Holding: Federal court
rejects a claim that use of force reports may not be used against an officer because they are obtained in violation
of the Fifth Amendment right against self-incrimination. “Garrity does not
stand for the proposition that a statement made in a standard report is coerced
whenever an officer faces both the remote possibility of criminal prosecution
if he files the report and the arguably even more speculative possibility of
termination if he declines to do so.” U.S.
v. Cook.
FOR
THE DISTRICT OF COLUMBIA
United
States of America,
v.
Stephen
Cook,
Defendant.
Criminal
No. 07-192 (ESH)
2007
U.S. Dist. Lexis 77495
October
18, 2007, Decided
October
19, 2007, Filed
MEMORANDUM OPINION AND ORDER
Ellen Segal Huvelle
United States District
Judge
Defendant Stephen Cook, a Deputy United States Marshal, was
allegedly involved in an incident with Omar Hunter while Hunter was in the
custody of the United States Marshal Service (“USMS”) on August 30, 2005. As a
result, Hunter filed a
Citizen Complaint Report the same day claiming that Cook assaulted him in the
sallyport in the Superior Court. Immediately after receiving the complaint,
defendant’s supervisor, Supervisory Deputy United States Marshal Paul Rivers,
instructed defendant to complete a USM-210 Field Report and a USM-133 Use of
Force Report concerning the incident. Defendant did so.
On May 11, 2006, the government filed a seven-count indictment
against defendant. n1 Count 1 charges
defendant with using unreasonable force against Omar Hunter, thereby depriving
him of his liberty without due process of law, in violation of 18 U.S.C. § 242.
Count 2 alleges that Cook made false statements by filing a false Field Report
in violation of 18 U.S.C. §§ 1001(a)(1)
and (a)(2). Count 3 alleges that Cook conspired with others to submit false
Field Reports and to testify falsely before the grand jury in violation of 18
U.S.C. § 371. Finally, Counts 4 and 6 allege that Cook tampered with a grand
jury witness in violation of 18 U.S.C. § 1512 (b)(1).
Defendant Stephen Cook has
moved this Court to suppress the statements he made in his Field and Use of
Force Reports, arguing that their use against him in a criminal prosecution
violates his due process rights and his privilege against self-incrimination pursuant
to Garrity v. New Jersey, 385 U.S. 493,
87 S. Ct. 616, 17 L. Ed. 2d 562 (1967). (Def.’s Mot. at 1.) The Court held an
evidentiary hearing on October 15, 2007, at which the defendant, Supervisory
Deputy United States Marshal Paul Rivers, and Chief Inspector Stanley E.
Griscavage testified. At the conclusion of the hearing, the Court ruled from
the bench denying defendant’s due process claim, but took defendant’s Garrity
argument under advisement and requested supplemental pleadings regarding the
applicability of United States v. Veal, 153 F.3d 1233 (11th Cir. 1998), cert.
denied, 526 U.S. 1147, 119 S. Ct. 2024, 143 L. Ed. 2d 1035 (1999). Having now reviewed the
testimony, the pleadings, and the relevant law, the Court denies defendant’s
motion based on the following findings of fact and conclusions of law.
FINDINGS OF FACT
I. Hearing Testimony
A. Supervisory Deputy
United States Marshal Paul Rivers
Supervisory Deputy United States Marshal Paul Rivers testified
that he has been employed with the United States Marshal Service since October
1990. Since April 2004, Rivers has been a Supervisory Deputy in Superior Court.
As a Supervisory Deputy, Rivers is responsible for handling prisoners, managing
deputy rotations, and handling personnel matters for the deputies he
supervises.
Rivers testified that pursuant to USMS policies and procedures,
deputies are required to file a USM-210 Field Report whenever any incident
occurs that is “out of the ordinary,” which could include anything from finding
contraband to someone falling on the stairs. If the incident involves any use
of force, the deputy must also file a USM-133 Use of Force Report as well as
the Field Report. Use of Force Reports are required when the physical force
used is anything beyond that necessary for a “come along hold” or an “escort
stand.” Rivers testified that the use of both of these reports is routine. He
receives Field Reports daily and between one and three Use of Force Reports per
week. Upon receiving these reports, Rivers checks for spelling and grammar
errors, and then forwards them to Chief Greg Petchel. He is not responsible for
evaluating whether the claims have merit or for determining whether to initiate
a formal administrative or criminal investigation. He simply collects the
reports and forwards them to the chief.
