Garrity Immunity Is Self-Executing

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

John Scatchell was a police officer for the Village of Melrose Park in Illinois. In late 2017, he went on paid sick leave to recuperate from an injury to his neck, back, and arm he suffered while on duty, which left him with pain and numbness. Shortly after Scatchell went on leave, however, someone tipped off the Melrose Park Police Department that he was out hunting when he should have been at home resting.

An Illinois conservation police officer watched Scatchell and several other men shooting shotguns while waterfowl hunting in a boat Scatchell owned. The Department began investigating if he was running afoul of the sick leave policy.

One of the men with Scatchell was Vito Scavo, the former Melrose Park police chief and a convicted felon. When the boat came ashore, the conservation officer confronted Scatchell and Scavo; the officer already knew that Scavo could not le­gally possess a gun. When the officer asked Scatchell if he had seen Scavo shooting, Scatchell demurred; he said he could not say one way or the other if Scavo held or fired a shotgun. Having watched Scatchell and Scavo shoot in the same boat together for more than 90 minutes, the conservation officer did not believe him. Neither did the Board of Fire and Police Commissioners for the Village.

After the Department brought disciplinary charges against Scatchell, the Board held a multi-day hearing. When the Department ordered Scatchell to testify at that hearing, he asserted his Fifth Amendment right to remain silent and refused to take the stand, fearful that anything he said might be used to criminally prosecute him for the incident with Scavo. The Department added a charge of insubordination, and the Board later determined that Scatchell violated numerous policies and terminated him.

The Illinois Court of Appeals upheld the termination. Scatchell contended that he was fired, at least in part, because he refused to waive his fifth amendment privilege when the Village called him to testify at the administrative hearing. Cit­ing Garrity v. New Jersey, the Court found that “the government has every right to investigate allegations of misconduct, even criminal, and force employees to answer questions about the investigation, so long as the employee has immunity from criminal prosecution on the basis of their answers. Some courts refer to this as ‘Garrity immunity.’

“If a public employee refuses to testify as to a matter concerning which his employer is entitled to inquire, he may be discharged for insubordination, but if he does testify his answers may not be used against him in a subsequent criminal prosecution. The federal courts helpfully break this general concept into two: First, if an employer threatens adverse employment action for failure to answer, it then follows as a matter of law that the employee’s statements and their fruits may not be used in subsequent criminal proceedings. This is best understood as the application of Garrity immunity.

“Second, having been afforded pro­tection against self-incrimination by this immunity, the employee may be subject to adverse employment action if they remain silent. This is the consequence of Garrity immunity.

“Neither the Board nor the Village ordered Scatchell to waive his Garrity immunity; to the contrary, they repeat­edly told him that he would be protected by Garrity immunity and thus had no fear of self-incrimination if he testified before the Board. Scatchell’s right against self-incrimination was never in doubt; it remained intact because of the immunity afforded him.

“That, obviously, is the very point of the use or derivative-use immunity provided by Garrity – to compel officers to truthfully answer questions about their conduct without the fear that the testimony will be used against them in a criminal prosecution. Scatchell, then, was found insubordinate because he refused to answer conduct-related ques­tions even after receiving immunity, just as a witness in a criminal case could be punished for contempt for refusing to testify after being given immunity for that testimony.

“Scatchell also complains that the Garrity warnings afforded him were inadequate to begin with (when he was originally questioned) and were not re-stated at the hearing. But Garrity is self-executing, attaching as a matter of law when a police officer is ordered by his public employer to answer questions about his conduct that could incriminate him.

“We could imagine a scenario where an officer, without counsel, might face questioning from his employer and not understand that he is protected by Garrity; after all, most everyone knows about the right against self-in­crimination, but fewer know about Garrity immunity. We could imagine a scenario where an individual might not know that his testimony would be immunized and thus would assert the fifth amendment without realizing his or her full panoply of rights, leading to his or her termination.

“But that scenario is not before us. Scatchell was represented by counsel, and the question of Garrity immunity was the elephant in the room, the topic that dominated the first October hear­ing, forcing an adjournment so that the parties could brief the issue, followed by more argument on this topic when the parties reconvened. Scatchell could not possibly complain that he was caught off-guard or unaware of the issue, even if his lawyer’s stated understanding of Garrity was incorrect.”

Scatchell v. Board of Fire and Police Commissioners, 2022 IL App (1st) 201361 (2022).

Also in the December 2022 issue:

  • Reasonable Accommodations And A Corrections Lieutenant’s Job
  • Ex Parte Advice From Decisionmaker’s Wife Violates Due Process
  • No Claim Against Employers Under Colorado Police Reform Law
  • Court Upholds Anti-Fraternization Rule
  • Court Allows Employer To Seize Corrections Officer’s Guns
  • Town Counsel Goes Too Far In Communicating With Arbitrator Panel
  • All Kisses Are Not Necessarily Alike For Title VII Purposes
  • Fatal Combination Of Drugs Can Result In Finding Of Line-Of-Duty Death
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