Current NOPD Issues: Negotiated Settlements, Education in Lieu of Discipline, and Discipline in the Consent Decree

The Crescent City Lodge of the Fraternal Order of Police represents 1,009 active New Orleans Police Department Officers, or about 90% of all current police officers in New Orleans. There are 1,022 other members of the Crescent City Lodge, including 863 retirees, 43 NOPD Reserve Officers, 12 terminated NOPD Officers, 89 other active law enforcement officers, 4 associate members, and 11 honorary members. The Crescent City Lodge offers unmatched legal representation and offers services and benefits to members that are unrivaled. It is impossible for me to keep everyone up to date on everything the FOP is working on on behalf of our members. Here are a few highlights:

  • The FOP employs a lobbyist, Joe Mapes of Mapes & Mapes, to represent our interests in Baton Rouge during the legislative session. Since this current legislative session has been in session, there have been a number of bills introduced which are adverse to law enforcement officers. We have participated in numerous discussion, telephone conferences, meetings, etc. to either eliminate these bills or minimize their impact on FOP members. We have been working closely with the Louisiana FOP and other law enforcement groups from around the state to try to get the best outcome for law enforcement officers. In particular, a recent article in one of the law enforcement blogs, the headline read that the legislature had stripped officers of due process rights. The headline is misleading, but it is misleading because the FOP fought to ensure the due process rights of law enforcement officers were protected. You may receive emails from the Louisiana FOP asking you to participate in Voter Voice. This system allows you to send emails to your elected officials on our legislative priorities.
  • The FOP is representing several officers in civil suits resulting from accidents in police cars. In addition to providing legal representation through the FOP Legal Plan, the FOP is working with the administration to change the City’s policies as they relate to take-home cars.
  • The FOP paid for the families of Officers Jude Lewis and Natasha Hunter, both killed in the line of duty, and two escort officers, to attend the National FOP Police Week functions where their names will be added to the National Law Enforcement Memorial.

NEGOTIATED SETTLEMENTS

There seems to be an increase in the NOPD’s use of negotiated settlements. From the Department’s perspective, the use of negotiated settlements gives the Department a way to deal with disciplinary investigations and their impact on manpower. The Department’s interpretation of the consent decree has created a disciplinary system which strains our already strained manpower. Negotiated Settlements allow the Department to dispose of complaints by taking action in a way that doesn’t result in hours upon hours of work by multiple employees. Click here to view the regulation on Negotiated Settlements.

How does it work?

When complaints are received by PIB, they are analyzed for classification. Criminal allegations are sent to the criminal section, some are sent to the Independent Police Monitor for mediation, and some are deemed appropriate for Negotiated Settlement. These are minor infractions that seem fairly straightforward. Once a case is deemed appropriate for Negotiated Settlement, PIB sends a packet to the officer’s commander. Once the commander receives the packet, a Presentation Meeting is scheduled. This could be the first time the officer becomes aware of the pending complaint.

At the Presentation Meeting, the commander will provide the officer with the information regarding the complaint. This should include details of the allegations, including the particular infraction(s) and the evidence, and where the violation falls on the penalty matrix should the allegation be sustained and what the penalty will be if the officer accepts the Negotiated Settlement.

At the conclusion of the Presentation Meeting, the officer has three choices. The officer can 1) accept the offered settlement and penalty; 2) request a reflection period; or 3) reject the offered settlement.

If the officer accepts the offered settlement and penalty, then that is the end of the line. The complaint is not sent out for investigation and the settlement documents are sent up the chain of command for the necessary approvals.

If the officer requests a reflection period, then the officer gets 5 days to think about whether or not to accept the settlement and penalty. At the conclusion of the 5 days, the commander and the officer have a settlement meeting where the officer informs the commander of his decision. If the officer chooses to accept the settlement, then that is the end of the line and the paperwork is sent up the chain of command. If the officer rejects the settlement, then it is sent out for investigation. The decision to accept or reject the settlement offer can be made prior to the end of the 5 days. If no decision is made within 5 days, it is sent out for investigation.

What are the considerations?

