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Powers v. United States

United States Court of Appeals, Fifth Circuit

April 15, 2015

WALTER POWERS, JR., individually, and in his capacity of President of the Fraternal Order of Police, Crescent City Lodge #2, and its Members; FREDERICK C. MORTON, Plaintiffs - Appellants
v.
UNITED STATES OF AMERICA; POLICE ASSOCIATION OF NEW ORLEANS; MICHAEL GLASSER, individually and as President of the Police Association of New Orleans, Inc., Intervenors - Appellees, CITY OF NEW ORLEANS, Defendant - Cross-Defendant - Appellee, MITCHELL J. LANDRIEU, in his official capacity as the mayor/chief executive of the City of New Orleans; RONAL W. SERPAS, in his official capacity as the superintendent of the Department of Police, City of New Orleans; KEVIN W. WILDES, in his official capacity as chairman of the City Civil Service Commission for the City of New Orleans, Defendants - Appellees, CITY CIVIL SERVICE COMMISSION FOR THE CITY OF NEW ORLEANS, PARISH OF ORLEANS, Defendant Cross Claimant - Appellant -- Appellee

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Appeals from the United States District Court for the Eastern District of Louisiana.

For WALTER POWERS, JR., individually, and in his capacity of President of the Fraternal Order of Police, Crescent City Lodge #2, and its Members, Frederick C. Morton, Plaintiffs - Appellants: Raymond C. Burkart III, Burkart & Associates, L.L.C., Covington, LA.

For City of New Orleans, Cross Defendant - Appellee: Sharonda R. Williams, Esq., Christy Schinka Harowski, Cherrell Romonica Simms, City Attorney's Office for the City of New Orleans, New Orleans, LA.

For United States of America, Interested Party - Appellee: April J. Anderson, Esq., U.S. Department of Justice, Civil Rights Div - Appellate Section, Washington, DC; Emily Anna Gunston, U.S. Department of Justice, Special Litigation Section, Washington, DC.

For Police Association of New Orleans, MICHAEL GLASSER, individually as as President of the Police Association of New Orleans, Inc., Intervenors - Appellees: Eric J. Hessler, New Orleans, LA.

For MITCHELL J. LANDRIEU, in his official capacity as the mayor/chief executive of the City of New Orleans, RONAL W. SERPAS, in his official capacity as the superintendent of the Department of Police, City of New Orleans, Defendants - Appellees: Sharonda R. Williams, Esq., Christy Schinka Harowski, Cherrell Romonica Simms, City Attorney's Office for the City of New Orleans, New Orleans, LA.

For KEVIN W. WILDES, in his official capacity as chairman of the City civil Service Commission for the City of New Orleans, Defendant - Appellee: Gilbert Rene Buras Jr., Esq., New Orleans, LA.

For City Civil Service Commission For The City of New Orleans, Parish of Orleans, Defendant-Cross Claimant - Appellant Cross-Appellee: Gilbert Rene Buras Jr., Esq., New Orleans, LA.

Before DAVIS and CLEMENT, Circuit Judges, and ROSENTHAL, District Judge.[*]

OPINION

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EDITH BROWN CLEMENT, Circuit Judge:

Plaintiffs Frederick Morton and Walter Powers, Jr., individually and in his capacity as President of the Fraternal Order of Police, and cross-claimant the New Orleans Civil Service Commission (" CSC" ) appeal the district court's judgment upholding certain ordinances passed by the City of New Orleans (" the City" ) related to paid detail for officers of the New Orleans Police Department (" NOPD" ). For the reasons to be explained, we AFFIRM.

I

In United States v. City of New Orleans, 731 F.3d 434 (5th Cir. 2013), this court approved a Consent Decree entered into by agreement between the United States and the City of New Orleans. The Consent Decree was the product of a nearly year-long United States Department of Justice (" DOJ" ) investigation into the NOPD, initiated at the request of Mayor Mitch Landrieu, which " revealed longstanding patterns of unconstitutional conduct and bad practices and policies within the department." Id. at 436. As relevant here, the DOJ found that the structure of NOPD's system of paid detail--private security work performed by off-duty NOPD officers for third parties[1]--undermined the quality of NOPD policing and facilitated abuse and corruption by officers.

To fix the problems associated with paid details, the Consent Decree required the City to " completely restructure" the existing system in which NOPD officers negotiated details and received payment directly from private employers. Among other reforms, the Consent Decree mandated the development of an independent, civilian-run Secondary Employment Coordinating Office (" Coordinating Office" ) to arrange and coordinate details. An NOPD officer may register with the office to perform paid detail work and, if the officer qualifies, he will be matched with an assignment based on a rotation system that takes into account the officer's primary work schedule and how many hours of paid detail he has worked that year. The Consent Decree also forbids NOPD officers from " solicit[ing] secondary compensation or employment" and provides that private employers seeking to hire NOPD officers for paid detail work must go through the Coordinating Office. The Coordinating Office is directed to work with the NOPD and the City to " develop and implement an auditable payment system" for NOPD officers to receive detail pay.

To comply with the directives of the Consent Decree, the New Orleans City Council established the Office of Police Secondary Employment (" OPSE" ) and passed Ordinance 25428 setting hourly rates for detail work performed by NOPD officers.[2] The ordinance also provides that OPSE may charge private employers an administrative fee to cover the costs of the new centralized detail system.[3] The City

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Council concurrently passed Ordinance 25429, which created the " Police Secondary Employment Fund" to collect all revenue from the operation of the ...


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