The following went out via NOPDALL on April 6, 2021:
Subject: NOPD Short Forms
Members of the Department,
IAPro is now able to generate NOPD Short Forms. Attached is a “Request for Public Integrity Bureau Short Form” (NOPD Form 355), please complete the form in its entirety and send a scanned copy to email@example.com. The request will be completed within 48 hours after receiving the emailed request (excluding weekends and holidays).
*Any incomplete forms will delay the request.
Feel free to contact me with any question or concern.
I recommend checking you short form periodically to make sure you are aware of what it says and to make sure it is accurate. You certainly need to check your short form if you are considering leaving NOPD. The last thing you need is to inadvertently leave while “under investigation.” It happens more often than you imagine.
Call me if you have any questions about this or if you have any questions about your short form – sometimes they aren’t the easiest to interpret.
Legislators on the State and Federal levels clearly have qualified immunity in their crosshairs. Click here for info on Federal legislation from National FOP President Pat Yoes. There are other things the reformers are gunning for, but weakening qualified immunity for law enforcement officers seems to be a major goal. It is important to recognize that the “reforms” to qualified immunity will still apply to all other public officers as it has always been. In other words, the Legislators proposing and voting on this legislation will still be able to benefit from from qualified immunity, as will all other public officers exercising the discretionary functions of their office.
I would like to start by saying that Legislators are gunning for the wrong thing. Qualified immunity only relates to civil lawsuits alleging Constitutional violations. Qualified immunity does not apply to criminal matters.
In Louisiana, lawmakers have proposed that qualified immunity would not be available to law enforcement officers for any wrongful death or injury resulting from a use of force. In those cases, the trier of fact would have to decide if the use of force leading to the lawsuit was unreasonable. If the judge decides it is unreasonable, then the lawsuit would be allowed to continue.
Contrast that with the current way qualified immunity is applied. There is a two-prong test to determine if a public officer is entitled to qualified immunity: 1) Did the public officer’s actions actually constitute a violation of the plaintiff’s Constitutional rights? 2) Was the public officer on notice that his actions constituted a violation of someone’s Constitutional rights? If the answer to both of those questions is yes, then qualified immunity does not apply. If the answer to either of those questions is no, then the lawsuit will be dismissed as to that public officer.
From the standpoint of law enforcement officers, the current application of qualified immunity serves to protect them from civil lawsuits in a profession that is dangerous and often leads to tense, rapidly evolving circumstances where the lives of law enforcement officers and civilians are in danger. A Tulane University Police Officer and Deputy Constable, Martinus Mitchum, was killed on February 26. 2021 when he intervened in a dispute over wearing a mask at a basketball game. Let that sink in. The shooter wanted to be allowed in the gym during a basketball game and was refused entry because he was not wearing a mask. When the interaction became contentious, Officer Mitchum stepped in to de-escalate the situation. In spite of Officer Mitchum’s efforts, the individual was so interested in not wearing a mask at the basketball game that he pulled a gun and shot and killed Officer Mitchum. It is a dangerous profession.
Other reform legislation includes bans in choke holds, bans on no-knock warrant service, and restrictions on the time of day warrants can be served. I don’t object to those efforts except to say that when someone’s life is in legitimate peril, all options should be on the table. Actually, this legislative efforts are much more reasonable than attacks on qualified immunity.
With regard to qualified immunity, I will point out that I am unaware of any insurance product that would provide liability insurance for law enforcement officers. Elimination of qualified immunity, even under restricted circumstances, would expose law enforcement officers to the same type of civil exposure that doctors are exposed to. As we all know, one reason we pay so much to see the doctor is because the doctor has to pay expensive insurance premiums. The problem is that I am unaware of any insurance product available to law enforcement officers and law enforcement salaries have historically been low.
Without qualified immunity, I think I would have to question the sanity of anyone choosing to work in law enforcement – at least a law enforcement agency without qualified immunity. In his monthly podcast, noted public safety attorney Will Aitchison said that taking a law enforcement job without qualified immunity should be the equivalent of failing the psych exam.
Legislators should be focusing on banning chokeholds. NOPD has banned chokeholds for years and it has had a good result. Changing qualified immunity will have unforeseen consequences that will damage law enforcement forever. Law enforcement officers are not the 1%. Law enforcement officers are blue collar workers who live next door to you. Their kids go to school with your kids. They are much more likely to be able to relate with you than with the 1%. In addition, law enforcement officers are not the ones setting policy within police departments. Those policies are being set and implemented by elected officials and people appointed by those elected officials. When the Dept. of Justice sought to implement a consent decree in New Orleans, the consent decree did not contain mandates for each individual police officer. The consent decree contains mandates for the administration. That is because the administration is responsible for how law enforcement officers perform their jobs.
