Opposition Brief — Gniotek v. City of Philadelphia

| Supreme Court, U.S,

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No. 86-1563 a

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CLERK

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In the Supreme Cout

of the Ganited States

OCTOBER TERM, 1986

LOUIS GNIOTEK, CARMEN CHRISTY, LEONARD

GARRIS, DAVID SOFRONSKI, AUGUSTINE PESCATORE,

and FRATERNAL ORDER OF POLICE, LODGE NO. 5,

Petitioners

v.

CITY OF PHILADELPHIA, W. WILSON GOODE, LEO

; BROOKS, GREGORE J. SAMBOR, ANDREAS

HANTWERKER, JOHN STRAUB and BARBARA MATHER,

Respondents

Petition For Writ Of Certiorari To The

United States Court Of Appeals For The Third Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

SUSAN SHINKMAN

Divisional Deputy City Solicitor

City of Philadelphia Law Department

Counsel for Respondents

1530 Municipal Services Building

Philadelphia, PA 19102-1692

(215) 686-5268

JESSE MILAN, JR.

Chief Assistant City Solicitor

RALPH J. TETI

Chief Deputy City Solicitor

HANDSEL B. MINYARD

City Solicitor

(SEA 6 AO NCCE AON AINE GENRE EN A ARN TE ET IE ee CA EI STIS ET RI TIE SA EAE RMT SEE ES STS

SMITH-EDWARDS-DUNLAP COMPANY, 2867 E. ALLEGHENY AVENUE, PHILADELPHIA, PA 19134 (215) 425-8800

TABLE OF CONTENTS

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STAs memes: Gr B8ee CAGE... 6... ic cece eee

SUMMARY OF ARGUMENT ..............:........

a iy Oink 6555 odes wna kdes nis

I.

II.

ITT.

Petitioners Never Raised On Appeal The Ques-

tion Cf Whether The City Failed To Follow

“Standard Procedure” For Confronting And In-

vestigating Officers Accused Of Criminal Mis-

re tens wap eww eS ree eek.

Petitioners Never Raised On Appeal Their The-

ory That The Loudermill Pre-Deprivation Op-

portunity To Respond To The Accusations

Against Them Was In Reality A “Custodial In-

terrogation” Which In And Of Itself Could Net

Satisfy The Loudermill Due Process Require-

as a 3 5 oe he ae a OR xed iss

No Conflict Exists Among The Circuits Regard-

ing The Third Circuit's Interpretation Of Loud-

ermill And Public Employees’ Rights Under The

Pe 5 ok ss eg ee ea

The Facts Of This Matter Are Far Too Narrow To

Warrant Interpretation By This Court ........

The Third Circuit Did Not Create An Unlawful

Distinction Between This Court’s Decisions In

Garrity v. New Jersey, United States v. Rylander,

Ee |

CE eran es eee anus cate eae K Ovtaden

10

TABLE OF CITATIONS

CASES Page

Ashwander v. Tennessee Valley Authority, 297 U.S. 288,

60 L.Ed. GB6 (1O36)...... ... 354555555 eee 9

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105

. S.Ct. 1487, 84 L.Ed.2d 494 (1985)....... 7, 8, passim

Cort v. Ash, 422 U.S. 66, 45 L.Ed.2d 26 (1975) ..... 7, 8,9

Gardner v. Broderick, 392 U.S. 273, 20 L.Ed.2d 1082

(ROG) sc a eee 12, 13, passim

Garrity v. New Jersey, 385 U.S. 493, 17 L.Ed.2d 562

Ci) Fee eee eer ee 11, 12, passim

Hester v. City of Milledgeville, 777 F.2d 1492 (11th Cir.,

|<) Sper yee er 15

International Union v. Scofield, 382 U.S. 205, 15 L.Ed.2d

S72 (IONS) ica cds ck ee eee i)

Lefkowitz v. Turley, 414 U.S. 70, 38 L.Ed.2d 274

(WBTD) «ooo bp eines eee 13,15

Miree v. DeKalb County, 433 U.S. 25, 53 L.Ed.2d 557

CIGTT) os ccc ces sad oes ee eee 7

Neely v. Eby Construction Co., 386 U.§. 317, 18 L.Ed.2d

TE UCIBSD) occ icon siderite eee 7, 8,9

Rice v. Sioux City Cemetery, 349 U.S. 70, 99 L.Ed. 897

(10GB) . ow oc ccd cedkee eee 9,10

S.S. Montrosa v. Carbon Black Export, Inc., 359 U.S. 180,

31.5436 723 ORS) i. eee 10

Stellos Co. v. Hosiery Motor-Mend Corp., 295 U.S. 237, 79

Léa. 141411) : 2s ee )

