Opinion
Civil Action No. 3:02-CV-2340-H
August 15, 2003
ORDER
Before the Court are Plaintiff's Brief Per Court Order of June 5, 2003 Re: Discovery of Suarez's Compelled Statements to Plaintiff', filed June 16, 2003, and Defendant Alejandro Suarez's Brief Regarding Garrity and Compelled Statements Pursuant to June 5, 2003 Order, filed on July 14, 2003. Based on the parties' additional briefing, the Court finds that additional items from City of Terrell's Documents and Items Submitted for In Camera Inspection, submitted on January 22, 2003, are discoverable and shall be produced to Plaintiff.
I. BACKGROUND
The background of this case is set forth at length in the Court's June 6, 2003 Order. The Court addresses only the background necessary for the purposes of this Order.
On October 24, 2002, Jessica Frierson ("Plaintiff"), an officer with the Terrell Police Department, initiated this civil action against the City of Terrell ("City") and another officer, Alejandro Suarez ("Officer"), for alleged harassment under 42 U.S.C. § 1983. Plaintiff alleges that on June 24, 2001, Officer sexually harassed her while she was on duty in the police department. Plaintiff complained about the alleged harassment to Terrell Police Department's Internal Affairs Division, who opened an administrative investigation and took statements from Plaintiff, Officer, and numerous witnesses. During the administrative investigation, the Texas Rangers opened a criminal investigation, the result of which was Officer's indictment in state court on a class A misdemeanor charge of Official Oppression for the same alleged harassment.
Officer is the defendant in State of Texas v. Alejandro Suarez, Cause No. 20,718, in the 86th Judicial District Court, Kaufman County, Texas. The relevant portion of the crime with which he is charged states "A public servant acting under color of his office or employment commits an offense if he: . . . (3) intentionally subjects another to sexual harassment." TEX. PEN. CODE ANN. § 39.03 (Vernon 1994).
Early in this case, Officer asserted his Fifth Amendment privilege in response to discovery requests from Plaintiff and moved for a protective order or to stay discovery. After a hearing on the motion, the Court ordered Officer and City to submit to the Court all responsive information that Officer believed would implicate his Fifth Amendment privilege for in camera review. Both defendants submitted separate sets of items for in camera review. Officer's compelled statements contained a "Garrity Warning," which assured Officer that his statements would not be used against him in any subsequent criminal proceeding. Neither party briefed the impact of Garrity on statements made to internal affairs investigators that are later disclosed in a civil action. Accordingly, the Court reserved ruling on the discoverability of the items submitted by City that contained Officer's compelled statement until the parties submitted additional briefing on this issue. The parties' additional briefing is now before the Court.
Garrity v. State of New Jersey, 385 U.S. 493 (1967)
In addition, the Court stayed all further discovery from Officer.
Plaintiff claims that "in civil cases, as opposed to criminal cases, Garrity does not prohibit the discovery or use of [compelled] statement or related documents made in or during an internal affairs investigation by a police department concerning a City employee, rather, Garrity merely prohibits the use of such statements by the prosecution in subsequent criminal proceedings against the employee subject of the investigation." (PI. Br. at 3.) Plaintiff thus contends that even if the compelled statements "are disclosed by the City to the prosecution or are discovered in a civil action, such disclosures or discoveries are still barred from being used in subsequent criminal proceedings." Id. at 5. Officer claims that the "total protection" afforded by Garrity extends to protect his statements from disclosure in both criminal and civil proceedings. (Off. Br. at 6-7.) Officer argues that, although he "has found no case directly on point, the rationale underlying Garrity and its `total protection' would be undermined if [Officer's] statements could be compelled from the City." Id. at 7.
II. ANALYSIS
The Supreme Court's decision in Garrity "prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office." Garrity v. New Jersey, 385 U.S. 493, 500 (1967). "More specifically, Garrity protects police officers from having to choose between cooperating with an internal investigation and making potentially incriminating statements. Immunity under Garrity prevents any statements made in the course of the internal investigation from being used against the officers in subsequent criminal proceedings." United States v. Vangates, 287 F.3d 1315, 1320 (11th Cir. 2002) (emphasis added) (quoting In re Federal Grand Jury Proceedings, 975 F.2d 1488, 1490 (11th Cir. 1992)). Garrity provides a "complete prohibition on the `use in subsequent criminal proceedings of statements obtained under threat of removal from office . . .'" In re Grand Jury Subpoena Dated December 7 and 8, Issued to Bob Stover, Chief of Albuquerque Police Dep't v. United States, 40 F.3d 1096, 1102 (10th Cir. 1994) (quoting Garrity, 385U.S. at 500). This "total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an `investigatory lead,' and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures." Id. (emphasis added).
