Each year, hundreds, if not thousands, of Illinois’ public employees are questioned by their governmental masters. These seemingly innocuous interactions implicate various civil service, tenure, and/or other statutory and collectively bargained protections.1 At the same time, when the government questions its employees, certain protections afforded by the U.S. Constitution also become relevant. This article focuses on the genesis, development, and current status of Illinois’ public employees’ privilege against self-incrimination when questioned by their public employers.2
Garrity v. New Jersey
For those who represent unions, employees, and employers, these protections are commonly referred to as "Garrity rights." Somewhat predictably, Garrity rights find their origin in a case named Garrity v. New Jersey.3 In Garrity, police officers were investigated regarding the possible fixing of traffic tickets.4 Before being questioned, each of the officers was informed: (1) anything they say could be used in a state criminal case against him; (2) that he could refuse to answer if the answer might tend to incriminate him; and (3) any refusal to answer the question would subject him to termination from the police department.5 The officers then answered the government’s questions.6 Largely based upon these statements, the police officers were criminally convicted.7
The sole issue on appeal before the Supreme Court of the United States was whether the officers’ statements were coerced, and as a result inadmissible.8 More plainly, the Court wrote, "Our question is whether a State, contrary to the requirement of the [Fifth Amendment, as made applicable to the states by the] Fourteenth Amendment, can use the threat of discharge to secure incriminatory evidence against an employee."9 The Court held Constitutional protections barring coerced self-incrimination prohibit "the use in subsequent criminal proceedings of statements obtained under the threat of removal from office, and it extends to all, whether they are policemen or other members of our body politic."10 The Court explained, "The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent."11 In light of the foregoing, the Court reversed the criminal convictions because they were based upon illegally coerced statements.
Gardner v. Broderick
The year after Garrity was decided, the Court decided Gardner v. Broderick.12 In Gardner13 a New York police officer was subpoenaed to appear before a grand jury investigating police corruption.14 When he appeared before the grand jury, the officer was told he would be fired if he refused to sign a waiver of his privilege against self-incrimination.15 The officer was fired because he refused to endorse the waiver.16
The Supreme Court asked, "whether a State may discharge an officer for refusing to waive a right which the Constitution guarantees to him."17 The Court held, largely based upon its holding in Garrity that an employer cannot discharge an employee because (s)he asserted her/his self-incrimination privilege before a grand jury. The Court reasoned, "the mandate of the great privilege against self-incrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment."18
After Garrity and Gardner, the outline of the privilege against self-incrimination for public employees was clarified. Per Garrity, statements made by public employees, when ordered to answer internal questions by their employer under the threat of termination, are not able to be used in subsequent criminal proceedings. The converse is true too. Per Gardner, a public employer is not empowered to condition future employment on a public employee’s waiver of her/his privilege against self-incrimination. Since 1967, when Gardner was decided, courts have continued to further define these seminal cases.
Confederation of Police v. Conlisk
In 1973, the United States Court of Appeals for the Seventh Circuit decided Confederation of Police v. Conlisk.19 In Confederation of Police, several Chicago police officers were subpoenaed to appear before a grand jury for questioning regarding corruption within the police department.20 On advice of counsel, the officers asserted their Fifth Amendment privilege against self-incrimination.21 All of the officers were disciplined or terminated because they asserted their Fifth Amendment privilege before the grand jury.22 Challenging their discipline, suit was brought by the terminated officers and their organization, the Confederation of Police. The Seventh Circuit held the terminations clearly ran afoul of Gardner.23 As such, the terminations were overturned, and the officers were reinstated.
