Many law enforcement agencies in Louisiana had informed their employees that the Municipal Police Officers Supplemental Pay Board of Review had decided to begin sending a lump sum each month to the various law enforcement agencies around Louisiana whose employees receive Police and Marshal Supplemental Pay starting January 1, 2024. Those municipalities would then be responsible for disbursing the funds owed to each employee entitled to receive Police and Marshal Supplemental Pay.
In short, implementation of the new distribution plan will be delayed to the start of Louisiana’s next fiscal year. The letter states that will be July 31, 2024. As a result, all law enforcement employees who receive Louisiana Police and Marshal Supplemental Pay will continue to receive those payments as usual until July 31, 2024.
For those who are interested, this was made possible by Louisiana Act No. 637, which started out as HB 918, Supplemental Pay for Certain Law Enforcement Officers introduced by State Representative William “Bill” Wheat, Jr., a Republican representing Tangipahoa Parish. Louisiana Act. No. 637 changed La. R.S. 33:2218.4, which required the Secretary of Public Safety and Corrections to write and sign a check for supplemental pay to each recipient to La. R.S. 40:1667.3(B) only states that “the Department of Public Safety and Corrections shall issue payments in accordance with the privisions of this Part.” The statute governing payment of State Supplemental Pay no longer states how it is to be distributed. Therefore, it can be sent to the municipality instead of directly to the officer entitled to the payment.
There will be times when the FOP will send you an email or text message asking you to send an email to your elected representatives regarding legislation that the FOP has decided it is in favor of or opposed to. Normally, it only takes a couple of clicks to send an email to your elected representatives because we use a service called Voter Voice. Voter Voice prepares an email for you. You can edit the email if you want. Voter Voice will then send the email to the proper recipients. So, even if you are not sure who your elected officials are, you can contact them using Voter Voice. Be on the lookout for emails regarding legislation and the use of Voter Voice. The number of people Legislators receive phone calls and emails from on certain issues can be the determining factor in how the elected representative votes on that issue.
The Louisiana FOP also hired a lobbyist several years ago to represent our interest in Baton Rouge. Joe Mapes of Mapes and Mapes is the lobbyist for the Louisiana FOP and does an excellent job for us. Hopefully, Joe will be around to help us for quite a while.
You can also check on the Louisiana FOP’s legislative priorities on its website at www.louisianafop.com. In New Orleans, Crescent City Lodge #2 often discuss important legislative issues in its newsletters. If you are an FOP member who is interested in being part of the Legislative Committee for your Lodge or for the State Lodge, talk to your Lodge Officers and they should be able to fill you in.
This article contains profane language. If you are offended by profane language, you may want to skip this one. I do not want to offend anyone.
If you have never heard of Will Aitchison, he is an attorney who specializes in police (public safety) legal issues whose company, Labor Relations Information System (LRIS), is in the northwestern part of the United States. Will also puts on seminars for public safety employees, professionals, attorneys, etc. on important issues. For example, LRIS just put on a seminar titled the Advanced Course in Police Discipline and Public Safety Union Leadership in Las Vegas this past November (2023) and will put on a seminar titled Public Safety Union Leadership at the beginning of 2024 in Las Vegas. January and February are good months to be in Las Vegas. Will has also published a number of books, including Interest Arbitration, the Rights of Law Enforcement Officers, the FLSA, a User’s Manual, and other handy books. Finally, Will publishes a podcast once a month that can be found on Apple Podcasts, Google Podcasts, or wherever you get your podcasts. Podcasts can also be found on the LRIS website.
I appreciate “Fuck: The Police.” I also appreciate Will for letting those of us who were unaware of the study know about it. There are many law enforcement agencies with policies seeking to forbid profanity altogether. The current policies represent a sea change from the previous notion of including profanity in what was known as “Verbal Judo” — a hands-off way of controlling a situation through words. “Verbal Judo” has fallen out of favor, and more agencies are opting to forbid profanity, which is often recorded on all the cameras law enforcement officers carry while working.