First of all, I recommend you contact your FOP attorney regarding any Negotiated Settlement. Your FOP attorney is in a position to discuss whether or not the Negotiated Settlement is a good idea. The rules and regulations, including the disciplinary regulations, are not necessarily something officers study on a regular basis. Consulting with your FOP attorney will increase your chances of making the best possible decision. Also, bringing your FOP attorney into the situation will make you eligible for the FOP’s salary reimbursement option should you end up with a suspension.

The primary reasons for accepting a Negotiated Settlement should be that the officer did, in fact, commit the alleged infraction, and the penalty will be less than the penalty should the complaint go through the normal disciplinary process. For those officers on a promotional register, Negotiated Settlements have the added benefit of resolving a complaint as quickly as possible so that a pending investigation doesn’t interfere with a promotion.

The Bottom Line

The bottom line is that it is beneficial for some, but not all. If the officer didn’t commit the alleged dereliction, then the officer might not want to take the settlement. If the investigation, should it be investigated fully and sustained, would result in a Letter if Reprimand, and the settlement offer is a Letter of Reprimand, then the officer might want to consider letting the Department investigate. However, if the pending investigation would prevent a promotion and the officer did, in fact, violate the rules as alleged, then it may very well be in the officer’s best interest to accept the settlement. Call your FOP attorney. It will make the analysis a little easier.

EDUCATION IN LIEU OF DISCIPLINE

On May 21, newly revised regulations on discipline will become effective. One of the new options available to supervisors will be the use of education in lieu of discipline. In the case of minor, rank-initiated complaints, education may be available to replace suspensions of 10 days or less. For violations that fall in the “D” class or higher, education cannot be used to eliminate discipline, but it can still be used to reduce it. In short, for A, B, and C violations, training can be used to eliminate suspensions 10 days or fewer. For D, E, F, or G violations, or suspensions greater than 10 days, training can serve to reduce the penalty. Click here to see the new regulation on Non-Disciplinary Responses to Minor Violations and the Disciplinary Penalty Matrix (includes education in lieu of discipline).

DISCIPLINE AND THE CONSENT DECREE

After many meetings and much complaining by the FOP, there are some pending changes to the consent decree, particularly paragraphs 143, 328, and 404. The changes will relieve supervisors from responding to a level 1 use of force. In addition, disciplinary investigations which can be conclusively resolved through the use of video evidence (BWC or MVU) can be disposed of without further investigation. We recognize that investigation of complaints is an extremely important aspect of modern policing. That being said, the FOP remains committed to reducing the adverse impact these investigations have on the efficiency of an officer’s ability to do the job expected of him or her. Click here and here to see the impending changes to the consent decree. The FOP also remains committed to fair outcomes of these investigations.

One of the biggest problems facing the legal profession is that many of the people who need legal services the most cannot afford those legal services. The FOP Legal Defense Plan makes legal services available to its members at an affordable price, all contained in bi-weekly dues. Appealing a suspension would likely be beyond the financial resources of your average officer. When that appeal goes to the 4th Circuit Court of Appeal or the Louisiana Supreme Court, the ability to absorb that cost becomes even more unlikely. When an officer falls into a situation like we have seen around the country in places like Missouri, Maryland, and Minnesota, where legal representation is not an option but a requirement, it can have a life-changing impact that no officer can survive on his own. Fortunately, as an FOP member, YOU ARE NEVER ALONE. Click here for contact info.

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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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Unclassified Positions and Reform in the #NOPD

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Recently, I wrote about the New Orleans Police Department’s request to the New Orleans Civil Service Commission for the creation of 16 new unclassified jobs in the NOPD.  The NOPD made its pitch at the February 20, 2017 meeting of the Civil Service Commission and it received some media attention here and here.  The Civil Service department opposed the creation of these unclassified positions, referring to the request as “unprecedented.”  After hearing from the NOPD, myself, on behalf of the FOP, Capt. Mike Glasser, PANO, Lt. Keith Joseph, BOP, and a few others, the Civil Service Commission took no action to allow the Civil Service Department to complete its work and put the matter on the agenda for the March meeting (March 20 if anyone wants to accompany me on behalf of the FOP).

