ISAIAH SHANNON * NO. 2023-CA-0003
VERSUS * COURT OF APPEAL
NEW ORLEANS POLICE * FOURTH CIRCUIT DEPARTMENT * STATE OF LOUISIANA
*******
APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 9322 C\W 9323 ****** JUDGE SANDRA CABRINA JENKINS ****** (Court composed of Judge Sandra Cabrina Jenkins, Judge Paula A. Brown, Judge Nakisha Ervin-Knott)
Kevin Vincent Boshea Angad Ghai, Esq. Roger Williams Jordan, Jr. ATTORNEY AT LAW 2955 Ridgelake Drive Suite 207 Metairie, LA 70002
COUNSEL FOR PLAINTIFF/APPELLANT
Elizabeth Robins Donesia D. Turner Corwin M. St. Raymond CITY ATTORNEY 1300 Perdido Street City Hall - Room 5E03 New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED AUGUST 18, 2023 SCJ PAB NEK Officer Isaiah Shannon appeals the Civil Service Commission’s (the
“Commission”) decision that denied in part and granted in part his appeal. Finding
that the New Orleans Police Department (“NOPD”) established legal cause for
taking disciplinary action and terminating Officer Shannon, we affirm the
Commission’s decision.
FACTUAL AND PROCEDURAL BACKGROUND
On March 10, 2021, Officer Shannon and his partner, Officer Markus
Caldwell conducted a traffic stop at the 4300 block of Werner Drive. Officer
Shannon observed a white Jaguar sedan illegally parked across from a store, and he
was suspicious that the occupants were engaged in drug dealing. Officer Shannon
un-holstered his gun and placed it behind his back as he approached the passenger
side of the vehicle, while his partner approached the driver’s side of the vehicle.
Thereafter, Officer Shannon asked the passenger, Anthony Cowart, to exit the
vehicle and the Mr. Cowart attempted to flee. A physical altercation ensued
between Officer Shannon and Mr. Cowart. During the altercation, Officer Shannon
struck Mr. Cowart in the head with his firearm. Following the strike, Officer
1 Shannon’s firearm discharged, hitting Mr. Cowart in the right leg. Subsequent to
the discharge of the firearm, the driver re-entered the sedan and fled the scene.
Officer Shannon handcuffed Mr. Cowart with a pair of hinged handcuffs that were
unapproved by the NOPD policy. After emergency medical services were
requested, Officer Shannon used his pocket knife to cut the Mr. Cowart’s
sweatshirt, where he removed a bag of narcotics from Mr. Cowart.
On March 12, 2021, the NOPD supplied Officer Shannon with his body
worn camera footage to assist him in completing a use of force statement. In his
statement he provided that he un-holstered his firearm after he arrived at the
vehicle and observed what he believed to be a gun in the console of the vehicle.
Officer Shannon also failed to disclose in his statement that he hit Mr. Cowart with
his firearm. The NOPD did not provide Officer Shannon with Officer Caldwell’s
body worn camera footage or the surveillance video from the store.
On November 9, 2021, a superintendent’s committee disciplinary hearing
was held to address Officer Shannon’s possible tactical errors and violations of the
NOPD’s policy. During the hearing, Officer Shannon acknowledged his tactical
error of drawing out his firearm prior to approaching the vehicle. The disciplinary
hearing committee recommended the following dispositions and penalties:
1) Failure to activate in-car camera (Rule 4, Paragraph 4, Sub-paragraph (c)(6) relative to NOPD Operations Manual Ch. 41.3.8 In-Car Camera Policy) - two-day suspension
2) Drawing weapon on a traffic stop without an articulable reason (Rule 4, Paragraph 4, Sub-paragraph (c)(6) relative to NOPD Operations Manual Ch. 1.3 Use of Force Policy, Paragraph 11) - one-day suspension
3) Jeopardizing safety through poor tactical decisions (Rule 4, Paragraph 2, relative to NOPD Operations Manual Ch. 1.3 Use of Force Policy, Paragraph 2) - five-day suspension
2 4) Unauthorized strike to the head with weapon (Rule 2, Paragraph 4, Unauthorized Force) - Dismissal [aggravated up from presumptive 80 days under the Disciplinary Matrix]
5) Unauthorized gunshot to the leg (Rule 2, Paragraph 4, Unauthorized Force) - Dismissal [aggravated up from presumptive 80 days under the Disciplinary Matrix]
6) Use of unauthorized Smith & Wesson 300 hinged handcuffs (Rule 4, Paragraph 4, Sub-paragraph (c)(6) relative to NOPD Operations Manual Ch. 1.3.1 Handcuff Policy, Paragraph 14 – one-day suspension