Uniformed Sanitation Men Assoc. v. Commissioner, 392

U.S. 280, 20 L.Ed.2d 1089 (1968) ............. 12, 16

United States v. Lovasco, 431 U.S. 783, 52 L.Ed.2d 752

CWOTT) os cic cena n dors eee 7

United States v. Rylander, 460 U.S. 752, 75 L.Ed.2d 521

4. | rr rr ris: 11, 14, passim

li

fre

TABLE OF CITATIONS—(Continued)

CASES Page

Williams v. Florida, 399 U.S. 78, 26 L.Ed.2d 446

RS at eS ya, Sees ewww v0 11, 14, passim

STATUTES

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ees av ekki 6d 4s Node am sews 5

dacs knee twa cece setaeeacues 5

UNITED STATES CONSTITUTION

clack awe cue xd p0cees 4, 5, passim

lace nedewesbnevecn 5

ill

In the Supreme Court

of the Guited States

OCTOBER TERM, 1986

LOUIS GNIOTEK, CARMEN CHRISTY, LEONARD

GARRIS, DAVID SOFRONSKI, AUGUSTINE PESCATORE,

and FRATERNAL ORDER OF POLICE, LODGE NO. 5,

Petitioners

v.

CITY OF PHILADELPHIA, W. WILSON GOODE, LEO

BROOKS, GREGORE J. SAMBOR, ANDREAS

HANTWERKER, JOHN STRAUB and BARBARA MATHER,

Respondents

Petition For Writ Of Certiorari To The

United States Court Of Appeals For The Third Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

In 1984, some fifteen police officers in the City of Phila-

delphia Police Department (hereinafter, the “City” or the “De-

partment”) were indicted on federal charges of bribery and

corruption under the R.I.C.O. Act in connection with the

performance of their police duties. The crirninal trials for

those officers were bifurcated into two proceedings, U.S. v.

Martin and U.S. v. Volkmar, Cr. No. 84-106 (E.D. Pa.). During

‘the lengthy hearings in those matters, Petitioners Gniotek, et

al. (hereinafter, “Petitioners” or “Gniotek, et al.”) were identi-

fied by fellow officers, or others appearing under oath as

witnesses for the prosecution, as also the recipients of un-

lawful bribes. Those witnesses testified that each Petitioner

had received bribes from them or other known vice operators

in Philadelphia for several years. The witnesses further testi-

fied that Petitioners had accepted this money in return for

their promise not to enforce various vice laws of the Common-

wealth of Pennsylvania. Though these witnesses appeared

under a grant of immunity from the United States Attorney's

Office, that immunity did not protect them against prosecu-

tion for perjury. At the trial, their testimony was credited by

the jury which convicted all of the police defendants in that

matter.

During the Martin proceedings, prosecution witness Eu-

gene Boris, a former police officer, testified that while as-

signed to the Fifth Police District, Petitioner Louis Gniotek

regularly accepted money from him to protect illegal numbers

writers from arrest. Petitioners Garris, Christy and Pescatore

were similarly identified as the regular recipients of bribes

from Albert Ricci, a defendant in that case, who pleaded

guilty to the charges against him. Former Police Lieutenant

Joseph Alvaro corroborated those allegations against Garris,

Christy and Pescatore by testifying that he knew each to have

been the recipient of payments from vice figures while he

worked with them in the Philadelphia Northwest Police Divi-

sion Vice Squad. Petitioner Sofronski was identified by Robert

Sadowl, an admitted vice figure. Sadowl testified that he made

payments directly to Sofronski to permit the operation of

illegal poker machines within Sofronski’s assigned district.

The proceedings in the Martin trial were monitored daily

by officers from the Police Department. When testimony was

offered stating that a current police officer had engaged in

corrupt conduct, his name and the facts regarding his activi-

ties were transcribed and brought to the immediate attention

of the Police Commissioner by those officers assigned to the

courtroom.

The Commissioner considered the testimony of the afore-

mentioned witnesses very reliable because it was offered un-

der oath, in open court, by witnesses on behalf of the federal

government. He further believed the United States Attorney's

Office acted in good faith in presenting testimony about of-

ficers who were not indicted as part of the government's case,

that the testimony was truthful and, most importantly, that it

was accepted as truthful by the court.

