Almost four years ago, Patrick O’Hern was on duty as a New Orleans policeman, when he flipped his lid.
He drove his patrol car to the top floor of a parking garage, got drunk, ate a handful of anti-anxiety pills, tasered himself and sat there firing his gun more than 20 times through the roof and the windshield.
While O’Hern merited a certain amount of sympathy for his obvious mental distress, he was clearly no longer fit to serve and protect; although he remained on the force until Chief Ronal Serpas canned him 10 months later.
Far from appreciating the extra time on the payroll, O’Hern appealed his dismissal. For a while, it appeared that his chutzpah would be rewarded; he was winning until his case reached the state Supreme Court last week.
Taxpayers are left to wonder why common sense becomes so elusive once the lawyers show up.
Sad though his predicament was, O’Hern was fortunate in a couple of respects. No bystander was plugged in the parking garage, although such was the hail of bullets that other cops rushed to the scene in the belief that O’Hern was in a shoot-out with criminals.
They found O’Hern “incapacitated,” according to the Supreme Court opinion, which is not surprising since a bottle of Scotch was found in his car and his blood alcohol reading was 0.105.
When they took him to a hospital, he announced his intention had been suicide.
He might count himself lucky, too, in that he found the criminal justice system in a lenient mood. He got a couple of years’ probation after pleading no contest to illegal use of a weapon, which should have put any future in law enforcement out of the question.
When O’Hern was informed that Internal Affairs had sustained charges of misconduct against him, however, he refused to leave quietly and appealed to the Civil Service Commission, claiming that he could not be fired because the disciplinary investigation had not been concluded within the 60 days allowed by state law.
NOPD countered that the same law says it “shall not limit any investigation of alleged criminal activity.” Its policy, therefore, was not to start the clock running on the administrative proceedings until a decision had been made on criminal charges. The O’Hern case had therefore been wrapped up within the alloted time.
The Civil Service Commission agreed with NOPD, and Serpas went ahead and kicked O’Hern out of the department.
O’Hern then took his case to the state Court of Appeal, where a three-judge panel, with Max Tobias dissenting, upheld the commission.
When O’Hern requested a rehearing, one member of the first panel, Charles Jones, had been replaced by Sandra Jenkins.
When the ruling came down in April, the third member, Daniel Dysart, once more voted against O’Hern, but this time Tobias was in the majority. Because NOPD had blown a deadline, O’Hern’s heave-ho was, as the statute has it, “an absolute nullity.”
O’Hern was clearly never again to be driving around the streets of New Orleans in a patrol car, and his criminal record would have given NOPD ample grounds to fire him again. But he would have been entitled to back pay for the years in the wilderness, and taxpayers, having footed the bill for all that investigation and litigation, might have wondered why a common-sense outcome should cost such a fortune.
The Supreme Court restored some sanity in noting that the “plain wording of the statute suggests a criminal investigation is distinct from a civil administrative investigation.”
According to Serpas, it is standard practice for police departments to give criminal investigations precedence because taking the Fifth is not an option in the administrative arena.
The tone of the Supreme Court ruling was decidedly sniffy. The appeal court, for instance, noted that its decision had been allowed to stand earlier this year when it ruled another policeman had been improperly dismissed because Internal Affairs took more than 60 days to make up its mind.
So what, the Supremes said. “It is well established that a denial of writ has no precedential value.”
Taxpayers, meanwhile, will hope O’Hern has found a more suitable line of work and conquered his demons.
James Gill can be reached at email@example.com.