This is very basic, black letter law, but I feel compelled to address it in the face of completely wrong information at another website.
Charlie Grabski has stated on the PINAC blog that “A citizen may be a police officer. But a police officer is not a citizen. The citizen has those rights. The officer does not.” Charles J. Grabski, PINAC comment (emphasis added). Fortunately, Grabski is completely wrong.
The Supreme Court has been very clear on this, and it is nowhere close to what Grabski says.
“We conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.” Garrity v. State of N.J., 385 U.S. 493, 500, 87 S. Ct. 616, 620, 17 L. Ed. 2d 562 (1967) (emphasis added).
In other words, although Grabski may wish it were so, police officers have the same constitutional rights as everyone else.
Other cases stating the same thing include, but are not limited to:
- Hughes v. Whitmer, 714 F.2d 1407, 1435 (8th Cir. 1983) (“As the Supreme Court has so forcefully stated: ‘policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights. . . .'”) (internal citation omitted).
- Greenwald v. Frank, 337 N.Y.S.2d 225, 231 (App. Div. 1972) (“That statement, like the Holmes dictum . . . that ‘petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman’, has been relegated to the dust heap of history. In the court said, ‘We conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.'”)(internal citations omitted).
- Driebel v. City of Milwaukee, 298 F.3d 622 (7th Cir. 2002) (“We begin our analysis by stating the well-settled rule that men and women do not surrender their freedoms when joining the police force.”) (internal citations omitted)
Look, I understand that Grabski has a bias against police, he’s had some bad encounters with them. However, putting out information that police officers are second class citizens is just wrong.
ExCop-Lawyer 
Aug 22, 2014 @ 20:20:00
There is no reason to put PhD after Charlie Grapski’s name, he has not earned a PhD but has merely claimed for nearly a decade that one is pending.
You are, of course, wasting your time on PINAC. They aren’t particularly interested in facts getting in the way of a good lynching.
Aug 22, 2014 @ 20:44:16
Oh really? I was under the impression that he had earned his PhD.
I’ll take it out.
Thanks.
Aug 23, 2014 @ 06:27:58
ECLS
Going more to the requirement to file a report, it seems clear that the court has decided that officers do have to file or risk termination. The court has also ruled that LEO’s may seek council prior to filing the report and the request could not be used as grounds for termination. It also seems that if you file a false report it can be used against you for prosecution or termination.
Don’t know what you and Chucks argument is about but am interested in knowing about your view on requirements to file something even if the LEO says yep I was there.
Aug 23, 2014 @ 14:24:52
I’m not going to deal with PINAC or Charles anymore. He is a convicted felon with a history of DWIs, Resisting, and Battery on LEO charges going back to the 1980s. He is also very litigious, with numerous lawsuits, including one over a student body election.
The result of all of this, in my opinion, is that he has a bone to pick with anyone involved in law enforcement, past, present, or future, and I do not think that he is a good addition to PINAC. The fact that he would publicly state that police officers do not have constitutional rights is appalling. I had really thought that we were past the day where someone would actively advocate for denying someone their civil rights, but there is it, in black and white.
I also let the asshole bait me, where I did not do as thorough a review as I should have on a cite. Since then, he has focused on that one issue and ignored the major issue involved, that of a police officer having the same constitutional rights as everyone else.
He’s a partner at PINAC, so it is in a sense his blog, but I don’t have to deal with assholes, so I won’t.
I have more important things to do, like prepare an article for publication, work on school work, and on the other things in life. I wish Carlos the best and really admire him, but will not be at PINAC in the foreseeable future.
Aug 23, 2014 @ 19:19:48
Ok. Sorry you feel that way about pinac.
I enjoyed your comments there,they and my direct interaction with you made me think. Not really asking you about Charles but about the requirement to submit basic paperwork by an officer and not be considered coercion. Your above post, nor your comments at Pinac really address that I believe. In truth I didn’t scan everyone there, Charles went on a vendetta and it became tedious.
Aug 23, 2014 @ 19:50:06
When an officer is told that you have to turn in this report under penalty of losing your job, it is coercion and not admissible in a criminal prosecution.
Sep 09, 2014 @ 11:01:25
Shame you no longer comment on PINAC. You were one of the voices of sanity and reason there in the comments section.
