Signs of a DI-1

20121202-133353.jpgGenerally, officers are not notified by the NOPD that there is an active internal investigation.  Most of the time, officers find out that they are involved in an internal investigation when they receive a letter from Civil Service about an extension hearing or they receive a Notice to Render Statement.

The Extension Hearing

The Louisiana Police Officer’s Bill of Rights (LSA 40:2531) requires that administrative investigations be completed within 60 days.  The Department has the option of requesting an extension of up to an additional 60 days from the Civil Service Commission.  NOPD investigators routinely request the extension in almost every case.  Once the investigator requests the extension Civil Service generates a letter to the officer notifying them of the upcoming hearing.

The letter from Civil Service informs the officer of the PIB Control number, the date and time of the hearing, the identity of the hearing officer, and the location of the hearing.  Receipt of this letter is often a surprise to officers.  The letter also informs the officer of the right to have counsel and that the hearing will not be continued.

If you receive one of these letters, you should contact your FOP attorney, if you have not already done so.  If you have already contacted your FOP attorney regarding the investigation, you should still contact your attorney and advise him of the upcoming hearing date.  Your FOP attorney can appear on your behalf at this hearing.

An officer is not required to appear at an extension hearing.  If the officer does not appear and does not have an attorney appear on his behalf, the extension will simply be granted.  The officer also has the option of having his FOP attorney appear on his behalf.  Of course, an officer can attend the extension hearing, if he is so inclined.

What happens at an extension hearing?  The only issue under consideration at an extension hearing is whether or not the investigator has shown “good cause” for the extension.  The facts of the investigation or the propriety of the officer’s actions are not an issue under consideration at an extension hearing.  Generally, the investigator is the only person who testifies.  The officer or his attorney can ask some limited questions relative to the need for the extension or make a statement with regard to the need for an extension.  Again, any questions or statements are relative to the need for an extension.  It would not be relevant to ask the investigator about the statement he took from the complainant or a witness.

Once the investigator has testified, the hearing officer makes a recommendation to the Civil Service Commission as to whether or not the extension should be granted.  The officer usually receives another letter in the mail form Civil Service which informs the officer that the hearing officer’s recommendation is to be presented to the Civil Service Commission for ratification at their next regular meeting.  Generally, there is no testimony at this meeting relative to extension requests  The Civil Service Commission merely considers the recommendation of the hearing officer and then ratifies it as its own.  Again, an officer who receives such a letter should notify their FOP attorney so that the attorney can appear on his behalf.

The Notice to Render Statement

Sometimes, an officer learns of an open DI-1 when they receive a Notice to Render Statement from the investigator.  Sometimes this form is delivered by email or through the officer’s admin officer.

The Notice to Render Statement form contains several important pieces of information.  At the top of the document, the form lists the investigator’s identity as well as the charges being investigated.  The form constitutes a written order to appear at a specific location on a specific date at a specific time to render a statement.  The location, date, and time can also be found on this form.

If you receive one of these forms, you should contact your FOP attorney if you have not already done so.  If possible, you should forward a copy of the Notice to Render Statement form to your FOP attorney.  By law, you have up to 30 days to secure representation.  However, it is important to make contact with your FOP attorney as quickly as possible.  What you do not want is for the date to render a statement to come and go without making contact with the investigator.  If the statement date is inconvenient for one reason or another (AWP, furlough, etc.), it is usually possible to reschedule.

Your FOP attorney will discuss the actual statement with you in greater detail with your specific case in mind.  The form also lists numerous other things that you can be ordered to do.  For example, you can be ordered to take a CVSA, take a urinalysis, or stand up in a physical lineup.  These things rarely happen.  99 times out of 100, all you would be required to do is render a verbal statement.

You can contact me directly at 504-905-8280 or DAL@LIVLAW.COM.

The link to this article is http://wp.me/p2fTzd-aU.  Feel free to share it with your fellow employees.

Open Carry in Louisiana

English: The Bill of Rights, the first ten ame...

