No Win Situations in New Orleans

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.

Searches are a daily occurrence for police officers. Policy requires that every arrested subject be searched. Every time someone rides in a police car, they must be searched before they are put in the car. On June 20, 20215, Officer Daryle Holloway was killed in the line of duty by an arrested subject who had managed to get a gun into the back of the police car. In spite of being handcuffed behind his back, Officer Holloway’s assailant managed to shoot and kill him. Searching arrested subjects is serious business that is absolutely necessary for everyone’s safety. Paragraph 58 places all of that in jeopardy.

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.

Police Reform Legislation

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.

NFOP President Makes Big Announcement About Federal PSOB

On April 9, National Fraternal Order of Police (“NFOP”) President Pat Yoes, former Louisiana FOP (“LAFOP”) President, announced changes to the federal Public Safety Officers’ Benefit (“PSOB”) program as it relates to COVID-19 deaths.

If you are not familiar with the federal PSOB program, it is administered by the Department of Justice’s Bureau of Justice Assistance. Click here for more information on PSOB. The PSOB program pays a benefit of $365,670 to the family of a law enforcement officer killed in the line of duty. PSOB also pays up to $1,248/month for education expenses for the children of an officer killed in the line of duty. Click here for more information on the PSOB benefit, which changes every year. Click here for the PSOB Fact Sheet.

The PSOB includes deaths caused by “infections diseases” already, but establishing that an officer died from an infectious disease contracted in the line of duty can be difficult. In light of the current circumstances as it relates to the SARS-CoV-2 virus and COVID-19, the resulting illness, the Department of Justice published new guidance regarding PSOB benefits.

In general, BJA will find that the evidence shows a public safety officer with COVID-19 contracted it in the line of duty, when (1) the officer had engaged in line of duty action or activity under circumstances that indicate that it was medically possible that the officer was exposed to the virus, SARS-CoV-2, while so engaged; and (2) the officer did contract the disease, COVID-19, within a time-frame where it was medically possible to contract the disease from that exposure. In addition, in the absence of evidence showing a different cause of death, BJA generally will find that the evidence shows a public safety officer who died while suffering from COVID-19 died as a direct and proximate result of COVID-19.

Of course, we would prefer that everyone is able to make it home from work at the end of every shift safely. Unfortunately, with deaths piling up across the United States, we know that is not reasonable. Some law enforcement officers have already been killed by COVID-19.

The guidance from the Department of Justice as it relates to PSOB benefits essentially makes the families of law enforcement officers who die from COVID-19 presumptively eligible for PSOB benefits as long as it is not medically impossible that the officer contracted COVID-19 in the line of duty.

Merely coming into contact with members of the public or co-workers makes it medically possible an officer is exposed to the SARS-CoV-2 virus. Hopefully, at some point soon, we will have a vaccine for this virus. Until then, every additional close interaction with another human being carries with it an increased risk of being exposed to the virus. The DOJ recognizes this in the 1st part of its guidance.

Additionally, it looks like symptoms of COVID-19 can begin as far out as 14-21 days from exposure to the SARS-CoV-2 virus. Furthermore, once someone develops symptoms, those symptoms could last for 14-21 days (or longer). The DOJ recognizes this in the 2nd part of its guidance.

Finally, the DOJ recognizes that if an officer was suffering from COVID-19 at the time of the officer’s death, it is most likely the death was caused by COVID-19 unless there is evidence of a different cause of death.

In short, the DOJ’s guidance to BJA is that as long as it is not medically impossible for an officer to have been infected by the SARS-CoV-2 virus and to have contracted COVID-19 as a result of “line of duty action or activity,” then BJA is going to assume that officer’s death to be eligible for PSOB benefits.

While this does not make reporting to work any safer, maybe it can provide law enforcement officers will a little sense of security that their families will receive the PSOB should they make the greatest sacrifice while protecting the public during this coronavirus pandemic. Many thanks to our hometown President, Pat Yoes. Furthermore, thanks to Attorney General Barr and President Trump for their support of law enforcement during this unique time in our history.

