warning?  There is a school of thought that if an officer perceives that he is answering questions under a thread of termination, that he should write that in.  I do not see a downside to that.  However, there is no real reason to believe it will be successful.
  • If I am ordered to answer questions, can I assert my 5th Amendment right to remain silent?  No.  In the Uniformed Sanitation II case, the court held that once you are immunized, you no longer have the right to remain silent.
  • Do the holdings in Garrity apply to breathalyzers, blood tests, etc.?  No.  Garrity applies ONLY to statements (testimonial or communicative communication).  See Schmerber v. State of California, 384 U.S. 757, 86 S. Ct. 1826 (June 20, 1966).
  • Are the contents of police reports subject to the provisions of Garrity?  No.  Documents written in the regular course of business are not going to be covered by Garrity.  In prosecution of police officer for beatings and assaults, the government’s introduction in evidence of the arrest report made out by defendant concerning the drug raid in which the complainants were arrested, and his grand jury testimony, did not implicate in any way his right against self-incrimination.  U.S. v. Rios Ruiz, C.A.1 (Puerto Rico) 1978, 579 F.2d 670.
  • What about Force Statements?  One could make the case that Force Statements are compelled testimony as the documents are created as a result of an order specifically related to the act in question.  This is not settled.  It is worth noting that most prosecutors believe these are NOT Garrity protected documents.  This may be a good place to include your own Garrity statement, but may very well turn into a trial-time fight about admissibility.

Is this a special perk of being in law enforcement?  Are police officers given some benefit not available to the average citizen?  No.  Everyone has the right to remain silent pursuant to the 5th Amendment to the U.S. Constitution.  Most people do not have government agents as employers.  Police officers, and other public employees, can be ordered to answer questions posed by government agents or face termination.  Private employers can order an employee to answer questions, but answering those questions does not place a private employee in the position of having to incriminate themselves to a government agent.  One way or another, the fact is that the application of Garrity simply allows police officers and other government employees to make use of the same constitutional protections as everyone else.

There are plenty of resources available on the internet regarding Garrity.  You can download the Garrity case by clicking here (.pdf).  You can download the Schmerber case here (.pdf).

Don’t hesitate to contact your FOP attorney with any questions about Garrity or any other legal issues you may encounter as a police officer.

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U.S. Fifth Circuit Case Alert

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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: http://cases.justia.com/federal/appellate-courts/ca5/16-40611/16-40611-2017-01-12.pdf?ts=1484267434
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NOPD Pre-Disposition Conference (Waivers)

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

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

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

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

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

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

Hate Crimes and the Blue Lives Matter Law

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In the 2016 Regular Session of the Louisiana Legislature, La. R.S. 14:107.2 was revised to amend paragraph A and add paragraph E via Act No. 184, H.B. 953 by Representative Lance Harris.  The change to paragraph A added the following phrase “or because of actual or perceived employment as a law enforcement officer, firefighter, or emergency medical services personnel” to the motivations which can qualify a crime as a hate crime.  Paragraph E included definitions of emergency medical services personnel, firefighter, and law enforcement officer.  For the purposes of this discussion, law enforcement officer is defined as follows:

“an active or retired city, parish, or state law enforcement officer, peace officer, sheriff, deputy sheriff, probation or parole officer, marshal, deputy, wildlife enforcement agent, state correctional officer, or commissioned agent of the Department of Public Safety and Corrections, as well as a federal law enforcement officer or employee, whose permanent duties include making arrests, performing search and seizures, execution fo criminal arrest warrants, execution of civil seizure warrants, any civil functions performed by sheriffs or deputy sheriffs, enforcement of penal or traffic laws, or the care, custody, control, or supervision of inmates.”

There have been a few missteps in the application of this law.  On September 5, 2016, the perpetrator of criminal damage to a French Quarter hotel was charged with violating La. R.S. 14:107.2 based on racial and gender slurs used against the arresting officer.  On October 26, 2016, another individual was charged with violating La. R.S. 14:107.2 with the underlying crime being terrorizing when he told the 911 operator that “he was going to shoot and kill any officer that responded to the call.”  Neither of these charges made it very far.  The charge was refused by the District Attorney in the September 5, 2016 case and the Magistrate dismissed the hate crime charge and the terrorizing charge in the September 5, 2016 case, opting for La. R.S. 14:59, criminal mischief, instead.

What constitutes a hate crime?

