TUPD investigation localizes national conversation about campus policing

Josh Axelrod and Sanjali De Silva|April 18, 2018

Josh Jessimen | Photography Editor

New Orleans has a long-established history relating to alcohol, but how does this affect the mental and physical health of Tulane students?

On the first day of 2016, Janard Brister was choked for five seconds and tasered, while handcuffed, by Tulane University Police Department officers. Higher-ranking TUPD officials agreed this use of force at the Tulane Medical Center on a non-Tulane affiliate was improper and excessive.

According to a WWL-TV report, former TUPD Chief Joey Bishop ordered officers to change reports and void files in an effort to cover up that incident and one other.

After a number of anonymous officers compiled a memo, an internal investigation was conducted, and Bishop resigned on April 3. Deputy Chief Shan Kirk resigned, as well, and Captain Angela Davis was fired.

“I was extremely disappointed that [the use-of-force incidents] occurred in the first place. It is completely off-brand – not the TUPD that I am used to working with…” Joseph Sotile, Undergraduate Student Government director of student safety, said. “I am also disappointed in how they have gone out with information. I have not been able to get any information on their side of things other than what was released with WWL.”

Tulane initially refused to release any arrest or personnel records of TUPD officers while WWL was compiling its investigation. Eventually, the university complied, voluntarily releasing selected files.

“Tulane is a private university whose public safety officers are not employed by the state, and we believe TUPD and its officers are not subject to Louisiana’s public records statute,” Tulane Public Relations and the Office of General Counsel said in a joint statement. “We are, however, evaluating our policies and practices regarding public records requests.”

State legislatures, colleges and journalists are grappling with this intricate legal question across the country: what level of transparency should private university police forces have?

Louisiana Policing Laws

A number of laws and statutes in Louisiana regulate public and private policing.

The Louisiana State Legislature grants arrest power to private university police forces in Revised Statute 17:1805. It also states that New Orleans universities may have their police forces commissioned by the city.

Additionally, private university police units are required to follow the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act. In 1986, Clery, an undergraduate at Lehigh University, was raped and murdered in her campus dormitory. Her parents sued the university stating that if they had more information about campus crimes, her murder could have been prevented.

The Clery Act mandates that campus police forces must publicly release an annual report of crime data, send out timely warnings and emergency notifications and maintain a public crime log.

Tulane complies with all Clery Act requirements and provides short descriptions about crime on and off campus in its crime log. Unlike public police forces, however, not all of TUPD’s files are made public, including incident reports that do not result in arrest and personnel files.

In a 2016 press release from the Student Press Law Center, an organization that advocates for first amendment rights and fights censorship, Tulane was listed as one of “17 private colleges that refused to directly provide records to the SPLC.”

The New Orleans Police Department’s records are subject to state open-record laws. Some records, including the names of sex offense victims, juvenile court proceedings and ongoing criminal investigations, are not released to the public.

Louisiana Revised Statute 44:1 defines a public body as “any branch, department, office, agency, board, commission, district, governing authority, political subdivision, or any committee, subcommittee, advisory board, or task force thereof … including a public or quasi-public nonprofit corporation designated as an entity to perform a governmental or proprietary function, or an affiliate of a housing authority.”

Because of TUPD’s relationship with NOPD, some legal experts feel the constitution’s definition provides ambiguity, allowing TUPD to be considered a public body and therefore making it subject to the same open-record laws.

TUPD/NOPD Relationship

Because of a mutual consent agreement with NOPD, TUPD is allowed to patrol in the blocks that surround campus, on both the Uptown and Downtown campuses.

Tulane’s Uptown campus is within New Orleans’ Second District. NOPD Commander Shaun Ferguson, who oversees this district, describes how TUPD operates with his unit.

“They’re working with us in various investigations that are going on in the campus area,” Ferguson said. “They assist wherever possible. If we have something going on, they try to be our eyes and ears to assist us with locating individuals that may be frequenting the university area. It’s a very close relationship — we are speaking on almost a daily basis.”

NOPD and TUPD share a number of qualities and powers. They must be certified by the Peace Officer Standards and Training Council, maintain full arrest power and use government license plates on vehicles. TUPD, however, does not receive direct funding from the city.

Other New Orleans universities, like Xavier, Loyola and Dillard, operate similarly, patrolling with NOPD as private police forces.

“I think that it is a great relationship [TUPD and NOPD] have and continue to strive for,” Ferguson said. “Just last week, we confirmed that and reassured one another that we are still working together and will continue to work together. We’re still here doing what we think is right for the betterment of the community and everyone involved.”

NOPD’s Consent Decree

TUPD’s relationship with New Orleans is significant given the city’s consent decree, which mandates a high level of accountability.

Following a number of civil rights violations and police misconduct after Hurricane Katrina, NOPD entered into a consent decree with the U.S. Department of Justice. This is a type of settlement that allows groups to resolve conflict without admitting guilt. The decree significantly changed the way NOPD polices in New Orleans.

