# Petition for Writ of Certiorari — City of Chattanooga v. Cox > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1957%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 419 U.S. 833 ## Text ts 3 cee: 4 iH Supreme Court. u. &. FILE IN THE MICHAEL RODAK, JR SUPREME COURT OF THE UNITED STATES October Term, 1973 nee 173 2 CITY OF CHATTANOOGA, TENNESSEE, Petitioner, Vv. RAYMOND COX, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE CCURT OF APPEALS OF TENNESSEE, EASTERN DIVISION RANDALL L. NELSON Special Counsel 400 Pioneer Building Chattanooga. Tennessee 37402 EUGENE N. COLLINS City Attorney 400 Pioneer Building Chattanooga, Tennessee 37402 ————————————————— COURT INDEX PRESS, INC. — 809 Walnut Street, Cincinnati, Ohio 45202 — (513) 241-1450 ee en ame Ne NATH mo ni Foy rim ae See eae © TABLE OF CONTENTS Page eo a rie re 1 ee ars doe ans ct aoa eae k 2 Be ts: 2 CONSTITUTIONAL PROVISIONS INVOLVED .. 2 STATEMENT OF THE CASE ...... polis iggemetaaes 3 (A) Proceedings in the Chancery Court ........ 5 (B) Proceedings in the Court of Appeals ....... 6 REASONS FOR GRANTING THE WRIT ........ 6 Petitioner’s Action in Dismissing Respondent Did Not Violate. Respondent's Fifth Amendment Se RS Eee ry eee te 7 EEE. bch kbe> eaves chcadvee cence Fe 18 TABLE OF CITATIONS Constitutional Provisions: Fifth Amendment to the United States Constitution .......... 2, 5, 6, 7, 8, 10, 11, 18, 19 Fourteenth Amendment to the United States Constitution il. ‘ Page Statutes: I I clas 2. shaw cg kgs sda thw a ee 2 Tennessee Code Annotated §§ 27-901, et seq. ........ 5 Private Acts of Tennessee, 1911, Chapter 10, I ooh eee oo a arenes oa os va 8 4 Private Acts of Tennessee, 1955, Chapter 56, I oe 3 fo CG cd eA pa Sait e vg Fa sek & 4 Private Acts of Tennessee, 1957, Chapter 73, IE Gaon, SS ahora Selly ee UNS x ¢ Ase 4 Private Acts of Tennessee, 1839, Chapter 32, Is ok pad hee utes Soars hes wish 4 Private Acts of Tennessee, 1901, Chapter 432, NEE Se hor h a hios SON Rhee ec eee ee we ewe ens 4 Private Acts of Tennessee, 1911, Chapter 10, I Pos ce diee new ig casas ae 4 Cases: Beilan v. Board of Education of Philadelphia, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 ila a eRe Sane ce ee eee ere 7, 8,9 Brown v. Walker, 161 U.S. 591, 597, 40 L.Ed. 819, IN vi ss kekainws Cs. wae 11 Broyles v. State, 207 Tenn. 571, 341 S.W.2d 724 CS ee eases sae sk us eee 17, 18 Gardner v. Broderick, 393 U.S. 278, 88 S.Ct. 1913, | 20 L.Ed.2d 1082 (1968) .......... 6:7, 1, 42s illicit Cases: Page Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) ..... 7, 9, 10, 12, 13, 15, 18 Gerace v. County of Los Angeles, 100 Cal.Rptr. 917, cert. denied —— U.S. ——, 93 S.Ct. 444, 34 L.Ed. 2d 306, reh. denied, —— U.S. ——, 93 S.Ct. 1353, 35 L.Ed.2d 615 (Feb. 20, 1973) .............. 15, 16 Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, ee Is 2 Pree as OS ee eee 15 Murphy v. Waterfront Commission of New York, 378 U.S. 52, 100, 101, 84 S. Ct. 1594, 12 L.Ed. OR I Re hs re ok ee rid Sa 10, i5 Quinn v. United States, 349 U.S. 155, 161, 162, 99 L.Ed. 954, 75 S.Ct. 668, 51 A.L.R.2d 1157 ........ 1] Rogers v. United States, 340 U.S. 367, 371, 95 L.Ed. 5464, 71 Si SE, TA ere. =e se ee eee 11 Slochower v. Board of Higher Education, 350 U.S. 551, 100 L.Ed. 692, 76 S.Ct. 637 ................ 8 Ullman v. United States, 350 U.S. 422, 428, 100 L.Ed. 511, 76 S.Ct. 497, 53 A.L.R.2d 1008 ........ ll Uniformed Sanitation Men’s Association v. Commis- sioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, ee Se eae 7, 34, Uniformed Sanitation Men’s Association v. Commis- sioner of Sanitation, 406 U.S. 961, 32 L.Ed.2d me eT eS . ) Be ee ee ee 14 Uniformed Sanitation Men’s Association, Inc. v. Commissioner of Sanitation, 426 F.2d 619 (1970) .. 13 Miscellaneous: eee ae ee 8 Wigmore, Evidence (Rev. Ed.) , Section 2250 ..... Levy Origins of the Fifth Amendment ............. APPENDIX Chancellor’s Memorandum Opinion (Filed October NN ta ig hak er gtk y agi gta eksn'a.p Chancellor’s Memorandum Opinion (Filed Novem- NM ie 5 aan aie aw. Wh 45-5 p+ SA Chancellor’s Final Decree (Dated November 9, ee by a Opinion, Court of Appeals of Tennessee, Eastern Section (Filed July 18, 1973) ................. IN THE SUPREME COURT OF THE UNITED STATES No. CITY OF CHATTANOOGA, TENNESSEE, Petitioner, v. RAYMOND COX, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF APPEALS OF TENNESSEE, EASTERN DIVISION Petitioner, the City of Chattanooga, Tennessee, respect- fully prays that a Writ of Certiorari issue to review the judgment and opinion of the Tennessee Court of Appeals, Eastern Division, entered in this proceeding on July 18, 1973, and the judgment of the Tennessee Supreme Court denying a Petition for Certiorari entered on February 19, 1974. OPINIONS BELOW The opinions of the courts below in this case