Vogt v. Hays, Kansas, City of et al
Filing
104
MEMORANDUM AND ORDER denying 85 Plaintiff's Motion for Partial Summary Judgment; granting 87 Defendant's Motion for Summary Judgment. The clerk is directed to enter judgment in favor of Defendant dismissing Plaintiff's claims on the merits. Signed by District Judge John W. Broomes on 4/26/2019. (mam)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MATTHEW JACK DWIGHT VOGT,
Plaintiff,
v.
Case No. 15-1150-JWB
CITY OF HAYS, KANSAS,
Defendant.
MEMORANDUM AND ORDER
Before the court are Plaintiff’s motion for partial summary judgment (Doc. 85) and
Defendant’s motion for summary judgment (Doc. 87). The motions are fully briefed and the court
is prepared to rule. (Docs. 86, 88, 93, 97, 100, 101.) For the reasons stated herein, Plaintiff’s
motion (Doc. 85) is DENIED; Defendant’s motion (Doc. 87) is GRANTED.
I. Background
Plaintiff brought this action for damages under 42 U.S.C. § 1983, claiming Defendant
violated Plaintiff’s Fifth Amendment right not to be compelled to be a witness against himself in
a criminal case. The claim relates to statements by Plaintiff that led to the filing of felony charges
and a preliminary hearing against him in Ellis County District Court. The charges were dismissed
following the preliminary hearing. In 2015, the Hon. Monti L. Belot dismissed Plaintiff’s § 1983
claim, relying on case law that said the privilege against self-incrimination was a trial right that
did not apply in pretrial proceedings. (Doc. 29.) On appeal, the Tenth Circuit reversed that ruling,
concluding the privilege applies at preliminary hearings as well as criminal trials.1 (Doc. 37.) The
United States Supreme Court granted a writ of certiorari and heard arguments on the issue, but it
subsequently dismissed the writ as improvidently granted, leaving the Tenth Circuit’s mandate as
a final ruling. City of Hays, Kan. v. Vogt, 138 S. Ct. 1683 (Mem) (May 29, 2018).
II. Facts
The court finds the following facts to be uncontroverted for purposes of summary
judgment.
Defendant is a municipal corporation in Ellis County, Kansas, and is duly organized under
the laws of Kansas. Don Scheibler is the Chief of the City of Hays Police Department (HPD). His
duties include supervising HPD employees. Brandon Wright is a lieutenant for the HPD. His
duties include supervising patrol officers (including Plaintiff) and conducting internal
investigations. (Doc. 86 at 1-2.)
Plaintiff was employed as a police officer with the HPD for eight months in 2007, and then
again from November 1, 2009, until his resignation on January 2, 2014. During that time, Plaintiff
came into possession of a knife while on a criminal damage call on East 16th Street in Hays.
Plaintiff applied for a job with the City of Haysville Police Department in October 2013.
The application process required a polygraph examination, which Plaintiff agreed to take. In the
course of that examination, Plaintiff disclosed that he had gone “on a call and found a Smith and
Wesson folding knife but he didn’t turn it in as found property because he needed a knife so he
took it home and kept it” and “still [had] the knife in his possession.” (Doc. 88 at 4.)
1
In addition to his claim against the City of Hays, Plaintiff also originally asserted claims against the City of Haysville
and four individual officers. The Tenth Circuit affirmed Judge Belot’s dismissal of the claims against Haysville and
the individual officers. Accordingly, the City of Hays is the only remaining defendant. (Doc. 37 at 42.)
2
The polygraph examination was followed by an interview with Haysville Chief of Police
Jeff Whitfield. Whitfield extended a conditional job offer to Plaintiff, saying he could have the
job provided he resolved the knife matter by disclosing his retention of the knife and turning it
over to the HPD. Whitfield indicated Haysville would need to verify Plaintiff’s compliance with
that condition. (Doc. 86 at 3.)
Two days later, on December 11, 2013, Plaintiff met with HPD Chief Scheibler to advise
him of his intention to take the job with Haysville. Plaintiff told Scheibler he had been given a job
offer and was resigning. He told Scheibler of Haysville’s condition that he disclose his retention
of the knife and turn it over. He informed Scheibler that Haysville told him he had to “make that
right” with HPD and that Haysville would contact Scheibler to make sure he had done so. Plaintiff
told Scheibler he found the knife somewhere in the gutter while working for HPD and kept it as
his duty knife. (Doc. 88 at 2-3.)
