PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 96-5190
________________________
D. C. Docket No. 94-8693-CV-WJZ
MICHAEL HARRISON,
Plaintiff-Appellant,
versus
RICHARD P. WILLE, individually and in his
official capacity as Sheriff of Palm Beach
County, BENNIE GREEN, MICHAEL S. TUCKER,
DANIEL McBRIDE, individually and in their
official capacities of the Palm Beach County
Sheriff’s Office,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 9, 1998)
Before EDMONDSON, Circuit Judge, CLARK and WELLFORD*, Senior
Circuit Judges.
_______________
C Honorable Harry W. Wellford, Senior U.S. Judge for the
Sixth Circuit, sitting by designation.
PER CURIAM:
Plaintiff appeals the grant of summary judgment in favor
of Defendants on Section 1983 claims. Plaintiff alleges
violations of the Fourteenth Amendment’s guarantee of
procedural due process and the Fifth Amendment. We hold
that Plaintiff failed to allege facts sufficient to establish either
of these violations, and we affirm the grant of summary
judgment for Defendants.
Background
The basic facts in this case are undisputed.
In 1985 Plaintiff Michael Harrison was hired as a deputy of
the Palm Beach County Sheriff’s Office. During Plaintiff’s
employment with the sheriff’s office, either Defendant Richard
P. Wille (1977-95) or Defendant Charles McCutcheon was the
county’s sheriff. The remaining Defendants -- Bennie Green,
2
Michael S. Tucker, and Daniel McBride -- were all deputies in
the sheriff’s office.
Beginning in 1991, items were being stolen from the
evidence room at the sheriff’s office. In 1994, an internal
investigation, and a concurrent criminal investigation, were
begun. Plaintiff was a suspect because the first of several
thefts occurred at Plaintiff’s substation, and the receipt and
deletion of the evidence from the records seemed to have
occurred during Plaintiff’s times on duty.1
On three occasions, Plaintiff, as one of several suspects,
was asked to provide statements to investigating deputies
about the thefts. Plaintiff appeared before an investigator each
Items were logged into the evidence room by the deputy
1
on duty who would sign a receipt for the evidence. When the
evidence was then removed, for whatever purpose, the
evidence was deleted from the computer inventory list, and a
“deletion log” was created.
3
time and was given his Garrity rights.2 Following the last
statement, Plaintiff was placed on administrative leave with pay.
After the three interviews, Plaintiff was given notice that a
predisciplinary conference would be held. This notice was
provided at least one day before the first conference. At this
conference Plaintiff was told that another theft had occurred
during his shift. Defendant Green also explained the charges
against Plaintiff and summarized for Plaintiff the information
gained so far by the internal investigation.
At this conference, Plaintiff was given a form explaining
his Garrity rights but was informed that no statements were
being compelled -- he need not say anything. Plaintiff’s
attorney advised him that, because no statements were being
2
Garrity rights provide a public employee with immunity;
and when given, protect an employee so that statements
made for internal investigations will not be used against the
employee in a criminal prosecution. Lefkowitz v. Turley,
414
U.S. 70, 79-80 (1973); Garrity v. New Jersey,
385 U.S. 493
(1967).
4
compelled, Garrity immunity did not exist and that Plaintiff
should exercise his Fifth Amendment right against self-
incrimination.3 Plaintiff remained silent -- exercising his right
to do so under the Fifth Amendment.
After the predisciplinary conference, Plaintiff was
suspended without pay.4 The sheriff’s office allows appeals
from such disciplinary decisions to the Hearing Review Board.
Plaintiff’s counsel filed a timely appeal, but asked that the
appeal be postponed to allow for the completion of the ongoing
internal and criminal investigations -- so Plaintiff would not face
the repercussions of incriminating statements made during
those proceedings. The appeal was postponed.
3
Plaintiff was accompanied by legal counsel at all points
after his initial interview and statement.
Articles appeared in local newspapers about the
4
investigation and Plaintiff’s suspension. It is based upon
these articles that Plaintiff makes his claim that he was
deprived of liberty (by the loss of his good reputation)
without due process.
5
Before the appeal was reinitiated, Plaintiff received written
notification of the misconduct charges against him, now nine
(9) incidents. This notice was provided to Plaintiff on 22 August
1994. Soon after notice of the charges, Plaintiff and his counsel
were permitted to review the internal affairs’ investigation
report, which then included ten (10) instances of theft.
Plaintiff’s counsel raised two issues about the accuracy of the
report at that time.
In September, a second predisciplinary conference was
held, which again resulted in Plaintiff’s silence after receiving
no Garrity protection. In October 1994, Plaintiff was terminated.
Again, Plaintiff’s counsel requested the appeal -- now an
appeal of not just suspension, but termination -- before the
Hearing Review Board be postponed until completion of the
criminal investigation. Review was again postponed. The
criminal investigation was completed in February 1995 and
resulted in no charges against Plaintiff.
6
In April 1995, the Hearing Review Board (now called a
“Termination Review Board”) heard Plaintiff’s challenge to his
termination. At that hearing, Plaintiff was provided Garrity
protection; and he provided information in his own defense. By
a 3-2 vote the Board sustained Plaintiff’s termination; this
decision was ratified by the current sheriff, Defendant
McCutcheon.
