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  • Writer's pictureGeorge Perez

Untangling the Web of Garrity Use Immunity: An Easy-to-Follow Guide

Author: George Perez


When it comes to safeguarding the rights of law enforcement officers during

internal affairs investigations, one legal principle stands out: the Garrity use

immunity. As a seasoned and experienced law enforcement executive with

over 23 years of experience in the field of managing matters related to

employee misconduct investigations and common challenges of due process,

I'd like to discuss the intricacies of this doctrine and its practical implications for

officers, investigators, and their departments.

What is Garrity Use Immunity?

The Garrity use immunity originates from a landmark 1967 Supreme Court case,

Garrity v. New Jersey. In essence, this principle ensures that public employees,

like police officers, aren't forced to choose between self-incrimination and losing

their jobs. In the event that officers are compelled to provide a statement during

administrative investigations, this statement cannot be used against them in

subsequent criminal proceedings.

Let’s look at an example here:

Detective Ludy Miller, a seasoned officer in a metropolitan police department,

finds herself at the center of an internal affairs investigation. There are

allegations that she may have tampered with evidence in a high-profile case.

As part of the administrative inquiry, Detective Miller is ordered to provide a

statement about her actions and decisions related to the evidence in question.

She is informed that failing to cooperate or provide a statement could result in

disciplinary action, including potential termination.

Understanding the gravity of the situation, Detective Miller, fearing job loss,

provides a statement. In her account, she explains certain actions she took

which could be seen as borderline or questionable in terms of evidence

handling. The internal affairs division completes its investigation, and based on

her statement and other findings, they decide to impose certain administrative

sanctions on Detective Miller.

Later, there's a twist. The county prosecutor's office learns about the internal

investigation and considers pressing criminal charges against Detective Miller for

evidence tampering. However, due to the Garrity Use Immunity principle, the

statement Detective Miller gave during the internal affairs investigation cannot

be used as evidence against her in this criminal proceeding. This protection

ensures that while Detective Miller was compelled to speak in the administrative

setting, she still retains her Fifth Amendment rights against self-incrimination in the

criminal context.

The Garrity Use Immunity essentially serves as a shield for officers, ensuring their

constitutional rights are upheld even when they are under the scrutiny of their

own departments. This immunity does not allow for perjury. Additionally, should

the internal affairs investigations reveal evidence of other criminal wrongdoing

not related to the statement provided under immunity, that evidence can be

used in presenting criminal charges against Detective Miller.

The Fine Line: Administrative vs. Criminal Investigations

The cornerstone of Garrity is the distinction between administrative and criminal

investigations. The former seeks to maintain the integrity and professionalism of a

police department, while the latter has punitive intentions. For example, if an

officer is under investigation for excessive use of force, an internal affairs division

may initiate an administrative inquiry. The officer's statements in this context are

protected by Garrity immunity. However, if a criminal case ensues, those

statements are off-limits as evidence.

Complexities in Application

Despite its clear premise, Garrity immunity has been a subject of debate and

misunderstanding. Here's where things get complex:

Voluntary vs. Compelled Statements: For Garrity protections to apply, statements

must be compelled, not volunteered. Officers need to be expressly told that

failure to cooperate can result in job loss. Any voluntary admission, however,

can be used in criminal trials.

Sequencing Matters: Best practice dictates that criminal investigations should

precede administrative ones. This ensures that evidence gathered

administratively doesn't taint the criminal process.

The 'Fruits' Dilemma: The Garrity decision prevents the direct use of compelled

statements in criminal cases. But what about leads or evidence derived from

those statements? Courts differ on this, with some allowing the fruits of Garrity protected

statements, while others don't.

Case Law Example: United States v. Camacho

In this case, which took place in the 9th Circuit, the defendant, an officer, was

compelled to make a statement during an internal affairs investigation. Later,

prosecutors sought to use evidence that they claimed was derived

independently of the officer's Garrity-protected statement. The defense argued

that this evidence was tainted because it was indirectly obtained from the

compelled statement and thus should be suppressed.

The court had to grapple with a tricky issue: could the evidence be considered

"fruit of the poisonous tree," a doctrine which, in other contexts, means evidence

derived from an illegal search or seizure is tainted and inadmissible? The court

ultimately held that even if the government could demonstrate that it had an

independent source for the evidence (i.e., they would have eventually

discovered the evidence even without the officer's compelled statement), it

was not enough. The evidence derived from the compelled statement was

deemed inadmissible1.

This case showcases the complexities surrounding the "fruits" dilemma in the

context of Garrity. Some circuits have been stricter in their interpretation,

ensuring that not just the compelled statement but also any evidence derived

from it is excluded. However, other jurisdictions might have a more lenient

approach, emphasizing the independent source rule or inevitable discovery

doctrine to admit such evidence.

As with many legal principles, the nuances of how Garrity protections are

applied can vary based on jurisdiction and the specifics of the case at hand.

The best protection for investigators to follow is acting in good faith and taking

all necessary steps towards safeguarding due process.


Garrity use immunity is a cornerstone of police rights during internal affairs

probes. However, its practical application is riddled with complexities. Both

police departments and the legal fraternity must be attuned to these nuances

to ensure fair and just outcomes for all parties involved. What is at stake is the

officer’s due process, employee morale, and community trust.

You may ask yourself, why community trust? We must understand that when

departments fast track investigations that lead to violations of due process, it is

almost absolute that community trust will be adversely impacted. The reasoning

for this statement derives from the reality that related imposed employee

actions will likely be rescinded, which in turn will become the focus for the


By understanding and respecting the boundaries of Garrity, we can strike a

balance between upholding the integrity of law enforcement agencies and

preserving the due process rights of officers. As I always recommend, consult

your department’s legal team when questions arise concerning a specific

Garrity dilemma you may face. Your legal team is there to help and guide you,

why would you not want to leverage their expertise. If you have found this

article to be helpful and may know someone it can assist, please feel free to

share it with them.


Garrity v. New Jersey, 385 U.S. 493 (1967). ↩

"Administrative vs. Criminal Investigations: A Crucial Distinction", The Police Chief

Magazine, 2015. ↩

United States v. Camacho, 739 F.2d 1508 (9th Cir. 1984). ↩

"Law Enforcement Officers' Bill of Rights", National Conference of State

Legislatures, 2019. ↩

"Garrity Rights", Legal & Liability Risk Management Institute, 2020. ↩

"The Fruits of Garrity-Protected Statements", Criminal Defense Lawyer, 2018. ↩

"Albuquerque Police Shooting and the Garrity Dilemma", The Albuquerque

Journal, 2014. ↩

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