I’ve always known that police officers get special treatment when accused of a crime, but I always assumed it was just a good deal that the cops gave to other cops. I never knew there was an official court ruling about it.It’s not just a perk of the job. It’s the law.
Radley Balko points to a St. Louis Post-Dispatch article about the Garrity Rule :
In 1967, the U.S. Supreme Court resolved it with what came to be known as the Garrity Rule. It says a public employee can be compelled by threat of discipline to admit criminal activity, but the information cannot be used for prosecution.
Wikipedia puts it a slightly different way:
The Garrity warning is an advisement of rights usually administered by US federal agents to federal employees and contractors in internal investigations. The Garrity warning advises suspects of their criminal and administrative liability for any statements they may make, but also advises suspects of their right to remain silent on any issues that tend to implicate them in a crime. It was promulgated by the US Supreme Court in Garrity v. New Jersey (1967). In that case, a police officer was compelled to make a statement or be fired, and then criminally prosecuted for his statement. The Supreme Court found that the officer had been deprived of his Fifth Amendment right to silence.
Mark reacts by saying he doesn’t understand the rule. My guess is that he understands Garrity v. New Jersey perfectly; what he doesn’t understand is why cops get a completely different rule than everybody else. The irony is that the Garrity Rule is based on the rationale that police officers don’t lose their 5th Amendment right by virtue of being cops, when the point of the rule is give cops a level of protection that no one but cops enjoy. Essentially, while the rest of us can be questioned after an arrest, provided we’ve been given Miranda warnings, not cops. What’s really going to make Mark’s head explode is that the Garrity Rule isn’t the only problem. It gets worse.
Police officers are invariably represented by a union, and invariably, the union contract provides that an officer cannot be interrogated after arrest without either a cooling off period or a union representative present. The ability to investigate a crime, when the suspect is a cop, is thus controlled by a union contract. What a deal! Welcome to NLRB v. Weingarten, which applies in a special way for cops than it does for any other union employee since the cops would be interrogated by their own.
So why are police given special treatment? Is a crime committed by a police officer less of a crime, less harmful, less significant than a crime committed by anyone else? Is the harm to the victim less painful? Is the harm to society less worthy of prosecution? It might well be argued that a crime committed by a cop is more significant, more blameworthy. After all, we give cops an enormous amount of power and authority, and if they can’t be trusted to conduct themselves lawfully, it’s a far bigger problem than crime in general. If anything, cops should be held to a higher standard of behavior by virtue of their oath and position.
But it’s just not the way things flesh out. The rationale in favor of protecting a police officer’s privilege against self-incrimination is fine, even laudable. It’s just that the same rationale doesn’t apply to everyone else. Cops are allowed to use any weapon to get us to confess, short of ignoring our invocation of the right to remain silent and counsel. Even these qualifications are mangled, subject to the greatest precision lest the invocation be deemed equivocal. It’s a trap for the unwary.
So while the Garrity Rule is wrapped up with a nice ribbon by the typical lofty love language of the Constitution, it’s a gift only for police. Mark’s initial reaction, that it’s just a perk of the job, was right. The only aspect he misunderstood is that it’s not a gift from one cop to another, but a gift from an appreciative court to the police. It’s tough to be a cop. Don’t they deserve those great rights that they happily ignore when it comes to the rest of us?
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Scott –
Maybe I have it wrong, but I thought the Garrity Rule applied to all government jobs. The government can’t put you in the position of (1) staying silent and losing your job or (2) keeping your job but having to admit criminal activity. I think teachers, firemen and DPW workers get thrown in there with cops.
It does apply to all public employees (and Weingarten applies to all union shops), but seems to come into play primarily with cops. Maybe that’s because they commit more crimes? In any event, you (as well as the court) forget a third alternative: Don’t commit crimes and you’ll have nothing to confess to.
I was aware that cops have a pretty sweet deal in their union contract (and if I ever do government consulting, I’d like to try and sneak a “no interrogations” rule into my contract) which I thought was bad enough, but the “gift from an appreciative court to the police” blew my mind.
Maybe I am misreading the rule but wouldnt it be limited to those instances where a cop committed a crime during the course of employment? Couldnt the rule be bypassed by the interrogating lmited the interview strictly to the circumstance of the crime and not mentioning the nature of suspects employment?
As it’s fleshed out over time, the answer is no to both questions. On or off duty, threat of firing or not, as the potential for being fired or disciplined is implicit and coercive, whether mentioned or not. Really, it’s very fine reasoning. It’s just a shame it’s not implicit for everyone.
Bear in mind, Garrity arose under a forfeiture of office statute, where the choice was forfeit your job or assert your 5th Amendment privilege. As happens so often, the rubric was continuously stretched long after the rationale was forgotten that even where there is no impact on public employment, the cops still get the benefit of the rule.
Of course, it could have went the other way and the government could just been prevented from taking adverse employment actions against employees who exercise their 5th amendment right. Except police and other government employees
could havewould used that to coverup policy violations as well as criminal acts. I’m sure the employees would want that since they could avoid all accountability even to their department.Yes, Garrity immunity is problematic to investigators but a good investigation interviews the cop (employee) last so as to avoid anything discovered prior being challengeable as being derived from the protected (immunized) statement. And if the investigation goes criminal, then a criminal interview is conducted with the cop. And yes that may mean police get Mirandized before we mere mortals. They also understand what that means, are familiar with the tricks and get a union rep there to help them know when to call the union provided lawyer. I’m considered anti-cop by a close friend who is a detective because I’ve stated that if the police are asking you questions, you are in grave danger, are being psychologically manipulated and regardless of what you think, you are no match for their skill and training so shut up and call a lawyer.
Garrity applies to public employees as well as contractors, if they are subject to adverse employment action for not talking. The Blackwater shooting case fell apart when the court determined that almost all the evidence was derived from and the investigation was guided by the Garrity statements of the contractors involved. From that you can see how investigators could destroy a criminal prosecution, by error or choice, by using Garrity statements to develop the case and therefore taint all the evidence.
Scott,
If you think the Garrity line of cases creates an absurd disparity, you’ll be particularly disgusted to see what statutory privileges California cops receive during their interrogations.
I’ll try to keep these rights in mind next time a cop friend bitches to me about how difficult their jobs are, due to the rules created by leftist jurists.
I think you’re being unfair, Scott. Christ, I’m going to stick up for cops. The “rest” of us aren’t employed by the government, so when our employer tells us, “answer these questions or we will fire you,” no 5th Amendment privilege applies.
But for the Garrity rule, police would be able to use the fact that someone was employed by the State to compel questioning.
The way I’ve seen it work in IA investigations here in CA is that they Mirandize and the person invokes. They then say, despite your invocation you are going to be compelled to answer questions or be fired.
The only way this situation could apply in the private employment sector would be if some private employee’s employer was interrogating the employee as an agent of the state.
Also, completely separate from the Miranda analysis is the question of whether a person’s statements are voluntary. Could we ever call a statement voluntary that was made under threat of termination?
It’s not that I disagree with you, but that I wish the courts were as scrupulously concerned with everyone else as they are with cops. For the rest of us, they bend over backwards to find excuses to find interrogation proper. Where’s our love?
I see from the list you provided in your post on this subject that if you’re a cop being interrogated, it’s good to be in California.
I’d like to see more protection for private employees.
How many stories have we all read where the private employee gets summarily terminated upon mere connection with a highly emotional and publicised case, just so the employer can claim total, unqualified disapproval. Drop them, quick as you can.