Scheibler took the knife and instructed Plaintiff to “cut a case,” meaning to prepare a found
property report about the knife. Plaintiff wrote a report on December 11 that stated, “A black
Smith and Wesston [sic] folding pocket knife was located in the 100 blk. E. 16th while
investigating another call.” Plaintiff was aware that under departmental policies, he was not
supposed to keep any property found on the job. (Id.; Doc. 88 at 3.)
Plaintiff turned in a resignation letter to Scheibler on December 12, 2013, formally
notifying Chief Scheibler that he had accepted an offer of employment with the Haysville Police
Department and was offering his resignation to the HPD, effective January 2, 2014. (Doc. 88-6.)
Scheibler assigned Lt. Wright to do a professional standards investigation (PSI), the
purpose of which is to find out if an officer has violated a departmental policy. Scheibler intended
3
to have the PSI completed to provide documentation to Haysville that Plaintiff had “made this
right.”
Wright reviewed Plaintiff’s found property report. He then called Plaintiff in for an
interview on December 17, 2013. Plaintiff was on duty at the time. The interview was recorded.
Wright did not give Plaintiff a Miranda warning or a Garrity warning.2 The door to Wright’s
office was closed. Wright told Plaintiff his report was “simple and vague” and said he needed
details about the case. Wright asked if Plaintiff was willing to do that. Plaintiff indicated he was
but asked the purpose of the investigation. Wright said he was investigating an internal policy
violation. According to Plaintiff, he believed he would be terminated for insubordination if he did
not answer Wright’s questions, because he perceived that the HPD was a paramilitary organization
where insubordination was not tolerated. Plaintiff told Wright he had been dispatched on a
criminal damage call one-and-a-half or two years earlier, and that after taking a report on 16th
Street, he found the knife in the gutter while walking back to his car. Plaintiff said he picked it
up, noted it was rusted and torn up, and said he later cleaned it and used it on duty because he did
not have a good pocket knife. He said he believed the knife was not involved in the property
damage offense because it was covered by leaves and had been in the gutter for some time. (Doc.
86 at 5-7; 88 at 4-6; 93-5.)
Wright told Plaintiff that he could not tell him what would happen, indicating that
Plaintiff’s actions were a violation of policy. He said he wanted to get Plaintiff’s report completed
more accurately and would see if he could find the owner of the knife. Plaintiff asked what details
Wright wanted in the report. Wright instructed Plaintiff to add the approximate time and location
where he found the knife to his report. Plaintiff added a sentence to the report stating, “The knife
2
See Garrity v. New Jersey, 385 U.S. 493 (1967) (a government threat of loss of employment to obtain incriminatory
evidence against an employee violates the Fourteenth Amendment).
4
was found in the south gutter with the blade closed approximately in the middle of the block,” and
added that the incident occurred between May 1, 2010, and May 30, 2010. (Id.)
Wright told Chief Scheibler what he learned from his interview. Scheibler was able to
identify the criminal investigation in which Plaintiff obtained the knife by performing a computer
search using the following information: (1) the incident was in the 100 block of East 16th; (2) there
was a criminal damage report; and (3) it involved Plaintiff. Plaintiff had first disclosed that he
acquired the knife in the course of a criminal damage call when he answered Wright’s questions.
There was only one such criminal damage report. It involved a pickup truck with its tires slashed
and paint scratched. Wright reviewed that case and called the victim, Ian Mabb. Wright asked
Mabb if the incident involved a knife. Mabb said he had handed a knife that he found to the officer.
Plaintiff’s narrative report of the incident on April 28, 2012, did not mention a knife. There was
an audio recording of Plaintiff’s encounter with Mabb in HPD’s records indicating Plaintiff
received the knife from Mabb. Wright reported these findings to Scheibler, who told him to stop
the PSI investigation because the matter would be referred for a criminal investigation. Wright
submitted his PSI report to Scheibler on December 18, 2013. (Docs. 86 at 7; 88 at 7-9.)
