Department’s Garrity Failure Results In Reinstatement

Zachariah Foltz is a police officer with the St. Louis Metropolitan Police De­partment. On August 4, 2018, investigators at the Department’s Internal Affairs Division (IAD) interviewed the parents of a 12-year-old girl who alleged their child had been sexually assaulted by an officer referred to in the Court’s opinion as “Officer SK.” According to the child’s diary, she had a sexual encounter with Officer SK when he picked her up in his patrol car.

As a result of these allegations, the Department instigated two investigations, one internal, led by IAD, and one criminal. Based upon the Department’s policy, these investigations remained on separate but parallel tracks. Information from the criminal investigation could be shared with the internal investigator, but information from the internal investigation could not be shared with the criminal investigator.

The Department sought to interview Foltz as a witness in the internal investi­gation because he was in the patrol car with Officer SK and the child. Foltz came to IAD’s interview with counsel. Before the interview, IAD’s commanding officer informed Foltz’s counsel that Foltz was not the subject of the investigation but was a potential witness in the internal and criminal investigations of Officer SK.

Foltz’s counsel expressed concern about what the circuit attorney – who had the ultimate authority to decide whether to charge someone with a crime – might do with any statements Foltz made in the criminal investigation. Foltz and his counsel had only limited information on the allegations at the time because Foltz was the first witness IAD interviewed after talking with the parents of the child.

Foltz’s interview began with both an internal investigator and a criminal in­vestigator in the interview room. Counsel was present during the entire interview, which was recorded on video and audio. The internal investigator confirmed that Foltz had been given an Advice of Rights form, which ordered Foltz to answer questions and notified him that “if you refuse to testify or to answer questions relating to the performance of your official duties or fitness for duty, you will be subject to departmental charges which could result in your dismissal from the Police Department. If you do answer, these statements may be used against you in relation to subsequent departmental charges, but not in any subsequent criminal proceedings against you.”

The internal investigator then began to read Foltz his Miranda rights, which the Department typically does at the outset of an interview in a criminal investiga­tion. The criminal investigator interrupted and explained there was no need to read Foltz his Miranda rights because Foltz was not going to make any statements in the criminal investigation. The criminal investigator asked whether Foltz understood that declining to make a statement in the criminal investigation could result in discipline. Foltz said he understood but did not want to make a statement to the criminal investigator.

The internal investigator then questioned Foltz regarding the allega­tions of “inappropriate acts” between Officer SK and the child that was in their patrol car the day before. Foltz answered all the internal investigator’s questions. Eventually, the Department terminated Foltz for “failure to co­operate in the criminal investigation which violated the Code of Ethics, was contrary to the Department’s purpose of investigating crime and holding people accountable for crim­inal acts, and suggested to the public that the police department holds its officers to different standards than other citizens.”

The Missouri Court of Appeals overturned Foltz’s termination, citing the principles of Garrity v. New Jersey. The Court found that “it is undisputed Foltz refused to speak to the criminal investigator. Even though this refusal was not accompanied by any oral in­vocation of the Fifth Amendment, it was, as a matter of law, an invocation of his right to remain silent and not make potentially self-incriminat­ing statements. Further, even upon terminating Foltz, the Department recognized Foltz exercised his Fifth Amendment privilege not to speak to the criminal investigator. Accord­ingly, the Civil Service Commission’s finding that Foltz did not specifically invoke the Fifth Amendment – a legal conclusion that we review de novo – is not supported by competent and substantial evidence and is incorrect as a matter of law.

“However, the City insists that Foltz knew he was protected by Garrity for both the interview by the internal investigator and the criminal investi­gator and that neither statement would be used against him in a subsequent criminal proceeding. The record of the circumstances surrounding the interviews demonstrates otherwise.

“The Advice of Rights form provided to Foltz clearly advised that his statement to the internal affairs investigator could not be used against him. Foltz was not given that same assurance as to any statement he made to the criminal investigator. The fact there were two investigations – proceeding on parallel tracks with a firewall between them, separating the flow of information from the internal to the criminal – indicates that state­ments made to one investigator were of a different character and would be used for different purposes than those made to the other investigator.

“By the Department’s policy, ‘Garrity statements’ made in an inter­nal investigation are protected by im­munity and cannot be shared with any criminal investigation. This implies that statements made in a criminal in­vestigation do not automatically have the same protections because the crim­inal investigator testified that, prior to a criminal investigation interview, Miranda warnings are provided. There would be no reason to provide Miranda warnings if the common understand­ing was that the statements Foltz made would be provided Garrity immunity. Further, if Foltz’s statements to the criminal investigator were protected by Garrity, the criminal investigator would not state he would arrest Foltz if incriminating statements were made during the interview. The criminal investigator would not be able to arrest Foltz if his statements in the criminal investigation were to be protected by Garrity.

“In the absence of explicit assurances that he would be entitled to immunity for the second statement, Foltz was free to assume that no immunity would attach.”

Foltz v. City of St. Louis, 2023 WL 5688659 (Mo. App. 2023).

This article appears in the November 2023 issue of our monthly newsletter, Public Safety Labor News.

Also in the November 2023 issue:

  • Officer’s Brady Suit Can Proceed Pseudonymously
  • ‘National Police Association’ Loses Defamation Lawsuit
  • Troopers Awarded Back Pay In Vaccine Mandate Dispute
  • Fire Chief Properly Terminated For Using Employer Vehicle To Attend Religious Function
  • Prison Guard Discriminated Against For Refusing To Shave
  • No Retaliation When Police Officer Passed Over For Special Assignment
  • Last Chance Agreements Are Enforceable
  • Female Officers Discriminated Against In Scheduling
  • City Violated Labor Statute By Failing To Abide By Negotiated Policy After Officer-Involved Shooting
  • Corrections Officer Not Entitled To Disability Benefits For Employment-Related Stress
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