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Fulton v. Department of Police

Court of Appeals of Louisiana, Fourth Circuit

December 6, 2017

TRACY FULTON
v.
DEPARTMENT OF POLICE

         APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8230 C\W 8402

          Eric J. Hessler COUNSEL FOR PLAINTIFF/APPELLANT

          Elizabeth Robins ASSISTANT CITY ATTORNEY Isaka Rachell Williams ASSISTANT CITY ATTORNEY Churita H. Hansell DEPUTY CITY ATTORNEY Rebecca H. Dietz CITY ATTORNEY COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Paula A. Brown, Judge Tiffany G. Chase, Judge Marion F. Edwards, Pro Tempore

          Marion F. Edwards, Pro Tempore Judge.

         Officer Tracy Fulton appeals a decision of the New Orleans Civil Service Commission (the Commission) that affirmed the decision of the New Orleans Police Department (NOPD) to terminate his employment as a result of an altercation between him and a citizen prompted by an automobile accident. Officer Fulton, a twenty-year veteran of the NOPD with permanent status as a classified employee, appealed his termination to the Commission pursuant to Art. X § 8(A) of the Louisiana Constitution and Civil Service Commission Rule II § 4.1. After a three day hearing, the Commission deemed the dismissal appropriate. We affirm that decision for reasons that follow.

         FACTS

         On September 4, 2013, while off-duty and driving his personal vehicle, Officer Fulton was involved in an automobile accident with E.C. at the intersection of Earhart Boulevard and Monroe Street. Officer Fulton was stopped at a red light when E.C., who was driving a pickup truck, attempted to enter the turning lane. E.C.'s vehicle jumped the curb, and struck the rear fender of the Fulton vehicle. Fulton got out of his car to inspect the damage and went over to the other vehicle. Officer Fulton began yelling at E.C. and his passengers, and attempted to open the driver door which was locked. Fulton then opened the rear door. A twelve-year-old child in the back seat of E.C's vehicle and two other passengers were frightened and screamed at E.C. to drive off. Officer Fulton slammed the car door and E.C. drove to his home about five blocks away. Fulton got into his car and followed E.C. while calling police to report a hit and run accident.

         When E.C. parked in front of his home, Officer Fulton parked behind the vehicle and angrily confronted E.C. Fulton was still on the telephone with police at this point, and some of Officer Fulton's angry confrontation was overheard by the officer taking the report.

         The argument escalated into a physical fight. According to the evidence presented at the hearing, E.C. kicked at Officer Fulton and Fulton punched E.C., who stumbled to his truck and got a machete. Fulton went to his vehicle and retrieved his service weapon. As a result of the fight, E.C. was injured and was taken by paramedics to the hospital. The hospital report shows that E.C. was diagnosed with a fractured nose, dislocated jaw, headache and concussion syndrome.

         The matter was investigated by Sergeant Omar Diaz, a twenty-one year veteran of NOPD in the Police Integrity Bureau Criminal Section. Sergeant Diaz testified at the hearing. He stated that he was called to the scene of the altercation in the 8500 block of Forchey Street and interviewed several witnesses including E.C. and his two passengers. Sergeant Diaz concluded that E.C.'s pickup truck hit the rear of Fulton's auto by paint markings and scratches to the vehicles. The sergeant also listened to an audio recording of a call between Officer Fulton and the Second District Police Station. In that recording, Officer Fulton is heard saying "I wish you f ------ g would" in what appeared to be a threat. Although it appeared both Officer Fulton and E.C. had weapons, it was not apparent which individual was the first to retrieve that weapon.

         As a result of the incident, Officer Fulton was arrested and charged with second degree battery while off-duty. NOPD issued an emergency suspension and ultimately terminated Officer Fulton's employment. Fulton appealed the termination to the Civil Service Commission. Prior to the Commission hearing, the parties stipulated that Officer Fulton was tried on the second degree battery charge and found not guilty by a jury.

         DISCUSSION

         Initially we note that Fulton's brief does contain a statement of jurisdiction, an assignment of errors, or a list of issues presented for our review as required by Louisiana Uniform Rules of Courts of Appeal, Rule 2-12.4. NOPD has noted these deficiencies in its brief and urged dismissal of the appeal. Fulton has filed a reply brief acknowledging these defects and attempted to correct them. Despite Rule 2-12.4, assignments of error are not necessary in an appeal.[1] Appellate courts have the authority to consider an issue even in the absence of an assignment of error.[2] Accordingly, we will consider the merits of this appeal.

         The appointing authority, which is the employer of an employee in the classified civil service, is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause.[3] New Orleans police officers are included in the protection guaranteed by this provision.[4] However, the ...


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