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Gardner v. Broderick

U.S.
Jun 10, 1968
392 U.S. 273 (1968)

Summary

holding that a policeman, who has not waived his Garrity protection but refuses to answer specific questions about his official duties, may not shield himself from dismissal by the privilege against self-incrimination

Summary of this case from Homoky v. Ogden

Opinion

APPEAL FROM THE COURT OF APPEALS OF NEW YORK.

No. 635.

Argued April 30, 1968. Decided June 10, 1968.

Appellant, a police officer, was subpoenaed by and appeared before a grand jury which was investigating alleged bribery and corruption of police officers, and was advised that the grand jury proposed to examine him concerning the performance of his official duties. He was advised of his privilege against self-incrimination, but was asked to sign a "waiver of immunity" after being told that he would be fired if he did not sign. He refused to do so, was given an administrative hearing, and was discharged solely for his refusal, pursuant to § 1123 of the New York City Charter. The New York Supreme Court dismissed his petition for reinstatement and the New York Court of Appeals affirmed, holding that Garrity v. New Jersey, 385 U.S. 493, was not controlling, and distinguishing Spevack v. Klein, 385 U.S. 511 (both decided after appellant's discharge). Held: If appellant, a policeman, had refused to answer questions directly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, Garrity, supra, the privilege against self-incrimination would not have been a bar to his dismissal. However, his dismissal solely for his refusal to waive the immunity to which he is entitled if he is required to testify despite his constitutional privilege, and the New York City Charter provision pursuant to which he was dismissed, cannot stand. Pp. 276-279.

20 N.Y.2d 227, 229 N.E.2d 184, reversed.

Ronald Podolsky argued the cause and filed briefs for appellant.

J. Lee Rankin argued the cause for appellees. With him on the brief were Norman Redlich, Stanley Buchsbaum, and Robert T. Hartmann. Michael J. Silverberg filed a brief for the Patrolmen's Benevolent Association of the City of New York, Inc., as amicus curiae, urging reversal.


Appellant brought this action in the Supreme Court of the State of New York seeking reinstatement as a New York City patrolman and back pay. He claimed he was unlawfully dismissed because he refused to waive his privilege against self-incrimination. In August 1965, pursuant to subpoena, appellant appeared before a New York County grand jury which was investigating alleged bribery and corruption of police officers in connection with unlawful gambling operations. He was advised that the grand jury proposed to examine him concerning the performance of his official duties. He was advised of his privilege against self-incrimination, but he was asked to sign a "waiver of immunity" after being told that he would be fired if he did not sign. Following his refusal, he was given an administrative hearing and was discharged solely for this refusal, pursuant to § 1123 of the New York City Charter.

The Assistant District Attorney said to appellant:
"You understand . . . that under the Constitution of the United States, as well as the Constitution of New York, no one can be compelled to testify against himself, and that he has a right, the absolute right to refuse to answer any questions that would tend to incriminate him?"

Appellant was told:
"You understand . . . that under the Constitution of New York, as well as the Charter of the City of New York, . . . a public officer, which includes a police officer, when called before a Grand Jury to answer questions concerning the conduct of his public office and the performance of his duties is required to sign a waiver of immunity if he wishes to retain that public office?"
The document appellant was asked to sign was phrased as follows:
"I . . . do hereby waive all benefits, privileges, rights and immunity which I would otherwise obtain from indictment, prosecution, and punishment for or on account of, regarding or relating to any matter, transaction or things, concerning the conduct of my office or the Page 275 performance of my official duties, or the property, government or affairs of the State of New York or of any county included within its territorial limits, or the nomination, election, appointment or official conduct of any officer of the city or of any such county, concerning any of which matters, transactions or things I may testify or produce evidence documentary or otherwise, before the [blank] Grand Jury in the County of New York, in the investigation being conducted by said Grand Jury."