I do not intend to re-post my argument against the creation of the unclassified positions, but for those who have not had the chance to read this article or my letter to the Civil Service Commission in this regard, the Civil Service Rules, which have the force and effect of law, require that in order for a position to be considered unclassified, the job’s responsibilities are not appropriate for anyone in the classified service and should not be performed by anyone in the classified service.  Furthermore, someone serving in an unclassified position must have policy-making authority which is not subject to further review or modification.  Finally, the Civil Service Commission is required to audit the position regularly to make sure that it is still not fit for the classified service.  As both Superintendent Harrison and myself made a point of saying, unclassified positions are the exception to the rule in a merit-based system of employment like Civil Service.

Currently, there is no “Commander” position, really.  There is a “Commander” assignment.  The Commander assignment, which must be filled by someone holding the rank of Police Lieutenant or higher, comes with a special rate of pay.  While I am unaware of anyone actually pushing this particular issue, the NOPD stated that one of the reasons we need to reconsider this special rate of pay is that a special rate of pay does not confer any grant of authority.  So, the question is does a Police Lieutenant in the position of Commander have the authority to issue orders to a Police Major?  While I am unaware of anyone pushing this issue, there are reasons to reconsider the use of a special rate of pay for commanders.  The majority of people assigned to Commander positions are in the rank of Police Lieutenant.  Police Lieutenants are non-exempt employees.  That means they should make overtime like all other non-exempt personnel under the FLSA.  However, they do not get overtime.  They are currently being treated as exempt employees.  While their pension is controlled by their actual rate of pay, terminal leave is paid to these individuals based on their Civil Service classification.  Finally, it is just an abuse of the special rate of pay provisions.  This special rate of pay scheme was put in place in 2011 after the Civil Service Commission told then Superintendent Serpas that he could not have 16 unclassified Police Colonel positions.

So, if the positions were not fit to be unclassified in 2011, what has changed that would make them appropriate today?  Well, while not answering the preceding question, Superintendent Harrison said that Department of Justice report which led to the current Consent Decree indicted the prior leadership “had largely acquiesced to wide-spread abuses by officers at all ranks.”  Superintendent Harrison went on to praise the accomplishments of individuals currently in the position of Commander.  Finally, the Superintendent insisted that it was critical that he be able to “swiftly replace leaders who are not performing to standard.”

What is exceedingly clear from the arguments made by Superintendent Harrison is that the NOPD has some good leaders in the position of Commander and that Commanders are performing the jobs previously held by officers in the classified service and that Commanders do not have the type of policy-making authority that is not subject to further review or modification.  What is clearly lacking is any logical connection between the existence of the Commander special rate of pay and any of the accomplishments of the folks holding those positions.

During the meeting, Commissioner Stephen Caputo, the newest member of the Civil Service Commission, noted that on several instances in my letter to the Commission I stated the position of Commander had been historically held by Police Captains and Police Majors.  He then asked if I was advocating for the status quo, or doing things as they have always been done.

My response was that I was not arguing for the status quo, but that the Civil Service Rules require that the job responsibilities be unfit for performance by anyone in the classified service.  History shows us that prior to 2011, the job responsibilities were performed by employees in the classified service.  Nothing has changed to make the jobs unfit for the classified service.

That does not mean that we have to maintain the status quo.  For example, the NOPD has the longest working-test period for employees.  Working-test periods, otherwise known as probationary periods, are set at 6 months in the Civil Service Rules with a maximum of 1 year.  The NOPD has 1-year working-test periods across the board.  That means that if someone is promoted to the rank of Police Captain and is unable to meet expectations, they can be demoted to their prior classified position — for just about any reason.  Generally speaking, if someone is incapable of performing a job, that incompetence will reveal itself within a year.  My point is that before we go shopping for a new toolbox, maybe we should make sure that we are making the best use of the tools we already have.

Civil Service Commission Chair Michelle Craig said that the Commission wanted the opportunity to examine best practices.  While the idea of “best practices” aggravates me to no end, I was fascinated by Superintendent Harrison’s reply that NOPD was re-writing the best practices and, therefore, what they are doing is the de facto best practice.

In today’s environment of instant gratification, we have to be able to point out real-time problems to demonstrate why these ideas that run contrary to the civil service philosophy should be avoided.  That is an impractical demand.  However, make no doubt about it, it is coming.  There will be a discriminatory application of the “Great Place to Work Initiative,” if there hasn’t been one already.  The creation of 16 unclassified Commander positions, would eventually prove problematic.

