Two recently proposed changes to New Orleans city law would make it more difficult for police to arrest people for minor municipal offenses and require the New Orleans Police Department to immediately share body camera footage from arrests with defendants’ attorneys.
The ordinances were brought by City Council President Jason Williams, a defense attorney who last week qualified to run for Orleans Parish District Attorney in the Nov. 3 election.
At a Tuesday meeting of the Council’s Criminal Justice Committee — which Williams chairs — lawyers with the Orleans Public Defenders office testified in support of both of Williams’ ordinances. While there was no vote on either at the meeting, members of the committee appeared to express support for both of them, and public comments were overwhelmingly in favor.
Williams said that both ordinances were being considered in relationship to the NOPD’s long-running federal consent decree, which was meant to bring the department — accused in a 2011 report by the U.S. Department of Justice of corruption, discriminatory profiling and reckless use of force against civilians, among other problems — into compliance with constitutional policing standards.
The federal judge overseeing the consent decree, U.S. District Court Judge Susie Morgan, approved the consent decree in early 2013.
“We have been reaching out to the monitors and Judge Morgan as we work our way through to make sure everything we do at the council level fits with everything they want to see, and can institutionalize,” Williams said at the meeting. “That’s why we’re not voting on it today — so we can make sure that it is in line with what they see as best practices for the city of New Orleans.”
Summons in lieu of arrest
Currently, city law dictates that police officers should issue summonses — which mandates a person show up in court at a later date, but does not require them being taken to jail — in lieu of arrests when a person is being cited for a non-domestic violence-related municipal offense. (Municipal offenses are typically minor crimes outlined in city municipal code, rather than state law.)
But there are a number of stipulations in the law that allow police to make arrests in certain circumstances rather than issue a summons for those municipal offenses — such as if a person doesn’t have an ID, is deemed a “habitual offender,” or acts in a way that suggests they are an imminent safety threat or will disregard the summons.
Current law also gives officers the discretion to make an arrest if, based on the circumstances, they determine “that it is absolutely necessary to make an arrest.” In addition, because of overlapping provisions in city code and state law, police officers have the option of charging some municipal offenses as state misdemeanors instead — giving them greater freedom to arrest suspects and, often, increasing the potential penalties for a guilty verdict.
Together, those stiupaltions allow NOPD officers to regularly make arrests for non-violent municipal charges when they should instead be issuing summons — particularly during the COVID-19 pandemic — some advocates argue.
Arrests for certain offenses, attorneys with the Orleans Public Defenders said, unnecessarily increase exposure of both citizens and police officers to the virus through the close personal contact necessary to make an arrest, and the need to book that individual into the city jail, where COVID-19 has at times affected relatively large portions of the inmate population.
The proposed law discussed on Tuesday would limit the discretion of the officers by removing the provision that they can make an arrest if they determine it is “absolutely necessary,” and also by mandating that for over a dozen offenses — including battery, assault, and obstruction of public passages — officers must cite the municipal code rather than the corresponding state laws.
There was also discussion at the meeting of changing or possibly removing the provisions that allow arrests in the case of “habitual offenders” and people who do not have IDs. The ordinance would, however, keep the exception for domestic violence incidents in place.
Alexis Chernow of the Orleans Public Defenders said despite a reduction in arrests since the the start of the pandemic, she believes NOPD is still often making arrests when they should be issuing summonses instead.
“I looked at data over just the last week,” she said. “In the last eight days, ending on Sunday, there were 30 people that were arrested in Orleans on summons-eligible offenses.”
In a Monday presentation hosted by the group Together New Orleans, Meg Garvey — another public defender who has announced her candidacy for judge of Division A of New Orleans Municipal and Traffic Court — said that reducing the number of arrests was should be seen as a broader public health issue, not just for police and those arrested, but the community at large.
“This really is not just a criminal justice reform, this is a public safety initiative for our entire community,” Garvey said of the proposed ordinance. “Because keep in mind, when those people get out of the jail, they are going back to the community.”
Joshua Yukich, an epidemiologist at Tulane University, told the committee on Tuesday that some theoretical modeling studies had shown that “jail churn could effectively double the number of deaths in the country” from COVID-19.
“We know that probably reducing intake through issuing summons for non-violent crimes and violations could be one of the most straightforward and effective policy tools that are around for reducing exposure of staff, and all persons in that community to the high risk transmission environment inside facilities,” he said.
The other ordinance discussed at the committee meeting on Monday would mandate that NOPD turn over body camera footage to criminal defendants “as soon as feasible and no later than thirty (30) days following an arrest.”
While NOPD policy requires the use of body-cameras in most situations, the ordinance would codify into law that no “NOPD commanders shall not authorize any NOPD officer to deviate from any part of NOPD policy, including but not limited to uniform, vehicle, body-worn camera, in-car camera, and reporting requirements.”
Advocates presenting at the committee characterized the ordinance as a simple way to bring equity to the criminal justice process, in which prosecutors sometimes have access to evidence for weeks or longer that defendants do not.
“As it stands, body-worn camera footage is recorded in the vast majority of criminal cases, and officers already recorded and upload that footage immediately in a couple of days after a person’s arrests,” Hannah Lommers-Johnson, attorney at the Roderick and Solange MacArthur Justice Center told the committee. “So the real change that this ordinance would require is that that body-cam footage that the NOPD already records in the vast majority of cases would be sent to a person who was arrested within 30 days of their arrest, and all that requires is emailing a hyperlink. That’s really all we’re talking about here.”
State law allows the DA’s office to wait up to 60 days after arrest before deciding whether or not to bring charges against someone for a felony, if that person is in custody. During that time, she said, they are not required to turn over body-worn camera footage to a defendant.
That means that oftentimes when defendants and their lawyers start investigating cases from the point of arrest — by doing things like looking for witnesses and physical evidence the police may have missed — they are doing it without access to the camera footage.
“As it currently stands, that investigation has to be done completely blind, because counsel and defendants don’t have access to video evidence in cases,” Lommers-Johnson said. “And what we know in the modern age is the most important evidence, the most powerful evidence. It’s the thing that should be turned over first, but in the current system it is often what is turned over last by prosecution.”
“There is no reason that a person sitting in jail who has been arrested should not have the same access to view the evidence against them that the District Attorney’s Office has access to immediately after arrest,” she said.
“We also want to make clear, and the spirit of this ordinance shows that the police work for everybody,” Meg Garvey told the committee. “They work for the citizens of New Orleans. They do not work for the District Attorney’s Office. They are not a subsidiary of the District Attorney’s Office. And so there is no need for the district attorney to act as a middleman in turning this evidence over.”
Ken Daley, a spokesperson for District Attorney Leon Cannizzaro said in an email that his office believed the ordinance, as written “not only would violate state law, but would seriously endanger many crime victims and witnesses.”
He pointed to state law that allows prosecutors to withhold evidence that identifies a witness “if such party believes the witness’s safety may be compromised by the disclosure.”
This story has been updated with a comment from the District Attorney’s Office.