Today, the basic statement of the Garrity rule requires that before a law enforcement agency questioning one of its officers can discipline the officer for refusing to answer questions, the agency must:
- Order the officer to answer the questions under threat of disciplinary action
- Ask questions which are specifically, directly and narrowly related to the officer's duties or the officer's fitness for duty
- Advise the officer that the answers to the questions will not be used against the officer in criminal proceedings.(1)
If the officer then refuses to answer appropriate questions, the officer maybe disciplined for insubordination.(2) Since the officer's answers cannot be used against the officer in a subsequent criminal proceeding, discipline for refusing to answer appropriate questions is permissible even if the officer is the subject of an active criminal investigation. (3)
Critical to the operation of the Garrity rule is that the employer actually order the employee to respond to questions, and that the employee be compelled by threat of possible discharge to respond. Absent such an order, not only does the employee have no obligation to respond to the questions, but no immunity is given to the use of the employee's answers in a subsequent criminal prosecution. (4)
An "order" to answer questions can be written, oral, or even implied. An employee is considered "ordered" to answer questions if (1) the officer subjectively believes that he/she is compelled to give a statement upon threat of loss of job; and (2) the officer's belief is objectively reasonable at the time the statement was made.(5) At present, the law is unsettled as to how or if the Garrity rule applies when an officer is merely writing a report as opposed to facing questioning."(6)
Simply because an officer can be ordered to answer questions in an administrative setting does not mean that a law enforcement agency has the right to insist that all of its questions be answered. In order to be valid, questions must have a direct bearing upon the officer's job performance. If the questions are not so limited, and especially if the questions go into areas of personal concerns, the agency may not insist on answers to the questions without violating the officer's right to privacy. (7)
WHEN DOES THE GARRITY RULE APPLY?
The protection of Garrity apply automatically whenever an officer or any public employee is required by a supervisor to answer questions as a condition of employment.(8) In order for Garrity protections to apply, the level of discipline imposed for not answering the question must constitute a "substantial economic penalty" such as discharge; merely threatening the employee with a transfer or a short suspension may not be sufficient to invoke the Garrity rule.(9) A statutory grant of immunity or a signed immunity agreement with a prosecutor is not necessary to give rise to the immunity envisioned by Garrity.(10)
There is a split of opinion on whether an employer must actually give the employee an affirmative guarantee of immunity before the employer can demand answers. A minority of courts hold that since Garrity rights automatically attach whenever an employee is required to answer questions as a condition of employment, there is no need for an employer to give such guarantees.(11) The majority of courts hold that whenever questioning could possibly lead to 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.(12)
Courts following this rule reason that law enforcement officers are not expected to be experts on the guarantees of the Fifth Amendment, and should not be required to guess whether they have criminal immunity for their statements. As noted by one court adhering to this latter view:
"[M]erely to relieve a police officer, after the fact, of the possibility of prosecution, does not solve the dilemma with which he is faced while undergoing interrogation. The exclusion of the statement in a criminal proceeding is nothing more than the exclusion of a coerced statement. In the first place, the employee may not know of his rights to remain silent and to avoid self-incrimination; and, even if he is aware of that right, he almost certainly does not know that, under Garrity, as a matter of law, his response cannot be used against him in a criminal case. Absent the advice that [the officers] could not be prosecuted on the basis of the statement given, their statement was the product of a coercive choice. They were truly between Scylla and Charybdis. If they did not speak, they knew that they would be fired. If they spoke, what they said could lead to prosecution, and most likely, in any event, to conviction and dismissal from their jobs." (13)
If there is a sufficient relationship between an officer's off-duty conduct and on-the-job performance, a law enforcement agency has the right to question an officer about the off-duty conduct.(14) In such circumstances, the protections of Garrity fully apply to the questioning.(15)
These principals were applied in a case involving the citizen review board in Denver, Colorado. The ordinance authorizing the review board granted the board subpoena authority, which it used to try to compel officers to give statements. An appeals court quashed the subpoenas, reasoning as follows: (1) The review board did not have the authority to discipline officers who refused to answer questions in testimony before the board; therefore (2) The review board's lack of disciplinary authority meant it could not "compel" employees to give statements within the framework of the Fifth Amendment; therefore (3) The review board could not grant officers testifying before it the necessary immunity under Garrity; thus (4) The review board lacked the authority to compel the officers to testify.(16)
1. See, Lefkowitz v. Turley, 414 U.S. 70 (1973); Confederation of Police v. Conlish, 489 F.2d 891 (7th Cir., 1973)(officer cannot be disciplined for invoking Fifth Amendment at grand jury proceedings).
2. Uniformed Sanitation Men Ass'n. v. Commissioner of Sanitation, 392 U.S. 280 (1968); Lybarger v. City of Los Angeles, 710 P.2d 329 (Cal. 1985).
