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 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.

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

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

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

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

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

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

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

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#NOPD Disciplinary Procedures and Your #FOP Legal Defense

Recently, I had my first run in with the new NOPD disciplinary policies.  I want to repeat the advice I commonly give to FOP members:  CALL YOUR FOP ATTORNEY FOR ANY DISCIPLINARY INVESTIGATION WHETHER A WITNESS OR ACCUSED.

On May 15, 2016, several new “chapters” were placed in effect by NOPD.  The new policies caused changes to both the disciplinary procedure and the penalty matrix.  See my prior article about the changes here.

The new penalty matrix assigns a letter, A-G, to each of the rules —  A offenses are the least severe and G offenses are the most severe.  Professionalism (R.3P.1) is an A offense – Letter of Reprimand territory.  Honesty and Truthfhlness (R2.P.3) is a G offense – mandatory dismissal.

There are a couple of confusing points to make note of right off the bat.

Rule 4, Paragraph 2, Instructions from an Authoritative Source, was always the go-to rule for any violation of an NOPD policy.   Many people were unaware that Rule 4, Paragraph 4(c)(6) is also Instructions from an Authoritative Source.  One had a penalty range of Letter of Reprimand to 3-day suspension and one had a penalty range of Letter of Reprimand to 5-day suspension.  To make things as confusing as possible, several things have happened with Instructions from an Authoritative Source.

First, in the previous iteration of the penalty matrix, R.4P.4(b) was Supervisory Responsibility and R.4P.4(c) was Enumerated Offenses.  For some unknown reason, the new policy switched paragraphs b and c.  So, now R.4P.4(b) is Enumerated Offenses and R.4P.4(c) is Supervisory Responsibility.

Further, R.4P.2, Instructions from an Authoritative Source is now a “C” offense on the penalty matrix (2-10 days).  R.4P.4(b)(6) Instructions from an Authoritative Source is now a “B” offense (Letter of Reprimand-2 days).  The thought process is that the R.4P.2 Instructions is more akin to intentional insubordination as opposed to R.4P.4(b)(6) Instructions which is a negligent or unintentional violation of a rule or policy.  Of course, as mentioned above, it is going to take some time to settle into the new interpretation of these rules.

Confusing?  That is why no officer should be without the representation provided by their FOP attorney.  Pick up the phone and call, no matter how minor the case appears to be.

2015 #FOP #Legal Year in Review

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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NOPD Disciplinary Investigations Update (Updated)

As most officers are aware, the NOPD has interpreted the consent decree as requiring they investigate absolutely every allegation, no matter what it is.  I have seen formal disciplinary investigations of officers alleged to have “smirked,” “sighed loudly,” and “made go-golly eyes.”

Most of these investigations are receiving the appropriate disposition at the conclusion of the investigation.  However, one thing that I have noticed is that officers are being sustained for other, minor, administrative violations.

For example, one common sustained violation is for failing to complete an FIC card.  Officers should be aware that they are required to complete FIC entries on individuals they come into contact with regardless of whether that person is arrested, cited, or merely interviewed.  In the past, officers were not required to complete FIC’s for individuals who were arrested or cited.  Why complete an FIC when the information is being documented in-depth in an incident report?  The short answer is that the information, particularly arrested subjects versus not arrested subjects has to be maintained separately.  In any event, the current rule requires an FIC whether an incident report is completed or not.  Just the other day, I was involved with an investigation where an officer, who was not initially accused of anything, was sustained for failing to complete an FIC.

Next is detail forms and the detail database.  As we are all well aware, the consent decree has made a total mess of the paid detail system.  Who really knows if we are coming or going with anything regarding details?  It is a disaster.  The only upside is that hopefully this disaster will lead to pay raises (we’re working on it).  In any event, if you are working a paid detail that is not being managed by OPSE, you still need to have an NOPD Paid Detail Authorization form in for that detail.  Even if you are working an OPSE detail, you still need to call the dispatcher and get an item number, etc., when you get to the detail and you still need to enter that item number and other information into the detail self-reporting database the next time you are at work.  If there is a complaint regarding a detail, no matter what the complaint is, you can rest assured that PIB is going to check the detail authorization and the database in the course of the investigation.

Finally, I would like to point out FOB Policy 39.  FOB Policy 39 requires platoon sergeants to monitor how long calls have been holding and make call backs to complainants on any call holding more than 60 minutes.  I have seen a marked increase in the number of investigations alleging violations of FOB Policy 39.  I understand that this is a tall order when there is one sergeant, one desk officer, and two officers on the street.  However, when the complaint comes in that someone is upset they had to wait 3 or more hours for the police to arrive, you can rest assured that will be one of the first things PIB checks.  Sergeants have the option of asking the desk officer to make the call backs, but it is ultimately the responsibility of the sergeant to monitor the length of times calls are holding. That being said, I would keep an eye out for potential revisions to that policy that may require a more active part on behalf of the desk officer.  As it stands today, it is the sergeants responsibility.  Make sure that everything that is done in this regard is relayed to the dispatcher so that it is included on the complaint history for that item and is recorded on the dispatch channel.

UPDATE:  I would also like to mention MVU’s.  Just because you have those pretty body cameras does not mean that you do not have to worry about the in-car dash cams.  If you have an MVU that does not work for whatever reason, or you were never issued a USB key, please note that on your Trip Sheet every time.  It may not suffice to note it once.  When you get in a car, make sure to check the functionality of the dash cam every time.  If it is full, note it on your Trip Sheet.  If the front camera is missing, that does not mean that the cameras do not work.  Note it on your Trip Sheet.  Notify your supervisor.  Do it every day.  If the camera works, use it as described in the policy.  This is another thing that investigators routinely check in the course of a DI-1 investigation.

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Disciplinary Letters, Civil Service Appeals, and SRO #NOPD #FOP #FOPNO

The culmination of the disciplinary process within the New Orleans Police Department consists of a phone call one day, when you least expect it, instructing you to appear at the Public Integrity Bureau to sign for a disciplinary letter.  The disciplinary letter is a letter on departmental letterhead, signed by the Superintendent, which lays out the alleged cause justifying the discipline, the rules allegedly violated, and the imposition of the final discipline (suspension, letter of reprimand, etc.).

While this is the end of the line for the NOPD’s disciplinary process, it is not the end of the line for classified employees or FOP members.  You have a number of options available to you at this point.

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Sample Force Statement #FOP #FOPNO #NOPD @fopno @louisianafop

FORCE STATEMENT

I have been ordered to write this Force Statement by Sgt. FIT Team. Completion of this Force Statement is also required by NOPD Operations Manual PR300.6.1. Had I not been ordered to draft this document, I would have asserted my right to remain silent as guaranteed by the 5th Amendment of the U.S. Constitution. In addition, although I have not been advised as such, I am aware that LSA 40:2531(b)(5) makes administrative statements rendered in administrative investigations, such as this use of force investigation, inadmissible in any subsequent criminal proceedings. However, since this statement is being compelled and I would be fired for failing to comply with these orders, I am rendering the below involuntary statement with regard to the events of 01-01-2014 documented under NOPD Item # A-12345-14:

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