I have handled plenty of cases in different agencies for officers accused of using profanity in the course of an officer’s duties. In the New Orleans Police Department, if an officer uses profanity, it is a violation of Rule 2, Moral Conduct, Paragraph 2, Courtesy, which reads “Employees shall be courteous, civil and respectful in their conduct toward all persons. The use of profane, vulgar, or discourteous gestures or language to or in the presence of any citizen is prohibited. The use of profane, vulgar or discourteous gestures or language either verbal or written by one employee to another employee is prohibited.” Sometimes, they use Rule 3, Professional Conduct, Paragraph 1, Professionalism, which reads “Employees shall conduct themselves in a professional manner with the utmost concern for the dignity of the individual with whom they are interacting. Employees shall not unnecessarily inconvenience or demean any individual or otherwise act in a manner which brings discredit to the employee or the New Orleans Police Department.” Sometimes, an officer could end up charged with both violations, which seems like piling on to me. I represented an officer at a different agency who was charged with Conduct Unbecoming an Officer for using profanity in the car by himself. I have had several cases in New Orleans where officers were charged with one or both of the above violations for using profanity in a police car alone because it was recorded by the in-car camera and someone might see it, or it might have to be presented to a jury. It all seems pretty crazy.
Personally, I think an officer’s use of profanity can be appropriate. At the same time, I do not think officers should ever try to denigrate another person while acting on behalf of his or her agency. Officers should also refrain from attempting to (or successfully) belittle someone while he or she is off duty and there is a nexus between the officer’s action(s) and the officer’s employing agency — officers can be disciplined for that even if he or she is not working at the time.
Anyway, officers are adult men and women who live in our community. I believe they can tell the difference between when it is appropriate to use profane language. For example, it is appropriate to use profane language when the starting quarterback for the Saints is injured during a game. I also firmly believe that our adult police officers who live in our community know when they are too tired to do their jobs and need a nap. Telling officers they are not allowed to work more than 16 hours and 35 minutes in any 24-hour period is ridiculous. They know when they are too tired. I know that when I was a police officer, there were days when I had to work for 16 hours and then go home and pick up kids from school, go shopping, cook dinner, or do other work at home. All the policy really does is tell officers they can only be paid for 16 hours and 35 minutes per day.
To make matters worse, there is an adult who may or may not be a member of our community who is constantly requesting payroll records for our adult police officers and subsequently making complaints on our adult police officers for working too much. In the United States of America, we encourage hard workers. The vast majority of these complaints have been based on mistakes made by the officer, the officer’s supervisor, the Office of Police Secondary Employment, and other human beings. If there is one thing I am certain of, human beings regularly make mistakes and will continue to do so. I am also sure that the complaints being made on police officers every day about working off-duty paid details are about nothing but harassment and the investigations waste hours and hours of time of the officers required to investigate these unfounded, harassing complaints as well as the accused officer and any witness officers required to participate. Please stop wasting everyone’s time. Nobody is double-dipping or stealing from secondary employment employers. You are not an investigative reporter or any kind of watchdog.
I know I ranted a little and definitely drifted off-topic above. I am going to assume that you, the reader, will grant me the rant and off-topic content. It took me at least an hour longer than I wanted to spend writing this because of it. For that, I apologize to my wife. Sorry – I love you.
It used to be a constant struggle for the Crescent City Lodge of the Fraternal Order of Police to convince the administration, whoever that happened to be at the time, that the men and women of the New Orleans Police Department deserved an opportunity to get this time-and-grade promotion, that the necessary functions were in place to make the promotions, and that making the promotions will have a positive effect on the retention of valued, veteran officers.
These days, we do not have to make those arguments. What we do have to do is remind our members — more than 92% of all NOPD employees — that in order to get promoted, they have responsibilities and that there are deadlines for doing those things.
This past Friday, Dawnella Adams of NOPD Human Resources sent a very informative email concerning SPO promotions via the NOPD.GOV email system. If you are an NOPD Police Officer seeking to be promoted to Senior Police Officer, please take the time to read over this important information. To read the full email sent by Ms. Adams, check your NOPD emails for Friday, November 3, 2023, at 10:00 a.m. Here are the highlights of that email:
Superintendent Anne Kirkpatrick is proud to announce online training modules for the promotional position of Senior Police Officer.
Minimum qualification requirements for this application include:
Permanent status as a Police Officer with NOPD.
Three (3) years of experience with NOPD in any combination of Police Officer or Police Officer I.
