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Garrity: Compulsion as the Triggering Mechanism

Jack Ryan

Employees have Rights against Compelled, Incriminating Statements but No Right to Garrity Immunity

The right of government employees against self-incrimination requires compulsion as a triggering mechanism for immunity against the use/derivative use of their statements in a criminal prosecution.i As with any statement implicating the Fifth Amendment privilege against self-incrimination, statements must also be incriminating and testimonial.

In Harrison_, the plaintiff, a deputy who had been terminated sued the county sheriff’s department from which he had been fired. Deputy Michael Harrison had become the subject of an investigation into property that had been missing from the sheriff’s department property room. The internal investigation ran concurrently with a criminal investigation into the missing items. On three occasions, Deputy Harrison and other officers were called in to give statements to the deputies investigating the thefts. Prior to each statement Deputy Harrison was afforded his "_Garrity rights."

After the three statements, Deputy Harrison was notified that a pre-disciplinary conference would take place. “At this conference, Plaintiff was given a form explaining his Garrity rights but was informed that no statements were being compelled – he need not say anything.” Harrison’s attorney informed him that since no statements were being compelled, Garrity immunity did not exist. Deputy Harrison exercised his Fifth Amendment privilege and remained silent. Following the conference, Deputy Harrison was suspended without pay. A second conference was held at which time Deputy Harrison again remained silent due to a lack of Garrity protection. Although the criminal investigation concluded with no criminal charges brought against Harrison, he was terminated.

On appeal, Deputy Harrison claimed that his Fifth Amendment right against self-incrimination had been violated by the department’s refusal to provide Garrity protection at every stage of the administrative process. In its review of the cases, the United States Court of Appeals for the 11th Circuit concluded, “Garrity only prohibits the compulsion of testimony that has not been immunized… In other words, the employee may not be both compelled to testify (or make a statement) and be required to waive his Fifth Amendment privilege… An ’employee’s rights are imperiled only by the combined risks of both compelling the employee to answer incriminating questions and compelling the employee to waive immunity from the use of those answers,’” in a criminal prosecution. “The result of these prohibitions is that a public employee cannot be terminated solely for the exercise of his Fifth Amendment privilege.” Conversely, a public employee’s statement, compelled under the threat of the loss of their job, cannot be used against that employee in a subsequent criminal trial.

Not Every Consequence of Invoking the Fifth Amendment Privilege is Sufficiently Severe to Amount to Coercion

A disciplinary action, short of termination may not be viewed as coercion to waive the Fifth Amendment privilege against self-incrimination.ii In the Chan case, an officer won a judgment against the Chicago Police Department after he was transferred from a prestigious assignment following his refusal to answer questions before a grand jury based upon his Fifth Amendment privilege against self-incrimination. Prior to his transfer Officer Chan was assigned to the Intelligence Division of the Chicago Police Department and was detailed to a multi-jurisdictional task force on terrorists. In that assignment, Officer Chan had a take-home car and received significant overtime pay. He lost these two benefits after his transfer.

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