Page 21 - July 2017 Newsletter

tions 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 pref- erence 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 em- ployees must be warned that their statements cannot be used in a subsequent criminal matter before they can be disciplined for refusal to cooperate in an internal investiga- tion. 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 per- missible and her assertion of her Fifth Amendment privi- lege 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 supervi- sor 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 that an “overt threat” of dismissal was necessary
to have Garrity protection arise. The court explained that the mere possibility of termination was not sufficient to create a coerced statement. Therefore, the court held that 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 him/herself of union or legal representation;
2. the employee should attend all meetings (s)he is or- dered to attend; and
3. when appropriate, the employee should refuse to answer questions based upon his/her Fifth Amend- ment privilege until threatened with termination and thereby immunizing him/her.
Though the Court has not yet confronted the situation in which 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 ex- ercising 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 state- ment 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 in-
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