The Bill of Rights, the first ten amendments to the United States Constitution  (Photo credit: Wikipedia)

Recently, I was told about an officer that ran across a citizen carrying a firearm openly.  The officer took what he felt was the appropriate action to address the situation.  In light of the current political climate regarding guns, gun control, the 2nd Amendment, etc., a couple of people indicated they would like to see some further information on the topic of open carrying.  This topic is much simpler than it may seem.

The law that allows open carry in Louisiana is Article 1 Section 11 of the Louisiana Constitution and the 2nd Amendment to the U.S. Constitution.

Article 1 Section 11 of the Louisiana Constitution was recently amended to state “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.” La. Const. art. I, § 11.The 2nd Amendment to the United States Constitution states “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  U.S. Const. amend. II

Without getting too heavy into some type of constitutional analysis, the Supreme Court says that American citizens have the right to keep and bear arms.  “Keep arms” means “have weapons” and “bear arms” means “wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.”  Dist. of Columbia v. Heller, 554 U.S. 570, 584, 128 S. Ct. 2783, 2793, 171 L. Ed. 2d 637 (2008).  See also McDonald v. City of Chicago, Ill., 2010, 130 S.Ct. 3020, 177 L.Ed.2d 894.

It is allowable to ban the possession under certain circumstances.  LSA 14:95.1 bans convicted felons from possessing a firearm or carrying a concealed weapon (see State v. Clement, Sup.1979, 368 So.2d 1037).  It is likewise allowable to ban carrying a firearm at a school, a school-sponsored function, or a firearm-free zone (see LSA 14:95.2).

However, attempts to prohibit any form of open carry have been overturned as unconstitutional in Georgia and Tennessee.
In this regard, what is legal is defined by what is specifically illegal.  In general, if one is not in violation of LSA 14:95, et seq., one will be protected by the Louisiana Constitution and the U.S. Constitution.
The Louisiana Supreme Court has held that the state can regulate how weapons are

Louisiana Supreme Court

Louisiana Supreme Court (Photo credit: Wikipedia)

carried as discussed above:

The statute against carrying concealed weapons does not contravene the second article of the amendments of the Constitution of the United States. The arms there spoken of are such as are borne by a people in war, or at least carried openly. The article explains itself. It is in these words: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” This was never intended to prevent the individual States from adopting such measures of police as might be necessary, in order to protect the orderly and well disposed citizens from the treacherous use of weapons not even designed for any purpose of public defence, and used most frequently by evil-disposed men who seek an advantage over their antagonists, in the disturbances and breaches of the peace which they are prone to provoke. There is, therefore, nothing in the Constitution of the United States which requires of us a rigorous construction of the statute in question.  State v. Smith, 11 La. Ann. 633 (1856).

The Louisiana Supreme Court also addressed what constitutes concealment.  Basically, if part of the weapon is concealed and part visible, then it is concealed.  If you strap a rifle to your back or holster a weapon on your hip, it is not concealed.

The constitutional right is to bear arms openly, so that when one meets an armed man there can be no mistake about the fact that he is armed. When we see a man with musket to shoulder, or carbine slung on back, or pistol belted to his side, or such like, he is bearing arms in the constitutional sense. Of course there are other examples. These are but illustrations. There is no danger of any jury or court misinterpeting our statute prohibiting carrying concealed weapons, and confounding a case of lawful arms-bearing with one of carrying dangerous weapons concealed, unless verbal distinctions are pressed too far and they are misled by them. A pistol half stuck in a pocket or about the clothes so that it is not fully exposed, even though a part of it may be visible, is carrying a concealed weapon within the meaning and intent of the statute, and that is the language of the charge.  State v. Bias, 37 La. Ann. 259, 260 (1885).

A law enforcement officer who encounters someone who is openly carrying a firearm is going to conduct an analysis as indicated in
T

erry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968),

unless the officer already has probable cause to arrest.  Of course a law enforcement officer is free to speak with whoever he or she choose.  However, that person is also free to not speak back or answer questions.  Once the individual is no longer free to leave, a law enforcement officer would need articulable probable cause to arrest.

