Isaiah Shannon v. New Orleans Police Department

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

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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

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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

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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

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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

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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

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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?

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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

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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

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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

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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

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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

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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

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