Amicus Curiae Brief — City of Hays v. Vogt, 138 S. Ct. 55 (2017) (No. 16-1495)

No. 16-1495

In The

Supreme Court of the Anited States

&

¥

CITY OF HAYS, KANSAS,

Petitioner,

V.

MATTHEW JACK DWIGHT VOGT,

Respondent.

,’

—

On Writ Of Certiorari To The

United States Court Of Appeals

For The Tenth Circuit

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BRIEF OF THE NATIONAL FRATERNAL

ORDER OF POLICE, AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

MATTHEW JACK DWIGHT VOGT

&

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Larry H. James

Counsel of Record

Robert C. Buchbinder

Crabbe, Brown & James LLP

500 S. Front Street

Suite 1200

Columbus, OH 43215

614-228-5511

Email: ljames@cbjlawyers.com

Email: rbuchbinder@cbjlawyers.com

Counsel for amicus curiae

National Fraternal Order of Police

“KLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELEGALBRIEFS. COM

i

QUESTION PRESENTED

Whether the Tenth Circuit Court of Appeals cor-

rectly held that the Fifth Amendment applies not only

to the prosecution's use of compelled statements at a

criminal trial, but also to the prosecution’s use of such

statements in pretrial proceedings, including probable

cause hearings.

il

TABLE OF CONTENTS

Page

I FI soi skvseneievcevenerqutiepacctnesconscasstesee i

Statement of Interest of Amicus Curiae.............. l

I Br IS scbsiencarencscscenesscnsscpocnnceussess 3

PTI, siti pigaticn itn tivcnpsahiencenesseguscessnqsessiosensess 3

I. Police Officers Deal with Garrity Issues

Every Day and Must be Afforded Adequate

Fifth Amendment Protection..................... 5

A. The present case is illustrative of the

daily challenges faced by police officers

in asserting their constitutional right

against self-incrimination................... 8

B. The Tenth Circuit correctly held that

the Fifth Amendment is violated when

incriminating statements are compelled

and used in a probable cause hearing.... 9

Il. The Proper Scope of Garrity and Fifth

Amendment Protection Extends to Pretrial

Proceedings, Not Just a Criminal Trial..... 10

A. There is substantial precedent

supporting pretrial protection under

TINIE cnbudnanchacachacesceeccdespacscenuisiorcetpsnies 10

B. The principles expounded in Kastigar

serve as a foundation to hold that the

right against self-incrimination, as

enumerated in the Fifth Amendment

and Garrity, attaches to pretrial

II varciecntisastisersercdcnnssesticteenaccese 19

ili

TABLE OF CONTENTS - Continued

Page

C. Applying the FOP’s position to present

iv

TABLE OF AUTHORITIES

Page

CASES

Brokers’ Choice of Am., Inc. v. NBC Universal, Inc.,

861 F.3d 1081 (10th Cir.2017).........ccccccccrcsrsscsessseees 24

Chavez v. Martinez,

Se IED ennicnccntcsnieasoussedsoonnsinsacsace 3, 20, 24

Gardner v. Broderick,

I cal desiutinhaclictinn 7

Garrity v. New Jersey,

EE HI IIIED vactasccascoscscctssocetesnsacsospeensons passim

Kastigar v. United States,

IE MINE PIED ccscidececsecsnsesasscnsvnesssbsbocsnsent passim

Malloy v. Hogan,

I te IT oo. tne nccnidaempenbibenbbitesatunsnaaiinnnagnind 9

Minnesota v. Murphy,

SITE ne a EE RD 13

Oladeinde v. City of Birmingham,

ee BO C8 ee Ge ei ccc ce cesccvccesevescccienvessees 4

Renda v. King,

ee ee ee Ce GD vc crececsevsucsccccccosesonensosvenccces 2

State of Ohio v. Jackson,

eee Be re CF SIO cc cccnesnnssvesnsncsssecsissnsentee 17

U.S. v. North (North D,

910 F.2d 843 (D.C. Cir. 1990) ...........cccccccsecsreeees 14, 15

U.S. v. North (North ID,

920 F.2d 940 (D.C. Cir. 1990) 0.0... eee 14, 15

U.S. v. Pantone,

ts wy 1) fe) | Re nenee 16, 27

v

TABLE OF AUTHORITIES — Continued

Page

Uniformed Sanitation Men Ass'n v.

Commr. of Sanitation,

Se I ido icedaciindeticushiicuntiensbedsansaiodiudin 7

United States v. McDaniel,

482 F.2d 305 (8th Cir. 1973)................... 2, 15, 21, 27

United States v. Vangates,

287 F.3d 1315 (11th Cir. 2002)..................00. passim

Vogt v. City of Hays,

844 F.3d 1235 (10th Cir. 2017)...................... 9, 17, 24

Wiley v. Mayor & City Council of Baltimore,

BF ee Fe ee Ee Be asec ncsecncecscccnssesessecsesessesess 17

CONSTITUTION AND STATUTES

ae IEE TINIE Cts soncinencdcaseueineenssenseecentoncksteenseuntiiensenss 14

Gy nit Cha scushinscenncniborenisicsethacnastdnestsinadibeesnectetl 12

Se a IEE sanocincnsscnsanusspisqnnssentonssepasniain 1,9

RIE EE MEIGS ‘sen.sancscinmmnntpiatinnsosaqensiesebeutsh passim

OTHER

J. Michael McGuinness, Fijth Amendment Pro-

tection for Public Employees: Garrity and

Limited Constitutional Protections from Use

of Employer Coerced Statements in Internal

Investigations and Practical Considerations,

24 Touro L. Rev. 695, 730 (2013) ...............000. 8, 20

1

STATEMENT OF INTEREST

OF AMICUS CURIAE'

The National Fraternal Order of Police (FOP) is

the world’s largest organization of sworn law enforce-

ment officers, with more than 325,000 members in

more than 2,100 lodges. The FOP is the voice of those

who dedicate their lives to protecting and serving our

communities, representing law enforcement personnel

at every level of crime prevention and investigation na-

tionwide.

