United States v. Indorato
628 F.2d 711 (1st Cir. 1980)
Facts
Mario Indorato was a lieutenant with the Massachusetts state police. In 1978 he was investigated for orchestrating the theft of parked freight trailers.
He was questioned by the FBI and a state police detective. During the interview with the state police detective, he was told "the time has come, push has now come to shove," and that an answer was expected "this minute." Believing his job was in jeopardy, he answered the questions put to him.
He was convicted of conspiracy, theft, and perjury.
On appeal, he argued that the statements he had given were coerced and therefore in violation of the Fifth Amendment. Specifically, he argued that the statements by the state police detective constituted a threat of dismissal, because departmental rules required officers to "promptly obey any lawful order emanating from any superior officer," and that violating this rule would lead to a trial board whereupon a finding of guilt the officer "may be subject to dismissal or such disciplinary action as the Commissioner or Executive Officer may direct."
He was questioned by the FBI and a state police detective. During the interview with the state police detective, he was told "the time has come, push has now come to shove," and that an answer was expected "this minute." Believing his job was in jeopardy, he answered the questions put to him.
He was convicted of conspiracy, theft, and perjury.
On appeal, he argued that the statements he had given were coerced and therefore in violation of the Fifth Amendment. Specifically, he argued that the statements by the state police detective constituted a threat of dismissal, because departmental rules required officers to "promptly obey any lawful order emanating from any superior officer," and that violating this rule would lead to a trial board whereupon a finding of guilt the officer "may be subject to dismissal or such disciplinary action as the Commissioner or Executive Officer may direct."
Issue
Was it constitutional to use the defendant's statements in his prosecution, or were his statements improperly compelled?
Holding
Affirmed. The statements were not compelled, and thus the conviction was proper.
Reasoning
- ". . . there was no overt threat that defendant would be dismissed if he refused to answer the questions asked" (715).
- "There is nothing in the record to suggest that the rules have been interpreted to mean that a state police officer who refuses on fifth amendment grounds to comply with an order to provide self-incriminating statements would be dismissed. The language used in the rules - providing that for violation a member may be tried and upon conviction may be subject to dismissal or other disciplinary action - suggests that dismissal would not have automatically followed defendant's invocation of the fifth amendment" (716).
- "We do not think that the subjective fears of defendant as to what might happen if he refused to answer his superior officers are sufficient to bring him within Garrity's cloak of protection" (717).
Commentary
There is much to say about this important yet deeply flawed decision. The ruling is overwhelmingly restrictive of employees' rights, and is excessively narrow in light of United States Supreme Court decisions.
The case involved an officer being given an order by a superior, and departmental rules that mandated a trial board and potential dismissal for noncompliance with orders received from superiors. In the mind of the public employee, the connection should be obvious: if I refuse the order, I will most likely be "convicted" by a trial board and then terminated. This corresponds with the situation deemed unlawfully coercive by the Supreme Court in Garrity and Uniformed Sanitation I, except that the penalty in this case is indirect.
In Indorato, the threat of termination did not come directly from the superior's lips - it was a penalty that the employee simply knew would result from refusing to answer. It is common sense that the dilemma faced by the employee - and what disposes them to self-incriminate - is their own assessment of the circumstances: "Will I lose my job or face other severe consequences if I refuse to answer? If yes, then I'd better answer!"
Not good enough, according to the First Circuit, which held that Indorato was not compelled to self-incriminate because:
Therefore, they said, the subjective fears of the employee are not enough to bring about Garrity protection.
To clarify, one must ask: What if Indorato had refused to comply with the order from his superior officer? Is there any doubt that he would have been convicted by a trial board and then dismissed? It is difficult to imagine a scenario in which a trial board would not have reached a finding of guilt, given the officer's clear refusal to obey orders and the seriousness of the alleged offense. Equally difficult to imagine is a scenario in which the finding of guilt would not have been followed by a dismissal decision by the police commissioner or executive officer. Any other disciplinary penalty would have subjected the department to massive excoriation by the public, media, and policymakers.
The First Circuit had an obvious case of compulsion before them, and consciously sought to define compulsion as narrowly as possible, so as to exclude Lt. Indorato from that definition. In effect, they argued that it doesn't matter if you incriminate yourself simply because you believe you are going to be terminated; if threats do not emanate from your supervisors' lips, you are not entitled to Fifth Amendment protections. Despite the numerous penalty case rulings from the Supreme Court which held that sanctions such as dismissal, disqualification from bidding on contracts, and disbarment constitute compulsion, the First Circuit found that a direct line of events leading to job loss (refusal - trial board - termination) does not.
Impact
The Indorato decision only has direct applicability within the jurisdiction of the First Circuit (Maine, Massachusetts, New Hampshire, and Rhode Island). However, while most federal courts have not adopted the Indorato interpretation, numerous state-level courts have used Indorato to restrict the definition of compulsion and thus reduce the rights of employees.
