June 9, 2021

Compelled Internal Affairs Interviews and Fifth Amendment Rights

By Mike Callahan, J.D.

Protecting constitutional rights of officers accused of wrongdoing while also preserving departmental internal discipline and officer fitness for duty presents police managers with complex and difficult legal challenges. Law enforcement leaders must understand the legal principles involved in this delicate balance and apply them fairly and effectively. They can do this by creating a policy that protects the Fifth Amendment rights of involved officers while simultaneously meeting the department’s duty to ensure that its officers are suitable to continue performing as public servants.

A careful examination of an Indiana Court of Appeals decision in Criswell v. State of Indiana will assist law enforcement managers in successfully navigating the often-confusing constitutional challenges presented by internal department disciplinary interviews.¹ The Criswell case provides a recent and clear example of how a state appellate court examined and applied universally applicable U.S. Supreme Court constitutional protections² to reach a correct result in a matter involving a denial of an officer’s Fifth Amendment rights.³

Case Analysis

In August 2013, Sergeant Criswell of the Fort Wayne, Indiana, Police Department (FWPD) attended a party at another officer’s home. During the party, Criswell and two officers’ wives went to a nearby empty home that was subject to foreclosure. They allegedly entered by force and left with a chainsaw and some gas cans. This activity was reported to the Allen County, Indiana, Police Department (ACPD), and a criminal investigation was initiated.

Mr. Callahan retired as a supervisory special agent and chief division counsel from the FBI’s Boston office.

Dual Investigations: Disciplinary and Criminal

In November 2013, Chief York of the FWPD ordered an internal affairs investigation into the matter. Criswell was interviewed by FWPD internal affairs officers and presented with a written document identified as a Garrity notice. The notice stated that he was to be questioned about fitness for duty and informed him that if he refused to answer questions, “You will be subject to departmental charges that could result in your dismissal. ...”⁴ It further stated, “Your statements and any information or evidence that is gained by reason of such statements cannot be used against you in any subsequent criminal proceedings (except for perjury or obstruction of justice charges).”⁵

Criswell signed the notice, agreed to be interviewed and gave a statement.⁶ Later, during the separate criminal investigation, prosecutors issued a subpoena for production of Criswell’s internal affairs statement, which was provided to and reviewed by the ACPD detective. After reading Criswell’s statement, the detective interviewed the officers’ wives who participated in the incident with Criswell.

Criminal Charges and Judicial Proceedings

In May 2014, the state charged Criswell with two misdemeanors for criminal trespass and conversion. Criswell filed a motion to dismiss or suppress, arguing that the charges stemmed from a violation of his Fifth Amendment privilege against self-incrimination as enunciated by the U.S. Supreme Court in Garrity v. New Jersey⁷ and Kastigar v. United States.⁸

The trial court denied Criswell’s motion, and he filed an appeal. The Indiana Court of Appeals reversed and ruled that Criswell’s statement to FWPD internal affairs must be suppressed in any criminal proceeding. The court remanded the case and ordered a Kastigar hearing⁹ to determine whether any evidence intended for use by the state was directly or indirectly derived from Criswell’s statement.

Rationale for the Ruling

Review of the U.S. Supreme Court Decisions in Garrity v. New Jersey and Gardner v. Broderick¹⁰

The Indiana Court of Appeals reviewed the Garrity decision in which officers were investigated for fixing traffic tickets. Before questioning, they were told their statements could be used against them in criminal proceedings. They were instructed they could refuse to speak on self-incrimination grounds, but refusal to answer would subject them to job dismissal. The officers chose to speak, and their answers were used in criminal cases against them. Convictions followed, but the Supreme Court reversed.

The Supreme Court observed that the choice given to the officers was job loss or self- incrimination. The Court described this option as the antithesis of the free choice to speak or remain silent. The Court ruled that the Fifth and Fourteenth Amendments prohibit “use in subsequent criminal proceedings of statements obtained under threat of removal from office.”¹¹

The Indiana court next reviewed the Supreme Court’s Gardner decision. In Gardner, the Court further clarified Garrity and ruled that an officer’s right against self-incrimination was violated when he was fired after being told that refusal to waive his Fifth Amendment privilege and testify before a grand jury would result in dismissal. The Court explained that he was entitled to immunity from having his words used against him in a criminal prosecution after being told that he would be subject to job loss unless he waived his right against self-incrimination.¹²

Conversely, the Court explained, “If appellant, a policeman, had refused to answer questions directly relating to the performance of his official duties, without being required to waive his immunity … in a criminal prosecution of himself, ... the privilege against self-incrimination would not have been a bar to his dismissal.”¹³

