Jacob Kahn
On April 9, it was widely reported that the Lansing police officers whose actions precipitated the death of Anthony Hulon will not face charges for their actions. In fact, Michigan Attorney General Dana Nessel went as far as to say the officers, “did what they were supposed to do under the circumstances.”
According to The Lansing State Journal, Hulon died after being handcuffed and pinned to the ground in a cell, echoing the same desperate cry that has permeated American society – “I can’t breathe.” Only the people present in the cell at the time of Hulon’s in-custody death will know the truth of the circumstances surrounding the end of his life – in part due to two officers’ reliance on what have come to be known as “Garrity rights.”
Officers Warden and Wright, who were present for Hulon’s death, did not write or file reports on the matter. They are immunized from doing so under a body of law protecting public employees from self-incrimination. In fact, the memorandum released by AG Nessel’s office declining to file charges specifically stated that because Wright and Warden did not submit reports, there was “insufficient evidence” as to what transpired. In order to understand how public servants can bear witness to or participate in the death of a citizen, and remain silent without inviting termination or prosecution, one must look back to the 1967 U.S. Supreme Court decision of Garrity v. New Jersey.
In Garrity, the New Jersey attorney general opened an investigation into members of a local police department who were allegedly involved in the “fixing” of traffic tickets. During the course of the investigation, officers were told they must either answer questions and risk criminal proceedings, or face termination over their refusal to answer. The officers agreed to testify and were subsequently convicted, based in no small part upon their very own testimony. Following this, the Supreme Court held that employees’ statements, made under threat of termination, were forced from them in violation of the Fifth Amendment.
Ultimately, their convictions were overturned.
Since Garrity there have been a number of additional Supreme Court cases that clarified and bolstered the rights conferred on employees by the initial decision, but the main premise holds true – public employees cannot be terminated for their refusal to self-incriminate. The right against self-incrimination is of fundamental importance in this country, and it stands as a foundational principle of the criminal justice system.
Found in the Fifth Amendment, the right is spelled out as follows: “No person shall…be compelled in any criminal case to be a witness against himself.” Time and again the Supreme Court has opined on the value of this crucial protection applying to all Americans. As Justice Clark penned for the Court in the 1956 case of Slochower v. Board of Higher Education of City of New York, “The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.”
The value of one’s right to avoid self-incrimination is not in dispute. However, given current events and especially with regard to a number of brutal deaths involving police, it is certainly worth re-examining whether the right against self-incrimination ought to protect not only a public employee’s innocence under the law, but their career as well.
It is well-settled law that public employees shed certain constitutional protections when they sign their employment agreement. Take, for example, the First Amendment. Public employees are significantly, burdensomely restricted in what they may say or do if their behavior would reflect poorly on their employer. Many public employees, including police officers, must routinely choose between engaging in speech/activity that would ordinarily be protected under the First Amendment, or losing their gainful employment. In fact, the Supreme Court articulated in the 2006 matter of Garcetti v. Ceballos a clear test for determining whether an employee’s speech is unprotected. If the First Amendment is malleable in the context of public employment, why not the Fifth?
No reasonable person would advocate that public employees be stripped of their Fifth Amendment rights. Whether one is a sanitation worker, or President of the United States, the Fifth Amendment right to be free from self-incrimination stands sacrosanct. However, actions have consequences. Other consequences besides a criminal conviction and its attendant policies can and should apply to the improper conduct of public employees. To paraphrase Justice Oliver Wendell Holmes Jr., an employee may have a constitutional right, but he has no constitutional right to be employed.
As the ubiquitous nature of the media continues to make this country an ever-shrinking place, and as Americans are more routinely confronted by the deaths of their fellow citizens at the hands of state actors such as police, talk of reform needs to make it off the drawing board and into statute.
One way to break the “blue wall of silence” and disincentivize extreme police solidarity, which increasingly comes at the expense of people’s lives, is to strip public employees of their Garrity rights. Officers who engage in wrongful conduct should face strict penalties, but, absent justice, they should at minimum be terminated – not as a punitive measure, but as a prophylactic measure for public good. An officer who refuses to answer questions about their conduct, or conduct to which they bore witness while acting as a public servant, has ceased to serve the public. In fact, such an officer has transgressed to serving either their own interest, or that of their fellow officers, placing their needs well above those of the public. While doing so may not be a crime, it must certainly be a bar to public employment.
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Jacob Kahn attends Wayne State University Law School, where he is a student attorney through Wayne’s Disability Law Clinic and its Access to Bankruptcy Court program. He serves as editor of Wayne’s Journal of Business Law.
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