On August 31, 2005, Rivers, who was employed as the AM cell
block supervisor at the Superior Court, received from his secretary a Citizen
Complaint Report that had been filed by Omar Hunter. He alleged that on August
30, 2005, an unnamed deputy had used excessive force on the complainant while
he was in the custody of the USMS in the sallyport in the Superior Court. (Def’s
Ex. 1.) The physical description of the deputy did not match any of the
marshals, so Rivers asked Cook, who happened to be nearby, if he knew anything
about the incident. Cook identified himself as the deputy against whom the
allegations had been made. Cook told him that nothing had happened -- he just
had to help a guy off the prisoner van. Rivers then instructed Cook to fill out
the “basic” forms, the USM-210 and the USM-133, in the next couple of days, and
confirmed with him which other officers had been present at the time of the
alleged incident. He did not give Cook any Garrity warning prior to requesting
the reports, nor was he aware of what Garrity was at the time of this incident.
Rivers did not remember questioning Cook any further about the incident. He
also instructed the other deputies who had been present at the scene (Deputies
Sharpstene, Behringer, Greenlee, and Ramsey) to fill out USM-210 reports. Rivers testified that he did not threaten Cook or any of
the other deputies with termination or any other form of discipline if they
failed to file the report.
Once Rivers received the reports from Cook and the other
deputies, as well as from the Deputy-in-Charge Steve Long, he turned them over
to the chief. He did no further investigation and made no recommendation either
written or oral to any superior. The matter did not seem urgent to Rivers, for
as he explained, while he has been a supervisor there have been several major
incidents, including seizures, injuries, and attacks, and this incident did not
seem “like a big deal” so he spent “very little” time on it.
B. Defendant Stephen
Cook
Cook testified that he has been employed at the USMS since
January 2003 and is currently on leave. He did not have a smooth relationship
with his supervisor Rivers, and he believed that Rivers “singled him out” for
discipline. However, prior to this incident, Cook had never been subject to any
form of discipline, and he had always received successful evaluations from
Rivers. Cook was aware that he had previously been subjected to a “handful” of
internal affairs investigations between 2003 and 2005, but he had never been
interviewed in connection with any of them. He learned of these investigations
only after he received letters saying that investigations had been opened and
closed. Cook also testified that he had previously filled out both Field and
Use of Force Reports. He had filled out between six and eight Use of Force
Reports prior to this incident, sometimes on his own initiative and sometimes
when told to do so by his supervisor. In all of these cases, Cook believed that
he had used force.
Cook’s testimony about his conversation on August 31 did not
differ substantially from River’s account. Cook explained that he was present
when Rivers received the complaint and, after reading it, he identified himself
as its subject. He was not concerned when Rivers instructed him to file a Field
Report because such reports are routine. However, after he submitted the Field
Report, n2 Rivers then told him to file
a Use of Force Report. n3 Cook responded that no force had been used, but
Rivers instructed him to file the report anyways. Rivers never threatened him
with any possibility of discipline for failing to file, nor did Rivers question
him about the incident involving Hunter. Cook described Rivers’s tone as being “conversational”
and admitted that Rivers never “ordered” him to file the report. He believed
that it was “abnormal” for Rivers to instruct him to file a report having been
told that no force had been used. He nonetheless went to the computer and “copied
and pasted” the contents of his Field Report into his Use of Force Report and
submitted it to Rivers. (See Gov’t Ex. 3.)
Cook testified that at the
time he believed that if he failed to file the report, he could be fired. He
believed this because another deputy, Christopher Christian, had been told by
the chief that he would be fired if he failed to file a report. Cook was unable to recall whether he learned about
Christian’s situation before or after August 31, 2005. Cook also testified that
he was not familiar with the particular USM policy that explains the penalty
for failing to file a report or failing to follow an order, but said that he
received training prior to August 2005, at which time he was told that he was
required to cooperate in an investigation by answering questions and filling
out reports.
C. Chief Inspector
Stanley E. Griscavage
Stanley E. Griscavage, Chief Inspector of the Office of
Internal Investigations (“OII”) for the USMS, testified to the policies and
procedures for reporting and investigating incidents involving the use of
force. He explained that any use of force must be documented in a USM-133
Report. This report is used in the normal course of business to document
incidents ranging from “physical control” to the discharge of a firearm. As an
example, Griscavage indicated that no report would be necessary if an officer
was required to touch a suspect in order to place handcuffs on him, but if the
suspect resisted, then the force used to restrain him would be reportable. Deputies have the
obligation to fill out a USM-133 Report any time they use force (see Gov’t
Reply Ex. 3 [Use of Force Report] at 3), n4
and it is the responsibility of the supervisor to ensure that the report
is completed.
