Garrity II

Earlier this week the Sixth Circuit came out with another opinion strongly supporting Garrity rights for police officers. McKinley v. City of Mansfield, No. 03-4258 (6th Cir., April 11, 2005.) available here. This case is important in several respects: First, it reinforces the right to Garrity protection when there is a second interview under "continuing" protection by Garrity; Second, it provides an explanation of Garrity protection for statements regarding lying; Third, it makes clear that the department and individual managers or IA investigators can be held personally liable for violating officers' Garrity rights. A related state court case also shows how a Garrity protection statement can be considered a contract, granting the officer even greater rights than Garrity itself.

In this case, a police officer was interviewed by IA twice. In the second interview, IA got the officer to admit that he lied in the first interview, and had him make statements contradicting the first interview. The officer was then fired, and prosecuted and convicted for lying based on his second statement. The termination was overturned by an arbitrator, and the prosecution was thrown out by the State appellate court. The officer then sued the department, department management, and the IA investigators for violating his Fifth Amendment Garrity rights. The District Court ruled against the officer, and the appeals court reversed the district court.

First, the Court found that both statements were compelled. In the first statement, the officer was read his Garrity rights and threatened with discipline. While this was not explicitly done in the second interview, the Court found that there was sufficient evidence that the interview was compelled due to the continuing threat of discipline, and the reference that the officer was "still under Garrity." However, remember that other Courts may have a different interpretation of Garrity.

Second, the Court addressed whether there was a violation of Garrity when the prosecution used the second statement against the officer. The officer conceded, as he had to, that he could have been prosecuted for lying on the first statement. As the Court noted, "Garrity does not preclude use of such [compelled] statements in prosecutions for the independent crimes of obstructing the public employer's investigation or making false statements during it."

However, in this case, the officer asserted that because the IA investigators were investigating the lying allegation in the second interview, they could not use the second statement in any prosecution for lying. The Court agreed, explaining "Garrity extends as far as 'the matter being investigated.' Consequently, where 'the matter' includes a subsidiary investigation into the truth of an officer's statements, a decision by internal affairs investigators to compel the officer to make statements and admissions to the effect that he lied--which statements and admissions are then used to convict him of lying in a prior interview--amounts to a direct violation of Garrity." In other words, if a compelled statement is taken in the course of an investigation for lying, the statement cannot be used in a criminal prosecution for lying.

Third, the Court found that the IA investigator could be held personally liable for violating the officer's Garrity rights. The Court found that as a matter of law, "the right not to be compelled by his superiors, who are state officials, to make incriminating statements that are later used against him at trial--was clearly established at the time of McKinley's second interview." Because the right was clearly established, the IA investigator was not entitled to "qualified immunity" and could be held personally liable for violating the officer's rights. The Court also held that higher level managers could also be liable, depending on the facts to be developed at trial.

This third point can serve as an opportunity to "remind" and "educate" departments on the rights of officers, and the potential liability of departments and departmental management. A reminder letter may help ensure compliance with Garrity, and can serve to defeat the potential argument from the department that it did not know it was violating the rights of the officers. Any letter should be written by, or with the help of, local counsel.

Finally, the State Court decision referenced by the federal Court shows how promises of immunity can be binding even if there is no Garrity protection. State v. McKinley, No. 01CA98, 2002 WL 1732136 (Ohio Ct. App. June 25, 2002)[Contact me if you need a copy of this decision]. In the appeal of the criminal prosecution, the Ohio Appeals Court ruled that neither statement by the officer could be used in the criminal trial. The Court first found that Garrity did not protect either statement (the federal court disagreed on this finding). However, the state Court ruled that the Garrity protection language was a contract that could be enforced by the Officer. Therefore, since the officer was promised immunity, even the original statement could not be used against him. This is an excellent example of why grants of immunity are so important, and the union and counsel should carefully review any Garrity protection language used by the officers or the Department. (A topic to be addressed in more detail in the upcoming Police Union News.)

As always, Courts in different Circuits have different interpretations of Garrity, and union leaders should check with local counsel for the application of Garrity in their locality. Please let me know if you have any questions, or if you have had any experiences in this area that may be helpful to others.

Aaron Nisenson
General Counsel
IUPA

1421 Prince Street, Suite 400
Alexandria, Virginia 22314