What Are Garrity Rights?

A state corrections officer arrives at the warden's office. The warden says, "I have some questions about the contraband we found on G unit and how it got into the facility."

What should the officer do? What are his rights? His mind must be racing - if he admits to anything, will it be turned over to law enforcement for use against him in a prosecution? What if he knows he did nothing wrong, but is afraid he might say something that could get twisted against him? If he refuses to answer questions, can he lose his job?

The 5th Amendment to the Constitution of the United States says that we can't be compelled to incriminate ourselves - but how does that apply when it's our boss that's doing the questioning?

Public employees work for the government - and the 5th Amendment says the government can't compel us to incriminate ourselves. So if you're a public employee, you get to bring the 5th Amendment to work via what are called your Garrity Rights.

Thanks to a 1967 United States Supreme Court case, Garrity v. New Jersey (and a bunch of later cases), public employees cannot be compelled to incriminate themselves in an investigatory interview with their management.

But what does COMPELLED mean? This is a hotly-debated issue in the cases that have followed Garrity v. New Jersey, and will be the subject of future posts here. The clearest definition of compulsion is that you have received a clear, unmistakable threat that you will be fired if you refuse to answer questions. If you are told this, then you are being compelled - and therefore your statements should be Constitutionally protected and not usable against you in prosecution.

If you are not told you will be fired for refusing to cooperate, your answers will probably be considered voluntary and can be used against you. In other words, the courts will find that you were not compelled.

So the best way to protect yourself is to ask a couple questions of the person questioning you, and get the answers documented in writing if you can:

1. Am I being ordered to answer questions?
2. What is the penalty if I refuse to answer?
   

If the answer to # 1 is YES, then we're part way there.

If the answer to # 2 is YOU WILL BE TERMINATED, your Garrity Rights are in place.

IMPORTANT: If the answer you receive to # 2 is something else, like "You will be disciplined," or "You will face severe consequences," you are NOT protected! If the answer is slightly more specific, such as "you will face disciplinary action up to and including termination," you MAY be protected - in fact, in most jurisdictions this would be enough to trigger Garrity Rights. However, the case law on this isn't consistent - so be careful! The best way to ensure protection is to get your management to confirm that you face TERMINATION. Sounds scary, but it's the only sure way to create compulsion, which means its the only sure way to trigger Garrity protection.

Some other aspects of Garrity Rights that will be explored in future articles here:

1. Once you are "compelled" via threat of termination, you can no longer refuse to answer questions. If you do, you can be terminated.
2. If the questions you are being asked have nothing to do with criminal conduct but are "specfically, directly, and narrowly" related to your official job duties, Garrity doesn't apply, and you can't refuse to answer.
   

And always remember: in any investigatory interview with your management, you have another important right - the right to have a union steward with you.