are not yet reported. The original Memorandum Opinion of the Chancellor of the Chancery Court of Hamilton County, ‘z Tennessee, filed October 17, 1972, appears in the Appendix at pages 21 through 23. The Chancellor’s Memoran- dum Opinion on Motion to Recensider, filed November 15, 1972, appears on pages 24 through 25 of the Appendix and the Final Decree of the Chancery Court of Hamilton County is found on pages 26 and 27 of the Appendix. ‘The Opinion of the Court of Appeals of Tennessee, Eastern Division, sitting at Knoxville, appears in the Appendix at pages 28 through 34. The Supreme Court of Tennessee denied certiorari on February 19, 1974, without opinion. _ JURISDICTION The judgment of the Court of Appeals. of Tennessee was entered on July 18, 1973, and a timely Petition for Certi- orari was filed with the Tennessee Supreme Court and was denied by said court on February 19, 1974. This Petition for Certiorari was filed within ninety (90) days of that date. Jurisdiction is invoked under 28 U.S.C. § 1257. QUESTION PRESENTED ~ If a fire captain.is required, on threat of dismissal, to answer questions pertinent to a murder investigation being conducted by his superior, and refuses to do so despite not being required to waive the “use immunity” acquired by the threat, is the privilege against self-incrimination under the Fifth Amendment to the United States Constitution a bar to his dismissal? | CONSTITUTIONAL PROVISIONS INVOLVED The Fifth Amendment to the Constitution.of the United States as it is applied to the states through the Fourteenth Amendment is involved in this matter. 7 enemas ‘a suaenenamneneremaeenneeneasteessemecmecnens | oa ee ak i 8 STATEMENT OF THE CASE The relevant facts of this case are substantially without dispute and are summarized as follows: On March 11, 1972, one Leon Hicks was murdered in the City of Chattanooga and the ensuing investigation eventu- ally focused upon one Harry Brooks Daniels, an ex-convict with a long record, as the prime suspect. The suspect, Daniels, was arrested in Atlanta on another charge and among his possessions at the time of his arrest was an address book containing the name and telephone number of Raymond Cox, a Captain in the Chattanooga Fire Department. Also, both the listed and unlisted num- bers of the Fire Hall at which Mr. Cox worked were enum- erated in the address book. In an effort to place the suspect in the City on the murder date, and to determine the re- lationship between the City employee and the suspect, par- ticularly in view of the fact that the address book contained the number of the Fire Hall where Mr. Cox spent his on-duty hours, Mr. Cox was picked up on April 4, 1972, and taken to City Hall for questioning. Upon arrival, he was informed of the nature of the in- vestigation, advised of his Miranda rights, as are all Police and Fire Department employees whenever questioned, and asked to sign a waiver of rights form. He refused to sign the form and then looking up at the ceiling refused to even glance at the pictures of the suspect presented to him in the hope that he could identify Daniels and place him in Chattanooga on the murder date. Further he refused to answer any questions about whether he knew the suspect or if the suspect had been in town on the date in question or to answer any questions at all. Mr. Cox was given the opportunity to make not just one, but seven or eight phone calls. Faced with his ab- solute failure to cooperate, his superior, the Commissioner ~— LIE Pe 4 of Fire and Police of the City of Chattanooga, was called in and ordered him to cooperate, and told him that if he did not he would be dismissed if legally permissible." Mr. Cox's attorney thereupon called and Mr. Cox was not asked anything further relative to the matter, in conformity with his rights, until after his attorney arrived. Shortly thereafter his attorney arrived and was fully informed of the matter of the investigation and the reasons for the ques- tioning and of what had transpired. He was then given full opportunity to confer and consult with his client, Mr. Cox. Thereafter, Mr. Cox was again given opportunity to look at the pictures and answer the questions, but he again refused. He was then permitted to leave. It was testified that if he had answered the questions after his attorney ar- rived, he would not have been dismissed. At no time was it ever demanded that Mr. Cox sign any waivers of immunity from prosecution. Further, after Commissioner Roberts’ threatened him with loss of his job, he was not again asked to sign the Miranda form, nor was the failure to sign the form originally a consideration in the discharge, nor did Commissioner Roberts ever bring up the subject of Mr. Cox waiving his rights. Mr. Cox’s attorney requested that no action be taken