The Fraternal Order of Police is the world’s largest organization of sworn law enforcement officers, with more than 330,000 members in more than 2,200 lodges. We are the voice of those who dedicate their lives to protecting and serving our communities. We are committed to improving the working conditions of law enforcement officers and the safety of those we serve through education, legislation, information, community involvement, and employee representation. No one knows the dangers and the difficulties faced by today’s police officers better than another officer, and no one knows police officers better than the FOP.

NFOP President Pat Yoes is a Captain for the St. Charles Parish Sheriff’s Office.

The Louisiana Fraternal Order of Police, led by President Darrell Basco, has over 6,000 members statewide. The Crescent City Lodge, with President Walter Powers, Jr., has about 2,000 of those members in Louisiana. About 1,100 of those 2,000 members are active members of the New Orleans Police Department. The remainder of Crescent City Lodge members is mostly retired members of the New Orleans Police Department. The Crescent City Lodge represents about 90% of active NOPD officers from Recruits to the Superintendent of Police.

Note: While it is ultimately up to the deceased officer’s agency to submit the PSOB application, the Fraternal Order of Police has assisted agencies with applications for PSOB benefits on numerous occasions.

Donovan Livaccari,
General Counsel
Louisiana FOP

Disciplinary Investigations and Off-Duty Conduct

This time of year, it is inevitable that an officer or two get in trouble for off-duty conduct. Sometimes the off-duty conduct leads to significant disciplinary action. The FOP will be there for you, as always, but, generally speaking, it is easy to avoid the off-duty behavior that comes to the attention of the Public Integrity Bureau, or Internal Affairs as the case may be.

The vast majority of discipline related to off-duty conduct is related to sex or the use of alcohol.

As police officers, you see it every single day. People who have been drinking make poor decisions. I’m just going to go ahead and say the obvious – Police Officers who have been drinking make poor decisions too. You may be able to get some professional courtesy on a regular traffic stop (and you might not – some officers are real nervous with a BWC and an ICC recording their every word and move), but if you are involved in an accident, the officer may not have any choice but to take action. A close relative of mine was stopped by an officer who used to be one of my subordinates. We did not have a contentious relationship and I helped him out quite a bit. I was surprised to learn that particular officer had arrested someone he knew to be a close relative of mine when he could have just as easily given him a ride home. My relative had not been involved in an accident or anything like that, it was a simple traffic stop. The point is that today’s political atmosphere makes it less likely that officers exercise any type of discretion.

It’s not just driving either. Alcohol can make it seem like a good idea to start an argument with the guy sitting on the barstool next to his. Alcohol can make it seem like a good idea to start a fight with an ex-husband. Did you know it is legal for an officer to carry a concealed firearm in an alcoholic beverage outlet? La. R.S. 14:95.5 allows it, as does the federal laws known as LEOSA. If, however, you think it is a good idea to carry a concealed weapon in a barroom, I would have to ask you if you are drinking while reading this. Just don’t do it. Just FYI, you are not covered by LEOSA if you are intoxicated. Also, for the New Orleans Police Department, Rule 3, Professional Conduct, Paragraph 9, Use of Alcohol/Drugs Off Duty, says that commissioned personnel are forbidden from carrying firearms in an ABO, while consuming alcohol, or while intoxicated. Part of that rule may still violate LEOSA, but La. R.S. 14:95.5 allows the Superintendent to make it a violation of Department rules to carry a firearm in an ABO.

Sex is the next source of off-duty disciplinary action. It is not a good idea to hook up with people you meet on calls for service. It does not matter if they are the complainant or the subject of the complaint.

If you come across someone who looks like they could use a ride home, make sure it is to their home and not yours. Make sure the dispatcher knows about it and that all of the transport mileages are recorded. Finally, make sure all of the recording devices you carry around these days are activated.

There are also police officers involved in abusive relationships. Now, I understand this is not as simple as just saying “don’t do it.” I would, however, like to encourage any officer involved in an abusive relationship to seek help. At the New Orleans Police Department, Cecile Tebo is available at no cost through the Office Assistance Program to help however she can. No matter where you are or what department you work for, there is help available somewhere. Take advantage of that help before you lose your job over it.

