E-Newsletter Edition: October 21, 2009
Response Provided By: Lou Reiter
Always note that state law may be more restrictive on police power than the U.S. Constitution.
I have a few questions regarding Garrity and civilian review boards. Pleas provide any input on the following: At present many of our officer’s subpoenaed to appear before the board have invoked their 5th amendment right to not make a statement. The board has cried foul and petitioned our police chief to force the officers to testify. Currently the department is in the process of drafting an SOP (Standard Operating Procedure) pertaining to the issue.
Garrity protection applies only to public employees, which your officers are. But the CRB (Civilian Review Board) is not your employer, so it has no authority to grant the Garrity criminal immunity. Now if your Chief or designee were to order you to appear and give testimony under the threat of job sanction, then that order would qualify for the Garrity protection. [State] had a Sheriff’s Office case a couple of years ago where one of its deputies was criminally accused of some sort of child sex crime. [State Bureau of Investigations] was conducting the criminal investigation. The Deputy gave a statement and admitted to the crime. He later appealed, however, saying that his Sheriff and that Office mandate that he cooperate with any police agency investigating any SO personnel, regardless of whether it was criminal. The Sheriff either testified or gave an affidavit to that effect. The admission and case were overturned.
Normally a “subjective belief” that an employee must cooperate has not been successful in court cases. That belief has to be reasonable (a reasonable officer would have to have the same belief) and preferrably documented. If the employee voluntarily gives testimony it would not be protected, absent direct documentation that job sanctions would be imposed otherwise.
To summarize, if [Police Department] issues a SOP mandating that officers appear before and testify at the [Civilian Review Board] or face some sort of job sanctions, that order would have to be followed and Garrity protection would apply. For the officer’s protection, however, I would recommend that each case have either a written or personal taped order given before appearance. Absent this, I would believe that the officer taking the 5th would be prudent and reasonable in today’s legal environment.
MORE ON GARRITY
(From the 2007 LLRMI Legal Update Archive)