Garrity

This case is an example of why an Officer needs to make a Garrity disclaimer prior to making a statement.

This case comes from the Court of Appeals for the State of Wisconsin. Since this is from a state Court, not a federal Court, it should not create too much damage. However, it is an example of how Court's can view Garrity protections very narrowly.

In Wisconsin v. Brockdorf, 2004 WL 2852118, Docket No. 04-1519-CR (Dec. 14, 2004)(attached) a Police Officer gave two contradictory statements regarding the treatment of a prisoner by her partner. The Officer was then criminally prosecuted for "obstructing an officer." The issue for the Court was whether the first statement should be excluded due to Garrity.

The Appeals Court explained:

"The pivotal issue in this case is whether Brockdorf's October 3rd statement was given voluntarily. The State argues that Brockdorf was not threatened with job loss if she exercised her Fifth Amendment right to remain silent. Rather, the only "threat" was that if she did not answer questions, she could be charged with obstruction. Brockdorf admits that she was never told that she would be fired if she refused to answer questions, but that she believed if she was charged with obstruction and caught lying, then she would be fired. The trial court, relying on Garrity, concluded that Brockdorf's statement was coerced because it was made under threat of an obstruction charge and fear of job loss. This court concludes that Brockdorf's statement was not coerced; rather, it was voluntarily made and therefore should not have been excluded."

The Court relied heavily on the fact that the Officer was not TOLD she would be fired if she refused to answer: "She was not told that she would be fired if she exercised her Fifth Amendment right to remain silent. She was told that she would be charged with obstruction if she refused to answer questions in the criminal investigation. This, however, does not rise to the level of coercive conduct so as to negate the voluntariness of her statement."

We believe that this is an incorrect interpretation of Garrity, and that the Court went to far in appearing to require that the Officer actually be told that she would be fired in order for Garrity protection to attach. We want to ensure that this interpretation does not spread further. Therefore, if you know of any pending cases where this is an issue, please let me know, and I.U.P.A. may be able to help.

In the meantime, this case highlights the need to have Officers give an explicit Garrity protection disclaimer. A Garrity disclaimer will provide use immunity so long as it is given to, or approved by, a governmental official with apparent authority to grant immunity. I.U.P.A. recommends that the following language be placed on any written statement, and be told to an investigator if there is an oral statement.

On (date & time) at (place), I was ordered to submit this statement by (name and rank). I give this statement at his/her order as a condition of employment. I have no alternative but to abide by this order or face discipline, up to and including termination.

It is my belief and understanding that the department requires this statement solely and exclusively for internal purposes and will not release it to any other agency. It is my further belief that this statement will not and cannot be used against me in any subsequent criminal proceedings. I authorize release of this report to my attorney or designated union representative.

I retain the right to amend or change this statement upon reflection to correct any unintended mistake without subjecting myself to a charge of untruthfulness.

For any and all other purposes, I hereby reserve my Constitutional right to remain silent under the Fifth and Fourteenth Amendment to the United States Constitution and any other rights prescribed by law. I rely specifically upon the protection afforded me under the doctrines set forth in Garrity and Spevack should this statement be used for any other purpose.

However, as always, there are significant variations in the law from jurisdiction to jurisdiction, and Officers should contact their local counsel if they have a specific questions on the procedure in their department.

Please email me if you have any questions or interesting cases.

Thanks,

Aaron Nisenson
General Counsel
I.U.P.A.