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Here is an example of why an officer needs to make a
Garrity disclaimer prior to making a statement.


This case comes from the Court of Appeals for the State of Wisconsin.
Since this is from a state Court, not a federal Court, it should not
create too much damage.  However, it is an example of how Court's can
view Garrity protections very narrowly.

In Wisconsin v. Brockdorf, 2004 WL 2852118, Docket No. 04-1519-CR (Dec.
14, 2004)(attached) a Police  Officer gave two contradictory statements
regarding the treatment of a prisoner by her partner. The Officer was
then criminally prosecuted for "obstructing an officer."  The issue for
the Court was whether the first statement should be excluded due to
Garrity. 

The Appeals Court explained:

"The pivotal issue in this case is whether Brockdorf's October 3rd
statement was given voluntarily. The State argues that Brockdorf was not
threatened with job loss if she exercised her Fifth Amendment right to
remain silent. Rather, the only "threat" was that if she did not answer
questions, she could be charged with obstruction. Brockdorf admits that
she was never told that she would be fired if she refused to answer
questions, but that she believed if she was charged with obstruction and
caught lying, then she would be fired.  The trial court, relying on
Garrity, concluded that Brockdorf's statement was coerced because it was
made under threat of an obstruction charge and fear of job loss. This
court concludes that Brockdorf's statement was not coerced; rather, it
was voluntarily made and therefore should not have been excluded."

The Court relied heavily on the fact that the Officer was not TOLD she
would be fired if she refused to answer: "She was not told that she
would be fired if she exercised her Fifth Amendment right to remain
silent. She was told that she would be charged with obstruction if she
refused to answer questions in the criminal investigation. This,
however, does not rise to the level of coercive conduct so as to negate
the voluntariness of her statement."

We believe that this is an incorrect interpretation of Garrity, and
that the Court went to far in appearing to require that the Officer
actually be told that she would be fired in order for Garrity protection
to attach.  We want to ensure that this interpretation does not spread
further.  Therefore, if you know of any pending cases where this is an
issue, please let me know, and I.U.P.A. may be able to help. 

In the meantime, this case highlights the need to have Officers give an
explicit Garrity protection disclaimer.  A Garrity disclaimer will
provide use immunity so long as it is given to, or approved by, a
governmental official with apparent authority to grant immunity.
I.U.P.A. recommends that the following language be placed on any written
statement, and be told to an investigator if there is an oral statement.
 
On (date & time) at (place), I was ordered to submit this statement by
(name and rank).  I give this statement at his/her order as a condition
of employment.  I have no alternative but to abide by this order or face
discipline, up to and including termination. 

It is my belief and understanding that the department requires this
statement solely and exclusively for internal purposes and will not
release it to any other agency.  It is my further belief that this
statement will not and cannot be used against me in any subsequent
criminal proceedings.  I authorize release of this report to my attorney
or designated union representative.

I retain the right to amend or change this statement upon reflection to
correct any unintended mistake without subjecting myself to a charge of
untruthfulness. 

For any and all other purposes, I hereby reserve my Constitutional
right to remain silent under the Fifth and Fourteenth Amendment to the
United States Constitution and any other rights prescribed by law.  I
rely specifically upon the protection afforded me under the doctrines
set forth in Garrity and Spevack should this statement be used for any
other purpose.

However, as always, there are significant variations in the law from
jurisdiction to jurisdiction, and Officers should contact their local
counsel if they have a specific questions on the procedure in their
department.  

Please email me if you have any questions or interesting cases.

Thanks

Aaron Nisenson
General Counsel
IUPA

1421 Prince Street, Suite 400
Alexandria, Virginia 22314