SUPREME COURT UPHOLDS GARRITY PROTECTION

STATUTORY WORDING BY POAM UNDERPINS THE DECISION

Frank A. Guido
POAM General Counsel

The Michigan Supreme Court, on June 22, 2016, issued the long-awaited decision in People v. Harris/Little/Hughes. The decision focused on whether an officer’s statement, made during an investigatory interview, could be used in a subsequent obstruction of justice criminal case against the officer. The charge could not be sustained absent use of the statement. The decision brought into question the scope of the Garrity decision, as codified under Michigan statute. Pursuant to Garrity, a compelled statement (in essence, a statement made under order and threat of employment sanction) cannot be used against an officer in a subsequent criminal proceeding. The Garrity right is a product of the 5th Amendment Constitutional protection against self-incrimination. The protection creates a balance between an Employer’s right to receive information concerning employee conduct and the right every citizen, including a police officer, has to be free from self-incrimination. As a result, the balance assures law enforcement officers that if they are compelled to speak, that which they state cannot be used against them in a criminal proceeding.

In 2006, the Michigan legislature enacted PA 563. The legislation, which is commonly referred to as the “Disclosures by Law Enforcement Officers Act,” codified and amplified the basic Garrity right. Section 1 (a) of the statute provides: “ ‘Involuntary statement’ means information provided by a law enforcement officer, if compelled under threat of dismissal from employment or any other employment sanction……” Section 3 states: “An involuntary statement made by a law enforcement officer, and any information derived from that involuntary statement, shall not be used against the law enforcement officer in a criminal proceeding.” The emphasized word “information” was recommended to the legislature by POAM, when we were asked to review and make suggestions to correct the draft of the proposed bill. On behalf of POAM, I drafted corrections, including a rewrite of the definition of an “involuntary statement.” As part of the corrections, I inserted the reference to “information” to give the broadest protection possible to law enforcement officers, to properly and fully effectuate the value and meaning of the 5th Amendment protection. Our suggestion was accepted by the legislature and became a material part of the substitute for Senate Bill 647, which was then enacted as PA 563 of 2006.

The majority opinion of the Michigan Supreme Court, as written by Justice Brian Zahra, held that the statements must remain protected from use against the officers in a criminal proceeding because of the statutory language. Justice Zahra stated: “To hold otherwise would defeat the Legislature’s stated intent to preclude the use of any ‘information,’ … a law enforcement officer is compelled to provide ‘under threat of….any….employment sanction.‘ ”

POAM filed an amicus curiae brief in the case, which highlighted the broad scope of the critical language (that POAM recommended), which the Supreme Court ultimately relied upon in the decision. POAM, as always, has been at the forefront of enforcing Garrity rights. The Michigan Supreme Court decision serves as validation of POAM efforts on behalf of the law enforcement community.