Page 20 - July 2017 Newsletter

Clarity needed in Garrity protections
During the past few weeks, one thing has be- come abundantly clear about Garrity warn- ings:CourtinterpretationofGarrityisnot clear. In the span of a month, I have had
a state court rule that statements made
to the On Call Incident Commander FOP
used against the officer in any criminal proceeding. 3. 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 consti-
(OCIC) are Garrity protected and a fed- eralcourtrulethattheyarenot.
Legal Rep t
tutional rights.
4. An officer can be substantially disciplined or fired for refusing to cooperate and provide state-
ments in an internal administrative investigation after a Garrity warning.
DANIEL HERBERT
Garrity protection generally refers to the government’s inability to use a police officer’s compelled statements against him or her in a criminal prosecution; however, there are nuances to this general
rule.
The Supreme Court’s ruling in Garrity pertained specif-
ically to whether statements obtained under threat of re- moval from office could be used in subsequent criminal proceedings against the accused.
The Court held that such statements were coerced and involuntarily made and, under the protections of the Fifth and Fourteenth Amendments, prohibited from being used in subsequent criminal proceedings. Garrity warnings re- veal that officers are faced with the option of either incrim- inating themselves or losing their means of livelihood.
In order for Garrity to apply, the statement must be com- pelled, not voluntary; and the officer must believe that his or her statements are being compelled under threat of sub- stantial discipline. The Garrity court states: “Consequent- ly, 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 disci- plinary action for insubordination.
There are exceptions to the use of compelled statements in criminal prosecutions. Garrity does not preclude the 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 col- lateral 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:
1. 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.
2. Statements made pursuant to an order to cooperate in an internal administrative investigation cannot be
The spectrum of protection available for statements im- plicating the Fifth Amendment ranges from the most en- compassing protection, transactional immunity, barring prosecution entirely, to the least protective, a limited “use immunity,” which prohibits the prosecution from intro- ducing 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 laid out in 1967. As those contours have been more specifically defined by fact spe- cific 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 per- son accused of a crime: the right not to be compelled to testify against themselves. Gardner was told that a pub- lic officer questioned by a grand jury is required to sign a waiver of immunity to retain his or her employment. Gard- ner 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 re- fusal 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 circum- stances under which testimony may be compelled from a Police Officer despite his or her Fifth Amendment protec- tions, what use that testimony could be put to, and under what conditions a waiver may be made (when it is “know- ing” 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 this case, 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 as- serted their Fifth Amendment privilege before the grand jury. Challenging their discipline, suit was brought by the terminated officers and their organization, the Confeder- ation of Police. The Seventh Circuit held that the termina-
20 CHICAGO LODGE 7 ■ JULY 2017