The first merit-based civil service system can be traced back to Imperial China and Emperor Wen of Sui (AD 605).  It wasn’t until the 1940’s that Louisiana embraced the civil service system.  Even then, it was repealed in 1948 and re-established in 1952.  Since then, more than a few changes have been made to how civil service systems are administered.  However, the idea of a merit-based system of employment utilizing objective standards and competitive testing has persisted.

So, while I am not advocating doing things as we did them in 1992, I am advocating the maintenance of the underlying set of guiding principles which have served us well for a long time.  We don’t have to throw the baby out with the bath water.  We don’t ditch democracy just because there is a more efficient way to administer the Department of Education.  The New Orleans Civil Service Commission has taken some steps recently which are downright scary.  The “Great Place to Work Initiative” dismissed important civil service principles relating to promotions and competitive exams.  Of course, the NOPD would point to successes of newly promoted sergeants or lieutenants as if that is the result of the new system in some way.  If you are thinking they wouldn’t do that, that is exactly what they are doing with the Commander position.  Granting the NOPD 16 unclassified positions to replace the special rate of pay for Commanders would be counter to the underlying fundamentals of the civil service system.  Does that mean it has to be done the old way?  No.  It just means it shouldn’t be done the way the NOPD has proposed.

New Orleans Civil Service Commission Meeting 2/20/2017

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The New Orleans Civil Service Commission is set to hold its regular monthly meeting on Monday, February 20, 2017.  At that meeting, the Commission will consider a request by the New Orleans Police Department to add 16 unclassified positions.  These 16 unclassified positions would seek to legitimize the position of Commander, which is currently a special rate of pay based on the assignment as commander of one of the Department’s 16 divisions.

The Crescent City Lodge of the Fraternal Order of Police opposes this request.  In short, the Department should use classified positions wherever possible.  This protects the employee, the public, and the integrity of the system.  Since the beginning of time until Chief Serpas’s recent tenure as Superintendent, these positions have generally been held by officers holding the classified rank of Police Captain and Police Major.  Those classifications are still available.

The use of Police Captain and Police Major for these positions not only shores up the integrity of the system, but provides officers with a well-defined career path.  As it stands today, these positions are being held by Police Lieutenants who have no job security.  So, the administration can cut their pay significantly for any number of unlisted reasons.

This, along with the changes made to the recent promotional system, has taken much of the fairness out of the promotional system of the NOPD and left it vulnerable to the type of political interference the Civil Service system was designed to eliminate.

CLICK HERE TO READ THE LETTER SUBMITTED TO THE COMMISSIONERS OF THE NEW ORLEANS CIVIL SERVICE COMMISSION.

NOPD Pre-Disposition Conference (Waivers)

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I have been trying to keep everyone up to speed on the recent changes to the NOPD disciplinary system.  I have written on such topics as the new penalty matrix and the way progressive discipline functions in the new system.  I have also written about some of the excessive penalties that have resulted from the new system.  I have also recently been told that the NOPD plans on revising the system to alleviate some of the pressure placed on the department by handing out 20-day suspensions like they were candy.  One thing I feel like I have not really touched on are hearings in the current system.  It needs to be discussed because people have been signing documents entitled “Waiver of Predisposition Conference.”

If you are sustained for a violation of the rules and regulations of the NOPD, there will be 2 disciplinary hearings.  Under some circumstances those hearings could be handled as one.  An officer sustained for a violation of the rules and regulations of the NOPD pursuant to a formal disciplinary investigation will be required to attend a pre-disposition conference and a pre-disciplinary hearing.

The pre-disposition conference is an officer’s chance to submit evidence or convince the hearing officer that the charges should not have a disposition of sustained.  If the investigation is conducted by PIB, then PIB will conduct the pre-disposition conference.  If someone in the officer’s chain of command conducts the investigation, then the officer’s commander or bureau chief will conduct the pre-disposition conference.  The pre-disposition conference will be the ONLY chance to change the disposition of the investigation.