The FOP’s perspective on the issue presented in

this case is both unique and significant for law enforce-

ment personnel around the country. Specifically, the

Court’s disposition on whether the Fifth Amendment

is violated when compelled statements are used at a

probable cause hearing, but not at a criminal trial, nec-

essarily implicates and resolves officers’ rights as enu-

merated in Garrity v. New Jersey, 385 U.S. 493 (1967).

In Garrity, this Court held that “the protection of

the individual under the Fourteenth Amendment

against coerced statements prohibits use in subsequent

criminal proceedings of statements obtained under

' In accordance with Rule 37.6, the FOP and undersigned

counsel make the following disclosure statements. The submis-

sion of this Brief was consented to by all parties hereto. The Office

of General Counsel to the National Fraternal Order of Police au-

thored this Brief in its entirety. There are no other entities which

made monetary contributions to the preparation or submission of

this Brief. In addition, Petitioner and Respondent have consented

in writing to the filing of this Brief and have notified the Clerk

that they consent to the filing of amicus briefs in support of either

or neither party.

2

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

whether they are policemen or other members of our

body politic.” Jd. at 500 (emphasis added). Courts

around the country have interpreted this differently.

Some courts limit “criminal proceedings” to criminal

trial. See, eg., Renda v. King, 347 F.3d 550, 552 (3d

Cir.2003) (noting “there is no claim that the plaintiff’s

answers were used against her at trial.”).

Other courts, by contrast, have interpreted “crim-

inal proceedings” to mean coerced statements pro-

tected by Garrity cannot be used in trial preparation,

interpreting evidence, or even planning trial strategy.

See, e.g., United States v. McDaniel, 482 F.2d 305, 311

(8th Cir. 1973) (requiring government to prove that it

did not use immunized testimony “in some significant

way short of introducing tainted evidence,” and that

“Is}uch use could conceivably include assistance in fo-

cusing the investigation, deciding to initiate prosecu-

tion, refusing to plea-bargain, interpreting evidence,

planning cross-examination, and otherwise generally

planning trial strategy”);

This split in circuit interpretation on the extent of

Garrity protection mirrors the circuit split on the scope

of Fifth Amendment protection against self-incrimina-

tion before this Court today. The Court’s decision on

this issue will generate a common answer for Garrity

rights, which the FOP deals with every day.

.’

¥

3

SUMMARY OF ARGUMENT

In essence, the issue certified by this Court is

whether the Fifth Amendment privilege against self-

incrimination and the related protections afforded by

Garrity v. New Jersey, 385 U.S. 493 (1967), work to pro-

hibit use of compelled statements in pretrial proceed-

ings or whether the prohibition vests only upon

commencement of a criminal trial.

In response to the question presented, the FOP re-

spectfully submits that an officer’s Garrity rights vest

at the time a statement is compelled under threat of

adverse employment action, and any such statement

cannot be used in any subsequent criminal investiga-

tions or proceedings including probable cause hear-

ings. To stop short of this position “strips the [Fifth

Amendment and Garrity rights] of an essential part of

|their] force and meaning.” Chavez v. Martinez, 538

U.S. 760, 793 (2003) (Kennedy, J., concurring in part

and dissenting in part). Indeed, as this Court recog-

nized fifty years ago, police officers “are not relegated

to a watered-down version of constitutional rights.”

Garrity, 385 U.S. at 500.

@

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ARGUMENT

The Fifth Amendment of the United States Con-

stitution provides that: “No person ... shall be com-

pelled in any criminal case to be a witness against

himself... .” U.S. Const., amend. V. On its face, the

right against self-incrimination seems clear and

4

straightforward. In application, however, the permissi-

ble use of compelled statements or testimony is far less

evident. This is particularly true when dealing with

public employees such as police officers.

Police officers in the United States serve in a

unique employment environment. Officers serve in the

line of duty with each other — often developing close

relationships and loyalties with their peers. Police of-

ficers also serve in a defined hierarchy, answering to a

commanding officer in a “quasi-military” chain of com-

mand. See generally Oladeinde v. City of Birmingham,

230 F.3d 1275, 1293 (11th Cir. 2000). With this unique

employment structure comes difficult questions about

how to best protect individual liberties such as the

right against self-incrimination. Answering to a com-

manding officer and friend can feel like more than a

mere request from an employer and runs the risk of

unduly burdening police officers’ Fifth Amendment

protection against self-incrimination. Garrity, 385 U.S.

at 496 (noting that “subtle pressures may be as telling

as coarse and vulgar ones.”); see also United States v.

Vangates, 287 F.3d 1315, 1321 (11th Cir. 2002).

To protect against these concerns, this Court rec-

ognized that the Fifth Amendment ensures employees

are not left to choose between their livelihood and self-

incrimination. Garrity, 385 U.S. at 497.

ie

5

I. POLICE OFFICERS DEAL WITH GARRITY

ISSUES EVERY DAY AND MUST BE AF-

FORDED ADEQUATE FIFTH AMENDMENT

PROTECTION.