Successful completion of the current New Orleans Police Academy Police Officer II, III, IV, or Senior Police Officer training program. A letter from the Police Education and Training Division certifying the successful completion of this training must be submitted.
*After the above requirements are met, CLICK HERE.
SENIOR POLICE OFFICER TRAINING PROGRAM REQUIREMENTS:
The Academy has formulated a SPO curriculum that will be delivered in a series of web-based training courses. Candidates are required to complete a total of five interactive courses offered by the Virginia Center for Policing Innovation (sponsored by the U.S. Dept. of Justice Community Oriented Policing Services – COPS Program). The VCPI “E-Learn Center” offers 24/7 access to these courses which include a variety of learning tools, multi-media segments, and exercises.Officers may access this training website on personal time from any computer with
Internet connectivity. The modules can be paused and resumed to the location where discontinued. Participants will be able to print a certificate of training upon successfully passing each course examination.
HERE ARE INSTRUCTIONS FOR ACCESSING THE ON-LINE TRAINING (CORRECTED):
Eligible SPO candidates may CLICK HERE to access the VCPI website, CREATE AN ACCOUNT and REGISTER AS A NEW USER. Once registered, you’ll be able to access the Student Dashboard to view and register for Courses and to download evaluations and training certificates.
Upon accessing the E-Learn Center officers will be presented with a menu of 13 Events, Courses and Resources from which to choose. Officers should click on the button REGISTER MYSELF and BEGIN for each of the SPO required training modules listed below.
A tutorial on how to use the commands is provided initially and can be viewed at any time by clicking on the “help” button on the top right of the screen. Officers taking the courses must complete all pages and each tab/insert within each page to be eligible for the certification exam. If at any time you exit the modules, reentry will allow you to go back to the location where you left off.
SUBMITTAL OF TRAINING CERTIFICATES:
Upon completion of the modules and the course exams, you will be able to click on the final section to print the “Certificate.” The five completed certificates (in total) shall be personally delivered to the front desk receptionist at the Police Academy Monday through Friday between the hours of 8AM and 3PM.
DO NOT EMAIL CERTIFICATES.
If you experience any difficulties with the online training, contact Duane Johnson, Academy Curriculum Director,dujohnson@nola.gov.
The Fraternal Order of Police urges all eligible members to visit the VCPI E-Learning Center as soon as possible and to register for the required courses. Each course listed states the course is the 2023 version and lists an End-Date of 12/31/2023 at 11:59pm. We are not sure if that is an actual end-date for course availability, but will check and report back to members.
Here is an outline of the SPO Curriculum as provided in Ms. Adams nopd.gov email:
SENIOR POLICE OFFICER TRAINING PROGRAM REQUIREMENTS:
The Academy has formulated a SPO curriculum that will be delivered in a series of web-based training courses. Candidates are required to complete a total of five interactive courses offered by the Virginia Center for Policing Innovation (sponsored by the U.S. Dept. of Justice Community Oriented Policing Services – COPS Program). The VCPI “E-Learn Center” offers 24/7 access to these courses, which include a variety of learning tools, multi-media segments, and exercises. Officers may access this training website on personal time from any computer with Internet connectivity. The modules can be paused and resumed at the location where they were discontinued. Participants will be able to print a certificate of training upon successfully passing each course examination.
SENIOR POLICE OFFICER CURRICULUM:
I.ETHICAL DECISION MAKING: POLICING WITH PRINCIPLED INSIGHT
Synopsis – EDM explores the practice of decision-making and the ethical principles that support effective policing. EDM stresses that police ethics are not just an afterthought or a means of discouraging bad behavior, with public trust integrity and liability hinging on each and every decision. Ethics are a controlling insight that informs and guides police practitioners from an internal personal capacity while exploring realistic modern-day challenges faced in the policing profession.
Run Time: 2 hours Completion Time: 4 hours
II.COMMUNITY POLICING DEFINED
Synopsis – Provides participants with a basic awareness and understanding of the fundamental principles and best practices of community policing. Describes the practice of community policing while also examining how it can be effectively applied. The course explores partnerships, problem-solving, and organizational transformation as they relate to specific issues and challenges facing today’s law enforcement professionals and the communities they serve.
