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Monday, August 6, 2012

Officers' association files motion to intervene in NOPD consent decree

Posted By on Mon, Aug 6, 2012 at 2:40 PM

The city's largest police officers' association, the Fraternal Order of Police (FOP), today filed a motion in U.S. District Court requesting that it be included as a party before the court finalizes the U.S. Department of Justice's consent decree with the New Orleans Police Department. The city unveiled the 492-point decree late last month.

From the FOP's memorandum in support of the motion:

While the FOP does not want to obstruct the process of the Consent Decree, there are numerous mandates in the Consent Decree which directly impact its members who are active officers of the NOPD. Neither of the current parties to this civil action adequately represent the interests of the officers of the NOPD who are all directly affected by the proposed Consent Decree.

The document goes on to claim that FOP representatives had, in the years leading up to the recent release of the proposed decree, asked a number of times to be part of negotiations. According to court documents, the organization first pressed the matter in a May 2010 with representatives from the City Attorney's Office and Assistant U.S. Attorney William Nolan.

(Read more after the jump)

Mr. Nolan went on to state: “I want the civil side to be open and transparent, unlike a criminal investigation, which can’t be. In the end, we want the best practices in place.” The FOP representatives who attended that meeting came away with the impression that the FOP would be involved in an ongoing dialog with the City and the DOJ to achieves these goals. This did not happen.

The City representatives were sworn to secrecy and no one would ever discuss the negotiations with the FOP.

“We have been saying for months that the CD isn’t just a feel-good deal between the city and the federal government. It’s a judgment that has to be executed, and executed correctly," said FOP attorney Raymond Burkart. The only way to do that, he added, is to give all affected parties a voice in its implementation. “There are problems in there, problems that may not have been there had we been at the table.”

Burkart mentioned items that appear in the "use of force" section in the decree as examples. Under the terms of the decree, the police are prohibited from carrying or using pepper spray defensively or otherwise, while on normal duty or while working a detail. While police use of pepper spray is controversial, it's not illegal, Burkart noted. He also questioned an item that prohibits officers from using any force other than handcuffing when someone passively resists arrest. (It does however, go on to say that "physical removal is permitted as necessary and objectively reasonable.")

“What you wind up possibly having is a police officer that is carrying out what he’s lawfully permitted to do, and at the same time in contempt of court” under the consent decree, which will be administered by a federal judge, he said. “How is that helping anyone?”

Among the evidence FOP filed with its motion are two affidavits — from FOP president Walter Powers and treasurer James Gallagher.

"[Officers'} legally protectable property interests are directly impacted, yet they have no voice in this litigation," reads Powers' affidavit.

The group included as an exhibit a March 2012 letter from FOP attorney Claude Schlesinger to Mayor Mitch Landrieu. Schlesinger expressed concern that then-Assistant U.S. Attorney and prolific commenter Sal Perricone may have been part of the negotiations, and requesting that FOP also be included. The court filing claims the city never responded.

Any opposition to the FOP's motion must be filed by August 14. The mayor's office declined to comment on the FOP's motion.

Read the motion: MotiontoIntervene.pdf

The memorandum in support: MISConsentDecree.pdf

Schlesinger's letter to Landrieu: SchlesingerLetter.pdf

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