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Thompson v. Department of Police

Court of Appeals of Louisiana, Fourth Circuit

June 7, 2017

MARSHA THOMPSON
v.
DEPARTMENT OF POLICE

         APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8405

          Donovan A. Livaccari LIVACCARI VILLARRUBIA LEMMON, LLC COUNSEL FOR PLAINTIFF/APPELLANT

          Corwin St. Raymond ASSISTANT CITY ATTORNEY Elizabeth S. Robins DEPUTY CITY ATTORNEY Adam J. Swensek CHIEF DEPUTY CITY ATTORNEY Rebecca H. Dietz CITY ATTORNEY COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Daniel L. Dysart

          Edwin A. Lombard Judge.

         The appellant, Marsha Thompson, seeks review of the Civil Service Commission's October 24, 2016 decision upholding her forty-five (45) day suspension. Finding that the Commission's rulings are not arbitrary or capricious, we affirm the decision of the Commission.

         Facts

         In November of 2010, the appellant, Marsha Thompson, an officer of the New Orleans Police Department ("NOPD"), responded to a simple arson call for service. When the appellant arrived at the scene, she observed burn marks on the apartment's front door. Investigating the matter, Officer Thompson spoke with the occupants of the residence, Lashondra Fefie and eight-year-old Omarion White, the sole witness to the incident. According to Officer Thompson, Omarion indicated during their meeting that he saw his step-mother, Leslie Starks, use a lighter to ignite a piece of paper in a pipe; she used the pipe to set the residence's door on fire. Omarion also stated that Leslie Starks' daughters, Taylor Starks and Jessica Richardson, accompanied their mother during the incident; he stated neither of them hindered their mother from setting the apartment's front door on fire nor warned the surrounding neighbors of the danger.

         Based on Omarion's statement, Officer Thompson arrested Leslie Starks for Simple Arson, La. R.S. 14:52 and, after consulting with an arson investigator, sought two arrest warrants for Taylor Starks and Jessica Richardson, as principals to the crime. Officer Thompson wrote in the arrest affidavits that Taylor Starks and Jessica Richardson "arrived at the victim's residence and [a witness] observed [them] using clear liquid and paper, ignited by a lighter, to set a fire in front of the front door." As well, the appellant wrote that the resident's son[1] positively identified the two daughters as the individuals responsible for setting fire to the front door. After discussing the matter with Officer Thompson, a magistrate judge granted the two arrest warrants.

         At later proceedings regarding the simple arson charge, Officer Thompson testified to the inconsistency between the witness's actual statement and her statements in the arrest affidavits. Officer Thompson affirmed that the witness only stated that Leslie Sparks started the fire and did not identify Taylor Starks and Jessica Richardson as ignitors of the fire. In testifying, the appellant also stated that she did not believe she wrote a false statement in the arrest affidavits because of her understanding that Taylor Starks and Jessica Richardson were "principals" to the crime of simple arson. The NOPD investigated the discrepancy between the police report and the arrest affidavits and held a pre-disciplinary hearing for Officer Thompson. The NOPD found the appellant admitted to making the alleged fabrications. After the hearing, the NOPD issued a disciplinary letter concluding Officer Thompson violated various departmental rules. The NOPD suspended the appellant for a total of forty-five (45) days for the following infractions: 1) thirty (30) days for violating Rule 2: Moral Conduct; Paragraph 1 Adherence to Law -La. R.S. 14:126; 2) ten (10) days for violating Rule 4: Performance of Duty; and 3) five (5) days for violating Rule 3: Professional Conduct, Paragraph 1: Professionalism.

         Officer Thompson filed an appeal with the Civil Service Commission ("Commission") to review her forty-five (45) day suspension. After a hearing, the Commission ruled that Officer Thompson violated the charged NOPD rules. The Commission concluded that the appellant engaged in making the inaccurate statements by stating facts substantially dissimilar to Taylor Starks and Jessica Richardson's actual involvement. The Commission found that the police report contained statements made under "oath or 'equivalent affirmation'" by Officer Thompson that were inconsistent with the statements contained in the arrest affidavits she executed. Therefore, the Commission determined that this constituted a violation of La. Rev. Stat. 14:126. The Commission further found that the NOPD met its standard of proof establishing Officer Thompson did not act carelessly, but, rather knew the inaccuracy of her statements at the time she executed the arrest affidavits.

         In stating that this type of misconduct negatively impacts the efficiency of the NOPD and the citizens' trust in the department when their liberties are at stake, the Commission concluded that the negative impact on the NOPD's reputation requires the department to use threats of significant discipline to deter such misconduct. In concluding such, the Commission found her forty-five (45) day suspension commensurate with the appellant's misconduct. The Commission noted the NOPD's leniency considering the possible disciplines provided for in its penalty matrix. Hence, the Commission denied the appellant's appeal.

         Officer Thompson timely filed the instant appeal in this Court, raising three (3) assignments of error:

1. The Commission erred when it found that the NOPD established, by a preponderance of the evidence, a lawful cause ...

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