That section provides:
"If any councilman or other officer or employee of the city shall, after lawful notice or process, wilfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or to answer any question regarding the property, government or affairs of the city or of any county included within its territorial limits, or regarding the nomination, election, appointment or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency."
Section 6 of Article I of the New York Constitution provides:
"No person shall be . . . compelled in any criminal case to be a witness against himself, providing, that any public officer who, upon being called before a grand jury to testify concerning the conduct of his present office . . . or the performance of his official duties . . . refuses to sign a waiver of immunity against subsequent criminal prosecution, or to answer any relevant question concerning such matters before such grand jury, shall by virtue of such refusal, be disqualified from holding any other public office or public employment for a period of five years . . . and shall be removed from his present office by the appropriate authority or shall forfeit his present office at the suit of the attorney-general."

The New York Supreme Court dismissed his petition for reinstatement, 27 A.D.2d 800, 279 N.Y.S.2d 150 (1967), and the New York Court of Appeals affirmed. 20 N.Y.2d 227, 229 N.E.2d 184 (1967). We noted probable jurisdiction. 390 U.S. 918 (1968).

Our decisions establish beyond dispute the breadth of the privilege to refuse to respond to questions when the result may be self-incriminatory, and the need fully to implement its guaranty. See Spevack v. Klein, 385 U.S. 511 (1967); Counselman v. Hitchcock, 142 U.S. 547, 585-586 (1892); Albertson v. SACB, 382 U.S. 70, 80 (1965). The privilege is applicable to state as well as federal proceedings. Malloy v. Hogan, 378 U.S. 1 (1964); Murphy v. Waterfront Commission, 378 U.S. 52 (1964). The privilege may be waived in appropriate circumstances if the waiver is knowingly and voluntarily made. Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying. Counselman v. Hitchcock, supra, at 585-586; Murphy v. Waterfront Commission, supra, at 79.

The question presented in the present case is whether a policeman who refuses to waive the protections which the privilege gives him may be dismissed from office because of that refusal.

About a year and a half after New York City discharged petitioner for his refusal to waive this immunity, we decided Garrity v. New Jersey, 385 U.S. 493 (1967). In that case, we held that when a policeman had been compelled to testify by the threat that otherwise he would be removed from office, the testimony that he gave could not be used against him in a subsequent prosecution. Garrity had not signed a waiver of immunity and no immunity statute was applicable in the circumstances. Our holding was summarized in the following statement (at 500):

"We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic."

The New York Court of Appeals considered that Garrity did not control the present case. It is true that Garrity related to the attempted use of compelled testimony. It did not involve the precise question which is presented here: namely, whether a State may discharge an officer for refusing to waive a right which the Constitution guarantees to him. The New York Court of Appeals also distinguished our post- Garrity decision in Spevack v. Klein, supra. In Spevack, we ruled that a lawyer could not be disbarred solely because he refused to testify at a disciplinary proceeding on the ground that his testimony would tend to incriminate him. The Court of Appeals concluded that Spevack does not control the present case because different considerations apply in the case of a public official such as a policeman. A lawyer, it stated, although licensed by the state is not an employee. This distinction is now urged upon us. It is argued that although a lawyer could not constitutionally be confronted with Hobson's choice between self-incrimination and forfeiting his means of livelihood, the same principle should not protect a policeman. Unlike the lawyer, he is directly, immediately, and entirely responsible to the city or State which is his employer. He owes his entire loyalty to it. He has no other "client" or principal. He is a trustee of the public interest, bearing the burden of great and total responsibility to his public employer. Unlike the lawyer who is directly responsible to his client, the policeman is either responsible to the State or to no one.

Cf. Spevack v. Klein, supra, at 519-520 (concurring in judgment).

We agree that these factors differentiate the situations. If appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, Garrity v. New Jersey, supra, the privilege against self-incrimination would not have been a bar to his dismissal.

The statements in my separate opinion in Spevack v. Klein, supra, at 519-520, to which the New York Court of Appeals referred, are expressly limited to situations of this kind.