Run Time: 4 hours Completion Time: 8 hours
III.COMMUNITY POLICING: IMPROVING POLICE EFFICACY AND BUILDING TRUST
Synopsis – Explores how emerging issues necessitate a commitment to the key components of community policing: partnerships, organizational transformation, and problem-solving. The course includes an examination of the current state of policing—locally and nationally— addressing the current and emerging issues that challenge the effectiveness of law enforcement agencies and the well-being of the communities they serve. CPIPEBT challenges participants to explore the principles and practices of community policing as a means of achieving the public safety mission with greater efficiency by gaining and maintaining public trust and engaging the community in the shared responsibility of effective policing.
Run Time: 3 hours Completion Time: 6 hours
IV.PROBLEM-ORIENTED POLICING: THE SARA MODEL
Synopsis – Provides participants with a basic awareness and understanding of the fundamental principles of a common approach used by many community policing agencies to identify and solve repeat crime and community problems: the SARA model. The SARA model allows agencies to scan through multiple data sources, conduct a thorough analysis of a problem through the lens of the crime triangle, formulate a response, and continuously assess the impact of the response to the problem.
Run Time: 1 hour Completion Time: 2 hours
V.CRIME REDUCTION: ENFORCEMENT AND PREVENTION STRATEGIES
Synopsis – Designed to provide participants with an overview of best practices for crime reduction, including guidelines for implementing an organizational model for crime reduction at all levels within a police department. The course offers useful strategies for problem-solving in order to develop immediate, short-term, and long-term responses to crime within a community.
Run Time: 2 hours Completion Time: 4 hours
INSTRUCTIONS FOR ONLINE TRAINING:
Eligible SPO candidates shall access the VCPI website at VCPI (vcpionline.org) and click on the “LOG-IN” screen. From there, click on the “CREATE AN ACCOUNT” heading to register as a new user.
Upon access to the E-Learn Center, you will be prompted to a menu in the left corner titled “STUDENT DASHBOARD,” from there access the “VIEW/REGISTER FOR COURSES” and then click “REGISTER MYSELF” to take each of the SPO required training modules.
A tutorial on how to use the commands is provided initially and can be viewed at any time by clicking on the “help” button on the top right of the screen. The modules are sequential and cannot be opened out of order. Officers taking the courses must complete all pages and each tab/insert within each page to be eligible for the certification exam. If you exit the modules at any time, reentry will allow you to go back to the location where you left off.
SUBMITTAL OF TRAINING CERTIFICATES:
Upon completion of the modules and the course exams, you will be able to click on the final section to print the “Certificate.” The five completed certificates (in total) shall be personally delivered to the front desk receptionist at the Police Academy Monday through Friday between the hours of 8AM and 3PM. DO NOT EMAIL CERTIFICATES.
If you experience any difficulties with the online training, contact Duane Johnson, Academy Curriculum Director, dujohnson@nola.gov.
Dawnella Adams, B.S., M.A Management Development Analyst I New Orleans Police Department Human Resources 715 South Broad St. 1st Floor New Orleans, LA 70119 (504) 658-5400 deadams@nola.gov
On March 3, 2023, the members of the New Orleans Civil Service Commission had their monthly meeting. On March 11, 2022, the Civil Service Commission approved some lump sum payments to police personnel in order to improve Retention and Recruitment. This also applied to the incentives for NOFD and NOEMS.
In order to be certain the payments were legal, the Civil Service Commission sought an opinion from the Attorney General. The Attorney General ruled favorably on the payments, but, generally, decisions based on an Attorney General’s Opinion delay the effectiveness of the item until the date of the positive ruling, which was received in July 2023.
In this case, the Fraternal Order of Police was very concerned that if the payments were pushed back to July 23, 2023, it would seriously impact the employees’ confidence in the administration’s reliability as it relates to promises it makes. In its Opinion, the Attorney General stated that the Civil Service Commission could revise its motion to March 11, 2022, so that the City Council could approve the change to March 11, 2022, and the payments could be made by March 11, 2023.
The Civil Service Commission received a letter from Councilman Joe Giuruso requesting the Civiil Service Commission consider a revision of the motion to change the effective date to March 11, 2022, so the Council could approve the change and the checks can be cut on March 11, 2023.
The Civil Service Commission unanimously voted to add the measure to the agenda and then unanimously voted to make the revision. The Council will consider the revision at its earliest opportunity and we will advise you when the checks will be issued.