Scheibler referred the matter to the Kansas Bureau of Investigation (KBI) for a criminal
investigation.3 Scheibler and Wright told KBI Agent Mark Kendrick what they knew about the
case and gave Kendrick the information they had gathered in their investigation. Scheibler
informed the Hays city manager that the PSI investigation revealed the knife was likely turned
over to Plaintiff in the course of a felony damage investigation in 2012. Scheibler recommended
that Plaintiff be suspended with pay pending completion of the criminal investigation. (Doc. 8825.)
3
The reference included another matter disclosed by Plaintiff in his polygraph examination, but the other matter is
not relevant to the issues presented here.
5
Plaintiff agreed to talk to KBI Agent Kendrick, with Plaintiff’s attorney present, on January
2, 2014. Plaintiff told Kendrick he found the knife in the gutter in 2010 or 2011, and said he could
not remember for sure if there was a criminal damage call, but if there was, he had already taken
care of it when he found the knife. Plaintiff said he was cleaning the knife at the police department
when Sgt. Greenwood saw him, and Plaintiff told Greenwood he found the knife but was not going
to cut a case on it. Plaintiff said Greenwood asked him if he knew the policy, to which Plaintiff
said he did, and Greenwood said “okay” and left. (This was a reference to a departmental policy
prohibiting officers from converting found property to their own use and requiring them to open a
case and tag such property.) Kendrick asked Plaintiff if he recalled getting the knife from Ian Mabb
in 2012. Plaintiff said he did not recall that. Sgt. Greenwood was subsequently interviewed and
said he did not recall anything about a knife and would not have let Plaintiff get away with not
following a policy. (Doc. 88 at 10-11.)
Plaintiff was charged in Ellis County District Court with two felony counts of interference
with law enforcement, by concealing evidence and by making a false report. Kendrick was the
complainant on the charging document. Plaintiff retained a lawyer to defend him. A preliminary
hearing was held on October 16, 2014, at which Scheibler and Kendrick were called as witnesses
by the Ellis County Attorney. Scheibler and Kendrick testified about Plaintiff’s statements
concerning the knife. Scheibler testified they were able to link the knife to a particular criminal
damage call based on the information Plaintiff provided to Wright. Ian Mabb testified about his
encounter with Plaintiff. Neither Plaintiff nor his counsel objected to use of these statements or
asserted that their use violated Plaintiff’s Fifth Amendment privilege against self-incrimination.
Plaintiff did not testify at the hearing. On November 21, 2014, a magistrate judge filed an order
6
finding no probable cause for the charges. On February 23, 2015, a district judge affirmed the
dismissal of the charges. (Docs. 86 at 8-10; 88 at 12-13.)
III. Summary judgment motions
Plaintiff seeks a partial summary judgment with respect to three elements of his § 1983
claim. He first argues the undisputed facts show that Defendant’s actions were taken under color
of state law within the meaning of § 1983. Second, he contends the incriminating statements were
used against him in a criminal case contrary to the Fifth Amendment. Lastly, he argues the
evidence shows the statements were “compelled” by Defendant within the meaning of the Fifth
Amendment. (Doc. 86.)
Defendant raises four arguments in its own motion for summary judgment. It first argues
that no Fifth Amendment violation occurs unless and until a person’s compelled statements “are
introduced against the defendant at a criminal trial,” which did not happen here.4 Second, it
contends Plaintiff was not compelled to make a statement. Defendant argues the statements were
not coerced because it did not threaten Plaintiff with removal from office. Additionally, it argues
the statements were not compelled because Plaintiff had already stated he was resigning when he
made the statements.
Third, Defendant argues Plaintiff waived his privilege against self-
incrimination by failing to invoke it before answering questions and writing his report, or by failing
4
Although this argument appears contrary to the Tenth Circuit’s panel opinion, Defendant contends the Tenth Circuit
“focused upon when a ‘criminal case’ began, and [the fact] that pretrial proceedings (such as a probable cause hearing)
were part of a criminal case.” By contrast, Defendant maintains this argument turns upon the assertion that use of
compelled statements at a preliminary hearing does “not render someone a ‘witness against himself’ within that
criminal case.” (Doc. 88 at 17-18.) This argument cannot be sustained in light of the panel’s ruling that “[t]he Fifth
Amendment is violated when criminal defendants are compelled to incriminate themselves and the incriminating
statement is used in a probable cause hearing,” and that Plaintiff “has adequately pleaded a Fifth Amendment violation
consisting of the use of his statements in a criminal case.” (Doc. 37 at 2, 25.) But see id. at 43 (Hartz, J., concurring)
(“Some of the questions we have not answered are … can there be a violation when such use does not cause a criminal
sanction….”)
