Case Study Critique 1
Garrity Warnings: To Give or Not to Give, That Is the Question
By Eric P. Daigle, Esq., Daigle Law Group, Southington, Connecticut; and Secretary, IACP Legal Officers Section
s I travel the country and work with different police departments, I am troubled by the inconsistency and the
lack of knowledge of police management regarding use of Garrity in administrative investigations. I have
learned that while investigators and manag ement are aware of the practice of using Garrity warnings, as created by
the case Garrity v. New Jersey, 1 these warnings are misinterpreted and misapplied throughout the United States.
In law enforcement organizations, the Garrity principle is an important tool to provide officers the necessary
protections while still enabling departments to conduct thorough and complete int ernal investigations. In a given
agency, what is more important: the criminal investigation or the discipline of the employee for a violation of
department policy? It may matter whom one asks. In a given department, is a Garrity warning given to compel a
statement if there is a potential criminal investigation?
During an administrative investigation of an officer, the agency head or representatives (that is, internal affairs
investigators) are permitted to and generally should compel the subject officer to truthfully answer questions that are
narrowly tailored to the scope of the subject’s job as a police officer. The basic principle of Garrity is that when the
statement taken from the subject officer is compelled, the statement and the evidence derived from the statement
cannot be used against the subject officer in a criminal action against the officer arising from the same circumstances
about which the officer was questioned. This article attempts to clarify —or asks readers to consider —whether
agencies are applying Garrity principles inconsistently because of a clear lack of judicial interpretation, creating the
perceived belief that the agency cannot question its own employees.
The Garrity Principle
In Garrity v. New Jersey, the U.S. Supreme Court establis hed some straight forward rules regarding situations in
which police officers are compelled to provide statements to their employers.
Under Garrity, an incriminating statement obtained from an officer who is compelled to provide the statement under
the thr eat of job loss if the officer invokes the right to remain silent may not be used against the officer in a criminal
proceeding. The court found that such a statement is deemed coerced if the officer is denied a meaningful
opportunity to assert Fifth Amendm ent rights. The court reasoned that it is unacceptable to put an officer in the
position of choosing whether to self -incriminate or to risk job loss for invoking the Fifth Amendment.
The application of Garrity warnings provides that an employee can be orde red to cooperate in an internal or
administrative investigation and be compelled to truthfully answer questions that are specifically, directly, and
narrowly related to the employee’s official conduct. Any statements made pursuant to an order to cooperate in such
an investigation —and any evidence derived from that statement —may not be used against the employee in a
criminal proceeding. For Garrity to apply, the statement must be compelled and not voluntary.
Garrity is a management prerogative that should no t be part of the collective bargaining agreement that would allow
subordinate officers the authority to invoke it to protect themselves. The principle and its application have been
established by the U.S. Supreme Court, and there is no reason for managemen t to expand the privilege. Yet, why is
the law not being consistently applied? Many departments have taken Garrity, allowed it to be stretched beyond its
intended purpose, and have applied a blanket application to routine parts of an officer’s job duty or routine
documentation of activities. The result is the apparent exclusion or loss of important evidence that may serve to
quickly exonerate officers who have followed department policy and quickly discipline officers who have failed to
follow policy. At th e other end of the spectrum, some departments have failed to shield involuntary statements
obtained through Garrity warnings from criminal investigators or prosecutors. This practice has the effect of tainting
information obtained from these statements and the possibility to render unusable other critical evidence in a criminal
prosecution.
Application of the Garrity Principles On the operational side, when providing Garrity warnings, the interrogating officer must inform the subject officer that
compelled responses cannot be used against the officer in a criminal proceeding and will be used only for
administrative purposes. The officer must be told that failure to respond to the questions asked during the
administrative process may result in discipline up to and including termination. Before a department may discipline an
officer for refusing to answer questions, it must direct the officer to answer questions under the threat of discipline
and provide a warning that refusal to answer questions will result i n discipline or termination. In addition, the
questions asked must be specifically, directly, and narrowly tailored to the officer’s duties or fitness for duty, and the
department must advise the officer that any responses will not be used against the offi cer in a criminal proceeding.
The Garrity warnings, however, do not give an employee a right to lie when giving a statement. On the contrary, if the
employee is provided Garrity warnings and a compelled statement is obtained, the employee could be subject to
criminal charges if the employee makes false statements during the interview. If, after being given Garrity warnings,
the employee chooses not to answer questions narrowly tailored to the officer’s job duties, the agency can impose
strong disciplinary a ction for this act of insubordination up to and including termination.
While the practice of labor law is unique in specific areas, what I have seen recently is an erosion of these basic
principles because of fear of what a labor board or civil service com mission will say or do in response to discipline
imposed, inadequate knowledge, or the perception and influence of prosecutors who are more worried about their
criminal prosecutions than the integrity of the police force.
In McKinley v. City of Mansfield, 2 the police department conducted an internal administrative investigation into the
improper use of police scanners to eavesdrop on cordless phones and cellphones, and interviewed more than thirty
police officers. One officer questioned under Garrity warnings was Officer McKinley, who was interviewed twice
following allegations that he provided untruthful answers during hi s first interview. During the second interview, the
investigator made it clear that he was interviewing McKinley a second time related to allegations of lying during the
first interview. Therefore, at the time of the second interview, McKinley was under cr iminal investigation for lying.
