Ensuring officer integrity and accountability: recent court decisions.

Recent Court Decisions

Law enforcement organizations must be vigilant about the conduct of officers in order to merit public trust and confidence. Public trust is undermined whenever officers lie or remain silent when questioned about law enforcement matters. In his exceptional book "Character and Cops," Professor Edwin Delattre observes that:

Those who serve the public must hold to a higher standard of honesty and care for the public good than the general citizenry does.... A higher standard is not a double standard. Persons accepting positions of public trust take on new obligations and are free not to accept them if they do not want to live up to the higher standard. A higher standard as such is not unfair; granting authority to an official without it would be unfair to the public.(1)

In ethical terms, a "...duty of veracity is concerned with straightforwardness in communication" and officers who lie or remain silent when questioned are not being straightforward.(2) "Accountability-like authority and power - depends on information."(3)

This article discusses recent court decisions involving officers who failed to meet this higher standard and then unsuccessfully challenged on federal constitutional grounds the resulting personnel action taken against them by their departments. Specifically, the article answers four questions relevant to a law enforcement agency's efforts aimed at ensuring officer integrity and accountability. First, does the Constitution's Due Process Clause shield officers from departmental discipline for falsely denying allegations of misconduct? Second, after being afforded Garrity immunity, may officers be compelled to answer work-related questions and terminated if they remain silent or respond in less than a fully candid and honest manner? Third, may an adverse inference for purposes of imposing discipline be drawn from an officer's decision to lawfully exercise his Fifth Amendment right to remain silent? Fourth, may officers who exercise their Fifth Amendment right to remain silent be transferred or reassigned when that silence raises legitimate security or fitness for duty concerns?

Due Process Right to Falsely Deny Charge Rejected

The essence of procedural due process protection is a meaningful opportunity for employees to respond to evidence of alleged misconduct before disciplinary action is imposed. One question of particular importance to the issue of officer integrity is whether this "meaningful opportunity to respond" includes a right to falsely deny the alleged misconduct and a concomitant right not to be subject to discipline for making that false statement.

In 1998, the Supreme Court answered that question in LaChance v. Erickson(4) by ruling that the Due Process Clause does not preclude a law enforcement agency from sanctioning employees for falsely denying alleged employment-related misconduct. In that case, a Department of the Treasury Supervisory Police Officer, Lester Erickson, was charged with misconduct and for making false statements during an agency investigation. The misconduct charge was based on evidence Erickson encouraged a third party to make a "mad laugher" telephone call to another police officer during duty hours. The "mad laugher" calls were made to employees at their duty stations during which the caller would laugh continuously and then hang up. The falsification charge was based on Erickson's denials to an agency investigator that he had knowledge of or participated in the "mad laugher" calls. The falsification charge resulted in Erickson's removal whereas the misconduct charge alone would have only resulted in a suspension.

An appeal to the U.S. Court of Appeals for the Federal Circuit resulted in a ruling that Due Process protections prevented the agency from charging Erickson with falsification based on his denial of the misconduct allegations or from enhancing his penalty on the misconduct charge based on his false denial.(5) In essence, the court concluded that allowing an agency to charge an employee with falsely denying facts underlying a misconduct charge would deprive the employee of a meaningful opportunity to respond to the charges.(6) The court distinguished this so-called right to deny from a right to lie or affirmatively mislead an agency engaged in an investigation:

Beyond a denial of a charge or of the factual accusations supporting a charge, an employee may not make up a false story, or tell tall tales in order to defend against a charge. Such falsehoods which go beyond denial and defense are actionable by an agency as falsification.(7)

The Supreme Court unanimously rejected the lower court's holding that the due process clause included the right to falsely deny misconduct allegations. The Court began its analysis by stating the following general proposition: Our legal system provides methods for challenging the government's right to ask questions - lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.(8)

The Court explained that the core of due process protection is the right to notice and a meaningful opportunity to be heard and does not include a right to make false statements.(9) The Court rejected as "entirely frivolous" the concern expressed by the lower court that " ... if employees were not allowed to make false statements, they might be coerced into admitting the misconduct, whether they believe that they are guilty or not, in order to avoid the more severe penalty of removal possibly resulting from a falsification charge."(10)