The Fraternal Order of Police would like to to thank the New Orleans Civil Service Commission, Councilman Joe Giurusso, the New Orleans City Council. Mayor LaToya Cantrell, CAO Gilbert Montaño, and Superintendent Michelle Woodfork for making this a priority.
Earlier today, CAO Gilbert Montaño published CAO Policy Memo #148. That policy addressed the 10% pay increase for all city departments during Mardi Gras 2023. We received quite a few phone calls asking about the status of the $26/hr. increase for police personnel that had been mentioned previously.
Last weekend, NOPD Superintendent Michelle Woodfork put out a message saying that she and her team were going to figure out a way to increase the pay for all police personnel during this Mardi Gras. The limitation they were working with was that officers had to be working on contributing to Mardi Gras to qualify for the $26/hr. special rate of pay. This evening, Chief Woodfork called to tell me that they had come up with a plan and it would include every officer.
Chief Woodfork said that all NOPD officers will receive an additional $26/hr for the 2023 Mardi Gras season. The extra pay will start 3 hours before the first parade rolls and stop 3 hours after the last parade is over for any given day.
The FOP would like to thank Chief Woodfork for working this out so everyone can benefit from the special Mardi Gras rate of pay. When you see the Chief walking the parade route, make sure you let her know how much you appreciate it. I also want to thank FOP Labor Chairman Sgt. Willie Jenkins for all of his tireless work representing FOP members. When you see Willie on the parade route, make sure you have a list of things for the Labor Committee to work on to give him.
Have a safe Mardi Gras and don’t forget to have fun. The FOP would like to again thank Superintendent Woodfork and her leadership staff. We would also be remiss if we didn’t thank Personnel Director Amy Trepagnier, CAO Gilbert Montaño, and Mayor Cantrell. All of these City Leaders were more than willing to work with the FOP to benefit all police personnel.
DO NOT DRINK AND DRIVE!!!! WE WILL BE LOOKING FOR YOU IF YOU DO!!
I and other FOP Board members have received numerous phone calls from other officers asking about a rumor that the City of New Orleans would be paying officers from other jurisdictions $50/hr. to come to New Orleans and work the parades and other assignments working its way up to Mardi Gras and $75/hr. on Mardi Gras Day. After having received a phone call from FOP VP Willie Jenkins, III and since I had not heard anything official about this, I sent an email to New Orleans Chief Administrative Officer Gilbert Montaño to see what I could find out. I immediately received a text from Ms. Montaño asking if he could call me on the telephone.
Mr. Montaño explained that he was currently working with his team on two (2) separate plans to bring pay for current NOPD employees up to at least $50/hr. for the period leading up to Mardi Gras Day and at least $75/hr., if not more, for Mardi Gras Day, February 21, 2023. This temporary pay increase will be legal and justifiable because NOPD officers will have to supervise officers from other jurisdictions — at least help them out and call for a rank, if necessary.
Mr. Montaño told me that he anticipates that these plans may be considered by the New Orleans Civil Service Commission on January 20, 2023. The next stop would be at the New Orleans City Council on February 2, 2023 for approval by the City Council. Put those two dates on your calendar, it may be necessary to attend in support of these two plans.
I also got a call from a former NOPD officer who now works at another law enforcement agency. I must say that he sounded better and I am happy about that. He told me how his rank had explained the New Orleans Mardi Gras invitation and then, knowing he had come from New Orleans, asked if it was worth $75/hr. to work during Mardi Gras. While his answer had been no, my answer would have been yes.
First, $50/hr and $75/hr are good wages for working Mardi Gras. Second, it would be terrific experience for any outside agencies. Other cities have tried to have a New Orleans style Mardi Gras only to have the party turn into a brawl. Third, you won’t get this type of experience anywhere else. I am sure someone is thinking “they have big crowds in New York all the time and they seem to manage.” Have you ever been to New York for a special event? It is not the same. My daughter and I were in New York for the 4th of July and waited in a long line, put into pens without access to restrooms, food, water, etc. and left there for what would have been hours. I say what would have been hours because we split and went back to watch the fireworks on television at the hotel. I was glad we were allowed to leave.
