Wisconsin v. Brockdorf
2006 WI 76 (2006)
Facts
Vanessa Brockdorf was a police officer for the city of Milwaukee, Wisconsin. On September 14, 2003, she and her partner arrested a suspect for shoplifting at a local department store. While transporting the suspect, the officers stopped for a takeout meal. Brockdorf went into the restaurant to order food, and while she was inside, several witnesses observed her partner take the suspect out of the squad car, repeatedly strike him in the head with his fist, and then place him back in the squad car.
When Brockdorf returned, her partner told her the suspect had tried to kick out the car windows. The officers returned to the department store parking lot and called for a sergeant. When the sergeant arrived, the officers told him that a scuffle had occurred at the department store. The officers then transported the suspect to the hospital.
A citizen complaint was filed about the incident outside the restaurant, and the police department initiated a criminal investigation. Detective Harrison of the Internal Affairs Division interviewed Brockdorf on September 19, at which time Brockdorf stated that when she exited the department store, she noticed the suspect's shirt was ripped, and that her partner told her that the shirt was ripped while the suspect was resisting arrest in the store. Then, according to Brockdorf, they'd called the sergeant, the sergeant had arrived and reviewed the situation, and then they'd proceeded to the restaurant, retrieved takeout, and transported the suspect to the hospital.
Harrison spoke with Brockdorf again on October 3. On this occasion, Brockdorf claimed she was told "if you don't talk now, you're going to get charged with obstructing." She later testified that she did not want to be charged with obstructing, because in her view, "you get fired for lying . . . I figured I'd later be fired" (661). Under this threat, she changed her story, revealing to Harrison that she and her partner had gone to the restaurant prior to calling the sergeant, and that the alleged beating had occurred at that location.
After the criminal complaint was filed, Brockdorf filed a motion to suppress the statement she gave on October 3, arguing that the statement was not voluntary under Garrity. The Milwaukee County Circuit Court ordered the suppression of Brockdorf's October 3 statement. This decision was appealed by the state, and the appeals court overturned the decision of the circuit court. Brockdorf then appealed to the state Supreme Court.
When Brockdorf returned, her partner told her the suspect had tried to kick out the car windows. The officers returned to the department store parking lot and called for a sergeant. When the sergeant arrived, the officers told him that a scuffle had occurred at the department store. The officers then transported the suspect to the hospital.
A citizen complaint was filed about the incident outside the restaurant, and the police department initiated a criminal investigation. Detective Harrison of the Internal Affairs Division interviewed Brockdorf on September 19, at which time Brockdorf stated that when she exited the department store, she noticed the suspect's shirt was ripped, and that her partner told her that the shirt was ripped while the suspect was resisting arrest in the store. Then, according to Brockdorf, they'd called the sergeant, the sergeant had arrived and reviewed the situation, and then they'd proceeded to the restaurant, retrieved takeout, and transported the suspect to the hospital.
Harrison spoke with Brockdorf again on October 3. On this occasion, Brockdorf claimed she was told "if you don't talk now, you're going to get charged with obstructing." She later testified that she did not want to be charged with obstructing, because in her view, "you get fired for lying . . . I figured I'd later be fired" (661). Under this threat, she changed her story, revealing to Harrison that she and her partner had gone to the restaurant prior to calling the sergeant, and that the alleged beating had occurred at that location.
After the criminal complaint was filed, Brockdorf filed a motion to suppress the statement she gave on October 3, arguing that the statement was not voluntary under Garrity. The Milwaukee County Circuit Court ordered the suppression of Brockdorf's October 3 statement. This decision was appealed by the state, and the appeals court overturned the decision of the circuit court. Brockdorf then appealed to the state Supreme Court.
Issue
Were the officer's statements to the IAD detective voluntary in light of Garrity?
Holding
Affirmed. Her statements were voluntary.
Reasoning
- "Brockdorf's free choice to speak out or to remain silent was not compromised. She was not told that she would be fired if she exercised her Fifth Amendment right to remain silent. She was told that she would be charged with obstruction if she refused to answer questions in the criminal investigation. This, however, does not rise to the level of coercive conduct so as to negate the voluntariness of her statement. She was not forced to give a statement nor was she told that she could not invoke her right against self-incrimination" (662, citing the court of appeals decision).
- "it is undisputed that there was no express threat that Brockdorf would be dismissed if she refused to answer the questions posed to her" (665).