7) Failure to promptly provide medical attention (Rule 4, Paragraph 6, Sub- paragraph (c)(6) relative to NOPD Operations Manual Ch. 1.3 Use of Force Policy, Paragraph 7) – one-day suspension
8) Cutting suspect’s shirt to access seizure (Rule 4, Paragraph 6, Sub- paragraph (c)(6) relative to NOPD Operations Manual Ch. 1.3.4 Search and Seizure Policy, Paragraph 12 - one-day suspension
9) Courtesy violation (Rule 2, Paragraph 2) - letter of reprimand
10) False or Inaccurate Force Statement (Rule 6, Official Information, Paragraph 2) - Dismissal
11) Mandatory training requirements violation (Rule 4, Paragraph 4 relative to NOPD Operations Manual Ch. 33.1 Training) - five-day suspension
On November 9, 2021, NOPD’s Superintendent, Shaun Ferguson issued a
disciplinary letter, terminating Officer Shannon. Officer Shannon timely appealed
his termination and suspension to the Commission. On February 24, 2022 and
April 7, 2022, Civil Service hearings took place before Hearing Examiner Jay
Ginsberg. The hearing examiner recommended that Officer Shannon’s appeal be
granted in part and denied in part, specifying that the Officer Shannon’s appeals of
unauthorized use of force and false or inaccurate reports should be granted, and the
appointing authority be ordered to reinstate Officer Shannon with back pay and
emolument of employment less the days of suspension. The hearing examiner
further recommended that Officer Shannon’s appeals of in-car camera activation
3 violation, authority to use reasonable force violation, use of force statement
violation, use of restraints violation, search and seizure violation, and mandatory
training requirements violation should be denied, resulting in a combined
suspension of fourteen days.
On October 27, 2022, the Commission denied in part and granted in part
Officer Shannon’s appeal, noting that it denied the following appeals: 1) drawing
weapon on a traffic stop without an articulable reason, 2) jeopardizing safety
through poor tactical decisions, 3) use of unauthorized Smith & Wesson 300
hinged handcuffs, and 4) false or inaccurate force statement. The Commission
further noted that it granted the following appeals: 1) unauthorized strike to the
head with a weapon, 2) unauthorized gunshot to the leg, and 3) cutting suspect’s
shirt to access seizure is granted. The Commission explained that because it denied
the appeal of Officer Shannon’s termination of employment, no relief is
appropriate. Officer Shannon now appeals the Commission’s decision.
STANDARD OF REVIEW
The La. Const. art. X, § 8 provides in pertinent part, “[n]o person who has
gained permanent status in the classified state or city service shall be subjected to
disciplinary action except for cause expressed in writing.” An appellate court’s
“review in a case from the Civil Service Commission is established by the
constitutional rule that the Commission’s decision is subject to review on any
question of law or fact.” Mykulak v. New Orleans Police Dep’t, 2022-0578, p. 5
(La. App. 4 Cir. 3/16/23), 359 So.3d 1028, 1033 (citing La. Const. art. X § 12). “A
multifaceted standard of appellate review applies.” Id. First, “deference must be
4 given to the Commission’s factual findings, which should not be disturbed unless
manifestly erroneous or clearly wrong.” Id. (citing Regis v. Dep’t of Police, 2012-
1043, p. 5 (La. App. 4 Cir. 12/12/12), 107 So.3d 790, 793). “Second, in evaluating
the Commission’s determination as to whether the disciplinary action is based on
legal cause and commensurate with the infraction, ‘the appellate court should not
modify the Commission’s decision unless it is arbitrary, capricious, or
characterized by an abuse of discretion.’” Id. at pp. 5-6, 359 So.3d at 1033.
A civil service “employee subjected to disciplinary action by an appointing
authority has the right to appeal to the Commission.” Martin v. Dep’t of Fire,
2021-0070, p. 3 (La. App. 4 Cir. 10/20/21), 331 So.3d 379, 382 (citing Honore’ v.
Dept. of Public Works, 2014-0986, p. 8 (La. App. 4 Cir. 10/29/15), 178 So.3d
1120, 1126). As the appointing authority, NOPD is “charged with the operation of
[its] department and it is within [its] discretion to discipline an employee for
sufficient cause.” Bell v. Dep’t of Police, 2013-1529, p. 5 (La. App. 4 Cir.
