Wiley v. Doory, 93-1759

Citation14 F.3d 993
Decision Date27 January 1994
Docket NumberNo. 93-1759,93-1759
PartiesJohn J. WILEY, Sergeant; Charles Bealefeld, Officer; Harry Van Cleaf, Officer; Joseph Struck, Officer; Thomas Tomsho, Officer; Fraternal Order of Police, Baltimore City Lodge 3, Incorporated, Plaintiffs-Appellees, v. Timothy DOORY, Individually and in his official capacity as Assistant State's Attorney for Baltimore City State Attorney's Office, Defendant-Appellant, and Mayor and City Council of Baltimore; State of Maryland; Baltimore City Police Department; Edward Tilghman, Commissioner of the Baltimore City Police Department; Stuart Simms, State's Attorney for the Baltimore City State Attorney's Office, Defendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Diane Krejsa, Asst. Atty. Gen., Baltimore, MD, for Appellant. Michael Lawrence Marshall, Schlachman, Belsky & Weiner, P.A., Baltimore, MD, for Appellees. ON BRIEF: J. Joseph Curran, Jr., Atty. Gen. of Maryland, Baltimore, MD, for Appellant. Herbert R. Weiner, Schlachman, Belsky & Weiner, P.A., Baltimore, MD, for Appellees.

Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, and WIDENER and WILLIAMS, Circuit Judges.

OPINION

POWELL, Associate Justice:

On December 7, 1987, a shooting occurred in which involvement by Baltimore City Police officers was suspected. 1 Appellant/Defendant Timothy J. Doory, as Assistant State's Attorney for Maryland, participated in a criminal and an internal investigation of the incident. 2 During the course of this investigation, Appellees/Plaintiffs Sergeant John J. Wiley, Officer Charles Bealefeld, Officer Paul Deachilla, and Officer Harry Van Cleaf were interrogated and called to testify before a grand jury. 3

Appellees were also ordered to take polygraph examinations. Officers Bealefeld, Deachilla, and Van Cleaf were told that "they were being given a direct order and refusal would result in immediate suspension." J.A. at 33, p 36. Sergeant Wiley "was ordered by Doory and police department representatives to take a State Police administered polygraph test upon threat of punishment, including the loss of his job." Id. at p 40. Only Officer Van Cleaf initially refused to take the examination. J.A. at 32, p 33. After the threats, each Appellee took the required test. None of the officers alleges that he asserted, or attempted to assert, his Fifth Amendment rights. The results as to Officers Bealefeld, Deachilla, and Van Cleaf indicated that their responses were truthful; the results as to Sergeant Wiley were inconclusive. The officers were not compelled to waive their Fifth Amendment rights, no charges were ever brought against them, and their statements have never been used against them. 4

The officers brought this action pursuant to 28 U.S.C. Secs. 2201, 2202 (1988 & Supp.1992), and 42 U.S.C. Sec. 1983 (1988 & Supp.1991), claiming a violation of their Fourth, Fifth, and Fourteenth amendment rights and seeking declaratory, injunctive, and monetary relief. Doory appeals from the district court's denial of his motion to dismiss, on the basis of qualified immunity, the police officers' claims for damages pursuant to Sec. 1983 and the Self-Incrimination Clause of the Fifth Amendment. 5 See Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-18, 86 L.Ed.2d 411 (1985) (holding that the denial of a claim of qualified immunity is an appealable final decision). The only issue before this Court is whether Doory is entitled to qualified immunity. 6

I

Qualified immunity shields a governmental official from liability for civil monetary damages if the officer's "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (citations and footnote omitted). "In determining whether the specific right allegedly violated was 'clearly established,' the proper focus is not upon the right at its most general or abstract level, but at the level of its application to the specific conduct being challenged." Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir.1992) (citations omitted). Moreover, "the manner in which this [clearly established] right applies to the actions of the official must also be apparent." Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.1992) (citing Tarantino v. Baker, 825 F.2d 772, 774-75 (4th Cir.1987), cert. denied, 489 U.S. 1010, 109 S.Ct. 1117, 103 L.Ed.2d 180 (1989)), cert. denied, --- U.S. ----, 113 S.Ct. 1048, 122 L.Ed.2d 356 (1993). As such, if there is a "legitimate question" as to whether an official's conduct constitutes a constitutional violation, the official is entitled to qualified immunity. Tarantino, 825 F.2d at 775.

