July 3, 2008 4:58PM

When the Police ‘Take the Fifth’

Local incident here in the DC suburb of Prince George’s County: The police are trying to solve a murder, but they can’t get useful information from certain key witnesses – even though those witnesses are themselves law enforcement officers. 

It sounds quite odd until you hear the additional details. The murder victim was suspected of killing a police officer in the line of duty. Seems like police vigilantism. Marc Fisher has a good column about the death of Ron White here. And the Washington Post has an editorial here.

This incident provides me with a rare opportunity to criticize the Supreme Court for carrying a provision of the Bill of Rights too far. To briefly digress, never accept the blithe assertion that “sometimes the courts mistakenly expand the government’s powers and sometimes the courts mistakenly expand the constitutional rights of individuals.” That’s true, but very misleading because it sounds as if it all evens out in the end. Not true.

In Garrity v. New Jersey, the Supreme Court said police officers could “take the Fifth” with respect to internal investigations into police misconduct. Now police officers, like anyone else, can “take the Fifth” when threatened with arrest and prosecution. However, they should not be able to take the Fifth when they are threatened with the loss of their job. Or, to be more precise, they can invoke the Fifth if they choose, but the police chief can then respond by demanding that they turn in their badges. The dissenting opinion in Garrity contains this quote from one Judge Jerome Frank:

“ ‘Duty required them to answer. Privilege permitted them to refuse to answer. They chose to exercise the privilege, but the exercise of such privilege was wholly inconsistent with their duty as police officers. They claim that they had a constitutional right to refuse to answer under the circumstances, but … they had no constitutional right to remain police officers in the face of their clear violation of the duty imposed upon them.’ Christal v. Police Commission of San Francisco.

Oliver Wendell Holmes once said, men may have the right to remain silent, but they do not have the constitutional right to be police officers. Holmes was right and Garrity was wrong. 

Returning now to the apparent murder of Ron White in his jail cell, the silence of the correctional officers is simply inexcusable. County officials should give these officers an ultimatum: You have 24 hours to come forward and tell us what you know. Anyone who remains silent will be discharged. And, note well, the criminal investigation will continue in any event. The local police union will object, but let it. Garrity was decided by a narrow, 5 – 4 vote. It was incorrectly decided and ought to be overturned. This case could be the perfect vehicle for accomplishing just that.

Under current law, citizens can lose their jobs and risk jail for refusing to cooperate with private investigators. It is perverse for the law to permit a double standard for state employees – especially the police. One would think that the law would hold the police to a higher standard here.