Imagine this scenario: a police officer sits down

with an Internal Affairs investigator who asks ques-

tions about his involvement in detaining a suspect who

alleges officers used excessive force to subdue him. The

investigator tells the officer that any statements he

makes are purely for an administrative investigation

and will not be used against him in any future criminal

proceedings. The investigator also makes it clear that

refusal to answer questions will lead to termination.

During the course of this interview, the officer makes

incriminating statements about the circumstances

surrounding the suspect’s arrest. The investigator

then refers the statement to a prosecutor who previ-

ously had no knowledge of any potentially unlawful

conduct prior to receiving the officer’s statement. The

prosecutor then initiates a criminal investigation and

charges the officer with a crime based solely on the of-

ficer’s own compelled statement.

Once charged, the officer is detained pending a

criminal trial. The officer is also suspended from his

post and the local media reports that the officer may

have violated the suspect’s constitutional rights. After

months of investigating leading up to trial, however,

the prosecutor is unable to substantiate any criminal

case and the charges are dismissed.

6

The Petitioner argues that the above situation

would not constitute a violation of the Fifth Amend-

ment or Garrity. See Pet’r’s Br. at 5-6. This is so even

though the officer’s statement was compelled under

threat of termination and procured through misrepre-

sentations that the statement wouldn’t be used in any

subsequent criminal proceedings. According to Peti-

tioner’s logic, the fact that the criminal investigation

and criminal proceedings were launched solely on the

basis of the officer’s own compelled statements would

not constitute a violation of the Fifth Amendment. The

fact that the officer would be bound over — suffering

lost freedom — while awaiting criminal trial would not

constitute a violation of the Fifth Amendment. Even

worse, the officer would also face many collateral con-

sequences beyond criminal punishment including rep-

utational harm and lost employment despite no

ultimate finding of guilt.

Now reimagine these same foundational facts. The

officer is questioned by an investigator who says the

inquiry is purely for an administrative investigation

and any subsequent statement will not be used against

him in any future criminal proceedings. The investiga-

tor also makes it clear that refusal to answer questions

and provide a statement will lead to termination. This

time, however, the officer expressly invokes his Fifth

Amendment right against self-incrimination and re-

mains silent. Without a compelled statement from the

officer, which the above hypothetical had, no criminal

proceedings are initiated and no charges are ever filed.

Stated differently, because there was no statement

7

upon which to base an investigation as was the case in

the earlier hypothetical, no criminal proceeding could

be initiated.’

The Constitution and this Court’s prior rulings

simply do not mandate these divergent results, and

that is what is at stake if Petitioner’s view point is

adopted.

* Depending on the circumstances surrounding the officer’s

refusal to provide a statement, the department may not even be

able to terminate the officer. See Uniformed Sanitation Men Ass'n

v. Commr. of Sanitation, 392 U.S. 280, 283-84 (1968) (prohibiting

states from firing employees who refused to waive constitutional

privilege and answer questions. The Court noted that “[p|etition-

ers were not discharged merely for refusal to account for their

conduct as employees of the city. They were dismissed for invoking

and refusing to waive their constitutional right against self-in-

crimination. ... They were entitled to remain silent because it

was clear that New York was seeking, not merely an accounting

of their use or abuse of their public trust, but testimony from their

own lips which, despite the constitutional prohibition, could be

used to prosecute them criminally.”); Gardner v. Broderick, 392

U.S. 273, 278 (1968) (“(T| he mandate of the great privilege against

self-incrimination does not tolerate the attempt, regardless of its

ultimate effectiveness, to coerce a waiver of the immunity it con-

fers on penalty of the loss of employment”). This inquiry is beyond

the scope of the issues before the Court today. The key point is

that the officer is in a substantially different position when re-

maining silent than he is when giving a compelled statement.

8

A. THE PRESENT CASE IS ILLUSTRA-

TIVE OF THE DAILY CHALLENGES

FACED BY POLICE OFFICERS IN AS-

SERTING THEIR CONSTITUTIONAL

RIGHT AGAINST SELF-INCRIMINA-

TION.

The case before this Court today provides a repre-

sentative and real-world example of both the problem

outlined above and the challenges officers throughout

the country face every day. As Garrity commentators

have noted, “|vjirtually every incident where a public

employee uses any force or has physical contact with

anyone gives rise to a prospective criminal charge of

assault and battery, a civil rights charge of excessive

force, and an internal or administrative charge of mis-

conduct under |an| agency’s internal rules.” J. Michael

McGuinness, Fifth Amendment Protection for Public

Employees: Garrity and Limited Constitutional Protec-

tions from Use of Employer Coerced Statements in In-

ternal Investigations and Practical Considerations, 24

Touro L. Rev. 695, 730 (2013).

Beyond that, officers nationwide deal with Gar-

rity-related questions in a variety of their daily job

functions. Any time an officer is involved in an alterca-

tion where a firearm is discharged, a weapon used, a

suspect complains of unlawful treatment, an inter-de-

partmental complaint is filed, or an officer is required

to supply a report by order of a commanding officer, the

contours of Garrity are implicated.

9

B. THE TENTH CIRCUIT CORRECTLY

HELD THAT THE FIFTH AMENDMENT

IS VIOLATED WHEN INCRIMINATING

STATEMENTS ARE COMPELLED AND

USED IN A PROBABLE CAUSE HEAR-

ING.