I think it is also important to note that one is not guilty of trespass (LSA 14:63) as long as you have express, legal, or implied authority to enter or remain on the property.  A business, by the very nature of being open, impliedly invites people in.  However, that authorization can be revoked at which time it could be a violation of LSA 14:63 to remain.  In the context of this discussion, if an individual was lawfully carrying a firearm openly, it would be legal to walk into the local grocery (as long as it didn’t violate some other law like being too close to a school or in a firearm-free zone).  However, if the store rescinds whatever authorization that person had to enter the store, then it could be a violation of LSA 14:63 to remain on the property (or return later).

The Louisiana Open Carry Awareness League provides these guidelines regarding open carry in Louisiana.  While this is obviously a special interest group, the FAQ’s appear to be decent explanations of the law.

If anyone has anything they would like to add to this discussion, please feel free to comment or let me know directly.  This is in no way meant to be a political statement on my part.  It is simply a recitation of the law as I understand it to be currently and is intended for those tasked with enforcing the law.

NOPD Promotions

Before city employees had Civil Service, public employment was dolled out as part of the spoils system.  Politicians often made wholesale changes to the public payrolls when they were elected based solely on the political connections or affiliation of the appointee.  In 1940, following Huey Long and a brief stint by Earl Long as governor of Louisiana, New Orleans attorney Charlie Dunbar proposed a merit based system of employment for public servants.  This effectively eliminated the spoils system and was repealed in 1948 during Earl Long’s second of three appearances in the governor’s mansion.  In 1953, the Civil Service system was made part of the Louisiana Constitution and was continued in the 1974 revision to the Louisiana Constitution.

There have been several relatively recent modifications to the State of Louisiana Civil Service system under the guise of “reform.”  Whether these reforms will be successful remains to be seen.  Here in New Orleans, the current administration has been planning “reforms” of their own.  The New Orleans reforms look much more like an effort to repeal Civil Service than to make it better.  If the current “reform” package is implemented, we will soon see a return to the spoils system of Huey Long.

At this point in time, no rules changes have been presented to the Civil Service Commission and these “reforms” exist only in the form of the administration’s wish list.  Without changes to the Civil Service Rules (which have the force and effect of law), the administration may be planning the old end-around.

The New Orleans Police Department currently has one active promotional register for the position of Police Lieutenant.  This list has been extended for the final time and will die in May, 2013.  Once this promotional list dies, that will leave the New Orleans Police Department with no active promotional registers.  How do we know that?  Because the Civil Service Department requested $140,000 in its budget to conduct promotional testing in 2013.  We  also know that the funding for promotional testing was denied.  If the budget is approved in its current form, the Civil Service Department will not have any money available to conduct testing for Police Sergeant of Police Lieutenant.

Well, what happens if there is promotional register but there are open positions?  The administration can request permission to make provisional appointments.  Rule VI, Section 5.3(a) allows the provisional appointments.  They are supposed to be limited to a duration of 1 year.  However, recently the New Orleans Fire Department had provisional District Chiefs in place for more than 10 years.  They finally got a promotional register and had to fight with the administration to be able to promote firefighters into permanent positions.

As a practical matter, provisional appointments are troubling for a number of reasons.  As noted above they can last much longer than the 1 year anticipated by the Civil Service rule.  It can also be much shorter.  A provisional employee has no Civil Service protection at that rank.

A provisional Sergeant could be anyone.  The idea of merit for a provisional appointment is solely in the eyes of the Appointing Authority.  But let’s imagine that the Appointing Authority selects the most qualified person available.  Let’s further imagine that provisional Sergeant is faced with an ethical dilemma and despite political pressure that provisional Sergeant chooses to “do the right thing.”  Let’s also imagine the possibility that there is another Sergeant who thinks he can be a provisional Lieutenant or a permanent Lieutenant who thinks he could be a provisional Captain (Major, Commander, or whatever the flavor of the day is) and would benefit from that provisional Sergeant’s demise.  What if that ethical dilemma resulted in adverse media coverage despite doing the right thing.  The provisional employee has no recourse and can be demoted as quickly as promoted.  The only appeal available to the provisional appointee is in the case of discrimination.

