Incident Reports May Not (Or May) Be Protected By Garrity

Michael Smith was a lieutenant at the Ventress Correctional Facility in Alabama. Though built for 650 inmates, Ventress housed over 1,600 prisoners.

On August 4, 2010, an inmate by the name of Rocrast Mack got into a physical altercation with Officer Melissa Brown after she found him masturbating in his bunk in what is known as D Dorm. During the fight, Brown and Mack hit each other with their fists. Brown also struck Mack with her baton several times, and at one point, Mack took the baton away from her. Officer John Nolin tried to intervene, but by that point Mack had left his cell and gone out to the lobby of D Dorm. Nearby inmates were watching the scuffle.

Brown called for help on her radio. Smith, who was the shift commander at the time, mistakenly thought that the incident was taking place elsewhere, and did not immediately go to D Dorm. Several other officers, however, responded to D Dorm. Those officers surrounded Mack and began kicking and punching him. As the officers were trying to handcuff him, Mack somehow escaped. Officer Nolin thought he heard Smith say over the radio “Y’all better be beating that motherfucker when I get there,” and “We’re going to kill that motherfucker.”

When Smith finally reached Brown, she had blood on her mouth and uniform, some of her fingernails were broken or missing, and her hair was in disarray. Smith told her, “Don’t worry about it, we’re going to kill that motherfucker.”

In the meantime, Mack raised his arms over his head, dropped to his knees, and surrendered. As he did so, an officer tackled him and punched him in the head. After Mack was handcuffed, a few of the officers escorted him to Smith’s office. While waiting for Smith to arrive, some of the officers hit Mack – who was still handcuffed – numerous times in the chest and stomach. Before Smith returned to his office, the other officers removed Mack’s handcuffs.

Upon his arrival, Smith grabbed a fiberglass baton from the shift office and went inside his own office. Mack was arguing with the officers who were there, but was not being physically aggressive. Smith beat Mack with the baton and ultimately broke the weapon with a blow to his head. When an officer tried to pull Smith away from Mack, who had fallen to the floor, Smith said: “[D]o you see my officer down there? She got blood on her uniform, and this motherfucker gonna die.” Smith then repeatedly stomped on Mack’s body, neck, and head. He also pepper-sprayed Mack in the face at close range. Mack did not attempt to fight back during Smith’s attack.

After the beating in Smith’s office, several officers handcuffed Mack and, together with a nurse, wheeled him to the Health Care Unit because he was unable to walk. Smith followed the group into the HCU and ordered the nurses to leave. After the nurses were gone, Smith, with two other officers present, pulled Mack – who was still handcuffed – off the bed and, again, stomped on his head several times until he passed out. At one point, when one of the officers tried to pull him away from Mack, Smith said: “[T]rust me, I got this…I’ll take some days for my officers.”

Mack died from multiple blunt force trauma and traumatic brain injury. Within hours of his attack on Mack, Smith began covering up his conduct. He met with some of the other officers who were involved in the beatings and told them to “get [their] stories straight” and submit statements. He instructed the officers to “document everything” and to indicate in their reports that Mack was not handcuffed and that he fought continuously from D Dorm to the HCU.

As required by the Department’s regulations, Smith prepared a duty report and part of an incident report, but lied in those reports about the details of the beatings. He falsely claimed, for example, that he had to use pepper spray on Mack and hit him on the thigh and arms with his baton in order to stop him from fighting and allow the other officers to handcuff him. He also omitted all of the details regarding his beating (and that of others) of Mack in the HCU. To account for the head injuries Mack sustained, Smith stated that he fell off the bed several times while in the HCU.

Smith was federally prosecuted and was convicted of civil rights and other violations. He appealed his conviction, contending that his written statement – which was used against him in trial – was protected by the immunity described in Garrity v. New Jersey.

A federal appeals court disagreed, and upheld Smith’s conviction. The Court acknowledged that “it is true, as Smith says, that the administrative regulations of the ADOC require employees to complete a report of all unusual incidents that occur during a shift or tour of duty, and to cooperate with investigations by providing information and/or verbal/written statements. It is also true, as Smith points out, that failure to comply with the ADOC’s regulations can lead to progressive disciplinary sanctions. But where there is no direct threat, the mere possibility of future discipline is not enough to trigger Garrity protection.

“In the absence of a direct threat of termination, we determine whether the officer’s statements were compelled by examining his belief and, more importantly, the objective circumstances surrounding it. Thus, for statements to be protected under Garrity, the officer must have in fact believed the statements to be compelled on threat of loss of job and this belief must have been objectively reasonable.

“Smith did not testify at the evidentiary hearing, and the magistrate judge and the district court found that he failed to present any evidence that he subjectively believed that he would be terminated if he refused to submit the reports. Even if Smith had put on evidence as to his own belief, Garrity does not stand for the proposition that a statement made in a standard report is coerced whenever an officer faces both the remote possibility of criminal prosecution if he files the report and arguably even speculative possibility of termination if he declines to do so. Rather, the touchstone of the Garrity inquiry is whether the defendant’s statements were coerced and therefore involuntary.”

United States v. Smith
, 2016 WL 1719267 (11th Cir. 2016).

Note: The results in the Smith case may well have been different had Smith asked his supervisors – before he prepared his report – whether preparation of the report was a job requirement, and whether he could be subject to discipline up to and including termination for not preparing the report.