After the reports of an incident are completed, they are then
automatically forwarded to OII, where Griscavage reviews them. If he determines
that the use of force was appropriate and proper, and absent any formal
complaint, the reports are processed and filed for statistical purposes. If a
formal citizen complaint is filed for which no previous USM-133 or USM-210 has
been submitted, the complaint is usually sent to OII without any accompanying
documentation. In such a situation, the policies and procedures are silent as
to whether a supervisor should request a USM-133 or USM-210 before sending the
complaint to OII. However, according to Griscavage, it is very unusual for a
supervisor to request that a USM-133 or a USM-210 be completed after a citizen
complaint has been filed, especially where there has been a passage of time
between the alleged incident and the filing of the complaint.
If OII believes that a USM-133 report requires further
investigation or if there is a formal citizen complaint that alleges excessive
force, that report is automatically forwarded to both the Office of the
Inspector General (“OIG”) and DOJ’s Civil Rights Division. The large majority
of cases where no citizen complaint has been filed are reviewed and closed by
OII without being forwarded. Griscavage testified that he was not familiar with
the internal review process of either OIG or Civil Rights, but explained the possible
outcomes of sending a case to these offices. After reviewing the complaint,
Civil Rights either sends a notification that it will pursue its own
investigation (usually by using the FBI) or sends a letter of declination. OIG
either refers the case back to OII to handle as a management issue; retains it
for its own administrative or criminal investigation; or initiates a joint
investigation with OII. Griscavage explained that the forwarding of a case to
OIG and Civil Rights officially opens an administrative investigation because
it triggers the opening of a case in the database and the assignment of a case
number. Local supervisors do not have the responsibility for determining when
or if an administrative or criminal investigation should be initiated, nor do
they conduct investigations. In fact,
it would be “improper” for them to do so.
Once an administrative or criminal investigation has been opened, the deputy receives certain procedural protections pursuant to Garrity, which are explained in Article 39 of the Master Agreement between the Marshal Service and the union. (See Court’s Ex. 3.) The deputy is notified that an administrative action is being pursued and that he has the right to seek representation. OII makes the decision when to provide the Garrity notice, and a line supervisor may not decide to do so before OIG and DOJ have had the opportunity to review the matter. However, Garrity protections do not apply prior to the initiation of the administrative or criminal investigation.
If a deputy is instructed to file a report by his supervisor, he has no
choice but to respond or to face possible discipline. This decision to discipline is not made by the line
supervisor. The report of insubordination is submitted to OII, which forwards
it to OIG. OIG can either choose to pursue its own investigation of the matter;
refer it back to OII to open an administrative action; or pursue a joint
investigation with OII. Once OII has completed its investigation, it forwards
its conclusions to a disciplinary panel. The panel reviews the case, issues a
proposal letter based on its findings to the deciding official, and the
deciding official then meets with the subject employee or reviews his or her
paperwork and makes a determination as to what kind of disciplinary action is
appropriate. Griscavage was unaware of any instance where a marshal with a
clean disciplinary record was terminated for failing to file a necessary
report.
CONCLUSIONS OF LAW
I. Governing Principles
of Law
In Garrity, officers under investigation for corruption were
warned before questioning “(1) that anything [they] said might be used against
[them] in any state criminal proceeding; (2) that [they] had the privilege to
refuse to answer if the disclosure would tend to incriminate [them]; but (3)
that if [they] refused to answer [they] would be subject to removal from
office.” 385 U.S. at 494. The Supreme Court determined that the choice
presented to the officers “either to forfeit their jobs or to incriminate
themselves” was “likely to exert such pressure upon an individual as to disable
from making a free and rational choice” and therefore could not “be sustained
as voluntary ....” Id. at 497-98 (internal quotation marks omitted). The Court
concluded that “the protection of the
individual under the Fourteenth Amendment against coerced statements prohibits
use in subsequent criminal proceedings of statements obtained under the threat
of removal from office ....” Id. at 500.
“Although the Supreme Court has not recently revisited the
Garrity line of cases, a number of the circuits have focused on the ‘coercion’
issue emphasized by the Court in those
cases, making, it a claim dependent on such a showing.” United States v.
