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

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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.

Click here to download the NOPD Handbook app for your smart phone – https://apps.appmachine.com/nopdhandbook/promote/js

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 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.

 

 

What types of disciplinary investigations should I contact my #FOP attorney about?

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The short answer to this question is ALL of them.  There is no investigation too simple or straightforward.  Quite often I hear “I didn’t call you because it was just a missing court case” or “I didn’t call you because it was just a BWC case.”  Unfortunately, my response is commonly “Well, one of the rules of the Salary Reimbursement Option is that you have to be represented by one of the FOP attorneys in order to qualify for the SRO.”  What is an SRO you ask?

The FOP Legal Defense Plan includes what is known as the Salary Reimbursement Option (“SRO”).  The SRO allows officers to make up for salary lost as a result of an unpaid suspension.  In New Orleans, the SRO allows officers to recover up to 5 days of suspension at $150 per day.  In other words, when you get a 1-day suspension for missing court, the FOP will pay you $150 if you choose not to file a Civil Service appeal.

Why not file a Civil Service appeal?  Well, that is the benefit of having one of the FOP attorneys on the case from the beginning.  Your FOP attorneys have been handling disciplinary actions for years.  By the end of the investigation, your FOP attorney should be able to give you a pretty good idea of your chances of success on appeal.  So, after a disciplinary hearing, you and your FOP attorney can discuss whether you are better off filing an appeal with Civil Service or submitting the disciplinary letter for the Salary Reimbursement Option.

I deal with disciplinary investigations every day.  Most officers deal with disciplinary investigations 2 or 3 times in a career.  As such, one cannot expect officers to be thoroughly familiar with the ins and outs of being an accused officer in a disciplinary investigation.  What is the legal burden?  What evidence is allowed?  When does the 60-day rule apply?  When does the 60 days begin and end?  Is the disciplinary hearing considered part of the 60 days?  How long after a disciplinary hearing can an officer expect to receive the disciplinary letter or suspension days?  When can I file a Civil Service appeal?  What is this email I received about a hearing about an extension that cannot be continued?

The answers to some of these questions change based on rulings of appellate courts in Louisiana.  The answers to other questions changes based on changes in an administration.  The point is that even if an officer is tasked with completing disciplinary investigations, there are still aspects of disciplinary investigations which are unknown.

As a member of the FOP Legal Defense Plan, an officer is entitled to representation at no cost to the officer.  We do not judge whether or not an officer deserves legal defense.  We do not judge the accused officer.  If you are a member of the FOP Legal Defense Plan and you become the accused officer or a witness officer in an internal disciplinary investigation, your legal representation is guaranteed.  We are there to protect your rights.  Calling your FOP attorney can also make you eligible for the FOP’s salary reimbursement option when you don’t have a chance on appeal.  Call, text, or email today.

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#NOPD Disciplinary Procedures and Your #FOP Legal Defense

Recently, I had my first run in with the new NOPD disciplinary policies.  I want to repeat the advice I commonly give to FOP members:  CALL YOUR FOP ATTORNEY FOR ANY DISCIPLINARY INVESTIGATION WHETHER A WITNESS OR ACCUSED.

On May 15, 2016, several new “chapters” were placed in effect by NOPD.  The new policies caused changes to both the disciplinary procedure and the penalty matrix.  See my prior article about the changes here.

The new penalty matrix assigns a letter, A-G, to each of the rules —  A offenses are the least severe and G offenses are the most severe.  Professionalism (R.3P.1) is an A offense – Letter of Reprimand territory.  Honesty and Truthfhlness (R2.P.3) is a G offense – mandatory dismissal.

There are a couple of confusing points to make note of right off the bat.

Rule 4, Paragraph 2, Instructions from an Authoritative Source, was always the go-to rule for any violation of an NOPD policy.   Many people were unaware that Rule 4, Paragraph 4(c)(6) is also Instructions from an Authoritative Source.  One had a penalty range of Letter of Reprimand to 3-day suspension and one had a penalty range of Letter of Reprimand to 5-day suspension.  To make things as confusing as possible, several things have happened with Instructions from an Authoritative Source.