The standard, as is always the case, is that the alleged infraction must bear a real and substantial relationship to the efficient operation of the public service. The Courts in Louisiana have applied that rule fairly liberally. That means that if your Department believes there is a real and substantial relationship between the alleged dereliction and the efficient operation of the public service, the Courts are likely to go along with that.

As we are recently reminded by the Louisiana Supreme Court, neither the Commission nor a reviewing court should “second-guess” an appointing authority’s decisions. See Lange v. Orleans Levee District, 10–0140, p. 17 (La.11/30/10), 56 So.3d 925, 936. The Commission and a reviewing court may intervene only when the appointing authority’s decisions are arbitrary and capricious or characterized by an abuse of discretion. Id. Moreover, neither the Commission nor the reviewing court may serve as a de facto pardon board. Id. “[S]ympathy is not a legal standard.” Id.

Chinh Nguyen v. Dep’t of Police, 2011-0570 (La. App. 4 Cir. 8/31/11), 72 So. 3d 939, 944.
I hope everyone has had an enjoyable Holiday Season and that none of this advice is necessary. If it becomes necessary, call me.

VERY IMPORTANT – 1st Amendment Update

UPDATE (8/1/19) – I started off with warnings not to share your political ideas on Facebook or the like. My recommendation has changed. Do not post anything on Facebook, Twitter, or the like. There are no privacy settings that will protect you. Sometimes it takes it hitting home to really make the message clear. 2 Gretna Police Department officers fired for one Facebook post. However, these days, hitting home does not mean it only hits home. The story of the 2 Gretna officers fired for Facebook posts can also be found in the New York Times. One of the Gretna officers wrote a post. The other officer merely clicked “Like” on the post. Play around with the search bar on Facebook. It is much more powerful than you might imagine. Search Google for tips and tricks for the Facebook search bar.

Just don’t do it. If you want to share pictures of your newborn child with your relatives spread across the country, go ahead – use Facebook – you can’t beat it. However, if you have a joke, a meme, or anything like that, keep it to yourself. When is the last time you tried to convey humor or sarcasm in a text message and it failed completely? It is very difficult to convey emotion or feeling. The same is true with Facebook. To make matters worse, there are those who don’t understand that articles in The Onion are satire, or what satire is. There are people who really believe that the United States Postal Service would create a  commercial to brag about the number of fingers shipped by kidnappers. They are quite comical. You will find at least some of them amazing and amusing. However, what you wrote as a police officer can and will get you fired. Hitting a “Like” button is reported in the New York Times.

We post the FOP newsletter in the Crescent City Lodge Facebook Group. Anything wrong with reading that there? No. You probably cannot post in the Crescent City Lodge Facebook Group at all — well, not without approval. Why? It is for your own protection. There is no such thing as privacy on the Internet and nothing goes away. There are some things that are completely beyond your control. This is not one of those things. Educate yourself and protect yourself – click here.

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Do you want to be in the movies?

I received an email from Central Casting Louisiana. The test of the email is below. Anyone who is interested (and available) can email Hunt@CentralCasting.com.

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2017 in Review

At the beginning of the year, I like to review and compare the prior year’s activity with other years. In addition, since there have been so many new hires at NOPD, it always helps to give some context to the system that most officers don’t come into contact with often enough to be familiar with.

The FOP continues to provide the best legal assistance for law enforcement officers through its Legal Defense Plan. The Legal Defense Plan offers its members legal representation for any administrative disciplinary proceeding, civil defense resulting from on-the-job actions, and criminal allegations. There is no judgment involved. If a member requests legal services, they get it.

There is no situation which is too big or too small. The Legal Plan is set up to be able to handle situations that garner national attention. At the same time, we recognize how much law enforcement officers value their service record and we treat the most minor of circumstances with the same attention.