Application of Garrity and Gardner to the Criswell Case

The Indiana Court of Appeals ruled that the Garrity notice given to Sergeant Criswell was “sufficient to lead Criswell to believe that he would lose his job or suffer similarly severe employment consequences if he were to remain silent.”¹⁴ Further, the court observed that Criswell was “assured, in writing, that any statements he made could not be used against him in any potential subsequent criminal proceedings.”¹⁵ The court determined that the Garrity and Gardner decisions applied to Criswell’s case and ruled that the promise of immunity was jettisoned by the prosecution when it tried to use Criswell’s statement in a criminal proceeding against him. The court stated, “Accordingly, we conclude that the trial court abused its discretion in denying Criswell’s motion to suppress his statement.”¹⁶

“Use Immunity” Pursuant to the Supreme Court Decision in Kastigar v. United States

The Indiana Court of Appeals reviewed the Supreme Court’s Kastigar decision and observed that in Kastigar, the Court ruled that the Fifth Amendment’s protection from self-incrimination requires “Immunity from the use of compelled testimony [e.g., Criswell’s statement], as well as evidence derived directly and indirectly therefrom” in a criminal proceeding.¹⁷ The Supreme Court also ruled that the government has the burden of proving “that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.”¹⁸

As previously stated, the Indiana Court of Appeals remanded the Criswell case for a Kastigar hearing to determine whether evidence intended for use by the state against Criswell was derived directly or indirectly from Criswell’s internal affairs statement. The lower court must determine whether the criminal investigation interviews of the two police wives were tainted by the criminal detective’s prior review of Criswell’s statement.

“The actions of the prosecution clearly violated Criswell’s Fifth and Fourteenth Amendment rights.”

Conclusions and Recommendations

In Criswell, internal affairs officers compelled a statement under threat of job loss but informed Criswell that the statement and evidence derived therefrom would not be used in a criminal proceeding against him. Rather than honor Criswell’s constitutional rights, the prosecution used criminal subpoena power to access the statement, furnished it to a criminal investigator for use in a criminal investigation, and tried to use it in a criminal proceeding against Criswell. The actions of the prosecution clearly violated Criswell’s Fifth and Fourteenth Amendment rights.

The author offers recommendations for consideration in the creation of a written policy to assist police managers in handling matters of this nature. These recommendations are meant to be considered as a guide and are not intended to cover every major issue or problem that may arise in this complex field of operations.¹⁹

If an officer is suspected of criminal conduct, before attempting to interview the officer, the known facts should be presented to the local prosecutor for a written opinion as to whether criminal charges will be pursued.
If criminal charges will be pursued, it should be determined which agency will conduct the criminal investigation. Consideration should be given to request that an independent agency conduct the investigation. If this is not practical, to avoid conflicts of interest and improper sharing of constitutionally protected information, criminal investigators must be completely separated from internal affairs investigators.
When investigations are criminal in nature, interviews with subject officers must be entirely voluntary. Officers should be told that the interview is criminal in nature, there is no departmental compulsion involved (i.e., threat of discipline or job loss), they have a right to remain silent, and anything said can be used in criminal proceedings.
If the prosecutor does not intend to bring criminal charges, the police chief or designee should proceed with internal discipline procedures.
At the time of the interview, subject officers should be told that the interview is for internal discipline and fitness-for-duty purposes, that they are ordered to speak or be subject to job dismissal, and that anything said or derived therefrom cannot be used in any criminal proceedings against them unless the answers provided are not truthful. No threat of job termination should be made unless accompanied by the required “use immunity” statement (i.e., nothing said or derived therefrom will be used in criminal proceedings against the speaker).
During departmental disciplinary interviews, officers should not be ordered on threat of job loss to waive their Fifth Amendment right to “use immunity” from criminal prosecution for what they say. Such an order has the potential to result in civil rights liability.²⁰
Absent unique circumstances, it is not wise to conduct simultaneous criminal and internal departmental investigations. As in Criswell, this can result in evidence suppression, burdensome Kastigar hearings and potential civil rights liability.
If dual simultaneous criminal and internal investigations are warranted by special circumstances, great care must be exercised to ensure that no information or material obtained or derived from a compelled interview with a subject officer by investigators in the internal disciplinary investigation is provided to investigators or prosecutors conducting the criminal investigation. To avoid potential conflicts of interest, internal affairs investigators should report directly to the agency chief or director.
If a serious criminal investigation is warranted, consideration should be given to suspending the subject officers with or without pay until the criminal investigation is concluded. Suspension from active duty and removal of the subject officer’s weapons should occur when there exists a reasonable likelihood of danger to the public or specific persons (e.g., the wife or husband in a domestic abuse situation).

“Law enforcement leaders must understand the legal principles involved in this delicate balance and apply them fairly and effectively.”

The recommendations in this article do not necessarily reflect the views, practices and policies of the FBI.

Mr. Callahan can be reached at mcall0728@comcast.net.