on petitioner's jub status until he had opportunity to consult with the Commissioner, which request was honored and it wasn’t until the next day, after a telephone conversation 1 City government in the City of Chattanooga is divided into five (5) departments, one of which is the Department of Fire and Police, which department embraces all matters pertaining to fire and police and which department is headed by one man, the Commissioner of Fire and Police. Private Acts of Tennessee, 1911, Chapter 10, Sec- tions 17-8; Private Acts of Tennessee, 1955, Chapter 56, Section 1; Private Acts of Tennessee, 1957, Chapter 73, Section 2. Said com- missioner must take an oath to faithful yg the duties of his office. Private Acts of Tennessee, 1839, Chapter Section 9; Private Acts of Tennessee, 1901, Chapter 432, Section 5; Private Acts Tennessee, 1911. Chapter 10, Sections 13, 16. a ee ea EY BARTER tele rt et 5 between the Commissioner and the attorney that, Mr. Cox was dismissed by letter for insubordination, conduct unbe- coming a member of the Fire Department, and refusal to cooperate in an official investigation of the department. Mr. Cox then appealed his discharge to the Board of Com- missioners, the governing body of the City of Chattanooga, and the discharge was upheld by a 4 to 0 vote, Commissioner Roberts recusing himself. (A) Proceedings in the Chancery Court. Thereafter Mr. Cox brought a Petition for Certiorari pursuant to Tennessee Code Annotated §§ 27-901, et seq., in the Chancery Court of Hamilton County alleging his rights under the Fifth Amendment to the United States Constitu- tion had been violated and was awarded summary judgment by said court which held that his discharge for the reasons stated violated his Fifth Amendment rights. (Page 3, Mem- orandum Opinion of October 17, 1972, of Chancellor, Ap- pendix p. 23) That Court, while stating its interpretation of the rule to be that “if a public employee is asked pointed questions which might incriminate him without at the same time being required to waive his immunity from self-incrimina- tion he may, if he refused to give requested information, be discharged from his public employment”, held that the Mi- randa warning presented to him at the commencement of in- terrogation, before he was threatened with loss of his job, constituted a demand for waiver of immunity from self- incrimination so that the rule did not apply. Petitioners herein contend this is error because it ignores the “use im- munity” conferred on Mr. Cox by the Commissioner's threat. “a es a ie 2. LON LE IEE TP TE ILI LE LOPE ELLE L EL NLT EEE ITS IP 6 (B) Proceedings in the Court of Appeals. The case was then appealed by the City of Chattanooga to the Court of Appeals of Tennessee, Eastern Division, as- signing as error that Mr. Cox’s Fifth Amendment rights had not been violated but that Court affirmed the decision below, quoting extensively therefrom. In addition, said Court held that Mr. Cox was under no duty to cooperate with his superior in this matter, apparently relying upon the quote from Gardner v. Broderick that officers of municipali- ties need only answer “questions specifically, directly, and narrowly relating to the performance of their official duties”, and that therefore Mr. Cox’s Fifth Amendment rights were violated. (Appendix pp. 33-34, Page 5 of Opinion of Court of Appeals) Petitioners aver that this, too, was in error, it being the duty of all officers of the Fire and Police De- partment, which is a single department within the gov- ernmental structure of the City of Chattanooga under the supervision of Commissioner Roberts, to protect the public safety and to assist its commissioner, their superior officer, in the performance of his duties. Further the Court of Ap- peals overlooked the fact that not only was the murder being investigated, but that the Commissioner and those within his department had the right to know if and why the captain was using on-duty time at the fire hall to dis- cuss or further his relationship with the murder suspect. REASONS FOR GRANTING THE WRIT This Court has, on several occasions, addressed itself to the issue of governmental employees’ rights, under the Fifth Amendment, to remain silent and also to keep their jobs, when their public duty would impel them to answer. It is respectfully submitted that the state courts below have herein decided the federal question under the Fifth Amend- RE OL IEE EAE IEEE TENT SH te tine - a" Tee ong RPL Dy? pur ane PCN IT TO, FEI UP ape eee EO 2 ores td 7 ment to the United States Constitution in, a way which is not in accord with the applicable decisions of this Court including Gardner v. Broderick, 393 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968) ; Uniformed Sanitation Men’s As- sociation