U.S. v. Devitt
Shortly after its decision in Confederation of Police, the Seventh Circuit decided United States v. Devitt.24 Devitt marks one of the first departures from expanding the protections afforded by Garrity and Gardner. In Devitt, the defendant, a Chicago police officer, was found guilty of making false statements before a grand jury.25 The defendant was threatened that if he did not testify before the grand jury he would be disciplined (up to and including termination).26 The court upheld the conviction.27 The court explained:
Had defendant admitted extorting money from tavern owners, neither his testimony nor the fruits thereof could have been used against him in a subsequent prosecution. [citing Garrity] Had he exercised his Fifth Amendment privilege, he could have attacked the legality of any subsequent disciplinary action against him on the basis of Gardner and Sanitation Men. But we find nothing in these decisions or in this court’s holding in Confederation of Police which grants a witness before a grand jury the third alternative… the right under such circumstances to knowingly make a false material declaration while testifying under oath before a grand jury.28
The court concluded, "We find no reason or justification for extending this umbrella of protection to shield a witness against prosecution for knowingly giving false testimony."29 Devitt further clarified, under Garrity, public employees cannot be disciplined unless they have been informed that anything they say cannot be used against them in a subsequent criminal proceedings.30
Atwell v. Lisle Park District
In Atwell v. Lisle Park District31 the United States Court of Appeals for the Seventh Circuit narrowly interpreted Garrity. In Atwell, a park district employee was being internally investigated regarding some suspicious spending of park district funds.32 At the same time, the employee was informed a grand jury had also been convened to investigate the irregularities.33 Then, the employee was told to meet with the park district’s attorney to answer questions regarding those improprieties.34 The employee’s attorney informed the park district that his client was asserting her Fifth Amendment privilege and would not attend the meeting.35 Due to her refusal to attend the meeting, the employee was terminated.36
The Seventh Circuit upheld the termination.37 The court noted its Devitt decision’s holding that employee’s must be warned that his or her statements cannot be used in a subsequent criminal matter before (s)he can be disciplined for refusal to cooperate in an internal investigation.38 However, the employer’s duty to warn does not arise before the employee is questioned.39 The court explained that an employee’s refusal to attend a meeting is not permissible and her assertion of her Fifth Amendment privilege was premature.40 Put plainly, employees must wait until they are asked a question before they can assert a privilege.41
People v. Bynum
In 1987, the Fourth District of the Appellate Court of Illinois decided People v. Bynum.42 In Bynum, an Illinois State trooper was convicted of "failing to reduce speed to avoid an accident."43 The trooper was driving an unmarked squad car that collided with a bicyclist.44 After the accident occurred, the trooper was directed by a supervisor to complete a report and participate in an investigatory interview.45 The trooper knew he was required to follow all orders and that failure to complete the report or answer questions could result in discipline.46
Relying on United States v. Indorato,47 the Illinois Appellate Court held an "overt threat" of dismissal was necessary to have Garrity protection arise.48 The court explained the mere possibility of termination was not sufficient to create a coerced statement.49 As such, the court held the trooper’s conviction should stand.50
People v. Smith
On April 1, 2010, the Fourth District of the Appellate Court of Illinois decided People v. Smith.51 In Smith, before being questioned by their employer (the Peoria Police Department) regarding complaints of excessive force, three Peoria police officers were issued "Garrity warnings."52 The warnings made clear they were ordered to answer all questions "as a condition of employment. In view of this possible job forfeiture, I have no alternative but to abide by this order."53 The warnings also explained the statements would only be used for internal purposes and could not be used in any subsequent criminal proceeding.54 After signing this written warning, the officers answered all questions directed to them by their employer.55
As part of a criminal case against the officers, the local State’s attorney issued a subpoena for the internal officer’s statements taken by the police department.56 The city and officers moved to quash the subpoena based upon Garrity.57 The court held the statements were not discoverable by the State.58 The State argued that the execution of a warning, without more, is insufficient to trigger the protections afforded by Garrity. Instead, the State claimed because the officers were not explicitly threatened with termination Garrity never came into play.59
The court rejected the State’s argument. Casting some doubt on Bynum the court explained:
While we acknowledge the [warning’s] reference to ‘possible job forfeiture’ (emphasis in original), we do not believe that these three words alone act to defeat the overall intent of the ‘Garrity Warnings.’ Instead, we find that the ‘Garrity Warnings,’ when read as a whole, reveal that the defendants were faced with the option of either incriminating themselves or losing their means of livelihood. [citation omitted] These defendants did not give their statements in an unfettered exercise of free will, but rather to avoid a clearly expressed penalty for choosing to remain silent.60
The court concluded, "Consequently, we find that the ‘Garrity Warnings’ standing alone are sufficient to support the application of Garrity immunity.61
Based upon the foregoing, it can be deduced that this area of law is anything but clear. However, there are some clear maxims that, if followed, protects a public employee’s Fifth Amendment privilege: 1) an employee questioned by his or her employer, when feasible should avail themselves of union or legal representation; 2) that representation should be familiar with Garrity and its companion cases; 3) the employee should attend all meetings (s)he is ordered to attend; and 4) when appropriate, the employee should refuse to answer questions based upon his Fifth Amendment privilege until threatened with termination (thereby immunizing him/her). While somewhat simplified, this analysis provides a starting point for practitioners to begin familiarizing him or herself with this area of law.
