On December 20, 2017, Crabbe, Brown & James LLP filed an amicus brief on behalf of the National Fraternal Order of Police in the matter: City of Hays, Kansas v. Vogt, Case No. 16-1495. The issue before the Country’s highest court involves the scope of protection afforded by the Fifth Amendment right against self-incrimination. Specifically, the Court must decide whether Fifth Amendment protection prohibits use of compelled statements in pretrial proceedings or whether the prohibition vests only upon commencement of a criminal trial. The Court’s decision on this issue will also impact employees’ Garrity rights, which apply Fifth Amendment protection to all individuals (including police officers) in the work context by ensuring an employer cannot force employees to choose between termination and self-incrimination. See Garrity v. New Jersey, 385 U.S. 493 (1967).
The case is operating in a unique procedural posture that saw both the District Court and the Tenth Circuit Court of Appeals rule, at the motion to dismiss stage, that the Fifth Amendment is violated when criminal defendants are compelled to incriminate themselves and the incriminating statement is used in a probable cause hearing. See Vogt v. City of Hays, 844 F.3d 1235, 1237 (10th Cir. 2017).
The National Fraternal Order of Police sides with its officers, the employees, in these instances, and agrees with the Tenth Circuit that the privilege against self-incrimination vests well before a criminal trial commences. The Supreme Court will hear this case on February 20th, 2018. Check out the FOP’s brief here: https://www.supremecourt.gov/DocketPDF/16/16-1495/24563/20171220132544906_Supreme%20Court%20Brief.pdf