Gardner v. Broderick
392 U.S. 273 (1968)
Facts
Gardner was a police officer for the City of New York, and Broderick was the city's Police Commissioner.
In August 1965, Gardner was subpoenaed and appeared before a New York County grand jury, which was investigating alleged bribery and corruption of police officers in relation to illegal gambling operations. He was advised that the grand jury proposed to examine him concerning the performance of his official duties, and was also advised of his privilege against self-incrimination. However, he was asked to sign a "waiver of immunity" and was told if he refused to sign the "waiver," he would be fired.
He refused to sign the waiver, and was fired in accordance with Section 1123 the New York City Charter, which stated:
"If any councilman or other officer or employee of the city shall, after lawful notice or process, willfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or to answer any question regarding the property, government or affairs of the city or of any county included within its territorial limits, or regarding the nomination, election, appointment or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency."
The New York Supreme Court dismissed his petition for reinstatement, and the New York Court of Appeals affirmed the dismissal of his petition.
In August 1965, Gardner was subpoenaed and appeared before a New York County grand jury, which was investigating alleged bribery and corruption of police officers in relation to illegal gambling operations. He was advised that the grand jury proposed to examine him concerning the performance of his official duties, and was also advised of his privilege against self-incrimination. However, he was asked to sign a "waiver of immunity" and was told if he refused to sign the "waiver," he would be fired.
He refused to sign the waiver, and was fired in accordance with Section 1123 the New York City Charter, which stated:
"If any councilman or other officer or employee of the city shall, after lawful notice or process, willfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or to answer any question regarding the property, government or affairs of the city or of any county included within its territorial limits, or regarding the nomination, election, appointment or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency."
The New York Supreme Court dismissed his petition for reinstatement, and the New York Court of Appeals affirmed the dismissal of his petition.
Issue
Whether a policeman who refuses to waive his constitutional protections may be dismissed from office because of that refusal.
Holding
Reversed. The dismissal was improper.
Reasoning
". . . 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" (279).
Commentary
If a public employee cannot be compelled to incriminate themselves (per Garrity), then it only makes sense that one cannot be terminated for refusing to waive one's constitutional rights.
