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Legal Issues

Civilian Investigative Panel

Police Officers' Rights

Federal "Garrity" rights

In Garrity v. New Jersey, 385 U.S. 493 (1967), the United States Supreme Court held that the New Jersey State Attorney General violated police officers' rights as outlined in the Fifth Amendment of the U.S. Constitution by forcing them to testify under the threat of being fired or subject to any other job-related sanction. The police officers in Garrity were suspected of ticket fixing during a New Jersey State Attorney General investigation. The officers were told prior to questioning that if they refused to answer, they would be terminated (pursuant to a New Jersey statute). The officers answered the questions and did not receive immunity. The officers' answers were later used to convict them. The Court held that the protection under the Fifth and Fourteenth Amendments against coerced statements "prohibits use in later criminal proceedings of statements obtained under the threat of removal from office, and that extends to all, whether they are policemen or members of our body politic."

In other words, if a police officer is being questioned, the officer must be issued a "Garrity warning" that essentially guarantees that anything he/she says cannot and will not be used against him/her during a criminal proceeding. Also, that officer cannot be forced to testify under a threat that the refusal to do so will be the basis for any job-related sanction. If the officer being questioned is not granted immunity, then he/she can "Plead the Fifth" and refuse to testify. That right, however, may only be invoked by someone facing criminal prosecution.

The current proposal for a Civilian Investigative Panel in Miami DOES NOT have the power to grant immunity – or protection from criminal prosecution. In addition, the CIP cannot compel officers or witnesses who may be facing criminal prosecution to testify. But other witnesses, who are not facing criminal prosecution, can be compelled to testify.

Police Officers' "Bill of Rights"

Law enforcement officers under investigation and subject to questioning are guaranteed certain rights as outlined in the "Policemen's Bill of Rights" of Florida Statute 112.532. Some of those rights include:

• The right to be interrogated at a reasonable hour, preferably while on duty and the right to be interrogated at the command office or at the office of the local precinct/police unit where the incident occurred;
• The right to have one interrogator ask questions at a time, and to have the interrogation recorded. (The law enforcement officer is entitled to a transcript within 72 hours).
• The right to be informed of the nature of the investigation.
• If the law enforcement officer is facing a possible arrest, then he/she has the right to be completely informed of all of his/her rights prior to the beginning of the interrogation.
• The law enforcement officer has the right to have his or her attorney, or other representative of choice, present during any questioning that relates to the officer's job performance.

In addition to the rights outlined in the statute, appellate courts in Florida have also addressed the issue of police officers' rights while under investigation. The Florida Supreme Court held in Farmer v. City of Fort Lauderdale, 427 So. 2d 187 (1983), that a police officer cannot be dismissed from his job for failing to take a lie-detector test since the results of a polygraph are inadmissible in courts of law.

In West v. State Dept. of Criminal Law Enforcement, 371 So. 2d 107 (Fla. 1st Dist. Ct. App. 1978), the First District Appellate Court held that under Florida and federal constitutional case law, law enforcement officers, including special agents of the Department of Criminal Law Enforcement, must be notified of the reason for their suspension and/or termination and be afforded a hearing prior to the effective date of such action, particularly in the situation of a termination that involves public allegations that may damage their reputation.

In addition to what is stated above, no law enforcement officer may be discharged, disciplined, demoted, or transferred for exercising his statutory rights. Furthermore, if any agency employing law enforcement officers fails to comply with the statutes providing for law enforcement officers' rights, a law enforcement officer does have the legal right to seek an injunction with an appropriate court of law.

The "Policemen's Bill of Rights" also preserves the right of the law enforcement officer to sue for damages suffered while performing duties caused by anyone who files a complaint against him or her. For example, the police officer has the right to sue for defamation of character (i.e., libel or slander). However, a complainant may be protected against such legal action if the complaint was made in some type of judicial proceeding.

Over the years the Florida Attorney General has rendered many opinions in regards to the rights of policemen. Some of those decisions state that:

• Investigations related to police misconduct can be conducted by a city mayor or outside parties as delegated by the city council. 1975 Fla. Op Att'y Gen 075-41 (February 19, 1975).
• Law enforcement agencies are mandated by Florida Law to have review boards and complaint procedures. A municipality can create police review boards, as long as they do not contravene the provisions of the "Bill of Rights" or any civil service rule. Procedure cannot contravene local or state laws, and cannot provide for judicial review. 1976 Fla. Op Att'y 076-38 (February 18, 1976)
• An investigation of a law enforcement officer under Fla. Stat. 112.533 ceases to be active when the officer under investigation resigns. 1991 Fla. Op Att'y Gen 91-73 (September 23, 1991).

Other Legal Issues

Subpoena Powers of a Civilian Review Board

In Barry v. Garcia, 573 So. 2d 932 (Fla. 3d Dist. Ct. App. 1991) an appellate court dismissed a claim against two police officers who were under investigation by the City of Miami's Ad Hoc Independent Review Panel. The investigative panel was established in 1989 in response to the disturbances following the fatal shooting of two motorcycle riders by officer William Lozano. The panel, which was granted subpoena power by the City Commission, summoned the officers to testify. However, the officers refused to appear before the panel. The court ruled in favor of the officers because the panel was unauthorized to issue subpoenas. Although the City Commission gave the panel subpoena power, it was unauthorized because it was accomplished by resolution rather than by a city ordinance, and the panel was not specifically listed in the city's charter.

Unlike the example mentioned above, the Miami City Commission has now approved a ballot referendum to amend the city's charter and create the current proposal for a civilian investigative panel, therefore giving the CIP the authority to issue subpoenas. (This authority, however, may only be used upon the approval of the Independent Counsel and in consultation with the State Attorney's Office). In addition, powers of the CIP will be detailed in an ordinance enacted by the City Commission following the amendment to the Charter.

Florida "Whistle Blower's Act"

Florida Statutes §112.3187, often referred to as the "Whistle Blower's Act" prevents public employers from taking retaliatory action against any employee who discloses illegal acts on the part of a public employer that create a danger to the public's health, safety, or welfare. However, the "Whistle Blower's Act" does not protect an employee or person who discloses false information. To receive protection under the "Whistle Blower's Act," the employee must disclose information that is:

(1) A violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or that creates a danger to the public's health, safety, or welfare;

(2) An act or suspected act of gross mismanagement of public funds, or gross neglect of duty committed by an employee or agent of an agency or independent contractor.

The information must be disclosed to an agency or federal government entity having the authority to investigate the violation, such as the Office of the Chief Inspector General.

For disclosures concerning a local governmental entity, including any regional, county, or municipal entity, special district, community college district, or school district or any political subdivision of any of the foregoing, the information must be disclosed to a chief executive officer or other appropriate local official. However an employee who discloses illegal activity to a supervisor, but not to a governmental agency, is not entitled to protection.

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