Approved in 2013 and containing 124 pages of provisions, the decree lays out policing regulations, implements a consent decree monitor and created new methods of transparency and discipline. In paragraph 490, it states that “The City and NOPD agree to require compliance with this Agreement by their respective officers, employees, agencies, assigns, or successors.”

Independent Police Monitor Susan Hutson, a Tulane Law School graduate, operates outside of NOPD to provide oversight of that police department. Part of her job is to enforce the reforms of the consent decree, which currently has no regulatory power over TUPD.

“TUPD is not mentioned in the NOPD’s consent decree,” Hutson said. “However, paragraph 490 of the consent decree could be interpreted to mean that the City is required to ensure that when it agrees to get supplemental policing from other agencies such as TUPD, that the City also ensures that these other agencies follow the tenets of the consent decree.”

Experts Weigh In

Legal professionals question what public record laws should apply to TUPD when they are patrolling in New Orleans and interacting with non-Tulane affiliates.

The conversation hones in on the specific role of Tulane’s police force.

“I see TUPD as an extension of the learning experience at Tulane University,” Interim Superintendent Jarrod Sullivan said. “Our role is to ensure the safety of community members in and around each of our campuses. As private employees we hold ourselves accountable to all legislative statutes pertaining to public safety professionals as well as all internal Tulane University standards.”

Dane Ciolino, Loyola law professor in professional responsibility and Tulane Law School graduate, says that when patrolling in the city and when given arrest powers, TUPD is functioning as “quasi-public actors.” Hutson offered the same interpretation, saying, “If you’re patrolling the streets and stopping non-Tulane students and non-Tulane faculty, you’re operating very similarly to the NOPD.”

Scott Sternberg, general counsel to The Advocate and the Louisiana Press Association, also said TUPD’s function has a public component, even though taxpayers do not pay for TUPD.

“Nonetheless, they are still performing a public function in that they are helping keep the peace — they are enforcing the law, they have authority prescribed by statute,” Sternberg said. “How these entities are operating is an issue of great public concern.”

While the university says it is not subject to Louisiana’s open-record laws, the public relations and general counsel offices said that copies of incident reports are provided to NOPD when arrests are made. These records can be requested from the city.

“I believe all police agencies should hold themselves accountable to legislative as well as internal standards which TUPD does,” Sullivan said. “We will openly share data with all community members as it relates to the safety of our campuses and our community. We will share internal records with appropriate regulatory agencies and will investigate all new officers against those same measures.”

Others said that the university needs a higher level of transparency.

“If the state wants to make those otherwise private officers deputies for the enforcement of state and local laws, then responsibilities come with that,” Ciolino said. “And that’s including having to abide by the limitations imposed by the United States Constitution and the applicability of any other statute that might apply to the law enforcement.”

Sternberg explained that if the city has deputized TUPD and given them arrest power, then those actions should be subject to the same forms of oversight. He posed the question, “Why should the fact that the arrest is being made by a Tulane police officer at the request of the city, in order to assist in the enforcement of our laws — why shouldn’t those records be public?”

Joining A National Conversation

Several states side with Ciolino and Sternberg. Connecticut, Georgia, North Carolina, Ohio, Texas and Virginia, either through their legislature or judicial rulings, mandate campus police forces to comply with state open-record laws.

After ESPN sued Otterbein University in Ohio for access to campus police files, the state’s supreme court ruled that being a “private institution does not preclude its police department from being a public office.”

Illinois and Massachusetts tried unsuccessfully to pass legislation that would open private campus police department records.

The national push for these types of amendments comes in part from questions about the role of private campus police forces and racial tensions.

Acknowledging that New Orleans residents are greatly affected by TUPD, seniors Cameron Leahy and Jake Ward created a petition calling on TUPD to comply with state open-record laws and hold a community forum about their policing.

“The people being abused are community members and why that’s important is that … they have no say in how a private university is run, they have no voice,” Leahy said. “So if there is no voice there at least has to be transparency for people to know what’s going on.”

Ward said he noticed a lack of concern on campus about the TUPD investigation. He partially blamed an email from President Mike Fitts that only briefly alerted students about the investigation, while saying that students “shrug our shoulders because we see TUPD as a benign protection of our privilege.”

“I absolutely cannot imagine what would happen if a student were choked, even an off-campus incident,” Leahy said. “If a student were choked or tied up or excessively tasered, TUPD would be under investigation, there would be protests at Gibson every day, we wouldn’t stop hearing about it. But it’s people from New Orleans.”

The conversation is especially relevant at schools like the University of Chicago and the University of Pennsylvania. Like Tulane, these schools are all predominantly white private institutions in predominantly black cities, giving the issue a critical racial dynamic.

USG President-Elect Erin Blake commended the officers who stood up for their constituents and called the university to action, weighing in on Tulane’s role in the national conversation about private campus policing.

“I challenge our administration to be honest with its community about these investigations and share the tangible steps they will be taking to ensure the safety of our students and the Tulane community,” Blake said.

Tulane Public Relations and the Office of General Counsel declined an interview for this article, instead providing a joint statement.

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