Endnotes

¹ Criswell v. State of Indiana, 45 N.E. 3d 46 (2015).
² See Garrity v. New Jersey, 385 U.S. 493 (1967); Gardner v. Broderick, 392 U.S. 273 (1968); and Kastigar v. United States, 406 U.S. 441 (1972).
³ Notwithstanding the U.S. Supreme Court rulings in the cases set forth in endnote 2 that apply to all state and local officials through the Fourteenth Amendment, Indiana prosecutors ignored Supreme Court precedent and attempted to use an officer’s compelled internal disciplinary statement against him in a criminal proceeding as explained in this article.
⁴ Criswell, at 48.
⁵ Id.
⁶ See Rebecca S. Greene, ”Ex-Detective Awaits Appeal of Charges in Trespass Case,” The Journal Gazette, March 16, 2016, accessed November 18, 2020, https://www.journalgazette.net/news/local/courts/Ex-detective-awaits-appeal-of-charges-in-trespass-case-5986763. Criswell’s FWPD punishment involved 5 days suspension and demotion from detective sergeant to uniform patrol.
⁷ Garrity.
⁸ Kastigar.
⁹ See discussion of the Supreme Court’s Kastigar decision infra this article.
¹⁰ Gardner.
¹¹ Garrity, 385 U.S. at 500. Subsequent to Garrity, federal courts have ruled that police officer plaintiffs, alleging a violation of Fifth Amendment rights in civil rights lawsuits filed pursuant to 42 U.S.C. §1983, must establish not only that they were coerced to give an incriminating statement based upon threat of job loss but also that their coerced statement was used in criminal proceedings against them. For example, in Mckinley v. City of Mansfield, 404 F.3d 418 (6th Cir. 2005), the Sixth Circuit observed, “it is now clear that ‘mere coercion does not violate the…Self-Incrimination Clause absent use of the compelled statements in a criminal case.’” (Quoting, Chavez v. Martinez, 538 U.S. 760, 769 (2003) (plurality opinion). The Sixth Circuit further noted, “It is only once compelled incriminating statements are used in a criminal proceeding, as a plurality of six justices held in Chavez v. Martinez, that an accused has suffered the requisite constitutional injury for purposes of a §1983 action.”
¹² Gardner, 392 U.S. 273, 276. “Answers may be compelled regardless of the [Fifth Amendment] privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution.”
¹³ Id. at 278. The Court explains that internal police disciplinary interviews involving an order for an officer to speak under threat of job loss do not run afoul of the Fifth Amendment as long as the officer is not required to waive ”use immunity” from criminal prosecution.
¹⁴ Criswell, 45 N.E. 3d at 54.
¹⁵ Id. at 55. Criswell was warned by the Garrity notice that his statement and evidence derived therefrom could not be used against him in a criminal proceeding. Federal appellate courts are split on whether officers are entitled to an explicit warning that statements compelled under threat of job loss and derivative evidence cannot be used in criminal proceedings against them. The Seventh and Federal Circuits require that a government employee subjected to an internal discipline interview be warned that statements compelled upon threat of job loss and evidence derived from them cannot be used against them in a criminal proceeding. See Atwell v. Lisle Park Dist, 286 F.3d 987, 990 (7th Cir. 2002); and Modrowski v. Depart of Veterans Affairs, 252 F.3d 1344, 1351 (Fed. Cir. 2001). The Second Circuit has also indicated that such a warning is necessary. See Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 426 F.2d 619, 621 (2d Cir. 1970).

Other Federal Circuits do not require an explicit warning, believing that a government employee is automatically entitled to “use immunity” when compelled to speak upon threat of job loss. These courts hold that ordering a public employee to speak upon a threat of job loss creates self-executing use immunity, obviating the need for an explicit warning. See, for example, Gulden v. McCorkle, 680 F.2d 1070 (5th Cir. 1982); Hill v. Johnson, 160 F.3d 469 (8th Cir. 1998); and Hester v. Milledgeville, 777 F.2d 1492 (11th Cir. 1985).
¹⁶ Id.
¹⁷ Kastigar, 406 U.S. at 453. The court’s statement contains the essence of so-called “use immunity.” The state of Massachusetts requires transactional immunity, which bars prosecution altogether for any crime arising out of the same subject matter. See, Carney v. City of Springfield, 403 Mass. 604 (1988); and Baglioni v. Chief of Police of Salem, 421 Mass. 229 (1995).
¹⁸ Id. at 460.
¹⁹ For other policy formation guidance from reliable public safety sources on this topic, see, for example, U.S. Department of Justice, Office of Community Oriented Policing Services, and International Association of Chiefs of Police, Building Trust Between the Police and the Citizens They Serve: An Internal Affairs Promising Practices Guide for Local Law Enforcement, accessed November 20, 2020, https://www.theiacp.org/sites/default/files/2018-08/BuildingTrust_0.pdf. Within this extensive policy guide, Appendix F features a comprehensive model policy prepared by the IACP National Law Enforcement Policy Center titled “Investigation of Employee Misconduct.”