New Orleans LA July 7 2013 A bar fight. Drunkenly shooting up a car. Driving drunk. These are crimes that could lead to jail time for ordinary people, but if police officers are caught doing them, they could be fired.
However, a January court ruling which found the New Orleans Police Department has been dawdling in investigating such allegations against officers -- thus violating officers' rights to speedy internal investigations -- has opened the door for cops who were fired or suspended to get their jobs back, along with thousands of dollars in back pay.
This week, NOPD officer Keyalah Bell, who was caught driving while intoxicated in 2011, became the latest member of the force to successfully appeal her firing. The department was told Tuesday to reinstate Bell with full back pay, or about $37,176.
Bell is not the only officer who has benefited from the legal ruling, which Police Superintendent Ronal Serpas called a "drastic change of the court's long-standing position on this matter."
At least four officers who were fired, one who was suspended and one who was demoted, have either already been awarded back pay or may be eligible for it -- a total of more than $308,000 -- because the Police Department's investigations into their actions took too long, according to an analysis by NOLA.com | The Times-Picayune.
Those six cases could be just the tip of the iceberg. The NOPD could owe hundreds of thousands of dollars, if not more, to officers who were improperly disciplined or terminated.
Attorneys say they are reviewing disciplinary measures to see who else could be eligible for back pay, or in some cases, regain their jobs or rank.
"It's certainly the responsible thing to do," said Eric Hessler, an attorney for the Police Association of New Orleans. "There are more."
NOPD investigated the six officers for both criminal and administrative violations. Both types of investigations tend to rely on the same evidence, but the consequences and burdens of proof differ.
NOPD's longstanding policy has been to wait for all criminal cases to be disposed of before investigating possible violations of departmental rules. As a result, at times, the NOPD broke a state law known as the Police Officers' Bill of Rights, which mandates that all administrative investigations must be completed within 60 days if there is no reason to extend that time limit to 120 days. Any discipline handed out beyond then is null, the law states.
The law prevents police departments from punishing officers by dragging out administrative investigations, which hamper an officer's ability to be promoted and to work paid, off-duty details. "It puts a cloud of suspicion over their head," Hessler said.
Internal investigators called hypocritical
NOPD maintains it has been delaying administrative probes because internal investigators can compel statements from officers in administrative proceedings; because the U.S. Constitution protects citizens against self-incrimination, any compelled statements cannot be introduced as evidence against officers in Criminal Court proceedings. Therefore, NOPD said it didn't want to compel statements from officers who were being investigated both criminally and administratively until any criminal cases were over.The Police Officers' Bill of Rights states in part: "nothing ... shall limit any investigation of alleged criminal activity." NOPD took that to mean nothing, not even an administrative probe, should interfere with a criminal investigation.
In December, a Louisiana 4th Circuit Court of Appeal panel comprised of Judges Charles Jones, Daniel Dysart and Max Tobias Jr. sided with that interpretation in a split decision affirming the termination of NOPD officer Patrick O'Hern, who had been fired for taking prescription medication, getting drunk and shooting up his personal car while he was on duty in December 2009. Tobias dissented.
But in January, an appellate panel ruled differently in the case of an NOPD sergeant, Tyrone Robinson, who had been suspended for 30 days after being accused of battering a female student while working a detail at a local high school in 2008. The panel, which included Tobias, said that permitting NOPD's practice of delaying the start of administrative investigations into officers until after any criminal cases against them are disposed of "would disembowel the Police Officers' Bill of Rights."
A common sense interpretation of the wording in the bill of rights is that the time limitations in the statute should not apply to criminal investigations, the appellate panel in Robinson's case said. The city asked the state Supreme Court to review the appellate court's findings, but the high court declined to do so.
"It is our hope that PIB reviews and conforms its internal policies to obey the 4th Circuit's judgment without fail," said Raymond Burkart III, a Fraternal Order of Police attorney who represented Robinson.
It remains to be seen whether NOPD's Public Integrity Bureau, which handles internal investigations, will change its policy. Serpas said, "The NOPD will continue to review its appeal options with the city attorney, given the recent, drastic change of the court's longstanding position on this matter."
Both Hessler and Burkart said it is imperative that the Public Integrity Bureau, or the PIB, does so.
"It's in everyone's best interest because if a police officer is accused of wrongdoing, especially serious wrongdoing which may be considered criminal, then they have a higher obligation to investigate it and get to the bottom of the allegations as quickly as possible," Hessler said. "It's just irresponsible not to follow the law."
