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Moran v. Department of Police

Court of Appeals of Louisiana, Fourth Circuit

October 10, 2018



          Kevin V. Boshea Attorney at Law COUNSEL FOR PLAINTIFF/APPELLANT

          Elizabeth Robins Deputy City Attorney Isaka R. Williams Assistant City Attorney Cherrell S. Taplin Sr. Chief Deputy City Attorney Sunni J. LeBouf City Attorney COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Daniel L. Dysart, Judge Tiffany G. Chase, Judge Dale N. Atkins

          Tiffany G. Chase Judge

         Officer Alfred Moran (hereinafter "Officer Moran") seeks review of the February 28, 2018 decision issued by the Civil Service Commission (hereinafter "the Commission"). The decision denied Officer Moran's appeal and upheld his termination of employment with the New Orleans Police Department (hereinafter "the NOPD"). After consideration of the record before this Court and the applicable law, we affirm the decision of the Commission terminating Officer Moran.

         Facts and Procedural History

         On September 30, 2015, Officer Moran presented to the 8th District police station, preparing to transport arrestee Vincent Knapp (hereinafter "Knapp") to central lockup. Knapp was handcuffed and tethered to a bench inside the police station. Officer Lewis Simmons (hereinafter "Officer Simmons") escorted another arrested individual into the station around the same time. Officer Simmons placed his arrestee on the bench next to Knapp and positioned his body worn camera (hereinafter "BWC") on the desk directly in front of the bench. Officer Moran approached Knapp, in preparation for the transport, and placed his right hand on Knapp's shoulder. Knapp began shouting derogatory slurs at Officer Moran and kicked him. Officer Moran struck Knapp in the face with his left hand. Knapp continued to shout obscenities and Officer Moran struck Knapp in the face a second time. Present in the room during the incident were Officer Simmons, Officer Jeffery Tyler, Officer Kelli Dunnaway, Officer Christopher Jennings and Sergeant Samuel Dupre (hereinafter "Sgt. Dupre"). Officer Moran proceeded with the transport procedure and did not report the incident to his supervisor.

         Sgt. Dupre, who was the supervisor on duty on the night of the incident, viewed video from Officer Simmons' BWC the following day. After viewing the video, he reported the incident to Lieutenant Kevin Burns (hereinafter "Lt. Burns") with the Public Integrity Bureau's Force Investigation Team (hereinafter "FIT"). Lt. Burns initiated a criminal investigation of the incident, while Sergeant John Helou (hereinafter "Sgt. Helou"), also with FIT, simultaneously initiated an administrative investigation.

         On October 6, 2015, the Public Integrity Bureau instructed Officer Moran, as well as the other personnel present in the room during the incident, to complete a "Use of Force Statement." Officer Moran was allowed to view his BWC footage prior to providing his use of force statement, but was not allowed to view any other video surveillance. His BWC footage does not show the incident because it was not activated until after the incident occurred. On the same date, Officer Moran provided Lt. Burns with a criminal statement regarding the incident. Officer Moran testified that he "pushed" Knapp's face away from him, and attempted to "redirect" his face, in order to prevent Knapp from biting and spitting on him. He testified that Knapp was making biting and spitting gestures toward him. Officer Moran further testified that he did not recall striking Knapp a second time. The Orleans Parish District Attorney's Office declined to pursue criminal charges against Officer Moran and the administrative investigation continued.

          On November 18, 2015, Officer Moran completed an administrative statement with Sgt. Helou. His testimony was consistent with the testimony provided in his criminal statement. Sgt. Helou reviewed all available video footage of the incident. This included Officer Simmons' BWC, Officer Moran's BWC, the 8th District surveillance video footage and Officer Moran's patrol vehicle video footage. At the conclusion of the investigation, Sgt. Helou found that Officer Moran violated the NOPD rule regarding honesty and truthfulness. He reasoned that Officer Moran was untruthful, fabricating his version of events and his choice of words by describing his use of force as a "push."[1] Sgt. Helou recommended NOPD substantiate the allegations of misconduct against Officer Moran.

         On June 15, 2016, Deputy Superintendent Paul Noel (hereinafter "Superintendent Noel"), chief of NOPD operations, conducted a disciplinary hearing. This was the first time Officer Moran was able to view the footage from Officer Simmons' BWC, which completely captured the incident. After viewing the footage, Officer Moran conceded that the strike appeared to be more of a "punch" rather than a "push." Superintendent Noel concluded that Officer Moran's responses during the hearing were purposefully deceptive. He reasoned that Officer Moran purposefully mischaracterized his contact with Knapp when he used the words "push" and "redirection" regarding his use of force. Additionally, Superintendent Noel found Officer Moran untruthful when he stated he did not recall striking Knapp a second time. Superintendent Noel reasoned that since Officer Moran testified this was the first time he struck an arrestee, it was not plausible that he could not remember striking Knapp the second time. Superintendent Noel recommended termination of employment due to violation of NOPD's rule on honesty and truthfulness. Superintendent Michael Harrison concurred and issued a letter of termination to Officer Moran.

         Officer Moran appealed his termination to the Commission. The appeal was heard by a hearing officer over the course of four days. During the hearing, the hearing officer heard extensive testimony and viewed all evidence. The hearing officer concluded that Officer Moran's termination was warranted and noted that although Officer Moran violated other NOPD policies, he was only terminated for violation of the truthfulness rule. The hearing officer observed that the only level of discipline for violation of the NOPD's truthfulness rule is termination of employment. Therefore, the level of discipline was appropriate.

         The Commission reviewed the transcript and exhibits from the hearing, as well as the hearing officer's report. The Commission issued its decision on February 28, 2018, finding Officer Moran intentionally provided misleading statements during the NOPD's investigation. The Commission determined, after viewing the video evidence, that a reasonable person in Officer Moran's situation would describe the two strikes to Knapp as a "slap" and a "punch." Additionally, the Commission found that Officer Moran's conduct did not illustrate that he was concerned about being "bit" or "spat on" given his close proximity to Knapp. The Commission also found Officer Moran's failure to immediately notify his supervisor about the incident a contributing factor to its conclusions. It determined Officer Moran's failure to report the incident as recognition ...

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