The Fifth Amendment of the United States Con-

stitution provides in pertinent part: “No person ...

shall be compelled in any criminal case to be a witness

against himself... .” U.S. Const., amend. V (emphasis

added).*

The Tenth Circuit’s decision correctly interpreted

this constitutional guarantee, acknowledging that

“(tlhe Fifth Amendment is violated when criminal de-

fendants are compelled to incriminate themselves and

the incriminating statement is used in a probable

cause hearing.” See Vogt v. City of Hays, 844 F.3d 1235,

1237 (10th Cir. 2017). In so holding, the court below

correctly determined that Fifth Amendment protection

vests well before a formal criminal trial. Jd. at 1241-—

42.

By extension, the Tenth Circuit’s rationale also ap-

plies to Garrity statements. Garrity is designed to ex-

tend the Fifth Amendment privilege against self-

incrimination to police officers — and all employees — in

the employment context. Garrity, 385 U.S. at 500. If the

Fifth Amendment is violated by virtue of a compelled

* The Fifth Amendment’s Self-Incrimination Clause is appli-

cable to the States through the Fourteenth Amendment. See Mal-

loy v. Hogan, 378 U.S. 1, 6 (1964); U.S. Const., amend XIV.

10

statement, the fact that the compelled statement is a

Garrity statement does not change the permissible use

of the testimony. Indeed, a Garrity statement is, by def-

inition, compelled testimony. Jd. at 496.

Il. THE PROPER SCOPE OF GARRITY AND

FIFTH AMENDMENT PROTECTION EX-

TENDS TO PRETRIAL PROCEEDINGS,

NOT JUST A CRIMINAL TRIAL.

The FOP respectfully submits that Garrity rights

vest at the time a statement is compelled under threat

of adverse employment action. Once such a statement

is elicited, it shall not be used in any subsequent crim-

inal investigation or proceeding including probable

cause hearings. This position is consistent with the

text and scope of the Fifth Amendment privilege

against self-incrimination.

A. THERE IS SUBSTANTIAL PRECEDENT

SUPPORTING PRETRIAL PROTECTION

UNDER GARRITY.

The seminal case on the scope of Fifth Amendment

protection when testimony is compelled and used in

subsequent proceedings is Kastigar v. United States,

406 U.S. 441 (1972). In Kastigar, the petitioners were

subpoenaed to appear before a United States grand

jury Id. at 442. The government, anticipating that the

petitioners would assert their Fifth Amendment privi-

lege, obtained an order from a California Federal Dis-

trict Court directing the petitioners to provide

11

testimony and evidence before a grand jury under

grant of immunity. Jd. The petitioners appeared be-

fore the grand jury but refused to answer questions or

produce evidence, asserting their privilege against

self-incrimination. Jd. The district court found the

petitioners in contempt and confined them until they

answered the grand jury’s questions or the term of

the grand jury expired. /d.

The issue ultimately ended up before this Court,

which was tasked with deciding “whether testimony

may be compelled by granting immunity from the use

of compelled testimony and evidence derived there-

from (‘use and derivative use’ immunity), or whether it

is necessary to grant immunity from prosecution for

offenses to which compelled testimony relates (‘trans-

actional’ immunity).” Jd. at 443.

This Court held that compelled testimony — and

any fruits derived from such testimony — may not be

used against an individual in a criminal case. Jd. at

453. In so doing, the Court acknowledged that Fifth

Amendment protection is akin to use and derivative

use immunity. /d. (noting “|i]mmunity from the use of

compelled testimony, as well as evidence derived di-

rectly and indirectly therefrom, affords (sufficient

Fifth Amendment] protection.”). The practical implica-

tion of this is that a person in question can be prose-

cuted for the offense under investigation, but the

prosecution may not rely on the compelled testimony

or any evidence derived from that compelled testimony

to achieve an adjudication of guilt. Instead, the prose-

cution has an “affirmative duty to prove that the

12

evidence it proposes to use is derived from a legitimate

source wholly independent of the compelled testi-

mony.” Jd. at 460.

Following this Court’s lead in Aastigar, many

other courts around the country similarly extended

protection to pretrial proceedings when individuals as-

sert their Fifth Amendment right against self-incrimi-

nation. For example, in United States v. Vangates, the

Eleventh Circuit was tasked with deciding “whether

certain statements made by a correctional officer are

protected under the Fifth Amendment to the Constitu-

tion and Garrity... .” 287 F.3d 1315, 1316 (11th Cir.

2002).

In Vangates, a correctional officer was convicted of

obstruction of justice and a federal criminal civil rights

violation. Jd. at 1316-17. Vangates argued that her

convictions should be reversed because the trial court

erroneously concluded her testimony from a previous

civil trial was admissible in the criminal case. /d. at

1319. During the civil case, the victim in the underly-

ing dispute had filed an action under 42 U.S.C. § 1983

seeking damages for an assault she allegedly sus-

tained when police arrested her. Jd. During the civil

trial, the plaintiff introduced evidence from the Inter-

nal Affairs investigative file, which included tran-

scripts and tape recordings of interviews with police

officers that were expressly protected by Garrity via a

grant of use and derivative use immunity. /d. at 1318.

The police officers did not object to the evidence when

it was introduced during the civil trial. Jd. at 1320.

