Court Applying Narrow View of “Garrity” Rights for Officers
I published an article last year in this magazine warning of the likelihood that going forward courts will apply a narrow view of Garrity rights for police officers. In the July 2017 edition I pointed out:
“There is some very good language for police officers with respect to Garrity rights. However it is important to realize that much of this language stems from the reversed conviction of Oliver North in the Iran Contra affair. The Court was very sympathetic to North and its rulings highlight this fact. It is unlikely a police officer will be afforded such preference.”
Unfortunately, my prediction was spot on. Recently, State v. Scott, 2018 WL 1042814, a Georgia appellate court rejected a defendant’s motion to dismiss an indictment despite a violation of defendant’s Garrity rights. On September 26, 2015, Police Sergeant Scott was on duty in his patrol car when he collided with another vehicle; two of the four people in the other car died as a result of their injuries, and the other two sustained serious injuries. On September 30, 2015, Scott gave a recorded statement to GSP Sergeant Chad Barrow regarding the collision.
Thereafter, the State presented evidence before the grand jury seeking an indictment charging Scott with reckless driving and speeding. Sergeant Barrow testified, and he identified and the State introduced diagrams of the scene of the collision, which included speed limit signs. The State also introduced the video taken from Scott’s dashboard camera, which showed Scott’s approach to the intersection and the impact. Barrow estimated Scott’s speed five seconds before the impact, two seconds before the impact, and at the time of impact, which speeds were calculated using data from the air bag in Scott’s patrol car and the video. Barrow also testified about his interview of Scott, summarizing Scott’s statements to him about the incident, including the events prior to the collision. At the conclusion of the proceedings, the grand jury returned an indictment against Scott charging him with misdemeanor reckless driving and speeding.
Garrity protection generally refers to the government’s inability to use a police officer’s compelled statements against them in a criminal prosecution, however there are nuances to this general rule. The Supreme Court’s holding in Garrity pertained specifically to whether or not statements obtained under threat of removal from office could be used in subsequent criminal proceedings against the accused. The Court held that such statements were coerced, involuntarily made, and under the protections of the Fifth and Fourteenth Amendment, prohibited from being used in subsequent criminal proceedings.
Accordingly, Scott filed a motion to dismiss and quash the indictment, alleging that because Georgia Department of Public Safety (“DPS”) procedures required him to participate in the interview with Barrow, because he was not advised of his Miranda rights, and because he was not advised that the statements he provided were covered by Garrity, the State’s introduction of his statements at the grand jury proceedings violated his rights under Garrity. At the hearing, the State conceded that it could not introduce Scott’s statements at trial, but argued that the introduction of his statements in the grand jury proceeding did not require dismissal of the indictment. Following a hearing, the trial court granted Scott’s motion, finding that his statements to police were not voluntary. The State appealed and argued that the trial court erred by granting Scott’s motion to quash. The appellate court agreed. It held that because other evidence was presented which did not violate Garrity, the defendant failed to make the required showing that dismissal was the proper remedy. The court stated that, “in addition to Barrow’s testimony regarding Scott’s statements during the interview, the State also introduced the videotape of Scott’s approach to the intersection where the collision occurred and the impact, a diagram of the intersection, and testimony estimating Scott’s speed at the time immediately before and at impact. Thus, [Scott] has not carried his burden of showing that the evidence on which the indictment was returned was based on wholly incompetent evidence.”
The expression “hard cases make bad law” seems to apply here. Since the Supreme Court issued its famous opinion in the Oliver North case, courts have systematically narrowed the scope of protections outlined in the North case.
Garrity‘s progeny continued to expand and contract the contours of the protections first acclaimed in 1967. As those contours have been more specifically defined by fact specific analyses, the seemingly simple principles pronounced by the Court in Garrity have become difficult to navigate. Practitioners of municipal employment law, regardless of whether they represent employers or employees, have a vested interest in learning this area of law. In its Gardner decision the Court afforded the officers the same constitutional protections offered any other person accused of a crime, the right not to be compelled to testify against themselves. Gardner was told that a public officer questioned by a grand jury is required to sign a waiver of immunity to retain his or her employment. Gardner refused to waive his immunity and was subsequently terminated from employment with the police department. The Court ruled that his dismissal, based solely on his refusal to waive immunity to which he was entitled under the Fifth Amendment, was not valid. Further, the Court extended this protection when it prohibited the use of the compelled testimony or its fruits in a subsequent criminal prosecution of the witness. Gardner explained the circumstances under which testimony may be compelled from a police officer despite his or her Fifth Amendment protections, what use that testimony could be put to, and under what conditions a waiver may be made (when it is “knowing” and “voluntary).”
The Garrity rules have been further clarified and detailed in subsequent 7th Circuit and Illinois Court decisions. In 1973 the Seventh Circuit decided Confederation of Police v. Conlisk . In Confederation of Police , several Chicago police officers were subpoenaed to appear before a grand jury for questioning regarding corruption within the police department. On advice of counsel, the officers asserted their Fifth Amendment privilege against self incrimination. All of the officers were disciplined or terminated because they asserted their Fifth Amendment privilege before the grand jury. Challenging their discipline, suit was brought by the terminated officers and their organization, the Confederation of Police. The Seventh Circuit held the terminations clearly ran afoul of Gardner . As such, the terminations were overturned, and the officers were reinstated. This decision and many others in various Circuits around the country have shown that Courts have a preference for silence. Courts have held that silence and self-incriminating truth telling are both preferable to lying. It then held that silence is preferable to self-incriminating truth telling. Indeed, the preference for silence is so strong that one Justice has equated the act of “availing oneself of the privilege” with the sole response of remaining silent.
In Atwell v. Lisle Park Dist. the 7th Circuit held that employees must be warned that his or her statements cannot be used in a subsequent criminal matter before (s)he can be disciplined for refusal to cooperate in an internal investigation. However, the employer’s duty to warn does not arise before the employee is questioned. The court explained that an employee’s refusal to attend a meeting is not permissible and her assertion of her Fifth Amendment privilege was premature. Put plainly, employees must wait until they are asked a question before they can assert a privilege.
In People v Bynum , a Fourth District of Illinois case, an Illinois State trooper was convicted of “failing to reduce speed to avoid an accident.” The trooper was driving an unmarked squad car that collided with a bicyclist. After the accident occurred, the trooper was directed by a supervisor to complete a report and participate in an investigatory interview. The trooper knew he was required to follow all orders and that failure to complete the report or answer questions could result in discipline. The Illinois Appellate Court held an “overt threat” of dismissal was necessary to have Garrity protection arise. The court explained the mere possibility of termination was not sufficient to create a coerced statement. Therefore, the court held the trooper’s conviction should stand.
The law is never static and is always changing. In order to weather the change successfully, it is important to recognize, anticipate and prepare for the transformation. Stay vigilant!