Sep 10, 2014 @ 12:44:19
I agree, It’s really a shame to see you go. When reading the comments section it was always ex-cops comments I found myself looking for.
At least I found this blog.
Aug 23, 2014 @ 10:56:59
~~~Actually an officer involved in a shooting will almost never complete an incident report. It violates his Fifth Amendment rights against self-incrimination.~~~ your comment over at PINC
Help me out with a hypothetical. Let’s say a solo officer runs into a guy staggering down the street at way past O-dark-thirty. No witness’s anywhere. No dash cam, recording device, etc on the officer. Officer calls dispatch lets them know he is going to exit his vehicle and have a chat with a guy staggering down the street.
Then for whatever reason shoots the guy but does not kill him.
Officer never files an incident report for whatever reason.
Do they arrest the guy who was shot for “being shot by a police office”? Or arrests him for __ ? __ based on __?__?
Or simpily don’t arrest him at all?
The guy recovers and insists the officer shot him because he called the officer a clown.
If there is no incident report from the officer but the guy he shoots files a police report and accuses the officer of shooting him because he called the officer a clown, what next?
Well, I learned something today. I just can’t get my head around your assertion that police involved in shootings rarely file an incident report when involved in a shooting. I would have never thought that in a million years.
I would be very interested to hear how that hypothetical (no incident report) would play out in practical terms with regards to charging and prosecuting whoever got shot.
Aug 23, 2014 @ 12:02:53
Typically another agency would complete a report in that case, for example the county sheriff, state police, etc. There is always another agency.
The officer involved will normally be asked to give a statement, one for the criminal investigation and another for the department’s internal investigation.
Aug 23, 2014 @ 13:45:20
Makes sense.
Carrying it a bit further…if you are in the mood to educate me a bit more.
(I assume the if the officer does not file an incident report but only gives a statement for the IA investigation and or the criminal investigation, that he has the counsel of an attorney to safe guard his rights, advise him etc… Correct?)
So let’s assume in the hypothetical (the officer with the advice of his attorney decides it is not in his best interest to file an incident report and it is also not in his best interest to give a statement to either IA or to the investigators looking into the charging the guy who was staggering down the street.
And let’s say that “reason” (only the officer and his attorney knows the entire story)… is that the guy that got shot was actually drunk as a skunk and also had a toy gun stuffed into his jeans underneath a t-shirt. The same toy gun that he was going to give to his son for his birthday but couldn’t because when he showed up to give his son the birthday present at his ex-wife’s she told him to take a hike because he was drunk as a skunk.
So the officer rightfully approaches the staggering guy who he can smell from 20 feet away is drunk and also hear it in his speech but when he gets in close day ten feet to continue the conversation they have been having since exiting his squad car he notices the very realistic grip of the toy gun stuck down the guys pants which the drunk guy has long forgot was even there. The officer rightfully draws his weapon and tells the drunk guy to freeze and put his hands up. Naturally the officer wants to not get shot first, secure the drunk guy and his weapon second, and then arrest him for public intoxication, scaring the shit out of him and being a complete dumbass.
But as misfortune would have it when the guy raised his hands and did exactly as instructed of him by the officer while saying “yes sir no problem officer” at the exact moment “no problem officer” was coming out of his mouth a street light went out directly overhead and the instinct, panic,stay alive, take no chances reflex kicked in and the officer despite all his training shots they guy on accident.
So, the officer is of such moral character that he can not tell a lie, is relived that the paramedics said the guy will probably survive, but in the meantime is not of such moral character the the figures he should go to jail on account of this unfortunate situation. Could be lots of jail even manslaughter if the guy dies or whatever the crime is for accidentally shooting someone.
So anyway, after handcuffing the guy back up arrives. I have no idea what goes on at a shooting crime scene but blah blah they go about securing the scene and whatever else. Somewhere in their the ranking officer shows up and accesses the situation. Asks the officer who shot the drunk guy what happened and the officer responds “I saw his gun” ranking officer says, “say no more we can talk more about it in the morning in a more appropriate setting, I will have Charlie take you home”.
So anyway next day comes officer who shot drunk guy accidentally has talked to his wife that night and they agree he can not tell a lie but also agree that he is not going to voluntarily do time for this accident if he can legally avoid it.