5/21/14), 141 So.3d 871, 874 (quoting Pope v. New Orleans Police Dep’t, 2004-
1888, p. 6 (La. App. 4 Cir. 4/20/05), 903 So.2d 1, 4). “[T]he appointing authority
must prove by a preponderance of the evidence good or legal cause for taking
disciplinary action.” Martin, 2021-0070, p. 3, 331 So.3d at 382 (citing Honore’,
2014-0986, p. 8, 178 So.3d at 1126). “Legal cause exists whenever an employee’s
conduct impairs the efficiency of the public service in which the employee is
engaged.” Bell, 2013-1529, p. 5, 141 So.3d at 874 (quoting Pope, 2004-1888, p. 6,
903 So.2d at 5).
DISCUSSION
The crux of Officer Shannon’s argument is that the Commission erred in
finding that the appointing authority had sufficient legal cause to terminate him
5 and in upholding his suspensions for three additional violations. Officer Shannon
also maintains that the Commission erred in not granting his motion to recuse the
appointing authority on the grounds of conflict of interest.
Motion to Recuse
Officer Shannon contends that on May 9, 2022, it was discovered that he,
the police superintendent, and the appointing authority were jointly sued by Mr.
Cowart in federal court. Officer Shannon argues that the appointing authority
should have recused itself because it has a direct monetary interest in the outcome
of the lawsuit.
The record provides that the Civil Service hearings occurred on February 24,
2022 and April 7, 2022, and Officer Shannon’s motion to recuse was filed with the
Civil Service Department on June 16, 2022. Thus, the motion to recuse was not
addressed at the hearings or in the Commission’s decision.
“It is well settled that appellate courts will not consider issues raised for the
first time, which are not pleaded in the court below and which the district court has
not addressed.” Hardy v. Juvenile Justice Intervention Center, 2021-0715, p. 5 (La.
App. 4 Cir. 6/15/22), 342 So.3d 1076, 1080 (citing Council of City of New Orleans
v. Washington, 2009-1067, pp. 3-4 (La. 5/29/09), 9 So.3d 854, 856). Accordingly,
this assignment of error is precluded from consideration.
Termination for Inaccurate Report
The NOPD Disciplinary Matrix outlines the penalty ranges that should be
given for particular violations of the NOPD policies. Rule 6, Paragraph 2 provides
that “[a]n employee shall not knowingly make, or cause or allow to be made, a
false or inaccurate oral or written record or report of an official nature, or
6 intentionally withhold material matter from such report or statement.” The penalty
for a violation of Rule 6, Paragraph 2, a level G offense is dismissal.
Officer Shannon challenges the Commission’s decision in upholding that
there was sufficient legal cause for his termination. First, Officer Shannon
contends that he was terminated due to the omission of one sentence from a Use of
Force Report. Officer Shannon also maintains that the NOPD denied him sixty-six
percent of the available relevant evidence to review prior to the completion of the
report and intentionally denied him the opportunity to complete a more thorough
document.
At the February 24, 2022 hearing, Sgt. John Helou testified that he was
assigned to the Public Integrity Bureau (“PIB”)-Force Investigation Team.
MR. LAUGHLIN [for NOPD]: Did you review anything before initiating this DI-1[formal disciplinary investigation]?
SGT. HELOU: I did.
MR. LAUGHLIN: Okay. And what did you review?
SGT. HELOU: Body worn camera footage from Officer Shannon and Caldwell. There was some surveillance video from the Eastside Cash & Carry convenience store. And I reviewed Officer Shannon’s and Caldwell’s respective force statements that they completed following the incident.
* * *
MR. LAUGHLIN: Under NOPD rules and in the Consent Decree, is an NOPD officer required to give a Force Statement after an incident involving force?
SGT. HELOU: Yes.
MR. LAUGHLIN: Okay. Did you invite him into the PIB office?
SGT. HELOU: I did, yes.
MR. LAUGHLIN: And he’s entitled to have counsel?
7 SGT. HELOU: Yes. * * *
MR. LAUGHLIN: Okay. Did you also make Officer Shannon’s body worn camera video available to him?
SGT. HELOU: It was.
MR. LAUGHLIN: Okay. And you gave that to him on a laptop?