I had fun at every Mardi Gras I ever worked. I worked on the parade route, in the districts, on motorcycles, on horseback, and in the lead vehicle for parades. It was fun. If I had been paid $50-$75/hr. or more, it would have been more fun.
While there is an occasional incident at Mardi Gras, I can say in all honesty that I didn’t see any or have to work any. I may have had to maneuver a parade around one, but it was not a big deal.
In short: If you are a law enforcement officer from another agency who has an opportunity to come to New Orleans to work Mardi Gras, I would do it. It is fun and the pay is good. If you are a law enforcement officer employed by the NOPD, put 1/20/23 and 2/2/23 on your calendar. You too should be making at least $50 and $75 per hour and we need to make sure we support CAO Montaño’s efforts to make it so.
First, and foremost, if you are a commissioned law enforcement officer and you do not belong to the Fraternal Order of Police and the FOP’s Legal Defense Plan, you should arrange to join at your earliest opportunity. The FOP’s Legal Defense Plan is, by far, the best legal plan available for police officers. A description of the FOP’s Legal Defense Plan can be found by clicking here.
The most important thing to do when you learn that you are the subject of an investigation by your employer is to call your trusted FOP attorney. If you do not have an FOP attorney, you can call me (Donovan Livaccari) and I will try to help get you the best representative considering your circumstances.. There is also a list of approved counsel at http://www.fop.net. Administrative cases for the New Orleans Police Department are a little different. You should definitely call me for NOPD administrative investigations.
Should you call if it is a straight forward case that was recorded on BWC? Yes.
Should you call if you are just a witness? Yes.
Should you call if you know for sure you will be sustained? Absolutely yes.
Should you call if you were told there was no need to call? Certainly.
What if you were told the case would be exonerated or unfounded? Yep.
Officers might only deal with their agency’s disciplinary system once in their careers. It is not a part of agency operations that officers are particularly familiar with. Even officers who may consider themselves veterans of the disciplinary system are usually not thoroughly familiar with the procedures applicable to internal investigations.
The FOP also has a benefit available to its members called the Salary Reimbursement Option (SRO). The SRO allows an officer who is not going to appeal a suspension to recoup some, if not all, of what was lost due to the suspension. For example, let’s suppose you got a 1-day suspension for missing court. After discussing the pros and cons of appealing this suspension with your FOP attorney, you decide that an appeal would be a waste of time — you know you were properly subpoenaed on a case you worked on, you missed court, and there are no Police Officer Bill of Rights issues. You and your attorney conclude that the chances of success on appeal are slim, at best. The Salary Reimbursement Option will reimburse you for the 1 day of salary you lost because of the suspension. The SRO rules require that the FOP member be represented by one of the FOP attorneys during the investigation.
The FOP’s Legal Defense Plan allows its members to hire a professional to assist them with a stressful situation that they are probably not completely familiar with. In fact, there is as much misinformation going around regarding the disciplinary process as there is good information, if not more. I have been doing this work as a full time job since I left NOPD in 2008. That 14 years of experience as a full time job. I also worked on disciplinary cases at NOPD for the 4 years between my graduation from law school and my retirement from NOPD.
The fact is that as an FOP member, you are very likely to belong to the FOP’s Legal Defense Plan. Throughout the State of Louisiana, the FOP’s Legal Defense Plan members can sleep a little better knowing that representation is just a phone call away. I haven’t mentioned criminal investigations or civil actions yet, but representation in those matters is also just a phone call away. If you have any questions, feel free to give me a call.
Sometimes witness officers become accused officers. Sometimes cases that are clearly unfounded become sustained for a different reason. These are all good reasons to pick up the phone and call. You don’t have to worry about how busy I am or whether the investigation is worthy of representation. As a member of FOP’s Legal Defense Plan, you are entitled to representation and I am happy to provide it. In addition, calling for representation keeps your options available for things like SRO or appeal. Make the call. If you don’t have my number, ask in roll call. It won’t be hard to find. Just make the call.
Save the below video for later. As you can see, the video is marked as age restricted and can only be viewed on YouTube where you can assert that you are old enough to watch. The video is a news report by WWL Investigative Reporter Mike Perlstein. You have probably already seen it. If you haven’t seen it, be sure to watch it.