7
to object to use of the statements at the preliminary hearing. Finally, Defendant argues Plaintiff
has failed to cite evidence that Chief Scheibler or Lt. Wright had ultimate policy-making authority
for the City of Hays, or that the alleged violation was caused by a city policy.
IV. Discussion
Under 42 U.S.C. § 1983, any person who, under color of state law, deprives another person
of a right secured by the Constitution or laws of the United States shall be liable to the party
injured. Plaintiff claims Defendant is liable for depriving him of the Fifth Amendment privilege
against self-incrimination, which provides that “[n]o person shall … be compelled in any criminal
case to be a witness against himself.” U.S. Const. amend. V.5
The § 1983 claim asserted by Plaintiff requires him, among other things, to cite evidence
from which a jury could reasonably find that he was “compelled” by Defendant to give the
statements later used against him at the preliminary hearing. Hiibel v. Sixth Judicial Dist. Court
of Nevada, Humbolt Cty., 542 U.S. 177, 189 (2004) (“To qualify for the Fifth Amendment
privilege, a communication must be testimonial, incriminating, and compelled.”) In the prior
appeal, the Tenth Circuit noted that Plaintiff had alleged that “the Hays police chief conditioned
Mr. Vogt’s continued employment as a Hays police officer on his documenting the facts related to
the possession of the knife….” (Doc. 32 at 36.) That allegation, which was taken as true for
purposes of the appeal, was based solely on the complaint and not upon evidence. (Id.) For reasons
explained herein, the court concludes Plaintiff has failed to cite evidence supporting that allegation
or otherwise tending to show that his statements to the HPD were compelled within the meaning
of the Fifth Amendment.
1. Contours of the Fifth Amendment privilege in governmental employment investigations.
5
The Fifth Amendment is applicable to the States by virtue of the Fourteenth Amendment. Chavez v. Martinez, 538
U.S. 760, 766 (2003) (citation omitted.)
8
The Fifth Amendment privilege against self-incrimination extends beyond not being
involuntarily called as a witness against oneself in a criminal prosecution. It also grants a person
a privilege “not to answer official questions put to the person in any other proceeding, civil or
criminal, formal or informal, where the answers might incriminate him in future criminal
proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). A witness protected by the privilege
may rightfully refuse to answer official questions unless and until he is protected at least against
use of his compelled answers, and evidence derived therefrom, in any subsequent criminal case
against him. Id. at 78.6
In Garrity, a state official investigating whether police officers had improperly “fixed”
traffic tickets questioned the officers after warning each one that: 1) anything the officer said might
be used against him in any criminal proceeding; 2) he had a privilege to refuse to answer if the
disclosure would tend to incriminate him; but 3) if he refused to answer, he would be subject to
removal from office. Garrity, 385 U.S. 493, 494 (1967). The Supreme Court held that the officers’
statements were compelled and that the Fifth Amendment prohibited use of the statements in
subsequent criminal proceedings. The officers had been given the choice “either to forfeit their
jobs or incriminate themselves,” a choice that was “the antitheses of free choice to speak out or
remain silent.” Id. at 497. The Court said the resulting statements “were infected by the coercion
inherent in this scheme,” such that they were not voluntary, nor were they the product of a valid
waiver, because duress is present “[w]here the choice is ‘between the rock and the whirlpool.’”
Id. at 497-98.
6
The government must at least provide a grant of “use immunity” protecting the individual from the use of his
statements, and from any evidence derived from the statements, in any criminal proceeding. The government need
not provide “transactional immunity,” which accords full immunity from prosecution for the offense to which the
compelled testimony relates. See Kastigar v. United States, 406 U.S. 441, 452-53 (1972).
