Chief’s Counsel: Routine Reports and Garrity

In 1967, a U.S. Supreme Court decision in Garrity v. New Jersey established that requiring public employees to make potential self-incriminating statements under the threat of job termination constitutes coercion and is, thus, unconstitutional. However, simply requiring officers to complete reports does not necessarily trigger Garrity protection, which would prevent the use of any potentially incriminating information or its fruits in a criminal prosecution of the officer. This is the case even where an officer includes a “preamble” stating that the report is provided under threat of job loss, unless the officer’s belief is reasonable. In order to be objectively reasonable, the prevailing view from reviewing courts is that the officer’s belief must be based upon an action of the state, municipality, or department and cannot simply be the result of the general obligation to tell the truth in a report. Police departments that do not intend to afford officers with the ability to avoid the use of incriminating statements contained in routine police reports in criminal cases should take steps to ensure that any subjective beliefs that refusing to complete such reports will result in termination or other severe discipline are not reasonable. A review of any statutes, ordinances, bylaws, and regulations, as well as the department’s rules and policies, in addition to any past disciplinary cases, will help chiefs determine if termination (or perhaps other severe discipline) is threatened (or perceived as threatened) should officers fail to submit certain reports. Issuing clarifying directives and changing contradictory provisions of existing documents should prevent officers from reasonably believing that refusing to complete routine police reports would result in the officers’ termination. Training supervisors to avoid making any such threats is also helpful.

Read More
Chief's Counsel
Share
Having taken an oath to serve and protect, law enforcement officers are called upon to guard against those who would do harm. In fulfilling this oath, however, those officers face an omnipresent dange...
Chief's Counsel
Share
A growing percentage of the evidence in criminal cases exists in the digital world, and the post-Snowden public can be suspicious of government access to digital information. The access to much of di...
Chief's Counsel
Share
The Family and Medical Leave Act (FMLA) of 1993 provides one of the most important legal protections afforded to employees in the United States. Eligible employees who work for a covered employer can ...
Chief's Counsel
Share
At the end of 2016, approximately 28 U.S. states and the District of Columbia had decriminalized marijuana for medical purposes, recreational purposes, or both. Each state’s laws vary to significan...
Chief's Counsel
Share
Stop-and-frisk procedures when performed in a constitutional manner are fundamental to modern policing—officers continually apply stop-and-frisk principles during traffic stops, other short detentio...
Chief's Counsel
Share
This column was originally written before the November 2016 injunction referenced herein was issued, so some last-minute modifications have been made to the content. However, it contains valuable info...
Chief's Counsel
Share
The First Amendment of the U.S Constitution provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,...
Chief's Counsel
Share
Before testifying in a U.S. court, each witness answers this oath: “Do you solemnly swear or affirm the testimony you are about to give in the case now on trial is the truth, the whole truth, and no...
Chief's Counsel
Share
The U.S. Supreme Court’s decision in the United States v. Texas, which was issued on June 24, 2016, raised major questions about the U.S. president’s power to exercise discretion when enforcing im...
Chief's Counsel
Share
Society, in many places, has become more open to and aware of diversity in gender identity and expression, and law enforcement agencies are also increasing their diversity and acceptance. As the aware...