13

While the civil suit was pending, plaintiff's coun-

sel filed a civil rights complaint with the Federal Bu-

reau of Investigation (FBI), which opened up an

investigation on the arresting officers. Vangates, 287

F.3d at 1318. These actions culminated in an indict-

ment from a grand jury charging the officers with two

felonies. Jd. A criminal action commenced and prior to

the start of the criminal trial, the officers submitted

motions in limine to exclude the Internal Affairs file

containing their Garrity statements. Jd. at 1319. The

district court judge excluded the Internal Affairs inves-

tigatory file and all references in the testimony made

to that file. Jd. However, the judge permitted all other

portions of the civil trial transcript not referencing

the Internal Affairs investigation to be used in the

criminal trial. Jd. This included some incriminating

testimony given by Vangates. Jd. Vangates was subse-

quently convicted. Vangates, 287 F.3d at 1319. She ap-

pealed, contending that the district court erred in

concluding that her civil trial testimony was not pro-

tected under Garrity. Id.

The Eleventh Circuit ultimately agreed with the

district court’s decision to exclude the Internal Affairs

investigatory file but permit all portions of the civil

trial transcript not referencing that file. Jd. at 1321. In

so deciding, the Eleventh Circuit explained that Fifth

Amendment and Garrity protection extends “to any

‘proceeding, civil or criminal, formal or informal, where

the answers might incriminate him in future criminal

proceedings.” Id., citing Minnesota v. Murphy, 465 US.

420, 427 (1984) (emphasis added). Further, the Court

14

noted that while Vangates’s testimony related to the

Internal Affairs investigation was covered by Garrity

under an express grant of immunity, that immunity

did not apply to her civil trial testimony that did not

mention the Internal Affairs investigation. Jd. at 1321.

The Eleventh Circuit clarified, however, that “/e/ven

absent an explicit grant of immunity. ... Vangates’s

civil trial testimony still would be protected if she had

been compelled to give it.” Id. (emphasis added).

Similarly, the D.C. Circuit considered the scope of

Fifth Amendment privilege in U.S. v. North (North DI),

910 F.2d 843 (D.C. Cir. 1990), opinion withdrawn

and superseded in part on reh’g, U.S. v. North (North

11), 920 F.2d 940 (D.C. Cir. 1990). North was a former

member of the National Security Council and was

called to testify before a congressional committee

about illicit activity taking place during the Iran-

Contra affair. Jd. at 851. North asserted his Fifth

Amendment right not to testify, but the government

compelled his testimony with a grant of immunity

under 18 U.S.C. § 6002. Jd. North’s six-day testimony

was aired on national television and radio. Id. North

was eventually convicted of three counts relating to

the Iran-Contra sc il by a specially appointed Inde-

pendent Counsef Jd. H®Appealed, arguing that his

Fifth Amendgfent right was violated by the lower

court’s failure to require the Independent Counsel

to establish independent sources for the testimony of

witnesses before the grand jury and at trial and to

demonstrate that the witnesses did not use his immun-

ized testimony in any way. Jd. at 853. North also

15

argued that his Fifth Amendment right was violated

by the lower court’s failure to determine whether the

Independent Counsel made non-evidentiary use of his

immunized testimony. /d.

The North I court concluded that any witness tes-

timony based on North’s immunized testimony was im-

proper even if North’s testimony was used merely “to

refresh their memories, or otherwise to focus their

thoughts, organize their testimony, or alter their prior

or contemporaneous statements.” Jd. at 856. Upon re-

hearing, en banc, the North I] court elaborated more

poignantly:

It simply does not follow that insulating pros-

ecutors from exposure automatically proves

that immunized testimony was not used

against the defendant. Kastigar is instead vi-

olated whenever the prosecution puts on a

witness whose testimony is shaped, directly or

indirectly, by compelled testimony, regardless

of how or by whom he was exposed to that

compelled testimony.

United States v. North (North IL), 920 F.2d 940, 942

(1990) (en banc).

Many other courts and resources have followed

Kastigar, Vangates, North I, and North II’s reasoning

that compelled statements must not be used even in

pretrial proceedings:

e United States v. McDaniel, 482 F.2d 305,

311 (8th Cir. 1973) (holding that the

government impermissibly used _ the

16

defendant’s compelled testimony and not-

ing impermissible investigatory uses of

compelled testimony include: (1) focusing

the investigation; (2) deciding whether to

initiate prosecution; (3) refusing to plea

bargain; and (4) planning trial strategy.

The Eighth Circuit reasoned that “alt-

hough |the prosecutor] asserts that he did

not use [the immunized] testimony in any

form, we cannot escape the conclusion

that the testimony could not be wholly

obliterated from the prosecutor’s mind in

his preparation and trial of this case.” Jd.

at 312. The McDaniel court further noted

that“... if the immunity protection is to

be coextensive with the Fifth Amendment

privilege, as it must to be constitutionally

sufficient, then it must forbid all prosecu-

torial use of the testimony, not merely that

which results in the presentation of evi-

dence before the jury.” Id. at 311 (empha-

sis added));

U.S. v. Pantone, 634 F.2d 716, 722 (3d Cir.

1980) (suggesting that use of immunized

testimony, even as a morale booster to

federal prosecutors, may be impermissi-

ble: “liJt may be posited that mere access

to the self-incriminating grand jury testi-

mony could provide the United States

Attorney a degree of psychological confi-

dence he might otherwise lack, and there-

fore might imperceptibly affect the later

trial”);

17

Wiley v. Mayor & City Council of Balti-

more, 48 F.3d 773, 778 (4th Cir. 1995)

(holding that since the protected state-

ments weren't used, no Garrity violation

occurred. The Court clarified, however,

that Garrity rights are “self-executing”

and that “/o/f course, if the state had at-

tempted to make direct or derivative use

of the officers’ statements against them,

Garrity’s self-executing immunity would

have immediately attached.”) (emphasis

added);

State of Ohio v. Jackson, 927 N.E.2d 574,

578-82 (Ohio 2010) (holding that the

State made two constitutionally imper-

missible uses of the defendant’s Garrity

statement. First, an investigator imper-

missibly testified before a grand jury, as

that investigator was present when the

defendant made a Garrity statement.