If an officer chooses to waive the pre-disposition conference, that officer is pleading guilty to the charges.  One would sign this form if one wanted to waive the pre-disposition conference.  Make sure you read through this form fully.  Of course, it could just say “I plead guilty to all of the charges no matter how ridiculous and request that I be suspended forthwith.”  If an officer is going to plead guilty, that officer would be well-served to do that in the beginning as part of a negotiated settlement in order to at least secure a reduction in the penalty.  It is my belief that officers are waiving these hearings, and thereby waiving their due process, without giving much thought to it.  I do not recommend anyone waive a pre-disposition conference without a really good reason.

The pre-disciplinary hearing follows the pre-disposition conference, assuming the disposition of the case remains sustained following the pre-disposition conference.  The pre-disciplinary hearing is conducted by someone in the officer’s chain of command.  Most pre-disciplinary hearings will be conducted by the officer’s commander.  More serious violations will result in pre-disciplinary hearings conducted by one’s bureau chief.  If the investigation was conducted by someone in the officer’s chain of command, then the officer’s commander or bureau chief may conduct both of these hearings in the same sitting.

If you are not sure why I chose to write this relatively short article on these two hearings, the answer is don’t waive pre-disposition conferences.  If you are presented with a document to sign and you aren’t quite sure what to do about it, pick up the phone.  It is better to be informed than to be giving away rights unknowingly.  If, after discussing the matter with someone who knows what they are talking about, you choose to sign the waiver, then there is a good reason for it.  Remember, most of the advice you get from your fellow officers that does not include “call your FOP attorney” is wrong.

Hate Crimes and the Blue Lives Matter Law

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In the 2016 Regular Session of the Louisiana Legislature, La. R.S. 14:107.2 was revised to amend paragraph A and add paragraph E via Act No. 184, H.B. 953 by Representative Lance Harris.  The change to paragraph A added the following phrase “or because of actual or perceived employment as a law enforcement officer, firefighter, or emergency medical services personnel” to the motivations which can qualify a crime as a hate crime.  Paragraph E included definitions of emergency medical services personnel, firefighter, and law enforcement officer.  For the purposes of this discussion, law enforcement officer is defined as follows:

“an active or retired city, parish, or state law enforcement officer, peace officer, sheriff, deputy sheriff, probation or parole officer, marshal, deputy, wildlife enforcement agent, state correctional officer, or commissioned agent of the Department of Public Safety and Corrections, as well as a federal law enforcement officer or employee, whose permanent duties include making arrests, performing search and seizures, execution fo criminal arrest warrants, execution of civil seizure warrants, any civil functions performed by sheriffs or deputy sheriffs, enforcement of penal or traffic laws, or the care, custody, control, or supervision of inmates.”

There have been a few missteps in the application of this law.  On September 5, 2016, the perpetrator of criminal damage to a French Quarter hotel was charged with violating La. R.S. 14:107.2 based on racial and gender slurs used against the arresting officer.  On October 26, 2016, another individual was charged with violating La. R.S. 14:107.2 with the underlying crime being terrorizing when he told the 911 operator that “he was going to shoot and kill any officer that responded to the call.”  Neither of these charges made it very far.  The charge was refused by the District Attorney in the September 5, 2016 case and the Magistrate dismissed the hate crime charge and the terrorizing charge in the September 5, 2016 case, opting for La. R.S. 14:59, criminal mischief, instead.

What constitutes a hate crime?

As with any other crime, La. R.S. 14:107.2 hate crimes, has necessary elements that must be met.  The law reads as follows:

It shall be unlawful for any person to select the victim of the following offenses against person and property because of actual or perceived race, age, gender, religion, color, creed, disability, sexual orientation, national origin, or ancestry of that person or the owner or occupant of that property or because of actual or perceived membership or service in, or employment with, an organization, or because of actual or perceived employment as a law enforcement officer, firefighter, or emergency medical services personnel: first or second degree murder; manslaughter; battery; aggravated battery; second degree battery; aggravated assault with a firearm; terrorizing; mingling harmful substances; simple or third degree rape, forcible or second degree rape, or aggravated or first degree rape; sexual battery, second degree sexual battery; oral sexual battery; carnal knowledge of a juvenile; indecent behavior with juveniles; molestation of a juvenile or a person with a physical or mental disability; simple, second degree, or aggravated kidnapping; simple or aggravated arson; communicating of false information of planned arson; simple or aggravated criminal damage to property; contamination of water supplies; simple or aggravated burglary; criminal trespass; simple, first degree, or armed robbery; purse snatching; extortion; theft; desecration of graves; institutional vandalism; or assault by drive-by shooting.