It is most beneficial to everyone when an officer who finds themselves involved in any way in one of the covered types of events contacts us as early as possible. I got a call from someone recently who had resigned under pressure to do so and felt like it shouldn’t have gone that way. I can’t argue with that – I don’t think anyone should be pressured into resigning without at least having the opportunity to meet with counsel. However, this person didn’t call until after he had resigned. As much as I would have loved to be able to help, the act of resigning eliminates almost every avenue of redress. So, call early and stay in touch.

My brother-in-Law, Corey Lloyd, was admitted to the Louisiana Bar in 2017. He had been helping me with Civil Service appeals while he was in law school. Since he is now a certified member of the Bar, he is now available to assist in situations which call for more than one attorney or when calendar conflicts prevent me from being somewhere. It is always nice to have another attorney committed to helping FOP members. He has also been helping FOP members with Family Law issues. The FOP offers a $400 (4 hrs at $100/hr) benefit per year to each member for Family Law issues.

2017

In 2017, I represented 410 individual officers in one capacity of another. That is up a little from 2016’s 398 officers. For those 410 officers, I appeared with FOP members at:

  • 103 disciplinary hearings (up from 83 in 2016)
  • 251 Statements (up from 228 in 2016)
  • 102 Civil Service Extension Request Hearings
  • 17 Accident Review Board Hearings (down from 36 in 2016)
  • 13 Civil Service Appeal Hearings (down from 23 in 2016)
  • 2 Officer Involved Shootings

In addition, I assisted FOP members with:

  • 85 Notary Service
  • 31 Personal Legal Needs
  • 10 Negotiated Settlements

While it appears that complaints were down a little from 2016-2017, it was still a busy year. Improvements were made to the disciplinary system in the penalty matrix and the use of BWC’s to clear complaints. Civil Service appeal hearings are down primarily because more Civil Service appeals were settled amicably before a hearing was necessary. The Personal Legal category refers to legal needs of members that are not covered by the Legal Defense Plan. The FOP offers each member a benefit of 2 hours of legal services per year for things outside of the Legal Defense Plan. This might include wills, living wills, successions, etc. It is separate from the Family Law benefit. Notary services are available to FOP members at no cost. I also continue to serve as Employee Representative for Crescent City Lodge members, helping them to address almost any employment related issues with NOPD.

At Livaccari Law, we also represent officers who have been involved in automobile or motorcycle accidents on a regular basis. My father, Tony Livaccari, heads up that aspect of the practice with more than 30 years of experience. Anyone who has worked with Tony knows that he looks out for FOP members.

I cannot stress enough the importance of picking up the phone and calling. I will respond to the scene of officer involved shootings. We can’t help when we don’t know a member is in need of help. In addition, as noted above, sometimes things happen which preclude our helping in any meaningful way. So, as I stated above, call early on. Nothing is too trivial and I’m not too busy to talk, even if I have to call you back – you can always text.

As I have stated numerous times, I feel as though I am blessed to be able to represent FOP members. I was admitted to the Louisiana Bar after serving 11 years with NOPD. I started representing law enforcement officers, primarily in New Orleans, in 2008 when I retired from NOPD. I still spend the majority of my time representing NOPD members. I do represent FOP members in other jurisdictions in Louisiana and do work for both the Crescent City Lodge and the Louisiana State Lodge. I look forward to doing more of the same in 2018. Additionally, the addition of Corey Lloyd to available counsel will make it easier to do this job better. So, thank you to the FOP Crescent City Lodge, particularly Jimmy Gallagher, who got me involved with the FOP back in 2004. Thanks to Darrell Basco, President of the Louisiana FOP, for allowing me to represent the over 6,000 FOP members in Louisiana. Finally, thanks to you, the FOP members for keeping me on your speed dial.

U.S. Fifth Circuit Case Update – 1st Amendment and Terry Stops

See the below two cases for important case law out of the U.S. 5th Circuit.  Case summaries compiled by The Federal Law Enforcement Informer, Federal Law Enforcement Training Center (FLETC).