Trevino, 215 Fed. App. 319, 321 (5th Cir. 2007) (citing McKinley v. City of
Mansfield, 404 F.3d 418, 436 (6th Cir. 2005); United States v. Vangates, 287
F.3d 1315, 1321-22 (11th Cir. 2002); Chan v. Wodnicki, 123 F.3d 1005, 1009-10
(7th Cir. 1997); Singer v. Maine, 49 F.3d 837, 847 (1st Cir. 1995); Benjamin v.
City of Montgomery, 785 F.2d 959, 961-62 (11th Cir. 1986)). To make out a
Garrity claim, the officer must demonstrate that he had been put “between the
rock and the whirlpool,” Garrity, 385 U.S. at 498, by having to choose whether
to incriminate himself or to lose his job. In this Circuit, an officer
claiming the protection of Garrity “must have in fact believed his ...
statements to be compelled on threat of loss of job and this belief must have
been objectively reasonable.” United States. v. Friedrick, 268 U.S. App. D.C.
386, 842 F.2d 382, 395 (D.C. Cir. 1988).
Cook has failed to meet his burden under Garrity. First, his
claim that he subjectively believed he would be fired if he failed to file the
Use of Force Report is, at best, dubious. Cook admitted to being unfamiliar
with the USMS policy setting out the disciplinary consequences of failing to
follow an order to write a report, and he further admitted that he never knew
of anyone who had been terminated on these grounds. n5 The only evidence he offered to support his
belief that refusal to submit a report would be punished by termination was
that another deputy claimed to have been told that he would be fired if he
refused to submit a report. n6 However,
Cook was unable to remember with certainty whether he learned this information
in August 2005 or thereafter, n7 and he
admitted that he knew nothing about that deputy’s prior disciplinary record or
any other details of the situation. n8
When told by Rivers that he needed to write the USM-l33 despite his
contention that no force had been used, Cook did not object, refuse, or request
representation. He simply copied the contents of his USM-210 into the USM-133
and submitted it later that day. Under these circumstances, Cook’s contention
that he was coerced into making the report for fear of being fired is
implausible. n9
But even if his testimony about his subjective belief were
credible, Cook has failed to demonstrate that his belief that he would be fired
for refusing to submit a report was “objectively reasonable.” Friedrick, 842
F.2d at 395. The USMS Master Agreement specifies the disciplinary actions that
may be taken for specific offenses. Failure to carry out orders, work
assignments, or instructions is punished on a sliding scale: a first offense
may be punished by anything between a reprimand and removal; a second offense
maybe punished by anything between a 15-day suspension and removal; and a third
offense is punished by removal. n10 For
a first time offender like Cook, removal is not mandated, nor, according to
Griscavage, is it likely. Given the lack of any policy mandating removal, as
well as the absence of any precedent where removal had been invoked, it would
not have been objectively reasonable for Cook to believe that he would be
terminated if he declined to file the reports. n11
Contrary to Cook’s argument, Garrity does not stand for the proposition
that a statement made in a standard report is coerced whenever an officer faces
both the remote possibility of criminal prosecution if he files the report and
the arguably even more speculative possibility of termination if he declines to
do so. Rather, the touchstone of the Garrity inquiry is whether the defendant’s
statements were coerced and therefore involuntary. In
Cook’s case, both the possibility of prosecution and the possibility of
termination were far too tenuous to support a finding that he was between “the
rock and the whirlpool” at the time he filed his reports. In fact, the
circumstances of the case, as testified to by both Cook and Rivers, support a
finding that no coercion was involved when Cook decided to file the reports.
See Trevino, 215 Fed. App. at 320 (finding no coercion even when off-duty
officer was called into the station for questioning and escorted into the
interrogation room by the Chief of Police).
Furthermore, the presumption
underlying Garrity and its progeny is that the subject employee is under
investigation at the time the challenged statement is made. See,
e.g., Garrity, 385 U.S. at 494 (police officers interviewed as part of an
internal investigation led by the Attorney General); Lefkowitz v. Cunningham,
431 U.S. 801, 803, 97 S. Ct. 2132, 53 L. Ed. 2d 1 (1977) (public official
subpoenaed to appear before a grand jury); Friedrick, 842 F.2d at 386 (FBI
agent interviewed as part of administrative and criminal investigations). As
the testimony of Griscavage clearly demonstrates, Cook was not under either
administrative or criminal investigation when Rivers requested his reports. n12 Cook cites no case, nor has the Court
located any, to support the position that Garrity should be applied prior to
the initiation of an administrative or criminal investigation. To interpret Garrity as
defendant advocates would be both unprecedented and impracticable. It would
mean that when a supervisor receives a complaint against an officer that has
even the slightest potential of resulting in criminal charges, the supervisor
could not follow up by requesting the standard paperwork without providing the
officer with Garrity protections, because the request could be construed as an “order”
to comply with an “investigation.” This scenario would be unworkable for a
number of reasons, not the least of which is that it would require line
supervisors to make legal judgments about the potential criminality of the
conduct alleged. Given the witnesses’ testimony as to the frequency with which
force is and must be used, extending Garrity protections to the moment a complaint
is filed would create a tremendous and unnecessary administrative burden. The
Court therefore declines to adopt this unwarranted extension of the Garrity
doctrine.