Following the Commissioner's review of the testimony,

each Petitioner was instructed to report with his Command-

ing Officer to Inspector Andreas Hantwerker, Chief of the

Department's Ethics and Accountability Division (E.A.D.).!

Each reported individually with his attorney at a designated

time. At their E.A.D. interview, each was immediately notified

by Inspector Hantwerker and Deputy City Solicitor John P.

Straub? that he had been identified in federal court testimony

as the recipient of illegal bribes in connection with the perfor-

mance of his duties. They were further advised that as a result

of that testimony they were now the subjects of a criminal

investigation. Each Petitioner was immediately given his Mi-

randa warnings by Inspector Hantwerker. Next, each was

asked whether he desired to give a statement concerning the

departmental and criminal charges pending against him. In

response to that question, Petitioners chose to remain silent

on advice of counsel. Each Petitioner then signed a statement

confirming his understanding of the Miranda warnings and

his corresponding decision to remain silent. After signing

their statements, Petitioners received a written Notice of Sus-

pension with Intent to Dismiss for the conduct described

above. Petitioners were then placed immediately on suspen-

sion. (Petitioners’ Appendix B at 15a).

1. The Ethics and Accountability Division acts as the Department's

own check on the ethics of all officers’ activities and on the general pro-

priety of police conduct. It is charged with the receipt of complaints regard-

ing officers and the investigation of improper conduct. It is not related to the

Philadelphia District Attorney or any other prosecutorial agency.

2. The Philadelphia City Solicitor’s Office is not a prosecutorial agency.

Rather, it represents the City in civil matters, and provides legal advice to

the City’s departments and agencies, including the Police Department.

Philadelphia Home Rule Charter §§4-400, 8-410.

Several days later, Petitioners each received a Notice of

Intent to Dismiss which outlined again the facts relating to

the trial court testimony and specified the various depart-

mental directives and policies which they violated. The

Notices included a statement advising the recipient of his

right under the Philadelphia Civil Service Regulations to no-

tify the Police Commissioner in writing within ten (TO) days

of receipt of the Notice of any reason which in his belief

indicated that his intended dismissal was unjustified. No

such letter was received by the Commissioner or the depart-

ment’s personnel director from any of the Petitioners within

that ten day period. Consequently, Petitioners were dismissed

from the Department for the reasons set forth in the Notice of

Intent to Dismiss.

In depositions taken during discovery, each Petitioner

testified that he believed the exclusive reasons for his dis-

missal to be the reasons enumerated in the Notices of Intent

to Dismiss and Notices of Dismissal relating to violation of

department policies. Petitioners further admitted that they

did not believe that their dismissals were in any way related to

Miranda warnings or their invocation of their Fifth Amend-

ment rights. (Petitioners’ Appendix B at 23a).

Through their collective bargaining representative, the

Fraternal Order of Police (hereinafter, the “FOP”), Petitioners

initiated separate grievances challenging their dismissals

from the Department. The grievances were filed pursuant to

the FOP Collective Bargaining Agreement with the City. Un-

der that Agreement, Petitioners had the right to request a

first-level hearing before the Police Commissioner himself. Aili

Petitioners waived that right in favor of submitting their griev-

ances to binding arbitration with the American Arbitration

Association, an option also available under the FOP Agree-

ment. Hearings for all the individual grievants were consoli-

dated before Arbitrator Eli Rock.

At the arbitration proceeding, the City produced former

Officer Albert Ricci, who testified that he had passed bribe

monies from various vice figures to Petitioners Garris,

Christy and Pescatore. (Petitioners’ Appendix C at 62a). The

City also produced the testimony of former Vice Lieutenant

Joseph Alvaro, who corroborated Ricci’s testimony. Id.

On November 25, 1986, Arbitrator Rock issued an Opin-

ion and Award sustaining the dismissal of Petitioners Garris,

Christy and Pescatore, tabling the grievances of Officers

Gioffre, Sullivan, Schwartz and Stansfield* and ordering the

conditional reinstatement of petitioners Sofronski and

Gniotek. The FOP subsequently appealed the portion of the

Arbitrator’s Award denying the grievances of Garris, Christy

and Pescatore to the Philadelphia Court of Common Pleas.

Similarly, the City appealed that portion of the Award requir-

ing the conditional reinstatement of Sofronski and Gniotek to

Common Pleas Court. Those appeals are currently pending.