Constitutionally Permissible Responses to Officer Silence

The Fifth Amendment right against self-incrimination provides that "...no person shall be compelled in any criminal case to be a witness against himself."(11) The scope of this constitutional protection has been described by the Supreme Court as follows:

The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.(12)

Accordingly, in Garrity v. New Jersey,(13) the Court held that, when law enforcement officers were given the choice of either forfeiting their jobs or incriminating themselves, the Fifth Amendment was violated "...because a forced decision of that kind is likely to exert such pressure upon an individual as to disable him from making a free and rational choice."(14)

Whenever law enforcement officers elect to remain silent rather than respond to work-related questions, legitimate public and departmental concerns regarding officer integrity and accountability are implicated. Clearly, the constitution prohibits the termination of officers solely for exercising their Fifth Amendment right to remain silent. However, recent court decisions have upheld the constitutional authority of departments to take the following actions to ensure officer integrity and accountability. First, the Fifth Amendment right against self-incrimination is not violated when officers afforded Garrity immunity are ordered to undergo a polygraph examination as a condition of their continued employment. Second, officers who exercise their Fifth Amendment right to remain silent are subject to discipline or termination based in part on an adverse inference drawn from that silence. Third, officers may be transferred to an arguably less prestigious assignment based on legitimate departmental security concerns arising from their decision to remain silent.

Compelling Accountability After Garrity Immunity

In her article "Compelled Interviews of Public Employees," which appeared in the May 1993 issue of the FBI Law Enforcement Bulletin, Kimberly Crawford comprehensively explains Garrity immunity and the circumstances when public employees can be compelled to answer work-related questions. The article clearly shows that officers properly compelled to answer under Garrity immunity can be disciplined or terminated for remaining silent or for their "lack of candor" if they lie or give evasive answers.

In 1995, the authority to compel officer accountability under Garrity immunity was illustrated in Wiley v. Mayor and City Council of Baltimore,(15) where the U.S. Court of Appeals for the Fourth Circuit ruled that officers did not have their Fifth Amendment rights against self-incrimination violated when they were ordered to undergo polygraph examination as a condition of their continued employment. The court concluded that "...forcing a public employee to answer potentially incriminating job-related questions does not implicate the Fifth Amendment unless the employee is also compelled to waive his privilege."(16) The court rejected the officers' argument that the presence of a criminal investigation was constitutionally significant by noting that a department "...may compel job-related testimony from an employee in the course of a criminal investigation, provided, of course, that the state does not make direct or derivative use of the statement against the employee in any criminal proceeding."(17)

Drawing Adverse Inferences for Disciplinary Purposes

In 1998, the U.S. Court of Appeals for the Eleventh Circuit ruled in Harrison v. Wille(18) that Garrity immunity does not prohibit a department from drawing an adverse inference from an employee's silence that is considered along with other evidence for purposes of imposing discipline or termination.(19) In that case, a deputy sheriff was suspected of stealing items from the department's evidence room and both internal and concurrent criminal investigations were conducted. At a predisciplinary conference, the deputy was given a form explaining his Garrity rights but was informed by his lawyer that because statements were not being compelled by the department, Garrity immunity did not exist. The lawyer, therefore, advised the deputy to exercise his Fifth Amendment right against self-incrimination and remain silent, which he did.

The deputy was terminated after a lengthy investigation. The department based the termination on incriminating evidence developed during the investigation along with an adverse inference drawn from his silence. The deputy then brought a civil rights action claiming his Fifth Amendment right to remain silent was violated by the department's consideration of his silence.

