Gardner v. Broderick/Opinion of the Court

by Abe Fortas

United States Supreme Court

392 U.S. 273

Gardner  v.  Broderick

 Argued: April 30, 1968. --- Decided: June 10, 1968

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 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]

The New York Supreme Court dismissed his petition for reinstatement, 27 A.D.2d 800, 279 N.Y.S.2d 150 (1967), and the New York Court of Appeals affirmed. 20 N.Y.2d 227, 282 N.Y.S.2d 487, 229 N.E.2d 184 (1967). We noted probable jurisdiction. 390 U.S. 918, 88 S.Ct. 848, 19 L.Ed.2d 978 (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, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967); Counselman v. Hitchcock, 142 U.S. 547, 585-586, 12 S.Ct. 195, 206-207, 35 L.Ed. 1110 (1892); Albertson v. SACB, 382 U.S. 70, 80, 86 S.Ct. 194, 199, 15 L.Ed.2d 165 (1965). The privilege is applicable to state as well as federal proceedings. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (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, 142 U.S. at 585-586, 12 S.Ct. at 206-207; Murphy v. Waterfront Commission, supra, 378 U.S. at 79, 84 S.Ct. at 1609.

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. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (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. Our holding was summarized in the following statement (at 500, 87 S.Ct. at 620):

'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 to testify at a disciplinary proceeding on the ground that his testimony would tend to incriminate him. The Court of Appeals concluded that Spevack does not control the present case because different considerations apply in the case of a public official such as a policeman. A lawyer, it stated, although licensed by the state is not an employee. This distinction is now urged upon us. It is argued that although a lawyer could not constitutionally be confronted with Hobson's choice between self-incrimination and forfeiting his means of livelihood, the same principle should not protect a policeman. Unlike the lawyer, he is directly, immediately, and entirely responsible to the city or State which is his employer. He owes his entire loyalty to it. He has no other 'client' or principal. He is a trustee of the public interest, bearing the burden of great and total responsibility to his public employer. Unlike the lawyer who is directly responsible to his client, the policeman is either responsible to the State or to no one. ^[4]

We agree that these factors differentiate the situations. If appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, ^[5] 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 v. State of New Jersey, supra, the privilege against self-incrimination would not have been a bar to his dismissal.

The facts of this case, however, do not present this issue. Here, petitioner was summoned to testify before a grand jury in an investigation of alleged criminal conduct. He was discharged from office, not for failure to answer relevant questions about his official duties, but for refusal to waive a constitutional right. He was dismissed for failure to relinquish the protections of the privilege against self-incrimination. The Constitution of New York State and the City Charter both expressly provided that his failure to do so, as well as his failure to testify, would result in dismissal from his job. He was dismissed solely for his refusal to waive the immunity to which he is entitled if he is required to testify despite his constitutional privilege. Garrity v. State of New Jersey, supra.

We need not speculate whether, if appellant had executed the waiver of immunity in the circumstances, the effect of our subsequent decision in Garrity v. State of New Jersey, supra, would have been to nullify the effect of the waiver. New York City discharged him for refusal to execute a document purporting to waive his constitutional rights and to permit prosecution of himself on the basis of his compelled testimony. Petitioner could not have assumed-and certainly he was not required to assume-that he was being asked to do an idle act of no legal effect. In any event, the mandate of the great privilege against self-incrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment. It is clear that petitioner's testimony was demanded before the grand jury in part so that it might be used to prosecute him, and not solely for the purpose of securing an accounting of his performance of his public trust. If the latter had been the only purpose, there would have been no reason to seek to compel petitioner to waive his immunity.

Proper regard for the history and meaning of the privilege against self-incrimination, ^[6] applicable to the States under our decision in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), and for the decisions of this Court, ^[7] dictate the conclusion that the provision of the New York City Charter pursuant to which petitioner was dismissed cannot stand. Accordingly, the judgment is reversed.

Reversed.

Notes

1. The Assistant District Attorney said to appellant:
2. Appellant was told:
3. That section provides:
4. Cf. Spevack v. Klein, supra, 385 U.S. at 519-520, 87 S.Ct. at 630-631 (concurring in judgment).
5. The statements in my separate opinion in Spevack v. Klein, supra, at 519-520, 87 S.Ct. at 630-631, to which the New York Court of Appeals referred, are expressly limited to situations of this kind.
6. See Miranda v. State of Arizona, 384 U.S. 436, 458-466, 86 S.Ct. 1602, 1619-1624, 16 L.Ed.2d 694 (1966), and authorities cited therein.
7. See, e.g., Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Malloy v. Hogan, supra.