I am not sure changing qualified immunity for law enforcement officers only will be Constitutional. We are entitled to equal treatment under the law. One way or another, legislators need to keep their eye on the ball and prop up law enforcement so that the profession can best serve their respective communities. Legislators should NOT be taking actions that will forever damage law enforcement as a profession.
All law enforcement officers and those individuals supporting law enforcement should contact their elected officials and let them know that you do not support elimination of qualified immunity for law enforcement officers in any way. Emails, letters, and/or phone calls can be used to serve that purpose. Don’t be shy. This is extremely important.
On Monday, November 16, 2020 at 11:30 a.m., the New Orleans Civil Service Commission will hold its monthly meeting. Because of COVID-19 and the associated restrictions, the meeting will be held on Zoom and by teleconference for those who do not have access to a computer.
As I mentioned at the latest Fraternal Order of Police meeting, it would be helpful to have as many comment cards submitted as possible. To be safe, I would recommend emailing the comment card by the end of November 15, 2020.
To join the meeting from PC, Mac, Linux, iOS, or Android, click here.
To join the meeting by telephone, call 1-213-787-0529 and enter conference code 888712.
Mayor LaToya Cantrell has announced that every city employee is required to take one unpaid leave day for the last 6 pay periods of 2020. Mayor Cantrell has also announced her intention to require every city employee, including public safety agencies such as NOPD and NOFD to take one unpaid leave day for each of the 26 pay periods in 2021.
New Orleans Civil Service Rule XII, Sec. 9.1(b) requires that the Mayor get authorization from the New Orleans Civil Service Commission in order to make employees take more than 12 unpaid leave days in any consecutive 12 month period. Approval by the Civil Service Commission requires the Mayor to demonstrate extraordinary circumstances.
The Civil Service Commission will take comments from those interested in commenting. I have drafted three general comment cards. If you choose to use one of my comment cards, you will still be required to fill in the blanks on page 1. I have filled in the blanks that are common for everyone, but you have to put your own name on it.
Once you have decided on one of the pre-written comment cards or have completed a comment card yourself, you need to email it to CSNO@NOLA.GOV. If you do not email the comment card in, it will not be read.
By now, everyone is aware that there will be mandatory furloughs of personnel through the end of the year. There are 6 pay cycles starting on October 11 and ending on January 2, 2020. Everyone will be required take one unpaid furlough day in addition to your regular AWP days per 2-week pay cycle. There should be no need to take any more than 6 unpaid furlough days before the end of the year.
I was asked if officers were forbidden from scheduling their furlough day to coincide with AWP days or annual leave days. I was told there is no Department regulation or directive that would not allow taking annual the day before and the day after your scheduled furlough day. If you are AWP on Wednesday and Thursday, nothing prevents your furlough day from being Friday or Tuesday.
However, it is possible that your commander could implement a district directive to that effect. Or maybe your supervisors can’t make the schedule work like that, but it isn’t because of some department-wide directive.
There have been rumors about pay cuts, forced retirements, and all kinds of other unpleasant personnel actions. I am sure that all of those things are on the table. There are somethings the City can’t control. For example, your pension is a state pension. So, that money cannot be used elsewhere. That being said, your pension is the only benefit that will be impacted adversely by the furlough days. By the end of the year, you will be 6 days behind. Otherwise, your benefits will not be affected.
There was a special meeting of the New Orleans Civil Service Commission today (10/8/20). The only item on the agenda was the City’s request to waive the time delays found in Rule XII, Section 9. It does not impact the actual furlough of employees, just how quickly they can implement the furloughs. To the surprise of absolutely nobody, the Commission voted to give the City Administration the waivers they were asking for.
I, on behalf of the FOP, have been working with Aaron Mischler of the New Orleans Firefighter’s Union to find a solution to the mandatory furloughs. Right now, this is looking like a promising exercise. However, there are no guarantees and it isn’t done until its done.
The FOP is working hard on your behalf and we will not stop. There are no guarantees, except that the FOP will be working hard on your behalf.
On August 18, 2020, N.O.P.D. Sergeant Kevin Seuzeneau sent an NOPDALL email reminding everyone about N.O.P.D. Rule 2, Moral Conduct, Paragraph 1, Adherence to Law. Why would he do that? Doesn’t everyone already know that police officers have to comply with the law? Sure we do.
