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Regis v. Department of Police

Court of Appeals of Louisiana, Fourth Circuit

May 24, 2017

IRMA REGIS
v.
DEPARTMENT OF POLICE

         APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 7973

          CHESTER THEODORE ALPAUGH III CLAUDE A. SCHLESINGER GUSTE BARNETT SCHLESINGER HENDERSON & ALPAUGH, L.L.P. COUNSEL FOR PLAINTIFF/APPELLANT.

          ISAKA R. WILLIAMS Assistant City Attorney ELIZABETH ROBINS Assistant City Attorney CHERRELL S. TAPLIN Senior Chief Deputy City Attorney REBECCA H. DIETZ City Attorney of New Orleans, COUNSEL FOR DEFENDANT/APPELLEE.

          Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Marion F. Edwards, Pro Tempore.

          JAMES F. MCKAY III CHIEF JUDGE.

         Sergeant Irma Regis ("Sgt. Regis") seeks review of the decision of the Civil Service Commission ("CSC"), denying her appeal of the discipline imposed by the New Orleans Police Department ("NOPD"). For the reasons set forth below, we affirm in part and reverse in part.

         FACTUAL AND PROCEDURAL BACKROUND

         At the time of the actions that form the basis for the complaint, Sgt. Regis was employed by the NOPD as a police officer with permanent status. On March 21, 2011, Officer Lawrence Fortuna ("Officer Fortuna") conducted a traffic stop that resulted in the arrest of the driver. Officer Fortuna maintains that the subject could not produce a driver's license, so he was ordered out of the car. Upon exiting the vehicle, Officer Fortuna claims that the subject pushed him and ran from the scene. After a brief chase, Officer Fortuna brought the subject to the ground and handcuffed him. Officer Jamal Kendrick ("Officer Kendrick") was also on the scene, and witnessed the incident.

         Officer Fortuna brought the subject to the station, where he began preparing the gist of the incident. Because Officer Fortuna was a relatively new officer, he enlisted the help of Sergeant Michael Stalbert ("Sgt. Stalbert"), Officer Kendrick, and Officer Marsha Thompson ("Officer Thompson"). Initially, the gist included charges for firearm violations, resisting arrest, and battery on a police officer. The narrative of the gist stated that when the subject fled the scene, a brief struggle ensued. Officer Fortuna presented the gist to Sgt. Regis for her signature. However, according to Officer Fortuna, Sgt. Regis refused to sign the gist and instructed him to remove the battery on a police officer charge and any mention of the struggle. Officer Fortuna complied, and Sgt. Regis signed the amended gist.

         The following day, Officer Fortuna informed Sergeant Kristi Bagneris ("Sgt. Bagneris") that Sgt. Regis had instructed him to remove information from the gist. Sgt. Bagneris instructed Officer Fortuna to write a second report, and add back the charge relative to battery on a police officer. Officer Fortuna prepared the second gist, which included the battery on a police officer charge and a description of the physical altercation between the subject and Officer Fortuna. Sgt. Bagneris signed the gist.

         Sgt. Bagneris reported the incident to Lieutenant Aaron Blackwell ("Lt. Blackwell"), who conducted an inquiry. Lt. Blackwell learned from his interview with Officer Fortuna that Officer Fortuna explained the details of the arrest to Sgt. Regis, but that she advised him not to charge the arrested subject with battery because Officer Fortuna was a probationary officer (new officer) and would have to take a urine test if use of force was reported. Lt. Blackwell further determined that Sgt. Regis did not complete the paperwork that is required when force is used in connection with an arrest.

         An investigation of Sgt. Regis's actions followed, and a DI-1 Form (Initiation of a Formal Disciplinary Investigation) was issued on March 23, 2011, alleging the following rule violations:

1. Rule 4: Performance of Duty; Paragraph 4: Neglect of Duty, Section C: Subparagraph 4; Failing to make a written report when such is indicated.
2. Rule 6: Official Information, Paragraph 2: False or inaccurate reports.
3. Rule 4: Performance of Duty; Paragraph 2: Instructions from an authoritative source. To wit; Chapter 1.3 "Resisting Arrest Report;" Paragraph 1, Reporting use of force, Subparagraph 1; A "Resisting Arrest Report" SHALL be prepared ….

         Sergeant Andre′ LeBlanc, Jr. ("Sgt. LeBlanc"), with the Public Integrity Bureau, was assigned to the investigation. Sgt. LeBlanc took statements from Sgt. Bagneris, Sgt. Stalbert, Officer Fortuna, Officer Kendrick, Officer Thompson, and Sgt. Regis.

         Sgt. Bagneris related to Sgt. LeBlanc that she believed Officer Fortuna had probable cause to arrest the subject for battery on a police officer because it was articulated that the subject put hands on Officer Fortuna, which was a battery. Sgt. Bagneris further stated that she believed Sgt. Regis used Officer Fortuna's status as a probationary officer as a reason not to report it and to avoid preparing the additional paperwork required when use of force is involved in an arrest.

