Walters v. Department of Police of City of New Orleans

• Decision Date: 25 June 1984
• Docket Number: No. 83-C-1396,83-C-1396
• Citation: Walters v. Department of Police of City of New Orleans, 454 So.2d 106 (La. 1984)
• Parties: Orman J. WALTERS, Jr. v. The DEPARTMENT OF POLICE OF the CITY OF NEW ORLEANS.
• Court: Louisiana Supreme Court

Page 106

454 So.2d 106

Orman J. WALTERS, Jr. v.The DEPARTMENT OF POLICE OF the CITY OF NEW ORLEANS.

No. 83-C-1396.

Supreme Court of Louisiana.

June 25, 1984.

Salvador Anzelmo, City Atty., Bernette J. Johnson, Deputy City Atty., Charles J. Willoughby, Asst. City Atty., for applicant.

Sidney M. Bach, Gerald Wasserman, Bach & Wasserman, New Orleans, for respondent.

DENNIS, Justice.

We granted certiorari in this civil service disciplinary case to review the court of appeal's judgment reversing a civil service commission order which upheld the dismissal of a police officer by the New Orleans Police Department.Walters v. Department of Police, 430 So.2d 1032(La.App. 4th Cir.1983).Police Officer Orman J. Walters, Jr. was dismissed following an incident during a 1981Mardi Gras parade in which he accidently discharged his handgun and injured two persons.The civil service commission upheld the dismissal.The court of appeal reversed the civil service commission's decision because of manifestly erroneous findings of fact and reduced Walters' punishment from dismissal to sixty (60) days suspension, without pay, but without loss of rank or privileges.We agree that the commission's decision, which is based on errors of both fact and law prejudicial to Walter's substantial rights, must be reversed.Because of the discretion vested by the constitution in the commission to determine legal cause for discipline and punishment commensurate therewith, however, the court of appeal erred in substituting its de novo findings for the commission's.Accordingly, the court of appeal judgment will be amended to simply reverse the commission's decision and remand the case to it for further proceedings consistent with this opinion.

I.Background Facts

On March 1, 1981, Orman J. Walters, Jr., a New Orleans police officer assigned to the Family Services Division, was instructed to station himself at a corner of Canal and Tchoupitoulas Streets during the Bacchus parade for the purpose of tending to lost children and apprehending juvenile offenders.Upon taking custody of a child, it was Walters' duty to take him to a Family Services van three blocks away at the corner of Canal and Royal Streets for processing and transfer to other officers.Family Service Division officers, such as Walters, were required to wear plainclothes to facilitate their work with children.Walters and one other officer requested permission on the day in question to wear uniforms clearly identifying them as police officers to parade spectators.The department denied their request.

Before the parade reached Walters' location, he and his partner, Officer Oubre, received a lost juvenile and took him to the van at Canal and Royal.Walters decided to stay at the van during the parade because he thought he was needed at this location.He notified his base station by radio of his arrival at the van but did not call back to notify anyone of his decision to stay during the parade.

Within minutes of Walters' arrival at the police van a light rain began to fall.Walters removed his jacket because the rain had begun to cause it to discolor.In so doing, Walters acted in violation of the department's regulation which requires an officer dressed in plainclothes to wear a coat over his firearm.At the time of the altercation, Walters' holstered revolver was visible.

As the Bacchus parade passed, Walters observed that a St. Augustine High School Band chaperone had become involved in a physical conflict with a spectator.Walters rushed into the street and proceeded to pull the chaperone away from the spectator.Numerous band members and spectators attempted to restrain the officer.During the course of this struggle, Walters' revolver came partially out of its holster.The officer removed it completely and pointed it skyward to avoid its being taken by the crowd.As the scuffle continued, Walters accidently pulled the trigger, causing the firearm to discharge once.Two persons, a band member and a spectator, were injured.

Following an internal police department investigation, Walters was dismissed effective April 22, 1981.The department notified him of his discharge by a letter dated April 21, 1981 which stated that it had found he violated departmental rules and committed acts prejudicial to the police department by: (1) removal of his jacket in violation of the dress code; (2) failure to report to his assigned location; (3) failure to register his service revolver; (4) failure to adhere to the laws of the state by committing negligent injuring in violation of R.S. 14:39.

