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.

NFOP President Makes Big Announcement About Federal PSOB

On April 9, National Fraternal Order of Police (“NFOP”) President Pat Yoes, former Louisiana FOP (“LAFOP”) President, announced changes to the federal Public Safety Officers’ Benefit (“PSOB”) program as it relates to COVID-19 deaths.

If you are not familiar with the federal PSOB program, it is administered by the Department of Justice’s Bureau of Justice Assistance. Click here for more information on PSOB. The PSOB program pays a benefit of $365,670 to the family of a law enforcement officer killed in the line of duty. PSOB also pays up to $1,248/month for education expenses for the children of an officer killed in the line of duty. Click here for more information on the PSOB benefit, which changes every year. Click here for the PSOB Fact Sheet.

The PSOB includes deaths caused by “infections diseases” already, but establishing that an officer died from an infectious disease contracted in the line of duty can be difficult. In light of the current circumstances as it relates to the SARS-CoV-2 virus and COVID-19, the resulting illness, the Department of Justice published new guidance regarding PSOB benefits.

In general, BJA will find that the evidence shows a public safety officer with COVID-19 contracted it in the line of duty, when (1) the officer had engaged in line of duty action or activity under circumstances that indicate that it was medically possible that the officer was exposed to the virus, SARS-CoV-2, while so engaged; and (2) the officer did contract the disease, COVID-19, within a time-frame where it was medically possible to contract the disease from that exposure. In addition, in the absence of evidence showing a different cause of death, BJA generally will find that the evidence shows a public safety officer who died while suffering from COVID-19 died as a direct and proximate result of COVID-19.

Of course, we would prefer that everyone is able to make it home from work at the end of every shift safely. Unfortunately, with deaths piling up across the United States, we know that is not reasonable. Some law enforcement officers have already been killed by COVID-19.

The guidance from the Department of Justice as it relates to PSOB benefits essentially makes the families of law enforcement officers who die from COVID-19 presumptively eligible for PSOB benefits as long as it is not medically impossible that the officer contracted COVID-19 in the line of duty.

Merely coming into contact with members of the public or co-workers makes it medically possible an officer is exposed to the SARS-CoV-2 virus. Hopefully, at some point soon, we will have a vaccine for this virus. Until then, every additional close interaction with another human being carries with it an increased risk of being exposed to the virus. The DOJ recognizes this in the 1st part of its guidance.

Additionally, it looks like symptoms of COVID-19 can begin as far out as 14-21 days from exposure to the SARS-CoV-2 virus. Furthermore, once someone develops symptoms, those symptoms could last for 14-21 days (or longer). The DOJ recognizes this in the 2nd part of its guidance.

Finally, the DOJ recognizes that if an officer was suffering from COVID-19 at the time of the officer’s death, it is most likely the death was caused by COVID-19 unless there is evidence of a different cause of death.

In short, the DOJ’s guidance to BJA is that as long as it is not medically impossible for an officer to have been infected by the SARS-CoV-2 virus and to have contracted COVID-19 as a result of “line of duty action or activity,” then BJA is going to assume that officer’s death to be eligible for PSOB benefits.

While this does not make reporting to work any safer, maybe it can provide law enforcement officers will a little sense of security that their families will receive the PSOB should they make the greatest sacrifice while protecting the public during this coronavirus pandemic. Many thanks to our hometown President, Pat Yoes. Furthermore, thanks to Attorney General Barr and President Trump for their support of law enforcement during this unique time in our history.

The Fraternal Order of Police is the world’s largest organization of sworn law enforcement officers, with more than 330,000 members in more than 2,200 lodges. We are the voice of those who dedicate their lives to protecting and serving our communities. We are committed to improving the working conditions of law enforcement officers and the safety of those we serve through education, legislation, information, community involvement, and employee representation. No one knows the dangers and the difficulties faced by today’s police officers better than another officer, and no one knows police officers better than the FOP.

NFOP President Pat Yoes is a Captain for the St. Charles Parish Sheriff’s Office.

The Louisiana Fraternal Order of Police, led by President Darrell Basco, has over 6,000 members statewide. The Crescent City Lodge, with President Walter Powers, Jr., has about 2,000 of those members in Louisiana. About 1,100 of those 2,000 members are active members of the New Orleans Police Department. The remainder of Crescent City Lodge members is mostly retired members of the New Orleans Police Department. The Crescent City Lodge represents about 90% of active NOPD officers from Recruits to the Superintendent of Police.

