Headley v. Baron

• Decision Date: 16 July 1969
• Docket Number: No. 37579,37579
• Citation: 228 So.2d 281
• Parties: Walter HEADLEY, Chief of Police of the City of Miami, a municipal corporation of Dade County, Florida, Petitioner, v. Glenn BARON, Respondent.
• Court: Florida Supreme Court

Page 281

228 So.2d 281

Walter HEADLEY, Chief of Police of the City of Miami, a municipal corporation of Dade County, Florida, Petitioner, v. Glenn BARON, Respondent.

No. 37579.

Supreme Court of Florida.

July 16, 1969.

Rehearing Denied Nov. 14, 1969.

Alan H. Rothstein, City Atty., and Charles K. Allan, Asst. City Atty., for petitioner.

Walter E. Gwinn, Miami, for respondent.

THORNAL, Justice.

We have for review a decision of a district court of appeal accompanied by a certificate that the question passed upon is one of great public interest. Fla.Const. art. V, § 4, F.S.A.; Headley v. Baron, 211 So.2d 223 (3d Dist.Ct.App.Fla.1968).

Our problem involves the extent of immunity granted by Fla.Stat. § 932.29, F.S.A. (1965), when a city police officer is subpoenaed to testify before a grand jury.

Respondent Baron was a police officer of the City of Miami. He held the rank of Lt. Colonel of Police (unclassified) and Captain of Police (classified). On October 18, 1966, Baron was compelled, by subpoena, to appear before the Dade County Grand Jury which was investigating bribery in the police department. He testified regarding the subject matter of the inquiry. Baron was asked questions concerning his alleged acceptance of a gratuity of $3,000.00 on each of two occasions in consideration of permitting certain concerns to operate wrecker services in designated zones of the City of Miami. Before testifying, Baron did not waive the statutory immunity which we shall later discuss. On January 20, 1967, Baron was dismissed from his police department employment on the order of the late Walter Headley, then Chief of Police. Dismissal was grounded on all the testimony given before the Dade County Grand Jury concerning Baron's acceptance of bribes. Baron then appealed his dismissal to the Civil. Service Board. He also instituted this mandamus proceeding to compel the Chief to reinstate him. He obtained an injunction against the Board to stay all proceedings until the mandamus could be completed.

Relying on Fla.Stat. § 932.29 (1965), F.S.A., the trial judge ordered the Chief to restore Baron to his former position. The District Court of Appeal, Third District, affirmed, and certified to us the immunity problem.

Petitioner contends that the subject statute does not immunize a police officer Against loss of his job when he testifies before a grand jury concerning the crime of bribery.

Respondent, with support from the trial judge and district court majority, insists that he is immune from losing his job since he was compelled by force of the statute to give involuntary testimony before the grand jury.

Fla.Stat. § 932.29 (1965), F.S.A., reads:

'No person shall be excused from attending and Testifying, or producing any book, paper or other document Before any court upon any investigation, proceeding or trial, for a violation of any of the statutes of this state against bribery, burglary, larceny, gaming or gambling, or of any of the statutes against the illegal sale of spirituous, vinous or malt liquors, upon the ground or for the reason that the testimony of evidence, documentary or otherwise, required of Him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted of subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may so testify or produce In effect at all times material was Rule XVI, § 12, Civil Service Rules and Regulations of the City of Miami, which reads in part:

evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.' (Emphasis added.)

'(a) Should any officer or employee in the classified service of the City of Miami appear before a Grand Jury or Juries and refuse to sign an immunity waiver in advance of testimony before such Grand Jury or Juries and/or refuse to testify fully on all matters concerning the property, government, or affairs of the City, that such conduct shall constitute a breach of duty and that said employee shall be dismissed from the classified service of the City of Miami.

'(c) No City employee shall be excused on plea of 'self-incrimination' or for any other reason, from giving information which may bear on his own fitness to hold a job; he shall be dismissed for refusing to give such imformation.'

We shall refer to § 932.29, Supra, as the 'immunity statute.' The civil service rule will be referred to as the 'forfeiture rule'.