II.The Civil Service Commission's Opinion

As an employee with permanent status, Walters appealed to the Civil Service Commission.After considering the evidence taken at a hearing conducted by a hearing examiner, the commission upheld Walters' dismissal.

The following factual summation by the Civil Service Commission contains its findings of facts relevant to the question of whether legal cause existed for disciplinary action against the appellant:

"Basically, this case arises out of an incident that occurred the night of the Bacchus parade in the vicinity of Canal and Royal Streets.An altercation took place between Mr. Glen Jasper, a chaperone with the St. Augustine Band, and the appellant.At some point during the altercation, the appellant fired one shot injuring two bystanders.

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"For the sake of clarity, we will consider each charged violation separately:

"One, Rule 4, paragraph 2., relative to instruction from an authoritative source.The City presented Sergeant Christopher F. Johnston, who testified that he issued written instructions to appellant relative to where he was assigned on March 1, 1981.The written instructions read, in part '... and then go to the Bacchus parade route and remain stationary at Canal and Tchoupitoulas until completion of the Bacchus parade.'According to Sergeant Johnston, appellant's duties were 'arrest of juveniles or lost children brought to him at that location.'He further testified that if there was a change in assignment, appellant was required to notify the platoon commander on duty by radio or telephone, and get further instructions.

"According to appellant, at the end of the day parade, he and his partner went to their assigned location, but everything was quiet, so they rode around the French Quarter.At some point during their cruising, a lost child was brought to them.They took the child to the Family Services Division Van at Canal and Royal Streets.After processing the child, there was still time (approximately 30 to 45 minutes) to get to their assigned location approximately three blocks away.

"According to appellant and Agent Edward Lambert, the person who conducted the investigation, appellant made the decision to remain at Canal and Royal Streets.He reasoned that there was a greater need for his services at Canal and Royal rather than Canal and Tchoupitoulas.Therefore, appellant did not intend to go to his assigned location.However, within one hour the density of the crowd would have prevented him from going to his assigned location.His partner, Officer Oubre, the driver of their car, testified that by this time he was afraid to leave for fear that someone would be injured by their unmarked police car.

"Appellant did not have a radio (his was being repaired) but he borrowed his partner's radio to lodge a report on the missing child, but did not report that he was changing locations and was remaining stationary at Canal and Royal.In fact, appellant first testified that 'I had notified my office that I had changed locations.'Later he admitted 'I told him (Recruit Wood) that we were now at Canal and Royal with a lost juvenile.'Furthermore, he did not tell anyone that he and his partner did not intend to go to their assigned location.Lieutenant Arthur Perrot, Jr., Assistant Commander of the Juvenile Bureau, testified that officers are given a lot of discretion and appellant could have left his assigned location but should have notified the ranking officer to inform him of the change in location.Appellant failed to do this.His partner must work thirty (30) of his off-days for the specific violation.

"Two, ASOP 118.0, paragraph 1., relative to Uniform--plainclothes personnel.According to Officer Edward Lambert, appellant was in violation of the dress code for this assignment.His attire should have consisted of coat/jacket, slacks and tie.Appellant admitted that he was not dressed properly.He said that he removed his leather jacket because it started raining and his jacket was beginning to spot.One other officer removed his jacket and was disciplined for this infraction.The two remaining officers in the van area kept their jackets on.Testimony does reveal that it rained intermittently throughout the evening in question.However, Officer Lambert testified that all officers should have prepared for inclement weather during the Mardi Gras season.

"According to Sergeant Christopher Johnston, the purpose of wearing a coat is two-fold: One, the policeman's weapon is concealed to make it inaccessible to members of the general public.And two, so people, especially children, would not be alarmed to see somebody carrying a weapon.Officer Lambert testified that if appellant had had his jacket on, his weapon would not have been exposed, and maybe would not have been drawn at all.Captain Kenneth J. Dupaquier additionally testified that the reason members of the Family Services Division were wearing plainclothes is because it is better in the handling of children.After all, the handling of children is one of their prime police functions.

"We might also point out that identification for policemen in plainclothes is awkward.It is not visible, such as a badge, but is a wallet-like folder which, when opened, shows the officer's identification.It is usually kept in the pocket of an officer's coat or jacket.It is also...