Note: While it is ultimately up to the deceased officer’s agency to submit the PSOB application, the Fraternal Order of Police has assisted agencies with applications for PSOB benefits on numerous occasions.

Donovan Livaccari,
General Counsel
Louisiana FOP

Safer at Home Video from LSU NCBRT

Below is a new video from the National Center for Biomedical Research and Training at L.S.U. The video provides some tips for people who work on the frontlines of the pandemic on how to make home a little safer for their families.

COVID-19 Roll Call Training from LSU NCBRT Academy of Counter-Terrorist Education

The below video was received from the LSU NCBRT Academy of Counter-Terrorist

Education. It is intended for use as roll call training for law enforcement relative to COVID-19.

Happy New Year and some Advice on Disciplinary Investigations

First of all, I hope everyone had an enjoyable Holiday Season. It would be nicer if the Saints played like the offensive masters they are instead of letting the Vikings’ defense dictate the game. That being said, I know there are a lot of officers in New Orleans who were born and grew up in other parts of the country. If you’re not a Saints fan yet, I hope your team is faring better.

On a regular basis, I hear from officers “I didn’t want to bother you with something so minor” or “I know you are super busy, so I didn’t want to waste your time…” So, I want to get it straight.

First and foremost, you should call no matter how stupid or ridiculous the accusations may be.

What if you didn’t call at the beginning of the investigation? That’s ok. Calling is the important part. Got an email from Civil Service about a hearing you have to attend? Call me. I will help you out with that. Got a notice to render a statement? Call me. Got a call (or email if your computers are working) from your rank about scheduling a statement? Call me. Don’t think they can do whatever? Call me,

The fact is that sometimes I can be busy. That is because my practice is all about representing law enforcement officers. If you call and I can’t answer, leave a message or send a text message. You can send documents by texting or emailing photos of the documents.

The FOP’s Legal Defense Plan allows officers to benefit in so many ways that I can make my practice about representing law enforcement officers. It is important to remember that as a member of the FOP Legal Defense Plan, the attorney-client relationship exists between me and the officer. The FOP Legal Defense Plan acts only as the third-party plan administrator on behalf of the Legal Defense Plan. The FOP is not a part of the attorney-client relationship and doesn’t have any decision making authority in how a case is handled.

The FOP’s Legal Defense Plan covers administrative disciplinary investigations (on or off-duty), criminal investigations (on or off-duty – there may be some limitations to off-duty coverage), and defending civil actions related to an on-duty incident (secondary to primary coverage of employer). This legal protection is provided to accused officers or witness officers. In addition, the FOP will provide 2 hours of legal services per year for any legal need (Crescent City Lodge only) and 4 hours of legal services per year for family law issues (Crescent City Lodge only). The FOP also provides free notary services without limitation (Crescent City Lodge only).

The only trick to accessing these amazing legal benefits for law enforcement officers is to be an FOP member and pick up the phone and call or text — simple as that.

Yes. It was offensive pass interference.

Disciplinary Investigations and Off-Duty Conduct

This time of year, it is inevitable that an officer or two get in trouble for off-duty conduct. Sometimes the off-duty conduct leads to significant disciplinary action. The FOP will be there for you, as always, but, generally speaking, it is easy to avoid the off-duty behavior that comes to the attention of the Public Integrity Bureau, or Internal Affairs as the case may be.

The vast majority of discipline related to off-duty conduct is related to sex or the use of alcohol.

As police officers, you see it every single day. People who have been drinking make poor decisions. I’m just going to go ahead and say the obvious – Police Officers who have been drinking make poor decisions too. You may be able to get some professional courtesy on a regular traffic stop (and you might not – some officers are real nervous with a BWC and an ICC recording their every word and move), but if you are involved in an accident, the officer may not have any choice but to take action. A close relative of mine was stopped by an officer who used to be one of my subordinates. We did not have a contentious relationship and I helped him out quite a bit. I was surprised to learn that particular officer had arrested someone he knew to be a close relative of mine when he could have just as easily given him a ride home. My relative had not been involved in an accident or anything like that, it was a simple traffic stop. The point is that today’s political atmosphere makes it less likely that officers exercise any type of discretion.