9
A year after Garrity, the Supreme Court held that the Fifth Amendment prohibited New
York from terminating the employment of a police officer for refusing to waive his privilege
against self-incrimination. The officer was advised of the privilege but told that if he did not sign
a waiver, he would be fired. Gardner v. Broderick, 392 U.S. 273, 274 (1968). The Court held that
the privilege “does not tolerate the attempt … to coerce a waiver of the immunity it confers on
penalty of the loss of employment.” Id. 279. The Court noted, however, that answers could be
lawfully compelled if the person were granted immunity from use of the compelled testimony (or
its fruits) in a criminal prosecution. Id. at 276.
In Lefkowitz, the Supreme Court examined a statute which provided that if public
contractors refused to waive Fifth Amendment immunity, their existing contracts could be
canceled and they could be disqualified from future contracts. The Court said this did precisely
what Garrity prohibited – compel testimony that had not been immunized. Id., 414 U.S. at 82.
There was no material difference between the threat of job loss to the employees in Garrity and
the threat of contract loss to the contractors, such that the testimony was in fact compelled, and a
waiver “secured under threat of substantial economic sanction cannot be termed voluntary.” Id. at
82-83. The Court reiterated that a state could compel incriminating answers if it supplied immunity
to the person, and that if immunity were supplied, the state could insist that employees answer
questions about their job or suffer the loss of employment. Id. at 84. But absent immunity, answers
elicited upon the threat of the loss of employment are compelled and inadmissible in evidence. Id.
at 85.
In Minnesota v. Murphy, 465 U.S. 420 (1984), the Court discussed circumstances in which
the Fifth Amendment privilege is not “self-executing” and must be asserted. The case involved a
probationer who was legally required to meet with his probation officer and be truthful in all
10
matters. In response to questioning from the officer, the probationer admitted having committed
a rape and murder, crimes for which he was then indicted. In reversing a state court decision
suppressing the probationer’s statements, the Supreme Court emphasized that the answers of a
witness “are not compelled within the meaning of the Fifth Amendment unless the witness is
required to answer over his valid claim of privilege.” Id. at 427. The Court said it had long
acknowledged that:
“[t]he [Fifth] Amendment speaks of compulsion. It does not preclude a witness
from testifying voluntarily in matters which may incriminate him. If, therefore, he
desires the protection of the privilege, he must claim it or he will not be considered
to have been ‘compelled’ within the meaning of the Amendment.”
Id. (citations omitted.)
Murphy reviewed a series of decisions establishing that “in the ordinary case, if a witness
under compulsion to testify makes disclosures instead of claiming the privilege, the government
has not ‘compelled’ him to incriminate himself.” Id. (citations omitted.) Such an individual may
“lose the benefit of the privilege” even without a knowing and intelligent waiver of it, and despite
the government knowing that its requested disclosures may be incriminating. “If a witness – even
one under a general compulsion to testify – answers a question that both he and the government
should reasonably expect to incriminate him, the Court need only ask whether the particular
disclosure was ‘compelled’ within the meaning of the Fifth Amendment.” Id. at 428. A witness
confronted with such questions “ordinarily must assert the privilege rather than answer if he desires
not to incriminate himself.” Id. at 429. If he asserts the privilege, he may not be required to answer
absent an assurance that the statements will not be used against him in a criminal proceeding. But
if he chooses to answer, “his choice is considered to be voluntary since he was free to claim the
privilege and would suffer no penalty as the result of his decision to do so.” Id. The Court
recognized an exception for confessions obtained from suspects who are in police custody, but
11
concluded the probationer was not in custody for purposes of Miranda: “Since [the probationer]
was not physically restrained and could have left the office, any compulsion he might have felt
from the possibility that terminating the meeting would have led to revocation of probation was
not comparable to the pressure on a suspect who is painfully aware that he literally cannot escape
a persistent custodial interrogator.” Id. at 433.
Murphy went on to distinguish the “penalty cases” (such as Garrity) where a state had
sought to induce a person to forgo the Fifth Amendment privilege “by threatening to impose
economic or other sanctions capable of forcing the self-incrimination which the Amendment
forbids.” In most of those cases, the attempt to override the witnesses’ privilege was unsuccessful,
and the Court had ruled the state could not then constitutionally make good on its threat. Murphy,
465 U.S. at 434. Where a threatened individual instead “succumbed to the pressure placed upon
him, failed to assert the privilege, and disclosed incriminating information,” the Court had ruled
that the individual had not waived the privilege by responding to questions rather than invoking
his right to remain silent. Id. at 435. It was “[t]he threat of punishment for reliance on the
privilege” that distinguished these penalty cases from the ordinary case where a witness was
merely required to appear and give testimony. Id. Thus, in Murphy the state could require the
probationer to appear and discuss matters affecting his probationary status without giving rise to
“a self-executing privilege.” By contrast, if a state, “either expressly or by implication, asserts that
invocation of the privilege would lead to revocation of probation,” then it would have created “the
classic penalty situation,” and “the failure to assert the privilege would be excused” and the
statements deemed compelled. Id.
