End Of Criminal Investigation Starts Bill Of Rights’ Statute Of Limitations

On December 12, 2009, Patrick O’Hern was a police officer with the New Orleans Police Department. During his tour of duty, O’Hern left his patrol assignment and went to his private vehicle. He drove his vehicle to the top floor of a parking garage where he consumed a substantial portion of a fifth of whiskey, and ingested ten to 12 prescription Clonazepam tablets. O’Hern then discharged his police-assigned firearm more than 20 times, shooting through his vehicle’s roof and windshield.

Reports of the incident were made to the Department and units rushed to the scene of the incident. Initially, officers believed that O’Hern had been engaged in a gun battle with unknown perpetrators. However, at the scene, the responding officers found O’Hern incapacitated, and unable to control his bodily actions. He was evacuated to a medical facility where he subsequently informed medical personnel that he attempted to commit suicide.

The Department immediately began a criminal investigation into O’Hern’s actions. O’Hern was eventually arrested for and pled guilty to two counts of Criminal Mischief in the Orleans Parish Criminal District Court. On March 5, 2010, the Department issued a notice to O’Hern compelling an administrative statement. The Department subsequently fired O’Hern and he challenged his discharge in court.

O’Hern’s argument centered on a requirement of Louisiana law that all administrative investigations of police officers be concluded within 60 days. O’Hern contended that the “clock started ticking” on the statute of limitations on December 12, 2009, when the Department began its criminal investigation.

The Louisiana Court of Appeals disagreed. The Court held that “it is clear that the administrative investigation did not begin until March 5, 2010, when the Department informed O’Hern that his statement was required to initiate the administrative investigation. The investigating sergeant testified that because of the incriminating circumstances of the incident, a criminal investigation was required prior to an administrative investigation to determine whether O’Hern was to be prosecuted by the D. A.’s office. While the statute provides that all administrative investigations must abide by the 60-day rule, the statute also provides that nothing must interfere with a criminal investigation.

“Here, O’Hern ingested several pills that clouded his judgment and interfered with his abilities to perform his job duties. He ingested two pills shortly after he reported to work. O’Hern stated that within that same hour, while at work, he ingested at least ten more pills, in addition to a large quantity of whiskey. He then left his assigned post, went to his personal vehicle and drove it while he was under the influence of pills and alcohol, above the legal intoxication limit. O’Hern drove his vehicle to the top of a parking garage and discharged his service issued weapon 16 times into the body and windows of the vehicle.

“It is undisputed that O’Hern impaired the efficiency of public service, and was unable to perform his job as a police officer to protect and serve the community. O’Hern disregarded his safety and the safety of the community when he decided to ingest numerous pills and alcohol shortly after he reported to work. He placed the lives of the community at stake while at work and in the public eye, ingested several pills and alcohol, and then drove his vehicle. O’Hern posed a threat to public safety while he was driving under the influence of pills and alcohol, severely above the legal intoxication limit. Furthermore, due to his impaired mental state, O’Hern then decided to discharge his gun into his vehicle 16 times.

“Based on O’Hern’s actions on the night of December 12, 2009, the NOPD had the responsibility to discipline him in conformity with his actions. Any possible delays or prejudice that might have arisen in the investigative process is miniscule compared to the actions of O’Hern the night of the incident.”

O’Hern v. Department of Police, 2012 WL 6621458 (La. App. 2012).