Chief’s Counsel: What Potential Sanctions Trigger Garrity Protection?

It is not unusual, during an internal affairs investigation, for an officer (or the officer’s attorney), when asked a question to which the answer might be incriminating, to inquire, “What is the penalty if I refuse to answer?” Before replying to this query, a chief may want to consult the local district attorney’s office (so as not to impede a criminal prosecution) as well as the department’s legal advisor (where union issues or civil liability implications are involved). Courts routinely hold that a government employer may not compel an employee to appear and testify and may not induce him or her to forgo the Fifth Amendment privilege by threatening to impose economic or other sanctions that are “capable of forcing the self-incrimination which the Amendment forbids.”