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

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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.

What to expect when you’re not expecting it – OIS


In spite of the near constant media coverage of officer involved shootings, they are so rare that most officers have no idea what is going to happen when they find themselves in those situations.  As of October 1, 2016, there has only been one officer involved shooting in New Orleans.  I am hoping this trend of not having officer involved shootings continues.  If, however, an officer is involved in an officer involved shooting, he or she should know what to expect.  For the most part, this article is particularly about New Orleans, but there are bound to be similarities to other jurisdictions. 

First of all, I recommend that once it is safe to do so that you call your FOP attorney.  I have been on the scene of almost every officer involved shooting in the past several years, and I will continue to respond in an officer’s time of need.  

Every officer involved in an officer involved shooting is the subject of a criminal investigation.  There could also be an administrative investigation, depending on the circumstances.  

It is most important that an officer make sure a scene is safe, or as safe as possible, following an officer involved shooting.  Make sure enough backup has been requested and the proper notifications have been made.  If the scene is not safe, take cover or do whatever is necessary to make the scene as safe as possible.  Make sure emergency medical services have been ordered for anyone injured and the scene is safe enough for EMS to respond. 

Once enough officers have arrived to secure the scene, any officers involved in actually firing a weapon will be sequestered.  That means that if you are the officer who had to pull the trigger, you will be removed from active participation in the scene and put in an area by yourself.  That usually means sitting in a car by yourself in a safe location.  

IT IS VERY IMPORTANT that you are aware of your body-worn camera.  It should be turned off as soon as you are removed from active participation in the scene.  You also need supervisory approval to turn off the camera.  So, as soon as you are sequestered, ask a supervisor for permission to turn off the body-worn camera.  Also, be aware of what you say when the camera is running.  While you certainly want to tell other responding officers of any imminent danger or about evidence which might be lost or damaged, you do not want to discuss how the shooting came to be at this point in time.  I have witnessed well-meaning rank asking officers “what happened” while the camera was recording.   It just isn’t in anyone’s best interest to answer that question on video in the middle of a stressful situation before all of the information is available.  

It is my experience that I usually get to a scene shortly after an officer has been sequestered.  I have gotten there before cameras were turned off though and you certainly don’t want to have privileged conversations with your attorney being recorded on a body-worn camera.  Same thing for dash camera. 

One of the first things to do is call your family members and let them know you are safe.  There will undoubtedly be some type of media coverage and you don’t want your loved ones worrying about your safety.  

After being involved in an officer involved shooting, you generally have to do three things:

  1. Give a public safety statement; 
  2. Walthrough; and
  3. Complete a Force Statement

The public safety statement will take place shortly after the officer is sequestered.  The short interview will be conducted by the PIB Force Investigation Team (FIT).  There will likely be a a number of other people present, but only one will ask questions.  The questions are limited to issues which have the potential for impacting the safety of police personnel or the public and information about evidence. 

For example, a public safety statement could include the questions

  •  “How many perpetrators were there?”
  • “Where did the other perpetrator run?”
  • “Did the other perpetrator have a weapon?”
  • “What was the other perpetrator’s description?”
  • “Where should there be shell casings?”

The public safety statement generally takes less than 5 minutes. 

PIB will take your body-worn camera and the Academy will take the weapon used.  If they take your service weapon, they will issue you a loaner. 

You will also be expected to do a “walk-through” of the incident.  It is a strange thing and I’m not quite sure what the purpose is.  You will be be required to walk through the events leading to the shooting without any verbal narrative.  You won’t be asked any questions or expected to say anything.  I guess I have seen this lead to information relative to the location of shell casings and the preservation of evidence. 

You are also required to complete a Force Statement.  I don’t want to get into the nuts and bolts of the Force Statement here, but I have found that the time sitting around sequestered is generally a good time to get the Force Statement written.  It gives you an opportunity to write it and discuss with your attorney prior to submitting the Force Statement.  

The Force Statement is an administrative document only.  It is not shared with the criminal investigators.  It is important to be accurate and thorough with the Force Statement.  