As with any other crime, La. R.S. 14:107.2 hate crimes, has necessary elements that must be met.  The law reads as follows:

It shall be unlawful for any person to select the victim of the following offenses against person and property because of actual or perceived race, age, gender, religion, color, creed, disability, sexual orientation, national origin, or ancestry of that person or the owner or occupant of that property or because of actual or perceived membership or service in, or employment with, an organization, or because of actual or perceived employment as a law enforcement officer, firefighter, or emergency medical services personnel: first or second degree murder; manslaughter; battery; aggravated battery; second degree battery; aggravated assault with a firearm; terrorizing; mingling harmful substances; simple or third degree rape, forcible or second degree rape, or aggravated or first degree rape; sexual battery, second degree sexual battery; oral sexual battery; carnal knowledge of a juvenile; indecent behavior with juveniles; molestation of a juvenile or a person with a physical or mental disability; simple, second degree, or aggravated kidnapping; simple or aggravated arson; communicating of false information of planned arson; simple or aggravated criminal damage to property; contamination of water supplies; simple or aggravated burglary; criminal trespass; simple, first degree, or armed robbery; purse snatching; extortion; theft; desecration of graves; institutional vandalism; or assault by drive-by shooting.

Therefore, the elements of the crime are:

  1. A person
  2. must select a victim
  3. of one of the enumerated offenses
  4. because of
    1. actual or perceived race, or
    2. age, or
    3. gender, or
    4. religion, or
    5. color, or
    6. creed, or
    7. disability, or
    8. sexual orientation, or
    9. national origin, or
    10. ancestry of that person or the owner or occupant of that property, or
    11. actual or perceived membership or service in, or employment with, an organization, or
    12. because of actual or perceived employment as a law enforcement officer, firefighter, or emergency medical services personnel.
  5. The enumerated crimes are:
    1. first or second degree murder, or
    2. manslaughter, or
    3. battery, or
    4. aggravated battery, or
    5. second degree battery, or
    6. aggravated assault with a firearm, or
    7. terrorizing, or
    8. mingling harmful substances, or
    9. simple or third degree rape, or
    10. forcible or second degree rape, or
    11. aggravated or first degree rape, or
    12. sexual battery, or
    13. second degree sexual battery, or
    14. oral sexual battery, or
    15. carnal knowledge of a juvenile, or
    16. indecent behavior with juveniles, or
    17. molestation of a juvenile or a person with physical or mental disability, or
    18. simple or aggravated criminal damage to property, or
    19. contamination of water supplies, or
    20. simple or aggravated burglary, or
    21. criminal trespass, or
    22. simple, first degree, or armed robbery, or
    23. purse snatching, or
    24. extortion, or
    25. theft, or
    26. desecration of graves, or
    27. institutional vandalism, or
    28. assault by drive-by shooting.

This law is, by necessity, a specific intent crime.  Violation of La. R.S. 14:107.2 results in an additional penalty that runs consecutively with the underlying offense.  So, in order to charge someone with a violation of La. R.S. 14:107.2, the officer must have probable cause to believe that the offender violated the underlying offense and then that they selected the victim of the crime based on the reasons listed in the statute (4(a)-4(l) above).

It is not enough that the victim has specific traits or associations.  The victim must be chosen for that reason.  In the September 5, 2016 incident, the offender allegedly committed the crime of simple criminal damage to property by breaking some windows at the Royal Sonesta hotel in New Orleans’s French Quarter.  The offender also made some racially offensive comments to a security guard and other rude and insensitive remarks to the female officer who made the arrest.  Being an ass does not make one guilty of a hate crime.  Furthermore, even if the comments which led to this charge were sufficient to constitute resisting arrest, it is still not a hate crime.  Resisting arrest is not, in and of itself, a hate crime.

Example of what could be considered a hate crime:

John Doe, a sovereign citizen, is sitting at home seething about how much he dislikes law enforcement officers.  He knows that active and retired law enforcement officers gather at the FOP lodge.  He grabs his firearm of choice and heads over the FOP lodge where he opens fire, striking nobody.

Example of what is not a hate crime:

John Doe, a sovereign citizen, is having a few beers, walking around the neighborhood harassing people.  The police are summoned to the area and decide to arrest Mr. Doe for public intoxication.  When the police attempt to apply handcuffs, Doe says “I hate you law enforcement professionals and there is no way you are putting those cuffs on me.”  He then proceeds to fight like the dickens, but is ultimately subdued and incarcerated.

The Legislature, the Governor, and the people of Louisiana sent a powerful message in passing the law that they support law enforcement and appreciate the dangers our law enforcement officers, firefighters and EMS workers face.  However, officers must be circumspect in its application.  Officers and the community alike would be better served if this statute were reserved for those unprovoked attacks on police officers that are unrelated to any action taken by the officers.

