GARRITY | PROTECTING YOUR CONSTITUTIONAL RIGHTS
Article By Lawrence G. Rebman, Rebman & Associates L.L.C.

“Garrity Rights” are a recognition of a public employee’s right against self-incrimination and can be invoked when an employer forces the public employee to make a statement. The invocation of “Garrity Rights” will prevent the use of any coerced statements in a subsequent criminal prosecution. To invoke “Garrity Rights,” public employees must include the following wording at the beginning of any statement or report that they are forced to make:

On (date) (time) at (place) I was ordered by (name and rank) to give this statement/report at his/her order as a condition of employment in view of possible job forfeiture, I have no alternative but to abide by this order.

It is my belief and understanding that this statement/report is to be used for the sole and exclusive purpose of an Internal Investigation and that the department can neither release any information contained in my statement/report to any other agency, nor can the information be used in any subsequent proceedings other than Department proceedings.

I hereby reserve my constitutional right to remain silent under the Fifth and Fourteenth amendments to the United States Constitution and any other rights provided me by Missouri law. Should my statement/report be used for any purpose other than Department internal proceedings, I assert the protection set forth in Garrity v. New Jersey 385 U.S. 493 (1967).

“Garrity Rights” are derived from the U.S. Supreme Court case, Garrity v. New Jersey, 385 U.S. 493 (1967), and are based upon Fifth and Fourteenth Amendments. There, the Supreme Court held that an employer cannot force, under threat of discipline or termination, a public employee to make a statement against their penal interests.

The Garrity case involved police officers who were under criminal investigation. In this case, the officers were given a choice between providing answers to the prosecutor’s questions about the alleged crime or losing their jobs. The police officers answered the questions, they were then prosecuted and convicted based upon the coerced statements. The officers appealed to the United States Supreme Court claiming that the use of these coerced statements in a criminal prosecution violated their Fifth and Fourteenth Amendment Rights. The U.S. Supreme Court agreed, holding that the Fourteenth and Fifth Amendments to the U.S. Constitution prohibited the use of coerced statements, such as those in Garrity, in a criminal prosecution.

Like Miranda rights, a public employee must invoke their Garrity rights prior to making a statement. These rights can and should be asserted when-ever an employee feels that he or she is being coerced into making a statement by their employer. Failing to invoke their Garrity rights will allow any statements made, even those made under coercion, to be used against the employee in a criminal prosecution.

How does Garrity apply to Police Officers?

As a condition of employment, Police Officers are required to abide by Department Rules and Regulations. Officers must answer questions, give statements and submit reports at the order of a superior officer or be subject to disciplinary action. Not all situations will invoke the protection of Garrity, those rights attach only in the following circumstances:

1. Where a Superior Officer orders the Officer to respond to questions that may have criminal implications; and

2. Where an Officer was compelled to make the statement or report under the threat of discipline or termination.

Remember, “Garrity Rights” do not attach where an Officer voluntarily gives a statement. An Officer must make sure he or she is being required to answer questions and/or give a statement or report before providing any information. Absent compulsion, an Officer generally has no obligation to respond to questions – so if an Officer is not under order or the threat of discipline or termination he or she should invoke their Miranda Rights and refuse to provide any information until after they have had an opportunity to consult with an attorney.

In addition, remember that an Officer must invoke his or her “Garrity Rights” by including, at the beginning of statement or report, the language set out above. Failure to do so will result in the loss of “Garrity Rights” and any statements made, will be admissible in a criminal prosecution.

Many investigators are not familiar with Garrity rights or act hostile when the “Garrity” language is included in a statement or report. These are your rights to assert and do not let anyone convince you to forgo doing so before you have had an opportunity to consult with an attorney. Finally, when these issues arise it is recommended that the Officer contact his or her attorney at the earliest opportunity for legal advice and/or representation in the matter.

THIS ARTICLE IS DESIGNED FOR GENERAL INFORMATION ONLY. THE INFORMATION PRESENTED HERE SHOULD NOT BE CONSTRUED TO BE FORMAL LEGAL ADVICE NOR THE FORMATION OF A LAWYER/CLIENT RELATIONSHIP. PERSONS ACCESSING THIS SITE ARE ENCOURAGED TO SEEK INDEPENDENT COUNSEL FOR ADVICE REGARDING THEIR INDIVIDUAL LEGAL ISSUES.