392 U.S. 273 (1968), 635, Gardner v. Broderick

Docket Nº:No. 635
Citation:392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082
Party Name:Gardner v. Broderick
Case Date:June 10, 1968
Court:United States Supreme Court

Page 273

392 U.S. 273 (1968)

88 S.Ct. 1913, 20 L.Ed.2d 1082

Gardner

v.

Broderick

No. 635

United States Supreme Court

June 10, 1968

Argued April 30, 1968

APPEAL FROM THE COURT OF APPEALS OF NEW YORK

Syllabus

Appellant, a police officer, was subpoenaed by and appeared before a grand jury which was investigating alleged bribery and corruption of police officers, and was advised that the grand jury proposed to examine him concerning the performance of his official duties. He was advised of his privilege against self-incrimination, but was asked to sign a "waiver of immunity" after being told that he would be fired if he did not sign. He refused to do so, was given an administrative hearing, and was discharged solely for his refusal, pursuant to § 1123 of the New York City Charter. The New York Supreme Court dismissed his petition for reinstatement, and the New York Court of Appeals affirmed, holding that Garrity v. New Jersey, 385 U.S. 493, was not controlling, and distinguishing Spevack v. Klein, 385 U.S. 511 (both decided after appellant's discharge).

Held: If appellant, a policeman, had refused to answer questions directly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, Garrity, supra, the privilege against self-incrimination would not have been a bar to his dismissal. However, his dismissal solely for his refusal to waive the immunity to which he is entitled if he is required to testify despite his constitutional privilege, and the New York City Charter provision pursuant to which he was dismissed, cannot stand. Pp. 276-279.

20 N.Y.2d 227, 229 N.E.2d 184, reversed.

Page 274

FORTAS, J., lead opinion

MR. JUSTICE FORTAS delivered the opinion of the Court.

Appellant brought this action in the Supreme Court of the State of New York seeking reinstatement as a New York City patrolman and back pay. He claimed he was unlawfully dismissed because he refused to waive his privilege against self-incrimination. In August, 1965, pursuant to subpoena, appellant appeared before a New York County grand jury which was investigating alleged bribery and corruption of police officers in connection with unlawful gambling operations. He was advised that the grand jury proposed to examine him concerning the performance of his official duties. He was advised of his privilege against self-incrimination,1 but he was asked to sign a "waiver of immunity" after being told that he would be fired if he did not sign.2 Following

Page 275

his refusal, he was given an administrative hearing and was discharged solely for this refusal, pursuant to § 1123 of the New York City Charter.3

Page 276

[88 S.Ct. 1915] The New York Supreme Court dismissed his petition for reinstatement, 27 App.Div.2d 800, 279 N.Y.S.2d 150 (1967), and the New York Court of Appeals affirmed. 20 N.Y.2d 227, 229 N.E.2d 184 (1967). We noted probable jurisdiction. 390 U.S. 918 (1968).

Our decisions establish beyond dispute the breadth of the privilege to refuse to respond to questions when the result may be self-incriminatory, and the need fully to implement its guaranty. See Spevack v. Klein, 385 U.S. 511 (1967); Counselman v. Hitchcock, 142 U.S. 547, 585-586 (1892); Albertson v. SACB, 382 U.S. 70, 80 (1965). The privilege is applicable to state as well as federal proceedings. Malloy v. Hogan, 378 U.S. 1 (1964); Murphy v. Waterfront Commission, 378 U.S. 52 (1964). The privilege may be waived in appropriate circumstances if the waiver is knowingly and voluntarily made. Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying. Counselman v. Hitchcock, supra, at 585-586; Murphy v. Waterfront Commission, supra, at 79.

The question presented in the present case is whether a policeman who refuses to waive the protections which the privilege gives him may be dismissed from office because of that refusal.

About a year and a half after New York City discharged petitioner for his refusal to waive this immunity, we decided Garrity v. New Jersey, 385 U.S. 493 (1967). In that case, we held that, when a policeman had been compelled to testify by the threat that otherwise he would be removed from office, the testimony that he gave could not be used against him in a subsequent prosecution. Garrity had not signed a waiver of immunity, and no immunity statute was applicable in the circumstances.

Page 277

Our holding was summarized in the following statement (at 500):

We now hold 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, whether they are policemen or other members of our body politic.

The New York Court of Appeals considered that Garrity did not control the present case. It is true that Garrity related to the attempted use of compelled testimony. It did not involve the precise question which is presented here: namely, whether a State may discharge an officer for refusing to waive a right which the Constitution guarantees to him. The New York Court of Appeals also distinguished our post-Garrity decision in Spevack v. Klein, supra. In Spevack, we ruled that a lawyer could not be disbarred solely because he refused [88 S.Ct. 1916] to testify at a disciplinary proceeding...

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