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JOSEPH MEISCH VERSUS DEPARTMENT OF POLICE

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NO. 2012-CA-0702 COURT OF APPEAL

* FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 7862 ****** Judge Terri F. Love ****** (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Daniel L. Dysart) DYSART, J., CONCURS IN THE RESULT Donovan A. Livaccari LIVACCARI VILLARRUBIA LEMMON, LLC 101 West Robert E. Lee Boulevard Suite 402 New Orleans, LA 70124 COUNSEL FOR APPELLANT/ JOSEPH MEISCH Victor L. Papai, Jr. Deputy City Attorney Gregory Brumfield, Jr. Assistant City Attorney Brandon A. Brisco Law Clerk Richard F. Cortizas City Attorney of New Orleans 1300 Perdido Street City Hall - Room 5E03 New Orleans, LA 70112 COUNSEL FOR APPELLEE / DEPARTMENT OF POLICE AFFIRMED IN PART; VACATED AND SET ASIDE IN PART February 20, 2013

Joseph Meisch was terminated from his position as a New Orleans lieutenant police officer for his failure to report observations of possible criminal activity in a timely fashion. The Civil Service Commission found that Meisch was disciplined for cause, his discipline was commensurate with his offense and that there was no violation of Meisch's constitutional right to due process. We find the Civil Service Commission did not act arbitrarily or capriciously in concluding that Meisch was disciplined for cause and the discipline was commensurate with the offense for violations of Rule 3, Paragraph 1, Professionalism and Rule 4, Paragraph 4b, Neglect of Duty (Supervisory Responsibility). Further, we find that there was no violation of his constitutional right to due process. As to the Civil Service

Commission's determination that Meisch violated and was disciplined for Rule 4, Paragraph 2, Instructions from an Authoritative Source, we vacate and set aside the Appointing Authority's finding. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Joseph Meisch was a lieutenant with the New Orleans Police Department ("NOPD") in the Fourth District when Hurricane Katrina struck the City of New Orleans. On September 2, 2005, Meisch was assisting the United States Border
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Patrol and other NOPD officers to clear a plot of land for a helicopter landing behind the district station, which faced the levee of the Mississippi River. On that date, he observed two vehicles driving on the paved portion of the levee. The first vehicle drove off of the levee toward the river. The second vehicle, a truck, remained about two hundred yards behind. Soon after observing the first vehicle disappear behind the levee, Meisch observed black smoke emanating from the area where the vehicle disappeared. Meisch then observed Police Officer Greg McRae ("McRae") appear from the area where the vehicle had left the road and from where smoke was rising. Meisch testified that he observed McRae come down the levee towards the district compound. As McRae approached Meisch, McRae told him, "don't worry about it." Quickly thereafter, Lieutenant Dwayne Scheuermann ("Scheuermann") approached from Meisch's right side. As Scheuermann walked past Meisch, Scheuermann said, "I've got it." Meisch testified that he took that to mean that Scheuermann was handling "what transpired where Officer McRae was coming from." Meisch stated that he saw no reason to investigate or report what he observed to his commander because another police lieutenant told him that he was handling the matter. He further stated that he knew that McRae worked for Scheuermann, and that Scheuermann was in a better position to investigate his own officer. Meisch testified that two or three days later on September 5, 2005, around 3:00 a.m. he walked to the top of the levee hoping to get a cell phone signal to call his wife. At the top of the levee and aided by flashlight, he observed a burned

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vehicle containing what appeared to be human remains. Meisch stated that he was startled by what he observed. His only action at that time was to make a notation in a notebook, which he left at the Fourth District when he was later reassigned. Due to the challenges Hurricane Katrina presented, including lack of resources and a need to prioritize, NOPD officers were instructed by NOPD Command Staff to note the location of the deceased and leave bodies where they lie for later retrieval.1 Meisch noted that in the wake of Hurricane Katrina there was no morgue for dead bodies and no detectives to investigate potential crimes. Meisch testified that in 2009, he read a Times Picayune article detailing a federal investigation into a possible homicide committed by a New Orleans police officer. The article included allegations that McRae and Scheuermann attempted to destroy evidence of the dead body by driving the vehicle containing the body to the far side of the levee and incinerating the vehicle. After reading the article, Meisch testified he "put two and two together" and realized that in 2005 he may have observed the commission of a crime involving McRae and Scheuermann. Meisch then reported to his commander, Captain Robert Norton, asking for furlough to speak to the FBI agents conducting the criminal investigation. Meisch did not report what he knew to his commander, anyone in the police chain of command, or the Public Integrity Bureau (PIB). Meisch cooperated with the criminal investigation and testified at the federal criminal trial involving the

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A specialized Disaster Mortuary Operational Response Team (DMORT) later retrieved the bodies. However, the NOPD did not conduct an investigation into the deaths due to the circumstances associated with Hurricane Katrina and its effects.

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actions of various police officers related to the homicide of Henry Glover and the subsequent actions and lack of actions by the New Orleans Police Department.2 After testifying under oath in the federal trial,3 the appointing authority initiated an administrative investigation. Based upon Meisch's federal trial

testimony and the internal investigation that followed, the appointing authority determined that Meisch neglected his duty by failing to report his observations to his commander. Assistant Superintendant Kirk Bouyelas testified that he recommended Meisch's termination because Meisch "should have done something" after observing the burned car with what appeared to be human remains. Bouyelas reasoned that, while the circumstances of Hurricane Katrina may have excused Meisch's failure to report what he observed on September 2, 2005, because there was nothing to suggest a commission of a serious crime, once Meisch observed the burned vehicle and human remains, he should have known that it was a potentially serious matter possibly involving police officers. Bouyelas also testified that even assuming Meisch did not realize the seriousness of what he observed until 2009, he should have reported his observations internally to PIB as well as to the federal authorities. Meisch filed a timely appeal of the disciplinary actions imposed with the Civil Service Commission of New Orleans ("CSC"). The CSC found that the NOPD disciplined Meisch for cause and denied his appeal. Meisch's appeal to this Court followed.
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Through the federal investigation in which Josepn Meisch testified, Henry Glover was identified as the victim of the homicide committed by a New Orleans police officer. 3 USA v. Warren, et al., LAED Case #10-CR-154.

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STANDARD OF REVIEW The CSC has the "exclusive power and authority to hear and decide all removal and disciplinary cases." La. Const. Art. X,

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