What if a permanent Police Officer is made a provisional Sergeant, then a provisional Lieutenant, then a Commander?  Do we really need Commanders who have never had to take a single promotional exam?  Everyone will be screaming for the return of the merit system if that happens.

The Civil Service rule regarding provisional appointments exists to allow for the possibility that a department would need to make promotions quickly while they arrange for promotional testing.  That is why there is a 1 year limit on provisional appointments.  The department makes the provisional appointment to fill the immediate need, but in the meantime they are preparing for promotional testing so that a list of eligibles can be developed and permanent appointments can be made from that list.  However, the Civil Service Department was denied funding for new promotional testing in 2013.

The NOPD has already tried to kill the current Lieutenant’s Register.  In May, they will be successful.

The “reforms” being prepared by the administration create a system where promotions can be made with great discretion afforded to the Appointing Authority.  In addition, people can be demoted with great discretion afforded to the Appointing Authority.  The administration has been trying to sell civil servants on the idea of these reforms.  The “survey” conducted in 2012 by the administration was designed to show civil servants that civil servants want the changes proposed by the administration.  It is difficult to sell a system that was designed to promote merit and promise a return to the spoils system.

How does the administration circumvent the Civil Service Rules so they can implement a new spoils system?  The answer is provisional appointments.  The use of provisional appointments allows the Appointing Authority to make promotions with only the approval of the Civil Service Director.  If the administration refuses to fund promotional testing, it is not difficult to imagine circumstances where the Civil Service Director would have no choice but to allow provisional appointment even though to do so is adverse to the merit based Civil Service System.  We have dedicated Civil Service Director and Staff.  However, if the administration continues to cut their budget, which they have done consistently for the last several years, they will eventually create an emergency system which warrants provisional appointments (or the implementation of the administration’s reforms since they have funded a Human Relations Department).

All Civil Service employees should be wary of these reforms.  These are not tweaks designed to improve the efficiency of the system while maintaining the merit-based Civil Service system.  Don’t be an accomplice to circumventing the Civil Service Rules in the name of reform.  Police employees should be wary of accepting provisional appointments. You could be a provisional sergeant one day and a patrolman the next, working hand in hand with the officers you just had to write up.  Our current system may not be perfect.  It could probably use some updating and efficiency engineering.  However, it is preferable to having to suck up to the ward boss so Baby Huey doesn’t kick you out of the door.

**LEGISLATIVE ALERT**

The Louisiana Legislature is set to convene on March 12, 2012. One piece of legislation of particular interest is HB 685, authored by Representative Helena Moreno, which is an attack on the Louisiana Police Officer’s Bill of Rights.

HB 685 would change the provisions of the Police Officer’s Bill of Rights.  In particular, the legislation would change paragraph b(7) which governs the time limits for administrative investigations only for the New Orleans Police Department.

Currently, La. R.S. 40:2531(b)(7) requires that administrative investigations be completed within 60 days.  The appointing authority can request an additional 60 days, for a total of 120 days to complete an administrative investigation.  These time limits do not effect criminal investigations.

The proposed law would change the 60 days allowed to complete the investigation to 120 days and still give the department the option to request an additional 60 days for a total of 180 days.  Again, this legislation specifically states that the change would only be applicable to the New Orleans Police Department.

Those people in other parts of Louisiana should not get too comfortable.  If history tells us anything, this legislation will be implemented state-wide next year if it is passed for New Orleans this year.

STAND UP FOR YOUR RIGHTS!

I urge all of you to contact your elected officials and tell them that you oppose HB 685.

If you don’t know who your elected officials are, click here.

For information on members of the Louisiana House of Representatives, click here.

For information on members of the Louisiana Senate, click here.

I would like to encourage everyone to contact Representative Moreno and let her know that you are opposed to this legislation in addition to contacting your elected officials.  You can click here for Representative Moreno’s information.  Please remember that Representative Moreno came to the Fraternal Order of Police during the election looking for support from our members and pledging to assist us in Baton Rouge.