The facts of this case, however, do not present this issue. Here, petitioner was summoned to testify before a grand jury in an investigation of alleged criminal conduct. He was discharged from office, not for failure to answer relevant questions about his official duties, but for refusal to waive a constitutional right. He was dismissed for failure to relinquish the protections of the privilege against self-incrimination. The Constitution of New York State and the City Charter both expressly provided that his failure to do so, as well as his failure to testify, would result in dismissal from his job. He was dismissed solely for his refusal to waive the immunity to which he is entitled if he is required to testify despite his constitutional privilege. Garrity v. New Jersey, supra.

We need not speculate whether, if appellant had executed the waiver of immunity in the circumstances, the effect of our subsequent decision in Garrity v. New Jersey, supra, would have been to nullify the effect of the waiver. New York City discharged him for refusal to execute a document purporting to waive his constitutional rights and to permit prosecution of himself on the basis of his compelled testimony. Petitioner could not have assumed — and certainly he was not required to assume — that he was being asked to do an idle act of no legal effect. In any event, the mandate of the great privilege against self-incrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment. It is clear that petitioner's testimony was demanded before the grand jury in part so that it might be used to prosecute him, and not solely for the purpose of securing an accounting of his performance of his public trust. If the latter had been the only purpose, there would have been no reason to seek to compel petitioner to waive his immunity.

Proper regard for the history and meaning of the privilege against self-incrimination, applicable to the States under our decision in Malloy v. Hogan, 378 U.S. 1 (1964), and for the decisions of this Court, dictate the conclusion that the provision of the New York City Charter pursuant to which petitioner was dismissed cannot stand. Accordingly, the judgment is

See Miranda v. Arizona, 384 U.S. 436, 458-466 (1966), and authorities cited therein.

See, e. g., Griffin v. California, 380 U.S. 609 (1965); Malloy v. Hogan, supra.

Reversed.

MR. JUSTICE BLACK concurs in the result.

[For opinion of MR. JUSTICE HARLAN, concurring in the result, see post, p. 285.]


Summaries of

Gardner v. Broderick

U.S.
Jun 10, 1968
392 U.S. 273 (1968)

holding that a policeman, who has not waived his Garrity protection but refuses to answer specific questions about his official duties, may not shield himself from dismissal by the privilege against self-incrimination

Summary of this case from Homoky v. Ogden

holding that firing a police officer for refusing to waive his Fifth Amendment privilege violated the right against self-incrimination

Summary of this case from Wiley v. Doory

holding that it was improper to discharge the police officer for refusing to waive constitutional right against self-incrimination

Summary of this case from Amato v. City of Richmond

holding that a state may not terminate a police officer for exercising his right not to incriminate himself when testifying before a grand jury

Summary of this case from Augustus v. Roemer

holding that a state could not fire a police officer for refusing to testify before a grand jury regarding official duties without immunity

Summary of this case from In re A.M.-S.

holding New York city statute providing for discharge of police officers who refused to waive immunity from prosecution violated the Fifth Amendment privilege against self-incrimination, made applicable to the states through the Fourteenth Amendment due process clause, and a police officer could not be discharged for refusing to waive immunity when he appeared before the grand jury investigating conduct of police officers

Summary of this case from Miller v. Baltimore County P.D

holding that it is unlawful to fire a police officer simply for invoking the Fifth Amendment privilege

Summary of this case from State v. Rivers

holding that a police officer could not be discharged solely for his refusal to forfeit the rights guaranteed him by the Fifth Amendment

Summary of this case from AGO

finding Fifth Amendment violation when police officer was threatened with and subsequently discharged from employment if he did not waive his Fifth Amendment immunity in conjunction with a grand jury investigation

Summary of this case from U.S. v. Swanson

finding Fifth Amendment violation when police officer was threatened with and subsequently discharged from employment if he did not waive his Fifth Amendment immunity in conjunction with a grand jury investigation

Summary of this case from U.S. v. Saechao

finding it unconstitutional to discharge a police officer for refusing to waive his Fifth Amendment privilege

Summary of this case from Hill v. Johnson

reversing policeman's dismissal which was based solely on his refusal to waive immunity to which he would be entitled under the Fifth Amendment privilege against self-incrimination

Summary of this case from Lile v. McKune

In Gardner v. Broderick, 392 U.S. 273 (1968), a police officer appearing before a grand jury investigating official corruption was subject to discharge if he did not waive his Fifth Amendment privilege and answer, without immunity, all questions asked of him.