Moreover, even if Cook could demonstrate that Garrity is
applicable here, which he has not, he could not rely upon it to prevent the
introduction of his reports as evidence with respect to Counts 2, 3, 4, and 6.
Garrity provides that an officer under investigation may choose between
refusing to cooperate with the investigation and losing his job or providing an
incriminating statement and avoiding prosecution on that matter. “An accused may not abuse Garrity by committing a crime
involving false statements and thereafter rely on Garrity to provide a safe
haven by foreclosing any use of such statements in a prosecution for perjury,
false statements, or obstruction of justice.” United
States v. Veal, 153 F.3d at 1243. See
also United States ex rel. Annunziato v. Deegan, 440 F.2d 304, 306 (2d Cir.
1971) (upholding perjury conviction because “appellant was not prosecuted for
past criminal activity based on what he was forced to reveal about himself; he
was prosecuted for the commission of a crime while testifying....”); United
States v. Devitt, 499 F.2d 135, 142 (7th Cir. 1974)(holding that Garrity and
its progeny “provide adequate protection of the witness’s Fifth Amendment
rights. We find no reason or justification for extending this umbrella of
protection to shield a witness against prosecution for knowingly giving false
testimony.”); United States v. White, 281 U.S. App. D.C. 39, 887 F.2d 267, 274
(D.C. Cir. 1989)(Ginsburg, J.)(explaining that the decision to lie is not
protected by Garrity).
Cook attempts to escape this well-established rule by arguing
that at the time he was told to write the reports, he was being investigated
for both the alleged assault and a possible cover-up. (Def.’s Supp. Mem. at
3-6.) This contention is without evidentiary support. First, Cook cannot
demonstrate that he was the subject of any type of investigation, least of all
a criminal investigation, at the time he was instructed to write the reports.
As Griscavage explained, the decision whether to initiate a criminal
investigation occurs much later after the complaint and any accompanying
documentation have been forwarded to OII and then to OIG and the Civil Rights
Division. n13 Both Rivers and Cook
testified that Rivers had just received the complaint, which had been dropped
off at the Superior Court, at the time of their first conversation. Therefore,
it is simply not possible that a criminal investigation was in progress (or
even contemplated) at the time Rivers told Cook to write the reports.
More importantly, there is no basis for Cook’s argument that he
was the subject of an investigation for a potential cover-up at the time he was
asked to complete the reports. (Def.’s Supp. Mem. at 3-6.) Also, to the extent
that Cook argues that Rivers was also investigating Cook’s failure to file a
report, this is irrelevant. Cook is not being prosecuted for failing to file a
report -- he is being prosecuted for filing a false Field Report and for
conspiring with others to support his version of the incident by filing false
reports and giving false testimony to the grand jury. Obviously, none of these
offenses could have been the subject of the investigation prior to the filing
of the reports, and, therefore, they could not qualify for Garrity immunity.
CONCLUSION
For the foregoing reasons, defendant’s motion to suppress his statements [Dkt # 7] is DENIED.
Ellen Segal Huvelle
United States District
Judge
October 18, 2007
Notes:
1 The government has
subsequently dismissed Counts 5 and 7.
2 The Field Report included
the following description of the incident:
On August 30, 2005
while working in the AM cell block, I was checking in prisoner vans from the
central cell block. I was attempting to verify prisoner Hunter, Omar Buens
identity by asking for his first name and he would not respond. I repeatedly
asked Hunger for his last name and he refused to answer me. I then asked Hunter
to step off the van and he refused to move stating that he was not going
anywhere. After asking Mr. Hunter at least three more times to exit the van,
and if there was any medical reason that might prevent him from exiting the
van. After he responded that there was not, I entered the van and assisted Mr.
Hunter out of the van.