SGT. HELOU: It was a laptop that was connected to a flat-screen TV mounted on the wall.
MR. LAUGHLIN: Okay. Do you [sic] also give him a quick reference form to identify all the things he’s supposed to put in his Force Statement?
SGT. HELOU: Yes, sir. * * *
MR. LAUGHLIN: What is a Force Statement?
SGT. HELOU: Basically, it’s a detailed account of everything leading up to the -- the force, you know, why the officer was present, you know, was it a call for service, was it self-initiated, anything that the officer knew beforehand prior to interaction, what occurred during the interaction, the specific force that was used in its entirety, and then what occurred during the aftermath.
Sgt. Helou also provided the reason why Officer Shannon was not provided
all of the videos prior to writing the use of force statement.
MR. BOSHEA [for Officer Shannon]: Why weren’t we allowed to look at all the videos, sir?
SGT. HELOU: So I know under NOPD policy, when you’re doing a Force Statement, you’re allowed to look at your own video. And I remember and I even documented in the investigation that you asked about the existence of other videos, which I told you they were, and a request was never made to view those videos.
Further at the hearing, Officer Shannon testified to the inaccuracies in his
use of force statement.
MR. GHAI [for Officer Shannon]: I want to ask you about your use of force statement. Your use of force statement was previously admitted
8 as NOPD Number 9. What date did you give your use of force statement, if you can remember?
OFFICER SHANNON: Maybe one or two days after the incident.
MR. GHAI: When you gave your use of force statement, did you have the opportunity to review Officer Caldwell’s body worn camera?
OFFICER SHANNON: No. I did not.
MR. GHAI: Did you have the opportunity to review anything other than your own body worn camera?
OFFICER SHANNON: No. Just my body worn camera.
MR. GHAI: Was it your intent to deceive [Sgt.] Helou, NOPD or anyone, when you wrote the use of force statement the way you wrote it?
OFFICER SHANNON: No. Never my – no. That wasn’t even on my mind.
Officer Shannon further testified that when he made his statement, he
believed that he drew his weapon when he arrived at the passenger side door.
Officer Shannon also agreed that his weapon was un-holstered before he made
contact with the individual. Further, Officer Shannon testified that he provided in
his use of force statement that he engaged in a physical altercation, and agreed that
he did not list the strike to Mr. Cowart’s head.
The field operations bureau deputy superintendent, Chief John Thomas,
testified that Officer Shannon’s actions portrayed as if the NOPD were
intentionally shooting people, which affects the operation of the department. Chief
Thomas further testified that Officer Shannon’s actions affected the operations of
the department by portraying that the police department conducts rogue activities,
which would affect the community’s opinion that would sit on a jury.
In Gant v. New Orleans Police Dep’t, 2019-0640 (La. 4 Cir. 12/4/19), 286
So.3d 524, this Court reviewed whether the Commission acted arbitrarily and
9 capriciously in upholding the NOPD’s dismissal of a sergeant. The sergeant in
Gant duties consisted of “fleet management wherein she was responsible for
tracking and reporting the mileage of city owned vehicles assigned to” the NOPD’s
Investigation and Support Bureau (“ISB”) personnel. Gant, 2019-0640, p. 1, 286
So.3d at 527. An NOPD policy mandated that a take-home vehicle shall not be
assigned to an employee when the one-way driving distance from the employee’s
actual domicile to the employee’s primary reporting work site is greater than forty
miles. Id. at pp. 1-2, 286 So.3d at 527. The policy additionally required a payroll
deduction for use of a take-home vehicle. Employees who lived within twenty
miles of their work site received a $24.04 weekly deduction, while employees who
lived greater than twenty miles from their work site received a $72.12 weekly
deduction. Id. at p. 2, 286 So.3d at 527.
The sergeant stipulated that the distance between her marital residence and
the ISB offices was greater than forty miles, and her husband’s apartment was less
than forty miles from the ISB offices. The sergeant’s husband provided that she
never had a key to the apartment, and that in 2015, he no longer had access to the
apartment after the lease expired. Id. at pp. 2-3, 286 So.3d at 527-28.
In 2016, the sergeant executed a take-home vehicle form and listed the
apartment address. The sergeant affirmed that she was aware of the policies
regarding take-home vehicles and that the one-way driving distance between her
actual domicile and her primary work site was approximately thirty-seven miles.