Most federal courts have tended in the opposite direction of the Indorato decision and have viewed the definition of compulsion very broadly. The Supreme Court's 1977 decision in Lefkowitz v. Cunningham can be seen as summarizing this broad view, holding that compulsion can take many forms, as long as it constitutes a "substantial penalty." The Supreme Court has been consistent in this regard, emphasizing a broad view of compulsion in 1984's Minnesota v. Murphy and 2002's McKune v. Lile. The Circuit Courts of Appeals have generally maintained consistency with the Supreme Court's view.
In 1988's United States v. Friedrick, the D.C. Circuit explicitly recognized that compulsion depended on the perception of the employee. In doing so, it effectively established a polar opposite standard to Indorato. At the Federal level, the Friedrick interpretation has been the more influential, explicitly adopted by the Eleventh Circuit and acknowledged by the Fifth and Sixth Circuits.
At the state level, however, Indorato has had an unfortunately significant impact. Despite the Supreme Court's views and the availability of sensible guidepost decisions like Friedrick, several state courts outside the First Circuit's jurisdiction have gone in the direction of Indorato. Courts in Colorado, Florida, Idaho, Illinois, New Jersey, Minnesota, and Wisconsin have rendered decisions stating that if termination is merely possible, but not explicit and definite, compulsion does not exist.
Michigan appeared to be heading down the Indorato path with People v. Coutu, 245 Mich. App 695, 599 N.W.2d 556 (1998), but then swung back toward a broader view of compulsion in People v. Wyngaard, 462 Mich. 659, 614 N.W.2d 143 (2000). Perhaps in an effort to eliminate the instability and prevent what some viewed as the gradual erosion of Garrity Rights, the state enacted legislation in 2006 defining compulsion as being caused by an explicit threat of dismissal "or any other job sanction" (Michigan Public Act 563 of 2006: Disclosures by Law Enforcement Officers). However, this law only applies to law enforcement officers, leaving all of Michigan's other public employees to the unpredictable mercies of the courts.
One of the narrowest rulings related to Garrity Rights anywhere at any level occurred with the New Hampshire Supreme Court's 2002 decision in State of New Hampshire v. Valerie Litvin. In this case, a municipal clerk who received explicit written assurances that her responses would not be used against her in a criminal proceeding was convicted and imprisoned after a trial in which her statements were used against her. The New Hampshire Supreme Court pointed at the Indorato decision in deciding that because Litvin was threatened with "disciplinary penalties" instead of termination, she was not protected by Garrity.
In Wisconsin v. Brockdorf, the Wisconsin Supreme Court ostensibly adopted the Friedrick standard, then utilized the Indorato decision to negate it. As you may recall, the Friedrick standard states that when an employee is not specifically told that refusing to answer will lead to dismissal, compulsion still exists when the employee has a subjective belief that refusing to answer will lead to dismissal and this subjective belief is objectively reasonable. Having agreed that Brockdorf had a subjective belief that she would be dismissed, the Wisconsin court then stated that her subjective belief could not be objectively reasonable unless she was specifically told that refusing to answer would lead to dismissal. The Wisconsin court's self-contradiction is evident in their own attempt to summarize Indorato:
". . . the implied threat the officer subjectively believed in was not objectively reasonable without an actual, overt threat of termination" (Wisconsin v. Brockdorf, 667).
If states continue to issue decisions like Litvin and Brockdorf, employees will find their constitutional rights increasingly limited, and state and local governments will continue to find themselves mired in Garrity-related litigation. The results will be continuing confusion and additional distraction from the actual missions of public employees and the agencies that employ them.
The case involved an officer being given an order by a superior, and departmental rules that mandated a trial board and potential dismissal for noncompliance with orders received from superiors. In the mind of the public employee, the connection should be obvious: if I refuse the order, I will most likely be "convicted" by a trial board and then terminated. This corresponds with the situation deemed unlawfully coercive by the Supreme Court in Garrity and Uniformed Sanitation I, except that the penalty in this case is indirect.
In Indorato, the threat of termination did not come directly from the superior's lips - it was a penalty that the employee simply knew would result from refusing to answer. It is common sense that the dilemma faced by the employee - and what disposes them to self-incriminate - is their own assessment of the circumstances: "Will I lose my job or face other severe consequences if I refuse to answer? If yes, then I'd better answer!"
Not good enough, according to the First Circuit, which held that Indorato was not compelled to self-incriminate because:
- There was no "overt threat" that he would be terminated, and
- The departmental rules only stated that the employee "may be subject to dismissal" or other disciplinary action, and thus dismissal was not an automatic outcome.
Therefore, they said, the subjective fears of the employee are not enough to bring about Garrity protection.