United States v. Monsivais, 848 F.3d 353 (5th Cir. Tex. Feb. 2, 2017)

While on patrol in a marked police car, two officers saw Monsivais walking on the side of an interstate highway away from an apparently disabled truck. The officer stopped the patrol car in front of Monsivais and activated the car’s emergency lights, planning to ask Monsivais if he needed assistance. As Monsivais approached, he ignored the officers and walked past their patrol car. At this point, the officers exited their vehicle, and asked Monsivais where he was going, where he had been and if he needed any help. Monsivais told the officers where he was going, and while he appeared to be nervous, he responded politely to all of the officers’ questions. After approximately four-minutes, one of the officers told Monsivais that he was going to pat Monsivais down for weapons “because of his behavior” and for “officer safety reasons.” Monsivais then told the officer that he had a firearm in his waistband. The officer seized the firearm and the government subsequently charged Monsivais with possession of a firearm while being unlawfully present in the United States.

Monsivais filed a motion to suppress the firearm. Monsivais argued that the officer violated the Fourth Amendment because he did not have reasonable suspicion to believe Monsivais was involved in criminal activity when he detained him.

The court agreed. First, the court determined that the officer seized Monsivais for Fourth Amendment purposes when he told Monsivais that he was going to pat him down. At this point, the officer had converted an offer for roadside assistance into an investigative detention or Terry stop.

Second, the court noted that police officers may briefly detain a person for investigative purposes if they can point to “specific and articulable facts” that give rise to reasonable suspicion that the person has committed, is committing, or is about to commit a crime.

Third, the court concluded that while Monsivais’ behavior might not have been typical of all stranded motorists, the officer could not point to any specific and articulable facts that Monsivais had committed, was committing, or was about to commit a crime before seizing him. The officer testified that he never suspected Monsivais was involved in criminal activity, but rather that Monsivais was acting “suspicious.” As a result, the court found that the officer seized Monsivais without reasonable suspicion and that the firearm seized from Monsivais should have been suppressed.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/15-10357/15-10357-2017-02-02.pdf?ts=1486081834

*****

Turner v. Driver, 848 F.3d 678 (5th Cir. Tex. Feb. 16, 2017)

In September 2015, Turner was videotaping the Fort Worth Police Station from a public sidewalk across the street from the station. During this time, Fort Worth Police Officers Grinalds and Dyess pulled up in their patrol car and approached Turner. Officer Grinalds asked Turner if he had identification, but Turner continued videotaping. When Turner asked the officers if he was being detained, Officer Grinalds told Turner that he was being detained for investigation because the officers were concerned about who was videotaping their building. After Turner refused Officer Grinalds’ continued request for identification, the officers handcuffed Turner, took his video camera, and placed Turner in their patrol car.

A short time later a supervisor, Lieutenant Driver, arrived and spoke briefly with Turner as well as Officers Grinalds and Dyess. After Lieutenant Driver left, the officers went back to their patrol car, released Turner, and returned his video camera to him.

Turner sued Lieutenant Driver and Officers Grinalds and Dyess under 42 U.S.C. § 1983 claiming that they violated his rights under the First and Fourth Amendments. The officers filed a motion to dismiss Turner’s suit, claiming they were entitled to qualified immunity.

First, the court found that at the time of the incident, in the Fifth Circuit1, there was no clearly established First Amendment right to record the police2. As a result, the court held that all three officers were entitled to qualified immunity as to Turner’s First Amendment claim.

Although the right was not clearly established at the time of Turner’s activities, the court held that going forward in the Fifth Circuit, a First Amendment right to record the police exists subject only to reasonable time, place, and manner restrictions. The court did not determine which specific time, place, and manner restrictions would be reasonable, but stated that restrictions must be “narrowly tailored to serve a significant governmental interest.”

Concerning Turner’s Fourth Amendment claims, the court held that the officers’ initial questioning and detention of Turner, before he was handcuffed and placed in the patrol car was reasonable. The court noted that an objectively reasonable person in Officer Grinalds’ or Dyess’ position could have suspected that Turner was casing the station for an attack or stalking an officer. As a result, the officers could have found Turner’s videotaping of the station sufficiently suspicious to warrant questioning and a brief detention.

