The Continuing Development Of The Garrity Rule

In recent years, one of the hottest areas of public safety labor law has been the continuing developing of the Garrity rule. As the Garrity rule, first announced by the Supreme Court more than 40 years ago in Garrity v. New Jersey, 385 U.S. 493 (1967), has been interpreted over the years, the Garrity rule has three essential components:

1. The Fifth Amendment’s privilege against compulsory self-incrimination applies when public employees are required to give statements as part of a disciplinary investigation.

2. If an employee is compelled as a condition of employment to give a statement during a disciplinary investigation, then neither the statement nor the fruits of the statement can be used against the employee in a subsequent criminal prosecution of the employee.

3. A public employer has the obligation to warn employees when it intends to compel them to give statements as a condition of employment, and the warnings must promise the employee that neither the employee’s statements nor the fruits of the statements can be used to criminally prosecute the employee.

Recent cases involving the Garrity rule have dealt with several of the components of the rule. One of the most important cases, Spielbauer v. County of Santa Clara, 199 P.3d 1125 (Cal. 2009), dealt with the question of how a public employee can be compelled to give a statement. In Spielbauer, the employer gave the employee the required Garrity warnings, including the promise that neither the employee’s statements nor the fruits of the statements would be used to prosecute the employee. “Not good enough,” said the employee, arguing that only a prosecutor could grant immunity, and then only pursuant to a court order.

The California Supreme Court disagreed with the employee, and upheld his discharge for insubordination for refusing to answer the employer’s questions. Inherent in the Court’s decision was the notion that whenever the employer uses its disciplinary authority to compel the employee to give a statement, Garrity immunity automatically flows from the employer’s order. In other words, no grant of immunity is necessary from a prosecutor or a judge, and the moment the employee is compelled to give a statement, the bar on using the employee’s statement to prosecute the employee is automatically activated.

Thompson v. State, 702 S.E.2d 198 (Ga. 2010), dealt with a slightly different question – can an employee be considered “compelled” to give a statement even when the employer does not actually order the employee to answer questions? The Georgia Supreme Court faced a fact pattern where a police officer who had been involved in a shooting was required to remain at the scene against his wishes. Though criminal investigators interviewed the employee without ordering him to respond, they did so in the company of internal affairs investigators, and the employer’s rules required employees to answer questions propounded by internal affairs investigators.

The Court found that an employee could be considered “compelled” to give a statement even if not explicitly ordered to do so by the employer. As the Court ruled, “in the absence of a direct threat to Thompson for failing to cooperate, the trial court properly focused on Thompson’s subjective belief that he could lose his job, and whether that belief was objectively reasonable. The trial court answered these questions affirmatively. That Thompson testified he wanted to tell the detective what happened does not undercut his subjective belief that he would be punished if he did not cooperate. After all, Thompson would have been anxious to tell what happened because he believed that the shooting was justified. Still, he would not have spoken to the detective but for his fear of being punished.”

State of Ohio v. Jackson, 927 N.E.2d 574 (Ohio 2010), focused on a different part of the Garrity equation – what amounts to “use” of a compelled statement in a criminal proceeding?The Ohio Supreme Court found that when a prosecutor reviews an internal affairs file in preparing for a grand jury proceeding, the prosecutor has “used” the file within the scope of Garrity. The Court was clearly troubled by the potential for prosecutors to use information in the file to gather information on the employee’s likely defenses to a criminal prosecutor, the witnesses the employee might call, and the employee’s theory of the case.

Though the Court in Jackson stopped about an inch short of ruling that internal affairs files should never be provided to prosecutors, it had some stern advice to public employers and prosecutors: “We note that a public employer can ensure that it does not violate the defendant’s right against self-incrimination only by refraining from providing a compelled statement to the prosecutor when a criminal proceeding ensues. A bright-line prohibition against providing a compelled statement to a prosecutor is both workable and practical. First, because a prosecutor is not permitted to make any use of a compelled statement, denying the prosecutor the opportunity to view the Statement will not hinder the prosecutor’s ability to prepare for trial. Second, when a defendant cannot allege that the prosecutor has made use of the statement, there is no need to conduct a time-consuming hearing. Finally, when there is no threat that a prosecutor will eventually see the contents of a compelled statement, public employees will be more willing to comply with internal investigations.”

A last development is better described as a non-development, the absence of cases picking up on the decision of the United States Supreme Court in Kansas v. Ventris, 556 U.S. 586 (2009). In Ventris, the Court held that the Fifth Amendment guarantees that no person shall be compelled to give evidence against himself, and “so is violated whenever a truly coerced confession is introduced at trial, whether by way of impeachment or otherwise.” It has long been debated by courts and advocates whether a compelled statement under Garrity could be used to impeach an employee if the employee takes the witness stand in a criminal prosecution and gives an answer that is flatly inconsistent with the employee’s internal affairs statement. The Supreme Court’s rather unequivocal holding in Ventris suggests that Garrity prohibits even the use of a compelled statement for impeachment purposes. However, no court has yet squarely added the issue.

Finally, there has been only one significant public employee case on the Miranda rule, the theoretical second cousin of Garrity. In PenaDeLa v. State, 2011 WL 723485 (Tex. App. 2011), the Texas Court of Appeals had to decide whether the questioning of a prison guard in the warden’s office amounted to “custody” for Miranda purposes. Rejecting the guard’s arguments that the inherent confinement of a prison constituted a custodial environment, the Court found: “Although the security measures inside of the prison unit created a unique situation for leaving the building, PenaDeLa was free to terminate the interview and leave the premises at any time. We find that a reasonable person would not believe his freedom of movement was restrained to the degree associated with a formal arrest.”

This article appears in the December 2011 issue.