What are my Garrity Rights? A look into public Employees and Self-Incrimination

If my boss or supervisor asks me questions at work, do I have to answer them?  What if I am a public or government employee?

As a general condition of employment for all jobs, employees are required to fully and honestly answer any work related questions that their supervisor might ask them.  This is a fundamental part of the employee-employer relationship.  If you don’t answer your boss’s questions, or if you lie, you will most likely be disciplined or maybe even fired.

The fifth amendment to the US Constitution guarantees every American’s right not to be compelled by the government to make statements that might incriminate them in a criminal case.  This requirement applies to local, county, state, and federal governments.   When a person makes the brave and honorable decision to enter public service, be it as a police officer, fire fighter, public school teacher, or any other government job, they do not give up that right.

For public employees, the government is their employer.  That makes the relationship between the employee and the employer a bit more complex when it comes to being forced to answer questions at work.  Employees are still usually required to fully and honestly answer questions posed by their supervisor, and if they refuse to, they could get fired.  But because their employer is the government, the fifth amendment applies, and if an employee is forced to answer questions under the threat of being fired, the statements that employee makes can not be used against them in a criminal case.  

These protections are called Garrity rights, because they are derived from a US Supreme Court case called Garrity v NJ.  In that case, the Supreme Court said it is not fair for an employer, or the government, to force an employee to choose between job loss and criminal self-incrimination.  

But the Garrity rights only apply if a government employee is required to answer questions.  They do not apply if the employee has a choice whether or not to answer.  Here are a few examples:

1. George is a public school teacher.  The principal, Mrs. Smith, suspects that George has been stealing school supplies and decides to ask him about it.  

George tells Mrs. Smith that he does not want to answer her questions and she says, “If you don’t answer my questions about this, you’ll get in big trouble, maybe even be fired.”  George then admits to Mrs. Smith that he stole school supplies.  Mrs. Smith asks where the school supplies are, and George says that they are in the trunk of his car in the parking lot.

Mrs. Smith calls the police, and tells them what George said.  The police get a

search warrant and look in George’s car trunk.  They find the stolen school supplies and arrest George for stealing.

1. Because George was “compelled” to answer Mrs. Smith’s questions, his answers can not be used against him by the police.  Mrs. Smith is an agent of the government, and she “forced” George to answer the questions by telling him he could be fired.  His answers were coerced.  It does not matter that Mrs. Smith is not a police officer – she is an agent of the government.
2. The police used the information George told Mrs. Smith about the school supplies in his trunk when they applied for their search warrant.  Most likely, that evidence can not be used in court against George either, because the information was only obtained under duress – the threat of being fired.
3. It is important to understand that Garrity rights do not protect public employees from being disciplined or fired.  The rights only protect information from being used in a criminal case.  In the above situation, George would most likely be fired for stealing from the school, and that would be perfectly legal.

Here is another example:

2. Jane is a firefighter for the city.  She was very angry one day when she left work, so she picked up a wrench and smashed the taillight of one of the fire engines.  The next day her supervisor came up to her and said “Jane, did you see what happened to the taillight of Engine 3 last night?  Someone said they think you smashed it.  Did you?”

Jane then admits that she smashed the taillight, and shows her supervisor what 

wrench she used to do it.  The supervisor calls the police and tells them what Jane said.  Jane was arrested for damaging the fire engine.

1. Because Jane was not explicitly told that she could face serious discipline if she did not answer her supervisor’s questions, she was not compelled or “forced” to answer the questions and was not under duress.  The things she said to her boss can be shared with the police, and most likely used in criminal court against her.

The difference between the two situations above relies primarily on whether or not a “reasonable” person would feel compelled to answer the questions.  If an employee faces little or no penalty, or if they are not sure, then the answers will probably be considered voluntary and could be used in a criminal case.

Can I “self-invoke” my Garrity rights?

Sort of.  There is no formal way to invoke Garrity rights.  However, a government employee who is facing questions about potential misconduct could ask their supervisor clarifying questions, such as whether or not they have to answer the questions their boss is asking.  Here are another few examples:

1. A sergeant asks a police officer if he stole something from a suspect he had arrested.  The officer asks, “Do I have to answer that question?”
   1. If the sergeant says “no, you don’t have to” or something like “I’d like you to, but I guess you don’t have to,” then Garrity most likely will not apply.  If the officer answers, those answers could be used in a criminal case.
   2. If the sergeant says “yes, you have to, or you could get fired” then Garrity applies, and the answers could not be used in a criminal case.

Sometimes employers or supervisors will be unclear when an employee attempts to clarify whether or not an employee must answer a question.  Some bosses do this because they are not familiar with these laws and rules.  Others may do it on purpose in an attempt to get employees to answer questions without triggering Garrity protections.  They may answer in an equivocal way that makes the situation unclear.  Examples are:

1. “I would really like you to answer.  It would be best for everyone.”
2. “I guess you don’t have to answer, but there could be problems if you don’t.”
3. “You really should answer.  It’s part of your job.”

Employees who are in situations like this should do their best to clarify the situation by asking additional questions.  An employee could ask, “What will happen to me and my employment here if I refuse to answer.  Will I get into any trouble?”

What if I got suspended or sent home while an investigation is happening?

Because the rules established in the Garrity case and others that came after it prevent compelled statements from being used in a criminal case, most government employers have policies about what they will do and how they will handle allegations of employee misconduct that might also be a crime.  In most cases, the criminal investigation will happen first so that Garrity rights do not become a problem for the employer or the police.

For example, if there is an allegation that a public crossing guard is selling drugs to his coworkers, the employer would be wise to put the employee on leave, and report the incident to police.  The police would then conduct an investigation that has nothing to do with the employer, during which all of the person’s constitutional protections apply (including whether to answer questions from the police).  The police will either develop sufficient evidence to charge the employee with a crime, or they won’t.  

After the criminal investigation is complete, the employer would probably begin their own internal investigation of the crossing guard.  The employer may do that themselves, or hire someone else to do it.  When that investigation happens, the employee will have to cooperate and answer questions that their employer asks them.  

Keep in mind that Garrity only protects government employees from having things they say used in criminal court.  Garrity rights have nothing to do with whether or not you get into trouble at work.