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Pozzo v. Department of Police

Court of Appeals of Louisiana, Fourth Circuit

April 3, 2019

KEVIN POZZO
v.
DEPARTMENT OF POLICE

          APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8689

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

          Sunni J. LeBeouf, City Attorney Donesia D. Turner, Senior Chief Deputy City Attorney Elizabeth S. Robins, Deputy City Attorney Erica Therio, Assistant City Attorney Megan A. Haynes, Assistant City Attorney COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, and Judge Sandra Cabrina Jenkins

          SANDRA CABRINA JENKINS, JUDGE

         This is a civil service commission case. Police Officer Kevin Pozzo seeks review of the decision of the Civil Service Commission of the City of New Orleans ("CSC") denying his appeal of the termination of his employment by the New Orleans Police Department (the "NOPD" or the "Appointing Authority"). We find that NOPD'S administrative investigation exceeded the maximum time limitation standards set forth in the Police Officers' Bill of Rights, codified at La. R.S. 40:2531. Accordingly, we conclude that NOPD'S decision to terminate Mr. Pozzo is an absolute nullity under La. R.S. 40:2531(C), and we vacate the decision of the CSC. We further order restoration of all back pay and emoluments to Mr. Pozzo.

         FACTUAL AND PROCEDURAL BACKGROUND[1]

         Mr. Pozzo, a SWAT Team member, was a 12-year veteran of the NOPD. On June 29, 2017, the NOPD terminated his employment for an alleged violation of the following NOPD rule:

Rule 2: Moral Conduct; Paragraph 1, Adherence to Law to wit: Violation of La. R.S. 14:35.3, Relative to Domestic Abuse.[2]

         On December 11, 2015, Mr. Pozzo and his then-fiancé, Melanie Wilson, who shared a residence, were drinking alcoholic beverages at home, and continued to drink afterward at an acquaintance's open house party.[3] Mr. Pozzo became upset when he observed Ms. Wilson talking with other men at the party. After Mr. Pozzo confronted one of the men, Mr. Pozzo and Ms. Wilson were asked to leave the party. At about 7:00 p.m., they returned to their home. Mr. Pozzo admittedly threw a glass beer bottle against an interior wall, causing it to shatter. What happened next is disputed by the parties.

         NOPD investigators alleged that Mr. Pozzo committed a domestic abuse battery upon Ms. Wilson when he "pushed the chair she was seated in causing her to fall to the floor." Investigators also alleged that Mr. Pozzo "aggressively forced the front door against [Ms. Wilson] preventing her from leaving the home."

         Mr. Pozzo testified that he "kind of shook" the chair Ms. Wilson was sitting in, but that she did not fall off the chair. He also testified that Ms. Wilson tried to leave through the front door, but he stopped her because he thought she was heavily intoxicated, and he did not want her to drive.

         Ms. Wilson, however, initially told NOPD investigators that Mr. Pozzo pushed over the chair in which she was sitting, causing her to fall. She also told investigators that she grabbed her car keys and was leaving to "defuse" the situation. At the CSC hearing, however, Ms. Wilson testified that she recalled Mr. Pozzo putting his hand on the chair in which she was sitting, but did not recall what happened afterward.

         Video footage captured by a security camera located inside the residence shows an apparently frightened Ms. Wilson rushing toward the front door, opening it and getting partially outside. The video then shows Mr. Pozzo entering the video frame and attempting to force the door closed while Ms. Wilson was half inside and half outside. Eventually, Ms. Wilson squeezed through the door and went outside.

         Although not captured on camera, it is undisputed that once Ms. Wilson got outside of the house, she asked a passing mail carrier to call the police. Mr. Pozzo admitted that when Ms. Wilson was on the phone with the 911 dispatcher, she was crying. A recording of the call reflects that Ms. Wilson was extremely upset, and told the 911 operator, "he hurt me, but I don't need an ambulance."

         The following is a chronological timeline of the post-incident events:

• On December 11, 2015, Sergeant Kimberly Hunt ("Sgt. Hunt") of the NOPD's Public Integrity Bureau ("PIB") began an investigation of Mr. Pozzo, examining possible violations of rules pertaining to his professional conduct, performance of duty, and criminal activity.[4]
• On December 11, 2015, Sgt. Hunt and Lt. Darryl Watson of the PIB took a transcribed statement from Ms. Wilson about the incident.
• On December 12, 2015, an arrest warrant was issued for Mr. Pozzo. Mr. Pozzo's commission was revoked and he was suspended from duty.
• On December 13, 2015, Mr. Pozzo was charged with domestic abuse battery.
• On December 14, 2015, Sgt. Hunt issued a form DI-1: "Initiation of Formal Disciplinary Investigation," which placed Mr. Pozzo on notice that his actions gave rise to a possible violation of "Rule 2: Moral Conduct: Paragraph 1: Adherence to Law," relative to the commission of domestic abuse battery against Melanie Wilson.
• On December 29, 2015, Sgt. Hunt submitted an Incident Report to the Assistant District Attorney's Office asking if the office would be pursuing criminal charges "relative to Simple Battery Domestic Violence."
• On June 15, 2016, Mr. Pozzo's criminal trial was held.
• On June 24, 2016, the judge returned a verdict of not guilty.
• On June 24, 2016, Sgt. Hunt resumed the administrative investigation of the complaint against Mr. Pozzo.
• On August 8, 2016, Mr. Pozzo gave an audiotaped and transcribed interview to Sgt. Hunt.
• On August 12, 2016, Mr. Pozzo was given a "Notice of Accused Law Enforcement Officer Under Investigation of a Pre-Disciplinary Hearing or a Determination of an Unfounded or Unjustified Complaint."
• On August 12, 2016, Sgt. Hunt signed and submitted her written Investigative Report.
• On November 22, 2016, Sgt. Hunt received the transcribed testimony of Ms. Wilson from Mr. Pozzo's criminal trial, and ...

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