AS LONG AS IMMUNITY IS PROMISED EMPLOYER CAN DEMAND ANSWERS TO QUESTIONS

AS LONG AS IMMUNITY IS PROMISED EMPLOYER CAN DEMAND ANSWERS TO QUESTIONS

Officer Kirk Homoky was under investigation by the Hobart Police Department for misconduct. Homoky was to submit to a voice stress test, and the deputy chief stated that the investigation was an administrative investigation, not a criminal one and that Homoky would have protection of the Garrity Rule. Homoky signed his statement of rights that acknowledged that any statements he made during the investigation could not be used against him in a subsequent criminal proceeding.

On the day of the stress test, Homoky was asked to signed a form that stated he was there “voluntarily, without duress, etc” but Homoky refused to sign the form because he was not there voluntarily. The Department then notified Homoky that he could be discharged for insubordination for refusing to take the test. Homoky was not discharged, but the Department sent him to garage duty for two months.

Homoky sued the City, alleging that the attempt to force him to sign the release were attempts to compel Homoky to waive his privilege against self incrimination and remove his Garrity protection. He argued that the City violated the Fourteenth Amendment because they coerced him to choice between signing the unaltered release (giving up his right against self incrimination) and losing his job.

The Seventh Circuit Court of Appeals rejected Homoky’s claim, finding that no constitutional violation occurred. Homoky never took the voice stress test and so he never produced any coerced statements that may be used against him. The Court stated that a police department may, without violating the Constitution, compel a police officer to answer incriminating questions and prohibit him from invoking his Fifth Amendment right when it warns the officer that it will not use the information gained in any criminal prosecution.  The practice would be unconstitutional if the police department fails to tell the officer that it will not use the information in a criminal prosecution.

Homoky v. Ogden, 816 F.3d 448 (7th Cir. 2016)

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