Over the course of the last few weeks one thing has become abundantly clear about Garrity warnings: Court interpretation of Garrity is not clear. In the span of a month I have had a state court rule that statements made to the On Call Incident Commander (OCIC) were Garrity protected but a federal court ruled they were not.
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. Garrity warnings reveal that officers are faced with the option of either incriminating themselves or losing their means of livelihood.
In order for Garrity to apply, the statement must be compelled, and not voluntary; and the officer must believe that his or her statements are being compelled under threat of substantial discipline. The Garrity court states, “consequently, we find that the ‘Garrity Warnings’ standing alone are sufficient to support the application of Garrity immunity.” The Garrity doctrine also includes what is called “reverse Garrity” which states that whenever questioning might lead to possible criminal charges an employer must give an affirmative guarantee of immunity and warn the officer that failure to respond to questioning could lead to disciplinary action for insubordination.
There are exceptions to the use of compelled statements in criminal prosecutions. Garrity does not preclude use of such statements in prosecution for the independent crimes of obstructing the investigation or making false statements during it. The Fifth Amendment permits the government to use compelled statements obtained during an investigation for the limited purpose of prosecuting collateral crimes like perjury and obstruction of justice. It is not always easy to ascertain when the officer is a target of criminal investigation. Thus a rule might be established that any criminal interrogation that is outside the routine reporting that all police officers are expected to participate in on a daily basis is subject to Garrity.
The basic rules arising from Garrity and its progeny are fairly straightforward:
- An officer can be ordered to cooperate in an internal administrative investigation to provide statements regarding matters that are specifically, directly, and narrowly related to the officer’s official conduct.
- Statements made pursuant to an order to cooperate in an internal administrative investigation cannot be used against the officer in any criminal proceeding.
- An officer may not refuse to answer specific, direct, and narrow job related questions as long as the agency does not seek to compel a waiver of constitutional rights.
- An officer can be substantially disciplined or fired for refusing to cooperate and provide statements in an internal administrative investigation after a Garrity
The spectrum of protection available for statements implicating the Fifth Amendment ranges from the most encompassing protection, transactional immunity, barring prosecution entirely, to the least protective, a limited “use immunity,” which prohibits the prosecution from introducing the statements in its case in chief but contemplates the possibility of certain evidentiary use of the statements.
Garrity‘s progeny continues 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 selfincrimination. 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 truthtelling. 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. While the Garrity rules have been changed since the decision, there are some clear rules that, if followed, protects a public employee’s Fifth Amendment privilege: 1) an employee questioned by his or her employer, when feasible should avail themselves of union or legalrepresentation; 2) the employee should attend all meetings (s)he is ordered to attend; and 3)when appropriate, the employee should refuse to answer questions based upon his Fifth Amendment privilege until threatened with termination and thereby immunizing him/her.
Though the Court has not yet confronted the situation where an officer has been terminated for a failure to prepare routine reports, the line separating routine report preparation and impermissible interrogation is difficult to assess. An officer who refuses to prepare such reports upon request could find himself or herself terminated not for exercising a constitutional right, but for failure to discharge the duties of the job. Many agencies and investigators are not clear about their purpose when they request a statement from an officer. What should an officer do when it is not clear that he or she is being “Garrityized?” Before answering any questions about an incident, an officer should clear up what the intended purpose of the questioning is about. The officer should seek a written statement from the interrogating official identifying the nature and purpose of the inquiry. If the agency refuses to define the purpose of the inquiry, or does not explain the Garrity protections, or if there is confusion, then the officer should write that fact into his statement, and attempt to self invoke Garrity protection.
An example of what some officers around the country do to protect themselves is provided by The American Criminal Law Journal:
Officers must be trained to protect themselves by incorporating a protective Garrity assertion before giving any statements in connection with an investigation into his or her conduct by agencies that do not use a written Garrity rights form. Wherever possible, officers should “Garrityize” themselves. Some associations and unions provide a “Garrity” card. Each officer should keep a copy of such a protective statement with them at all times.
The following is a suggested statement that officers use in preparing a statement or issuing a report in response to a request from their employing agency. This will enable officers to “Garrityize” themselves.
On [date] , [time] , at [place] , I was ordered to submit this report [or give this statement] by[name and rank] . Consequently, I submit this report [give the statement] involuntarily and only because of that order as a condition of continued employment. In view of likely job forfeiture or termination of employment if I refuse to cooperate and provide this statement, I have no alternative but to abide by this order and I am submitting this statement [ report ] involuntarily. It is my belief and understanding that the department requires this report [statement] solely and exclusively for internal purposes and will not release it to any other agency or authority. It is my further belief and understanding that this report (statement) will not be released to or provided to any subsequent proceeding other than disciplinary proceedings within my employing department itself. For any and all purposes, I hereby specifically reserve my constitutional rights to remain silent under the Fifth and Fourteenth Amendments to the United States Constitution and under all other rights provided by law. Further, I rely specifically upon the protection afforded to me under the doctrines set forth in Garrity v. New Jersey , Spevack v. Klein , Gardener v.Broderick , and other cases, should this report [statement] be used for any other purpose.
As the above cases show, 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. This area of law will undoubtedly be reviewed and the most likely effect will be the watering down of Garrity rights. Officers should recognize this and do everything in their power to protect their rights.