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 An unfortunate reality of law enforcement is the possibility of using deadly force against another human being. When it does happen, the subject officer becomes the focus of attention from the media, co-workers, internal affairs, prosecutors. This is also a time of soul-searching. Almost immediately upon reaching the scene of a shooting or other critical incident, supervisors begin demanding to know what happened as crime scene investigators begin looking for and processing evidence. This article will explain the application of Garrity rights and discuss the decisions police officers face in the wake of a “critical incident.”
The decisions a subject officer makes in the minutes following a critical incident can have long lasting career implications. One such decision is the refusal to answer the questions of investigators after being ordered to do so. Correctly understanding and exercising one’s rights and obligations under critical circumstances can mean the difference between being terminated for insubordination and emerging from the incident with little more than bad memories. Irrespective of the circumstances, a law enforcement officer may not refuse a lawful order from a superior to answer questions regarding the officer’s duties. Doing so will almost certainly result in discipline, including termination. This is true even if the officer believes that answering such questions may reveal evidence of criminal conduct.
Know Your Rights During Questioning: The Implied Garrity Rule from Labor Services In a case known as Garrity vs. New Jersey, 385 U.S. 493 (1967), police officers were questioned during the course of a state investigation into ticket “fixing.” The officers were ordered to respond to investigators’ questions upon threat of discharge from employment. The officers answered the questions and their answers were used to convict them in subsequent criminal prosecutions. The Supreme Court ruled the use of the officers’ statements in criminal proceedings violated the Fifth Amendment’s guarantee against self incrimination. The Court held that “the course imposed on the officers was one between self-incrimination or job forfeiture.” The Court held that “Policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights,” and ruled that compelled statements made by law enforcement officers under threat of possible forfeiture of employment cannot be used against the officers in criminal prosecutions.
The evolution of the Garrity rule began almost immediately. In Gardner vs. Broderick, 392 U.S. 273 (1968), a police officer who was being questioned about alleged bribery and corruption was discharged after refusing to sign a waiver of immunity that would have allowed the use of his investigatory statements in the internal/ administrative investigation in a subsequent criminal prosecution.
The Court reversed the officer’s discharge and held that the officer was discharged solely for his refusal to waive a constitutional right. With language that 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 guaranteed by the Garrity decision.
Exercising constitutional rights cannot be a basis for termination and it is extremely important that an officer not be intimidated into waiving those rights to please superiors. However, it is equally important that those rights be exercised correctly. If not, they might as well be waived. Misunderstanding Garrity can have irreversible consequences. For example, it is widely misunderstood that Garrity warnings must be read aloud or presented in printed form to be acknowledged by an officer’s signature the way Miranda warnings are in criminal investigations. This is simply not the case. Refusing to answer questions upon a superior officer’s order because Garrity has not been read aloud or presented may result in termination for insubordination.
Communicating with supervisors should not be a source of additional stress during what is already an extremely stressful situation. The good news is that Garrity rights may apply automatically upon a superior officer issuing the order to answer questions. This is so because the mere act of refusing to answer can result in discipline. In other words, the choice between the constitutional right against self incrimination and protecting one’s job may exist the moment an officer is ordered to answer questions. In such a situation those answers cannot be used in a subsequent criminal prosecution of the officer. This is known as implied Garrity.
There are two lines of case law which apply different tests to determine whether the Garrity protections will be implied. It is important to know which test your jurisdiction applies in determining whether Garrity rights are triggered. In the absence of clear Garrity warnings issued by investigators, a prosecutor’s ability to use an officer’s statements in criminal proceedings will be determined by one of these two tests.
The first test used by some jurisdictions to determine whether statements made by public employees can be used in criminal proceedings requires a direct or overt threat of discipline for refusal to cooperate with investigators. Under this test, the courts will not find an implicit threat simply because an order to answer questions has been issued. That order must also contain the threat of discipline for failure to answer the questions. In the absence of a direct threat of discipline, the courts will also consider whether there is a state statute or ordinance that requires public employees to cooperate with investigators upon pain of discipline. The existence of an agency policy deeming it insubordination to refuse to cooperate with administrative investigators is generally insufficient to trigger Garrity under this test. This test closely tracks the facts of the Garrity case.
The second, more officer-friendly test, is the so called “subjective/objective” test. Under this test, an overt or direct threat is unnecessary to trigger implied Garrity protection. If the officer subjectively believes a refusal to answer questions will result in discipline, the first prong of this test is met. The subjective belief may be established through the existence of an insubordination policy, the facts of the incident, the nature of the questions, etc. The second prong of the test requires that the court determine whether the officer’s subjective fears were objectively reasonable under the circumstances. The court will consider the totality of the circumstances surrounding the interview of the officer. Included in this analysis are: how the officer was treated, whether promises were made, the atmosphere of the interview, agency history, etc. Regardless of the test used in your jurisdiction, there are things you must do to protect yourself when questioned by a superior officer or investigator. When a supervisor or other officer arrives on scene you are obligated to inform them whether the scene is secure, how many suspects there are, whether there are any suspects at large or weapons that are unaccounted for, that you were the victim (assaulted, battered, shot, etc.). DO NOT report on your own actions until ordered to do so and do not discuss the situation with fellow officers who may become witnesses.
If ordered to answer questions you should:
The Garrity rule must be understood and exercised correctly by the subject officer and those who represent the subject officer during the investigation of critical incidents. While the law enforcement agency has an obligation to thoroughly investigate all serious incidents it must do so with due diligence and consider the rights of the officer (s) involved. To do anything less usually amounts to a grave injustice for the subject officer and all parties involved. Making the correct decisions will reduce the likelihood of a subject officer experiencing an injustice.
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