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.
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.
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.
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.
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.
At the beginning of the year, I like to review and compare the prior year’s activity with other years. In addition, since there have been so many new hires at NOPD, it always helps to give some context to the system that most officers don’t come into contact with often enough to be familiar with.
The FOP continues to provide the best legal assistance for law enforcement officers through its Legal Defense Plan. The Legal Defense Plan offers its members legal representation for any administrative disciplinary proceeding, civil defense resulting from on-the-job actions, and criminal allegations. There is no judgment involved. If a member requests legal services, they get it.
There is no situation which is too big or too small. The Legal Plan is set up to be able to handle situations that garner national attention. At the same time, we recognize how much law enforcement officers value their service record and we treat the most minor of circumstances with the same attention.
It is most beneficial to everyone when an officer who finds themselves involved in any way in one of the covered types of events contacts us as early as possible. I got a call from someone recently who had resigned under pressure to do so and felt like it shouldn’t have gone that way. I can’t argue with that – I don’t think anyone should be pressured into resigning without at least having the opportunity to meet with counsel. However, this person didn’t call until after he had resigned. As much as I would have loved to be able to help, the act of resigning eliminates almost every avenue of redress. So, call early and stay in touch.
My brother-in-Law, Corey Lloyd, was admitted to the Louisiana Bar in 2017. He had been helping me with Civil Service appeals while he was in law school. Since he is now a certified member of the Bar, he is now available to assist in situations which call for more than one attorney or when calendar conflicts prevent me from being somewhere. It is always nice to have another attorney committed to helping FOP members. He has also been helping FOP members with Family Law issues. The FOP offers a $400 (4 hrs at $100/hr) benefit per year to each member for Family Law issues.
In 2017, I represented 410 individual officers in one capacity of another. That is up a little from 2016’s 398 officers. For those 410 officers, I appeared with FOP members at:
In addition, I assisted FOP members with:
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.
The Thanksgiving season is upon us which leads to the biggest giving season of the year, Christmas. The FOP hopes that you will consider contributing to the FOP Family Fund.
The New Orleans FOP Family Fund is a function of the Louisiana FOP Foundation, a 501(c)(3) charitable foundation. The FOP Family Fund is mainly funded by donations made by active and retired NOPD employees through payroll/pension deduction. The FOP Family Fund also accepts donations from private citizens and businesses wishing to support law enforcement.
WHAT THE FOP FAMILY FUND DOES
The FOP Family Fund assists police officers who are facing severe financial difficulty because of an on-the-job injury or personal tragedy.
It is an unfortunate reality of police work that officers get injured on a regular basis. Injuries occur when officers are in car crashes, when perpetrators resist arrest, or a myriad of other ways. When these work-related injuries result in officers being out of work, their income becomes suddenly dependent on workers compensation law. Workers compensation law entitles an officer to 2/3 of his or her salary for temporary disability benefits. The maximum amount changes each year in September. For the period of September, 2017 through September, 2018, the maximum benefit is $653/wk. That represents approximately 5 hours of an officer’s 8 hour day. The officer’s remaining salary must be made up by using sick leave, if available. Overtime and police detail income are never figured into workers’ compensation, and that portion of salary is simply lost to the officer.
In addition to helping FOP members injured in the line of duty, the FOP Family Fund makes immediate assistance available to the families of NOPD officers killed in the line of duty.
Officers are the victims of natural disasters just like everyone else, from time to time, and when that happens, the FOP Family Fund stands ready to help. As an example, the FOP Family Fund (through the National FOP Foundation) provided over $1,000,000 in financial assistance to law enforcement officers throughout the State following Hurricanes Katrina and Rita.
In August, 2016, a dangerous tornado touched down in New Orleans and there was destructive flooding in southeast Louisiana. Several of our members suffered significant losses as a result of the tornadoes and flooding. The FOP Family Fund was able to provide assistance to those members, some of whom had lost their homes.
HOW TO CONTRIBUTE
The FOP Family Fund cannot survive without donations from our members and members of the public. Officers who are interested in donating to the FOP Family Fund, even if it is just $1 per pay period, can do so by visiting the NOPD Payroll office to sign up for payroll deduction. Anyone else who would like to make a tax deductible donation to the FOP Family Fund can mail a check to the FOP Family Fund, P. O. Box 24154, New Orleans, LA 70184.
The FOP Family Fund pays no administrative fees from direct contributions. Every penny of every donation goes to assist our local law enforcement officers..
Our federal tax ID number is 20-3484575.
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.
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
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
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:
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.
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.
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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