Murphy also examined whether the conditions of probation imposed by the state - including
an obligation to tell the truth and a threat of revocation for failure to do so - impermissibly
12
compelled the probationer to make a statement. The Court noted the state had not attempted to
define the precise contours of the obligation to respond to questions, and the conditions on their
face said nothing about the probationer’s freedom to decline to answer questions. Nor did the
conditions contain any suggestion that probation was conditional upon waiving the Fifth
Amendment privilege. Additionally, the probationer did not seek clarification of whether he could
assert the privilege without penalty, even though “[a]t this point in our history virtually every
schoolboy is familiar with the concept, if not the language, of the [Fifth Amendment].” Id. at 437.
The Court found no reasonable basis for concluding that the state attempted to attach an
impermissible penalty to the exercise of the privilege against self-incrimination, and that was true
“[w]hether we employ a subjective or an objective test….” Id. In sum, because the probationer
“revealed incriminating information instead of timely asserting his Fifth Amendment privilege, his
disclosures were not compelled incriminations.” Id. at 440.
Some courts, in apparent reliance on the “subjective or objective” reference in Murphy,
have concluded that when a non-custodial witness has not invoked the privilege, the witness’s
statements are not protected by the Fifth Amendment unless the witness shows: “(1) that he
subjectively believed that he was compelled to give a statement upon a threat, and (2) that his
belief was objectively reasonable at the time the statement was made.” United States v. Gannaway,
477 F. App’x 618, 2012 WL 1859528, **3 (11th Cir. 2012). See also United States v. Friedrick,
842 F.2d 382, 395 (D.C. Cir. 1988); United States v. Trevino, 215 F. App’x 319, 2007 WL 295505
(5th Cir. 2007). The Tenth Circuit has not weighed in on the standard.
2. Plaintiff was not subjected to custodial interrogation. As an initial matter, the court
concludes that Plaintiff was not in the custody of the HPD when he made incriminating statements
to Chief Scheibler and Lt. Wright. In Miranda v. Arizona, 384 U.S. 436, 467 (1966), the Supreme
13
Court found that without proper safeguards, custodial interrogation “contains inherently
compelling pressures which work to undermine the individual’s will to resist and to compel him
to speak where he would not otherwise do so freely.” When a person is subjected to custodial
interrogation without proper warnings and a valid waiver, the person’s answers are presumed
compelled and must be excluded from criminal proceedings. Oregon v. Elstad, 470 U.S. 298, 317
(1985.) A person is in custody for Miranda purposes when he is arrested or his freedom of action
is curtailed to a degree associated with a formal arrest. Berkemer v. McCarty, 468 U.S. 420, 440
(1984). Plaintiff makes no claim that his freedom was restricted to a degree associated with a
formal arrest. On the contrary, he emphasizes that Lt. Wright informed him he was only
investigating an internal policy violation – i.e., an employment matter - rather than a criminal
matter. (Doc. 93 at 25.) Plaintiff was not in custody merely by virtue of the fact he was called in
to speak to his supervising officer about his possession of the knife. Cf. Murphy, 465 U.S. at 430
(probationer forced to meet with probation officer was not in custody.) Because Plaintiff was not
in custody, no presumption of compulsion arises out of his interview with Lt. Wright, and the
absence of any Miranda warning or affirmative waiver of the privilege does not dictate a finding
of a Fifth Amendment violation.
3.
There is no evidence reasonably suggesting Plaintiff was compelled to make a
statement.
Based on Murphy and cases such as Gannaway, supra, the court finds Plaintiff must cite
evidence from which a jury could reasonably conclude that he subjectively believed he was being
threatened with imposition of a significant sanction (e.g., job loss) for asserting a Fifth Amendment
privilege, and that such a belief was objectively reasonable under the circumstances.
