by Dawn Morabe
We continue to face intense scrutiny from within our department, our legislators, and the public, which results in a flow of complaints and investigations. Matters related to these investigations and our legal defense are very nuanced and complex. No one ever wants to be the subject of an internal affairs investigation, but if you find yourself in that situation, here are some things you should have a basic understanding of.
Internal Affairs (IA) is a division of our department that investigates incidents, complaints, possible law violations, and professional misconduct of deputies. In essence, IA is a form of self-policing which conducts investigatory interviews of both administrative and criminal matters. IA routinely conducts criminal and non-criminal administrative investigations into allegations of misconduct to determine whether the misconduct has occurred, and whether disciplinary action is warranted. Generally, an administrative investigation will be conducted after criminal proceedings against an accused employee have been resolved, if there was criminal conduct alleged. And yes, I use the word “generally” intentionally.
Many public employers, such as the San Diego Sheriff’s Department, begin non-criminal, administrative investigatory interviews by reading what is called a “Garrity Statement, Advisement or Warning”. This enables the interviewer to question the employee and require that the employee respond. Generally, these compelled statements cannot be used in a subsequent criminal proceeding. And yes, I use the word “generally” once again.
The Garrity Rights doctrine protects public employees from being compelled to incriminate themselves in an investigatory interview by their employers. These rights derived from the 1967 United States Supreme Court decision, Garrity v. New Jersey and a series of subsequent related cases. This protection stems from the Fifth Amendment to the United States Constitution, which declares that the government cannot compel a person to be a witness against him/herself. The Supreme Court held “that the choice imposed on [the officers] was one between self-incrimination or job forfeiture,” a choice the court termed “coercion.” The court basically ruled that statements which a law enforcement officer is compelled to make under threat of possible forfeiture of the officer’s job could not consequently be used against the officer in a criminal prosecution. However, over the years, the courts have not always been consistent in their interpretation and application of Garrity Rights.
Furthermore, our protections are governed by the Fourteenth Amendment. The equal protection clause of the Fourteenth Amendment makes the Fifth Amendment applicable to state, county, and municipal governments. This was determined by the 1964 United States Supreme Court decision in Mally v. Hogan. These rights, as I stated earlier, are very nuanced and complex.
Our legal defense representation and benefits are, without question, the most important benefit we have. Understanding your rights and this process is important. If you find yourself in a situation where you are the subject of an investigation, immediately contact our legal defense attorneys. You are entitled to legal representation. Knowing whether you are being questioned for the purposes of a criminal allegation or administrative policy or rule violation is also important. Understanding your rights and Garrity is imperative.
If you are questioned about a rule violation, you are entitled to legal representation and you should answer all related questions truthfully. You can, and will be, compelled to answer these questions. You are required to tell the truth and you will be held to that requirement. Refusing to answer these questions will expose you to charges of insubordination and being subject to termination.
Let me end by saying that law police criminality and misconduct undermines the legitimacy of our profession and our nation’s sense of justice itself. The effective punishment of police officers who commit crimes, policy, and rule violations are essential for the public’s trust. However, this must always be balanced with the preservation of our own constitutional rights as citizens of this country. We have rights and we are entitled to the due process.⭑