Burkart added, "You run into a problem when PIB takes the law into its own hands, which ... is very hypocritical when you are the division enforcing the law, all laws, against police officers themselves."
Officers subjected to lengthy investigations
In Robinson's case, the Public Integrity Bureau waited almost a year to complete its internal investigation, after a simple battery charge against the sergeant was dropped in Municipal Court. Robinson received a 30-day suspension without pay.
Robinson appealed, arguing that the drawn-out investigation violated his rights. The Civil Service Commission turned him down, but the state 4th Circuit Court of Appeal agreed with him. After the Supreme Court opted to not review Robinson's case, the sergeant will be owed back pay for the duration of his suspension. One month of salary for Robinson equals about $4,315, records show.
Meanwhile, the PIB waited about three months to open an investigation into O'Hern, who ultimately pleaded no contest to two counts of criminal mischief and was sentenced to a couple of years of probation. He was fired from the NOPD in October 2010, about 10 months after the incident; he appealed.
About two weeks after the state Supreme Court declined to review Robinson's case, a panel of 4th Circuit judges voted 2-1 to reinstate O'Hern with back pay. NOPD has appealed the decision to the state Supreme Court.
O'Hern, in the meantime, had accumulated more than $80,780 in back pay by the time the 4th Circuit issued its ruling, records show.
In the case of Bell, who in May 2011 was drunk when she drove her personal vehicle into a parked car in Algiers and then left the scene of the accident, NOPD waited almost five months to start its administrative investigation into her, which was after a DWI case against the officer had been dismissed in Traffic Court.
The PIB completed its investigation in November 2011, and Bell -- a key government witness in the high-profile 2010 trial in federal court involving the killing and burning of Henry Glover by police after Hurricane Katrina -- was fired in August 2012.
Bell appealed, and the Civil Service Commission ordered her reinstated with back pay on Tuesday, about 11 months after her dismissal.
Ten months of salary for Bell equals about $40,894, according to records. The city said it is exploring its appeal options.
More appeals are in the works
Two other NOPD officers who were fired and one who was demoted are appealing on the same grounds as Robinson, O'Hern and Bell.
Sgt. John Hunter was fired June 26 after he admitted to doing personal activities during hours that he was billing the NOPD overtime to review rape cases, which he was assigned to do in April 2011. His termination came after a lengthy PIB investigation that concluded Hunter had committed payroll fraud, though the Orleans Parish district attorney's office said the evidence wasn't strong enough to justify a criminal prosecution.
Hessler has said Hunter will appeal his firing and argue that the decision should be overturned because it came years after the initial investigation into his actions began. Hunter's annual salary is about $51,783.
Officer David Lapene lost his job after a fight between a large group of mostly white, off-duty New Orleans cops and four black off-duty Regional Transit Authority employees at the Beachcorner Bar and Grill on Canal Street on the night of Feb. 5, 2008, which was Mardi Gras. Lapene has maintained his innocence and isn't believed to have thrown a punch. There was a federal investigation into the incident, but it did not produce any charges.
NOPD's investigation into Lapene began almost immediately after the incident, but it wasn't finished until October 2008, records show. NOPD fired Lapene in April 2009, 14 months after the Beachcorner incident.
If immediately reinstated with back pay, Lapene, who was making about $40,392 when he was terminated, would be owed about $168,300.
Lastly, David Liang was demoted from the rank of sergeant on Aug. 8, 2011, largely because it was on his watch that two officers under his command kidnapped a woman while they were on patrol in June 2009, and one of them sexually assaulted her.
One of the officers, Henry Hollins, is serving a 45-year prison sentence after a jury convicted him of attempted rape. The other officer, Thomas Clark, testified against Hollins.
Though a kidnapping charge against him was dropped, Clark was fired from the NOPD. He was reinstated with back pay after appealing, arguing that he was punished for what Hollins did.
The formal administrative investigation into Liang's role began the day after the incident. But the NOPD stayed that probe until the criminal charges against Hollins and Clark were resolved, meaning Liang remained in his supervisory position until his demotion, imposed well past the time limits specified in the Police Officers' Bill of Rights, he argued in his appeal.
Liang, who is seeking to get his rank back, went from earning an annual salary of $50,513 as a sergeant to $43,517 after his demotion. If his demotion were to be overturned in August, he would be owed about $14,000 in back pay.
Hessler, who is representing Hunter, Lapene and Liang, said, "There's absolutely no reason why (NOPD) can't do an administrative investigation and a parallel criminal investigation. In the words of the court, they simply choose not to do so."
Source-nola.com