Mr. Hunter was then escorted up to the main
cell block. There were no injuries to Marshals Service personnel or prisoners
during this incident. (Gov’t Ex. 2.)
3 Rivers claimed that he
requested and received both reports simultaneously. This difference in the
witnesses’ testimony is not material to the Court’s analysis.
4 The instructions for the
Use of Force Report provide, in relevant part, that “[t]he USMS employee will
complete this report, within 24 hours, whenever the employee ... [u]ses ...
physical force greater than minor restraint.”
5 Cook represents in his
Supplemental Memorandum that he “was aware of the USMS regulations that
sanctioned refusal to cooperate with an investigation with the punishment of
possible dismissal.” (Def.’s Supp. Mem. at 7.) This directly contradicts Cook’s
testimony at the evidentiary hearing. Cook testified that he “thought [he]
would be fired.” When asked by the Court upon what that belief was based, Cook
responded “[t]he situation with the prior Deputy and the policy. I don’t know
exactly what the policy states.” The Court then asked, “You don’t know what the
policy states?” and Cook replied, “No.”
Cook was asked again under cross-examination whether he understood the potential consequences of refusing to file his report and he again stated, “I don’t know exactly what the policy says. I read the policy a long time ago.”
6 Cook testified that he
was told during training of his obligation to file reports and answer questions
if ordered, but did not claim to have been told of the specific consequences of
a failure to comply.
7 In his Supplemental
Memorandum, Cook represents that he “heard a chief threaten to fire another
deputy if the deputy did not write a report immediately.” (Def.’s Supp. Mem. at
7.) In fact, Cook testified that “Deputy Christian told [him] he was notified
by the chief that he would be fired if he didn’t write [a statement] when they
asked him to write it.”
8 Cook represents in his
Supplemental Memorandum that he learned about Christian’s situation prior to
the alleged incident involving Omar Hunter. (Def.’s Supp. Mem. at 7.) This is
inconsistent with his testimony. At the evidentiary hearing, Cook first said
that he didn’t “know the exact timing [of that conversation], a couple years
ago, two years ago,” but thought it “was after” August 2005. A few moments
later, Cook revised his position and said he “[thought] that [conversation] was
before ‘05.” Finally, he said, “I don’t know exactly, but possibly early 05.”
9 In fact, given Cook’s
concession at the evidentiary hearing that Rivers’s request for the Field
Report was not unusual because his request for these reports was part of the
daily routine in the cell block, Cook’s argument that he felt coerced can only
apply to Rivers’s direction to write the USM-133 Use of Force Report. Given the
fact that Cook’s statement in the two forms is identical, it is somewhat
illogical for Cook to argue that the first statement was not a product of
coercion but the second one was, as “the cat was out of the bag” before he even
wrote the USM-133.
10 The same sliding scale
of penalties is applied for refusal to cooperate in any government inquiry.
(See Def.’s Mot. Ex. 2 [Dept. Of Justice and U.S. Marshals Service Table of
Offenses and Penalties] P 19.)
11 Defense counsel has
argued that Cook reasonably feared that he would be disciplined if he failed to
follow his supervisor’s order. Whether this is true is legally irrelevant. In
order for a statement to be compelled under Garrity, the officer must have an
objectively reasonable fear of termination, not just of discipline. The Fifth
Amendment “does not shield a person from every adverse social or economic
consequence which may flow from testifying.” In re Grand Jury Proceedings, 835
F.2d 375, 376 (1st Cir. 1987). See also Chan v. Wodnicki, 123 F.3d 1005, 1009
(7th Cir. 1997) (“[T]he jurisprudence of the Supreme Court ... makes clear that
not every consequence of invoking the Fifth Amendment is considered
sufficiently severe to amount to coercion to waive the right.”).
12 Rivers testified on cross-examination that his collection of reports could be characterized as an “informal administrative investigation.” This characterization is of no relevance to the Garrity inquiry. As Griscavage explained, under USMS policy, an administrative investigation begins only with the referral of the complaint to the appropriate section of the Department of Justice, and any questioning of the subject employee after this point can only occur with Garrity protections.
13 Cook incorrectly states
that “[o]nce [a] citizen complaint[] report[] [is] forwarded to the Department
of Justice, a criminal investigation is commenced to determine whether to bring
charges based on the complaint.” (Def.’s Supp. Mem. at 4.) In fact, Griscavage
testified that the decision whether to bring a criminal investigation is made
by OIG and Civil Rights. A criminal investigation is not automatically
initiated by the forwarding of the complaint to these sections.