WARNING TO THE LAW ENFORCEMENT COMMUNITY!
Several labor unions who purport to represent police officers are seriously misrepresenting Garrity right issues. It has come to POAM's attention that allegations have been made concerning POAM's representation of the Garden City bargaining unit, which falsely claim that POAM did not properly represent officers relating to Garrity rights issues arising from a shooting incident. Do not be misled by these proponents of misinformation as they are as ignorant of the facts as they are of the law. A brief summary of Garrity rights and the background history of the Garden City matter is warranted. Garrity and subsequent decisions of the United States Supreme Court provide a law enforcement officer protection that information (by way of a statement or report) compelled under threat of discipline, may only be used in an internal departmental matter and cannot be used against an officer in a criminal proceeding. The fundamental protection of Garrity is the prohibition of use in a subsequent criminal proceeding of the compelled statements, not the prohibition of disclosure of the information to third parties. In the Garden City matter, a fatal shooting incident occurred involving a number of law enforcement officers. POAM immediately responded and represented the officers during the department's internal investigatory interview. All taped statements made were protected under Garrity rights. Any assertion that POAM did not represent officers in the context of protecting statements with the Garrity right is patently incorrect. Subsequently, the Wayne County Prosecutor's Office conducted an investigation of the justification of the shooting incident. In the course of that investigation, the Prosecutor's Office requested the Garrity protected statements for review. When the Wayne County Prosecutor requested the Garrity-protected statements, the Chief of Police refused to comply. The reasons given, on the surface, appeared to be in support of the officers but, in reality, were for a self-serving employer-motivated reason. During a meeting between chiefs of police, labor unions and the Wayne County Prosecutor's Office to discuss Garden City's refusal to supply the Garrity statements, the Chief admitted that Garden City, as an Act 78 Civil Service community has, by law, only 90 days from the point in time it knows of or should know of employment misconduct to investigate and take disciplinary action. The Chief admitted that he was concerned his officers might refuse to make investigatory statements to the department if they knew the Wayne County Prosecutor would have access to a Garrity statement, which he believed would compromise his ability under the Act 78 time limits to take disciplinary action. Having access to Garrity statements does not change the direct prohibition on use of a Garrity statement against an officer in a criminal proceeding. What value, therefore, does the Wayne County Prosecutor gain by having the Garrity statement? As POAM has always advocated, if the Wayne County Prosecutor, or any prosecutor's office, chooses to look at a Garrity statement, three results occur. First, the statement cannot, merely because the Wayne County Prosecutor reviews it, be used against the officer in a criminal proceeding. The prosecutor's office readily and repeatedly acknowledges this as a matter of fact and law. Second, if the officer is charged with a criminal offense, while the Garrity statement cannot be used against the officer, the prosecution bears the risk of any other evidence presented being suppressed due to its prior review of the Garrity statement under the doctrine of "fruit of the poisonous tree." Third, access by the prosecutor to the Garrity statement provides a source of information to clear the officer (and to charge the criminal suspect, if needed), thereby avoiding the officer being subjected to an additional investigatory inquiry and the risk of making multiple and possibly conflicting statements. By not providing the Garrity statements to the prosecutor in the Garden City matter, the inherent dilemma presented by such a misguided act came to pass. Because the statements were not turned over, the prosecutor threatened issuing a prosecutor's investigative subpoena which, by law, mandates that the officer subpoenaed appear to answer questions posed by the prosecutor. The officer has the right to invoke the Fifth Amendment, however, the prosecutor has the corresponding right to immediately obtain a grant of immunity from the court (while the officer is present) which forces the officer to speak. Once the officer speaks, multiple statements will exist which an employer may utilize against the officer in an internal disciplinary proceeding. As a result, the failure to properly understand Garrity's application, which distinguishes release of statements from use of statements against an officer, places the officer at risk of more intense internal scrutiny possibly affecting job security. As is evident, this issue is far more involved in terms of tactics and strategy than a simple declaration that "we don't want to turn over a Garrity statement." It is neither legally correct, nor tactically or strategically smart to follow such a sophomoric approach. For years, POAM has fought with various prosecutor's offices to force them to review Garrity statements to exonerate officers from wrongdoing in serious incidents involving fatalities or injuries. Prosecutors have historically been reluctant to review Garrity statements because they recognize the statements cannot be used against an officer and that they may be tainted in their ability to prosecute under the doctrine of "fruit of the poisonous tree." As a result, prosecutors have often demanded statements without the Garrity protection or that officers submit to additional investigatory questioning. Due to that reluctance, officers are at risk of having to waive Fifth Amendment rights to get their side of the story heard. While officers have the right not to speak in that scenario, the prosecutor may be left with no information from the officer to substantiate his/her version of the events which occurred. POAM opposes officers speaking directly with a prosecutor's office without the protections afforded under the Fifth Amendment. The solution has been POAM's successful convincing of prosecutors to review Garrity-based statements. In doing so, the information reviewed cannot be used against the officer in a criminal proceeding, the officer does not have to make multiple statements and the prosecutor is not forced to make a decision on issuance of criminal charges based on information which may be one-sided. As was predicted by POAM, the litigation which ensued between the Wayne County Prosecutor and Garden City resulted in the prosecutor prevailing, with the court's declaration that release of the statement to the prosecutor is permissible under law and in no way diminishes the basic Garrity right that the statement cannot be used against the officer in a criminal proceeding. Unfortunately, as POAM further predicted, by placing an issue before the court, (which was clear-cut in application prior to placing it before the court) created the risk of the court issuing a ruling which could confuse Garrity rights. Such an occurrence has come to pass as the court, without analysis, made reference to Garrity being a self-executing or self-attaching right, which is in direct conflict with the law in Michigan and in the Federal Sixth Circuit which governs our area. That conclusion is also in direct opposition to a Federal Court decision which POAM fought for and won, setting forth the procedure for application of Garrity rights. The danger of the "self-executing" concept is that the employer will claim (incorrectly) that employees cannot assert Garrity on a report because it is already applicable. While that sounds good in concept, the result is that officers will possibly have to fight in court to prove Garrity was asserted to protect statements from admission into the record. POAM's federal court consent judgment can also be reviewed in this web site. This victory for POAM reflects the leadership role POAM has taken in Garrity rights assertion cases on behalf of members. While other unions talk about Garrity rights and offer self-serving opinions which are not substantiated by law, and thereby do damage to Garrity's application, POAM has been in the trenches fighting in court to preserve Garrity protections and to establish a recognized procedure to maximize member rights. Further evidence of POAM's aggressive leadership role in Garrity related matters is reflected in recent correspondence to the Wayne County Prosecuting Attorney, wherein POAM made clear its intent to fight any action by the prosecutor diminishing Garrity rights. This letter can also be reviewed in this web site. It is unfortunate that some individuals and organizations are motivated by self-interest to the point of misstating facts concerning not only the quality of POAM's representation, but also fundamental application of the Garrity protection. But, it is a far more serious consequence if such individuals/organizations actually believe they are correct as to Garrity's application. It should speak volumes as to the quality of potential representation from any organization which is ignorant of fact and law, in a matter of such critical concern to the law enforcement community. Frank A. Guido |