v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1082 (1968) ; and Beilan v. Board of Education of Philadelphia, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958). The whole history of the cases in this Court on gov- ernmental employees’ Fifth Amendment rights to remain silent make it plain that it is not improper to Aismiss such employees where they have a duty to speak‘and fail to do so despite the fact that they are not requirzd to waive immunity from prosecution. : PETITIONER’S ACTION IN DISMISSING RE- SPONDENT DID NOT VIOLATE RESPON- DENT’S FIFTH AMENDMENT RIGHTS. Briefly and most succinctly put, it is the petitioner’s posi- tion that Mr. Cox’s Fifth Amendment rights were in no way prejudiced because, before he was questioned, he was advised of his rights and then asked to give a voluntary statement. This was altogether proper and in no way Vi- olated his rights. At least to these petitioners’ knowledge, it has never been held to be a violation of anyone’s rights to be asked to give a voluntary statement after being given the Miranda rights. Then, when Commissioner Roberts ordered Mr. Cox to cooperate on pain of dismissal, said warning, as a matter of law, constituted coercion and, as a matter of law, nothing he said thereafter nor the fruits thereof could be used against him in a criminal proceeding. Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed. 2d 562 (1967). Coupled with the fact that Mr. Cox was 8 informed of his right to counsel and actually had counsel present with him, his rights were at all times fully protected. Mr. Cox’s primary reliance has been on the assertion that a municipality cannot dismiss an employee for failing to answer questions when he relies on his Fifth Amendment rights, and that such violates the due process clause of the Fourteenth Amendment to the United States Constitution. It is respectfully submitted that this assertion is unsound in law, and contrary to the decisions of this Court. This Court dealt with this subject in Beilan v. Board of Education of Philadelphia, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958). Therein, the petitioner, a public school teacher, was discharged by the local school board because of his refusal, continued after a warning that failure to answer might lead to his dismissal, to answer a question of his superintendent as to his membership in a Communist political association. This Court said therein: “By engaging in teaching in the public schools, pe- titioner did not give up his right to freedom of belief, speech or association. He did, however, undertake obligations of frankness, candor and cooperation in answering inquiries made of him by his employing Board examining into his fitness to serve it as a public school teacher.” This Court further said: “The board based its dismissal upon petitioner’s re- fusal to answer any inquiry about his relevant activities — not upon those activities themselves. .. . It found him insubordinate and lacking in frankness and candor.” This Court then went on to distinguish Slochower v. Board of Higher Education, 350 U.S. 551, 100 L.Ed. 692, 76 S.Ct. 637, cited by Mr. Cox, on the basis that that case ERE RA MD ARE IE epee Seem _ . x nv ~ See Nas HY. A ere ee ™ — SEE ONE SPOTL LE TE TOA ES RET I TTS NH ee Eee treme net RRL ERE er OTR ONT SOREN ER, 9 did not involve an inquiry by city authorities themselves as to a matter directed at “ ‘the property, affairs, or govern- ment of the city, or . . . official conduct of city employees.’ ” Here, as in Beilan, the inquiry was by city authorities as to a matter concerning the “affairs” and “government of the city”. Certainly, it is a proper function of city govern- ment to investigate murders and apprehend the perpetra- tors thereof. Similarly, it is proper for city authorities to investigate the conduct of its employees while on duty and to find out if and why communications between them and known felons is necessary in the course of city business and on city time. Thus, this case clearly falls within the doctrine first enunciated in Beilan and is distinguishable from the Slochower case. Very important to the decision in the case at bar is the decision of this Court in Garrity v. New Jersey, supra, which dealt with the other side of the coin (i.e., whether statements obtained from city employees under threat of job loss could be used against them in a criminal proceed- ing). In that case, as in the case at bar, during the course of an official investigation, certain officers were called in and, as a prelude to questioning, were advised that anything they might say could be used against them in a criminal proceeding; that they had the privilege to refuse to answer if their answer would tend to incriminate them; and that if they refused to answer, they would be subject