3. Gniotek v. City of Philadelphia, 808 F.2d 241 (3rd Cir. 1986)
4. Singer v. State of Main, 10 IER Cases 811 (1st Cir., 1995); Fraternal Order of Police v. Philadelphia, 859 F.2d 276 (3d Cir. 1988); Benjamin v. City of Montgomery, 785 F.2d 959 (11th Cir., 1986); United States v. Indorato, 628 F.2d 711 (1st Cir. 1980); Orozco v. City of Montery, 941 F. Supp. 930 (N.D. Cal. 1996); National Union of Law Enforcement Officers v. Lucas, 263 N.W.2d 7 (Mich. App. 1977).
5. United States v. Camacho, 739 F. Supp 1504 (S.D. Fla. 1990)(interrogation of officers at residences and at police station covered by Garrity rule; officers advised by their attorney that their statements were compelled by departmental rules); State v. Connor, 861 P.2d 1212 (Idaho, 1993)(officer did not have reasonable belief that his statements were compelled where supervisor told him he was not required to answer questions). See, generally, United States v. Najarian, 915 F. Supp. 1460 (D. Minn. 1996); People v. Sapp, 934 P.2d 1367 (Colo.App. 1997).
6.State v. Lacaillade, 630 A.2d 328 (N.J. App. 1993); People v. Kleeman, 501 N.Y.S.2d 576 (Sup. Ct. 1986); Several courts have, without analyzing the Camacho two-part test, have concluded that officers making statements because a departmental manual required the making of the statements were not entitled to Garrity protections. See, United States v. Indorato, 628 F.2d 7i11 (1st Cir. 1980); Watson v. County of Riverside, 976 F. Supp. 951 (C.D. Cal. 1997); People v. Coutu, 599 N.W. 2nd 556 (Mich. App. 1999); People v. Marchetta, 676 N.Y.S.2d 791 (Crim. Ct. 1998).
7. Shuman v. City of Philadelphia, 470 F.Supp. 449 (E.D. Pa. 1979).
8. Gilbert v. Nix, 990 F.2d 1044 (8th Cir. 1993)(Garrity applies automatically whenever an employee is compelled to answer the employer's questions); Weston v. H.U.D., 724 F.2d 943, (Fed. Cir. 1983)(Garrity applies to non-sworn personnel as well as to law enforcement officers).
9. Chan v. Wodnicki, 123 F.3d 1005 (7th Cir. 1997); Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 859 F.2d 276 (3d Cir. 1988).
10. Erwin v. Price, 778 F.2d 668 (11th Cir. 1985).
11. See, Hill v. Johnson, 14 I.E.R. Cases 985 (8th Cir. 1998); Harrison v. Wille, 132 F.3d 679 (11th Cir. 1998); Hester v. City of Milledgeville, 777 F.2d 1492 (11th Cir., 1985); Gulden v. McCorkel, 680 F.2d 1070 (5th Cir. 1982); Debnam v. North Caroline Department of Corrections, 432 S.E. 2d 324 (N.C. 1993).
12. See, Benjamin v. City of Montgomery, 785 F. 2nd 959 (11th Cir., 1986); United States v. Devitt, 499 F.2d 135 (7th Cir., 1974); Confederation of Police v. Conlistk, 489 F.2d 891 (7th Cir. 1973); Kalkines v. U.S., 473 F. 2d 1391 (Ct. Cl. 1973); Uniformed Sanitation Men Ass'n. v. Commissioner of Sanitation, 426 F.2d 619 (2nd Cir. 1970); D'Acquisto v. Washington, 640 F. Supp. 594 (N.D. Ill. 1986); McLean v. Rochford, 404 F. Supp. 191 (N.D. Ill. 1975); Debnam v. North Carolina Dept. of Corrections, 421 S.E.2d 389 (N.C. 1992); Oddsen v. Board of Fire and Police Commissioners, 321 N.W. 2d 161 (Wisc. 1982); cf. Brougham v. City of Normandy, 812 S.W. 2d 919 (Mo. App. 1991)(warnings need only be given when there exists a possibility of a criminal prosecution); See also, Lybarger v. City of Los Angeles, 710 P.2d 329 (1985)(decided under California's statutory police officer bill of rights).
13. Oddsen v. Board of Fire and Police Commissioners, 321 N.W.2d 161 (Wisc. 1982).
14. Broderick v. Police Commisioner of Boston, 330 N.#.2d 199 (Mass. 1975).
15. Michigan State Police Troopers Association v. Hough, 872 F.2d 1026 (6th Cir. 1989)(unpublished opinion; text reproduced in Westlaw)(Garrity applied in case of off-duty criminal misconduct. The court noted that an officer's off-duty criminal conduct may well affect the performance of his official duties; "Not only does criminal conduct jeopardize an officer's credibility as a witness and affiant by opening him up to impeachment, it threatens the morale of other officers").
16. City and County of Denver v. Powell, 969 P.2d 776 (Colo.App. 1998).