Plaintiff filed suit against Defendants -- all members of the
sheriff’s office involved with the investigation -- under
42 U.S.C.
§ 1983. Plaintiff alleged violations of his procedural due
process rights and his substantive due process rights.5
5
Plaintiff alleged his Fifth Amendment right against self-
incrimination had been violated by the refusal to provide
Garrity protection at every stage of the administrative
process. He made this claim under the guise of a
substantive due process violation. But where a particular
amendment “provides an explicit textual source of
constitutional protection” against the conduct of which
Plaintiff complains, “that Amendment, not the more
generalized notion of ‘substantive due process,’ must be the
guide for analyzing” the claim. Graham v. Connor,
490 U.S.
386, 395 & n.10 (1989). Thus, Plaintiff’s substantive due
7
The district court, in response to motions filed by all
Defendants, granted summary judgment for Defendants on all
claims. Plaintiff appeals that decision.
Discussion
I. Fifth Amendment Violation
Plaintiff alleges that the failure to afford him Garrity
protection at the two predisciplinary conferences violated his
Fifth Amendment right against self-incrimination. Plaintiff
claims he was terminated for his exercise of this right. The
record does not support that conclusion.
The Fifth Amendment provides that no person “shall be
compelled in any criminal case to be a witness against
process claim will be analyzed under the Fifth Amendment’s
prohibition of compelled testimony and self-incrimination.
8
himself.” U.S. Const. amend. V. “The Amendment not only
protects the individual against being involuntarily called as a
witness against himself in a criminal prosecution but also
privileges him not to answer official questions put to him 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).
In Garrity v. New Jersey, (establishing “Garrity rights”), the
Supreme Court held that, when public employees are given the
choice of either forfeiting their jobs or incriminating
themselves, the Fifth Amendment has been violated because a
forced decision of that kind is “likely to exert such pressure
upon an individual as to disable him from making a free and
rational choice.”
385 U.S. 493, 497 (1967) (citation omitted). In
Garrity, police officers subject to an internal investigation were
told, before being questioned, that anything they said could be
used against them and that they had a right to say nothing; but
9
the officers were also told that if they refused “to answer [they]
would be subject to removal from office.”
Id. at 494. This
conduct, the Court held, is a violation of the Fifth Amendment.
Id. at 498.
Later cases explained that Garrity only prohibits the
compulsion of testimony that has not been immunized. See
Turley,
414 U.S. at 82-83. In other words, the employee may not
be both compelled to testify (or make a statement) and be
required to waive his Fifth Amendment rights. Gardner v.
Broderick,
392 U.S. 273, 276-77 (1968). An “employee’s rights
are imperilled only by the combined risks of both compelling
the employee to answer incriminating questions and
compelling the employee to waive immunity from the use of
those answers.” Arrington v. County of Dallas,
970 F.2d 1441,
1446 (5th Cir. 1992).
The result of these prohibitions is that a public employee
cannot be terminated solely for the exercise of his Fifth
10
Amendment rights. See, e.g., Lefkowitz v. Cunningham,
431
U.S. 801, 804 (1977); Arrington,
970 F.2d at 1446; Buckner v.
City of Highland Park,
901 F.2d 491, 496 (6th Cir. 1990);
Benjamin v. City of Montgomery,
785 F.2d 959 (11th Cir. 1986);
Hoover v. Knight,
678 F.2d 578, 580 (5th Cir. 1982) (citing
Gardner,
392 U.S. 273, and Uniformed Sanitation Men v.
Sanitation Commissioner of New York,
392 U.S. 280 [1968]).
Considered along with other evidence, however, an adverse
inference may be drawn from an employee’s exercise of his
Fifth Amendment right to silence. Hoover,
678 F.2d at 582 &
n.1.6
Plaintiff argued that to show a Fifth Amendment
6
violation he need only show that his exercise of the right to
remain silent was a substantial or motivating factor in his
dismissal. This idea is not the law governing Fifth
Amendment claims. Because Plaintiff only argues that his
exercise of his Fifth Amendment rights was a substantial or
motivating reason for his termination, he does not properly
allege facts to support his action under the correct legal
standard -- that his invocation of the Fifth Amendment was
the sole reason for his termination.
11
In this case, Plaintiff was not faced with the choice to make
a statement or to be fired. First, Plaintiff, when not given
Garrity protection, was never compelled to make a statement.
Second, Plaintiff cannot show (and does not contend) that he
was terminated solely for the exercise of his Fifth Amendment
rights.
The termination of Plaintiff’s employment came after a
lengthy investigation in which other evidence incriminated him.
Plaintiff does not dispute that other evidence about the thefts,
besides his silence, led to Plaintiff’s leave without pay and to
his ultimate termination. Plaintiff signed the receipts for much
of the stolen evidence, and the computer documented that
some of the missing evidence had been deleted during
7
P l a i n t i f f ’ s s h i f t s .
