This past week, the Louisiana Fourth Circuit Court of Appeal ordered the reinstatement of yet another New Orleans police officer on grounds that the NOPD violated the “Police Officer’s Bill of Rights” by taking too long to investigate his misconduct.
Thomas McMasters illegally arrested two women in 2009 for prostitution loitering, which requires a conviction for prostitution within the previous year. McMasters, however, failed to check for a previous conviction and neither woman had one. Since women don’t appreciate being mislabeled as whores (imagine!), they filed complaints. McMasters admitted during the investigation that he knew the law but simply didn’t follow it.
The investigation, however, took seven months. McMasters was fired nearly six months later. Under the Police Officer’s Bill of Rights, a state law regulating internal investigations into police misconduct, the NOPD had a scant 60 days to wrap up its investigation. The NOPD’s excuse? It had a long-standing policy of suspending the 60-day period pending any criminal investigation.
The NOPD’s interpretation of the Police Officer’s Bill of Rights was rejected this January in Robinson v. Dept. of Police, 2012-1039 (La. App. 4 Cir. 1/16/13), 106 So.3d 1272. Judge Edward Defrense’s held scathingly that “[t]o read the statute as the NOPD argues would completely eviscerate it; that is, to adhere to the NOPD’s argument would disembowel the Police Officer’s Bill of Rights.”
Admittedly, the Louisiana Fifth Circuit Court of Appeals (which covers Jefferson Parish) held the reverse in Wyatt v. Harahan Municipal Fire and Police Civil Service Board, 2006-0081 (La. App. 5 Cir. 7/25/06), 935 So.2d 849. However, anybody will tell you that the Fourth and Fifth Circuits aren’t exactly birds of a feather.
As awful as the practical implications are, the Fourth Circuit’s opinion is the better statutory interpretation. Although the Police Officer’s Bill of Rights expressly does not apply to criminal investigations, it does not say that criminal investigations interrupt or suspend the deadlines for administrative investigations. The NOPD’s Public Integrity Bureau simply made that up. They weren’t interpreting the statute so much as amending it, and they hoped the Fourth Circuit would continue to go along with it. They made a bad gamble and lost.
We, the taxpayers, are the ones who are suffering for the NOPD’s gamble. Besides McMasters, the NOPD has been forced to reverse disciplinary actions against a handful of other officers, including: Tyrone Robinson, who was suspended for battering a female high school student while working a paid detail; Patrick O’Hern, who abandoned his post, got drunk and high, and shot up his cruiser on top of a parking garage; and Keyalah Bell, who was implicated in a DUI and hit and run.
Due to its ongoing miscalculation, the NOPD will have to reinstate these disgraced officers and pay them about $125,000 cumulatively in back pay.
Still, as I’ve noted in the past, the Police Officer’s Bill of Rights is completely nuts. Its proponents argue that it merely parallels the right of citizens to a speedy trial, which is a horrendously bad analogy. It effectively defines a police officer’s job as a “right,” which it is not – police officers should deal with the same job insecurity faced by the rest of us, particularly when they screw up.
Moreover, the scope of a criminal defendant’s right to a speedy trial is meager by comparison. It must be affirmatively invoked and even when the time limitations are violated, the remedy is merely the release of bail. Conversely, a police officer can’t be fired for even the most egregious misconduct if the investigation takes more than 60 days (or 120 days if investigators seek more time).
Accordingly, I support efforts from local legislators to reform the Police Officer’s Bill of Rights. Last year, Rep. Helena Moreno proposed legislation (HB 685) that would have increased the time limitations for the NOPD. That would have at least given the NOPD a carve-out, providing some extra breathing room from the tight constraints of the Police Officer’s Bill of Rights (although I would frankly prefer its complete repeal).
Irrespectively, the Police Officer’s Bill of Rights is a part of state law and the NOPD should have been complying with it. Superintedent Ronal Sepas dropped the ball, and now we face the prospect of bad officers being put back on the streets with wads of taxpayer cash in their pockets. It’s another black eye on his tenure as the head of the NOPD.
Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.