COLORADO COURT OF APPEALS RULES IN AGREEMENT WITH AMICUS BRIEF FILED BY NAPO

NAPO PRAISES COURT’S RULING REGARDING LAW ENFORCEMENT OFFICERS’ FIFTH AMENDMENT RIGHTS
 
WASHINGTON, DC  -  On September 3, 1998, a three judge panel of the Colorado Court of Appeals unanimously reversed the lower court decision in the case of City and County of Denver and the Public Safety Review Commission vs. Scott Blatnik and Jerome Powell.

In March 1998, the National Association of Police Organizations (NAPO) through its National Law Enforcement Officers’ Rights Center, filed a amicus curaie brief in the Colorado Court of Appeals in support of the two law enforcement officers involved in the case.  The Court’s ruling concludes that these officers are entitled to assert their Fifth Amendment privilege and adopts the major points of NAPO’s amicus brief.
 
“Today is a red letter day for law enforcement,” declared Robert T. Scully, NAPO executive director.  “The Court has made clear that law enforcement officers are entitled to the same full range of fundamental constitutional rights and protections held by all other Americans.  The courts will continue to protect the Fifth Amendment rights of police officers, but only as long as we are diligent in fighting for those rights,” continued Scully.

In its brief, NAPO urged the Court to recognize that the Denver Public Safety Review Commission (an oversight body which reviews internal police misconduct investigations and makes policy) cannot compel appellant police officers to testify during an inquiry into allegations of improper force, once the officers have invoked their Fifth Amendment privilege against self-incrimination.  The Court ruled that the officers are entitled to assert their Fifth Amendment privilege before the Commission and to decline to answer questions submitted to them, whenever their answers might tend to incriminate them.

Both officers were involved in critical incidents, one involving an alleged assault and the other the death of a knife-wielding assailant.  Both officers were the subjects of police department internal affairs investigations and were eventually exonerated of any criminal liability by the district attorney.  Also, no disciplinary action was taken, based on a finding that the force used was justified.  The Denver Public Safety Review Commission then subpoenaed both officers to testify about these incidents, and both asserted their Fifth Amendment right against self-incrimination.  The City and the Commission sued, and a lower court erroneously ordered the officers to testify on the grounds that anytime a governmental body seeks to extract information from police officers, they must comply under the Garrity doctrine.

NAPO argued that the limited exceptions to the appellants’ right to invoke their Fifth Amendment privilege, which are the only ways that the Commission could conceivably compel the appellants’ testimony, were not available in this case.  NAPO stressed that there is no precedent whatsoever for the district court’s order compelling law enforcement officers to testify before any governmental body seeking to extract information from police officers, once they have asserted their Fifth Amendment privilege.

The Court adopted the major points made by the NAPO amicus curiae brief.  First, the Court ruled that any statements made by the officers before the Commission would be voluntary and would constitute a waiver of their Fifth Amendment Rights, so that their statements could eventually be used against them in a criminal proceeding.  Their statements would be considered voluntary because the Commission is not the defendants’ employer and therefore cannot compel them to testify.

The Court found that the authority to discharge, discipline, or impose sanctions on police officers is reserved for the chief of police, director of corrections, and manager of safety, so only they can fire or discipline an officer who refuses to refuses to provide information after invoking the Fifth Amendment.  In fact, the Public Safety Review Commission is specifically excluded by Denver’s charter from the disciplinary process and is, in fact, prohibited from even making recommendations concerning discipline.  Thus, the Court concluded that, absent an objective reasonable expectation of being discharged, the officers are under no compulsion to testify and any information they provide would not be protected under the Garrity doctrine.

Second, apart from the issue of disciplinary authority, the court ruled that the Commission cannot compel the officers to make statements when they invoke their privilege because the Commission does not have statutory authority to grant use and derivative use immunity.  (This contrasts with the authority of the Denver Civil Service Commission, which oversees police personnel matters and does have express authority to grant an immunity.)

Third, the Court rejected the Commission’s assertion that its subpoena power, in and of itself, is sufficient to compel statements from the defendants.  The Court held that the obligation to appear and answer questions pursuant to subpoena power does not translate the Commission’s authority into an ability to coerce a compelled statement from a witness.

The National Association of Police Organizations (NAPO) is a coalition of police unions and associations from across the United States that serves in Washington, DC to advance the interests of America’s law enforcement officers through legislative and legal advocacy, political action and education.  Founded in 1978, NAPO now represents more than 4,000 police unions and associations, 250,000 sworn law enforcement officers, 3,000 retired officers and more than 100,000 citizens who share a common dedication to fair and effective crime control and law enforcement.  In Colorado, NAPO represents the Colorado Police Protective Association and the Denver Police Association.

###