What are Garrity rights, anyway? How do they apply in an Internal Affairs setting? What rights do they give law enforcement officers who have been involved in the use of force? How do they apply in day-to-day interactions with supervisors?

These are all questions we'll examine in the course of this three-part series. It is the aim of these articles are to leave the reader with a good working understanding of perhaps the most important law enforcement officer discipline cases ever decided.

THE ORIGINS OF THE GARRITY RULE

In 1966, in a case known as Garrity v. New Jersey, the Supreme Court faced the issue of how the Fifth Amendment's protections against compulsory self-incrimination applied in a law enforcement disciplinary setting. In Garrity, police officers were questioned during the course of a state investigation concerning alleged ticket fixing. The officers were ordered to respond to the investigator's questions, and were informed that a refusal to respond to the questions would result in their discharge from employment. The officers answered the questions. Their answers were later used to convict them in criminal prosecutions.

The Supreme Court ruled that the use of the officers' statements in criminal proceedings violated the Fifth Amendment's guarantee that citizens cannot be compelled to be witnesses against themselves. The Court held that "the choice imposed on [the officers] was one between self-incrimination or job forfeiture," a choice the Court termed "coercion." In particularly strong language, the Court held that "policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights," and ruled that statements which a law enforcement officer is compelled to make under threat of possible forfeiture of his or her job could not subsequently be used against the officer in a criminal prosecution. As the Supreme Court later described, "the Fifth Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings."(1)

THE GARRITY RULE EXPANDS – GARDNER V. BRODERICK

The Supreme Court addressed the flip side of the Garrity case the following year. In Gardner v. Broderick, a police officer who was being questioned about alleged bribery and corruption was discharged after refusing to sign a waiver of immunity which would have allowed the use of his statements in a subsequent criminal prosecution. The Court reversed the officer's discharge, holding that the officer was discharged solely for his refusal to waive a constitutional right. In language which has since become a guidepost for disciplinary investigations of law enforcement officers, the Court ruled that while a law enforcement agency can conduct an administrative investigation of an officer, it cannot in the course of that investigation compel the officer to waive the immunity necessary under Garrity:

"If appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, Garrity v. New Jersey, supra, the privilege against self-incrimination would not have been a bar to his dismissal. The facts of this case, however, do not present this issue. * * * He was dismissed solely for his refusal to waive the immunity to which he is entitled if he is required to testify despite his constitutional privilege."(2)

Garrity and Gardner thus created two separate rules. First, if an employee is compelled to answer questions as a condition of employment, the employee's answers and the fruits of the answers may not be used against the employee in a subsequent criminal prosecution. Second, there exist affirmative limitations on an employer's ability to require answers to questions asked during an investigation of an employee — in the words of Gardner, the questions must be "specifically, narrowly, and directly" tailored to the employee's job.

(This article is adapted from The Rights of Law Enforcement Officers (4th Edition, 2000), written by police labor attorney Will Aitchison, and available through www.LRIS.com)

FOOTNOTES

1. Lefkowitz v. Turley, 414 U.S. 70 (1973).

2. Gardner v. Broderick, 392 U.S. 273(1968). See also Uniformed Sanitation Men Assn., Inc. v. Sanitation Commissioner, 392 U.S. 280 (1968).