to removal from office. As a result of the latter, they answered the questions. Thereafter, some of their answers were used against them, over their objections, in a criminal proceed- ing and they were convicted. On appeal to this Court, it was held that having the choice of self-incrimination or job forfeiture imposed upon them was tantamount to coercion, thereby rendering their statement involuntary and their convictions were reversed. This Court said: Pte LARGO LET OY VRPT RIOT ee SO 10 “We now hold the protection of the individual un- der the Fourteenth Amendment against coerced state- ments prohibits use in subsequent criminal proceed- ings of statements obtained under threat of removal from office, and that it extends to all whether they are policemen or other members of the body politic.” The immunity thus conferred by threat of removal from office, and as conferred by Garrity, has been termed ‘“‘use immunity”. Applying Garrity to the case at bar, it is plain that peti- tioner was not deprived of his Fifth Amendment rights. In both cases the officers were advised that anything they said could be used against them in a criminal pro- ceeding; in both cases they were advised that they had the privilege to remain silent if their answers might tend to incriminate them; and in both cases they were advised that if they refused to answer they would be subject to removal from office. If Mr. Cox had chosen to speak, it is clear under Garrity, that his answers could not have been used against him. He, therefore, had no Fifth Amendment right to remain silent because where the government is precluded from using testimony or its fruits against a witness in a criminal proceeding, he may be compelled to answer (Murphy v, Waterfront Commission of New York, 378 U.S. 52, 100, 101, 84 S.Ct. 1594, 12 L.Ed.2d 678). Since there was, then, no Fifth Amendment right to rem2ii silent, Mr. Cox’s dismissal for remaining silent could not violate his rights. This case is directly analogous to a situation, such as Murphy, where a witness chooses to remain silent after being given immunity by a court. Therein, it was held that he may be cited for contempt of court without vio- lating his Fifth Amendment rights. Here, instead of being *. is TO cae ee 1] cited for contempt, he was discharged and his discharge no more violates his rights than did the contempt citation in Murphy. The privilege against self-incrimination was designed to prohibit the government from using a man’s compelled testimony against him and was not designed to allow a witness to use the privilege to shield others or to relieve himself from the central duty to give evidence. Ullman v. United States, 350 U.S. 422, 428, 100 L.Ed. 511, 76 S.Ct. 497, 53 A.L.R.2d 1008; Brown v. Walker, 161 US. 591, 597, 40 L.Ed. 819, 16 S.Ct. 644; Quinn v. United States, 349 U.S. 155, 161, 162, 99 L.Ed. 954, 75 S.Ct. 668, 51 A.L.R.2d 1157; 34 Minn. Law Review 1; Levy Origins of the Fifth Amendment; 8 Wigmore, Evidence (Rev. Ed.) Section 2250; Rogers v. United States, 340 U.S. 367, 371, 95 L.Ed. 344, 71 S.Ct. 438, 19 A.L.R.2d 378. Several other recent decisions of this Court are also important in consideration of this case. In Gardner v. Broderick, 393 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968) sand Uniformed Sanitation Men’s Association Vv. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968), a new element was injected. There the.public authorities attempted both to coerce testi- mony by threatening removal and to require a waiver of immunity from prosecution, an element not found in the case at bar. The net effect of this was to compel to re- linquishment of Fifth Amendment rights because the waiver of &nmunity from prosecution would operate to destroy the “use immunity” and permit coerced testimony" to be used in a criminal proceeding. This was obviously unconstitutional and this Court so hela. In Gardner, the police officer was dismissed pursuant to a provision of the New York City Charter which provided that the employment of a city employee would terminate 12 if he should refuse, before an appropriate tribunal, to answer questions in relation to his duties on the ground that his answers might tend to incriminate him, or if he should refuse to waive immunity from prosecution on ac- count of any such matter in relation to which might be properly called upon to testify. The officer was dismissed because as a witness before the Grand Jury he refused to waive immunity from prosecution. This occurred prior to the Garrity decision. In holding that the requirements of a waiver of immunity voided the dismissal, this Court, nevertheless, with approval announced the following prin- cipals, 392 U.S. 273, 277, 88 S.Ct. 1913, 20 L.Ed.2d 1086: “If appellant, a policeman, had refused to