However, the court held that Officers Grinalds and Dyess were not entitled to qualified immunity on Turner’s claim that handcuffing him and placing him in the officers’ patrol car amounted to an unlawful arrest. The court found that a reasonable person in Turner’s position would have understood the officers’ actions constituted a restraint on his freedom of movement to the degree associated with a formal arrest. The court commented that the officer’s actions in this regard were disproportionate to any potential threat that Turner posed or to the investigative needs of the officers. Consequently, the court concluded that handcuffing Turner and placing him in the patrol car was not reasonable under the circumstances.

Finally, the court held that Lieutenant Driver was entitled to qualified immunity as to Turner’s Fourth Amendment claims. First, under §1983, supervisors are not liable for the direct actions of their subordinates. Second, by the time Lieutenant Driver arrived, Turner had already been handcuffed and placed in the officers’ patrol car. Third, after Lieutenant Driver arrived, he immediately investigated the situation by talking with Officers Grinalds and Dyess as well as Turner, and he then promptly ordered Turner’s release.

1 The First and Eleventh Circuits have held that the First Amendment protects the rights of individuals to videotape police officers performing their duties.

2 While no circuit has held that the First Amendment does not extend to the video recording of police activity, the Third, Fourth and Tenth Circuits have held that the law in their circuits is not clearly established, without specifically determining whether such a right exists under the First Amendment.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/16-10312/16-10312-2017-02-16.pdf?ts=1487291433

The Garrity Case and Law Enforcement Officers

Garrity v. State of New Jersey, 87 S.Ct. 616 (Jan. 16, 1967) is a very important case for law enforcement officers everywhere.  It is also widely misunderstood and there are aspects of its implementation that are as of yet undecided.  The fact that this case is very important to law enforcement officers and still widely misunderstood underscores the value of the FOP Legal Defense Plan and attorneys who practice law on behalf of law enforcement officers every day.

It has been well-documented that one of the biggest legal issues people face is that they cannot afford access to the legal assistance they need.  Many legal issues go unaddressed.  I am sure that if you haven’t experienced this yourself, you probably know someone who has.  The FOP Legal Plan helps FOP members access the legal services they need.  I cannot say this enough:  Pick up the phone and call.  It doesn’t matter how important or unimportant it seems, pick up the phone and call.  As an FOP member, you have access to legal professionals at no cost to you beyond your monthly dues.  Pick up the phone and call.  Now, on to Garrity v. State of New Jersey.

Six individuals, including Police Chief Edward Garrity, four police officers, and a clerk of court were investigated by the New Jersey Attorney General at the direction of the New Jersey Supreme Court in connection with a ticket fixing racket.  During questioning, the employees were advised that:

  1. Anything he or she said might be used in a criminal proceeding;
  2. He or she had the privilege to refuse to answer if the answer would tend to be self-incriminatory; and
  3. Refusal to answer would be cause for removal from office.

The answers to their questions were used in their prosecution, over their objections, to secure their conviction for conspiracy to obstruct the administration of traffic laws.  The convictions were affirmed by the New Jersey Supreme Court and an appeal was taken to the U.S. Supreme Court.

The U.S. Supreme Court overturned the convictions, holding that police officers were “not relegated to a watered-down version of constitutional rights.”  Basically, the U.S. Supreme Court held that since they were given the choice of self-incrimination or job-forfeiture, the statements were coerced.  Since the statements were coerced, they were inadmissible.

We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.

Garrity v. State of N.J., 385 U.S. 493, 500, 87 S. Ct. 616, 620, 17 L. Ed. 2d 562 (1967).

What that boils down to for police officers is that any time their employer, or someone who is authorized to terminate the officer’s employment, informs an officer that the choice is answer questions or be fired, those answers, and any fruits of those answers, will be inadmissible in criminal proceedings against that officer.

First issue:  The person asking the questions must have the authority to terminate the officer’s employment.  For example, if an FBI Agent tells a city police officer that they are required to answer questions or be terminated, Garrity does not apply.  If a city police officer is ordered by his employer to answer the Agent’s questions or be fired, then clearly Garrity will control.