McKinley, however, was still under the Garrity warnings at the time of the interview. During the second interview,
McKinley provided statements that contradicted statements made during the first interview and, in fact, admit ted to
providing false statements. Once the internal investigation was complete, investigators turned over the information
they had gathered, including McKinley’s statements, to the prosecutor. Based on the findings of the internal
investigation, the depar tment terminated McKinley —who was later reinstated with back pay and benefits following
collective bargaining agreement arbitration.
McKinley, who was charged with falsification and obstruction of official business, moved to suppress his recorded
statement s provided during the internal investigation. The trial court denied the motion, and McKinley was convicted.
The appellate court held that McKinley’s statements were inadmissible based on the department’s agreement not to
use his statements in any prosecut ion against him and vacated the convictions. McKinley then filed a lawsuit against
the City of Mansfield and certain police officials, alleging that they violated his Fifth Amendment rights by forcing him
to make incriminating statements that were later us ed in a prosecution against him. The defendants moved for
summary judgment, which the trial court granted. On appeal the appellate court reversed in part the trial court
decision and remanded for further proceedings.
The appellate court stated that as a ma tter of the Fifth Amendment, Garrity provides that an officer’s compelled
incriminating statements may not be used in a later prosecution for the conduct under investigation. Garrity, however,
does not preclude the use of compelled statements in the prosec ution for false statements or obstruction of official
business. Consequently, McKinley’s false statements during the first interview could be used during the prosecution
against him. The compelled statements made during the second interview, however, were still made under the
promise of Garrity.
The appellate court stated that the investigator targeted McKinley for a criminal investigation during the second
interview but still compelled his statements under Garrity. Accordingly, the court held that McKinley could pursue his
claim against the city and the investigators for giving his Garrity statements to the prosecutor, even though it was the
prosecutor’s decision to use the statements. Furthermore, the investigators were not entitled to qualified immunity f or
their actions.
Distinguishing between Statements and Routine Reports
Another area that needs to be addressed is the completion of departmental reporting forms. Department personnel must educate themselves as to when and how to utilize Garrity warnings and when an officer’s statements are a
necessary part of the officer’s job and do not constitute a compelled self -incrimination statement. For example, during
the documentation and reporting of a standard use -of-force incident, an officer’s statement regar ding the
circumstances surrounding the event is not a compelled statement under Garrity. To utilize Garrity warnings for every
use -of-force statement overly expands the protections of Garrity. 3
Back to the question with which we started. What is more important —the criminal investigation or the discipline of the
employee for a violation of department policy? It appears that pr osecutors are overreaching and trumping the rights of
police chiefs to terminate employees by insisting that the employees not be questioned as part of an administrative
investigation. From an operational perspective, while a criminal investigation is impo rtant, is internal discipline any
less important? While we want to have criminal acts punished, is it not equally important to complete an
administrative investigation and take necessary actions, including the timely termination of the employee? What
seems to have been forgotten is the fact that an agency head has an obligation to make sound operational and
personnel decisions that are reflective of the integrity expected by the public. Police chiefs have told me that
prosecutors have instructed them that a dministrative investigations must be suspended pending a criminal
investigation so as to not taint any potential evidence that may be obtained through a compelled statement, rendering
it unusable during a criminal proceeding. It is, however, a rare instanc e when such a delay is necessary, with one
exception being when the involved law enforcement institutions do not fully respect and adhere to the legal
parameters protecting compelled statements from disclosure to anyone outside of the administrative chain of
command.
If departments conduct internal administrative and criminal investigations simultaneously, they should be done in a
manner that does not compromise the integrity of either investigation. In other words, during an internal investigation,
investi gators should compel statements from involved police officers only for a sound administrative reason. For
example, though the involved officer may have committed a criminal offense, it may be more important to quickly
complete the administrative investigat ion and, if warranted, rid the agency of the officer rather to endure the inevitable
prosecution delays. In another instance where criminal prosecution is clearly warranted, it may be important to
complete the administrative investigation and, if warranted , discharge the officer prior to any criminal prosecution so
as to not be appearing to rely on a conviction as the basis for the discharge. In any event, the agency has an
absolute obligation to the community and to the integrity of the agency to thoroughl y investigate and expeditiously
conclude administrative investigations.
Furthermore, if investigators provide Garrity warnings and compel an officer’s statement, they may not provide such
statements to a prosecutor for use in a criminal proceeding related to the matter under investigation. Providing
a Garrity statement to prosecutors for any purpose, even just for review and even if not used during proceedings, will
expose the agency head and the department to an onslaught of lawsuits from affected police of ficers. As with many
legal issues, there is a delicate balance of interests and priorities that must be examined on a case -by-case basis. ♦
Notes:
1Garrity v. New Jersey, 385 U.S. 493 (1967). 2McKinley v. City of Mansfield, 404 F.3d 418 (2005). 3See Karen J. Kruger, “When Public Duty and Individual Rights Collide in Use -of-Force Cases,” Chief’s Counsel, The Police Chief 76, no. 2 (February
2009), http:// www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=1723&issue_id=22009 ( accessed October 25 , 2012).
Please cite as :
Eric P. Daigle, " Garrity Warnings: To Give or Not to Give, That Is the Question," Chief’s Counsel, The
Police Chief 79 (December 2012): 12 –13.
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