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By: Robert A. Bianchi, Esq., Morris County Prosecutor (2007-2013)
David J. Bruno, Esq., Partner
Brielle M. Perelli, Esq., Associate Attorney
A Continuing Series of Legal Articles Relevant to the Police Community Meant to “Protect and Serve” our Law Enforcement Friends
The work of a law enforcement officer is hard and wrought with potential perils that are obvious to all that know the commendable work that they do.
It is also wrought with daunting employment issues, legal liability issues, and very complex situations that could easily end a police officer’s career, or worst yet, make them subject to administrative discipline or even criminal prosecution.
As a Certified Criminal Trial Attorney, former Morris County Prosecutor, former Hudson County Assistant Prosecutor and years of service in the private practice handling police matters, I have come to know many situations where an officer lost their career, was prosecuted and/or went to jail all because of situations where an officer was unaware of their rights and how to properly navigate his/her way through the criminal justice system.
As Prosecutor, I was honored to be recognized for my expertise in police practice cases. Due to my experience and knowledge, I was appointed to the Attorney General’s panel to review the Attorney General Guidelines, which ultimately redrafted and updated the Attorney General’s Internal Affairs Policy & Procedures in 2011.
After forming The Bianchi Law Group, LLC in 2013, I partnered with former Assistant Prosecutor, Dave Bruno, Esq., who served in the Morris County Professional Standards Unit at the Prosecutor’s Office. In this position, Mr. Bruno was responsible for investigating allegations of officer misconduct.
We have made many contacts in the law enforcement community as a whole, including former and current clients who are police officers in need of our services. Since our firm is knowledgeable in the area of criminal prosecution and police practices, we have enjoyed great success in navigating a police officer away from some rather serious matters.
One of the most basic and important issues that often get police officers into trouble – and lawyers for that matter – is The Garrity Rule. Accordingly, the Garrity Rule is vital for every police officer to be familiar with. For police officers, you should know this rule with the same zeal as when required to read a suspect their 5th Amendment Right.
So, what is the Garrity Rule? To start, you must remember a few points:
1. Official misconduct is very easy charge for the prosecution to prove, and there is mandatory state prison time with a conviction for this offense;
2. Every officer has a 5th Amendment Right not to incriminate themselves;
3. Every officer has an obligation to participate in an interview in an administrative matter; and
4. It is a civil rights violation under NJ state and federal law to penalize someone for exercising a constitutional right, in this case your 5th Amendment Right to remain silent.
In short, here is the issue. Many times, if not most times, an “administrative matter” implicates the possible crime of official misconduct. Accordingly, in most cases, the officer should invoke their right to remain silent at the administrative hearing in order to protect themselves from making statements that could be used against them in a criminal proceeding.
However, as a policy decision, police agencies have the ability to administratively investigate officers as soon as is possible. Thus, what results is competing interests between an officer’s rights to remain silent and their agency’s right to investigate the matter by way of conducting an administrative interview of that officer.
So, how are these competing interests handled? The Garrity Rule and the Attorney General Guidelines seek to strike a balance of these competing rights of the individual officer and their agency.
Once the officer (hopefully through a competent attorney) invokes his/her constitutional 5th Amendment Right, there is a procedure in the Attorney General Guidelines that allows the agency to contact the County Prosecutor’s office to ask the prosecutor to “give Garrity immunity” which acts as a protective immunity for statements made at the administrative hearing. This means that anything the officer says in the administrative hearing cannot be used as evidenced against him in a later criminal prosecution.
Here is where the balance is struck: (1) the agency can get the officer’s statement and proceed with its administrative investigation, and (2) the officer’s 5th amendment right not to incriminate themselves is protected because the statement cannot be used against them in a later criminal prosecution regarding the same conduct.
In a perfect world this works. However, the world is not perfect and we continuously deal with scenarios where officers are being pressured to give statements in violation of their Garrity protections. Worse yet, we have represented clients whose previous attorneys allowed the targeted officer to waive their rights and, after the interview, the statement is used in a criminal prosecution. At that point, we are in damage control.
Importantly, many criminal cases cannot be proven without the officer’s statement. Accordingly, it is imperative – in my opinion – that an officer receive Garrity immunity at most administrative interviews to ensure that the officer does not provide the very evidence that ultimately allows for criminal charges and conviction of a crime.
Another common prosecutorial and police practice procedure is to require the officer to forfeit their job, pension or other benefits, in exchange for no charges to be prosecuted or to be prosecuted on lesser charges other than official misconduct. In these instances, if the officer’s statement that was not afforded Garrity immunity provided the very evidence for criminal prosecution, the officer is in an impossible position: either take the loss of his or her career (for not providing a statement at the administrative hearing) or be prosecuted under the harsh official misconduct statute. It is hardly a fair fight when under this pressure.
To further complicate the information provided above, case law exists on the interplay of when Garrity use immunity is not offered by the county prosecutor before an administrative hearing and whether an officer’s unprotected and “compelled” statements can be used against him in a criminal proceeding without such immunity. However, at that juncture, the officer would still be subjected to criminal prosecution and would be required to file a motion with the Court to suppress the statement as having been unlawfully compelled.
Thus, knowing your constitutional rights and the Garrity Rule could save your career, as well as avoid the possibility of a criminal conviction, because you were aware of the implications of offering an unprotected statement which could be the very evidence that is later used against you in a criminal prosecution!
*Please note that this article and the information contained is for educational purposes only. Each case is dependent on a highly fact sensitive analysis by the attorney, as no two cases are alike. This area of law can be nuanced, fact sensitive, and requires the skill and knowledge of a trained competent attorney to properly navigate an officer through the administrative process to properly protect him or her from the various consequences that can result.
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