The officer consults his attorney before speaking to anyone at the station. Attorney says you have two options tell an incomplete story or don’t say anything and under no circumstances are you filling out an incident report. (I have no idea what would be prudent advice from his attorney but those two options seem reasonable to me if I were his attorney)
So, my Q is what happens next in this hypothetical after IA and the investigative officers find out from the officer’s attorney that his only statement will be what he told the ranking officer at the scene and he will not be filling out an incident report.
Aug 23, 2014 @ 14:26:37
John, I’ll try to come back and do an article on it, but I’ve got to get my reading done for Monday and it seems like each class has more and more … sigh …
Aug 23, 2014 @ 14:42:02
No worries. I look forward to it if you do decide to write about this further in the future. Should prove to be an informative post considering your previous profession and new endeavors.
I assume you are in your mid forties at least.
No one ever said studying got any easier the older you got.
Suck it up!
P.S. Cheers, don’t be late to class on Monday now.
Aug 23, 2014 @ 21:04:54
ECLS
I know your busy.
In case there is some confusion, I never specified which report. My point is officers turn in sworn reports all the time, false or in accuracy could result in prosecution and certainly termination. So why has the court differentiated” this” report as coercion and not the others or has the court said all reports submitted by the officer are strictly voluntary and can not be required as a condition of employment? To be clear, I know your original comment was about an “incident report” . It just doesn’t seem logical that they would protect only that type of report or for that matter in official document needed to conduct police business i.e. booking doc, affidavit , , , ,witness statements, evidence log. Feel free to just name the cases and I will, track it down. Already read falco, Watson, garrity and a few others but maybe I’m missing something. Like I said, I don’t mind thinking even if it challenges my world view or desire of how the world should be.
Aug 23, 2014 @ 23:37:09
Grapski is focusing on one report, defined in Missouri as an “Incident” report.
Not all departments use the same terminology. My department used “Incident Reports” for non-criminal, non-traffic matters. Dallas PD used to call them an MIR, for Misc. Incident Report.
Some agencies call it something else.
Courts differentiate stuff all the time, so it is not unusual.
Aug 24, 2014 @ 07:45:31
From my reading the name of the report is immaterial to My question whether it is” routine” or” direct ordered and part of a investigation whether administrative or criminal seems to be the deciding factor WRT garrity.
So let me break it down
1 Arrest, evidence booking etc reports are routine. They do not have Garrity protection yes or no?
I think Garrity has been further narrowed than how you have presented it, you’ve been focusing solely on” incident report”but I need to finish my research or you will eat me alive with more recent cases.
Aug 25, 2014 @ 07:59:48
It’s a shame you will no longer be posting on PINAC, I always enjoyed your commentary there. Those who think that police are always in the wrong are just as incorrect and useless to effect real change as those who think police are always in the right.
I’ve always been been fond of Garrity, but because of the opposite reason that you stated, it is one of the few examples of a right a police officer has that an average citizen does not. I think it’s important to differentiate between the rights of a citizen and the powers of the government and it’s agents. Garrity is a corner case that balances the 5th amendment rights of LEO with the public’s interest in having a legitimate, corruption free police department.
I realize this is a departure from the American legal tradition, which seems to use the word right very loosely, but I think instituting this as a new norm would help advance individual rights over government authority.
Aug 25, 2014 @ 08:27:05
I don’t have a problem with Garrity, or no incident report.
I do have a problem with police not arresting fellow policemen in putative self-defense situations where a regcit would have been arrested. It is the threat of arrest that often gets regcit suspects to talk (early and comprehensively), and the threat of arrest should be wielded the same way against policeman.
In a self defense situation where a witness said that a regcit shot a man after his hands were up and he was on his knees, and the regcit responded with an invocation of the 5A and 6A, then that regcit would be in jail, at least until his bail hearing (even if it turned out the shooting was valid self-defense).
I don’t know all the facts about who said what to whom in the immediate aftermath of the Michael Brown slaying, but, I imagine if I did, then it would be clear that Darren Wilson should have taken the ride the day of the shooting.
Garrity is a big red herring that everyone is waving around, sadly.
