A Year’s Worth of Garrity Cases

This article appears in the January 2022 issue of our monthly newsletter, Public Safety Labor News.


The rule in Garrity v. New Jersey, 385 U.S. 493 (1967), is fairly straightforward. If a governmental employer compels one of its employees to answer questions or provide a written statement upon threat of possible job loss, then neither the em­ployee’s answers or statement nor the fruits of the answers or statement can be used to criminally prosecute the employee. Whether the prosecution has improperly relied on Garrity evidence is usually tested through what have been called “Kastigar hearings,” bearing the name of a Supreme Court decision describing the process. Kastigar v. United States, 406 U.S. 441 (1972).

2021 saw no major breakthroughs in Garrity decisions. Instead, 2021’s major Garrity cases reflect more judicial restatements of how the rule applies.

The Prosecution’s Burden Of Proof Under Garrity

State v. Ward, 2021 WL 5001793 (Ga. App. 2021), involved a former police officer who cited Garrity in successfully challenging his conviction of child molestation and enticing a child for indecent purposes. Two prosecutors admitted that they had read transcripts of the officer’s internal affairs inter­view. In reversing the officer’s conviction, the Court held that “the State did not meet its burden under Kastigar of proving that it did not make derivative use of Ward’s Garrity-protected statements. The prosecutors in this case were unaware of their burden not to use any information they learned from the Gar­rity-protected statements to influence their investigation or trial preparation.

For example, one prosecutor testified that during her preparation for Ward’s trial, while she understood that the contents of Ward’s interview were inadmissible, she did not understand her duty under Kastigar not to make derivative use of the interview. The other prosecutor testified similarly as to her understanding of the issues. Thus, the prosecutors did not make an effort to quarantine the information to ensure their investigation was not tainted by the protected statements.

“Further, although one prosecutor stated throughout the Kastigar hear­ing that her preparation for trial and questioning of the trial witnesses was based on information other than what she learned from her review of Ward’s Garrity-protected statements, those denials are legally insufficient. Neither speculation nor conclusory denials of use or derivative use by government officials will substitute for the affirmative showing of an independent source required for each and every item of evidence presented to the jury. Further, information from Ward’s protected statements were raised at trial with no inde­pendent basis being presented to the jury. Without some evidence (beyond the prosecutors’ mere denials) that the State did not use the protected statements to gather additional evidence or shape the questioning of trial witnesses, we cannot say that the trial court erred in finding that the State did not meet its Kastigar burden in this case.”

Does The Employee’s Attorney Have To Be Advised Of Garrity Immunity?

In Wilson v. State, 478 P.3d 1217 (Alaska 2021), the Alaska Supreme Court rejected an argument that Garrity prohibited terminating a cor­rections officer for refusing to answer questions without telling the officer’s attorney that his answers would not be used against him criminally. The Court found that the rule that “a state must advise its employees that their answers may not be used against them criminally before it can fire them for refusing to answer – is clear, simple, and fair. It minimizes confusion and prevents the state from exploiting the ambiguity created by its dual roles of employer and law enforcement agen­cy.” However, the Court found no violation of the officer’s rights because “the State twice advised Wilson of his immunity. Wilson twice affirmed he understood that advisement and has submitted no evidence to the contrary.

“Wilson asks us to require more of state employers – either notice to counsel or notice in advance – than any circuit has yet required. Pro­viding notice of Garrity immunity alongside the advance written notice of a compelled interview would avoid confusion by public employees and forestall any possibility of a successful challenge to a Garrity notification’s effectiveness. But because the State advised Wilson of his Garrity immu­nity and the consequences of refusing to answer, and Wilson affirmed he understood those advisements and has made no claim of confusion, the State did not violate Wilson’s privilege against self-incrimination.”

Garrity Applies Only To Compelled Statements That Might Produce Incriminating Answers

Evans v. State, 859 S.E.2d 593 (Ga. Ct. App. 2021), involved a school principal convicted of RICO violations for allowing students to cheat on standardized tests to meet testing targets. The principal argued that Garrity required the dismissal of her indictment because she was required to give compelled statements to investigators. The Georgia Court of Appeals rejected her argument, finding that Garrity only prohibited the use of compelled statements in a criminal trial and did not require dismissal of an indictment.