Garrity’s progeny continues to expand and contract the contours of the protections first acclaimed in 1967. As those contours have been more specifically defined by fact specific analyses, the seemingly simple principles pronounced by the Court in Garrity have become difficult to navigate. Practitioners of municipal employment law, regardless of whether they represent employers or employees, have a vested interest in learning this area of law.
1 See e.g. 5 ILCS 315/1 et seq.; 50 ILCS 725/1 et seq.; 50 ILCS 745/1 et seq.; NLRB v. Weingarten, Inc., 420 U.S. 251 (1975);
2 This article intentionally does not focus on Fourth Amendment concerns raised when public employers’ demand their employees produce potentially incriminating non-testimonial evidence (e.g. chemical breath tests). See e.g. Tate v. Police Board of the City of Chicago, 241 Ill.App.3d 927 (1st Dist. 1993); People v. Carey, 386 Ill.App.3d 254 (1st Dist. 2008).
3 385 U.S. 493 (1967).
4 Id. at 494.
6 Id. at 495.
8 Id. at 496.
9 385 U.S. at 499.
10 Id. at 500.
11 Id. at 497.
12 392 U.S. 273 (1967).
13 The author notes, Uniformed Sanitation Men Association v. Commissioner of Sanitation of the City of New York, 392 U.S. 280 (1967) was decided on the same day as Gardner. While the cases have some minor factual distinctions, the legal analysis of Uniformed Sanitation is largely based upon Garnder.
14 392 U.S. at 274.
16 Id. at 274-75.
17 Id. at 277.
18 Id. at 279.
19 489 F.2d 891 (7th Cir. 1973).
20 Id. at 892.
23 Id. at 895.
24 499 F.2d 135 (7th Cir. 1974); cert. denied 416 U.S. 956 (1974).
25 Id. at 136.
26 Id. at 141.
27 Id. at 142.
29 Id.; see also United States v. Burge, 2009 WL 2972915 (N.D.Ill. Sept. 11, 2009).
30 Id. at 141.
31 286 F.3d 987 (7th Cir. 2002).
32 Id. at 989.
37 Id. at 993.
38 Id. at 990.
39 Id. at 991.
41 Id. see also People v. Urbano, 1986 WL 7680 (N.D.Ill. Jun. 30, 1986).
42 159 Ill.App.3d 713 (4th Dist. 1987).
43 Id. at 714.
47 628 F.2d 711 (1st Cir. 1980).
48 159 Ill.App.3d at 715; see also United States v. Castro, 2001 WL 1512537 (N.D.Ill. Nov. 28, 2001).
50 Id. at 715-16.
51 2010 WL 1374752 (Ill.App. 3d Dist. Apr. 1, 2010)
52 Id. at *2.
53 Id. at *3.
56 Id. at *3-4.
57 Id. at *4.
58 Id. at *10-12.
59 Id. at *11 n. 3.
60 Id. at *11.
61 Id. at *12.
Keith A. Karlson is an associate attorney with Richard J. Reimer & Associates LLC in Hinsdale, Illinois. The firm concentrates its practice in representing public safety personnel, public safety unions, and police and fire pension boards. Keith primarily represents firefighters and police officers in collective bargaining, disciplinary, constitutional, civil rights, and pension matters.