Firefighters and the Right to Remain Silent: August

Firefighters and the Right to Remain Silent

True or false: When questioned during an internal fire department investigation, a firefighter has the right to accept immunity protection under Garrity or remain silent.

OK, that’s a tough one. If you’re like most of the attendees to Curt Varone’s Fire-Rescue International seminar yesterday, you’d say “true.” But you’d be wrong.

The key lies first in understanding what “Garrity” is, of course. According to the website, “Garrity Rights protect public employees from being compelled to incriminate themselves during investigatory interviews conducted by their employers. This protection stems from the Fifth Amendment to the United States Constitution, which declares that the government cannot compel a person to be a witness against him/herself.”

OK, that makes sense, right? But then how can the first statement be false?

It’s because of the words “compelled to” and “incriminate.” Varone explains that fire departments definitely can order (compel) firefighters to answer questions or face the possibility of losing their job. They cannot, however, turn the statements from those investigations over to law enforcement for use in a criminal investigation.

Digging Deeper
So here’s another question for you:

True or false: A firefighter can’t be charged with a criminal offense that they reveal during fire department questioning.

If you’re reading quickly, the answer seems like “true.” But, in fact, it’s false. Nothing stops law enforcement from charging a firefighter with a crime that’s revealed during a fire department investigation. They just can’t build their case using the statements that the fire department collected during the investigation. They must build their own case.

So let’s review quickly:

  • Firefighters can be compelled by their employers to answer questions in an internal investigation.
  • They can be fired if they refuse to do so.
  • They can be punished for the conduct revealed during the investigation.
  • They can be charged for criminal conduct revealed during the investigation.
  • However, those charges must be brought by law enforcement using statements and evidence collected outside the fire department investigation process.

Of course, that all may sound black and white, but Varone notes that real life is quite a bit more grey. What, for instance, constitutes “compelling” a firefighter to answer questions? If a shift commander breaks up a fight between two firefighters and demands to know what happened, is he compelling them?

This confusion is bad not only because it can complicate the decisions of the shift commander and the firefighter, but because if Garrity eventually comes into play, the internal fire department investigation could impede the building of a criminal case. In the case of two firefighters fighting, that’s unlikely, but Varone gives the example of a firefighter downloading child pornography in the firehouse. If you compel him to answer questions and he reveals the criminal behavior, you can’t turn those statements over to the police. Therefore, unless the police have other evidence to build a case against him, he may not face justice.

For this reason, Varone advises that if you suspect criminal behavior, it may be best to get law enforcement involved rather than interview the accused member.

Other Tips
Varone, who has many years of experience as both a lawyer and a fire chief, also offers several tips when navigating these potentially challenging legal cases:

  • Always interview other witnesses before interviewing the accused firefighter. This reduces the possibility of inadvertently stumbling into Garrity situation where the fire department could potentially impede a criminal investigation.
  • Always schedule interviews ahead of time. In collective bargaining states, firefighters have the right to have a union representative present at the investigative interviews (and can remain silent until the rep is present). Scheduling such interviews ahead of time reduces the chance that the union rep will be unavailable for the interview.
  • Record all interviews—at the least, audio recordings, but video is better. These recordings can protect your department and the firefighter as well.
  • Remember that a firefighter doesn’t have to invoke Garrity—verbally or in writing—for it to apply. All that is required is the firefighter is compelled to answer questions under threat of termination. At the same time, fire departments don’t have to advise firefighters of their right to have a union representative present—it’s not like law enforcement who must advise suspects of their Miranda rights.
  • When compelling a firefighter to answer questions, the fire department request should be accompanied by an admonishment—a formal statement that’s given to and signed by the firefighter and read on tape. The statement should indicate that the firefighter is compelled to answer the questions or face termination. It should also give them the assurance that the statements they give won’t be used in a criminal investigation.

Best Practices
No fire officer wants to get pulled into the complexities of Fifth Amendment law or the complexities of Garrity Rights. But the hard truth is that if you’re in a leadership position in the fire service—even as a company officer—you’re likely to eventually face such a situation. Varone notes that in such cases, your actions should be guided not only by what’s legal, but by established best practices. For example, it’s not illegal to ask a firefighter to answer questions without notice. But it’s best practice to give them several days’ notice. Similarly, fire departments should take steps to make it entirely clear whether an investigation is compelled or voluntary—and they should do this by having three established admonishments at the ready: one for witness employees, one for accused employees and one for voluntary admonishment.

Even with all these measures in place, however, Varone admits that Garrity leaves a lot to be interpreted. Perhaps his best advice? If you’re involved with one of these investigations, get with an attorney who understands Garrity, inside and out.


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