Length of probe cited in reversal
In the latest in a string of reversals of terminations and suspensions of New Orleans Police Department officers, the Louisiana 4th Circuit Court of Appeal this week reinstated an officer fired in 2011 for falsely arresting a woman on Bourbon Street who police claimed was a prostitute loitering to drum up customers.
As in the other reversed cases, the key problem with the NOPD’s internal investigation into Thomas McMasters was how long the Public Integrity Bureau took to conduct its probe, the court said.
State law requires that investigations into police officers be completed within 60 days. But McMasters didn’t receive a notice that Public Integrity had finished an investigation into him until seven months after the original complaint against him was filed in November 2009.
He didn’t receive a notice about a disciplinary hearing for another seven months. He was fired on March 25, 2011.
While McMasters’ termination was reversed on technical grounds, his attorneys said it could have been overturned on the merits of the case. They said their client did nothing wrong.
The delay in conducting the probe into his alleged misconduct contributed to what they characterized as the fundamental unfairness of the NOPD investigation.
“This is the exact type of thing that the 60-day rule is designed to protect,” said Jacques DeGruy, an attorney for McMasters.
“Months after things happen, the city goes around and interviews people who have no recollection. It snowballs into people guessing or stating things they are unsure of based on paperwork.”
The problems with the case were compounded when it was appealed to the Civil Service Commission, said Peter Thomson, another of McMasters’ lawyers.
The hearing examiner who heard the evidence recommended overturning the officer’s dismissal. But the commission sat on that recommendation for a year before deciding instead to uphold NOPD Superintendent Ronal Serpas’ decision to dismiss McMasters.
McMasters was working on Bourbon Street the day of the disputed arrest in November 2009. He came upon a fellow officer, Beau Gast, preparing to arrest two women for a municipal offense called “prostitution loitering.” He helped Gast with the paperwork for one of the women — but did not assist with the investigation — and then left.
The Civil Service Commission decision upholding McMasters’ termination found there were two problems with the arrest of the women. The officers at the scene neglected to check if the women had been arrested within the previous year for prostitution, a necessary predicate to arresting somebody for prostitution loitering. The women had not.
A commission report also said the woman whose paperwork was signed by McMasters was initially observed approaching men on Bourbon Street by an officer described as “undercover,” and eventually also making an overture to that man. But that officer was not undercover that night.
In its December 2012 decision upholding McMasters’ firing, the commission acknowledged that he was only peripherally involved in the arrest and that he relied on Gast for information. But it said that a “simple check of the system” would have kept the officers from arresting someone on illegal grounds.
City attorneys argued before the 4th Circuit that the delay in the Public Integrity Bureau probe in this case was permissible because the unit first conducted a criminal investigation, assessing whether the involved officers broke the law. McMasters was never brought up on any criminal charges, his attorneys said.
The 4th Circuit ruled in January that the NOPD could no longer continue its policy of waiting until after a criminal investigation of an officer’s actions is completed to begin an administrative probe into whether department policy was violated. The court said this policy violated state law.
An NOPD spokeswoman said the City Attorney’s Office is reviewing the McMasters decision. She declined to comment further.
The 4th Circuit called for McMasters’ reinstatement with back pay.