In April 1985, Petitioners filed the instant action in the

United States District Court for the Eastern District of Penn-

sylvania pursuant to 42 U.S.C. §§1983, 1985, 2201, the Fifth

and Fourteenth Amendments, and various sections of the

Commonwealth of Pennsylvania Gonstitution. In their Com-

plaint, Petitioners alleged that the City of Philadelphia and

several City officials violated their rights to due process of law

regarding their dismissals from their positions with the Phila-

delphia Police Department and denial of pensions benefits.

On May 13, 1985, the City filed a Motion to Dismiss or in the

Alternative for Summary Judgment on nine different

grounds. A Cross-Motion for Summary Judgment was then

filed by Petitioners, with an amicus curiae appearance by the

American Civil Liberties Foundation (hereinafter, “ACLF”),

and a Reply Brief by the City. On March 6, 1986, Judge

Raymond J. Broderick granted the City’s Motion by:

1) dismissing Petitioners’ §1985 claim,

2) dismissing Petitioners’ claim regarding pension

benefits,

3. Officers Gioffre, Sullivan, Schwartz and Stansfield were parties to

the instant litigation in the District Court, but not to the present appeal.

Prior to their appeal to the Third Circuit, Gioffre, Sullivan and Schwartz

were indicted and convicted of similar R.I.C.O. charges. (Petitioners’ Ap-

pendix B at 17a).

3) granting summary judgment against Petitioners’ pro-

cedural due process claims,

4) granting summary judgment against Petitioners’ Fifth

Amendment claim,

5) granting summary judgment against Petitioners’ State

law claim that they were not dismissed from their jobs for

“just cause.”

(Petitioners’ Appendix B).

After entry of the District Court's decision, Petitioners

perfected an appeal to the Third Circuit Court of Appeals

raising only the procedural due process and the Fifth Amend-

ment issues. (Petitioners’ Appendix A at 4a).

After receipt of Briefs by Petitioners, the City, and the

ACLF as amicus curiae and oral argument, the Third Circuit

issued an Opinion on December 24, 1986 affirming the Dis-

trict Court's grant of the City’s Motion for Summary Judgment

and held that the City provided Gniotek, et al. with adequate

pre-deprivation due process.‘ (Petitioners’ Appendix A). Peti-

tioners now seek the instant Writ of Certiorari in the United

States Supreme Court.

SUMMARY OF ARGUMENT

The instant Petition for Writ of Certiorari should be de-

nied because Petitioners never raised before the Court of

Appeals their argument that the City did not follow its “stan-

dard procedure” with regard to them. Further, Petitioners

never raised on appeal their argument that the pre-depriva-

tion opportunity to respond afforded them was a “custodial

interrogation” which did not satisfy the due process require-

ment of Cleveland Bd. of Educ. v. Loudermill. In addition, the

4. The District Court made no specific ruling in its Opinion regarding

Gniotek, et al’s pre-suspension due process rights vis-a-vis their termina-

tion due process. The Third Circuit specifically held that Gniotek, et al.

were entitled to notice and an opportunity to respond prior to suspension as

well as termination, but held that the procedure described herein was ade-

quate and constitutional for both the suspension and termination of

Petitioners.

instant Petiuon should be denied because no conflict among

the Circuit Courts exists regarding the Third Circuit's inter-

pretation of Loudermill, and the facts of this case are too

narrow to warrant a constitutional analysis by this Court.

Finally, the Petition should be denied because the Third Cir-

cuit did not misapply this Court’s prior holdings in United

States v. Rylander and Williams v. Florida.

ARGUMENT

I. Petitioners Never Raised On Appeal The Question Of

Whether The City Failed To Follow “Standard Proce-

dure” For Confronting And Investigating Officers Ac-

cused Of Criminal Misconduct.

The long established policy of this Court is to refuse to

hear or decide issues which petitioners have failed to raise

before in the Court of Appeals. Neely v. Eby Construction Co.,

386 U.S. 317, 330, 18 L.Ed.2d 75, 85 (1967). This practice

has been defined by the Court itself as “our normal policy of

not considering issues which have not been presented to the

Court of Appeals,” id., and has been applied many times over

to arguments and theories raised on appeal to the Supreme

Court but not in the courts below. Neely, supra; Cort v. Ash,

422 U.S. 66, 73, n.6, 45 L.Ed.2d 34, n.6 (1975). See Miree v.

DeKalb County, 433 U.S. 25, 34, 53 L.Ed.2d 557, 566 (1977);

United States v. Lovasco, 431 U.S. 783, 788, n.7, 52 L.Ed.2d

752, 758, n.7 (1977).