answer questions 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 prose- cution of himself, Garrity v. New Jersey, supra, the privilege against self-incrimination would not have been a bar to his dismissal.” This is precisely what happened in the case at bar. Mr. Cox was never asked nor required to waive immunity from prosecution nor to waive the “use immunity” conferred upon him by Garrity. Thus, the privilege against self- incrimination is not a bar to his dismissal. These same principals were applied in the Uniformed Sanitation Men’s Association case. There, as in Gardner, the employees had been discharged because of their refusal to sign waivers of immunity from prosecution in the course of investigatory proceedings. The Court said in Gardner: “Petitioners as public employees are entitled, like all other persons, to the benefit of the Constitution, including the privilege against self-incrimination. At sw bee 13 the same time, petitioners, being public employees, subject themselves to dismissal if they refuse to account for their performance of their public trust, after proper proceedings, which do not involve an attempt to coerce them to relinquish their constitutional rights.” Thus, if Mr. Cox here was not required to waive im- munity from prosecution as guaranteed by Garrity, his con- stitutional rights were not infringed. Adding further credence to this is, that upon reversal of the dismissal of the employee by this Court in the Uni- formed Sanitation Men’s Assocation case, the New York San- itation Department again called the men in, advised them of their constitutional rights, including the right to counsel and to remain silent, but warned them that failure to an- swer the questions would subject them to disciplinary ac- tions. They were further advised that answers they gave could not be used against them in a criminal prosecution. The men again refused to answer on the ground of privilege against self-incrimination. They were thereupon suspend- ed and later were dismissed and again sought relief in the federal courts. They were, as in the case at bar, granted summary judgment and their reinstatement was directed by the District Court, but the Court of Appeals reversed with instructions to grant summary judgment for the de- fendants. Uniformed Sanitation Men’s Association, Inc. v. Commissioner of Sanitation, 426 F.2d 619 (1970). Judge Friendly quoted from the above cases of this Court and then held inter alia: “These extracts make as clear as anything can be that ‘use immunity’ suffices for the discharge of public employees who ‘refuse to account for their per- formance of their public trust.’ . . . To require a public body to continue to keep an officer or employee who refuses to answer pertinent questions concerning 14 his official conduct, although assured of protection against use of his answers or their fruits in any criminal prosecution, would push the constitutional protection beyond its language, its history or any conceivable pur- pose of the framers of the Bill of Rights.” “If ‘use immunity’ thus suffices to permit the dis- charge of a public employee who refuses to answer questions about his conduct on the ground of self- incrimination, we see no reason why there must be a statute conferring it:’”” Finally, the Court observed: “Justice Fortas stated in so many words that if a public officer is asked about performance of his official duties and is not required to waive immunity, the privilege is not a bar to his dismissal for his refusal to answer.” The Court then held that public employees do not have an absolute right to keep silent and keep their jobs, but just the right to have neither what they say under com- pulsion, nor its fruits, be held against them in a criminal proceeding. This Court thereafter denied review of the second Uni- formed Sanitation Men’s Association case, 406 U.S. 961, 32 L.Ed.2d 349, 92 S.Ct. 2055 (1972). The only material difference between that case and the one at bar is that Mr. Cox here was not advised by the police of the Garrity decision and “use immunity”. How- ever, this was not necessary because he was given full op- portunity to confer with counsel of his own choosing and this was adequate provision for protection of his rights. Further, counsel was permitted to go back to his law office to consult the law if he chose, and it was not until the next day, after a subsequent conversation between coun- sel and the Commissioner, that Mr. Cox was dismissed. PROTA INN HARARE LIONS 15 As this Court held in the landmark decision of Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602: “The denial of the defendant’s request for his attor- ney does undermine his ability to exercise the privilege — to remain silent if he chose or to speak ithowt any intimidation, blatant