A compelled statement under Garrity gains immunity in a subsequent criminal proceeding. A statement under Garrity, however, can be used for a wide variety of other purposes. The statement can be used in a subsequent disciplinary proceeding against the officer,(1) in a civil lawsuit brought against the employer and the officer,(2) and even in criminal prosecutions of persons other than the officer.(3) Under some circumstances, compelled statements can even be subpoenaed by a grand jury investigating police officers, so long as the statements are not inappropriately used by the grand jury (as described in greater detail below).(4) Similarly, the mere release of internal affairs files to a prosecutor, without more, is not prohibited by the Garrity rule.(5)

There is a good deal of controversy about precisely what the limitations are on the use of the statement or the fruits of the statement. For example, a federal court of appeals in the case involving the prosecution of Oliver North held that a prosecutor has an affirmative burden of proving that all testimony must be free of any taint from the immunized statement. In the words of the court:

"The District Court must hold a full hearing that will inquire into the content as well as the sources of the grand jury and trial witnesses' testimony. That inquiry must proceed witness by witness, line by line and item by item. For each grand jury and trial witness, the [prosecution] must show by a preponderance of the evidence that no use whatsoever was made of any of the immunized testimony either by the witness or by the prosecutor in questioning the witness. If [the prosecution] has in fact introduced trial evidence that fails this analysis, then the defendant is entitled to a new trial. If the same is true as to grand jury evidence, then the indictment must be dismissed."(6)

Reaching a different result in the prosecution of Los Angeles police officers Stacy Koon and Lawrence Powell arising out of the Rodney King case, a different federal court held that all the prosecution need prove is that the substance of the testimony of any witness exposed to a compelled statement is based on a legitimate source independent of the immunized testimony. The court was particularly concerned that the grant of immunity under Garrity is automatic, and flows directly from the order compelling a statement:

"Immunity attaches in the Garrity context when a threat of the loss of employment forces a public employee to respond to questioning by another public employee. In this context, the individuals who question the employee are concerned about potential misconduct, and their goal is generally to learn the facts of a situation as quickly as possible. They do not necessarily act with the care and precision of a prosecutor weighing the benefits of compelling testimony against the risks to future prosecutions; indeed, they may not even have the prospect of prosecution and the requirements of the Fifth Amendment in mind."(7)

At least one state has enacted a statute which effectively gives Garrity protections to the use of statements in subsequent civil proceedings against an officer. In 1994, California added Section 3303(f) to its statutory peace officer bill of rights. As shown below, the new statute prohibits the use of compelled statements in most civil cases:

"No statement made during interrogation by a public safety officer under duress, coercion, or threat of punitive action shall be admissible in any subsequent civil proceeding. This subdivision is subject to the following qualifications:

"(1) This subdivision shall not limit the use of statements made by a public safety officer when the employing public safety department is seeking civil sanctions against any public safety officer, including disciplinary action.

"(2) This subdivision shall not prevent the admissibility of statements made by the public safety officer under interrogation in any civil action, including administrative actions brought by that public safety officer, or that officer's exclusive representative, arising out of a disciplinary action.

"(3) This subdivision shall not prevent statements made by a public safety officer under interrogation from being used to impeach the testimony of that officer after an in camera review to determine whether the statements serve to impeach the testimony of the officer.

"(4) This subdivision shall not otherwise prevent the admissibility of statements made by a public safety officer under interrogation if that officer subsequently is deceased."(8)

YOUR BEST ADVICE UNDER GARRITY

Since the protections of the Garrity rule turn on whether you are "ordered" to answer questions, the best advice under Garrity is to never guess as to whether you are ordered to answer questions or write a report. If you believe a disciplinary or criminal investigation may be occurring, and if you are asked to answer questions or write a report in conjunction with the investigation, find out if your are ordered to do so. If the answer is "yes," and you are ordered to give a statement, your statement will be protected under Garrity. If the answer is "no" and you give a statement, your statement can be used to criminally prosecute you.

(This article is adapted from The Rights of Law Enforcement Officers (4th Edition, 2000), written by police labor attorney Will Aitchison, and available through www.LRIS.com)

FOOTNOTES

1a. See Hill v. Johnson, 14 I.E.R. Cases 985 (8th Cir. 1998).

2a. Chism v. County of San Bernardino, 159 F.R.D. 531 (C.D.Cal. 1994).

3a. In re Denisewich, 643 A.2d 1194 (R.I. 1994).

4a. In re Grand Jury Subpoenas v. United States, 40 F.3d 1096 (10th Cir. 1994). But see In re Grand Jury Subpoenas Issued to Custodian of Records, St. Louis Metropolitan Police Department, No. 89 Misc. 492 (E.D. Mo. 1990).

5a. Pirozzi v. City of New York, 950 F.Supp. 90 (S.D.N.Y. 1996).

6a. United States v. North, 910 F.2d 843 (D.C. Cir. 1990).

7a. United States v. Koon, 34 F.3d 1416 (9th Cir. 1994).

8a. Gov't Code of California, §3303(f).