If the employer was acting as an agent of the state when requiring the employee to make a sworn statement, that statement might be suppressed. If the employer does it on their own, then there’s constitutional right implicated. As I’ve said, Garrity limits the power of the State while investigation, it doesn’t give employees extra rights.

An employer may require one to file an affidavit as a condition of continued employment. Lying on such an affidavit would subject one to criminal penalties, but there would be no restriction on the use of such an affidavit as evidence against the person who affirmed it.

Under what cases would a cop be “compelled” to answer any question in which he would not be allowed to simply announce “I quit”? Since there is no right to a police job, how is the police’s situation different from anyone else’s?

I’ve found “Stranger-Danger” to be one of the more overt examples of how our disproportionate fear of crime stunts our childrens’ development. Stereotypical kidnappings are the Elizabeth Smarts of the kidnapping world. They are roughly defined as children abducted by a non-family member who intends to keep them for an extended period of time, take them across state lines or sexually abuse or kill them. These are the boogeymen every parent fears, but stereotypical kidnappings only account for, on average, 115 abductions annually. And it’s worth noting that the majority of stereotypical kidnapping victims are over the age of 12, a period when parents tend to give their children more freedom anyway.

A child is far more likely to die in a car accident or a pool. Parents don’t restrict these activities, though. But how many parents tell their child not to talk to strangers? Initially, it sounds like good advice. But, is it possible that our indoctrinating children to fear strangers inhibits their development of social skills and, further down the road, contributes to the compartmentalization of neighborhoods? My parents encouraged me to talk to strangers and simply instructed me not to get *abducted* by one.

The problem, however, is that these parents don’t care about long-term impact. They’re thinking in terms of worst case scenario. Upon challenging one especially restrictive parent who bragged about keeping her daughter all but tied to a chair, I asked how she would feel if her child one day wound up in therapy due to the draconian nature of her upbringing. Her response? “She can bawl her eyes out to a therapist for all I care. At least she’ll be alive to do so.”

It’s an especially difficult subject for me, whether it’s applied to the drinking age, sexual age of consent laws, etc. Science has nothing to do with it at this point. Our children are inept because WE are making them that way. Did you know that children actually exercise BETTER judgment when a parent isn’t around? It’s because they know there’s no one there to save their ass and are forced to negotiate more safely.

I think back to my childhood (I’m 27) when my parents were letting me run free. I think about riding my bike with a tribe of little kids and seeing the disappointment in the eyes of the kids who couldn’t come along if we were going farther than two blocks. Then I think about what became of those kids – kids who hit 18 like a brick wall because they didn’t have the life skills to handle the transition to adulthood. My heart bleeds for those kids. They’re failures, and it’s not really their fault.

“So the lady caller said science says the brain doesn’t become fully mature until age 23. I do not believe that over the past 100 years that the act of being responsible has come later and later in life due to biology, but rather it has more to do with society deciding children must remain children for longer and longer (at this rate in another 100 years our children will not be mature until age 30). It is the way we treat them, the way we raise them, not biology that allows them to still be irresponsible at age 21. We must raise our expectations of their reasoning abilities, instead of forcing them to remain children for such an extended period of time.”

So we’ve come to the same conclusion. We are NOT allowing our children to mature normally.

thanks for taking the time to answer this. I understand most of what you’re saying, but it still feels creepy to me.

again, thanks.

Highway, firing is o.k. because there is no constitutional right to be a police office. If you threaten to fire, you can’t use the statement in court. It doesn’t grant transactional immunity, only use immunity.

http://www.timesunion.com/AspStories/story.asp?storyID=901146

#32 qwints

Citizens are just as entitled to legal assistance from retained or appointed counsel as cops are to legal assistance from the union.

I wasn’t taking about the union being able to pay for a good attorney. I’m talking about the clout the union has completely independent of what goes on in the court room. In fact, I’m surprised you interpreted my comment to have anything to do with hiring a lawyer.

Citizens can, in theory, lobby police chiefs and politicians just like the union can.

I think you are crossing into the realm of fantasy now.

You might as well argue that the super-wealthy should lose the right to choose their own counsel because the lawyers they get are too good.

Again, I made no comment about the quality of lawyer that a cop could get relative to what a civilian could get.

My point is simply that the advantages enjoyed by cops are already so numerous that Garrity is just piling more icing on the cake.

1. Cops (even the “good” ones) protect other cops.
2. Cops have a powerful union that has influence with the city as well as other cops.
3. Prosecutors and cops are on the same team, so they aren’t as enthusiastic about prosecuting them as they would civilians.
4. Cops know the very techniques that can be used to incriminate them, so they can avoid the traps.
5. Cops have access to evidence which can be made to disappear or be altered.

