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.