I pride myself on staying in touch with the rank and file officers of the New Orleans Police Department. I talk to officers every single day in one way or another. 90% of NOPD officers are members of the Fraternal Order of Police. So, I know that I will be addressing FOP members, no matter who I am speaking to.
Recently, I happened to be at a district station at roll call time. As I stated above, I try to talk to officers at every opportunity. Since roll call was just getting started, I joined the group of officers getting ready to start their tour of duty. As usual, I popped in, made sure everyone knew who I was, and asked if there was anything in particular they wanted to talk about. That particular day, they were concerned about recent revisions to the NOPD policy on searches and seizures. I bring this up as a good example of the type of “no win situation” I referred to in Mike Perlstein’s story.
In particular, officers were worried about the addition of paragraph 58 of Chapter 1.2.4 on Search and Seizure. This addition is found in the section addressing strip searches. One of the officers had recently attended in service training and had been told that the new policy makes any search that touches the skin of the person searched a strip search. Strip searches are a no-win situation at NOPD.
First, I would refer to the definition of Strip Search found in the policy. A Strip Search is defined as “any search of a person that includes the remove all or rearrangement of some or all clothing to permit visual inspection of the exterior of the suspect’s groin/genital area, buttocks, female breasts, or undergarments covering these areas.” The intent to conduct a visual inspection seems to be a necessary element of a strip search, but my personal experience is that no visual inspection is necessary in any form, Searches where officers have intentionally avoided any possibility of a visual inspection have been declared strip searches.
Paragraph 62 of the policy outlines the steps that officers have to take in order to conduct a strip search. As you can see, there are numerous steps that would be time consuming. That is fine because strip searches are rare and officers should have to dot every i and cross every t when conducting a strip search. One way or another, conducting strip searches regularly is not practical or necessary. Paragraph 58 of the policy potentially changes all that.
Under the section heading of Strip Search, paragraph 58 states that “Unless the requirements for a strip search outlined below are met (paragraph 62), officer may not: (a) reach inside outer clothing and touch skin or underwear, especially in the groin, genital, and buttock/anal region; (b) manipulate items inside outer clothing which may be in direct contact with skin especially in the groin, genital, and buttock/anal region to recover an item or move them into open view; or (c) require someone to remove or rearrange some or all clothing to permit visual inspection of a person’s groin/genital area, buttocks, female breasts, or undergarments covering those areas.”
First, I think the policy already covered part c of paragraph 58. The other two parts, a and b above, make routine searches against policy. These are the types of searches that officers conduct every day. The searches that are required by policy. There is simply no way that officers will be able to comply with the requirements of paragraph 62 every time they have to conduct a search subsequent to arrest before placing an arrested subject in a car for transport. Sometimes arrested subjects have to be placed in the car more than once. For example, if an arrested subject has to be taken to the hospital before going to the lock up, that arrested subject would have to be searched before the trip to the hospital and then again before the trip to the lockup. The waistband is one of the first places officers are taught to search. That however would require officers to “reach inside outer clothing and touch skin or underwear…” So, to conduct routine searches before placing an arrested subject in the rear of a police car, officers have to (1) obtain written authorization from his or her supervisor; (2) be properly trained in strip searches; (3) have and use personal protective equipment; (4) perform the search under conditions that provide privacy from all but those authorized to conduct the search – wait, what? The arrested subject has to be transported to a private area before being able to conduct the search that allows them to be transported in a police car? If that isn’t a no-win situation, I don’t know what one is.
Of course, the policy won’t be enforced unless there is some other reason to enforce it. If there is a complaint or someone happens to watch the body worn video, then it will become an issue. Otherwise, officers will have to continue conducting searches. If they stop conducting searches, officers will get hurt. I will again refer to Officer Holloway. It will happen again.
At the roll call I attended, I told officers to do what they had to do to get home safely at the end of the day. Officers should not have to wonder whether or not they can do something that is designed to protect them. The changes to this policy create more confusion and uncertainty. The searches described in paragraph 58 do not necessarily meet the definition of a strip search. However, they are found in the strip search section. When do these instructions apply? Beats me. What I do know is that the number 1 rule is to make it home safely. Make it home safely. If you get dinged for making it home safely, I will be there with you to fight the good fight. The FOP will also be there with you to fight the good fight.
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.
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