In any event, if an officer finds himself inclined to charge someone with a hate crime, against a law enforcement officer or any of the other protected classes, that officer should ensure that he can articulate probable cause establishing that the offender specifically intended to commit one of the enumerated crimes because the victim fit one of the protected classes listed in the statute.  This usually involves a more in-depth investigation into the motivation of the perpetrator.  It may be a good idea to consult with the District Attorney prior to charging anyone with violating La. R.S. 14:107.2.  If there is any difficulty articulating the probable cause necessary to demonstrate that the perpetrator intentionally chose the victim of one of the enumerated crimes because the victim was part of a protected class, then perhaps it would be better to consult with the District Attorney and let them add the charge via grand jury or bill of information.

First Amendment for Public Employees Update

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I was recently contacted by a law enforcement officer asking if I was aware of a case out of North Carolina which ruled in favor of some police officers in regard to a disciplinary action involving posts made to Facebook.  I was aware of this case and I think it is important to put this in context for FOP members in Louisiana.  First and foremost, it is important to recognize that this case, Hebert E. Liverman and Vance R. Richards v. City of Petersburg, et al, 2016 WL 7240179 (not yet published) ,comes out of the U.S. Court of Appeals, Fourth Circuit.  This is important because the case does not constitute binding precedent for the U.S. Court of Appeals, Fifth Circuit — Louisiana’s court.  This case could be persuasive precedent, but it is not binding.  That means the argument could be adopted by the Fifth Circuit if a similar case were to be brought here, but the court does not have to adopt it.

More particularly, two officers of the City of Petersburg Bureau of Police were disciplined with an oral reprimand and 6 months of probation for violating the department’s regulations on social media.  The department’s regulations on social media read as follows:

J.A. 161 – Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected b the First Amendment free speech clause, in accordance with established case law.

J.A. 162 – Officers may comment on issues of general or public concern (as opposed to personal grievances) so long as the comments do not disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer.  The instances much be judged on a case-by-case basis.

Generally, Liverman made a post on Facebook expressing his opinion on rookie officers being assigned as instructors for his department.  Richards replied to Liverman’s post expanding on that post discussing new officers being placed in specialized units.  Liverman replied again and Richards again replied to Liverman’s reply.

In short, the court held that the Supreme Court set forth how to analyze whether a public employee’s speech was protected speech in its rulings in Pickering and Connick.  There are three questions that have to be answered:

  1. Was the employee speaking as a member of the public on a matter of public concern?
  2. Does the employee’s interest in First Amendment expression outweigh the employer’s interest in the efficient operation of the workplace?
  3. Was the protected speech a substantial factor in the employer’s decision to take adverse employment action?

The Fourth Circuit came to the conclusion that the officers were, in fact, speaking as members of the public on a matter of public concern.  The court went on to conclude that the second and third prongs of the test set forth in Pickering and Connick were also met, making the Facebook comments protected speech.

More importantly, the court held that the regulations themselves were unconstitutionally overbroad.  The reasoning of the court was that the regulations constituted prior restraint of protected speech.  As evidenced by this case, the regulations did lead to discipline of protected speech.

Many of you may have regulations similar to the regulations at issue in this case.  It has long been my belief that these regulations are overbroad and I still think that they are.  This case supports my contention that they are overbroad.  The NOPD regulation on social media reads as follows:

Employees shall not post any material on the internet including but not limited to photos, videos, word documents, etc. that violates any local state or federal law, and/or embarrasses, humiliates, discredits or harms the operations and reputation of the Police Department or any of its members.

It is my opinion that this regulation suffers the same constitutional shortcoming identified in the Petersburg case.  However, the Petersburg case means does not control what happens in Louisiana.  We may, one day, have a chance to argue for a similar ruling here.  But until that happens, please be careful with posts made to Facebook, Twitter, etc.

NOPD Disciplinary Regs

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On May 15, 2016, the NOPD enacted new disciplinary regulations. The effects of these disciplinary regulations have not been felt up to this point. This is because investigations resulting from dates of occurrence before May 15 have been handled under the old procedure. However, investigations resulting from alleged incidents occurring after May 15 will be handled using the new procedure.

There are two major impacts to the disciplinary system resulting from the new regulations. First, the number of repeat offenses is going to increase. Whether a sustained violation is a second or third offense will be based on the category of the offense and its proximity to other incidents in a similar category. The categories are determined by looking for a letter near the violation which will correspond to a particular penalty range.  In the past, an officer needed to commit the same violation for the violation to become a second offense.  Now, the violations could be completely unrelated and still become a second or third offense.

The second significant impact will be the way disciplinary hearings are conducted.  The bureau conducting the investigation will now make the determination of whether the investigator’s recommend a disposition stays as recommended or not in a pre-disposition conference. In the not so distant past, the investigator’s recommended disposition would be reviewed by the officer’s command to make a determination as to whether that recommended disposition stood.

