Andy Russell Talks Garrity: When Officers Have The Right To Remain Silent

Simply, Garrity is the equivalent to the Miranda Rights for an officer being questioned regarding actions, violation of department policy, or misconduct that may also result in criminal prosecution or departmental disciplinary action.

The Garrity rule goes by several different names, including, the Garrity Right, the Garrity Law, the Garrity Rule, the Garrity Advisement or the Garrity Warning. The name used is a matter of choice, depending entirely upon the region of the country, or the individual organization/agency.

An officer invoking the Garrity rule is bringing into play his or her right against self-incrimination when faced with having to answer questions about his/her activities in relation to their employment—questions that involve a violation of law or department polices, and/or, questions in relation to an administrative investigation involving a citizen-initiated complaint. Statements made after invoking Garrity may only be used for departmental investigation and administrative purposes, and not for criminal prosecution purposes, with some exception.

The Garrity Rule stems from the court case Garrity v. New Jersey, 385 U.S. 493 (1967), which was decided in 1966 by the United States Supreme Court. The case involved traffic-ticket-fixing.

Officers in the Garrity case were told they had to answer questions, an act that subjected them to criminal prosecution, which was a direct violation of the right against self-incrimination (their Fifth Amendment Rights). A refusal to answer questions, they were told, would result in the loss their jobs. The Court held that compelling officers to answer questions under the duress of “losing their jobs” and giving up their right against self-incrimination was coercive and therefore unconstitutional. Being a police officer does not require one to waive their Constitutional protections.  Police officers are citizens first, officer second.

There are two points under the Garrity rights:

First, if an officer is compelled to answer questions as a condition of employment, the officer’s answers and the fruits of those answers may not be used against the officer in a subsequent criminal prosecution. However, this protection may not cover other officers implicated by the officer being questioned. Only the officer(s) invoking their Garrity rights are protected from criminal prosecution.

Second, the department becomes limited as to what they may ask. Questions must be specifically, narrowly, and directly related to the officer’s job.  Also, the behaviors or actions must be governed by departmental policy, such as misconduct, failing to follow use of force policy, operation of a patrol vehicle (speeding), etc.  Yes, one’s actions can be justified under the law, as having the legal right to take an action, such as using force, but they still may be in violation of departmental policy dealing with how, when or the amount/type of force should be used and how it can be used..

You ask: How can this be? Answer: For example, officers may lawfully defend themselves against an attack. And, legally, they may use whatever force is necessary to stop the threat. However, individual department policy may limit which tools the officer may use in a given situation. For example, using a baton to strike an attacker may be perfectly acceptable in Department A. But what about other objects? Sure, using the baton is okay, since Department A’s officer-training covers the use of a baton as an impact weapon. But, if the Department A officer chooses to strike the suspect with an unauthorized tool, say, a Kel-light (aluminum flashlight), or a brick, the officer may very well be in violation of their agency’s policy  prohibiting striking with an object other than the “authorized” tools.

Thus, the basic idea of the Garrity Rights or Garrity Rule is that a department member may be compelled to give statements under threat of discipline or discharge but, those statements may not be used in the criminal prosecution of the officer giving the statement. Other officers may be subject to prosecution, as someone else, a second or third party, is not protected by the invoking officer’s use of Garrity.

*The Garrity Rule only protects a department member from criminal prosecution based upon statements he or she might make under threat of discipline or discharge, not a third party).

The Garrity Rule is not automatically triggered simply because questioning is taking place. An officer must ask for protections under Garrity.  If an officer is giving a written statement, the officer should insist that the Garrity Warning be typed into the body of the statement.  Many officers elect to consult with an attorney, or a union delegate before providing any statement. If the investigation is purely administrative (not criminal), the right to an attorney is not guaranteed.

Here is an example of an actual Garrity Warning used in some agencies when the investigation involves a criminal matter. An investigation covering an administrative matter, would not invoke the DA, or Miranda.  Remember, there is NO universal policy, or procedure, as long as the procedure used meets the element of the law/case law. Much like when officers provide Miranda Warnings to criminal suspects, many agencies use a “standardized” form for Garrity. Court say the rights (Garrity) must be given, but they did not demand that it be done in a particular format.  Also, if the investigation is of an administrative nature and criminal activity is discovered during the Garrity-covered questioning, those potentially incriminating statements cannot be used against the officer in future proceedings.

Garrity

(Note: Some agency might refer to these as “Administrative Rights”, rather than Garrity Rights, particularly if the statement/investigation is a departmental rule violation, rather than a criminal investigation.)

1.  I am being questioned as part of an investigation by this agency into potential violations of department rules and regulations, or for my fitness for duty. This investigation concerns

_ (the rule would be cited here, i.e.) Conduct unbecoming, a violation of Center City police Department Directive, 2.165: Conduct of Employees while on duty… sleeping on duty, etc…

2.  I have invoked my Miranda rights on the grounds that I might incriminate myself in a criminal matter. (Only used in an investigation involving criminal activity)

3.  I have been granted use immunity. No answer given by me, nor evidence derived from the answer, may be used against me in any criminal proceeding, except for perjury or false swearing.

(Only used in an investigation involving criminal activity)

4.  I understand that I must now answer questions specifically, directly and narrowly related to the performance of my official duties or my fitness for office.

5.  If I refuse to answer, I may be subject to discipline for that refusal which can result in my dismissal from this agency.

6.  Anything I say may be used against me in any subsequent department charges.

7.  I have the right to consult with a representative of my collective bargaining unit, or another representative of my choice, and have him or her present during the interview.

No. 7 is only for those states which are union shop states. It would not be part of a statement when an agency is in a right-to-work state, i.e. North Carolina.

Assistant Prosecutor/Deputy Attorney General Authorizing:  __________________________

(Would only be involved if a criminal violation was the focus of the investigation.)

Signature:________________________________

Date:_______________ Time:_____________

Location:_________________________________

Witnessed by:  ______________________________

______________________________

*     *     *

Andy Russell served as a police officer for thirty years. Currently, he is an Associate Professor in Criminal Justice at Guilford Technical Community College. Andy has an Associates in Applied Science in Criminal Justice from the Community College of the Air Force, and a Bachelors in Applied Science in Justice Policies and Studies from Guilford College. Additionally, he has a Masters of Science in Adult Education & Leadership from North Carolina Agricultural &Technical State University. Andy received and maintains certifications in Advanced Law Enforcement and the Administrative Officers Management Program from North Carolina State University. He is a certified North Carolina Instructor in Basic Law Enforcement Training and Firearms. He is also a Certified Instructor in Chemical Munitions, O.C. Spray, Distraction Devices and Specialty Impact Munitions.

Andy Russell also serves as a Writers’ Police Academy instructor, teaching workshops on interview and interrogation, FATS, riot control, O.C. spray, and others.