Garrity v. State of New Jersey, 87 S.Ct. 616 (Jan. 16, 1967) is a very important case for law enforcement officers everywhere. It is also widely misunderstood and there are aspects of its implementation that are as of yet undecided. The fact that this case is very important to law enforcement officers and still widely misunderstood underscores the value of the FOP Legal Defense Plan and attorneys who practice law on behalf of law enforcement officers every day.
It has been well-documented that one of the biggest legal issues people face is that they cannot afford access to the legal assistance they need. Many legal issues go unaddressed. I am sure that if you haven’t experienced this yourself, you probably know someone who has. The FOP Legal Plan helps FOP members access the legal services they need. I cannot say this enough: Pick up the phone and call. It doesn’t matter how important or unimportant it seems, pick up the phone and call. As an FOP member, you have access to legal professionals at no cost to you beyond your monthly dues. Pick up the phone and call. Now, on to Garrity v. State of New Jersey.
Six individuals, including Police Chief Edward Garrity, four police officers, and a clerk of court were investigated by the New Jersey Attorney General at the direction of the New Jersey Supreme Court in connection with a ticket fixing racket. During questioning, the employees were advised that:
- Anything he or she said might be used in a criminal proceeding;
- He or she had the privilege to refuse to answer if the answer would tend to be self-incriminatory; and
- Refusal to answer would be cause for removal from office.
The answers to their questions were used in their prosecution, over their objections, to secure their conviction for conspiracy to obstruct the administration of traffic laws. The convictions were affirmed by the New Jersey Supreme Court and an appeal was taken to the U.S. Supreme Court.
The U.S. Supreme Court overturned the convictions, holding that police officers were “not relegated to a watered-down version of constitutional rights.” Basically, the U.S. Supreme Court held that since they were given the choice of self-incrimination or job-forfeiture, the statements were coerced. Since the statements were coerced, they were inadmissible.
We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.
What that boils down to for police officers is that any time their employer, or someone who is authorized to terminate the officer’s employment, informs an officer that the choice is answer questions or be fired, those answers, and any fruits of those answers, will be inadmissible in criminal proceedings against that officer.
First issue: The person asking the questions must have the authority to terminate the officer’s employment. For example, if an FBI Agent tells a city police officer that they are required to answer questions or be terminated, Garrity does not apply. If a city police officer is ordered by his employer to answer the Agent’s questions or be fired, then clearly Garrity will control.
Second issue: In order for Garrity to control, the officer must reasonably believe that he will be terminated should he refuse to answer. If the penalty for refusing to answer is minor or non-existent, the answers will be considered voluntary and will be admissible. It is preferable to have this ultimatum in writing. At the very least, it should be audio recorded. If it is not in writing or read into the record by someone in a position of authority, the officer will have to prove that he had a reasonable belief that he was under an order to answer questions or face termination. This is not a sure thing.
Third issue: Garrity does not stand for the proposition that officers have the option of refusing to answer incriminating statements. It only stands for the proposition that police officers cannot be coerced into making incriminating statements by threatening their employment. The cases known as Uniformed Sanitation I and Uniformed Sanitation II address refusal to answer and, basically, if the statements are immunized, an officer can be terminated for refusing to answer.
Fourth issue: Garrity protects an officer from incriminating himself. It does not mean that the statements cannot be used against someone else.
Fifth issue: Garrity stands for the proposition that coerced statements are inadmissible in a criminal proceeding. That may not include grand jury proceedings.
There are many other questions about the application of Garrity.
- Can the ADA get copies of Garrity protected statements? Yes. If they do, they run the risk of having evidence ruled inadmissible as a result. The DA may very well be able to use Garrity statements for Grand Jury proceedings.
- What is the remedy if an ADA gets copies of Garrity protected statements? That depends. If it is possible to continue the prosecution if the statements or their fruits are excluded, it could be continued. If, however, the statements or their fruits are so intertwined with the prosecution that there is no way to separate them from excluded statements, then the remedy could be dismissal.
- What about statements made in police reports? While officers are probably required to complete police reports or face disciplinary action, statements in police reports are not likely to qualify as immunized statements. In general, statements made in the normal and usual course of business will not be immunized statements.
- What if I write in my own Garrity warning? There is a school of thought that if an officer perceives that he is answering questions under a thread of termination, that he should write that in. I do not see a downside to that. However, there is no real reason to believe it will be successful.
- If I am ordered to answer questions, can I assert my 5th Amendment right to remain silent? No. In the Uniformed Sanitation II case, the court held that once you are immunized, you no longer have the right to remain silent.
- Do the holdings in Garrity apply to breathalyzers, blood tests, etc.? No. Garrity applies ONLY to statements (testimonial or communicative communication). See Schmerber v. State of California, 384 U.S. 757, 86 S. Ct. 1826 (June 20, 1966).
- Are the contents of police reports subject to the provisions of Garrity? No. Documents written in the regular course of business are not going to be covered by Garrity. In prosecution of police officer for beatings and assaults, the government’s introduction in evidence of the arrest report made out by defendant concerning the drug raid in which the complainants were arrested, and his grand jury testimony, did not implicate in any way his right against self-incrimination. U.S. v. Rios Ruiz, C.A.1 (Puerto Rico) 1978, 579 F.2d 670.
- What about Force Statements? One could make the case that Force Statements are compelled testimony as the documents are created as a result of an order specifically related to the act in question. This is not settled. It is worth noting that most prosecutors believe these are NOT Garrity protected documents. This may be a good place to include your own Garrity statement, but may very well turn into a trial-time fight about admissibility.
Is this a special perk of being in law enforcement? Are police officers given some benefit not available to the average citizen? No. Everyone has the right to remain silent pursuant to the 5th Amendment to the U.S. Constitution. Most people do not have government agents as employers. Police officers, and other public employees, can be ordered to answer questions posed by government agents or face termination. Private employers can order an employee to answer questions, but answering those questions does not place a private employee in the position of having to incriminate themselves to a government agent. One way or another, the fact is that the application of Garrity simply allows police officers and other government employees to make use of the same constitutional protections as everyone else.
There are plenty of resources available on the internet regarding Garrity. You can download the Garrity case by clicking here (.pdf). You can download the Schmerber case here (.pdf).
Don’t hesitate to contact your FOP attorney with any questions about Garrity or any other legal issues you may encounter as a police officer.
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