Therefore, the elements of the crime are:

  1. A person
  2. must select a victim
  3. of one of the enumerated offenses
  4. because of
    1. actual or perceived race, or
    2. age, or
    3. gender, or
    4. religion, or
    5. color, or
    6. creed, or
    7. disability, or
    8. sexual orientation, or
    9. national origin, or
    10. ancestry of that person or the owner or occupant of that property, or
    11. actual or perceived membership or service in, or employment with, an organization, or
    12. because of actual or perceived employment as a law enforcement officer, firefighter, or emergency medical services personnel.
  5. The enumerated crimes are:
    1. first or second degree murder, or
    2. manslaughter, or
    3. battery, or
    4. aggravated battery, or
    5. second degree battery, or
    6. aggravated assault with a firearm, or
    7. terrorizing, or
    8. mingling harmful substances, or
    9. simple or third degree rape, or
    10. forcible or second degree rape, or
    11. aggravated or first degree rape, or
    12. sexual battery, or
    13. second degree sexual battery, or
    14. oral sexual battery, or
    15. carnal knowledge of a juvenile, or
    16. indecent behavior with juveniles, or
    17. molestation of a juvenile or a person with physical or mental disability, or
    18. simple or aggravated criminal damage to property, or
    19. contamination of water supplies, or
    20. simple or aggravated burglary, or
    21. criminal trespass, or
    22. simple, first degree, or armed robbery, or
    23. purse snatching, or
    24. extortion, or
    25. theft, or
    26. desecration of graves, or
    27. institutional vandalism, or
    28. assault by drive-by shooting.

This law is, by necessity, a specific intent crime.  Violation of La. R.S. 14:107.2 results in an additional penalty that runs consecutively with the underlying offense.  So, in order to charge someone with a violation of La. R.S. 14:107.2, the officer must have probable cause to believe that the offender violated the underlying offense and then that they selected the victim of the crime based on the reasons listed in the statute (4(a)-4(l) above).

It is not enough that the victim has specific traits or associations.  The victim must be chosen for that reason.  In the September 5, 2016 incident, the offender allegedly committed the crime of simple criminal damage to property by breaking some windows at the Royal Sonesta hotel in New Orleans’s French Quarter.  The offender also made some racially offensive comments to a security guard and other rude and insensitive remarks to the female officer who made the arrest.  Being an ass does not make one guilty of a hate crime.  Furthermore, even if the comments which led to this charge were sufficient to constitute resisting arrest, it is still not a hate crime.  Resisting arrest is not, in and of itself, a hate crime.

Example of what could be considered a hate crime:

John Doe, a sovereign citizen, is sitting at home seething about how much he dislikes law enforcement officers.  He knows that active and retired law enforcement officers gather at the FOP lodge.  He grabs his firearm of choice and heads over the FOP lodge where he opens fire, striking nobody.

Example of what is not a hate crime:

John Doe, a sovereign citizen, is having a few beers, walking around the neighborhood harassing people.  The police are summoned to the area and decide to arrest Mr. Doe for public intoxication.  When the police attempt to apply handcuffs, Doe says “I hate you law enforcement professionals and there is no way you are putting those cuffs on me.”  He then proceeds to fight like the dickens, but is ultimately subdued and incarcerated.

The Legislature, the Governor, and the people of Louisiana sent a powerful message in passing the law that they support law enforcement and appreciate the dangers our law enforcement officers, firefighters and EMS workers face.  However, officers must be circumspect in its application.  Officers and the community alike would be better served if this statute were reserved for those unprovoked attacks on police officers that are unrelated to any action taken by the officers.

In any event, if an officer finds himself inclined to charge someone with a hate crime, against a law enforcement officer or any of the other protected classes, that officer should ensure that he can articulate probable cause establishing that the offender specifically intended to commit one of the enumerated crimes because the victim fit one of the protected classes listed in the statute.  This usually involves a more in-depth investigation into the motivation of the perpetrator.  It may be a good idea to consult with the District Attorney prior to charging anyone with violating La. R.S. 14:107.2.  If there is any difficulty articulating the probable cause necessary to demonstrate that the perpetrator intentionally chose the victim of one of the enumerated crimes because the victim was part of a protected class, then perhaps it would be better to consult with the District Attorney and let them add the charge via grand jury or bill of information.

