Page 18 - October Newsletter

Garrity Rights
When in doubt, go Garrity
Posted Oct. 11, 2017
The independent review era in Chicago policing currently alarms officers involved in any response beyond a traffic stop to expect the Spanish Inquisition. (Actually, traffic stops might not be immune, either.) Accordingly, Chicago Police Officers now expect the Spanish Inquisition.
If the inquiry threatens to elevate to a criminal case – and in the independent review era, any incident can fuel such a witch-hunt – all Chicago Police Officers should not hesitate to go Garrity.
Garrity Rights protect public employees from being compelled to incriminate themselves during investigatory interviews conducted by their employers. This protection stems from the Fifth Amend- ment to the U.S. Constitution, which declares that the government cannot compel employees to bear witness against themselves. For a public employee, the employer is the government itself, and there- fore the Fifth Amendment applies to that inter-
rogation if it is related to potentially criminal conduct.
If an officer responds to the inquisition as
part of compliance with Department policy and
does not want to risk disciplinary action – or
even termination – for lack of compliance, then
invoking Garrity grants immunity to keep responses from being ad- missible in a criminal proceeding.
In order for Garrity to apply, a statement must be compelled, not voluntary; and an officer must believe that his or her statements are being forced under threat of substantial discipline. The Garrity doctrine also includes “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 offi- cer that failure to respond to questioning could lead to disciplinary action for insubordination.
But here’s the poop in the punchbowl: The courts have not been clear about Garrity’s protection. Lodge 7 Attorney Daniel Herbert recently reported about a case in which state court ruled that state- ments made to the On-Call Incident Commander were Garrity- protected and then a federal court ruled they were not.
Herbert adds that the U.S. Supreme Court has opined that Garrity pertains specifically to whether statements obtained under threat of removal from office could be used in subsequent criminal pro- ceedings against the accused. If such statements were coerced and involuntarily made, under the protections of the Fifth and Four- teenth Amendments, they are prohibited from being used in subse- quent criminal proceedings.
The rock and the hard place of Garrity leaves officers facing the conundrum of either incriminating themselves or losing their means of livelihood. In the independent review era, it seems any response beyond a traffic stop can become the target of criminal investigation. So it’s not unreasonable to think that any criminal in-
CONSENT DECREE CONTINUED FROM PAGE 17
Constitution and laws by a person acting under color of state law.” Such a charge might be a flaw in her complaint.
To be fair, there can be some smaller benefits within a consent decree. Remember, the January DOJ report identified Department brass as being at fault for the “pattern and practice of civil rights vio- lations.” But if the Lodge and the attorney general can agree on lan- guage to provide staffing, training, equipment and facilities to im-
18 CHICAGO LODGE 7 ■ OCTOBER 2017
terrogation outside the routine reporting that all police officers are expected to participate in on a daily basis is subject to Garrity.
Bottom line: Officers should refuse to answer questions based upon their Fifth Amendment privilege until threatened with termi- nation, thereby immunizing them. Bottom, bottom line: When offi- cers’ statements are made immune by the supervisor’s act of com- pelling them and the statements are protected, they can no longer refuse to answer.
Herbert offers the following clip-and-save reminders regarding invoking Garrity:
• An officer can be ordered to cooperate in an internal admin- istrative investigation to provide statements regarding mat- ters 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 nar- row 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 refus- ing to cooperate and provide statements in an internal ad- ministrative investigation after a Garrity warning.
To Garrity or not to Garrity can be a difficult and even career-changing decision. The simple math is to always Garrity in anticipation that the courts would rule all state- ments to supervisors would be admissible. The new math is to invoke reverse Garrity, not wait- ing for supervisors to prompt for it. That adds a
crucial layer of protection from the get-go.
The safe play is to say nothing and do noth- ing without union or legal representation. In the independent review era, saying nothing might be a nerve-racking approach. But, then, that could be the first whiff of coercion, so to be sure, immediately call the Lodge, and your union reps can deter-
mine if consulting legal counsel would be the next call.
If you are clipping and saving any of this, here is some language courtesy of Herbert to create a document that might serve to ease
the rock and the hard place:
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 al- ternative but to abide by this order and I am submitting this statement [report] involuntarily. It is my belief and understand- ing 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 under- standing that this report [statement] will not be released, to or provided to, any subsequent proceeding other than disciplinary proceedings within my employing department. For any and all purposes, I hereby specifically reserve my constitutional rights to remain silent under the Fifth and Fourteenth Amendments to the U.S. Constitution and under all other rights provided by law.
Considering all of the above and all that is at stake, when it comes to Garrity, it is your call, not the supervisor’s. When in doubt, make that call to the Lodge. d
prove policing, that would be beneficial for all members. Of course, the Lodge will also not agree to any language in a consent decree that could interfere with its collective bargaining rights or points that are currently being discussed in the current contract negotiations.
A possible alternative might be a consent decree for one year, which could achieve everybody’s objectives. Madigan has 14 months left on her term and is not running for re-election. Expect a decision to be decreed sometime before then. d