This was an impermissible use even

though the investigator never mentioned

contents of ihe Garrity statement before

the grand jury. Second, a prosecutor im-

permissibly reviewed the defendant's

protected statement during trial prepara-

tion.);

Vogt v. City of Hays, 844 F.3d 1235, 1239-

46 (10th Cir. 2017) (holding that the

phrase “criminal case” as stated in the

Fifth Amendment includes probable

cause hearings. The Tenth Circuit sup-

ported its decision by analyzing the

historical antecedents of the Fifth

18

Amendment and other cases around the

country holding the Fifth Amendment is

not exclusively a trial right.);

¢ The United States Attorneys’ Manual,

Section 9-23.400 (recognizing that the

government’s ability to use compelled tes-

timony is tied to Kastigar’s sweeping pro-

scription on using fruits of the testimony

against witnesses. Given Kastigar’s re-

strictions, the manual instructs govern-

ment attorneys that the Attorney

General must personally authorize pros-

ecution of a person who has testified un-

der immunity for an offense stemming

from or closely related to his compelled

testimony.).

The above cases clearly recognize a pretrial pro-

tection for compelled testimony by virtue of the Fifth

Amendment and Garrity. In each case, the conduct giv-

ing rise to a constitutional violation occurred prior to

the commencement of a criminal trial. These cases

therefore support the broader proposition that pretrial

conduct involving protected Garrity statements fre-

quently infringes constitutional rights. In order to ef-

fectively provide protection against self-incrimination,

the Garrity doctrine must be recognized from the out-

set of a criminal investigation or proceeding.

19

B. THE PRINCIPLES EXPOUNDED IN

KASTIGAR SERVE AS A FOUNDATION

TO HOLD THAT THE RIGHT AGAINST

SELF INCRIMINATION, AS ENUMER-

ATED IN THE FIFTH AMENDMENT

AND GARRITY, ATTACHES TO PRE-

TRIAL PROCEEDINGS.

Kastigar clarifies two vital points when consider-

ing the scope of Fifth Amendment and Garrity protec-

tion. First, the Kastigar Court decided that use and

derivative use immunity provided protection commen-

surate with the right against self-incrimination guar-

anteed by the Fifth Amendment. Kastigar, 406 U.S. at

453. This decision, the Court noted, left parties in the

same position they would have been in had they simply

asserted the Fifth Amendment privilege without grant

of immunity. Jd. at 458-59, 462. Accordingly, Kastigar

made clear that express immunity is not required to

invoke Fifth Amendment protection. Jd. But whether

the individual has immunity or remains silent, they

must be left in the same position constitutionally. Jd.

Second, Kastigar stands for the broader proposi-

tion that there is no moratorium on the constitutional

right against self-incrimination until some later ac-

tion. 406 U.S. at 453-54. Many courts following this line

of reasoning found impermissible uses of compelled

testimony that occurred prior to the commencement of

a criminal trial. See, e.g., Section (I1)A), supra, at 10—

18. Surely then, if a constitutional violation occurs as

a result of pretrial conduct, no reason exists to consider

that same conduct any less a violation if used only in

20

pretrial proceedings. Justice Kennedy puts it best: “A

constitutional right is traduced the moment torture or

its close equivalents are brought to bear. Constitu-

tional protection for a tortured suspect is not held in

abeyance until some later criminal proceeding takes

place.” Chavez, 538 U.S. 789-90 (Kennedy, J., concur-

ring in part and dissenting in part) (emphasis added).

This position makes sense because the individual

against whom a compelled statement is used has pre-

sumably suffered actual punishment and harm be-

tween the time pretrial criminal proceedings

commence and the criminal trial itself. For example,

that individual would potentially be bound over for

trial, consequently losing the freedom they had prior

to their compelled testimony being used against them

to commence a criminal prosecution. This individual is

also now subjected to the possibility of a criminal con-

viction, which carries additional criminal punish-

ments. They would also suffer ancillary social

consequences. For example, they would likely lose their

job or be suspended without pay. They would suffer the

social stigma of being labeled a criminal, particularly

if the incident is publicized. See, eg, J. Michael

McGuinness, Fifth Amendment Protection for Public

Employees: Garrity and Limited Constitutional Protec-

tions from Use of Employer Coerced Statements in In-

ternal Investigations and Practical Considerations, 24

Touro L. Rev. 695, 730 (2013). (noting that “when a pub-

lic employee becomes the subject of a criminal investi-

gation the whole community will often know of the

allegations quickly, courtesy of the media”) (internal

21

citations omitted). Their family members would be

forced to consider whether their parent, child, sibling,

or significant other is a criminal.

Given these potential harms, why then would an

individual have no constitutional protection until some

vestige of the compelled statement is used at trial?