or subtle. The presence of coun- sel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege.” In the most recent case decided on the issue, Gerace v. County of Los Angeles, 100 Cal.Rptr. 917, cert. denied —— U.S. ——, 93 S.Ct. 444, 34 L.Ed.2d 306, reh. denied, —— U.S. ——, 93 S.Ct. 1353, 35 L.Ed.2d 615 (Feb. 20, 1973), the Court there held exactly in accord with the petitioner's position herein. After discussing Garrity, Gardner, and Murphy, it held: “In brief, neither one of the appellants were re- quired to give up immunity. In fact, they were specifically granted one by the form of the investiga- tion and indirectly but nonetheless effectively by the compulsion of testimony. Such immunity removed any constitutional objection to compelling their an- swers. When the department chose to invoke administra- tive procedures to inquire into their fitness as police officers and most particularly when they chose to com- pel answers by invoking the Manual of Policy and Ethics, the appellants became secure from prosecution as surely as if a grant of immunity had been given to them.” Thus, it cannot be doubted that the rule that where an employee is not required to waive immunity from prosecution, he may be dismissed for failure to answer 16 questions after being advised that the refusal to do so will lead: to disciplinary action. Further, the Court in Gerace took up the issue of wheth- er an employee may be dismissed for conduct not related to assigned duties although related to official duties. In that case, two sheriff's deputies, who were husband ‘and wife, were discharged after being granted use in.munity in an administrative investigation, for securing an unlawful abortion for the wife and failing to arrest the abortionist. Against their contention that the investigation in question- ing was not specifically, directly and narrowly related to the performance of their official duties, inasmuch as they were not assigned to the vice squad and the matters in- quired about were of a private and personal nature and not related to official duties, the Court said: “Nor is it of any aid to the Geraces that their as- signed duties did not involve them in the active in- vestigation of the crime of abortion, nor that the ques- tioned activity occurred during off-duty hours.” The Court then went on to hold that their duties were not limited to a certain specialty which might happen to be a major focus of their current departmentai assignment and that good administration demanded that “personnel adhere strictly to policies designed to prevent the erosion of the competency and integrity of the law enforcement service.” The thrust of Mrs. Gerace’s duties had been toward transporting female prisoners and working with _ juries. Mr. Gerace’s duties had been in doing background investigations on those in the reserve force. Perhaps most directly here in point is the concurring opinion in Gerace, wherein it was, provided: “The authority of the sheriff to command truth from his peace officers during an official investigation should 17 be unquestioned; otherwise the age-old question who watches the watchman will receive an unsatisfactory answer. The sheriff is entitled to require his deputies to reveal the identities of felons he is charged with ap- prehending . . . since the sheriff is charged with the apprehension of such persons he may require his deputies to assist him in the performance of that duty to the fullest extent possible. Thus, viewed in true prospective, the cause arose from a complaint of extortion by deputy sheriffs, in the investigation of which the sheriff became entitled to demand truthful answers from his deputies, and the deputies became obliged to give truthful answers to the sheriff. When appellants failed to do this, their discharge as peace officers became warranted. Indeed, it is difficult to see how the sheriff could have acted otherwise and still preserve the integrity of his office.” Similarly, under the situation in the case at bar, the authority of the Commissioner of Fire and Police during an official investigation over those under his command should be unquestioned. Since the Commissioner is charged with the apprehension of felons, he should be able to require all of his employees to assist him in the performance of that duty to the fullest extent possible. Indeed, in a recent Tennessee case, Broyles v. State, 207 Tenn. 571, 341 S.W.2d 724 (1960), a police chief was removed from office for failure to report a subordinate’s illegal conduct to the chief's superior. The Tennessee Supreme Court said therein: “One whose duty it is to enforce the law should be much more conscientious in seeing that he and those under him comply with the law in its every detail so 18 that in trying to bring to bear the statutes as written