Professor
Warnken has written: The promises of Garrity and Gardner were never
fully realized for law enforcement officers. Although the blatant
contravention of Garrity and Gardner was remedied, subtle violations
were not. In situations which courts were confronted with
constitutional, statutory, or regulatory provision similar to those in
Gardner and Garrity, the provisions were struck down quickly...However
once across-the-board violations were remedied, unconstitutional actions
continued that were more difficult to detect and prove. System-wide,
explicit schemes sanctioning punitive personnel action for the assertion
of the privilege against compelled self-incrimination were replaced by
incident-by-incident threats, either express or implied, and grants of
immunity were rare. Law enforcement officers still face the
constitutionally impermissible dilemma of attempting to preserve a
career by relinquishing the privilege, as in Garrity, or preserving it
at the cost of a career, as in Gardner. Courts confronted with these
situations frequently reflect the laymen's attitude toward those who
"hide behind" the fifth amendment. Some courts have ruled
against law enforcement officers without invoking or misapplying Garrity
and Gardner, resting on grounds such as inapplicability of the fifth
amendment because the officer did not fear a criminal prosecution,
because the officer failed to assert the fifth amendment privilege, or
because of lack of either a Garrity coercion or a Gardner chill. Many
more courts either misunderstand or perhaps even evade the Garrity or
Gardner holdings, the immunity requirement, or both. 16 University of
Baltimore at 475-477.
Two tactics
must be followed if the principles of Garrity or Gardner are to become
reality. First, organizations and individuals who represent officers
charged with misconduct must press aggressively for full implementation
of the Garrity and Gardner rules as well as a full implementation of all
the due process implications of Loudermill. Second, national legislation
guaranteeing these rights along the line of Congressman Jim Moran's
(D-VA) Law Enforcement Responsibility Act must be enacted.
Toward each
of these ends it is important that the International Union of Police
Associations collects as much information as possible concerning
individual violations of rights. Police unions and associations must
take an active part in this study.
Professor
Warnken's "The Law Enforcement Officers' Privilege Against
Self-Incrimination" collects and comments on those cases. Routine
internal affairs and procedures which involve the use of a simple form
"waiving" rights through a commitment not to prosecute; the
use of mandatory polygraphs followed by discipline based on
untruthfulness or non-cooperation completely disconnected from the
originally charged misconduct; discharges and major suspensions based on
nothing more than statements given officers under threat of termination,
no corroboration, no additional or independent evidence; and refusal of
requests for counsel or non-attorney representation, the presence of a
witness during interrogation, extended interrogation - all of these are
common.