Sgt. Seuzeneau also reminds everyone that there will be a department-wide inspection coming soon. He follows that up with some municipal traffic ordinances police officers in New Orleans are also familiar with. There are probably plenty of officers who have never experienced a department-wide inspection while employed by NOPD, but this is a good time to prepare.
Sgt. Seuzeneau included the municipal ordinances on driver’s licenses, vehicle registration, license plates, etc. These ordinances are included because these are the things they will be checking. You will likely be asked to produce your driver’s license. They will also check to make sure those licenses are valid. Is your driver’s license suspended because of a dispute with the State of Louisiana over taxes? That is a sustained violation. No license on person? Sustained.
They will also check the cars out in the parking lot. The cars should have license plates affixed to the rear number – not on the rear deck. The registration should be readily available. The brake tag should be valid and there should be valid insurance.
All of these potentially sustained violations are avoidable. Take Sgt. Seuzeneau’s advice and use his email as a checklist. It is not worth the hassle of being sustained for R2P1. If it happens, feel free to call me.
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:
Your 1st Amendment rights are limited. You are not going to win by relying on your 1st Amendment rights.
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.
Nothing you post is private. While you should check your privacy settings, anything can be forwarded or screen-shotted.
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.
Confine posts to purely positive posts — posts that don’t have anything to do with the current law enforcement environment.
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.
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.
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.
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?
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.
Listen to my discussion with Tommy Tucker on WWL radio this morning regarding the Emergency Rate of Pay:
Listen to Aaron MIschler’s discussion with Tommy Tucker on WWL radio this morning regarding the Emergency Rate of Pay. Aaron Mischler is President of IAFF Local 632 – the Firefighter’s Union. Aaron has been a good partner in seeking the Emergency Rate of Pay.
On May 26 the Civil Service Commission met to consider my request on behalf of the Fraternal Order of Police that NOPD officers be paid the Emergency Rate of Pay. On March 25 and April 13, I submitted correspondence to the Civil Service Department and the Civil Service Commission regarding the application of New Orleans Civil Service Rule IV, Section 11.1. You can review the arguments here and here. The issue was initially scheduled to come before the Civil Service Commission at a meeting on May 18. That meeting was rescheduled to May 26.
First, I want to thank everyone who submitted a comment form. All of the comment forms were read into the record during the meeting. The Civil Service Staff read more than 20 comment forms, all in favor of granting the emergency pay.
The meeting was conducted using Zoom. At the Zoom meeting, I was allowed to make comments. You can see my comments here. Once I read my comments into the record, Assistant City Attorney William Goforth made comments on behalf of the City. Basically, the City’s position was that the Mayor did not request that only essential employees report to work as required by Civil Service Rule IV, Sec. 11.1. Mr. Goforth’s argument was that the city was still open for business and that employees working at home — there were essential and non-essential employees who had to report to work. Therefore, Rule 4, Art. 11.1 did not apply. Essentially, their argument was that since there were employees working from home it was not just essential employees reporting to work.
My response to that was that the definition of essential employees was a fluid one based on what was actually happening. There were some employees who were required to work and some employees who were not required to work and paid their salary with civil leave. The only question in my mind is whether those employees working at home were essential employees or not. I think they are not. I think that reporting to work means that an employee reports to a specific location at a specific time. I do not think that includes the employee’s home. However, if the City thinks those people are essential employees, it just increases the number of people eligible for the emergency rate of pay.
The Civil Service Commission voted to deny the request for the emergency rate of pay. It is disappointing that they voted that way. After they voted, I requested that the Commission make note of my intent to seek a writ on behalf of the Fraternal Order of Police. My intention is to take the issue to the 4th Circuit Court of Appeal once I have received a written decision from the Commission.
The argument against paying the emergency rate of pay is that there have been non-essential employees working during the state of emergency. This is splitting hairs.
One group of employees was told to report to work as usual. The second group of employees was told they could go home. Some of those employees were allowed to work from home and some were carried civil leave. The March 22 CAO Circular Memo on Limited Operations laid out what employees should do effective March 23.
No matter what you call the two groups of employees, one is reporting to work and one is not. Each time the Emergency Rate of Pay has been effective, that has been the case. In my mind, the only question is whether or not the working-at-home group of employees are part of the essential group or the non-essential group. I believe “report to work” entails physically reporting to work. Employees get an Emergency Rate of Pay because they are exposed to the dangers associated with the state of emergency. Finally, we know that police officers were exposed to the risks created by the coronavirus.