Summary of this case from Lefkowitz v. Cunningham

In Gardner, the plaintiff, a police officer, was subpoenaed to appear before a New York County grand jury that was investigating bribery and corruption of police officers in connection with gambling operations.

Summary of this case from Delia v. City of Rialto

In Gardner, the Court noted that the constitutional violation arose not when a public employee was compelled to answer job-related questions, but when that employee was required to waive his privilege against self-incrimination while answering his employer's legitimate job-related questions.

Summary of this case from Aguilera v. Baca

In Gardner, a police officer, who was subpoenaed to appear before a grand jury investigating alleged bribery and corruption of police officers, was advised as follows: (i) that the grand jury intended to ask him questions concerning the performance of his official duties; (ii) that he had a constitutional privilege against self-incrimination; and (iii) that by law he was required to sign a waiver of immunity or else be fired.

Summary of this case from Singer v. Maine

In Gardner, the Court noted that the constitutional violation arose not when the employer compelled the employee to answer job-related questions, but when the employee was required to waive his privilege against self-incrimination.

Summary of this case from Wiley v. Mayor and City Council of Baltimore

In Gardner, the Court clarified the interrelation of Garrity and Spevack, holding that officials directly responsible to the state (in that case police officers), unlike lawyers, could be required, on penalty of dismissal, "to answer questions specifically, directly, and narrowly relating to the performance of [their] official duties," so long as they were not required to waive the use immunity guaranteed by Garrity. 392 U.S. at 278, 88 S.Ct. at 1916; see also Cunningham, 431 U.S. 801, 97 S.Ct. 2132; Uniformed Sanitation Men Ass'n., Inc. v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968).

Summary of this case from U.S. v. Frazier

In Garner v. Broderick, 392 U.S. 273, 278-79, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), the Court concluded that the state had attempted to coerce a waiver of a police officer's fifth amendment privilege on the penalty of loss of employment, and held that he could not be terminated for refusing to waive his constitutional privilege.

Summary of this case from U.S. v. Perez-Franco

In Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), a police officer was called before a grand jury investigating police corruption. He was advised of his right against self-incrimination, but told that if he refused to sign a waiver of immunity, he would be dismissed pursuant to a state law which required dismissal of any public employee who invoked the fifth amendment in connection with an investigation of the employee's official duties.

Summary of this case from Benjamin v. City of Montgomery

In Gardner, the Court held that a state may not discharge a police officer for refusing to waive his fifth amendment right against self-incrimination.

Summary of this case from Taylor v. Best

In Gardner it was held that a public official or employee may not be discharged for refusing to sign a waiver of any immunity to which he is entitled when questioned about his official conduct.

Summary of this case from United States v. Shamy

In Gardner, a policeman was subpoenaed to appear before a grand jury investigating bribery and corruption of police officers.

Summary of this case from United States v. Indorato

In Gardner v. Broderick, 1968, 392 U.S. 273, 276, 88 S.Ct. 1913, 1915, 20 L.Ed.2d 1082, the Supreme Court stated: "In that case [Garrity], we held that when a policeman had been compelled to testify by the threat that otherwise he would be removed from office, the testimony that he gave could not be used against him in a subsequent prosecution.

Summary of this case from Womer v. Hampton

In Gardner v. Broderick, 1968, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082, a policeman was fired for refusing to waive his Fifth Amendment privilege against self-incrimination.

Summary of this case from Dennis v. Blount
Case details for

Gardner v. Broderick

Case Details

Full title:GARDNER v . BRODERICK, POLICE COMMISSIONER OF THE CITY OF NEW YORK, ET AL

Court:U.S.

Date published: Jun 10, 1968

Citations

392 U.S. 273 (1968)
88 S. Ct. 1913

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