Harrison v. Wille, 96-5190

Decision Date09 January 1998
Docket NumberNo. 96-5190,96-5190
Parties13 IER Cases 1066, 11 Fla. L. Weekly Fed. C 921 Michael HARRISON, Plaintiff-Appellant, v. Richard P. WILLE, individually and in his official capacity as Sheriff of Palm Beach County, Bennie Green, Michael S. Tucker, Daniel McBride, individually and in their official capacities of the Palm Beach County Sheriff's Office, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

James D. McMaster, W. Palm Beach, FL, for Plaintiff-Appellant.

Robert Wayne Gordon Evans, Powers, Quaschnick, Tischler & Evans, Tallahassee, FL, John D. Gronda, Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Braminck, P.A., Miami, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON, Circuit Judge, and CLARK and WELLFORD *, Senior Circuit Judges.

PER CURIAM:

Plaintiff appeals the grant of summary judgment in favor of Defendants on Section 1983 claims. Plaintiff alleges violations of the Fourteenth Amendment's guarantee of procedural due process and the Fifth Amendment. We hold that Plaintiff failed to allege facts sufficient to establish either of these violations, and we affirm the grant of summary judgment for Defendants.

Background

The basic facts in this case are undisputed.

In 1985 Plaintiff Michael Harrison was hired as a deputy of the Palm Beach County Sheriff's Office. During Plaintiff's employment with the sheriff's office, either Defendant Richard P. Wille (1977-95) or Defendant Charles McCutcheon was the county's sheriff. The remaining Defendants--Bennie Green, Michael S. Tucker, and Daniel McBride--were all deputies in the sheriff's office.

Beginning in 1991, items were being stolen from the evidence room at the sheriff's office. In 1994, an internal investigation, and a concurrent criminal investigation, were begun. Plaintiff was a suspect because the first of several thefts occurred at Plaintiff's substation, and the receipt and deletion of the evidence from the records seemed to have occurred during Plaintiff's times on duty. 1

On three occasions, Plaintiff, as one of several suspects, was asked to provide statements to investigating deputies about the thefts. Plaintiff appeared before an investigator each time and was given his Garrity rights. 2 Following the last statement, Plaintiff was placed on administrative leave with pay.

After the three interviews, Plaintiff was given notice that a predisciplinary conference would be held. This notice was provided at least one day before the first conference. At this conference Plaintiff was told that another theft had occurred during his shift. Defendant Green also explained the charges against Plaintiff and summarized for Plaintiff the information gained so far by the internal investigation.

At this conference, Plaintiff was given a form explaining his Garrity rights but was informed that no statements were being compelled--he need not say anything. Plaintiff's attorney advised him that, because no statements were being compelled, Garrity immunity did not exist and that Plaintiff should exercise his Fifth Amendment right against self-incrimination. 3 Plaintiff remained silent--exercising his right to do so under the Fifth Amendment.

After the predisciplinary conference, Plaintiff was suspended without pay. 4 The sheriff's office allows appeals from such disciplinary decisions to the Hearing Review Board. Plaintiff's counsel filed a timely appeal, but asked that the appeal be postponed to allow for the completion of the ongoing internal and criminal investigations--so Plaintiff would not face the repercussions of incriminating statements made during those proceedings. The appeal was postponed.

Before the appeal was reinitiated, Plaintiff received written notification of the misconduct charges against him, now nine (9) incidents. This notice was provided to Plaintiff on 22 August 1994. Soon after notice of the charges, Plaintiff and his counsel were permitted to review the internal affairs' investigation report, which then included ten (10) instances of theft. Plaintiff's counsel raised two issues about the accuracy of the report at that time.

In September, a second predisciplinary conference was held, which again resulted in Plaintiff's silence after receiving no Garrity protection. In October 1994, Plaintiff was terminated.

Again, Plaintiff's counsel requested the appeal--now an appeal of not just suspension, but termination--before the Hearing Review Board be postponed until completion of the criminal investigation. Review was again postponed. The criminal investigation was completed in February 1995 and resulted in no charges against Plaintiff.