14
Plaintiff says he believed he would be fired if he did not respond to Lt. Wright’s questions.
He argues this was so because 1) Wright said he needed more information and directed Plaintiff
to supplement his report; 2) the intimidating circumstances of the interview (in a closed room and
tape-recorded); 3) the HPD is a paramilitary organization where insubordination is not tolerated;
4) Wright informed him he was investigating a policy violation and not a criminal matter; and 5)
the Hays personnel manual provides that insubordination is misconduct that may subject an
employee to discipline including termination. (Doc. 93 at 25.) But even if Plaintiff subjectively
believed he would be punished for choosing to remain silent, he cites no evidence to show that
such a belief was objectively reasonable. Plaintiff cites no evidence that Defendant in any way
expressly or impliedly threatened him with a sanction for asserting a Fifth Amendment privilege.
Neither Chief Scheibler nor Lt. Wright ever stated or suggested that Plaintiff was not free to invoke
the Fifth Amendment privilege or that he would be subject to discipline or punishment if he did
so. On the contrary, after Wright informed Plaintiff that he needed questions answered because
Plaintiff’s report was vague, Wright asked Plaintiff whether he was “willing to do that,” implying
he did not have to do so. Plaintiff indicated that he was, just before he asked the nature of the
investigation. Wright said he was investigating whether there was a policy violation. Plaintiff
then answered Wright’s questions.7 Plaintiff points to nothing in Wright’s statements that a
reasonable person could interpret as precluding a right to remain silent or threatening punishment
for exercising such a right. Similarly, nothing in Defendant’s Police Manual (Doc. 93-7) or
Personnel Manual (Doc. 93-10) indicates that invoking a Fifth Amendment privilege not to answer
a question would be grounds for punishment.
7
Almost immediately after Wright asked Plaintiff if he was willing to provide details about the knife, and clarified
that he was investigating a policy violation, Plaintiff made a statement about how he found the knife in the gutter on
16th Street during a criminal damage call.
15
Plaintiff cites the paramilitary nature of the HPD and its potential punishment for
“insubordination” to support his claim of compulsion.8 These facts, however are not material to
the issue. As an initial matter, it might be pointed out that virtually all employees are subject to
discipline for failing to follow a supervisor’s orders, regardless of whether they are in a
paramilitary organization. But even assuming that principle was more rigidly applied at the HPD
than elsewhere, there is still no evidence that Defendant gave Plaintiff any order that precluded
him from asserting a Fifth Amendment privilege or that suggested he would be sanctioned for
doing so. In essence, Plaintiff is relying on the fact that a right to remain silent was never
discussed, mentioned, or alluded to when Wright conducted his interview. But that absence weighs
against an inference of compulsion, not in favor of it. As the Supreme Court noted, “virtually
every schoolboy” is familiar with the right to remain silent, and a police officer whose duties
include explaining that right to others would surely be familiar with it. Despite that, Plaintiff never
attempted to invoke the right or to seek clarification of the consequences of attempting to invoke
it. In the absence of some objective indication from Defendant that Plaintiff would be punished if
he invoked the privilege, no reasonable inference of compulsion arises from the existence of
Defendants’ policy of punishing insubordination.
Plaintiff also cites United States v. Friedrick, 842 F.2d 382 (D.C. Cir. 1988), as a similar
case that shows his statement was compelled. But Friedrick bears no resemblance to this case.
The defendant in that case was an FBI agent who was required to make a number of compelled
statements under promises of immunity from prosecution. After a series of such interviews,
prosecutors again interviewed the defendant and made “obvious reference[s]” to his immunized
8
Defendant’s Personnel Manual provides that “Refusal to abide by any lawful official regulation or order, [and] failure
to obey any proper direction made by a supervisor or department head” may be grounds for termination. (Doc. 93-10
at 51.)
16
status, but they stopped short of promising immunity.
After examining the convoluted
circumstances surrounding these interviews, the court found the defendant reasonably believed
during the last interview that he was still being compelled to make a statement under a grant of
immunity. Id. at 396-402. Plaintiff also cites McKinley v. City of Mansfield, 404 F.3d 418 (6th
Cir. 2005) as a similar case involving a “classic Fifth Amendment violation.” (Doc. 93 at 25.)