It’s not just driving either. Alcohol can make it seem like a good idea to start an argument with the guy sitting on the barstool next to his. Alcohol can make it seem like a good idea to start a fight with an ex-husband. Did you know it is legal for an officer to carry a concealed firearm in an alcoholic beverage outlet? La. R.S. 14:95.5 allows it, as does the federal laws known as LEOSA. If, however, you think it is a good idea to carry a concealed weapon in a barroom, I would have to ask you if you are drinking while reading this. Just don’t do it. Just FYI, you are not covered by LEOSA if you are intoxicated. Also, for the New Orleans Police Department, Rule 3, Professional Conduct, Paragraph 9, Use of Alcohol/Drugs Off Duty, says that commissioned personnel are forbidden from carrying firearms in an ABO, while consuming alcohol, or while intoxicated. Part of that rule may still violate LEOSA, but La. R.S. 14:95.5 allows the Superintendent to make it a violation of Department rules to carry a firearm in an ABO.

Sex is the next source of off-duty disciplinary action. It is not a good idea to hook up with people you meet on calls for service. It does not matter if they are the complainant or the subject of the complaint.

If you come across someone who looks like they could use a ride home, make sure it is to their home and not yours. Make sure the dispatcher knows about it and that all of the transport mileages are recorded. Finally, make sure all of the recording devices you carry around these days are activated.

There are also police officers involved in abusive relationships. Now, I understand this is not as simple as just saying “don’t do it.” I would, however, like to encourage any officer involved in an abusive relationship to seek help. At the New Orleans Police Department, Cecile Tebo is available at no cost through the Office Assistance Program to help however she can. No matter where you are or what department you work for, there is help available somewhere. Take advantage of that help before you lose your job over it.

The standard, as is always the case, is that the alleged infraction must bear a real and substantial relationship to the efficient operation of the public service. The Courts in Louisiana have applied that rule fairly liberally. That means that if your Department believes there is a real and substantial relationship between the alleged dereliction and the efficient operation of the public service, the Courts are likely to go along with that.

As we are recently reminded by the Louisiana Supreme Court, neither the Commission nor a reviewing court should “second-guess” an appointing authority’s decisions. See Lange v. Orleans Levee District, 10–0140, p. 17 (La.11/30/10), 56 So.3d 925, 936. The Commission and a reviewing court may intervene only when the appointing authority’s decisions are arbitrary and capricious or characterized by an abuse of discretion. Id. Moreover, neither the Commission nor the reviewing court may serve as a de facto pardon board. Id. “[S]ympathy is not a legal standard.” Id.

Chinh Nguyen v. Dep’t of Police, 2011-0570 (La. App. 4 Cir. 8/31/11), 72 So. 3d 939, 944.
I hope everyone has had an enjoyable Holiday Season and that none of this advice is necessary. If it becomes necessary, call me.

VERY IMPORTANT – 1st Amendment Update

UPDATE (8/1/19) – I started off with warnings not to share your political ideas on Facebook or the like. My recommendation has changed. Do not post anything on Facebook, Twitter, or the like. There are no privacy settings that will protect you. Sometimes it takes it hitting home to really make the message clear. 2 Gretna Police Department officers fired for one Facebook post. However, these days, hitting home does not mean it only hits home. The story of the 2 Gretna officers fired for Facebook posts can also be found in the New York Times. One of the Gretna officers wrote a post. The other officer merely clicked “Like” on the post. Play around with the search bar on Facebook. It is much more powerful than you might imagine. Search Google for tips and tricks for the Facebook search bar.

Just don’t do it. If you want to share pictures of your newborn child with your relatives spread across the country, go ahead – use Facebook – you can’t beat it. However, if you have a joke, a meme, or anything like that, keep it to yourself. When is the last time you tried to convey humor or sarcasm in a text message and it failed completely? It is very difficult to convey emotion or feeling. The same is true with Facebook. To make matters worse, there are those who don’t understand that articles in The Onion are satire, or what satire is. There are people who really believe that the United States Postal Service would create a  commercial to brag about the number of fingers shipped by kidnappers. They are quite comical. You will find at least some of them amazing and amusing. However, what you wrote as a police officer can and will get you fired. Hitting a “Like” button is reported in the New York Times.

We post the FOP newsletter in the Crescent City Lodge Facebook Group. Anything wrong with reading that there? No. You probably cannot post in the Crescent City Lodge Facebook Group at all — well, not without approval. Why? It is for your own protection. There is no such thing as privacy on the Internet and nothing goes away. There are some things that are completely beyond your control. This is not one of those things. Educate yourself and protect yourself – click here.

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Do you want to be in the movies?

I received an email from Central Casting Louisiana. The test of the email is below. Anyone who is interested (and available) can email Hunt@CentralCasting.com.

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2017 in Review

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

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

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

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

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

2017

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

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

In addition, I assisted FOP members with:

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

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

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

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

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