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RECENT GARRITY RULING

I have attached a recent case from the Wisconsin Supreme Court.  In State v. Brockdorf, 2006 WL 1751064, No 2004AP1519 (June 28, 2006) the Wisconsin Supreme Court adopted the more favorable Garrity standard advanced by the IUPA in an amicus brief.  In particular, the Court unanimously upheld the subjective / objective test for Garrity statements, which is the better test for police officers.  The Court explained,

“After reviewing the abundant case law interpreting Garrity, we elect to adopt the two-pronged subjective/objective test, as we believe it provides the most useful mode of analysis for determining whether, as a matter of law, an officer's statements given in a criminal investigation are coerced and involuntary, and therefore subject to suppression under Garrity. Thus, in order for statements to be considered sufficiently compelled such that Garrity immunity attaches, a police officer must subjectively believe he or she will be fired for asserting the privilege against self-incrimination, and that belief must be objectively reasonable.”  Par. 35. 

The Court rejected the position of the state and the lower court that an explicit threat is needed to grant Garrity immunity.  The Court also had a good section explaining how one case that has been used to justify cutting back on Garrity rights (US v. Indorato, 628 F.2d 711 (1st Cir. 1980)), is “functionally equivalent” to the subjective / objective test.  See Par. 25-31.  However, in a 4 to 3 vote the Court decided that the under the facts of the case, the officer’s statement was not covered by Garrity, splitting primarily over whether the generalized fear of discipline for not answering questions was sufficient to create Garrity immunity.    

{As you will note, the IUPA, working with counsel for our local union, wrote and submitted an amicus brief on the Garrity issue.  As always, we are looking for opportunities to advance officers’ Garrity rights, and would like to assist locals in Garrity cases.  We have a significant amount of material, such as pleadings and briefs on Garrity, and we can author an amicus brief working with the local union.  (An amicus can be particularly helpful in cases, such as this, where the union does not represent the officer in the appeal, but has a significant interest in the outcome of the case.)   

Please let me know if any important Garrity cases arise on which you would like assistance. 
Please feel free to republish this update, (though the first sentence and the last two paragraphs in brackets should be excluded.)

* One interesting aspect of the decision was that the court believed that it is less likely that a fear of termination is objectively reasonable in the absence of an express threat when the investigation is conducted as part of a criminal investigation rather than by Human Resources.  Notably, the investigation in this case was conducted as part of a criminal investigation and the IA person told the interviewee that she could be charged with obstruction of justice if she did not answer the questions.  Nonetheless, the court ruled that it was not objectively reasonable for the employee to fear termination.   (This information from the Office of General Counsel for VCOPS)


Aaron Nisenson

General Counsel

I.U.P.A.
Office: 800-247-4872
Cell: 202-441-5334
Fax: 941-487-2570