Confederation of Police v. Conlisk
489 F.2d 891 (7th Cir. 1973)
Facts
Six Chicago police officers were subpoenaed to appear before a federal grand jury relating to allegations of criminal activity and corruption within the Chicago Police Department. At the grand jury, each officer was advised of his Fifth Amendment privilege against self-incrimination and was informed that whatever he said could be used against him in a criminal prosecution. Each of the officers invoked his Fifth Amendment privilege.
The officers were then directed to appear before the Internal Affairs Division (IAD) of the Chicago Police Department. At this inquiry, each was directed to answer questions regarding their invocation of privilege before the grand jury.
The officers were then discharged for violating departmental Rule 51, which prohibited:
"Failing to give evidence before the Grand Jury, Coroner's inquest, in court, or before any governmental administrative body, including the Police Board, when properly called upon to do so, or refusing to testify on the grounds that such testimony might incriminate the member, or refusing to sign a waiver of immunity when requested to do so by a superior officer."
The officers and their union, the Confederation of Police, brought suit arguing that the terminations were improper. The district court agreed with them and granted their motion for summary judgment.
The officers were then directed to appear before the Internal Affairs Division (IAD) of the Chicago Police Department. At this inquiry, each was directed to answer questions regarding their invocation of privilege before the grand jury.
The officers were then discharged for violating departmental Rule 51, which prohibited:
"Failing to give evidence before the Grand Jury, Coroner's inquest, in court, or before any governmental administrative body, including the Police Board, when properly called upon to do so, or refusing to testify on the grounds that such testimony might incriminate the member, or refusing to sign a waiver of immunity when requested to do so by a superior officer."
The officers and their union, the Confederation of Police, brought suit arguing that the terminations were improper. The district court agreed with them and granted their motion for summary judgment.
Issue
Was it improper to terminate the employees for exercising their Fifth Amendment privilege before the grand jury?
Holding
Affirmed. The terminations were improper.
Reasoning
- ". . . a public employer may discharge an employee for refusal to answer where the employer both asks specific questions relating to the employee's official duties and advises the employee of the consequences of his choice, i.e., that failure to answer will result in dismissal but that answers he gives and fruits thereof cannot be used against him in criminal proceedings" (894).
- "The IAD inquiry was in no sense an "accounting of public faith" as the questions were not "specifically, directly, and narrowly" related to official duties and the officers were not advised that their answers would not be used against them in criminal proceedings" (895).
- "Rule 51, to the extent that it denies police officers the privilege against self-incrimination where criminal prosecution may follow, is constitutionally invalid" (895).
Commentary
As a result of this decision, governmental employers within the jurisdiction of the Seventh Circuit (Illinois, Indiana, Wisconsin), must expressly warn the employee that due to use/derivative use immunity, they cannot refuse to answer questions. The opinion was more recently restated in Atwell v. Lisle Park District, 286 F.3d 987 (7th Circuit, 2002).
This obligation on the part of the employer exists only in the jurisdiction of the Seventh Circuit, and has been explicitly rejected by the Fifth and Eighth Circuits.
Some have questioned whether public employers even have the authority to grant immunity. This recently came up in the California case of Spielbauer v. County of Santa Clara. However, as the Seventh Circuit clarifies in Conlisk, it is not the investigating agency that extends immunity, but the Fifth Amendment itself.
This obligation on the part of the employer exists only in the jurisdiction of the Seventh Circuit, and has been explicitly rejected by the Fifth and Eighth Circuits.
Some have questioned whether public employers even have the authority to grant immunity. This recently came up in the California case of Spielbauer v. County of Santa Clara. However, as the Seventh Circuit clarifies in Conlisk, it is not the investigating agency that extends immunity, but the Fifth Amendment itself.
