by FRANK A. GUIDO
POAM General Counsel
1. Definition of the right:
A. When an officer is compelled (ordered under threat of discipline) to produce information (statement, report or answer to questions), the
information produced is protected from use against the officer in a criminal proceeding, if the officer invokes the protection of the Fifth Amendment.
The employer is prohibited from compelling (ordering under threat of discipline) the officer to waive assertion of the protection of the Fifth Amendment.
The information may only be used against the officer in an internal proceeding.
B. The Garrity right must be interpreted as consisting of two principles, protection for an officer and prohibition against an employer. Both
principles are triggered when compulsion occurs.
2. Compulsion triggers protection for an officer:
A. Compulsion: An employer orders an officer, under threat of discipline, to produce a statement, report or answers to questions.
B. Protection: When compulsion occurs, an officer has the constitutional right to assert the protection of the Fifth Amendment privilege against selfincrimination,
to protect the information produced from use against the officer in a criminal proceeding (paragraph 2a, Federal Court Consent Judgment
- POAM v Livingston County Sheriff, October 24, 2001).
note: When an officer invokes the protection of the Fifth Amendment, the employer may only refuse acceptance of the information provided if it
rescinds the order made under threat of discipline to produce the information, thereby removing the trigger of compulsion. Without an order and threat
of discipline existing, the officer is at liberty to refuse production of information, as no employment sanction may attach.
note: If an officer wants to protect a statement, report or answers to questions and the employer’s representative is without authority to issue an order
under threat of discipline, the officer retains the right to invoke the Fifth Amendment and to remain silent, until such time as compulsion occurs (someone
who is empowered with authority orders production of information under threat of discipline).
3. Compulsion triggers prohibition against an employer:
A. Compulsion: An employer orders an officer, under threat of discipline, to waive (give up) assertion of the privilege.
B. Prohibition: The employer is prohibited from this form of compulsion as it cannot order an officer, under threat of discipline, to waive the
immunity (protection) of the asserted Fifth Amendment privilege against self-incrimination with respect to a submitted statement, report or answers to
questions (paragraph 2e, Federal Court Consent Judgment – POAM v Livingston County Sheriff, October 24, 2001).
C. Result of prohibition:
first result: If an employer orders a report, statement or answers to questions under threat of discipline and the officer’s attempt to invoke the Fifth
Amendment protection under Garrity is met by an employer threat of discipline if the officer does not waive (compelled to give up) assertion of the
Garrity protection, then the information given by the officer as a result of the compelled waiver is deemed obtained in violation of the Fifth Amendment
privilege against self-incrimination. The compulsion in this situation triggers the Garrity prohibition, resulting in suppression of the information or
overturning of a conviction in the event of a criminal proceeding against the officer (Garrity holding).
second result: If an employer orders a report, statement or answer to questions under threat of discipline and the officer asserts and refuses to waive
assertion of the Garrity protection, despite an employer threat and/or subsequent imposition of discipline for such refusal to waive the Garrity
protection, then adverse personnel action (for example: suspension, demotion or discharge) is deemed a constitutional violation, due to the chilling effect
upon the Fifth Amendment privilege (Gardner holding). The compulsion in this situation triggers the Garrity prohibition, resulting in the discipline
being overturned. As a result of the constitutional violation, just cause for discipline would not exist. As a side note, this is similar to the circumstance
which existed in the POAM v Livingston County Sheriff federal lawsuit which resulted in the Consent Judgment for POAM. The collateral arbitration
decision applied the federal court decision and determined that just cause for discipline did not exist, therefore, the employer’s issuance of a suspension
and transfer due to the officer’s assertion of the Garrity protection and his refusal to waive the protection, was overturned.
