There are two errors in the May 2006 Bar Bulletin article entitled, "Policing the Police: Understanding Garrity Rights," that should be corrected. The first error is that the author incorrectly states that the United States Supreme Court, in Gardner v. Broderick, "upheld a policy whereby a public employee could be fired for refusing to answer questions that might incriminate him if he waived immunity from prosecution." In fact, the Gardner court struck down that policy, reversing the police officer's dismissal. See 392 U.S. 273, 278Ð79.
The second error is that the author incorrectly states that where the public employer compels a statement from the employee, Garrity requires the employer to provide the employee immunity from criminal prosecution. Instead, Garrity holds that where a public employee is compelled to provide a statement, the employee must be provided an assurance that the compelled statement will not be used against him/her in any subsequent criminal proceeding. In other words, the employee is provided use immunity, not immunity from criminal prosecution. See 385 U.S. 493, 500.
-Reba Weiss
Editor's Note: It is difficult to summarize a complex subject in a short article. The article does state that the officer's dismissal was reversed in Gardner: "In the Gardner case, the Supreme Court held that the requirement of a waiver of immunity vitiated the dismissal." The author's point was that if a police officer refuses to answer questions specifically, directly and narrowly relating to the performance of his or her official duties, without being required to waive immunity with respect to the use of the answers or the fruits thereof in a criminal prosecution of the officer, the privilege against self-incrimination would not be a bar to his or her dismissal. See Gardner, as cited in Seattle Police Officers' Guild v. City of Seattle, 80 Wn.2d 307, 309, 494 P.2d 485 (1972).
With respect to Ms. Weiss's second point, the intent of the article was to discuss immunity for statements made in investigations (use immunity), not complete immunity from criminal prosecution. If this was unclear from the context, we apologize. n
