Benjamin v. City of Montgomery, 85-7135

• Citation: 785 F.2d 959
• Decision Date: 02 April 1986
• Docket Number: No. 85-7135,85-7135
• Parties: Lonnie BENJAMIN and Harold Hicken, Plaintiffs-Appellants, v. The CITY OF MONTGOMERY, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 959

785 F.2d 959

Lonnie BENJAMIN and Harold Hicken, Plaintiffs-Appellants, v. The CITY OF MONTGOMERY, et al., Defendants-Appellees.

No. 85-7135.

United States Court of Appeals Eleventh Circuit.

April 2, 1986.

John L. Carroll, Associate Professor of Law, Walter F. George School of Law, Mercer University, Macon, Ga., for plaintiffs-appellants.

N. Gunter Guy, Jr., George B. Azar, Montgomery, Ala., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before KRAVITCH and HATCHETT, Circuit Judges, and MORGAN, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

This appeal presents the question of whether two police officers were dismissed for a proper invocation of their fifth amendment rights against self-incrimination or for improperly refusing to answer questions narrowly tailored and specifically directed to the performance of their duties. Lonnie Benjamin and Harold Hicken, both veteran officers of the Montgomery, Alabama Police Department, filed a section 1983 action challenging their dismissal from the force. After a bench trial, the district court entered judgment for the defendants. Under the unusual facts of this case, we hold that the dismissals of the officers violated their fifth amendment rights.

The facts as developed at trial and set forth in the district court's order are basically undisputed. The dismissal grew out of the "Todd Road incident," which apparently caused some stir in Montgomery. The incident involved an assault upon two Montgomery police officers, in which one officer was shot. Several persons were indicted in connection with the incident. The defendants in those cases, seeking to show police misconduct during the incident and the subsequent investigation, sought the testimony of officers Benjamin and Hicken concerning their investigation of the incident.

On October 6, 1983, defendants in the Todd Road case subpoenaed Benjamin and Hicken to testify at preliminary hearings in the circuit court of Montgomery County. Both officers refused to answer questions about their investigation of the incident, citing their right against self-incrimination. The next day, the Mayor of Montgomery, Emory Folmar, ordered the officers to report to the District Attorney and divulge all information relevant to the case. The District Attorney, however, declined to interview the officers, citing the fact that the officers would obtain immunity against use of the statements. The plaintiffs then were placed on administrative leave with pay.

On November 21, the appellants were subpoenaed to testify at the trial of Worrie Taylor, one of the Todd Road defendants. Hicken took the stand and again refused to answer questions about the investigation of the incident. He indicated he would only answer questions from the District Attorney. The trial court judge then called Mayor Folmar to the stand. While on the stand, Mayor Folmar withdrew his order of October 7. He stated that:

If this Honorable Court calls Sergeant Benjamin or Sergeant Hicken to this stand and they do not tell everything they know about this case to the best of their ability and the full truth, I will fire them right this minute.

The appellants were not recalled that day.

On November 23, the appellants were recalled to the stand. Upon inquiry by the court, both indicated a willingness to testify, but only because the Mayor had ordered them to testify. For some reason, the court refused to accept their testimony. The court then recalled Mayor Folmar to the stand, and suggested that the Mayor fire the officers, apparently under the misconception that they would then testify. The court called a recess, during which Mayor Folmar informed the appellants that their employment was terminated. The appellants were then recalled to the stand, and again they refused to answer questions.

In ruling on the officers' section 1983 action, the federal district court held that the state's right to obtain testimony from police officers outweighed the officers' fifth amendment rights. As discussed below, the district court's ruling is contrary to established Supreme Court precedent that a governmental unit may not require public employees, even police officers, to waive their fifth amendment right against self-incrimination.

The watershed case in the area is Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). In Garrity, former police officers were convicted of obstruction of justice in connection with the fixing of traffic tickets. The officers had been questioned about the charges by the attorney general. They were warned that their answers might be used against them, and that they could refuse to answer, but that if they did so they would be dismissed. 385 U.S. at 495, 87 S.Ct. at 617. The officers answered; over their objection, the answers they gave were used against them in criminal prosecutions. The Supreme Court held that the statements had been coerced from the officers by the threat of dismissal, and therefore reversed the convictions. In Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), a police officer was called before a grand jury investigating police corruption. He was advised of his right against self-incrimination, but told that if he refused to sign a waiver of immunity, he would be dismissed pursuant to a state law which required dismissal of any public employee who invoked the fifth amendment in connection with an investigation of the employee's official duties. He refused to sign, and was discharged for so refusing. The Supreme Court held that the officer "was discharged from office, not for failure to answer relevant questions about his official duties, but for refusal to waive a constitutional right." 392 U.S. at 278, 88 S.Ct. at 1916. Accordingly, the officer was entitled to reinstatement. In a companion case, Uniformed Sanitation Men Assoc. v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968), the Court stated:

... if New York had demanded that petitioners answer questions specifically, directly, and narrowly relating to the performance of their official duties on pain of dismissal from public employment without requiring relinquishment of the benefits of the constitutional privilege, and if they had refused to do so, this case would be entirely different.

392 U.S. at 284, 88 S.Ct. at 1920.

This Circuit recently decided two cases which raised questions concerning the meaning of the line of Supreme Court cases discussed above. See Hester v. City of Milledgeville, 777 F.2d 1492 (11th Cir.1985); Erwin v. Price, 778 F.2d 668 (11th Cir.1985). Both cases turned on whether the public employee involved had been required to waive fifth amendment protection. The Erwin case involved dismissal of a police officer. During an internal police department investigation, Erwin refused to answer questions about an off-duty incident in which he allegedly brandished his gun in an improper manner. The internal investigator repeatedly assured the officer that his responses would not be used in any criminal proceedings. Moreover, the officer was aware of standing department orders

which in substance state that police officers must answer questions narrowly related to their official duties, that answers will not be used in any subsequent criminal investigation and that refusal to testify will be considered insubordination subject to discipline including dismissal.

Id. at 669.

Erwin contended that because he was not afforded a statutory grant of immunity before being required to answer, he had been required to either waive his fifth amendment protection or lose his position. The panel, however, held that a public employee in Erwin's position would automatically obtain Garrity-type immunity; thus no grant of statutory use immunity was necessary. The panel explained

that where there is a formal disciplinary investigation during which a public employee is ordered to answer proper questions under threat of dismissal, coercion is presumed and the government bears the burden of demonstrating voluntariness. Therefore, "any grant of use...