4. Garrity Warning:
If an officer is compelled to give information (order and threat of discipline to give information) but is not compelled to waive assertion of the Garrity
protection (no order and threat of discipline to waive assertion of Garrity), and the officer thereafter refuses to answer questions specifically, directly,
and narrowly related to official duties, any adverse personnel action taken against the officer is not unconstitutional.
note: This is the so-called Garrity warning. In this situation, the employer recognizes the Garrity protection may be asserted such that information
produced cannot be used against the officer in a criminal proceeding but only in an internal proceeding, however, the officer refuses to give information.
Discipline in this situation, absent other legitimate reasons, is not an unconstitutional act on the part of the employer.
5. Employer’s control versus Officer’s right:
An employer controls whether compulsion occurs which triggers the protection for the officer and the prohibition against the employer. The invoking
or asserting of the Garrity protection, however, is exclusively reserved for the affected officer, not the employer. The Garrity protection must be invoked
by the officer to be effective, as the Fifth Amendment is not self-executing.
12 Comments on "Quick Reference Guide to the Garrity Right"
Great article. Thanks Frank!
Does a policy that requires reports be submitted within a certain time frame create compulsion if violation of that policy will result in discipline? Should an officer wait to be threatened with disciple before doing a report in order to assert Garrity protection reference that report?
The existence of a policy with a threat of discipline is helpful when a Garrity dispute arises in a criminal proceeding, especially if no one specifically invoked Garrity. We advocate avoiding any ambiguity in whether the Garrity right exists by advising the Employer that a report will not be submitted due to express assertion of the 5th Amendment right to remain silent. It is then up to the Employer to demand the report under threat of sanction, which thereby creates the necessary compulsion allowing the right to invoke Garrity (as it has evolved from judge made law and now statutory right under Michigan law).
Please be aware, however, that this process should not be abused in run of the mill incidents. Invocation of the Garrity right should remain for critical incidents, i.e. shootings, use of force, police pursuits resulting in injuries,etc.
If you are read your Garity Rights and ordered not to talk about the case until the it has been dismissed and the employer proceeds to show the video of the incident the conclusion of the investigation in briefing and to others for as a training video is the a violation of their rights.
Both Garrity and the Fifth Amendment right against sef incrimination are the individual officer’s right, can an employer read Garrity to an officer and also read the Miranda warning to the same officer as the same interview begins? Both rights appear to be the indivdual officer’s right, but employers have been known to read Garrity (without the officer invoking Garrity)and then immediatley read the Miranda warning. Is this proper?
First, you are correct that “Garrity” is an individual right and should always be invoked, however, when an employer reads “Garrity” without the individual actually invoking his right to remain silent, then the reading of “Garrity” by the employer is viewed as compulsion, or a direct order requiring, as a condition of employment, that you provide some information. Since your employer is the government, those statements are not free and voluntarily and under this type of scenario the statements would be protected. Remember that “Garrity” is usually, utilized in internal investigations.
Miranda is different. Miranda attaches to an “in custodial” interrogation of a suspect in a criminal investigation. Miranda provides among others things the right to remain silent. Under “Garrity” when an individual is compelled, as a condition of employment, to provide a statement then that person must comply with the order if they hope to keep their employment.
In your scenario above, the order of events renders the two rights incompatible because “Garrity” orders you to make protected statement that can not be used against you and Miranda provides you have the right to remain silent and if you chose to make a statement it can and will be used against you. The more likely scenario is that an individual is read Miranda and he invokes his right to remain silent. Then the Employer reads “Garrity” or orders him under threat of discipline to provide some information. This is allowable, but ill advised. If there is a criminal investigation then it could be tainted by the “Garrity” protected statement and as such prosecution may be problematic or even barred.
As our division is currently voting on membership with POAM, I wonder if I would be out of place by asking this question here, prior to the certification of the vote… Please accept my apologies if I am speaking out of turn, by asking this.
The City of Detroit Fire Department EMS Division, is oft-times a volatile place to work. As such, we might find ourselves in situations where criminal charges are possible, as a direct result of the performance of our jobs. First, consider that as EMT’s and Paramedics, we have a legal obligation to act in the presence of a need for emergency medical assistance, and in some cases, even where there is not a need for emergent medical care. Further, that as the inherent nature of our jobs require us to make split second decision that may have a long lasting effect, and possibly even a permanent effect on the people whom we serve. The probability for legal action is definitely high.