Generally, that is about it.  Officers who are involved in a fatal officer involved shooting will likely be placed on administrative reassignment and sent home.   You get to spend an ample amount of time by yourself.  This isn’t always the best thing as it leaves you to replay the events in your mind while wondering what is going on around you.  

It is good to have your FOP attorney with you for a number of reasons.  It is important to get the necessary information conveyed and to make sure your rights are protected.  It is also helpful to have someone who can tell you who everyone is and what they are doing.  

I hope it doesn’t happen to you.  But, if it does, I will be available for you.  

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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It’s all about the “White Chairs” by Pat Yoes, FOP National Secretary


It’s all about the “White Chairs”

By Patrick Yoes

In New Orleans, the widow of a New Orleans Police Officer, fallen in the line of duty, packs her bags for an early morning flight to the Nation’s Capital to attend a series of memorial services and workshops. Each is carefully designed to not only memorialize her loved one, but also help her cope with her loss and hopefully find closure in a seemingly endless nightmare that replays in her mind each and every time she closes her eyes at night.

She is not alone—the wives and husbands, mothers and fathers, sons and daughters, brothers and sisters, friends and partners of fallen police officers during 2016 prepare for this same journey.

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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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#NOPD Asst. Supt. Arlinda Westbrook Should Resign

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An article appeared on NOLA.com today (3/9/16), with accompanying video, wherein NOPD Assistant Superintendent Arlinda Westbrook was quoted as saying that if NOPD officers have been involved in a recent shooting that involved JPSO deputies that those officers would have been arrested on the spot.  She cited the NOPD policy which addresses the use of deadly force and moving vehicles as the reason why these hypothetical NOPD officers would have been arrested “on the spot.”  These statements are ludicrous, reckless, and unnecessarily inflammatory.  These statements bring disrepute to the department and in making these statements, Ms. Westbrook has proven that she is not fit to be a member of the New Orleans Police Department.

First of all, Ms. Westbrook has never been a police officer.  Ms. Westbrook apparently has no concept of probable cause.  We live, and police officers work, under the rule of law.  People are not arrested or put in jail for violating policies, unless that violation is also a violation of the law.  The law does not prohibit shooting at a moving vehicle when the vehicle is being used as a weapon.  The fact that NOPD has a policy that addresses the use of force with regard to moving vehicles and JPSO does not have such a policy is neither here nor there.  The analysis regarding the legality of the use of force is the same whether it happens in Jefferson Parish, Orleans Parish, or Albuquerque, New Mexico.

Every law enforcement officer has to have a thorough understanding of the basic concept of probable cause. Ms. Westbrook’s comments prove that she does not.  It does not matter that Ms. Westbrook has been running the public integrity bureau now for years, she clearly is not fit for the job. In fact, it should raise questions about any case where a probable cause determination has been made by her office.

It is obvious that these statements were intended to placate the grieving family of an individual who was tragically lost in a scene that, although uncommon, seems to have been played time and time again on the local and national news.  We received a statement from the NOPD indicating that Ms. Westbrook made an error in an attempt to explain NOPD’s policy on shooting at moving vehicles.  Perhaps Ms. Westbrook got caught up in the moment and misspoke.  It is possible that she would retract the statements given the opportunity.  However, the damage has been done.  These statements tend to cause a chilling effect on members of the NOPD.  It would compound the tragedy if an officer were to get hurt or killed because they were wondering if they would be “arrested on the spot” when they were put in a position to take action in a tense, rapidly evolving set of circumstances.  We empathize with the Mr. Harris’s family and would certainly rather not find ourselves in the position of having to address this situation.  That being said, we believe that Ms. Westbrook should resign and, failing that, Superintendent Harrison should insist that she resign.

Louisiana’s Future with Body Worn Cameras

by Jacob Lundy

As always, FOP New Orleans strives to keep members ahead of the curve when it comes to changes in law and policy; both of which seem to occur with considerable frequency in recent years.

