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Cunningham v. New Orleans Police Department

Court of Appeals of Louisiana, Fourth Circuit

October 10, 2018

JAMES CUNNINGHAM
v.
NEW ORLEANS POLICE DEPARTMENT

          APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8515

          Eric J. Hessler ATTORNEY AT LAW COUNSEL FOR PLAINTIFF/APPELLANT

          Elizabeth Robins Renee Goudeau ASSISTANT CITY ATTORNEY Cherrell S. Taplin SENIOR CHIEF DEPUTY CITY ATTORNEY Rebecca H. Dietz CITY ATTORNEY COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins

          Regina Bartholomew-Woods Judge

         Appellant, James Cunningham, ("Officer Cunningham") a permanent, classified employee of the New Orleans Police Department, seeks review of the Civil Service Commission's October 17, 2017 ruling, which upheld Appellant's termination by the New Orleans Police Department for violating Professional Conduct Rule 3, Paragraph 9, to wit: Use of Alcohol/Drugs Off-duty. For the reasons that follow, we reverse the Civil Service Commission's ruling.

         FACTUAL BACKGROUND

         For nine (9) years, Officer Cunningham, was a permanent, classified employee who served as a police officer with the New Orleans Police Department ("NOPD"), most recently assigned to the gang unit. On the evening of January 12, 2015, Officer Cunningham, his girlfriend Tiffany Junot ("Ms. Junot"), and a female friend visited different restaurants and bars to eat dinner and enjoy live music. After a disagreement with Officer Cunningham, Ms. Junot left the restaurant and returned to "her" apartment.[1]

          Shortly thereafter, Officer Cunningham arrived at Ms. Junot's apartment and used his keys to unlock the outer metal door and the front door deadbolt. However, he was unable to gain entry into the apartment because Ms. Junot had engaged two metal security latches on the front door that prohibited the door from opening more than a few inches. Officer Cunningham rang the doorbell numerous times and yelled to Ms. Junot, but she did not respond. Next, Officer Cunningham forced his way into the apartment, using his hip and legs to break through the security latches, which damaged the door frame. According to Officer Cunningham, upon his entry into the apartment, Ms. Junot physically attacked him by scratching his face with her fingernails and punching him in the face; he testified that he kept his arms at his sides and did not strike Ms. Junot.[2] Officer Cunningham further testified that he exited the apartment briefly, then re-entered the apartment; at that point, Ms. Junot called the police, began hitting and kicking him, and instructed him to leave. Officer Cunningham waited outside the apartment for NOPD to arrive.

         Upon their arrival, Officer Cunningham was transported to University Hospital to receive medical treatment for his injuries; however, Officer Cunningham refused medical treatment for his facial lacerations. While at the hospital, Officer Cunningham submitted to Reasonable Suspicion Alcohol and Drug Testing (breathalyzer), which showed his blood alcohol content was 0.125%, an amount in excess of the legal limit allowed for operating a motor vehicle. NOPD placed Officer Cunningham on emergency suspension. He was transported to the Public Integrity Bureau where he met with his attorney and declined to provide a statement.

         PROCEDURAL HISTORY

         On January 13, 2015, Officer Cunningham was arrested and charged with violating La. R.S. 14:35, to wit, simple battery and La. R.S. 14:62.8, to wit: home invasion.[3] The Orleans Parish District Attorney's Office refused the charges. NOPD conducted an internal disciplinary investigation and found him to be in violation of the following: (1) Moral Conduct Rule 2, Paragraph 1 Adherence to Law, specifically La. R.S. 14:35 - Simple Battery;[4] (2) Moral Conduct Rule 2, Paragraph 1 Adherence to Law, specifically La. R.S. 14:62.8 - Home Invasion; and (3) Professional Conduct Rule 3, Paragraph 9 Use of Alcohol/Drugs Off-duty.[5]

          On March 2, 2016, a disciplinary hearing was held, but Officer Cunningham declined to attend. On March 17, 2016, NOPD, through its Superintendent of Police, Michael Harrison, issued Officer Cunningham a discipline letter advising him of his termination based on the aforementioned three (3) violations. Thereafter, Officer Cunningham filed an appeal with the Civil Service Commission ("CSC"). On June 29, 2017, the CSC conducted a hearing in this matter and rendered its opinion on October 17, 2017.

         The CSC held that NOPD failed to prove, by a preponderance of the evidence, that Officer Cunningham violated Moral Conduct Rule 2, Paragraph 1 Adherence to Law, specifically La. R.S. 14:35 - Simple Battery, as well as, Moral Conduct Rule 2, Paragraph 1 Adherence to Law, specifically La. R.S. 14:62.8 - Home Invasion. However, the CSC held that Officer Cunningham violated Professional Conduct Rule 3, Paragraph 9 Use of Alcohol/Drugs Off-duty and upheld NOPD's discipline of termination. It is from the CSC's October 17, 2017 ruling that Officer Cunningham filed the instant appeal.

         DISCUSSION

         In summary, Officer Cunningham's assignments of error address whether the CSC abused its discretion and acted arbitrarily and capriciously by upholding NOPD's termination for his violation of Professional Conduct Rule 3, Paragraph 9 Use of Alcohol/Drugs Off-duty.

         Standard of Review

         In consideration of an appeal from a ruling by the CSC, the Louisiana ...


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