In their Petition for Certiorari, at pages 11-14, Petitioners

argue that the City’s Police Department failed to follow, with

regard to Petitioners, its “standard investigative procedures”

when officers are accused for disciplinary purposes of crimi-

nal misconduct. Such a theory includes far more than the

self-incrimination and Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), pro-

cedural due process issues described by the Third Circuit as

the only issues raised by Petitioners for review. (Petitioners’

Appendix A at 4a). Indeed, the Third Circuit's entire Opinion

is predicated upon those narrowly defined issues and no

other. Nowhere in their briefs to that Court or in oral argu-

ments did Petitioners attempt to focus the Court on the issue

of whether the District Court erred by not finding that the

City failed to apply “standard procedure” in investigating the

allegations of criminal misconduct proffered against them.

(Petitioners’ Appendix A). Had such an issue been raised, the

court below might have been required to make an equal

protection analysis; or at the very least, remand to the District

Court for additional findings of fact. However, in the absence

of Petitioners raising that issue, the Third Circuit could not

and did not determine the merits of that issue.

Therefore, because Petitioners have newly raised an is-

sue not presented by them for review before the Court of

Appeals, this Court should follow its normal practice of reject-

ing Petitioners’ request that this matter be reviewed by this

Court. See Neely, supra; Cort v. Ash, supra.

II. Petitioners Never Raised On Appeal Their Theory

That The Loudermill Pre-Deprivation Opportunity

To Respond To The Accusations Against Them Was

In Reality A “Custodial Interrogaticn” Which In

And Of Itself Could Not Satisfy The Loudermill Due

Process Requirements.

In their Petition for Writ of Certiorari, Petitioners ex-

pound at great lengths their theory that the E.A.D. interview

with the Police Inspector was in reality a criminal “custodial

interrogation” which, arguendo, could not be a meaningful

administrative pre-deprivation opportunity to respond under

Loudermill. This theory, however, goes beyond any of the

arguments preserved by Petitioners before the Court of Ap-

peals. (Petitioners’ Appendix A).

In its Opinion, the Third Circuit took note of the only two

issues pressed by Petitioners regarding the sufficiency of the

E.A.D. interview as a pre-deprivation opportunity to respond

under Loudermill. The Court summarized those issues as (1)

whether a meaningful opportunity to respond was afforded

Petitioners where their responses might have been used

against them because they were the subjects of a criminal

investigation, and (2) whether the City unconstitutionally

burdened their right against self-incrimination by forcing

them to choose between responding to the charges or losing

their job. (Petitioners’ Appendix A at 9a). Nowhere did the

Third Circuit indicate that it had been asked to review the

question now posed of whether the E.A.D. interview was in

reality a criminal “custodial interrogation” which by its very

nature could not be an administrative disciplinary pre-depri-

vation opportunity to respond.° As a result of Petitioners’

failure to raise this theory, the Third Circuit's Opinion ad-

dresses only the self-incrimination aspects of the E.A.D. inter-

view, and not the newer question raised in the instant Petition

that a “custodial interrogation” could not “serve as an employ-

ment termination hearing.” (Petition for Writ of Certiorari at

15).

Therefore, because Petitioners raise a new issue on ap-

peal which was not raised before the Court of Appeals, this

Court should reject that issue from the instant matter. Neely,

supra; Cort v. Ash, supra.

III. No Conflict Exists Among The Circuits Regarding

The Third Circuit’s Interpretation Of Loudermill

And Public Employees’ Rights Under The Fifth

Amendment.

Historically, the Supreme Court has obligated itself to

avoid deciding constitutional issues except where “avoidance

becomes evasion.” Rice v. Sioux City Cemetery, 349 U.S. 70,

74, 99 L.Ed. 897, 901 (1954). See Ashwander v. Tennessee

Valley Authority, 297 U.S. 288, 341, 80 L.Ed. 688, 707 (1936).

This Court has noted, however, that it will grant certiorari

where a particular case would allow it to resolve decisions

among the Courts of Appeals which are in conflict. Stellos Co.

v. Hosiery Motor-Mend Corp., 295 U.S. 237, 238-39, 79 L.Ed.