This question is particularly difficult to answer when

noting that many courts hold even knowledge of an in-

criminating compelled statement is a constitutional vi-

olation once a criminal trial commences. See, e.z.,

McDaniel, 482 F.2d 305, 312 (reasoning that “although

[the prosecutor] asserts that he did not use |the im-

munized] testimony in any form, we cannot escape the

conclusion that the testimony could not be wholly oblit-

erated from the prosecutor’s mind in his preparation

and trial of this case”). Petitioner’s contrary argument

that a criminal trial must commence for constitutional

rights to be infringed injects a rigid distinction of when

Fifth Amendment protection truly protects that simply

cannot be reconciled with the Fifth Amendment’s text

and the Garrity Court’s opinion. As Justice Kennedy

has stated, to hold “that the Self-Incrimination Clause

is not violated until the government seeks to use a state-

ment in some later criminal proceeding [would] strip/ /

the Clause of an essential part of its force and mean-

ing.” Chavez, 538 U.S. at 793 (Kennedy, J., concurring

in part and dissenting in part) (emphasis added).

These are the precise concerns the FOP seeks to

guard against. An officer's Garrity statement, com-

pelled under threat of adverse employment action,

must be protected from any subsequent criminal

22

investigations or proceedings. That is because the con-

stitutional right was violated the moment his state-

ments were compelled under threat of adverse

employment action and provided to criminal investiga-

tors, not when a criminal triai commences.

Notably, the FOP does not seek broader protection

than that already provided under Kastigar. Kastigar

gives prosecutors permission to use a compelled state-

ment in exchange for use and derivative use immunity.

Kastigar, 406 U.S. at 458-59, 462. Kastigar simultane-

ously imposes an affirmative “heavy burden” on prose-

cutors to show — during any subsequent criminal

proceedings — that they had independent evidence to

convict, which is sufficient to protect an officer's Fifth

Amendment rights as enumerated in Garrity. Id. at

460.

C. APPLYING THE FOP’S POSITION TO

THE PRESENT CASE.

Officer Vogt worked with Hays police department.

While working there he sought employment with

Haysville police department in late 2013. See Pl.’s

Compl., at J 11. During the Haysville hiring process,

Officer Vogt disclosed that he had kept a knife for his

personal use after coming into possession of it in the

course of his employment as a Hays police officer. /d.

at J 12. Notwithstanding this disclosure, Haysville of-

fered Officer Vogt employment on the condition he re-

port the knife to Hays police department. /d. at { 13.

Officer Vogt complied with Haysville’s condition to

23

report the knife to his superiors at Hays police depart-

ment. Jd. at 4 15.

Upon making the disclosure, Officer Vogt was or-

dered by Chief Scheibler, as a condition of his employ-

ment as a Hays police officer, to file a written report

about his possession of the knife. Jd. at ¥ 16. Lieuten-

ant Wright, who is responsible for internal investiga-

tions conducted by Hays police department, further

compelled Officer Vogt to give a statement about the

knife as a condition of his employment with Hays. /d.

at J 19. Lieutenant Wright also assured Officer Vogt

that he was seeking only policy violations in an admin-

istrative review and was not conducting a criminal in-

vestigation. See Pl.’s Compl., at 14 19-20.

Using these compelled statements, the compelled

report, and fruits from these sources, Chief Scheibler

requested the Kansas Bureau of Investigation initiate

@ criminal investigation into Officer Vogt’s conduct. /d.

at | 22. These actions culminated in a probable cause

hearing to determine if Officer Vogt could be formally

charged with two felonies and bound over for trial. /d.

at ¥ 27.

Applying the FOP’s position to facts of this case,

Officer Vogt’s Garrity rights vested and were impli-

cated at the time Chief Scheibler and Lieutenant

Wright ordered him — as a condition of his employment

-— to provide statements regarding the knife Officer

24

Vogt came into possession of during his employment

with Hays.*

This case is a particularly salient illustration of

why broad Garrity rights are needed. Here, Officer

Vogt’s commanding officer and the Internal Affairs in-

vestigator compelled Officer Vogt to incriminate him-

self under the guise of an administrative review. PI.’s

Compl., at 74 16, 19-20. Officer Vogt then provided ev-

idence which provided the sole basis for the Kansas

Bureau of Investigation to initiate pretrial criminal

proceedings.

Fortunately for Officer Vogt, the district court

found there was not sufficient probable cause to

‘ This Court need not decide whether Officer Vogt’s state-

ments were actually compelled to determine if a Garrity violation

occurred. When deciding a motion to dismiss, the District Court

was required to view all well-plead facts, and reasonable infer-

ences therefrom, as true. See Brokers’ Choice of Am., Inc. v. NBC

Universal, Inc., 861 F.3d 1081, 1105 (10th Cir.2017) (stating “[i)n

ruling on a motion to dismiss for failure to state a claim, ‘|a)ll well-

pleaded facts . .. must be taken as true,’ and the court must lib-

erally construe the pleadings and make all reasonable inferences

in favor of the non-moving party”); see a/so Vogt v. City of Hays,

844 F.3d 1235, 1246 n.7 (10th Cir. 2017) (noting that “Mr. Vogt’s

complaint states that the ‘compelled statements and fruits

thereof were used against him in a criminal case... .’ At this

stage, we can reasonably infer that these statements were used to

support probable cause”); Pet’r’s Br., at 26 (“[gliven the procedural

posture of this case — a motion to dismiss for failure to state a

claim — we must assume that Vogts statements were ‘compelled’

within the meaning of the Fifth Amendment”). Accordingly, Of-

ficer Vogt's allegations in the Complaint that his statement was

compelled under threat of adverse employment action, PI.'s

Compl., at 77 16, 19-22, must be taken as true and are sufficient

to demonstrate a Garrity violation at the motion to dismiss stage.