In April 1995, the Hearing Review Board (now called a "Termination Review Board") heard Plaintiff's challenge to his termination. At that hearing, Plaintiff was provided Garrity protection; and he provided information in his own defense. By a 3-2 vote the Board sustained Plaintiff's termination; this decision was ratified by the current sheriff, Defendant McCutcheon.

Plaintiff filed suit against Defendants--all members of the sheriff's office involved with the investigation--under 42 U.S.C. § 1983. Plaintiff alleged violations of his procedural due process rights and his substantive due process rights. 5

The district court, in response to motions filed by all Defendants, granted summary judgment for Defendants on all claims. Plaintiff appeals that decision.

Discussion
I. Fifth Amendment Violation

Plaintiff alleges that the failure to afford him Garrity protection at the two predisciplinary conferences violated his Fifth Amendment right against self-incrimination. Plaintiff claims he was terminated for his exercise of this right. The record does not support that conclusion.

The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V. "The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973).

In Garrity v. New Jersey, (establishing "Garrity rights"), the Supreme Court held that, when public employees are given the choice of either forfeiting their jobs or incriminating themselves, the Fifth Amendment has been violated because a forced decision of that kind is "likely to exert such pressure upon an individual as to disable him from making a free and rational choice." 385 U.S. 493, 497, 87 S.Ct. 616, 618, 17 L.Ed.2d 562 (1967) (citation omitted). In Garrity, police officers subject to an internal investigation were told, before being questioned, that anything they said could be used against them and that they had a right to say nothing; but the officers were also told that if they refused "to answer [they] would be subject to removal from office." Id. at 494, 87 S.Ct. at 617. This conduct, the Court held, is a violation of the Fifth Amendment. Id. at 498, 87 S.Ct. at 619.

Later cases explained that Garrity only prohibits the compulsion of testimony that has not been immunized. See Turley, 414 U.S. at 82-83, 94 S.Ct. at 324-25. In other words, the employee may not be both compelled to testify (or make a statement) and be required to waive his Fifth Amendment rights. Gardner v. Broderick, 392 U.S. 273, 276-77, 88 S.Ct. 1913, 1915-16, 20 L.Ed.2d 1082 (1968). An "employee's rights are imperilled only by the combined risks of both compelling the employee to answer incriminating questions and compelling the employee to waive immunity from the use of those answers." Arrington v. County of Dallas, 970 F.2d 1441, 1446 (5th Cir.1992).

The result of these prohibitions is that a public employee cannot be terminated solely for the exercise of his Fifth Amendment rights. See, e.g., Lefkowitz v. Cunningham, 431 U.S. 801, 804, 97 S.Ct. 2132, 2135, 53 L.Ed.2d 1 (1977); Arrington, 970 F.2d at 1446; Buckner v. City of Highland Park, 901 F.2d 491, 496 (6th Cir.1990); Benjamin v. City of Montgomery, 785 F.2d 959 (11th Cir.1986); Hoover v. Knight, 678 F.2d 578, 580 (5th Cir.1982) (citing Gardner, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082, and Uniformed Sanitation Men v. Sanitation Commissioner of New York, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 [1968] ). Considered along with other evidence, however, an adverse inference may be drawn from an employee's exercise of his Fifth Amendment right to silence. Hoover, 678 F.2d at 582 & n. 1. 6

In this case, Plaintiff was not faced with the choice to make a statement or to be fired. First, Plaintiff, when not given Garrity protection, was never compelled to make a statement. Second, Plaintiff cannot show (and does not contend) that he was terminated solely for the exercise of his Fifth Amendment rights.

The termination of Plaintiff's employment came after a lengthy investigation in which other evidence incriminated him. Plaintiff does not dispute that other evidence about the thefts, besides his silence, led to Plaintiff's leave without pay and to his ultimate termination. Plaintiff signed the receipts for much of the stolen evidence, and the computer documented that some of the missing evidence had been deleted during Plaintiff's shifts. 7

To succeed in this action Plaintiff must submit sufficient facts upon which a reasonable jury could conclude that he was terminated solely because he remained silent at the predisciplinary conferences. Plaintiff has not met this burden.

Plaintiff must also show that he was compelled to waive his Fifth Amendment rights. "The government's mere failure to tender immunity cannot...

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