First, in the previous iteration of the penalty matrix, R.4P.4(b) was Supervisory Responsibility and R.4P.4(c) was Enumerated Offenses.  For some unknown reason, the new policy switched paragraphs b and c.  So, now R.4P.4(b) is Enumerated Offenses and R.4P.4(c) is Supervisory Responsibility.

Further, R.4P.2, Instructions from an Authoritative Source is now a “C” offense on the penalty matrix (2-10 days).  R.4P.4(b)(6) Instructions from an Authoritative Source is now a “B” offense (Letter of Reprimand-2 days).  The thought process is that the R.4P.2 Instructions is more akin to intentional insubordination as opposed to R.4P.4(b)(6) Instructions which is a negligent or unintentional violation of a rule or policy.  Of course, as mentioned above, it is going to take some time to settle into the new interpretation of these rules.

Confusing?  That is why no officer should be without the representation provided by their FOP attorney.  Pick up the phone and call, no matter how minor the case appears to be.

Police Body Worn Camera Videos

The Louisiana Legislature is currently considering Senate Bill 398 by Sen. Ronnie Johns (R)-Lake Charles.  Senate Bill 398 would exempt all body worn camera videos recorded by police from public records disclosure unless the individual or entity seeking disclosure of the video files a lawsuit and gets a court order directing the video be disclosed.  It should be noted that the bulk of police body worn camera videos will likely be exempt from disclosure based on the already existing law regarding records of ongoing criminal litigation (See La. R.S. 44:3).

In an opinion piece by the NOLA.COM Editorial Board, it is stated that the bill was introduced at the behest of law enforcement.  To clarify that broad assertion, the bill was introduced at the behest of the Louisiana Chief’s Association.  What that means is that the bill was introduced at the request of police administrators across the state, not the rank and file officers.

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Tax or No Tax, The Goals Must Remain the Same

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Cast against the background of the tragic murder of former Saints defensive end Will Smith, discussions of tax measures seem much less important.  There is a fundamental culture of violence that exists in this city which will not go away until the people who find themselves smack in the middle of it decide they will simply not tolerate it any longer.  Until that happens, there will be no meaningful progress in the fight against violent crime in New Orleans.  So, I am going to discuss the failure of the April 9, 2016 tax proposal, but I will be doing so while thinking about Will Smith and all of the other victims of needless violence in the city I choose to call home.

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FOP’s week on Capitol Hill

This past week FOP representatives from across the nation flew to Washington DC for the annual “Day on the Hill” event where the FOP’s national legislative agenda is discussed with members of the House and Senate. With 300,000+ members nationwide, a lobby presence, and state and national legislative offices, the FOP is often able to gain support for, and advance legislation that benefits those who serve this nation in law enforcement and public safety generally.

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Louisiana 5th District Congressman Ralph Abraham, MD

Fraternal Order of Police Louisiana representatives included Darrel Basco, State President; Patrick Yoes, National Secretary; Dawn Powell, State Legislative Committee Chair; James Gallagher, Secretary-Treasurer; and myself, Jacob Lundy, Policy Chairman. Meetings throughout the week included Congressman John Flemming (R); Congressman Charles Boustany (R); Congressman Cedric Richmond (D); Senator Bill Cassidy (R); Senator David Vitter (R); Congressman Steve Scalise (R); Congressman Ralph Abraham (R), and Congressman Garrett Graves (R).

The 2016 FOP national legislative agenda was discussed throughout the week (details below), however FOP Louisiana and FOP New Orleans would like to point out that the murder of Officer Ashley Guindon in nearby Prince William County Virginia on February 27 during her first day on the job dominated talk in Washington and FOP addressed the anti-law enforcement climate around the nation and its effects on public safety with all members of congress from the beginning.

All representatives were predictably alarmed and engaged on this topic and pledged their support in helping to guide discourse in a reasonable and constructive direction, both in Washington and via national media. Our representatives also openly acknowledged their concern over what appears to be a national police recruiting drought with growing vacancies and increasing delays in calls for help as a result of the current climate.

