Officers can protect themselves by knowing what not to say

By Jennifer Foley, MAP Editor

Understanding Garrity rights following an officer involved shooting, accident or any other incident where an officer is being questioned about their on the job actions can make the difference between remaining on the force or facing potential criminal charges. This is especially true due to mounting accusations of excessive use of force by police nationwide.

“Today we’re under fire from everybody,” said Michigan Association of Police (MAP) legal counsel John Goldpaugh of Goldpaugh & Associates, P.C. “You have to be careful.”

MAP Labor Relations Specialists Jim Steffes could not agree more. “Our society is getting a lot more violent,” Steffes said. “Some people don’t obey the police officer when he gives them an order and things can escalate if the person is assaulting the officer or disobeying their commands.”

Officers involved in shootings are often unable to think clearly immediately following the shooting. In fact, there are many questions they simply should not respond to until they have been advised by their MAP representative and MAP legal counsel, Goldpaugh said at a breakout legal session for MAP Executive Board Members and attendees in December 2015.

“You’ve got to get to your officer and tell him to keep his mouth shut,” Goldpaugh told Labor Relations Specialists. “We don’t want anybody to make any statement to anyone until: 1. He has had an opportunity to speak to his union steward and 2. To make sure he doesn’t start talking to people and, thereby not protecting his hard fought Garrity rights.”

“You have to call your union rep or attorney before answering questions,” Goldpaugh said. “Don’t make statements without your union rep there. We don’t talk to anybody in a shooting case unless the officer is ordered to talk and the conversation is under Garrity.”

“We send a Representative directly to the officer involved. They may or may not be removed from the scene, it depends on their supervisor,” said MAP Executive Board Vice President Mike Harris of Waterford Police Officers Association.

Sterling Heights Police know all too well the importance of understanding Garrity rights. They have had several Garrity issues over the past two years. “There were five shootings in a short period of time and at that time we had two different administrations ... and each one has new ideas,” said Sterling Heights Police Officer Mike Kunath.

Kunath was glad to hear Goldpaugh supported the State Police standard of waiting 72 hours to interview an officer involved in a shooting or accident. “I really like how he had the same mindset as the State Police that you need to give the pertinent information like, ‘Are there any suspects running,’ but you don’t make your statement right away,” Kunath said. “Directly after the incident, your mind is racing. That (waiting period) gives your mind a chance to settle down and you actually remember more details that could be pertinent to the case.”

Kunath questioned if officers must remain at the station following an officer involved shooting. “The non-shooters would be required to make their reports,” Goldpaugh said, adding there are no potential charges against them. “The State Police cannot order you to make a statement. The officers who didn’t fire their weapons are only witnesses to the alleged criminal activity. Always ask, ‘So you’re ordering him to make a statement?’ and if the supervisor says ‘yes’ follow the orders and grieve later.” Goldpaugh recommends making, a short, sweet statement to the point, then refuse to answer questions. “’Sorry boss, I’m waiting for my union rep and waiting for my attorney,’” is the response Goldpaugh advised.

Goldpaugh recounted a case in which a Prosecutor refused to clear an officer of any wrongdoing until getting a statement from that officer. “If a supervisor from your employer orders him or her to make a statement, my advice is you don’t do anything until somebody tells you that you have to do it,” Goldpaugh said. “They have to use the word ‘Garrity.’ “I said, ‘Are you ordering him to make a statement?’ (The supervisor) said, ‘Yes.’ I said, ‘This statement is not voluntary and (the officer) is protected by Garrity.’ If it ever gets contested, you’re there as a witness.”

Garrity rulings have changed throughout the years as different situations are legally challenged. Here are some common issues officers should be aware of to protect themselves:

• Remember, there is no confidentiality with anyone except an attorney. “The important part is there is no such thing as implied Garrity,” Goldpaugh said. “You’ve got to make sure they’re not telling their coworkers what happened.” Furthermore, he said, “There’s not privilege between the union steward and the officer.” Goldpaugh cited a Florida case in which an officer was just talking with his supervisor and made statements about an investigation he was involved in. The court ruled those statements were not protected by Garrity. “You are not protected if you are not ordered to answer questions,” Goldpaugh said.

• On the other hand, if an officer goes in with his attorney and asks, “’Do I have to make a statement?’ And the employer said ‘yes you do,’” Garrity attaches, Goldpaugh said. Garrity applies to statements that are coerced and not voluntary. However, these statements can only be coerced by the employer, not another entity. “The State Police can’t order anybody to answer any questions,” Goldpaugh said.

• But what about when an officer travels outside their jurisdiction for a chase and ends up involved in a shooting or crash in another jurisdiction? “Don’t talk to anybody until you talk to your union rep or attorney,” Goldpaugh said. “Only your employer has control over your employment and can order you to make a statement.” An officer is not responsible to answer to anyone in command in another jurisdiction. “(Officers) in Warren don’t have any control over a Detroit officer because they are not their employer,” Goldpaugh said.

• The mere fact that a statement is given under Garrity does not mean that a warrant cannot be obtained, Goldpaugh said. However, if a warrant is obtained because Garrity was given, the statements and any evidence obtained as a result of said statements cannot be used against the officer in the subsequent criminal proceedings.

• In the 1980s, the federal courts ruled (and the Michigan court followed said ruling when in People v. Hughes they overruled People v. Allen) that false statements given under Garrity cannot be used to prove the underlying criminal allegations. However, the alleged false Garrity statements could be used to form the basis of an independent future criminal charge - for example obstruction of justice.

Kunath and MAP Labor Relations Specialist Ed Wertz said Goldpaugh’s Garrity advice was invaluable to members attending the session and they hoped others would learn from it as well.

“You’ve got to keep pounding it into their heads so they don’t get jammed up,” Wertz said. “Loose lips sink ships.”

John Goldpaugh is available to answer further questions about Garrity rights. Please click here to link to his website to contact him and for further information.