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.

Opinions are like ________. Everybody has one.

Today (9/30/16), Jarvis DeBerry published his opinion on the recent interest in the NOPD’s investigation into the sex crimes unit and several officers that resulted from a report by the Office of Inspector General.  Mr. Debeery’s opinion is not that of a reporter — someone interested in ascertaining the facts of a situation.  Mr. Debeery’s opinion is exactly that — an opinion — based on fallacies and prejudice.

Let’s start with what is true (partly).  Mr. Debeery charges that my statements about this investigation prove “the unions (the FOP) reflexively defend their members, no matter the details of criticism.”  I am an attorney.  Several of the officers investigated by the NOPD in this matter are my clients.  The relationship is attorney (me) – client (officer).  The FOP is not a party to that relationship.  A lawyer should act with “commitment and dedication to the interests of the client and with zeal in advocacy on the client’s behalf.”  I have a responsibility to defend my clients.  That is what I was hired to do.  While it is true that the Fraternal Order of Police in New Orleans does not hesitate defend its members when it is called for, that simply does not fit into the equation in these circumstances.

Mr. Debeery seems to find it incredulous that I indicated that I did not know what the officers were accused of.  He says “But there’s no excuse for Livvacari not knowing what the accusations are.”  He then refers to the November, 2014 report by the Office of the Inspector General making which made their “transgressions” “quite plain.”

Mr. Debeery states that the Inspector General “didn’t treat it’s investigation in to the sex-crimes unit like the typical report that accuses an agency of being wasteful with its resources.”  I agree with that statement and maybe this investigation is an indication that the Inspector General should stick with what he knows.

The first thing cited by Mr. Debeery from the Inspector General’s report is that 1,290 sexual assault and child abuse cases had been assigned to five detectives and 86% of those had not been followed up on with an investigative report.  He goes on to say that 2/3 of those cases (840) were labeled as miscellaneous incidents.  On its face, this appears to be problematic for those five officers.  However, it was not long before the NOPD determined, and announced publicly, that 677 of those 840 cases were sex offender registry checks.  That is, sex crimes detectives were responsible for verifying that the information provided by sex offenders following their convictions was correct.  Those 677 cases were properly classified as miscellaneous incidents.  The NOPD has since created a new category for sex offender registry checks, but they are still not sex crimes investigations requiring follow-up.  The report, along with Mr. Debeery, also ignores the system of 21-x and 21-y signals designed by the police administration in an attempt to pigeon hole cases which required more information before they could be properly classified.  The report also relies on the lack of supplemental reports by officers on investigations as an indication that detectives were being lackadaisical.  This demonstrates a lack of knowledge of police procedure on both Mr. Debeery’s part and the Inspector General’s part.  The investigation into this matter also revealed that some of the case identified by the Inspector General’s report had already reached their conclusion in the criminal justice system — the cases had already been prosecuted and had come to their conclusion.  This would not be possible if they had been ignored as the Inspector General’s report had declared.  There were likely some cases which did not get the attention they deserved.  But, supplemental police reports are only required when evidence was logged in or an arrest was made.  Otherwise, updates were logged in the case management system (CMS).  This is an overly simplistic explanation, but the short version is that manpower, not indifference, was responsible for cases which were not followed up on as thoroughly as the detectives would have liked.

Debeery then goes on to recount the Inspector General’s allegation that a child younger than 3 appeared at a hospital with a sexually transmitted diseased and that Akron Davis ignored this.  The lack of follow-up by Debeery, or possibly his inattention to information learned at a later time, much like the OIG’s inattention to detail, leads to reckless allegations such as this which are damaging to Detective Davis’s reputation.  First of all, this case was not assigned to Detective Davis.  Secondly, and much more importantly, the NOPD had already investigated this case and was well-aware of how this child had contracted a sexually transmitted disease.  There is a case file several inches thick on this particular child.  So, the NOPD already knew the source of the sexually transmitted disease.  How much time should Detective Davis have spent determining the source of the sexually transmitted disease when there were so many other victims the understaffed unit had to try to help?  He then points to two other cases which Detective Davis would not have enough information to defend, explain or take responsibility for.