As all members of the New Orleans Police Department are aware; we have yet to see any of our body worn camera videos on the evening news. Whether you think that’s a good or a bad thing, it is likely to change in the future. Given events in Chicago over the past several months, combined with the general direction of criminal justice transparency it seems likely that all body worn camera-equipped agencies nationwide will be forced to contend with the public’s desire to see what all these cameras are recording sooner or later. NOPD, for good reason, hastened the implementation of body camera use for the obvious benefits they provide to both police officers and citizens. Clearly, the idea was to get body cameras out into the field as quickly as possible and revisit aspects of Policy 447 (BWC) as needed. As with an ever increasing number of other states, Louisiana state law may soon dictate how and when such videos are made available to the public – among a number of other issues related to managing a body worn camera program.

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The State Legislature has convened a body worn camera task force with the aim of submitting a final report on a variety of concerns related to the possibility of state-wide implementation of body worn cameras. As you might expect, FOP has a seat on the Louisiana Legislature Law Enforcement Task Force for Body Camera Implementation

While body worn cameras are nothing new to NOPD; public release of footage would add another dimension to the now ubiquitous workplace devices and FOP intends to prepare its membership for the corresponding challenges. While a finalized state law could be quite a ways down the road, NOPD continues to transform into an agency of national firsts; FOP would not be surprised to see the department blaze its own trail ahead of the legislature in this arena. Regardless, FOP New Orleans would suggest officers assume today that all videos generated will be subject to public viewing. All of us at NOPD have been working over the past two years with the understanding that all issues of policy and law, from courtesy to use of force, can and will be reviewed via body camera footage by PIB, the FBI, FIT, OCDM, and the IPM (I believe that’s all of them). The men and women of NOPD have embraced the technology and far exceeded expectations in both implementation and performance. Regardless of the department’s exceptional performance, under any new public release law or policy a primary concern of lodge attorney Donovan Livaccari are the implications of actions and statements made between officers during and immediately following critical incidents which were formerly analyzed only by field experts. Members are reminded that a side effect of such transparency is that your actions are likely to be subjectively analyzed, often out of context, by any number of pundits for whom controversy = revenue. Your detractors are not necessarily influenced by the guiding principles of Graham v. Connor. Officers should remain cognizant that all statements made immediately following highly stressful encounters on body camera are indelible and have the ability to shape post hoc analysis of critical incidents. There is really no reason to be ambiguous on this topic; while engaged in the scope of your employment, should you become involved in a major use of force, however justified, you will become a de facto suspect in a criminal investigation. This is a practical FYI for all FOP members who are negotiating a rapidly changing law enforcement environment where literally everything you say and do is recorded – and may soon be at the top of the 5 o’clock news. FOP representatives will be making the rounds in the near future to discuss legal, privacy, and policy concerns with members.

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First meeting of the State Legislature Body Camera Task Force

As referenced above, the Louisiana Legislature created the Louisiana Legislature Law Enforcement Task Force for Body Camera Implementation in late 2015 which is comprised of various experts from state and local law enforcement, attorneys, ACLU and NAACP representatives, mayors, Darrell Basco (President of the Louisiana FOP), and is chaired by Franz Borghardt (criminal defense attorney, Baton Rouge). I spoke with Chairman Borghardt in Baton Rouge following the first meeting of the committee for some background and details on the work ahead, keeping in mind any eventual state legislation will certainly apply to NOPD and guide our continued use of the technology.

Chairman Borghardt on the creation of the task force; “the legislature, in HCR 180 (2015 R.S.), created the task force to study and make recommendations regarding requirements for the development and implementation of policies and procedures for the use of body cameras by law enforcement. This came from a House concurrent resolution by Representative Honore and Senator Broome as a response to legislation that was proposed to mandate, by law, the required use of the devices. The task force’s continued existence is governed by resolution and the task force itself serves at the pleasure of the Louisiana Legislature.” Borghardt continued, “the ultimate goal of the task force is to make an informed and well thought out proposal to the Louisiana Legislature with regard to the implementation and use of body cameras in Louisiana. This includes policies and procedures on implementation, considerations for privacy rights and officer safety, effects on public records law, data storage, and cost considerations.”

