City Can Be Civilly Liable For Garrity Violation By County Prosecutor

Jeffrey McKinley was a police officer for the City of Mansfield, Ohio Police Department. In late February 2000, the City’s police chief directed an investigation into officers’ misuse of scanners. The Chief launched the investigation after hearing several reports of officers using scanners to eavesdrop on citizens’ phone calls. The investigation eventually became known as “Scannergate.”

Lieutenant Detective Dale Fortney headed up the investigation. Fortney questioned McKinley on two occasions during the investigation. On the first occasion, McKinley claimed to have no knowledge of the alleged scanner misuse, and made a number of denials concerning a specific allegation made by a citizen that officers had used a scanner to eavesdrop on his cell phone calls. Subsequent to the first interview, Fortney became convinced that McKinley had lied in response to several of his questions. Fortney decided to re-interview McKinley.

The second interview consisted of a pre-interview session, which Fortney did not record, and a recorded interview covering the same topics as the first interview. During the pre-interview session, Fortney advised McKinley that he suspected him of lying in the first interview and that they were giving him another chance to tell the truth. At the close of the pre-interview, another internal affairs investigator read a statement indicating that McKinley had “been advised that he is still under Garrity.”

The second interview was conducted in an odd fashion. When the interrogating officers suspected that an answer was false, they would stop the tape, confront McKinley with their suspicion, and suggest that he give a truthful answer. The officers would then rewind the tape to the end of the prior question-and-answer exchange and re-ask the question that prompted the objectionable answer. During the course of the second interview, McKinley admitted to using his own scanner to eavesdrop on cordless and cell phone calls, offered a detailed account of other officers’ use of scanners to do the same, and made several admissions with respect to the specific citizen’s complaint discussed in the first interview.

The Police Department fired McKinley. When an arbitrator heard McKinley’s termination grievance, he decided that McKinley’s punishment was disproportionate to that meted out to other officers, and ordered that McKinley be reinstated with back pay and benefits.

The local County prosecutor charged McKinley with “falsification,” obstruction of official business, and interference with civil rights, all violations of Ohio’s criminal code. McKinley was convicted on two counts of falsification and one count of obstructing official business.

McKinley’s two interviews played a central role in the prosecution, as did Fortney’s testimony as to what occurred during the interviews. His conviction was subsequently overturned on appeal on the theory that the City and McKinley had entered into a “contract” under which the Police Department agreed not to use his statements in a prosecution against him.

McKinley brought a federal civil rights lawsuit against the City, alleging that the use by the County prosecutor of his internal affairs statements violated his Fifth Amendment rights under the doctrine of Garrity v. New Jersey, and that he was entitled to recover against the City for the County prosecutor’s use of the interviews. A federal Court of Appeals allowed McKinley’s lawsuit to go forward.

Much of the Court’s opinion dealt with the question of whether the use by the prosecutor of McKinley’s internal affairs interviews was “collateral.” The Garrity rule precludes the use of public employees’ compelled incriminating statements in a later prosecution for the conduct under investigation. However, Garrity does not preclude use of such statements in prosecutions for the independent crimes of obstructing the public employer’s investigation or making false statements during it.

Where the City ran afoul of these principles was with respect to the use of the statements made by McKinley in his second investigation. As phrased by the Court, “ would permit the use – in a false statement, perjury, or obstruction trial – of the statements McKinley made Garrity in the first interview since it was conducted pursuant to the ‘matter under investigation,’ i.e., Scannergate.” However, the Court found that once Fortney became convinced that McKinley had lied during the first interview, “the matter under investigation” began to include a separate investigation of McKinley for falsification and obstruction.

The Court found that there was sufficient evidence to present a question for a jury as to whether Fortney conducted the second interview of McKinley because he suspected that McKinley had committed falsification and obstruction during the first interview. That being the case, the Court concluded, the “collateral use” exception to the Garrity doctrine did not apply to McKinley’s statements.

Of potentially greater significance is that the Court refused to dismiss the City as a defendant in the case even though it was a County prosecutor who used the statements in McKinley’s criminal trial, not a City official. The Court found that Fortney was at the core of McKinley’s illegal compelled incrimination: “Officer Fortney, it is alleged, compelled McKinley to incriminate himself. McKinley took these actions pursuant to an ongoing official investigation. A special prosecutor was appointed. Fortney turned the statements over to the prosecutor and when the prosecutor introduced the statements at McKinley’s trial, he did so through Fortney, who was on the witness stand. Viewing the facts in the light most favorable to McKinley, we hold that the alleged deprivation of his constitutional rights – i.e., the use at trial of incriminating statements he was compelled to make – was a natural consequence of Fortney’s action.” As such, the Court refused to dismiss the City as a defendant from the lawsuit.

McKinley v. City of Mansfield, 404 F.3d 418 (6th Cir. 2005).

This article appears in the June 2005 issue