Plaintiff claims that the time and date functions of the
7
computers were often off by as much as two days and that
the documented dates and times for the deletion of the
evidence are not accurate. But Plaintiff’s counsel had an
opportunity to point this supposed error out to investigators
12
To succeed in this action Plaintiff must submit sufficient
facts upon which a reasonable jury could conclude that he was
terminated solely because he remained silent at the
predisciplinary conferences. Plaintiff has not met this burden.
Plaintiff must also show that he was compelled to waive
his Fifth Amendment rights. “The government’s mere failure to
tender immunity cannot amount to an attempt to compel a
waiver of immunity.” Arrington,
970 F.2d at 1446. When a
person has “a free choice to admit, deny, or refuse to answer.
This is full vindication of the [F]ifth [A]mendment privilege
against self-incrimination.” Hoover,
678 F.2d at 581 (citation
omitted).
Because Plaintiff does not present facts to show that he
was, at the same time, both compelled to testify and forced to
waive his Fifth Amendment right against self-incrimination, and
after he reviewed the investigation report.
13
because Plaintiff alleges no facts that show, and does not
contend, that he was terminated solely in response to his
exercise of his Fifth Amendment rights, summary judgment was
proper.
II. Procedural Due Process
Plaintiff also fails to establish issues of material fact about
his procedural due process claims. “An essential principle of
due process is that a deprivation of life, liberty, or property ‘be
preceded by notice and opportunity for hearing appropriate to
the nature of the case.’” Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 542 (1985) (citation omitted).8 Plaintiff raises
We accept that Plaintiff did have a property interest in
8
his position with the sheriff’s office -- a proposition
undisputed by Appellees.
14
procedural due process claims on both his property interest in
his employment and his liberty interest in his reputation.9
There must be “some kind of hearing” before termination
of an employee with a protected property interest in his
employment. Loudermill,
470 U.S. at 542 (citation omitted). The
termination of employment is a severe deprivation, although the
interest of the sheriff’s office in terminating deputies for
misconduct is great. See Loudermill,
470 U.S. at 543 (severity
of termination); Buckner,
901 F.2d at 497 (“The government
9
Assuming Plaintiff had a protected liberty interest in
this case, the only process due Plaintiff to protect his liberty
interest was a “name clearing hearing.” Warren v. Crawford,
927 F.2d 559, 565 (11th Cir. 1991). The hearing need not take
place before termination or the publication of the damaging
information. Campbell v. Pierce County, Ga.,
741 F.2d 1342,
1345 (11th Cir. 1984). Plaintiff must have the opportunity “to
support his allegations by argument however brief, and, if
need be, by proof, however informal.”
Id. (citations omitted).
Because this opportunity is not as strict as the process
required before one can be deprived of a property interest,
due process was satisfied by the same opportunities
provided for notice and hearing for the termination itself --
the predisciplinary conferences and subsequent Review
Board Hearing.
15
interest in effective law enforcement is extremely high. . . .”).
The importance of the Plaintiff’s property interest makes it
necessary to provide some sort of pretermination hearing,
which includes notice and an opportunity to be heard.
A. Notice
Notice was sufficient if it notified Plaintiff of the charges
and was timely, whether oral or written. Loudermill,
470 U.S. at
546. Here, Plaintiff was afforded ample notice of the charges
against him and of the evidence discovered by the investigation
before each stage of the disciplinary process. He and his
counsel were permitted to review the investigation report; and,
at the first predisciplinary conference, Defendant Green told
Plaintiff of the charges and the evidence against him --
specifically the evidence contained in the deletion log.
16
B. Opportunity To Be Heard
Plaintiff had several opportunities to be heard. All three of
his initial statements and the two separate predisciplinary
conferences provided Plaintiff the opportunity to present
evidence in his defense -- to tell his side of the story. His
choice to exercise his Fifth Amendment privileges does not
negate the fact that the opportunity existed.10
“Affording an employee the opportunity to respond after
being confronted with the charges is all that pretermination due
10
Plaintiff argues that, to provide a
meaningful opportunity to be heard,
immunity must be given at every stage
of an investigation into police
misconduct. This notion is not the law.
See generally Buckner,
901 F.2d 491, 496
(6th Cir. 1990); see also Garrity,
385 U.S.
493; Loudermill,
470 U.S. 532.
17
process requires of the employer.” Buckner,
901 F.2d at 496.
“The fact that [Plaintiff] had to choose whether to talk or to
remain silent offends neither the [F]ifth nor the [F]ourteenth
[A]mendment.” Gniotek v. City of Philadelphia,
808 F.2d 241,
245 (3d Cir. 1986).
Before termination, a full evidentiary hearing is not
required. Loudermill,
470 U.S. at 545. Nor does the
pretermination hearing have to establish conclusively the
propriety of the termination.
Id. Plaintiff need only be given an
opportunity to present his side of the story. Plaintiff here had
that opportunity on several occasions -- at both predisciplinary
conferences and the three preceding interviews. A full post-
termination proceeding was also held at which Plaintiff
presented evidence in his defense.
Conclusion
18
The material facts are undisputed. And, Defendants were
entitled to a judgment as a matter of law. Therefore, we affirm
the judgment of the district court.
AFFIRMED.
19