To-date the task force has met once for public discussion, a review of the goals of the committee, and homework was assigned to all members for research and input from their respective bodies/agencies to be submitted at future meetings. The committee will reconvene in March 2016.

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Some early discussions of the committee have been focused on a constitutional issue surrounding any mandate that all agencies in Louisiana implement body cameras; under Louisiana’s constitution, the state cannot mandate municipalities implement body cameras without paying for them. I think everyone would agree the state is in no position financially to pay for several thousand body cameras and incur the cost of maintenance and storage. The state does have the option of something called an unfunded mandate, meaning the legislature could require municipalities to implement body cameras at their own cost; those that do not would have state funding in some other area cut (remember when the federal government “suggested” Louisiana raise the drinking age from 18 to 21 or they would cut federal highway dollars = unfunded mandate). This avenue seems unlikely, however. On this particular issue, committee Chairman Franz Borghardt said “legislation that creates an unfunded mandate would likely be something that all parties involved would like to avoid.” What route the state takes in requiring or suggesting all police agencies adopt body cameras remains to be seen, Borghardt identified “long term cost of data storage” as one of the biggest perceived obstacles to state-wide implementation.

Beyond state mandates and associated costs, the most contentious item seems to be the host of privacy issues that surface with body camera use. This includes everything from front-end privacy concerns (can a citizen request an officer turn off his/her camera in their residence, filming in hospitals/schools, etc.) to back-end issues such as release of videos pursuant to records requests – the committee is also discussing whether our current public records law infrastructure would apply to camera footage as-is.

 

FullSizeRender 6Recently committee Chairman Franz Borghardt, Louisiana FOP President Darrell Basco, and others appeared as panelists on the Louisiana Public Square television show in Baton Rouge to discuss the committee’s work and common concerns about body cameras. FOP New Orleans also participated in the discussion on behalf of members to voice lodge concerns. We recommend viewing the show to get a state-wide gauge for the direction of body cameras in Louisiana (watch the show by clicking this link).

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In addition to formulating FOP’s official position on specific points on the commitee’s agenda, FOP President Basco cautioned the committee against hasty legislation that could potentially negatively impact both officers and the public. President Basco is advocating for a thorough review of existing state law elsewhere; the successes and failures of legislation in other states, carefully considering Louisiana’s privacy concerns, and preparing a proposal for a future session so that all members of the committee feel confident in any end result legislation.

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All members of the task force, including the FOP, are sourcing model legislation and existing research and data for submission to the committee. Representatives from New Orleans will also be giving a presentation to the committee on our city’s two years of experience with body worn cameras including the various pros  and cons over that time.

Members wishing to see the direction other states have paved in this area can refer to The Reporter’s Committee for Freedom of the Press site which includes an interactive map with links to each state’s body camera laws (both existing and in-progress legislation). Also worth reading; the Department of Justice/Police Executive Research Forum study “Implementing a Body-Worn Camera Program; Recommendations and Lessons Learned”.

Regardless of existing data and research, Chairman Borghardt appropriately points out that “it is evident that the implementation of body cameras, in as much as policy and procedures can be enacted, will also require organic growth in understanding unforeseen issues with their use.”

As FOP New Orleans’ policy chair, I can report with confidence from the legislative committee to ongoing discussions in Baton Rouge; there is overwhelming support for body cameras across Louisiana but no consensus on when and how videos should be made public.

Additional articles/studies and relevant law can be found in the hyperlinks below;

Louisiana Title 44.1 et seq Public Records Louisiana Revised Statutes

7 Findings from First Ever Study on Body Cameras PoliceOne.com

Growing use of Police Body Cameras Raises Privacy Concerns Los Angeles Times

Use of Force Reporting Guide and Checklist Signal108, Donovan Livacarri

Reasonableness and Post-Riley Smartphone Searches

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The below article was reproduced from The Federal Law Enforcement Informer, August 2015 issue.  The Informer is a product published by the Department of Homeland Security, Federal Law Enforcement Training Center (FLETC), Office of Chief Counsel, Legal Training Division.  The entire document, which contains case notes on notable federal cases, can be found here.

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