5. The ACLF in their brief before the Third Circuit did argue the above

theory. However, as amicus curiae, the ACLF was not a party to the pro-

ceedings or appeals below. International Union v. Scofield, 382 U.S. 205, 15

L.Ed.2d 272 (1965).

ica

10

1414, 1416 (1935); International Union v. Scofield, 382 U.S.

205, 15 L.Ed.2d 272 (1965).

In the instant Petition for Writ of Certiorari, Petitioners

have nowhere alleged that the decision of the Third Circuit is

in any way inconsistent with decisions among the other Cir-

cuits regarding procedural due process under Loudermill or

the right against self-incrimination in pre-deprivation hear-

ings. Quite the contrary, the Third Circuit’s decision is the

first among the Circuits concerning these issues since this

Court's decision in Loudermill in 1985. In the absence of such

conflict, this matter does not warrant the expenditure of this

Court's resources. Therefore, the instant Petition for Writ of

Certiorari should be denied. See S.S. Montrosa v. Carbon Black

Export, Inc., 359 U.S. 180, 3 L.Ed.2d 723 (1959).

IV. The Facts Of This Matter Are Far Too Narrow To

Warrant Interpretation By This Court.

This Court has cautioned that it should avoid deciding

federal questions which arise merely in an “episodic” context.

Rice v. Sioux City Cemetery, 349 U.S. at 74, 99 L.Ed. at 901.

The facts of this matter are clearly so singular as to have little

or no potential impact on other Circuits should this Court

render a full opinion. As set forth fully in both Petitioners’ and

the City’s Statements of the Case, this matter involves the >

unusual situation where police officers were named by live

witnesses in a court proceeding, to which they were not

parties, as the recipients of illegal bribes. More particularly,

this case concerns police officers charged in an administrative

context by their employer, a law enforcement agency, with

misconduct of a criminal nature. This unfortunate situation

was generated only by the unique nature of the Police Depart-

ment’s role as the employer of persons charged with high

ethical standards and enforcing the law.

This Court’s Opinion in Loudermill acts as a guide for all

government employers, including Police Departments, on the

necessity of providing pre-deprivation notice and an opportu-

nity to respond. The Third Circuit clearly evaluated the in-

stant E.A.D. interview under the guidelines of Loudermill and

1]

determined that the constitutional rights of Petitioners were

protected. An additional decision by this Court, addressing

solely the unique facts of this case would simply duplicate this

Court's efforts in articulating the due process rights of public

employees already stated in Loudermill and add little in the

way of insight for the Circuit and District Courts.

Therefore, because the factual situation in this matter is

s0 unique, this Court should avoid employing its judicial

resources in reviewing a matter of narrow scope and

significance.

V. The Third Circuit Did Not Create An Unlawful Dis-

tinction Between This Court’s Decisions In Garrity

v. New Jersey, United States v. Rylander, Or Williams

v. Florida.

Petitioners contend that the Third Circuit has created an

impermissible distinction in its Opinion between Garrity v.

New Jersey, 385 U.S. 493, 17 L.Ed.2d 562 (1967) and United

States v. Rylander, 460 U.S. 752, 75 L.Ed.2d 521 (1983) and

Williams v. Florida, 399 U.S. 78, 26 L.Ed.2d 446 (1970). This

theory, however, is not supported by the record from the

courts below or by a correct interpretation of the Third Cir-

cuit’s Opinion in this matter.

In Garrity, supra, police officers were accused of criminal

misconduct with regard to matters occurring in New Jersey

Municipal Courts. During the Attorney General's investiga-

tion, the officers were advised that they had the right to

remain silent, that anything they said could be used against

them, and that if they refused to answer questions they would

be subject to removal from office. Id. at 494, 17 L.Ed.2d at

564. The officers answered the questions, but with no specific

grant of immunity. Their statements were subsequently used

by the prosecution in the criminal trial against them. On

appeal, this Court considered only the question of whether

those statements were properly admissible as evidence

against them in that criminal proceeding. The Court held

that:

12

... the protection of the individual under the Fourteenth

Amendment against coerced statements prohibits use in

subsequent criminal proceedings of statements obtained

under threat of removal from office, and that it extends to

all, whether they are policemen or other members of our

body politic.

Id. at 500, 17 L.Ed.2d at 567.

