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Implementing Garrity

by Mike Leibig

One of the most frustrating problems facing organizations and individuals involved in the defense of law enforcement officers against charges of wrong doing is the fact that basic rights once established are rarely adhered to by police management. Custom and practice combined with what is nearly a presumption of guilt within many police departments that "where there is smoke there is fire" - too many in law enforcement accept the idea that most cops' charged with misconduct are likely guilty of something. All of the most basic protections of due process involved in protecting citizens accused of misconduct from over reaching governmental imposed punishment are regularly violated by police departments charging, investigation, and punishment. The IUPA recognized some time ago the importance of police organizations and those charged with defending accused law enforcement, acting to make the basic principles set forth in Cleveland Board of Ed. V. Loudermill a reality. Loudermill requires that prior to the imposition of any discipline which could reduce a non-probationary law enforcement officer's pay or benefits or do injury to any law enforcement officer's reputation or future employability, the officer must be informed of the charges against him, be given access to the evidence supporting the charges, have a right to defend himself, and have a right to a full post-discipline process hearing. These rights are often ignored but must be rigorously enforced.

Like the situation with regard to full due process protection of cops charged with misconduct, the Supreme Court's constitutional rules applicable to the investigation and interrogation of cops charged with misconduct have been more often breached than followed. Garrity v. New Jersey, 385 U.S. 493 (1967) and Gardner v. Brodick, 392 U.S. 273 (1968) established four principles:

  1. If a law enforcement officer is not provided with immunity, any statement given under the threat of adverse personnel action is unconstitutionally coerced (Garrity holding);
  2. If a law enforcement officer is not provided with immunity, the taking or threatening to take any adverse personnel action in response to the assertion of the privilege against self incrimination has an unconstitutional chilling effect upon the privilege (Gardner holding);
  3. If a law enforcement officer is granted immunity but nonetheless refuses to answer questions specifically, directly and narrowly related to official duties, the officer may be dismissed (Gardnerdicta); and
  4. If a law enforcement officer is granted immunity and answers questions specifically, directly and narrowly related to official duties, the officer may be dismissed if the answers provide cause for dismissal (implicit in Garrity). See Warnken, "The Law Enforcement Officers' Privilege Against Self- Incrimination," 16 University of Baltimore Law Rev. 452 (1887).

Professor Warnken has written: The promises of Garrity and Gardner were never fully realized for law enforcement officers. Although the blatant contravention of Garrity and Gardner was remedied, subtle violations were not. In situations which courts were confronted with constitutional, statutory, or regulatory provision similar to those in Gardner and Garrity, the provisions were struck down quickly...However once across-the-board violations were remedied, unconstitutional actions continued that were more difficult to detect and prove. System-wide, explicit schemes sanctioning punitive personnel action for the assertion of the privilege against compelled self-incrimination were replaced by incident-by-incident threats, either express or implied, and grants of immunity were rare. Law enforcement officers still face the constitutionally impermissible dilemma of attempting to preserve a career by relinquishing the privilege, as in Garrity, or preserving it at the cost of a career, as in Gardner: Courts confronted with these situations frequently reflect the laymen's attitude toward those who "hide behind" the fifth amendment. Some courts have ruled against law enforcement officers without invoking or misapplying Garrity and Gardner, resting on grounds such as inapplicability of the fifth amendment because the officer did not fear a criminal prosecution, because the officer failed to assert the fifth amendment privilege, or because of lack of either a Garrity coercion or a Gardner chill. Many more courts either misunderstand or perhaps even evade, the Garrity or Gardner holdings, the immunity requirement, or both. 16 University of Baltimore at 475-477.

Two tactics must be followed if the principles of Garrity and Gardner are to become reality. First, organizations and individuals who represent officers charged with misconduct must press aggressively for full implementation of the Garrity and Gardner rules as well as, a full implementation of all of the due process implications of Loudermill. Second, national legislation guaranteeing these rights along the line of Congressman Jim Moran's (D-VA) Law Enforcement Responsibility Act must be enacted. Toward each of these ends it is important that the International Union of Police Associations collects as much information as possible concerning individual violations of rights. Police Unions and Associations must take an active part in this study. Professor Warnken's "The Law Enforcement Officers' Privilege Against Compelled Self-Incrimination" collects and comments on those cases. Routine internal affairs procedures which involve the use of a simple form "waiving" rights through a commitment not to prosecute; the use of mandatory polygraphs followed by discipline based on untruthfulness or non-cooperation completely disconnected from the originally charged misconduct; discharges and major suspensions based on nothing more than statements given officers under threat of termination, no corroboration, no additional or independent evidence; and refusal of requests for counsel or non-attorney representation, the presence of a witness during interrogation, extended interrogation -- all of these are common.

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