As Long As Immunity Is Promised, Employer Can Demand Answers To Questions

Police Officer Kirk Homoky was under investigation by the Hobart, Indiana Police Department for misconduct. As part of the investigation, he was ordered to submit to a voice stress test. A letter to Homoky from a deputy chief stated that the investigation was an administrative investigation, not a criminal one, and that Homoky was “afforded protection of the Garrity Rule.”

Homoky subsequently received and signed his statement of rights, which included an acknowledgment that any statements made during the investigation or fruits of those statements could not be used against him in a subsequent criminal proceeding. The statement also reminded Homoky that he was ordered to cooperate and warned that refusal to answer questions would subject him to dismissal.

On the day of the voice stress test, Homoky arrived at the Porter County Sheriff’s station. Two Hobart detectives were present at the station in the room next door to the examination room but were not administering the voice stress test. Porter County Sheriff’s Department Sergeant Tim Manteuffel was to administer the test.

Manteuffel instructed Homoky to sign a release form that released the Porter Country Sheriff’s Department from liability and stated that Homoky “voluntarily, without duress, coercion, promise, reward or immunity” submitted to the examination. Homoky expressed concern about signing the document because he was not there voluntarily. Homoky then spoke on the phone to his attorney, and then repeated to Manteuffel that he could not sign the form. Homoky insisted that he was not there voluntarily and would not promise that he would not sue. After more discussion, Homoky refused to sign the form and did not take the voice stress test.

The Department notified Homoky that it intended to discharge him for insubordination for refusal to take the test. After some skirmishing, Homoky’s attorney sent the City a letter that the insubordination charge was untimely. The Police Chief then moved to dismiss the insubordination charges against Homoky. However, at the same time the Chief sent Homoky a letter stating that Homoky was to dress down and report to work on garage duty, which included scrubbing toilets. The garage duty continued for two months, when Homoky was ordered to report for modified uniform duties, which included fingerprinting and checking vehicle identification numbers.

Meanwhile, Homoky sued the City, alleging that the attempts to force him to sign the release were attempts to compel Homoky to waive his privilege against self-incrimination and remove his Garrity protection. Homoky contended that the City’s actions were coercive in violation of the Fourteenth Amendment because he only had a choice between signing the unaltered release – which would have waived his right against self-incrimination, permitting his answers to be used against him in any subsequent criminal proceedings – or losing his job.

The federal Seventh Circuit Court of Appeals rejected Homoky’s claim. The Court found that “no constitutional violation occurred. Homoky never took the voice stress test, a fact he does not dispute, so he produced no coerced statements that the government might use against him in a subsequent criminal proceeding. So there was no violation of the Fourteenth Amendment’s prohibition against the use of coerced statements.

“There was also no Fifth Amendment violation because his employer compelled him to testify with Garrity protections in place. The heart of the constitutional violation alleged is that the government cannot compel its employee to make incriminating disclosures and provide no protection against the use of the disclosures in any future criminal proceeding. Given protection against the use of the incriminating statements or the fruit of the statements, however, the government may plainly insist that employees either answer questions under oath about the performance of their job or suffer job loss.

“Homoky signed a statement of rights acknowledging that nothing he said in the course of the investigation could be used against him in a criminal proceeding. Pursuant to the investigation, he went to take the voice stress test. When he objected to signing the release at the voice stress test, he complained that he did not want to sign the release for two reasons: (1) the release stated he was there voluntarily, which he says was untrue because he was there on White’s orders; and (2) he did not want to promise not to sue Porter County’s Sheriff’s Department.

“These facts do not create a triable issue regarding whether the government compelled him to give statements without Garrity protection. Homoky acknowledged that he was advised of his Garrity protection in the days leading to the test. His argument regarding the voluntariness of submitting to the voice stress test fails because under Garrity, the Police Department could compel Homoky to take the voice stress test and answer questions. So there was no constitutional violation.

“In sum, a police department may, without violating the Constitution, compel a police officer to answer incriminating questions and prohibit him from invoking his Fifth Amendment right when it warns the officer that it will not use the information gained in any future criminal prosecution. The practice is unconstitutional when the police department fails to tell the officer that it will not use the information in a subsequent criminal prosecution, a mistake that the police department did not make here.”

Homoky v. Ogden, 816 F.3d 448 (7th Cir. 2016).