The Garrity decision prohibited the use of coerced state-

ments as evidence against a public employee in a criminal

matter regarding his official duties. The Court, however, fo-

cused more directly on a public employer's right to know what

his employees have done in performing their duties in two

subsequent Opinions. Gardner v. Broderick, 392 U.S. 273, 20

L.Ed.2d 1082 (1968), analyzed the public employer's rights

vis-a-vis its employee's right against self-incrimination. In

that case, a New York City policeman was dismissed when he

refused to waive his privilege against self-incrimination upon

being summoned to appear before a Grand Jury investigating

police bribery and corruption. On appeal, this Court reviewed

the specific question of whether a State may discharge an

employee for refusing to waive his Fifth Amendment rights.

In its Opinion, this Court readily held that a coerced waiver of

immunity unlawfully infringed on the patrolman’s right

against self-incrimination. Id.

In a companion decision to Gardner, Uniformed Sanita-

tion Men Assoc. v. Commissioner, 392 U.S. 280, 20 L.Ed.2d

1089 (1968), this Court further described the unconstitu-

tionality of dismissing employees for refusing to waive their

right against self-incrimination. In that matter, public em-

ployees were similarly summoned to give testimony before a

Grand Jury. At that time, they were asked to sign waivers of

immunity, but refused to do so. On review, this Court stated

that the employees were dismissed, not merely for refusing to

answer questions regarding their conduct as public employ-

ees, but for refusing to waive their constitutional right against

self-incrimination. Id. at 283, 20 L.Ed.2d at 1092. Again, this

Court held that such a coercive waiver of immunity was

unconstitutional. Id. at 285, 20 L.Ed.2d at 1093.

13

In both Gardner, supra, and Uniformed Sanitation Men,

supra, this Court noted that an employee's refusal to answer

questions specifically related to charges of misconduct, with-

out a requirement that he waive his immunity against self-

incrimination, could alone be sufficient reason for discharge

from public employment. Specifically, in Gardner this Court

noted that:

If appellant, a police officer, had refused to answer ques-

tions specifically, directly, and narrowly relating to the

performance of his official duties, without being required

to waive his immunity with respect to the use of his

answers or the fruits thereof in a criminal prosecution of

himself, Garrity v. New Jersey, supra, the privilege

against self-incrimination would not have been a bar to

his dismissal.

(Emphasis added).

Id. at 287, 20 L.Ed.2d at 1086-87.

Again, in Uniformed Sanitation Men, this Court held that:

If [the State] had demanded that Petitioners answer

questions specifically, directly, and narrowly relating to

the performance of their official duties on pain of dis-

missal from public employment without requiring relin-

quishment of the benefit of the constitutional privilege

[against self-incrimination], and if they had refused to do

so, this case would be entirely different—|for] petitioners

being public employees subject themselves to disriissal if

they refuse to account for their performance of their

nublic trust ...

(Emphasis added).

Id. at 284-85, 20 L.Ed.2d at 1093. Accord, Lefkowitz v. Huriey,

414 US. 70, 38 L.Ed. 2d 274 (1973).

In its decision, the Third Circuit was fully cognizant of

the restrictions under Garrity and the impermissible request

under Gardner, that an employee waive his right against self-

incrimination. At footnote 7, the Court correctly noted that in

Gardner and Garrity, the public employers unlawfully trod on

14

their employees’ constitutional rights by dismissing them for

asserting that privilege. (Petitioners’ Appendix A at 10a).

However, such could not have been the case of Gniotek, et al.,

for Judge Broderick in his Opinion at the District Court found

as a matter of fact that:

... there is nothing in this record indicating that the

plaintiff officers were dismissed because they asserted

their fifth amendment privilege. Seven of the nine plain-

tiff officers have stated in depositions that they do not

believe that they were dismissed for asserting their fifth

amendment privilege.

(Petitioners’ Appendix B at 23a).

In addition, the Notices of Intent to Dismiss stated only

that the reasons for their dismissal related to the charges of

bribery and other illegal conduct. (Petitioners’ Appendix B at

47a-49a). Further, Judge Broderick noted that the Police Com-

missioner stated in deposition that Gniotek, et al. were termi-

nated only because of the evidence of bribery. Id.

With no evidence in the record to show that plaintiffs

were in fact discharged for asserting their Fifth Amendment

privilege, and with no evidence that they were coerced into

waiving that privilege, the Third Circuit correctly analyzed

this matter as one in which Petitioners were unwilling to

rebut the evidence offered at their E.A.D. interviews of their

receipt of bribes. (Petitioners’ Appendix A at 8a, 10a, n.7).

