Before reading this, you should completely understand that I am not an attorney. None of these materials is offered, nor should be construed, as legal advice. This information is solely provided so the law enforcement officer will have a better understanding of his/her rights when being officially questioned. Always seek the advice of a FOP Legal Defense Attorney.
In 1967, the United States Supreme Court delivered their opinion in the case Garrity v. New Jersey. The court held law enforcement officers and other public employees have the right to be free from compulsory self-incrimination. It gave birth to the Garrity warning, which is administered by investigators to suspects in internal and administrative investigations in a similar manner as the Miranda warning is administered to suspects in criminal investigations.
Garrity Rights protect public employees from being compelled to incriminate themselves during investigatory interviews conducted by their employers. This protection stems from the Fifth Amendment to the United States Constitution, which declares that the government cannot compel a person to be a witness against him/herself.
For a public employee, the employer is the government itself. When questioned by their employer, they are being questioned by the government. Therefore, the Fifth Amendment applies to that interrogation if it is related to potentially criminal conduct.
Garrity Rights stem not just from the Fifth Amendment, but also the Fourteenth Amendment. While the Fifth Amendment could be said to apply only to the federal government, the “equal protection” clause of the Fourteenth Amendment makes the Fifth Amendment applicable to state, county, and municipal governments as well (determined by the United States Supreme Court in 1964’s Malloy v. Hogan)
Garrity and You
Garrity rights attach automatically if an officer is requested to answer questions as a condition of employment. So before answering any questions, clarify with the interviewer – “If I refuse to answer your questions, will I be subject to significant discipline?” Once the interviewer answers affirmatively, Garrity attaches, and you should respond truthfully.
The Sixth Amendment Right to Counsel only pertains to criminal prosecution. It does not pertain to disciplinary proceedings. Therefore, officers do not have the constitutional right to counsel during administrative questioning.
In State v. Thrift (1994), South Carolina has equated providing Garrity with full transactional immunity. Transactional immunity, colloquially known as “blanket” or “total” immunity, completely protects the witness from future prosecution for crimes related to his or her testimony.
In the Weingarten case, the Supreme Court held that officers who are members of a collective bargaining unit has the right to union representation. However, the lack of collective bargaining in South Carolina essentially negates the Weingarten decision.
- Establish whether you are being questioned for criminal allegations or for administrative rule violations.
- If you are not clear about the nature of the questioning ASK “Is this an administrative inquiry, and am I under orders to respond?”
- Forcing your superiors to order you to answer questions or make statements regarding any misconduct inquiry invoked the Garrity rule and prevents your response from being used against you in a criminal prosecution.
- If questioning is for alleged criminal conduct, invoke Miranda and do not respond until your FOP attorney is present.
- If questioning is administrative, respond truthfully.
- Be mindful of the presence of body worn cameras/in car cameras and comments or statements you make or say.
- Stay off Social Media. Consider suspending accounts depending on seriousness of the incident.
Remember, although a Garrity initiated statement cannot be used to prove guilt or innocence in a subsequent criminal trial, it may be used to:
- Support a plaintiff’s arguments in civil trial
- Prosecute other individuals in a criminal trial
- Impeach you in a state court
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