In the solution of our problem the 'forfeiture rule' may be laid aside. Although Baron stated that he testified to the grand jury under the compulsive pressures of the rule, he was not dismissed because of any breach of the rule. The 'immunity statute' compelled the testimony. A plea of self-incrimination would be of no avail against the immunization guarantee of the statute. There is no evidence that he was requested to sign a waiver of immunity. Hence, failure to comply with the 'forfeiture rule' is not an element in our problem.

Baron did not testify before the grand jury because of the 'forfeiture rule.' His claimed protection here is the 'immunity statute,' not some benefit or amnesty promised by the 'forfeiture rule.' This distinguishes the instant case from Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). There, New Jersey had no immunity statute. Garrity, a police chief, testified in response to an investigation subpoena under the compulsive pressure of a job forfeiture statute. In a subsequent criminal proceeding, a confession which he made during the investigation was held to be inadmissible against him because it had been coerced by the statutory threat of removal from office if Garrity had claimed the benefit of his constitutional privilege against self-incrimination. Garrity involved a criminal prosecution based on a confession compelled by the threat of removal from office.

Since we are not concerned with the relevancy of Miami's 'forfeiture rule,' we are not burdened by any problem contingent on its constitutionality.

We are challenged squarely by a claim that Florida's 'immunity statute' protects a police officer against being dismissed from the force because he testified concerning the subject of his dismissal before the grand jury. Obviously, bribery is one of the crimes comprehended by the statute. A grand jury inquiry is typical of the 'investigation, proceeding or trial' which sets the stage for the immunizing impact of the Legislature's offer of amnesty to the penitent Particeps crimini. State ex rel. Mitchell v. Kelly, 71 So.2d 887 (Fla.1954). Our problem is to decide whether being fired from the Miami police force is a 'penalty or forfeiture' which cannot be imposed on one who goes before a grand jury and accepts the Legislature's offer of protection.

Basically, an immunity statute is a legislative recognition of the extreme difficulty of proving certain types of crimes.

By the statute the Legislature makes an offer in behalf of the state. The suspect accepts it by testifying. The crime usually involves several suspects, none of whom could be effectively prosecuted unless at least one of the suspects can be induced to testify under a guarantee that he will not thereafter be prosecuted. Without the immunity the suspect would be entitled to the Fifth Amendment privilege against self-incrimination. Hence, it is said that the protection of the statutory immunity must be as broad as the constitutional privilege. Since the Constitution protects the individual against self-incrimination, the immunity granted in exchange for his testimony must in equal measure protect him from prosecution based on the testimony obtained in the bargain. Actually, an immunity statute is not constitutionally compelled to extend the amnesty beyond the criminal aspect of the matter. 8 Wigmore, Evidence §§ 2281, 2282 (McNaughton rev. 1961).

Our problem in the instant matter is, therefore, one of statutory construction rather than constitutional interpretation. It is admitted that by giving the bribery testimony before the grand jury, Baron was immunized against prosecution for the crime of bribery. That deal the state clearly made with legislative sanction. To that extent the constitutional mandate against self-incrimination was fully respected and preserved. The Florida Statute, however, goes further. It provides that '* * * no person shall be * * * subjected to Any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence, * * *.' It is this language which presents to us the problem of deciding whether the police officer's loss of his job, otherwise secure under civil service, is a 'penalty or forfeiture' which the statute promises shall not be imposed as a result of facts revealed in the investigation that was purified by the legislative promise of immunization. The trial judge and the District Court majority held that to dismiss the officer from the force would be to impose a 'forfeiture,' thereby breaching the state's promise of immunity.

We remind that we are not concerned with the vagaries of a refusal to testify in the disciplinary proceeding itself. For example, we have held that a lawyer cannot be disbarred because he pleads the Fifth Amendment in an official inquiry. Sheiner v. State, 82 So.2d 657 (Fla.1955). The Supreme Court of the United States has held to the same effect. Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967). See also Slochower v. Board of Higher Education of City of New York, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956). These decisions would be apposite if Baron had been called before the Civil Service Board and had been fired solely because he pleaded the Fifth Amendment when interrogated by that or some other agency.

At this point we caution that we do not here hold that respondent has any organic...