For example, if an officer assigned to the Operations Bureau was investigated by PIB for a violation which was ultimately sustained, the disciplinary hearing would have been held in its entirety by a member of the Operations Bureau. Now, in those same circumstances, a pre-disposition conference would be held by PIB which would determine the final disposition of the matter and only the penalty would be decided by the Operations Bureau.  If the Operations Bureau conducts the investigation, then the Operations Bureau would conduct the pre-disposition conference and the pre-disciplinary hearing to determine the penalty.  If the officer is assigned to ISB, MSB, or the Superintendent’s staff, you can substitute ISB, MSB, or Superintendent’s Staff for Operations Bureau in the above example.

This removes one of the checks and balances that previously existed. I suspect that the results will be an increased number of sustained violations and an increased number of Civil Service appeals. Fortunately, you have the FOP Legal Defense Plan and dedicated attorneys.  If you do not have the FOP Legal Defense Plan, it is never too late to join.

For alleged violations which occurred before May 15, 2016, the old system and the old disciplinary penalty matrix should be used. For any alleged violations occurring after May 15, the new system and the new penalty matrix will be used.

I want to encourage members to call as soon as they learn about an investigation. It is better for me to be involved as early as possible. If more of these investigations end up in appeals, as I suspect, it will be better for the officer if I am involved earlier in the process.

Remember, there is no cost to the member for legal services covered by the FOP Legal Defense Plan. Also, it is important to remember that in order to qualify for the salary reimbursement option, you must be represented by an FOP attorney during the course of the investigation.

Finally, I want to recommend to FOP members that you use the app Signal for private text communications. This app is available for iOS, Android, and Chrome for desktop. It is free and is super simple to set up. No account is needed — only a phone number.  Best of all, all messages sent and received using Signal can only be read by the sender and recipient because they are encrypted end to end.

To recap, I want to encourage all members to call your FOP attorney as soon as you learn of a disciplinary investigation. If you are notified via email of a Civil Service extension hearing, that means you are an accused officer in a formal disciplinary investigation (also a good time to call).  The changes to the disciplinary regulations make it more important than ever for you take advantage of the representation available to you.

NOPD Superintendent’s Meeting Last Night.


Note from Donovan:  I invited Nadra Enzi, aka Cap Black, to be a contributor at signal108.com.  I think that he has a unique perspective that would be beneficial to everyone.  Cap Black is not affiliated with the FOP or the NOPD.  So, his positions may not mirror my positions or the FOP’s positions.  However, I have generally found Cap’s positions to be insightful and relevant.  I welcome Cap Black to our community and look forward to reading what he has to contribute.


This is my first post in Signal 108. I’m very glad to be here and lend whatever aid I can to a very important cause. For the record, I’m not a police officer, but am very active in creating safety with embattled urban stakeholders and openly supporting police in areas where that is sadly rare.

Police are part of the solution, not the problem, in high crime areas.

I attended the NOPD Superintendent’s public meeting tonight at Franklin Ave. Baptist church. To my surprise, his panelists included urban stakeholders actually engaged in mentoring, conflict mediation and with the Independent Police Monitor, civilian oversight. The chief of the unpopular Public Integrity Bureau was also a panelist, which was disappointing.

It was good hearing about the PeaceKeepers mediating conflict. It reminds folks that urban stakeholders can actually police ourselves. The meeting otherwise went as expected, with the public comment period mostly dominated by hostages whose issues sadly remain unaddressed years after I first heard them.

Bro Al Mims presentation on recent rudeness experienced while trying to get a police report was very well received. It was a plea of an urban police supporter who didn’t initially get support in return. The upside is the subject whose threat he needed documented may soon find himself arrested.

It underscored my disengagement from detente with NOPD leadership. I understand that my position as an urban stakeholder who who wants results from inquiries; supports police unions and assertive interdiction of crime places me outside some comfort zones.

In a community overflowing with violent crime, apologists and the like, all NOPD leadership can do is exchange pleasantries with me at events and visa versa. I don’t support the federal consent decree. I don’t support the Public Integrity Bureau as currently led and constituted- nor do local police unions. I don’t support the retention-killing Office of Police Secondary Employment, ironically born from a suggestion by a former assistant United States attorney ( AUSA ) who was removed for posting privileged information on Nola.com, under aliases.

I support a pro-active agency that recognizes urban stakeholders as partners- not pariahs to be ignored or patronized. I support an agency that makes career criminals a priority, not one with handcuffs applied by DC or activist lawyers. Finally, I support an agency whose policies are shaped by its unions.

Last night’s event, hosted by the NOPD superintendent, tells me what I support won’t materialize anytime soon.

-Nadra Enzi aka Cap Black, Your UrbanSafetyist. @nadraenzi on twitter. UrbanSafetyism blog.