To clarify, one must ask: What if Indorato had refused to comply with the order from his superior officer? Is there any doubt that he would have been convicted by a trial board and then dismissed? It is difficult to imagine a scenario in which a trial board would not have reached a finding of guilt, given the officer's clear refusal to obey orders and the seriousness of the alleged offense. Equally difficult to imagine is a scenario in which the finding of guilt would not have been followed by a dismissal decision by the police commissioner or executive officer. Any other disciplinary penalty would have subjected the department to massive excoriation by the public, media, and policymakers.
The First Circuit had an obvious case of compulsion before them, and consciously sought to define compulsion as narrowly as possible, so as to exclude Lt. Indorato from that definition. In effect, they argued that it doesn't matter if you incriminate yourself simply because you believe you are going to be terminated; if threats do not emanate from your supervisors' lips, you are not entitled to Fifth Amendment protections. Despite the numerous penalty case rulings from the Supreme Court which held that sanctions such as dismissal, disqualification from bidding on contracts, and disbarment constitute compulsion, the First Circuit found that a direct line of events leading to job loss (refusal - trial board - termination) does not.
Impact
The Indorato decision only has direct applicability within the jurisdiction of the First Circuit (Maine, Massachusetts, New Hampshire, and Rhode Island). However, while most federal courts have not adopted the Indorato interpretation, numerous state-level courts have used Indorato to restrict the definition of compulsion and thus reduce the rights of employees.
Most federal courts have tended in the opposite direction of the Indorato decision and have viewed the definition of compulsion very broadly. The Supreme Court's 1977 decision in Lefkowitz v. Cunningham can be seen as summarizing this broad view, holding that compulsion can take many forms, as long as it constitutes a "substantial penalty." The Supreme Court has been consistent in this regard, emphasizing a broad view of compulsion in 1984's Minnesota v. Murphy and 2002's McKune v. Lile. The Circuit Courts of Appeals have generally maintained consistency with the Supreme Court's view.
In 1988's United States v. Friedrick, the D.C. Circuit explicitly recognized that compulsion depended on the perception of the employee. In doing so, it effectively established a polar opposite standard to Indorato. At the Federal level, the Friedrick interpretation has been the more influential, explicitly adopted by the Eleventh Circuit and acknowledged by the Fifth and Sixth Circuits.
At the state level, however, Indorato has had an unfortunately significant impact. Despite the Supreme Court's views and the availability of sensible guidepost decisions like Friedrick, several state courts outside the First Circuit's jurisdiction have gone in the direction of Indorato. Courts in Colorado, Florida, Idaho, Illinois, New Jersey, Minnesota, and Wisconsin have rendered decisions stating that if termination is merely possible, but not explicit and definite, compulsion does not exist.
Michigan appeared to be heading down the Indorato path with People v. Coutu, 245 Mich. App 695, 599 N.W.2d 556 (1998), but then swung back toward a broader view of compulsion in People v. Wyngaard, 462 Mich. 659, 614 N.W.2d 143 (2000). Perhaps in an effort to eliminate the instability and prevent what some viewed as the gradual erosion of Garrity Rights, the state enacted legislation in 2006 defining compulsion as being caused by an explicit threat of dismissal "or any other job sanction" (Michigan Public Act 563 of 2006: Disclosures by Law Enforcement Officers). However, this law only applies to law enforcement officers, leaving all of Michigan's other public employees to the unpredictable mercies of the courts.
One of the narrowest rulings related to Garrity Rights anywhere at any level occurred with the New Hampshire Supreme Court's 2002 decision in State of New Hampshire v. Valerie Litvin. In this case, a municipal clerk who received explicit written assurances that her responses would not be used against her in a criminal proceeding was convicted and imprisoned after a trial in which her statements were used against her. The New Hampshire Supreme Court pointed at the Indorato decision in deciding that because Litvin was threatened with "disciplinary penalties" instead of termination, she was not protected by Garrity.
In Wisconsin v. Brockdorf, the Wisconsin Supreme Court ostensibly adopted the Friedrick standard, then utilized the Indorato decision to negate it. As you may recall, the Friedrick standard states that when an employee is not specifically told that refusing to answer will lead to dismissal, compulsion still exists when the employee has a subjective belief that refusing to answer will lead to dismissal and this subjective belief is objectively reasonable. Having agreed that Brockdorf had a subjective belief that she would be dismissed, the Wisconsin court then stated that her subjective belief could not be objectively reasonable unless she was specifically told that refusing to answer would lead to dismissal. The Wisconsin court's self-contradiction is evident in their own attempt to summarize Indorato:
". . . the implied threat the officer subjectively believed in was not objectively reasonable without an actual, overt threat of termination" (Wisconsin v. Brockdorf, 667).
If states continue to issue decisions like Litvin and Brockdorf, employees will find their constitutional rights increasingly limited, and state and local governments will continue to find themselves mired in Garrity-related litigation. The results will be continuing confusion and additional distraction from the actual missions of public employees and the agencies that employ them.