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Senate Bill 0647 was enacted by Governor Granholm on 12/28/2006. That law guarantees Michigan Police Officers have the right to Garrity protection. You can read that law here:
Enrolled Senate Bill No. 647
THE PROBLEMS WITH “GARRITY VS NEW JERSEY”
Jamil Akhtar &David Hansma
Those
among us who have even a basic familiarity with criminal law often find
it humorous what others do not know. How many times have you seen a
television show where a criminal suspect asks someone “Are you a cop?
‘Cause you have to tell me if you are”; as if this could protect the
suspect from being entrapped. Or, how many times have you seen a
suspect on a TV drama demand that he be allowed to speak to his lawyer
“right now”; as if Miranda required the police to produce a lawyer for
a defendant at a moment’s notice. As a result of being fed
misinformation, it is easy to misunderstand what your rights really are.
What Does Garrity Protect?
It is important that police officers not fall into the same trap when Garrity rights are used in an interview.
Garrity
involved police officers who were investigated by the Attorney General
of New Jersey regarding allegations of fixed traffic tickets. Before
being questioned, each officer was told that what he said may be used
against him in criminal proceedings; that he had the privilege to
refuse to incriminate himself; but that if he refused to answer he
would be fired.2
The officers answered the questions, but their
answers were then used against them in criminal proceedings. The U.S.
Supreme Court, however, ruled that this tactic violated the Fourteenth
Amendment of the U.S. Constitution. The Court said “The
protection...against coerced statements prohibits use in subsequent
criminal proceedings of statements obtained under threat of removal
from office....”
The essence of Garrity can be summed up as so:
Garrity allows police supervisors to order an officer, under the clear
and direct threat of discipline, to give a statement related to his
conduct. However, because this threat of discipline is coercion, the
Fifth Amendment forbids these statements from being used against the
officer in criminal prosecutions.
It is not the case, however, at
least in Michigan, that use of Garrity statements is limited solely to
internal discipline. There is no guarantee that Garrity statements will
never be used to the officer’s disadvantage in the criminal justice
process. That is because Garrity only provides what is called “use”
immunity. The Garrity statement cannot be “used” against an officer who
is a defendant in a criminal trial.
But Garrity does not provide
complete, or “transaction” immunity. The fact that an officer makes a
Garrity statement does not mean that the officer cannot later be
prosecuted for the actions which the Garrity statement was about. The
very limited reading Michigan courts give to Garrity was demonstrated a
few years ago.
How do the Michigan Courts look at Garrity?
The
Michigan Court of Appeals case of In re Morton5 allowed the Wayne
County Prosecutor to subpoena police reports and Garrity statements
regarding the Police shooting of Morton. The Garden City Police Chief
objected to turning over these materials, arguing that the police
officers had a right to be free from self-incrimination. But the Court
of Appeals said that because the issue was only “the production of
statements and not their improper use in a criminal proceeding against
the officers, the Fifth Amendment has no application here.” This case
clearly states that Garrity statements can be released to outside
agencies, at least when subpoenaed, even if they cannot be used against
the officers in criminal trial.
Therefore, after In re Morton, an
officer cannot expect that his Garrity statement will not ever hurt him
in the criminal process. The most that the officer can expect is that
his statements cannot be used against him in a criminal proceeding.
That is, your statement can be used against you; just not in your trial.
Therefore,
because Michigan courts give such a narrow reading to Garrity, law
enforcement agencies in Michigan should adopt a standard form Garrity
warning. First, an explicit order to surrender the 5th Amendment right
to self-incrimination must be given to the officer to make a statement
– under the certain threat of a penalty. Second, the warning should use
the strongest language possible to provide use immunity.
About
18 months ago I presented my argument to the annual meeting of DSAM; at
that time I took the position that if a law enforcement officer was
involved in an action that could, in any way, cause the officer to be
subject to arrest at a later date, he or she give up their job by
refusing to give a Garrity statement, and say nothing by exercising
your rights under the fifth amendment. That means: (1) keep your mouth
shut and (2) ask for an attorney.
We all grew up thinking that
Garrity would protect us when we were forced, under a threat of job
sanctions, to give a statement. And in exchange for giving what may be
a self-incriminating statement, the evidence derived from that
statement was not to be used against us in a subsequent criminal
proscription.
Garrity and the real world!
There are many
ex-police officers across this country that are now fired or have ended
up in prison because they thought Garrity would protect them. In
Michigan, the Michigan Court of Appeals and our Supreme Court have
shown an outright hostility as to the protections offered by Garrity.
What
is going on in Michigan and other states is that your Department can’t
use your Garrity statement to prosecute you. An outside agency,
however; and a prosecutor with subpoena powers, can now force your
department to turn over your Garrity statements and use your statements
to prosecute you.
DSAM looks to the Legislature for help!
Based
upon the Court of Appeals decision in “In re the Death of Morton” DSAM
and other police organizations have requested the Michigan Legislature
to enact legislation that would help to lesson the impact of the Court
of Appeals ruling. The newspaper and broadcast associations have
opposed the legislation, and the most we can hope for is a mandatory
notice requirement. That notice requirement would mandate that your
department give you notice when such a subpoena is received; thereby
giving you time to get into State or Federal court and attempt to
obtain an injunction to prevent the statement’s release.
DSAM is on
top of this critical legislation and Larry Orlowski, DSAM executive
director will keep the officers and members of DSAM posted as the bill
works its way through the Michigan House and Senate.
Each of you
should call your Senator and Representative and ask them to support
DSAM in its attempt to get this legislation enacted during this lame
duck session.
____________________________________
If you would like a copy of our brief to the Michigan Supreme Court in the Morton matter, call Jim Akhtar at 248-649-1000.
1. Miranda v. Arizona, 384 U.S. 486 (1966).
2. Id. at 494.
3. Id. at 500.
4. Kastigar v. United States, 406 U.S. 441, 453 (1972).
5
5. In the Matter of Investigative Subpoena re Homicide of Lance C. Morton, 258 Mich App 507 (2003)
6. Id. at 508.
7. Id. at 509.
8. Id.
9. Gardner v. Broderick, 392 U.S. 273, 278 (1968).
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