The next case cited Mr. Debeery is when Sgt. Merrell Merricks allegedly backdated an investigative report requested by the Inspector General.  This clearly shows a lack of understanding of police procedure.  In any event, those charges were not substantiated against Sgt. Merricks.  I do not represent Sgt. Merricks.  The same is true of the allegations about Detective Williams and his report writing.  Finally, Mr. Debeery cites a statement allegedly made by Detective Damita Williams regarding the applicability of a simple rape charges.  There is no context to this statement.  Did you know there are circumstances when simple rape is not an applicable charge?  For example, a husband cannot be accuse of simple rape of his wife.  Context is important.

Mr. Debeery winds up with his opinion that this should have been enough information for me and the public.  Unfortunately, I know more about this investigation than the public.  I certainly know more about this investigation than Mr. Debeery.

The Louisiana Constitution, something I would think Mr. Debeery would favor being applied to everyone as it was intended, establishes due process for civil service employees.  The process that is due requires that civil servants be apprised of the exact violations leading to disciplinary action.  The obviously flawed report by the Inspector General is insufficient to satisfy that requirement.  I should know the details of the circumstances leading to the discipline of my client.  That is the law.

We agree on one thing:  there has been a significant change in the operation of that unit (except that the detectives are still under water with an exorbitant case load).  This is a good thing.  This is also the only thing that really addresses the problems, in general terms, that existed in the structure of the sex crimes unit.  Disciplinary actions taken against good officers are not what led to this improvement.

NOPD Superintendent’s Meeting Last Night.


Note from Donovan:  I invited Nadra Enzi, aka Cap Black, to be a contributor at signal108.com.  I think that he has a unique perspective that would be beneficial to everyone.  Cap Black is not affiliated with the FOP or the NOPD.  So, his positions may not mirror my positions or the FOP’s positions.  However, I have generally found Cap’s positions to be insightful and relevant.  I welcome Cap Black to our community and look forward to reading what he has to contribute.


This is my first post in Signal 108. I’m very glad to be here and lend whatever aid I can to a very important cause. For the record, I’m not a police officer, but am very active in creating safety with embattled urban stakeholders and openly supporting police in areas where that is sadly rare.

Police are part of the solution, not the problem, in high crime areas.

I attended the NOPD Superintendent’s public meeting tonight at Franklin Ave. Baptist church. To my surprise, his panelists included urban stakeholders actually engaged in mentoring, conflict mediation and with the Independent Police Monitor, civilian oversight. The chief of the unpopular Public Integrity Bureau was also a panelist, which was disappointing.

It was good hearing about the PeaceKeepers mediating conflict. It reminds folks that urban stakeholders can actually police ourselves. The meeting otherwise went as expected, with the public comment period mostly dominated by hostages whose issues sadly remain unaddressed years after I first heard them.

Bro Al Mims presentation on recent rudeness experienced while trying to get a police report was very well received. It was a plea of an urban police supporter who didn’t initially get support in return. The upside is the subject whose threat he needed documented may soon find himself arrested.

It underscored my disengagement from detente with NOPD leadership. I understand that my position as an urban stakeholder who who wants results from inquiries; supports police unions and assertive interdiction of crime places me outside some comfort zones.

In a community overflowing with violent crime, apologists and the like, all NOPD leadership can do is exchange pleasantries with me at events and visa versa. I don’t support the federal consent decree. I don’t support the Public Integrity Bureau as currently led and constituted- nor do local police unions. I don’t support the retention-killing Office of Police Secondary Employment, ironically born from a suggestion by a former assistant United States attorney ( AUSA ) who was removed for posting privileged information on Nola.com, under aliases.

I support a pro-active agency that recognizes urban stakeholders as partners- not pariahs to be ignored or patronized. I support an agency that makes career criminals a priority, not one with handcuffs applied by DC or activist lawyers. Finally, I support an agency whose policies are shaped by its unions.

Last night’s event, hosted by the NOPD superintendent, tells me what I support won’t materialize anytime soon.

-Nadra Enzi aka Cap Black, Your UrbanSafetyist. @nadraenzi on twitter. UrbanSafetyism blog.