Statute Of Limitations Trips Up New Orleans In Police Discipline Case

Jamal Kendrick was a New Orleans police officer. On August 6, 2012, Kendrick, who was driving a one-man police vehicle, stopped a suspect, Tony Gaines, for a traffic violation. Kendrick discovered that Gaines had an outstanding arrest warrant for domestic abuse battery. Kendrick arrested Gaines for the outstanding warrant.

During the arrest, Kendrick discovered that Gaines had marijuana in his pocket. Kendrick discarded the marijuana, declined to charge Gaines with an additional charge of possession of marijuana, failed to consult any of his supervisors regarding the marijuana, and failed to document the discovery of the marijuana in his police report.

While in jail, Gaines made multiple phone calls to family and friends, which were recorded. In preparation for trial in the domestic violence case against Gaines, Assistant District Attorney Naomi Jones reviewed the recordings of Gaines’ jailhouse calls. In so doing, Jones heard Gaines state that the arresting officer found him to be in possession of marijuana, but took no action. However, on August 14, 2012, Jones’ supervisor reported what Jones had related to him regarding the jailhouse calls to Deputy Chief Arlindo Westbrook of the NOPD Public Integrity Bureau (PIB).

On August 22, 2012, Lieutenant Errol Foy prepared a Form DI–1 labeled “Initiation of a Formal Disciplinary Investigation.” On November 29, 2012, Lieutenant Foy issued to Kendrick a “Notice to Accused Law Enforcement Officer Under Investigation of a Pre-Disciplinary Hearing,” which indicated that the PIB investigation initiated on August 14, 2012, was completed on that date. The Notice to Accused stated that the rule violations were sustained and that the disciplinary hearing date was tentatively set for January 16, 2013. No hearing, however, was held on that date. According to Lieutenant Foy, he issued his official report, summarizing his investigation, to Superintendent Darryl Albert, of the Field Operations Bureau, on February 8, 2013. The Department finally issued a 15-day suspension to Kendrick months later.

The Louisiana Court of Appeals overturned Kendrick’s suspension, finding it violated the 60-day statute of limitations for investigation under Louisiana’s Peace Officer Bill of Rights. As the Court saw it, “regardless whether the November 29, 2012 or the February 8, 2013 date is used as the date the investigation terminated, the investigation exceeded the 60-day limitation under the Bill of Rights. Hence, it is undisputed that the underlying administrative investigation exceeded the applicable 60-day limitation.”

The next question faced by the Court was whether to apply the exception to the 60-day rule that exists if an officer is being criminally investigated. The Court decided the exception did not apply: “Here, no evidence was presented to establish that a criminal investigation was ever commenced by either the District Attorney’s office or the Department. To the contrary, in its letters to the PIB, the District Attorney’s office expressly indicated that it did not open a criminal investigation in this case because there was no evidence to support such an investigation. Although the Department was not precluded from pursuing its own criminal investigation against Kendrick, no evidence was presented that it did so.

“Moreover, the Department offered no objective excuse for its delay in completing its administrative investigation of Kendrick. Once Kendrick admitted the misconduct in his administrative statement, there was nothing further for the Department to investigate. Nonetheless, the Department failed to submit its investigation until February 8, 2013. At the Civil Service hearing, the Hearing Officer questioned Lieutenant Foy as to why Kendrick was given notification of a sustained complaint on November 29, 2012, when the official report was not provided to the Superintendent until February 8, 2013. Lieutenant Foy’s response was that his report ‘just took longer to finish up.’ No mention was made of a criminal investigation as the cause of any delay.”

Kendrick v. Department of Police, 2016 WL 3090700 (La. App. 2016).