The court rejected the deputy's claim on the grounds that ". . . Garrity only prohibits the compulsion of testimony that has not been immunized. In other words, the employee may not be both compelled to testify (or make a statement) and be required to waive his Fifth Amendment rights."(20) Therefore, since the deputy was not compelled to make a statement, the court concluded the department did not violate the Constitution when, along with the other evidence, it drew an adverse inference from the deputy's silence as a factor supporting the termination. The court suggested that a Fifth Amendment violation would only be proved if the deputy's "...invocation of the Fifth Amendment was the sole reason for his termination" rather than merely a substantial or motivating factor.(21)

Transfers and Reassignments

In 1997, the U. S. Court of Appeals for the Seventh Circuit held in Chan v. Wodnicki(22) that the transfer of an officer for invoking his Fifth Amendment privilege before a grand jury did not violate clearly established constitutional law. Chan was a Chicago police officer assigned to a multijurisdictional terrorist task force that required all officers on the task force to have a "top secret" security clearance from the federal government. While a member of the task force, Chan was subpoenaed before a grand jury investigating illegal activity in the Chinatown section of the city were Chart had been previously assigned. After Chan invoked his Fifth Amendment privilege before the grand jury, his security clearance was revoked, ostensibly, for failing to answer the grand jury's questions. Chan was then transferred at the same rank and salary from the task force to another assignment in the department.

Chan claimed the transfer was in retaliation for having asserted his constitutional right against self-incrimination and that it caused economic and reputational harm because 1) he had fewer opportunities for overtime in his new assignment; 2) his government car was taken away; and 3) he had to wear a uniform in his new assignment which was less prestigious.

The Supreme Court has clearly held "...that not every consequence of invoking the Fifth Amendment is considered sufficiently severe to amount to coercion to waive the right. Rather, the effect must be sufficiently severe to be capable of forcing the self-incrimination which the Amendment forbids."(23)

In this case, Chan's transfer resulted in no loss of rank or salary, but did result in the loss of incidental benefits such as the opportunity to earn additional compensation through overtime assignments and the use of a government car. Even factoring into the balance the loss of prestige that goes with such a special assignment, the court concluded that the lateral transfer of Officer Chan did not amount to the sort of penalty that could be considered coercive with respect to Fifth Amendment rights.(24)

Conclusion

The importance of officer integrity and accountability for law enforcement effectiveness cannot be overstated. Safeguarding an officer's constitutional right to due process and Fifth Amendment privilege against self-incrimination may impede a department's efforts to acquire information relevant to officer integrity and accountability.

However, recent court decisions have upheld the constitutionality of various departmental actions taken in response to an officer's false statements or refusal to answer work-related questions. First, due process does not shield officers from discipline for falsely denying misconduct allegations. Second, officers afforded Garrity immunity can be compelled to cooperate and disciplined for refusing to answer or for responding in less than a fully candid manner.(25) Third, exercising the Fifth Amendment right to remain silent is not always a cost-free exercise since departments may draw an adverse inference from an officer's silence as a factor in subsequent discipline and transfer officers when their silence creates legitimate security or fitness for duty concerns. Before taking any of these administrative actions, law enforcement managers should consult with their department legal advisor to ensure the contemplated action is legally defensible under both state and federal law.

Endnotes

1 Edwin J. Delattre, "Character and Cops," p. 68 (3d ed. 1996).

2 Id at 129.

3 Id at 90.

4 118 S. Ct. 753 (1998).

5 King v. Erickson, 89 F.3d 1575 (Fed. Cir. 1996).

6 Id at 1583.

7 Id.

8 118 S.Ct. at 755, quoting Bryson v. United States, 396 U.S. 64, 72 (1969).

9 Id at 756.

10 Id.

11 U.S. Const. Amend V.

12 Lefkowitz v. Turley, 414 U.S. 70, 77 (1973).

13 385 U.S. 493 (1967).

14 Id.

15 48 F.3d 773 (4th Cir.); cert. denied 116 S. Ct, 89 {1995).

16 Id at 777. See also, Debnam v. N. C. Dept of Corrections, 432 S.E.2d 324 (Sup. Ct. N.C. 1993).

17 Id.

18 132 F.3d 679 (11th Cir. 1998).

19 Id at 682-83.

20 Id at 682 (citation ommitted).

21 Id at 683, n. 6.

22 123 F.3d 1005 (7th Cir.), cert denied, 118 S. Ct. 1054 (1998).

23 Id at 1009 (citations omitted).

24 Id at 1010.

25 Even though Garrity immunity is self-executing when statements are in fact compelled, it may be necessary to explain the nature and scope of Garrity protection to employees before disciplining them for lack of candor.