25

formally charge him and bind him over for trial. What

if, however, the district court had found probable cause

based on Officer Vogt’s compelled statement? If that

had occurred, Officer Vogt would have been detained

while awaiting a criminal prosecution. He would have

also suffered collateral consequences such as lost em-

ployment and negative social stigma from the pending

criminal charges. These additional harms, while ancil-

lary, are very real consequences that should not be

overlooked.

If this Court holds that Fifth Amendment rights

do not vest until a compelled statement is used during

criminal trial, then Officer Vogt — and every police of-

ficer facing similar circumstances — will have abso-

lutely no recourse while waiting to defend thei’ name.

Significantly, this result would hold true even 1) no out-

side evidence materialized to convict him and charges

were subsequently dropped before a crimin:.! trial com-

menced.

As Justice Kennedy noted, “|t)his is no small mat-

ter.” Chavez, 538 U.S. at 793 (Kennedy, J., concurring

in part and dissenting in part). Law enforcement per-

sonnel around the country face situations every day

that implicate officers’ Garrity rights. What should law

enforcement personnel do when confronted with re-

porting obligations if there is no guarantee that state-

ments they provide will be protected during any

subsequent criminal proceeding short of a criminal

trial? This puts officers in an impossible situation

where they must speculate about the extent of their

constitutional rights when deciding to answer any

26

question or fill out any report put to them by an ad-

ministrative superior or commanding officer. This

could turn even the most basic officer-reporting func-

tions into complex questions of constitutional law.

Some clarity is necessary here. The FOP does not

contend that Hays and the government would be pre-

cluded from disciplining or prosecuting Officer Vogt if

they believe he has acted unlawfully. Hays may repri-

mand Officer Vogt in an administrative manner.’ The

prosecutor may prosecute Officer Vogt provided he can

produce evidence to support a criminal action that is

wholly separate from the information Officer Vogt re-

ported under compulsion. The prosecutor could, for ex-

ample, investigate leads based upon Officer Vogt’s

initial, voluntary statement and pursue criminal

charges. But here, the criminal investigation and pro-

ceedings were initiated solely using Officer Vogt’s com-

pelled statement and fruits derived from that

statement. Once the investigation is launched using

Officer Vogt’s compelled statement, a constitutional vi-

olation has occurred. That is because the compelled

statement has now poisoned the mind of the

* In this unique factual pattern, nothing would preclude

Hays police department from calling the prosecutor and relaying

Officer Vogt's initial, voluntary, statement about coming into pos-

session of a knife during the course of his employment as a police

officer. Officer Vogt’s initial statement is not constitutionally pro-

tected because he initiated contact with his superiors and made

disclosures voluntarily. Hays could not, however, relay to the pros-

ecutor any information that was provided solely in Officer Vogt's

compelled statement protected under Garrity without implicating

Fifth Amendment rights.

27

prosecutor and may imperceptibly impact the course of

any subsequent criminal investigation or proceeding.

See, e.g., Pantone, 634 F.2d at 722 (suggesting that use

of immunized testimony, even as a morale booster to

federal prosecutors, may be impermissible: “|i)t may be

posited that mere access to the self-incriminating

grand jury testimony could provide the United States

Attorney a degree of psychological confidence he might

otherwise lack, and therefore might imperceptibly af-

fect the later trial”); McDaniel, 482 F.2d at 311 (holding

that the government impermissibly used the defend-

ant’s compelled testimony and noting impermissible

investigatory uses of compelled testimony include: (1)

focusing the investigation; (2) deciding whether to ini-

tiate prosecution; (3) refusing to plea bargain; and (4)

planning trial strategy).

For the Fifth Amendment and Garvvity to vrovide

true protection, officers must be given assurances that

their Garrity statements cannot and will not be «ed

to incriminate them in any manner. Indeed, as this

Court already noted in Kastigar, a primary goal of

Fifth Amendment application is to put an individual

under compulsion at parity, rights-wise, with an indi-

vidual in the same situation who simply remains si-

lent. Kastigar, 406 U.S. at 458-59, 462. Kastigar does

this by immunizing the compelled testimony — and all

fruits derived therefrom — and by imposing on the gov-

ernment “the heavy burden of proving that all of the

evidence it proposes to use was derived from legitimate

independent sources.” Id. at 461-62 (emphasis added).

That goal is not achieved if protection against

28

self-incrimination for compelled statements turns on

whether the compelled statement is ultimately intro-

duced in some manner at trial.

oe

-

CONCLUSION

The FOP represents a broad segment of this Na-

tion’s police personnel. These individuals serve our

communities and put their lives on the line every day

to ensure our protection. With this great responsibility

comes a heavy burden. Our officers are often put in

challenging situations, not all of which have perfect

outcomes. In those instances where further explana-

tion or reporting is required by law enforcement per-

sonnel, there must be sufficient assurances that

officers’ constitutional rights under the Fifth Amend-

ment and Garrity are carefully preserved.

Accordingly, and for the foregoing reasons, the

FOP respectfully requests this Court hold that a state-

ment compelled in contravention of the Fifth Amend-

ment and Garrity shall not be used in any subsequent

criminal investigation or proceeding, including proba-

ble cause hearings. Such a holding would be consistent

with the principle this Court has already articulated:

29

that police officers “are not relegated to a watered-

down version of constitutional rights.” Garrity, at 500.

Respectfully submitted,

Larry H. James

Counsel of Record

Robert C. Buchbinder

Crabbe, Brown & James LLP

500 S. Front Street

Suite 1200

Columbus, OH 43215

614-228-5511

Email: liames@cbjlawyers.com

Email: rbuchbinder@cbjlawyers.com

Counsel for amicus curiae

National Fraternal Order of Police