Thereafter, in 2018, the sergeant was investigated for irregularities in the NOPD’s
payroll system regarding her take-home vehicle. It was discovered that the sergeant
occasionally used the log-in of a subordinate to access the NOPD’s payroll system
and enter mileage ranges associated with her take-home vehicle. Id. at p. 3, 286
10 So.3d at 528. The sergeant “manually selected the 0-20 miles range option instead
of the 20-40 miles range option.” Id. at pp. 3-4, 286 So.3d at 528. The sergeant
“contended the erroneous payroll entries were an unintentional mistake, and filed a
series of payroll adjustment forms to repay the monetary amounts that should have
been properly deducted from her payroll.” Id. at p. 3-4, 286 So.3d at 528.
The sergeant was dismissed pursuant to Rule 6, Paragraph 2 charges as to
the take-home vehicle form and payroll entries. The Commission denied the
sergeant’s appeal. This Court noted that the Commission weighed the evidence and
determined the NOPD established that the sergeant knowingly violated Rule 6,
Paragraph 2 in falsifying both the take-home vehicle form and the payroll entries.
The Court noted that “Rule 6, Paragraph 2 (as a level G violation) does not allow
for any mitigation.” Id. at p. 13, 286 So.3d at 533.
Further, the Commission found persuasive “the NOPD’s argument that
severe penalties should accompany violations of Rule 6, Paragraph 2 because it
would be problematic if such a compromised officer be required to serve as a
material witness in a criminal prosecution.” Id. at p. 14, 286 So.3d at 533. In
upholding the termination, the Gant court provided that as “‘[t]he public puts its
trust in the [NOPD] as a guardian of its safety,’ the NOPD should ‘be allowed to
establish and enforce appropriate standards of conduct for its employees sworn to
uphold that trust.’” Id. at p. 15, 286 So.3d at 534 (quoting Rivet v. Dep’t of Police,
2018-0229, p. 8, (La. App. 4 Cir. 10/24/18), 258 So.3d 111, 118).
In the present case, similar to Gant, Officer Shannon argues that the
appointing authority failed to take into consideration his outstanding NOPD record,
and mitigating factors such as his honorable military discharge and thirteen-year
11 career with NOPD. However, Rule 6, Paragraph 2 does not allow for any
mitigation. See Gant, 2019-0640, p. 13, 286 So.3d at 533.
The Commission noted that it did not “find Officer Shannon’s explanation
for the inaccuracies in his force statement to be credible.” The Commission further
noted that Officer Shannon testified that he did not remember the exact moment he
un-holstered his weapon, and reported a physical altercation in lieu of a strike to
Mr. Cowart’s head with his firearm. The Commission explained that Officer
Shannon knowingly provided a false statement about when he un-holstered his
firearm and intentionally withheld information about striking Mr. Cowart with the
firearm. Like Gant, testimony from Sgt. Helou confirmed that false or inaccurate
reporting impairs the efficient operations of the NOPD because it affects an
officer’s credibility in the community and in court. In determining that Officer
Shannon’s termination was commensurate with the offense of a violation of Rule
6, Paragraph 2, the Commission noted that the “NOPD must be able to rely on the
truthfulness of its officers, especially in the context of unauthorized force and the
officer’s belief that the suspect has a weapon.”
“Great deference should be afforded to the Commission’s ruling upholding
the disciplinary decision of the NOPD – ‘neither the [Commission] nor the
reviewing court may serve as a de facto pardon board.’” Gant, 2019-0640, p. 14,
286 So.3d at 533 (quoting Rivet, 2018-0229, pp. 10-11, 258 So.3d at 120). Based
on the facts and testimony, we find the Commission’s decision to sustain Officer
Shannon’s termination was not arbitrary, capricious, or an abuse of discretion.
Suspension for Three Violations of NOPD’s Policy
Next, Officer Shannon argues that the Commission erred in upholding the
following suspensions: 1) drawing weapon on a traffic stop without an articulable
12 reason; 2) jeopardizing safety through poor tactical decisions; and 3) use of
unauthorized Smith & Wesson 300 hinged handcuffs. The Commission provided
that because it denied the appeal of Officer Shannon’s termination of employment,
no relief was appropriate. In light of finding that the Commission’s decision was
reasonable, we pretermit discussion of Officer Shannon’s remaining assignment of
error.
CONCLUSION
For the foregoing reasons, the Civil Service Commission’s decision that
denied Officer Shannon’s appeal of his termination is affirmed.
AFFIRMED