I should make special mention here that each and every member of Congress personally sent their sincere thanks to the men and women of Louisiana law enforcement who continue to serve their communities day in and day out.

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Candid discussions of public safety, criminal justice, and law enforcement specific issues took place during the week with members of congress, many of whom sought FOP’s input on their own agenda items currently underway (body cameras, sentencing reform, opiate/opioid legislation, etc).

FOP’s national legislative agenda for 2016 included the following items of note for Louisiana members;

  • H.R. 973/S. 1651 the “Social Security Fairness Act,” FOP sought and received considerable support for restoring full social security benefits for law enforcement officers who pay into social security via details and additional side-employment throughout their careers but are denied full benefits at retirement
  • Enact S. 125/H.R. 228 to reauthorize the Bulletproof Vest Partnership Grant Program which would provide for matching federal funds in purchasing body armor for state and local law enforcement
  • Support for restoration of the Department of Defense 1033 Surplus Equipment Program. As everyone knows, a single media event resulted in the knee-jerk decision to kill the 1033 program which provides demilitarized equipment to state and local law enforcement; equipment most commonly used to rescue victims of natural disasters or respond to active shooter scenarios – most recently to safely neutralize two well-armed terrorists in San Bernardino following a mass casualty shooting
  • Full funding of the COPS hiring and other grant programs
  • Full funding of the Edward Byrne Memorial Justice Assistance Grant (Byrne-JAG) Programs

All national agenda items received overwhelming support from our representatives, many of whom requested follow-up from the FOP’s national legislative office in Washington DC.

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Louisiana 4th District Congressman John Flemming, MD

In addition to scheduled agenda items, Jim Gallagher and Jacob Lundy were asked to meet with Congressman Cedric Richmond outside of the in-progress House Judiciary Committee hearing on the FBI-Apple debate where we provided input to Congressman Richmond on FOP’s general position as well our direct experience negotiating such obstacles in the course of major felony investigations, namely homicides. Our discussion with Congressman Richmond may be seen on Canal+ television. It is worth noting just after our meeting with Congressman Richmond at the House Judiciary Committee hearing that East Baton Rouge District Attorney  Hillar Moore was scheduled to testify on the murder of Brittney Mills, 29, pregnant at the time of her murder, and whose case may hinge on the contents of an Apple product currently inaccessible to law enforcement.

FOP also discussed and voiced opposition to the recently published Police Executive Research Forum’s paper Use of Force: Taking Policing to a Higher Standard, which, among other items, seeks to abandon 30 years of guiding Supreme Court jurisprudence on the objective reasonableness standard established in Graham v. Connor. While FOP pointed out that the paper contains some items all can agree on, and that law enforcement has and always will strive to improve training – the idealism in the PERF document reflects just how untenable law enforcement employment has become. The PERF document and discussions on its premise highlight the ever growing trend of ignoring social issues until they must be confronted by law enforcement, often during violent encounters, only to have law enforcement take the blame for decades of social neglect by all other stakeholders.

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Senator Bill Cassidy

Overall, FOP representatives nationwide, including Louisiana, described 2016’s Day on the Hill as very productive and engaging. Law enforcement and pubic safety generally were very much on the agenda in Washington DC, a city which has lost 800 police officers since 2014 and saw a 50% increase in homicides through 2015. All parties however expressed their commitment to turning that phenomenon around in future.

 

 

FOP Louisiana and FOP New Orleans would like to thank the following for their support during 2016’s Day on the Hill;

  • All members of Congress listed above, as well as their respective legislative staff members
  • Chuck Canterbury, FOP National President
  • Andy Maybo, Capitol Police Department, President FOP Lodge 1 Washington DC
  • All members of the Capitol Police Department
  • Josh Hodges, National Security Policy Advisor – Senator Vitter
  • Jim Pasco, Executive Director FOP Legislative Office, Washington DC
  • Robert Jenkins, President William Nichols Lodge 8, Miami FL
  • Captain David Bernhardt, FOP West Palm Beach FL

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