GARDNER v. BRODERICK, POLICE COMMISSIONER OF THE CITY OF NEW YORK,
APPEAL FROM THE COURT OF APPEALS OF NEW YORK. No. 635.
Argued April 30, 1968.
Decided June 10, 1968.
Appellant, a police officer, was subpoenaed by and appeared before a grand jury which was investigating alleged bribery and corruption of police officers, and 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, but was asked to sign a "waiver of immunity" after being told that he would be fired if he did not sign. He refused to do so, was given an administrative hearing, and was discharged solely for his refusal, pursuant to 1123 of the New York City Charter. The New York Supreme Court dismissed his petition for reinstatement and the New York Court of Appeals affirmed, holding that Garrity v. New Jersey, 385 U.S. 493 , was not controlling, and distinguishing Spevack v. Klein, 385 U.S. 511 (both decided after appellant's discharge). Held: If appellant, a policeman, had refused to answer questions directly relating to the performance of his official duties, 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, supra, the privilege against self-incrimination would not have been a bar to his dismissal. However, his dismissal solely for his refusal to waive the immunity to which he is entitled if he is required to testify despite his constitutional privilege, and the New York City Charter provision pursuant to which he was dismissed, cannot stand. Pp. 276-279.
20 N. Y. 2d 227, 229 N. E. 2d 184, reversed.
Ronald Podolsky argued the cause and filed briefs for appellant.
J. Lee Rankin argued the cause for appellees. With him on the brief were Norman Redlich, Stanley Buchsbaum, and Robert T. Hartmann. [392 U.S. 273, 274]
Michael J. Silverberg filed a brief for the Patrolmen's Benevolent Association of the City of New York, Inc., as amicus curiae, urging reversal.
MR. JUSTICE FORTAS delivered the opinion of the Court.
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 [392 U.S. 273, 275] 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 [392 U.S. 273, 276]
The New York Supreme Court dismissed his petition for reinstatement, 27 App. Div. 2d 800, 279 N. Y. S. 2d 150 (1967), and the New York Court of Appeals affirmed. 20 N. Y. 2d 227, 229 N. E. 2d 184 (1967). We noted probable jurisdiction. 390 U.S. 918 (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 (1967); Counselman v. Hitchcock, 142 U.S. 547, 585 -586 (1892); Albertson v. SACB, 382 U.S. 70, 80 (1965). The privilege is applicable to state as well as federal proceedings. Malloy v. Hogan, 378 U.S. 1 (1964); Murphy v. Waterfront Commission, 378 U.S. 52 (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, at 585-586; Murphy v. Waterfront Commission, supra, at 79.
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. New Jersey, 385 U.S. 493 (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. [392 U.S. 273, 277] Our holding was summarized in the following statement (at 500):
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. 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. 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. New Jersey, supra, would have been to nullify the effect of [392 U.S. 273, 279] 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 (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
[For opinion of MR. JUSTICE HARLAN, concurring in the result, see post, p. 285.]
[ Footnote 2 ] Appellant was told:
[ Footnote 3 ] That section provides:
[ Footnote 4 ] Cf. Spevack v. Klein, supra, at 519-520 (concurring in judgment).
[ Footnote 5 ] The statements in my separate opinion in Spevack v. Klein, supra, at 519-520, to which the New York Court of Appeals referred, are expressly limited to situations of this kind.