Now, as I read through the article, and I see the title ‘officer’ used instead of something more universal, like ‘public employee,’ I wonder if Garrity might apply to EMS employees, and possibly ALL public safety professionals, to include fire fighters.
We have a policy that compels our Technicians, and Medics to submit a written report, or letter of explanation, within twenty-four hours of a request made by supervision. If it has not happened already, it is possible that our administration could use such a report, letter or statement to seek legal action against one of us.
In short, would the Garrity Right belong to us as well as a police officer? After all, our employer is the government, too.
I love it! That is way cool man! The steps weren’t that complicated too, which is great.
Yes, the Garrity right is applicable to all individuals in public employment. While the Garrity case itself factually applied to police officers, there are many cases subsequent to Garrity, including Supreme Court decisions, which have applied the same principles of the Garrity decision and rights emanating therefrom to non-law enforcement public sector employees. In fact, the principles and application of the rights specified in Garrity go beyond public employment and cover many circumstances which deal with public (government) control of rights, such as licensing.
Your question also referred to the duty to provide a report within 24 hours of a supervisor’s request. Do not operate on the assumption that the Garrity right (protection against use of a compelled statement against you in a criminal proceeding) will automatically be applicable to the report you submit within the 24 time period. Under both Garrity and the Michigan statute which has somewhat codified the Garrity right, the requirement of “compulsion” must exist before a report (or any form of information) is given to the employer, to have the Garrity protection activated.
Compulsion exists when the order to provide a report (this can exist as a stated duty by rule, regulation of policy) is accompanied with a threat of adverse job action (such as discipline, which includes discharge or any other employment sanction, i.e. suspensions). Absent an express threat by a supervisor, the existence of the Garrity right will be subject to unnecessary scrutiny if a circumstance later arises in which the prosecutor attempts to use the information given by the employee against him/her in a criminal proceeding. Often we have to prime the pump, so to speak, to make sure the employer’s order includes the threat of a job sanction. This is accomplished by asserting the 5th Amendment right to remain silent when ordered to give the report. It is at that point that the employer has the right to demand the report under threat of job action. We will often tell the employer after asserting the 5th Amendment right to remain silent that we will provide the information sought by the employer if there is a threat of job sanction because we will then be relying on the Garrity right which we, of course, expressly invoke at that point in time.
Once an order to give information (report/statement, etc.) is given along with an express threat of employment sanction for failure to provide information, you must invoke your Garrity right by an affirmative statement to the employer representative that you are asserting the Garrity right (while the statute creates a form of automatic attachment of the right at the point when compulsion occurs–it is recommended that the 5th Amendment principle, that the right must be invoked or it does not attach, should still be adhered to).
Follow our Garrity quick reference guide which is included in our website for the proper procedure to follow to protect your rights.
Frank A. Guido, POAM General Counsel
An officer, who happens to be a union official, has a private conversation in a police car with himself and another officer/union member while the two are on duty.
The employer, superior officer, orders the other officer/union official to write a letter about what the conversation was about.
The officer/union official alledgly told the other officer some negative comments regarding a supervisory officer.
Does the officer have a right to have a conversation with another officer, with no others present in private while on duty, with out being compelled to write a statement of what was said?
The conversation is not protected. You must always be careful about what you discuss or say to others because absent a recognized privilege it could be disclosed.
I have been researching Garrity in detail and have yet to find case law that states specifically that a compelled written report (such as after a shooting) is protected under Garrity. Most of the language states “upon interview.” Our OIS policy states the shooting officer will write a report documenting his actions. If he doesn’t want to due to fear of prosecution, and invokes his 5th Amend. rights, the COP will still order the report written. Can the COP provide this report to prosecutors??