Second issue:  In order for Garrity to control, the officer must reasonably believe that he will be terminated should he refuse to answer.  If the penalty for refusing to answer is minor or non-existent, the answers will be considered voluntary and will be admissible.  It is preferable to have this ultimatum in writing.  At the very least, it should be audio recorded.  If it is not in writing or read into the record by someone in a position of authority, the officer will have to prove that he had a reasonable belief that he was under an order to answer questions or face termination.  This is not a sure thing.

Third issue:  Garrity does not stand for the proposition that officers have the option of refusing to answer incriminating statements.  It only stands for the proposition that police officers cannot be coerced into making incriminating statements by threatening their employment.  The cases known as Uniformed Sanitation I and Uniformed Sanitation II address refusal to answer and, basically, if the statements are immunized, an officer can be terminated for refusing to answer.

Fourth issue:  Garrity protects an officer from incriminating himself.  It does not mean that the statements cannot be used against someone else.

Fifth issue:  Garrity stands for the proposition that coerced statements are inadmissible in a criminal proceeding.  That may not include grand jury proceedings.

There are many other questions about the application of Garrity.

  • Can the ADA get copies of Garrity protected statements?  Yes.  If they do, they run the risk of having evidence ruled inadmissible as a result.  The DA may very well be able to use Garrity statements for Grand Jury proceedings.
  • What is the remedy if an ADA gets copies of Garrity protected statements?  That depends.  If it is possible to continue the prosecution if the statements or their fruits are excluded, it could be continued.  If, however, the statements or their fruits are so intertwined with the prosecution that there is no way to separate them from excluded statements, then the remedy could be dismissal.
  • What about statements made in police reports?  While officers are probably required to complete police reports or face disciplinary action, statements in police reports are not likely to qualify as immunized statements.  In general, statements made in the normal and usual course of business will not be immunized statements.
  • What if I write in my own Garrity warning?  There is a school of thought that if an officer perceives that he is answering questions under a thread of termination, that he should write that in.  I do not see a downside to that.  However, there is no real reason to believe it will be successful.
  • If I am ordered to answer questions, can I assert my 5th Amendment right to remain silent?  No.  In the Uniformed Sanitation II case, the court held that once you are immunized, you no longer have the right to remain silent.
  • Do the holdings in Garrity apply to breathalyzers, blood tests, etc.?  No.  Garrity applies ONLY to statements (testimonial or communicative communication).  See Schmerber v. State of California, 384 U.S. 757, 86 S. Ct. 1826 (June 20, 1966).
  • Are the contents of police reports subject to the provisions of Garrity?  No.  Documents written in the regular course of business are not going to be covered by Garrity.  In prosecution of police officer for beatings and assaults, the government’s introduction in evidence of the arrest report made out by defendant concerning the drug raid in which the complainants were arrested, and his grand jury testimony, did not implicate in any way his right against self-incrimination.  U.S. v. Rios Ruiz, C.A.1 (Puerto Rico) 1978, 579 F.2d 670.
  • What about Force Statements?  One could make the case that Force Statements are compelled testimony as the documents are created as a result of an order specifically related to the act in question.  This is not settled.  It is worth noting that most prosecutors believe these are NOT Garrity protected documents.  This may be a good place to include your own Garrity statement, but may very well turn into a trial-time fight about admissibility.

Is this a special perk of being in law enforcement?  Are police officers given some benefit not available to the average citizen?  No.  Everyone has the right to remain silent pursuant to the 5th Amendment to the U.S. Constitution.  Most people do not have government agents as employers.  Police officers, and other public employees, can be ordered to answer questions posed by government agents or face termination.  Private employers can order an employee to answer questions, but answering those questions does not place a private employee in the position of having to incriminate themselves to a government agent.  One way or another, the fact is that the application of Garrity simply allows police officers and other government employees to make use of the same constitutional protections as everyone else.

There are plenty of resources available on the internet regarding Garrity.  You can download the Garrity case by clicking here (.pdf).  You can download the Schmerber case here (.pdf).

Don’t hesitate to contact your FOP attorney with any questions about Garrity or any other legal issues you may encounter as a police officer.

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