Aug 25, 2014 @ 09:36:52
Garrity is whatever the Police union representative says it is
http://freedominourtime.blogspot.com/2014/08/why-good-cops-stay-silent-persecution.html
“Usually, a police officer involved in a use-of-force incident invokes his “Garrity” privileges, which means that he cannot be criminally or civilly prosecuted for statements made during the official investigation. This time was different, according to Basford. “Our union representative, Officer Ira Cavin, told me that Garrity didn’t apply in this situation, because I had supposedly committed a criminal act,”
Aug 25, 2014 @ 10:15:53
That is completely wrong – Garrity is an outgrowth of the 5th amendment right to avoid self incrimination. If the behavior in question wasn’t potentially a crime, it wouldn’t apply.
Misapplication of the law is not restricted to Garrity.
There are some examples of when Garrity would or would not apply here:
http://www.garrityrights.org/basics.html
Aug 25, 2014 @ 11:01:41
Are both wrong?
A) Garrity” privileges, which means that he cannot be criminally or civilly prosecuted for statements made during the official investigation.
B) “Our union representative, Officer Ira Cavin, told me that Garrity didn’t apply in this situation, because I had supposedly committed a criminal act,”
Aug 25, 2014 @ 11:28:47
If an officer is compelled to make a statement (under threat of losing his job) by his superiors, he is granted immunity for those statements. They can be used against him by his superiors, but can not be used against him in a criminal court. I’m not certain if this has any impact on a civil suit.
Official investigation is a bit of a misnomer. It’s quite possible to have two investigations when an officer is suspected of misconduct. One would be an internal investigation, where the officer could be ordered to make a statement. That statement could be used by the police department when deciding to punish the officer by suspicion, firing, etc. How separate these two investigations need to be could likely be different in different jurisdictions due to circuit splits and/or local customers and procedures.
If the powers that be wanted to charge the officer criminally, there would have to be a parallel investigation, where the Garrity statements could not be used.
A witness who is not LEO can also be compelled to make a statement if they are granted immunity from prosecution from any crimes they admit during their compelled statement. Refusing to comply may result in contempt of court. Aaron Swartz’s girlfriend was compelled to testify in this manner.
Disclaimer: IANAL, this does not constitute legal advice, your results may vary.
Aug 28, 2014 @ 08:30:17
Garrity doesn’t apply to civil actions.
You do not have the right to not testify against yourself in a civil action, unless your testimony would involve something that could implicate you in a criminal act.
Garrity is not something that applies routinely to anything a police officer says or does as he performs his duties. It is something that must be invoked, exactly as your 5th amendment rights are invoked. It is effectively an invocation of a police officer’s 5th amendment rights.
Police officers have all the same rights as any person in the United States. They do not give up their 5th Amendment rights when they become a police officer.
Garrity recognizes that a police officer who invokes his 5th amendment rights cannot be coerced by the government to give up that right. If you say you don’t want to speak with the police without consulting an attorney they can’t threaten to beat you with a stick unless you talk. Likewise they can’t threaten a police officer with loss of his job if he doesn’t talk. In both cases coercion requires that the statements made under coercion be treated as tainted for the purpose of prosecution.
In any use of force incident a police officer is at risk of prosecution and would likely invoke Garrity.
If a police officer clearly recognized that he had done something illegal it is likely that he would simply invoke his 5th amendment right to remain silent and either resign from the force or take his chances that the resultant administrative action resulting from his refusal to make a statement wouldn’t result in termination. There is little advantage to going ahead and making an incriminating statement even if the statement is protected from being used in your prosecution as you will likely be fired just the same.
Aug 25, 2014 @ 19:07:26
Guys, I am enjoying the conversation, please keep it going. As soon as I get a moment of free time, I’ll try to address most of your comments and questions in a new post.
Sep 08, 2014 @ 19:46:28
Interesting concurrence regarding whether there are meaning limits on “shooting to stop the threat”:
http://scholar.google.com/scholar_case?case=7879354487077076507&q=%22fourth+amendment%22+%22qualified+immunity%22&hl=en&scisbd=2&as_sdt=6,33
Sep 07, 2014 @ 08:04:08
Guy who was detained by Round Rock Texas police for filming police station is now harassed by Cedar Park police while filming a traffic stop. Your thoughts?