And as evidence to support my argument, I offer every single story posted on this site where a cop flagrantly violated someone’s rights or committed a crime and got off or got a mere slap on the wrist after a “thorough internal investigation”.

Garrity is just one tool of many for achieving the same end.

The first statement is true but irrelevant to the validity of Garrity. Citizens are just as entitled to legal assistance from retained or appointed counsel as cops are to legal assistance from the union. Citizens can, in theory, lobby police chiefs and politicians just like the union can. However appalling the practical differences in how these actions are carried out doesn’t change the law. You might as well argue that the super-wealthy should lose the right to choose their own counsel because the lawyers they get are too good.

As to the second part, I haven’t seen Garrity used as a facade for shoddy investigations to hide behind. More often, investigators seem to explicitly clear bad cops or punish them lightly rather than blame an inability to prosecute cops on procedural hurdles.

Marty:
” If I understand it correctly, if I was a game warden selling black market deer tags, I could just claim garrity protection and not face prosecution. ”

This is incorrect. Garrity only prevents an public employee’s own statement from being used against them for prosecution. It is not transactional immunity which would prevent that employee for being prosecuted for an act that talked about in that statement. For example, if the game warden was caught in the act they could definitely be prosecuted. If the only evidence they had against the game warden was the game warden’s own statement given after being ordered to, then there would probably not be a prosecution although the game warden could be administratively punished for their own actions.

El Scorcho:
“Why is it a problem to fire a public employee if they plead the 5th? ”

It’s not. If the investigator says “answer or lose your job” and the public employee refuses to answer, they can be fired. Garrity only says that if the employee does answer, that answer can’t be used for prosecution purposes, only for disciplinary purposes. On the other hand, although Garrity provides no protections against firing, public employees (especially cops) can be notoriously difficult to fire.

@Highway,

Garrity is not whistle blower protection. It’s central holding is “The choice given petitioners was either to forfeit their jobs or to incriminate themselves. … That practice … is ‘likely to exert such pressure upon an individual as to disable him from making a free and rational choice.’ We think the statements were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions.” Garrity v. State of N.J. Garrity v. State of N.J. 385 U.S. 493 497 (U.S. 1967). In other words, the rule gives effect to cops’ individual rights, it does not rely on public policy interest.

As to the question of stonewalling. Remember that lying to police about a material matter in an investigation = obstructing justice. But more importantly, the Garrity protection does not create transactional immunity – only use immunity. Prosecutors can still build a case without the statement.

TL;DR Summary:

Garrity allows the State to assess fair administrative punishment while protecting public employees’ constitutional rights. (The 5th as incorporated in the 14th).

“We conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.”
Garrity, 385 US at 500.

As a contributor to a true crime site, I see first-hand the impact the inaccurate perception is having, primarily on peoples’ children. It is unnervingly common for parents to post comments about how their children aren’t allowed to play in their own yard unsupervised. One mother told us all about how her 13 year old son wasn’t allowed to go to the neighborhood park a block away by himself. I spend ridiculous amounts of time trying to combat this fear with the reality that crime rates are lower than ever, but what’s most disconcerting is that, once this irrational fear takes root, it’s seemingly impossible to reverse.

It’s having a quantifiable impact on today’s children. One study I read recently stated that the executive functions (judgment, self-control) of today’s 5 year olds are that of 3 year olds just a couple of generations ago, and that it’s a direct result of the lack of unsupervised and free play our children are getting. We’re talking a permanent, 2-year impediment to executive function that will only worsen with future generations if we can’t get our baseless paranoia about crime in check.

@PW

I believe what you’re referring to is called “The Thin Blue Whine.”

Or worse, if they did a lot of bad stuff, but only admit to a little bit, what keeps them from getting the protections from Garrity while stonewalling on the really bad stuff?

I understand your argument, but don’t agree with it. Why is it a problem to fire a public employee if they plead the 5th? You don’t think I’m not in the same jepardy for lying to a non-public employer for a matter that is criminal in nature (one that is covered by fifth amendment)? I would buy that argument more if this were really a big issue for lots of employees. It seems to mostly be a law enforcement issue because they are the ones out there breaking the law.

I’d like to see real world examples of this law being necessary.

#22 qwints

Dave,

You’re missing the fact that there are no criminal consequences to lying to your company.

You’re right, but I think you’re splitting hairs. Cops don’t get to lie to their employers without potentially being charged with obstruction. But the moment a cop starts asking a civilian questions, that civilian is in exactly the same boat. In fact, the civilian is even worse off because he doesn’t have a powerful police union behind him and a code of silence that keeps cops from ratting on other cops.

Far from cops being at a disadvantage and, therefore, needing Garrity, I think Garrity is just one of several tools that cops have at their disposal to insulate them from the laws that civilians have to follow. Garrity just adds a patina of legitimacy to the special soft glove treatment that cops regularly get at the hands of their own investigators.