Though not arising in the context of employee relations

or disciplinary hearings under Loudermill, this Court’s Opin-

ions in Williams v. Florida, supra, and Rylander, supra, state

the important principle that the Fifth Amendment is not a

substitute for concrete evidence in one’s defense. In Rylander,

supra, this Court specifically held that where a defendant has

the burden of production with regard to his defense, a claim of

privilege under the Fifth Amendment “is not a substitute for

relevant evidence” to meet that burden. Id. at 761, 75 L.Ed.2d

at 530-31.

Similarly, in Williams v. Florida, supra, this Court held

that in the criminal context, a State law requiring that a

15

criminal defendant give notice to the prosecution of an alibi

defense is not unconstitutional under the Fifth Amendment.

This Court notably held that:

. a dilemma demanding a choice between complete

silence and presenting a defense has never been thought

an invasion of the privilege against compelled self-

incrimination.

Id. at 84, 26 L.Ed.2d at 451.

Both Williams v. Florida, supra, and Rylander, supra, are

consistent with the dicta of this Court in Gardner and Uni-

formed Sanitation Men that a public employer may dismiss an

employee who refuses to answer to charges against him re-

lated to the performance of their official duties. Gardner, 392

U.S. at 278, 20 L.Ed.2d at 1086-87; Uniformed Sanitation

Men, 392 U.S. 284-85, 20 L.Ed.2d at 1093. Accord, Lefkowitz,

414 US. at 84, 38 L.Ed.2d at 285-86. In the case of Gniotek,

et al., each chose to remain silent and offer no rebuttal in the

face of the heinous charges of bribery. With absolutely no

rebuttal from their own lips regarding those charges, the City

of Philadelphia had no choice but to discharge them from

their duties.®

Furthermore, even if Petitioners were incorrectly given

their Miranda rights in the context of their Loudermill oppor-

tunity to respond, their rights against self-incrimination were

not abridged, for this Court’s decisions in Garrity, and

Gardner, stand for the clear proposition that any statements

which they might have offered could not have been used

against them in later criminal proceedings. Thus, immunity

for statements which they might have offered to rebut the

charges for bribery existed whether or not the City actually

offered it. See Hester v. City of Milledgeville, 777 F.2d 1492

(11th Cir., 1985). Had Petitioners responded to save their jobs,

6. As discussed above, Petitioners assert that the E.A.D. interview was

not a Loudermill opportunity to respond, but a “custodial interrogation”.

However, as discussed supra, that issue was not raised before the Court of

Appeals.

16

those statements could not have been used against them in

any criminal proceeding. Garrity, supra.

Therefore, the Third Circuit did not carve an unlawful

distinction between the instant matter and Garrity and

Rylander, supra. Quite the contrary, the Third Circuit ana-

lyzed those decisions correctly by holding that Petitioners had

the absolute right to remain silent in the face of the in-

criminating evidence of bribery brought against them. Their

decision to remain silent resulted in them offering no evi-

dence which could be weighed in their favor in the face of

those serious charges of bribery. In that holding, the Third

Circuit consistently and accurately construed this Court's pre-

cedent regarding the right against self-incrimination, Garrity,

supra, the consequences of the failure to offer contrary evi-

dence, Williams v. Florida, United States v. Rylander, and the

authority of the public employer to terminate employees who

fail to respond to evidence of misconduct, Gardner, supra,

Uniformed Sanitation Men, supra. In view of the Third Cir-

cuit’s well reasoned interpretations of this Court's Opinions,

the instant Petition should be denied.

17

CONCLUSION

Therefore, because Petitioners have raised issues on ap-

peal which they did not raise before the appellate court below,

because they have proffered no evidence that the decision of

the Third Circuit is inconsistent with other Circuit Courts,

because the facts of this matter are too narrow to warrant

broad review by this Court, and because the Third Circuit did

not incorrectly apply this Court's prior decisions in Garrity,

Rylander and Williams v. Florida, Respondents respectfully

request the instant Petition for Writ for Certiorari be denied.

Respectfully submitted,

BY: whoo 4

~~ SUSAN SHINKMAN

Divisional Deputy City Solicitor

Counsel for Respondents

JESSE MILAN, JR.

Chief Assistant City Solicitor

RALPH J. TETI

Chief Deputy City Solicitor

HANDSEL B. MINYARD

City Solicitor