- "In our view, the analyses of Friedrick and Indorato are functionally equivalent. Although the First Circuit did not explicitly adopt a subjective/objective test in Indorato, the court essentially concluded that the implied threat the officer subjectively believed in was not objectively reasonable without an actual, overt threat of termination for invoking the Fifth Amendment right against self-incrimination" (667).
- ". . . we elect to adopt the two-pronged subjective/objective test, as we believe it provides the most useful mode of analysis for determining whether, as a matter of law, an officer's statements given in a criminal investigation are coerced and involuntary, and therefore subject to suppression under Garrity. Thus, in order for statements to be considered sufficiently compelled such that Garrity immunity attaches, a police officer must subjectively believe he or she will be fired for asserting the privilege against self-incrimination, and that belief must be objectively reasonable" (668).
- "In our view, however, the only 'significant coercive action of the state' that Brockdorf can point to is the alleged threat Harrison and Wilk made to Brockdorf to talk or get charged with obstructing. Without an express threat of termination, however, we conclude that this admonishment did not deprive Brockdorf of her right to make a free and reasoned decision to remain silent. In other words, Brockdorf's belief that she would be terminated for maintaining silence remained objectively unreasonable" (670).
Commentary
Officer Brockdorf was not explicitly threatened with dismissal if she refused to answer questions; she was told she would be charged with obstruction. Knowing that an obstruction conviction would lead to her dismissal, Brockdorf argued that she had been compelled. Essentially, she was arguing that although she had not been explicitly threatened with dismissal, she had been explicitly threatened with a penalty that would lead to her dismissal. This threat mirrors the indirect nature of the penalty found coercive in Spevack v. Klein.
In this case, though, the court held that "this does not rise to the level of coercive conduct so as to negate the voluntariness of the statement" (662). Although this conclusion might not be surprising if one assumed the court had been purely inspired by United States v. Indorato, the surprise is that the court actually reached their conclusion by adopting the Friedrick "subjective-objective" test - and then using Indorato to effectively negate it.
The court actually asserted that it was adopting the two-prong test first described by the D.C. Circuit in United States v. Friedrick. This test posits 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 that the subjective belief is objectively reasonable. Then, having "adopted" the Friedrick test, the Wisconsin court stated that, per the First Circuit's Indorato decision, an employee's subjective belief could not be objectively reasonable unless they are explicitly and directly told that refusing to answer will lead to termination. Referring to Indorato, the court said that the First Circuit "essentially concluded that the implied threat the officer subjectively believed in was not objectively reasonable without an actual, overt threat of termination for invoking the Fifth Amendment right against self-incrimination" (667).
"Implied threat . . . not objectively reasonable . . . without an actual, overt threat." The contradiction is headache-inducing.
Obviously unaware of the contradictions in their reasoning, the Wisconsin Supreme Court flatly stated that Friedrick and Indorato are "functionally equivalent" (667).
Having conceded that Brockdorf indeed 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. In other words, a belief in an implied threat is not reasonable unless it is based on an actual, overt threat; a subjective belief that you will be fired is only valid if you are directly told you will be fired.
If states continue to issue decisions like 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.
In this case, though, the court held that "this does not rise to the level of coercive conduct so as to negate the voluntariness of the statement" (662). Although this conclusion might not be surprising if one assumed the court had been purely inspired by United States v. Indorato, the surprise is that the court actually reached their conclusion by adopting the Friedrick "subjective-objective" test - and then using Indorato to effectively negate it.
The court actually asserted that it was adopting the two-prong test first described by the D.C. Circuit in United States v. Friedrick. This test posits 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 that the subjective belief is objectively reasonable. Then, having "adopted" the Friedrick test, the Wisconsin court stated that, per the First Circuit's Indorato decision, an employee's subjective belief could not be objectively reasonable unless they are explicitly and directly told that refusing to answer will lead to termination. Referring to Indorato, the court said that the First Circuit "essentially concluded that the implied threat the officer subjectively believed in was not objectively reasonable without an actual, overt threat of termination for invoking the Fifth Amendment right against self-incrimination" (667).
"Implied threat . . . not objectively reasonable . . . without an actual, overt threat." The contradiction is headache-inducing.
Obviously unaware of the contradictions in their reasoning, the Wisconsin Supreme Court flatly stated that Friedrick and Indorato are "functionally equivalent" (667).
Having conceded that Brockdorf indeed 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. In other words, a belief in an implied threat is not reasonable unless it is based on an actual, overt threat; a subjective belief that you will be fired is only valid if you are directly told you will be fired.
If states continue to issue decisions like 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.