         In his statement to Sgt. LeBlanc, Sgt. Stalbert explained that he assisted Officer Fortuna in the preparation of the gist. He stated that Officer Fortuna advised him that the subject was being charged with battery of a police officer, resisting arrest, illegal carrying of a firearm and illegal carrying of a firearm by a convicted felon. Sgt. Stalbert believed that Officer Fortuna had the necessary elements to support those charges. He acknowledged that the gist clearly stated that Officer Fortuna had been pushed by the subject.

         Officer Fortuna related to Sgt. LeBlanc how the subject pushed him and began to flee, and how the subject fought him during the take down. Officer Fortuna further explained that when he presented the gist (which included the battery charge) to Sgt. Regis, she told him he was not supposed to do that type of report. When asked why not, Sgt. Regis stated that she would have to do a use of force report and that if he left those charges in the gist, Officer Fortuna would have to take a urinalysis. Officer Fortuna further stated that Sgt. Regis instructed him to take out the charges for battery on an officer and resisting arrest by flight from an officer. She also instructed him to take out the detail of the gist wherein he stated that a brief struggle ensued between himself and the subject.

         Officer Kendrick confirmed in his statement to Sgt. LeBlanc that he was present during the traffic stop, and that he saw the subject strike Officer Fortuna in the chest and begin to run. He further stated that when Officer Fortuna caught up with the subject, a struggle ensued. Officer Kendrick explained that he started to assist Officer Fortuna in preparing the gist, but that Sgt. Regis instructed him to get back out on the street. When he left the station, it was his understanding that the subject was going to be arrested for battery on an officer, resisting arrest by flight and the gun charges.

         Officer Thompson stated that she arrived on the scene as the officers were securing the subject in the police car. At the station, she assisted Officer Fortuna with the charging and the content of the gist. Officer Thompson stated that prior to leaving the station, the components explaining how Officer Fortuna was battered were on the gist sheet. She further stated that the battery of Officer Fortuna was in the narrative of the incident report and the details were consistent with the details in the original gist, which she assisted in preparing.

         Sgt. Regis provided a statement to Sgt. LeBlanc on June 3, 2011. She stated that when Officer Fortuna returned to the station after the arrest, she noticed green stains on the back of his shirt. She asked him what happened, and he told her that he had the guy by the car and the guy took off running. Officer Fortuna ran behind him. He caught the subject, they fell to the ground, and the subject was immediately handcuffed.

         Sgt. Regis stated that when she read the initial gist, she asked Officer Fortuna if the subject committed a battery on him, to which he replied, no. She further stated that she only reviewed the gist sheet, not the incident report. Sgt. Regis maintained that there were no details of a battery contained in the gist. This fact is disputed by Officer Fortuna, Sgt. Stalbert, and Officer Thompson and later contradicted by Sgt. Regis's own testimony in her appeal to the CSC. In her statement to Sgt. LeBlanc, she claims that she only instructed Officer Fortuna to remove the battery charge.

         Sgt. Regis denied telling Officer Fortuna that she should not complete a use of force report because he was a probationary officer. Sgt. Regis explained that because Officer Fortuna did not express that a battery had taken place, she told him that he would have to take that out of the gist. Otherwise, she told him, "you have to go get yo 'P' test, we'll do a first report of injury and that's it."

         Sgt. Regis stated that she did not speak with Officer Kendrick about the incident, and denied telling Officer Kendrick to go back out on the street. Sgt. Regis suggested that Officer Fortuna may have been coerced into providing information against her, although she did not elaborate.

         Following the investigation, Sgt. Regis was demoted and ultimately terminated by letter dated January 30, 2012. The disciplinary letter sets forth the following, in pertinent part:

Regarding the violation of Rule 4: Performance of Duty, paragraph 2 - Instructions from an Authoritative Source to wit: Chapter 1.3 Resisting Arrest Report, paragraph 1, sub-paragraph 1 was recommended a Duplicate. Deputy Superintendent Albert further recommended an additional sustained violation of Rule 4: Performance of Duty, paragraph 4, Neglect of Duty, Section C Subparagraph 4 - Failure to make a written report when such is indicated (Resting Arrest Report), which is the more applicable violation which should be classified as SUSTAINED.
Sergeant Regis as a police supervisor had the duty and responsibility to perform certain tasks when she was informed that force was used towards the officer and on the arrested subject by the officer. Sergeant Regis neglected to properly supervise Officer Fortuna and failed to complete the necessary paperwork required when force is used. Instead she advised, and instructed Officer Fortuna to remove the mention of use of force and battery of a police officer from his gist of the arrest. This is a violation of Rule 4: Performance of Duty, ...

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