Officer argues that Garrity prevents discovery of the internal affairs file and his statements therein in this civil action because they would be obtained by the prosecution and thereafter used against him in his criminal action. (Off. Br. at 6-7.) Officer's argument assumes that City's production of his compelled statements to Plaintiff would result in the prosecution obtaining and using those statements against him in the criminal proceeding, thereby violating his Fifth Amendment. Officer's argument speculates on what would happen to his compelled statements after they are discovered by Plaintiff. Officer has offered no direct evidence that shows that the prosecution would attempt to obtain such statements, and if they did, that they would attempt to use them against Officer. Speculation is insufficient to invoke the protections of the Fifth Amendment: "It is well established that the privilege protects against real dangers, not remote and speculative possibilities." Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 478 (1972); see also Stover, 40 F.3d at 1103 ("It is axiomatic that the Fifth Amendment protects against `real dangers, not remote and speculative possibilities.'") As in Stover, this Court is being asked to add "an additional layer of protection which would insure that the constitutional violation does not occur in the first instance." Stover, 40 F.3d at 1104-05. The Stover court refused to do so, reasoning that "adequate safeguards are in place to insure that a police officer's privilege against self-incrimination is not violated." Id. at 1104. "The time for protection will come when, if ever, the government attempts to use the information against the defendant at trial. We are not willing to assume that the government will make such use, or if it does, that a court will allow it to do so." Id. at 1103.
Assuming, without deciding, that the prosecution would obtain and attempt to use Officer's compelled statements against him in the criminal trial, the Court considers whether the disclosure of Officer's compelled statements in this civil action would implicate Officer's Fifth Amendment privilege in the criminal trial in light of Garrity. It is clear from City's in camera submission that Officer gave his compelled statements to the internal affairs investigators pursuant to a "Garrity Warning," which stated:
I wish to advise you that you are being questioned as part of an official investigation . . . You are entitled to all of the rights and privileges guaranteed by the laws and the constitution of this state and the Constitution of the United States, including the right not to incriminate yourself. I further wish to advise you that if you refuse to testify . . . you will be subject to departmental charges which could result in your dismissal . . . If you do answer, neither your statemens [sic] nor any informations [sic] or evidence which is gained by reason of such statements can be used against [him] in any subsequent criminal proceeding.
(COT 0257) (emphasis added). This warning informed Officer that he could be fired for not providing a statement to the investigators, and it invoked Garrity''s protection against "use in subsequent criminal proceedings of statements obtained under threat of removal from office . . ." Garrity, 385 U.S. at 500. In the context of such a protected statement by a police officer, the Ninth Circuit has held that
the protection of the Fifth Amendment privilege, when applied to statements by police officers in internal affairs files, must focus on the use of those statements against the officers who gave them. The statements are not privileged from production to a subpoenaing authority. But the Fifth Amendment guards against any improper use of them.In re Grand Jury Subpoena, 75 F.3d 446, 448 (9th Cir. 1996) (emphasis added). With similar reasoning, the Tenth Circuit stated that "police officers, as public employees `may be compelled to respond to questions about the performance of their duties but only if their answers cannot be used against them in subsequent criminal prosecutions.'" Stover, 40 F.3d at 1102. Under that reasoning, the harm Garrity protects against is the prosecution's improper use Officer's statements, not whether the prosecution possesses his statements. Indeed, even if the prosecution obtains Officer's compelled statements, they may not use them in violation of Garrity. Because Garrity focuses on the prosecution's use rather than possession of compelled statements, Garrity''s protection is not diminished when such statements are disclosed in a civil trial and later obtained the prosecution. In Vangates, the district court refused to admit an internal affairs file in a criminal trial following a civil trial "because the statements contained in the file were protected by Garrity when the officers gave them, and using the Internal Affairs file in the civil trial did not eliminate that protection." 287 F.3d at 1318 (emphasis added). Here, disclosure in this civil trial would not strip from Officer's statements Garrity's ongoing prohibition against using his statements against him in the criminal trial.
Vangates did not specifically address the instant issue, i.e., whether statements protected by Garrity are discoverable in a civil action. However, the opinion makes clear that the statements were used during the civil trial. The statements were therefore probably subject to discovery.
Garrity's focus on protecting against improper use (not possession) of compelled statements is further illustrated by refusals to quash grand jury subpoenas seeking disclosure of Garrity — protected statements. See In re Grand Jury Subpoena, 75 F.3d at 447 (affirming district court's denial of motion to quash grand jury subpoena seeking Garrity-protected statements given during internal affairs investigation); see also Stover, 40 F.3d at 1102 (same). If Garrity protected against possession of compelled statements, its protection would surely be reason to quash a grand jury subpoena seeking such statements. Surely the risk of improper use of compelled statements would be greater in a grand jury investigation of criminal wrongdoing than in a civil trial. However, as exemplified by the above cases, Garrity protection assures the speaker that the prosecution will not be allowed to improperly use his protected statements in a criminal proceeding, even if they possess them. See Garrity, 385 U.S. at 500; see also In re Grand Jury Subpoena, 75 F.3d at 447; Stover, 40 F.3d at 1103.
III. CONCLUSION
In conclusion, Plaintiff's statements made pursuant to the "Garrity Warning" are protected from being improperly used by the prosecution in his criminal proceeding. This protection is not diminished by the prosecution obtaining Officer's statements. Thus, Officer's Fifth Amendment privilege is not implicated by disclosing those statements in this civil action, even if those statements reach the prosecution. Consequently, City is hereby ORDERED to produce to Plaintiff the remaining items submitted in City of Terrell's Documents and Items Submitted for In Camera Inspection, which are numbered COT0223; COT0226; COT0229-30; COT0257-0263; COT0267-0268; COT0277-0278; COT0283; and COT0285-0286, within ten calendar days of the date on which this Order is filed.