Applying these principles, we conclude that Doory's conduct did not violate any clearly established right. 7

II

The police officers contend that compelling them to take the polygraph examinations by the threat of job loss violated their right against self-incrimination, notwithstanding that the statements have never been used against them. They further claim that the unconstitutionality of such coercion was clearly established at the time of Doory's alleged conduct. Doory argues that no violation of the Self-Incrimination Clause occurred because the officers were not required to waive their Fifth Amendment rights, and the statements by the police officers were never used against them in a criminal proceeding. In the alternative, Doory contends that, even assuming that a violation occurred, the law regarding such a violation was not clearly established at the time of his actions.

Upon consideration of Appellant Doory's motion to dismiss, the district court rejected his contentions. The district court concluded that "an individual, including a police officer, is deprived of his or her Fifth Amendment rights when forced by the government during a criminal investigation to answer questions or face job forfeiture." J.A. at 19. It noted, however, that there would be no violation if the officers had been offered use immunity and derivative use immunity. J.A. at 11. But the district court concluded that a constitutional violation occurs where, as here, "the coerced answers are given in the course of an investigation solely or even in part to result in a prosecution of the witness, so that those indicating [sic] the criminal investigation are provided the answers, there has been no effective immunity and there has been an improper coercion of the witness' answers." J.A. at 14-15. In addition, although the district court recognized that "a number of courts" had taken a position contrary to its own on the substantive legal question, see J.A. at 16 n. 13, it found that the law was clearly established. We do not agree.

III

Both the district court and the police officers rely principally upon several Supreme Court cases that address the application of the Fifth Amendment privilege to public employees. See, e.g., Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). These cases provide two rules:

If the State presents a person with the "Hobson's choice" of incriminating himself or suffering a penalty, and he nevertheless refuses to respond, the State cannot constitutionally make good on its threat to penalize him. [Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973) ]; Sanitation Men v. Commissioner of Sanitation, 392 U.S. 280, 284 [88 S.Ct. 1917, 1919, 20 L.Ed.2d 1089] (1968); Gardner v. Broderick, 392 U.S. 273, 277-278 [88 S.Ct. 1913, 1915-1916, 20 L.Ed.2d 1082] (1968). Conversely, if the threatened person decides to talk instead of asserting his privilege, the State cannot use his admissions against him in a subsequent criminal prosecution. Garrity v. New Jersey, 385 U.S. 493, 500 [87 S.Ct. 616, 620, 17 L.Ed.2d 562] (1967).

Minnesota v. Murphy, 465 U.S. 420, 443, 104 S.Ct. 1136, 1151, 79 L.Ed.2d 409 (1984) (Marshall, J., dissenting). This case, however, is not directly controlled by either of these two rules. The officers did not assert their Fifth Amendment privilege nor were they disciplined for doing so. And, although it is alleged that the officers made statements under the threat of job loss, these statements were not used against them in any criminal proceeding. Therefore, contrary to the district court's conclusion, the Gardner- Garrity line of Supreme Court cases does not clearly establish the law governing the facts of this case.

Indeed, although the issue here was not squarely presented in any of the Supreme Court cases upon which the police officers rely, language in these cases suggests that the right against self-incrimination is not violated by the mere compulsion of statements, without a compelled waiver of the Fifth Amendment privilege or the use of the compelled statements against the maker in a criminal proceeding. 8 See, e.g., Uniformed Sanitation Men, 392 U.S. at 285, 88 S.Ct. at 1920 ("[P]etitioners, being public employees, subject themselves to dismissal if they refuse to account for their performance of their public trust, after proper proceedings, which do not involve an attempt to coerce them to relinquish their constitutional rights.") (emphasis added); Gardner, 392 U.S. at 277-79, 88 S.Ct. at 1915-17 (holding that firing a police officer for refusing to waive his Fifth Amendment privilege violated the right against self-incrimination) (emphasis added); Garrity, 385 U.S. at 500, 87 S.Ct. at 620 (holding that "the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all,...

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