Mohamed Noor has a constitutional right not to talk with anyone pursuing potential criminal charges in the shooting death of Justine Damond on July 15.

But he’ll still likely have to talk with investigators.

If the Minneapolis Police Department opens an internal investigation into the shooting, the law requires him to talk if he wants to keep his job. But even if he does that, what he says to internal affairs can never be used in a criminal case.

“That’s the trade-off the Supreme Court made,” said Twin Cities employment attorney Marshall Tanick.

Tanick is referring to a 1967 ruling, Garrity vs. New Jersey, involving police in the Garden State accused of corruption. When the officers were questioned, they were told they could invoke their constitutional right not to talk, but if they stayed silent, they’d be fired. Prosecutors later used their statements to convict them.

The officers appealed, with the U.S. Supreme Court saying anything that public employees say as part of an internal investigation cannot be used in a criminal case.

“The Supreme Court wanted to encourage people to talk,” Tanick said.

In Minnesota, public employees under internal investigation are now read a Garrity Warning, which says that though they are not legally required to say anything, their employer requires it. If an employee doesn’t cooperate, or fails to tell the truth, they could get fired.

But the statement makes clear that any information gathered during an interview can’t be used in a criminal case.

“Because you are being required to provide information under the threat of disciplinary action, the information you provide, and any evidence resulting from the information you provide, cannot and will not be used against you in any subsequent criminal proceeding,” the warning reads.

Any use of information provided to internal investigators could derail a criminal case. Defense attorneys for two Minneapolis police officers charged with felony crimes unrelated to the Damond shooting are trying to use the Supreme Court’s Garrity decision to help their clients.

For Christopher Reiter, who faces a felony third-degree assault charge for allegedly kicking a man in the face in May 2016, his attorney is arguing that police and prosecutors used information from Reiter’s internal affairs interviews to help the criminal case. Reiter wants a hearing that could see the charges get dismissed.

Efrem Hamilton wants the Hennepin County attorney’s office tossed from his case as he faces felony assault charges for allegedly shooting at a car. In May, his attorney filed a motion arguing that prosecutors used internal information gathered as part of their case.

Judges for both cases have not ruled on the motions.

It’s worth noting that Garrity rights do not apply to private companies and employees. The constitution only protects people from the actions of government, said Don Taylor, a labor professor at the University of Wisconsin.

Garrity rights, Taylor said, are “a manifestation of the [U.S. Constitution’s] Fifth Amendment rights that everybody has that you can’t be compelled to incriminate yourself.”

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(c)2017 the Star Tribune (Minneapolis)

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