McKinley was similar to Friedrick in that the officer was likewise compelled to make statements
under a promise that the statements would not be used in a criminal prosecution. Id. at 423. In a
first interview, the officer was given a form stating:
Because this is an administrative and not a criminal investigation, the Division of
Police will not use any of the answers or information gained from the interview in
any criminal proceeding against you. * * * You are further advised that you are
hereby ordered and required to fully and truthfully answer all questions asked of
you in this interview. * * * Your failure to comply with this order constitutes your
being in violation of the Rules and Regulations of the Division of Police.
Id. In a second interview, the officer was told he was “still under Garrity,” meaning he was again
promised his statements could not be used in a criminal proceeding but he could be terminated for
failing to answer job-related questions. The Sixth Circuit found a genuine issue of fact as to
whether the officer’s statements were compelled. McKinley is distinguishable because the officer
in that case was promised use immunity and was forced to give up his right to remain silent by an
express warning that his employment could be terminated if he did not “truthfully answer all
questions.” Neither of those things occurred here.
Garrity and other cases establish that if a state provides an employee with immunity against
the use of statements in future criminal proceedings, it can then lawfully compel the employee to
answer job-related questions, including by threatening to terminate him if he does not answer.
Plaintiff seems to be suggesting he believed he was in such a situation, in part because Lt. Wright
told him he was only investigating a policy violation. But any such belief was not objectively
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reasonable. Defendant never threatened to discipline Plaintiff for electing to remain silent. Cf.
United States v. Goodpaster, 65 F. Supp. 3d 1016, 1026 (D. Or. 2014) (when the government
threatens to punish an employee for silence, it has in effect elected to inhabit its role as employer
and must provide immunity.) Moreover, Wright’s clarification that he was investigating a policy
matter did not reasonably imply a promise of immunity against the use of Plaintiff’s statements in
a future criminal proceeding. Plaintiff cites no evidence of an HPD policy or practice, express or
implied, of providing use immunity to officers who make statements in PSI inquiries, nor does he
claim that Kansas law provides such an immunity. Cf. State v. Mzhickteno, 8 Kan. App. 2d 389,
390, 658 P.2d 1052, 1054 (1983) (officers were compelled to make statements in internal
investigation; chief of police testified a refusal to answer questions would have prompted
imposition of discipline).
Perhaps Plaintiff felt some uncertainty about invoking his right to remain silent when Lt.
Wright interviewed him.
That does not mean his statements were compelled.
Plaintiff
undoubtedly felt pressure to answer the questions, in part because he had already voluntarily
disclosed that he had improperly retained a knife, a fact that could, if unrefuted, subject him to
discipline. But it is “[t]he threat of punishment for reliance on the privilege” that distinguishes
improper compulsion from “the ordinary case in which a witness is merely required to appear and
give testimony.” Murphy, 465 U.S. at 435 (emphasis added). The material question is whether
some form of official compulsion denied Plaintiff “a free choice to admit, to deny, or to refuse to
answer.” Salinas v. Texas, 570 U.S. 178, 185 (2013) (citation omitted.) No evidence is cited to
show that Defendant improperly coerced Plaintiff into giving up the option of refusing to answer
questions. The Fifth Amendment does not prohibit a witness from testifying voluntarily in matters
which may incriminate him. If he desires the protection of the privilege, “he must claim it or he
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will not be considered to have been ‘compelled’ within the meaning of the Fifth Amendment.”
Murphy, 465 U.S. at 427 (citation omitted).
Because the uncontroverted facts show Plaintiff chose to answer questions in the absence
of any official compulsion denying him a free choice to refuse to answer, his claim for unlawful
deprivation of his Fifth Amendment rights fails as a matter of law. In view of this finding, the court
need not address the additional arguments raised by the parties in their briefs.
IT IS THEREFORE ORDERED that Plaintiff’s motion for partial summary judgment
(Doc. 85) is DENIED; Defendant’s motion for summary judgment (Doc. 87) is GRANTED. The
clerk is directed to enter judgment in favor of Defendant dismissing Plaintiff’s claims on the merits.
IT IS SO ORDERED this 26th day of April, 2019.
___s/ John W. Broomes____________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE
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