In Franklin v. Smith, 466 N.J. Super. 487 (N.J. Super. Ct. App. Div. 2021), the Court found no Garrity violation when the Employer sub­poenaed a disciplined police officer to testify in the officer’s disciplinary appeal. The Court held that “because he refused to testify and was not posed any questions, Smith never exercised his Fifth Amendment right. The Fifth Amendment privilege is not a blanket immunity. The Court must consider on a question-by-question basis whether each might elicit an incriminatory answer. We cannot rule in the abstract when there was no question to which Smith’s counsel objected and upon which the hearing officer had to rule.”

As the Third Circuit has held: “The task of discerning the self-in­criminating from the non-incrimi­nating falls upon the witness asserting the privilege in the first instance. This, however, is merely a subjective judgment. The juridical responsibility of objectively assessing whether the silence is justified rests with the Court. The Court, however, cannot effec­tively determine whether a responsive answer to a question or an explanation of why it cannot be answered might be incriminating except in the context of a propounded question.”

For Garrity To Apply, The Employee Must Reasonably Believe He/She Was Compelled To Answer Questions

United States v. Zambrano, 2021 WL 3709194 (N.D. Ill. 2021) involved an Illinois police officer who was as­signed to a federal Homeland Security Investigations task force. Federal law enforcement agents began investigating one of the officer’s task force partners on the disappearance of $50,000 in drug-buy money. The agents interviewed the officer for around four hours. When the officer was criminally charged with knowingly making false statements to federal agents, he moved to suppress the statements from his interview, citing Garrity.

The Court rejected the officer’s arguments, noting that “Zambrano argues that he had to answer the agents’ questions or lose his job, and thus all the statements that he made during that interview are protected. But he has not offered any evidence, such as an affidavit, that he subjectively believed he had to provide a statement or lose his job. The record also does not show that Zambrano actually faced termination if he did not participate in the interview, or that such a belief would have been reasonable. The biggest problem with Zambrano’s argument was that before he answered any questions, he signed a form acknowledging that the interview was voluntary, that he did not have to answer any questions, and that he would not be disciplined for refusing to answer questions.

“Zambrano argues that despite the waiver form, his statements were compelled because he was still subject to the rules and regulations of the Palos Heights Police Department and, under those rules, he was required to cooperate with law enforcement investigations or face possible discipline. The Court finds that a reasonable officer in Zambrano’s position would not have held this belief. Zambrano had been detailed to the fed­eral task force for six years by the time he stepped into the conference room.

“Although he was still a Palos Heights police officer, as a federal task force officer he worked in federal office space and used federally issued equipment. Moreover, the interview he attended was about his duties as a task force officer, not his work for the Palos Heights Police Department. Nobody from the Palos Heights Police Depart­ment participated in the interview. The interview was conducted by an FBI agent and an OIG agent. Zambrano has simply not presented any evidence that any state or local actors forced him to participate in this specific in­terview or would have disciplined him for refusing.”

United States v. Lewis, 2021 WL 3855873 (S.D.N.Y. 2021) involved a counselor for the New York City Department of Corrections who was alleged to have accepted bribes from the associates of prisoners in return for facilitating the smuggling of drugs into the facility. In a criminal prosecution, the counselor argued that statements she made to investigators were not vol­untary and should be suppressed under Garrity. The Court disagreed, finding that “Lewis acknowledges that she signed a voluntary statement form and quotes statements from the interview transcript in which the investigators repeat that she is being asked for a voluntary statement. Lewis contends that she feared for her job if she refused to answer.

“But the voluntary statement form she signed stated that no adverse employment consequences would fol­low solely from her refusal to answer questions in the interview. A statement challenged on the ground that it was obtained as the result of economic sanctions must be rejected as involun­tary only where the pressure reasonably appears to have been of sufficiently ap­preciable size and substance to deprive the accused of his ‘free choice to admit, to deny, or to refuse to answer.’ It must amount to a choice ‘between the rock and the whirlpool.’”


Also in the January 2022 issue:

  • To Be Covered By FMLA, Employee Must Communicate With Employer
  • Corrections Officer Wins Workers’ Comp Rape Claim
  • Union Entitled To Materials In Member’s Disciplinary File
  • DFR Claims Can Have Quick Time Limit
  • Due Process And The Brady Rule
  • Firefighter’s Bladder Cancer Presumed To Be Caused By Job
  • School Did Not Improperly Bar Officer From School Grounds