Officer Erwin was employed by the Athens Police Department in Georgia. While off duty Erwin had several drinks and went to a package store. Once there he got into an argument with a customer. Erwin moved his car to the front of the store and the customer opened Erwin’s door and called Erwin a name and accused Erwin of running his over his leg. Erwin opened the console of the car and displayed a gun to the customer to dissuade any further altercation. As the customer ran across the street and continued to curse Erwin. Erwin told the customer that if he had a complaint to call the police and Erwin would wait until they arrived.
Police officers arrived and spoke with Erwin and the customer. Erwin told the officers and in court while under oath that he pointed a finger at the customer and pretended to shoot. That was what made the customer leave. The customer said Erwin pointed the gun at him. That action is in violation Georgia Criminal Code.
Erwin returned to work and was given a letter directing him to give a truthful statement regarding the incident to Major Winston Dill. Furthermore, Erwin was ordered to take a polygraph. The letter delineated that the statement and polygraph was for departmental purposes only. When Erwin was given the letter he acknowledged the letter but, demanded his Miranda warning. Major Winston Dill informed Erwin that the investigation was strictly departmental and Miranda was not applicable as the statement would not be used in a criminal procedure. Erwin was assured three times that he was not being asked to waive his Fifth Amendment rights and that it would not be used criminally.
Erwin was familiar that Athens Police Department policies that required him to answer questions truthfully when the questions were related to his job as a police officer for Athens Clark county. Furthermore, he could be disciplined up to and including dismissal. Erwin refused to answer questions regarding the incident until the case was taken to court.
Erwin was suspended from the department for insubordination by refusing to answer questions in an administrative interview. He was subsequently fired based on his refusal to cooperate.
Erwin sued the Athens Police Department on the basis that he had the right to refuse to answer under the Fifth Amendment. In the findings the court stated: It is settled that the fifth amendment privilege against self-incrimination permits a person "not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973).
He may refuse "unless and until he is protected at least against the use of his compelled answers and evidence derived there from in any subsequent criminal case in which he is a defendant." Id. at 78, 94 S.Ct. at 322.
A public employee may not be coerced into surrendering the privilege by threat of sanctions, Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 2135, 53 L.Ed.2d 1 (1977),
And if he has been coerced into waiving the privilege, his answers are not admissible against him in a subsequent criminal trial. Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967).
However, if he has not been required to waive this protection, but has refused to answer questions "specifically, directly, and narrowly relating to the performance of his official duties," the privilege would not be a bar to dismissal. Gardner v. Broderick, 392 U.S. 273, 278, 88 S.Ct. 1913, 1916, 20 L.Ed.2d 1082 (1968).
We have held that the privilege against self-incrimination thus "affords a form of use immunity which, absent waiver, automatically attaches to compelled incriminating statements as a matter of law." Hester v. City of Milledgeville, 777 F.2d 1492, 1496 (11th Cir.1985) (emphasis added). Plaintiff concedes that the questions at issue here were properly related to his duties and that he was assured that he was not being asked to waive his constitutional privilege. He contends, however, that he is entitled to a statutory grant of use immunity1 or a binding agreement from the district attorney not to use his statements in a criminal prosecution. He argues that without such a grant courts may ignore the many assurances given by his superiors and admit the statements. He also claims that he will unfairly have to bear the risk of persuading the court in a voluntariness hearing that by making his statement he did not waive his privilege. The logic of our holding in Hester leads us to hold 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. See Hester v. City of Milledgeville, 777 F.2d 1492, 1495-1496 (11th Cir.1985). Therefore, "any grant of use immunity to the plaintiff would have been duplicative." Hester v. City of Milledgeville, 777 F.2d 1492, 1496 (11th Cir.1985).2 Erwin could, therefore, lawfully be disciplined for his refusal to answer the questions posed to him.
In its ruling the court affirmed its stance in regards to the administrative interview. Erwin was rightfully dismissed for failure to cooperate in the investigation. Once a person is employed in a governmental position they must be held accountable for their actions. One cannot conduct themselves off duty in a manner that is unlawful and then believe they would have impunity from adverse action.
** H. G. ERWIN, Plaintiff-Appellant, v. Everett E. PRICE and the Mayor and Council of the City of Athens, Georgia, Defendants-Appellees, No. 85-8064, UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT, 778 F.2d 668; 1985 U.S. App. LEXIS 25421