that he should have respect in administering the law.” Thus, it is clear, that the Commissioner of Fire and Police having the duty to enforce the law, he must see to it that all of his subordinates are conscientious in order that he might have respect in administering the law. Mr. Cox having failed to cooperate, he is subject to dismissal. It is further clear, from the Broyles case, that the miscon- duct necessary for removal need not imply corruption or criminal intention and may fall short of the commission of a crime itself. It is therefore respectfully submitted that the Commis- sioner of Fire and Police’s order to Mr. Cox was perfectly in order and necessary to faithfully comply with the duties of his office, and it was the duty of Mr. Cox to candidly and frankly answer the questions put to him. Failing that, he was properly discharged for insubordination and con- duct unbecoming a member of the department. CONCLUSION It is respectfully submitted that Mr. Cox’s Fifth Amend- ment rights were at no time infringed. When he was first questioned, it was with the idea of his making a volun- tary statement after being informed of his rights. This was certainly no infringement of the Fifth Amendment. Then, when it became obvious that he would not answer, and the Commissioner of Fire and Police ordered him to do so on pain of dismissal, his Fifth Amendment rights were protected by the use immunity made applicable by Garrity v. New Jersey. There was no time when his rights were in any way violated, and, if anything, they were more than abundantly protected by letting him make so many = 4 : ONE RT SA ye rene gence Kir een eect 19 phone calls, having the presence of counsel and waiting until the next day to dismiss him, giving counsel and him- self time to fully consider the matter. As to the matter of the order Mr. Cox refused to obey being related to his duties, if his superior, whose duty it is to apprehend criminals and to administer the single de- partment of Fire and Police, cannot call upon members of the department, his subordinates, to help him fulfill the duties of his office, then certainly the efficiency of the © department and the public’s respect for and trust in the department are seriously jeopardized. Further, his su- perior should have the unquestioned right to determine if and why Mr. Cox apparently found it necessary to speak with a known and convicted felon during his on-duty hours, using the unlisted phone number of the fire hall at which he worked. It is therefore submitted that the order of Commissioner Roberts to cooperate on pain of dismissal was perfectly in order and that the authority hereinabove cited amply demonstrates that it was Mr. Cox’s duty to cooperate or be subject to valid dismissal. It is therefore respectfully submitted that this Court should review the action of the courts below in holding that Mr. Cox’s Fifth Amendment rights were violated. Respectfully submitted, EUGENE N. COLLINS City Attorney RANDALL L. NELSON Special Counsel for the City of Chattanooga, Tenessee 400 Pioneer Building Chattanooga, Tennessee 37402 Re ai ee a ae ete ee Ee ee 21 APPENDIX IN THE CHANCERY COURT, PART 1, OF HAMILTON COUNTY, TENNESSEE No. 45510 RAYMOND COX, Plaintiff, v. CITY OF CHATTANOOGA, et al., Defendants. CHANCELLOR'S MEMORANDUM OPINION (Filed October 17, 1972) This is a certiorari proceeding to review the action of the City Commission of Chattanooga, after hearing, discharging the petitioner, Raymond Cox, from his position in the City Fire Department. The Cause has been submitted to the Court upon motions for summary judgment filed both by the plaintiff and defendants and upon briefs and argu- ment. The City Police Department was investigating a murder case when a suspect was arrested in Atlanta, Georgia and was found in possession of an address book which con- tained the name of the petitioner, Raymond Cox, and be- side it a telephone number which was the number for the fire hall where petitioner was employed. Another number for the same fire hall was also found in said address book. Following up this lead, detectives of the City of Chattanooga Fo EP OEE — —s ras a 22 went to the residence of the petitioner and asked him to accompany them to police headquarters, which he did. Upon arriving at police headquarters and before question- ing the petitioner he was submitted a “Your Constitutional Rights” form stating, among other things, “You have the right to remain silent. Anything you say can be used against you in court. . . .” and the pertinent part of said form, which was as follows: “WAIVER OF RIGHTS I have read this statement of my rights and I under- stand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure, force or coercion of any kind has been used against me. RE Wtwe in caked bbeupauee