There is currently a campaign underway to honor this convicted
cop-killer by naming a street in New York City for him. To protest this
travesty, sign the on-line petition at
See Danny Faulkner's Tragic
Story:
Follow this Movement
at:
Major Garrity Decision Out Of California
Has Far-Reaching Implications For Disciplinary Investigations
From The March Issue of Public Safety Labor
News
Potentially the most important case in 40
years interpreting Garrity v. New Jersey was decided on January 12, 2007, by the
California Court of Appeals. If the reasoning of the decision is adopted by
other states, it will fundamentally alter the way disciplinary investigations
are conducted.
Thomas Spielbauer was employed as a public
defender by Santa Clara County, California. Spielbauer became the subject of a
disciplinary investigation into charges that he had either misled or
deliberately lied to a judge. At the start of Spielbauer's disciplinary
interview, the County's investigator began asking Spielbauer questions.
Spielbauer's attorney interjected, stating that Spielbauer would refuse to
answer questions "under the protection afforded to him under the
Constitution of the State of California, the Constitution of the United States,
and the Statutes and Laws of the State of California, the County of Santa Clara,
and the United States of America" (apparently the local zoning code was
unavailable for citation).
The investigator responded by specifically
ordering Spielbauer to answer his questions, and by stating that his statements
would be not be admissible in a subsequent criminal prosecution. The
investigator's words were: "Tom, you have a right to remain silent and not
incriminate yourself. Your silence, however, may be deemed insubordination,
leading to administrative discipline up to and including termination. Any
statement made during this interview cannot, and I emphasize cannot, be used
against you in a subsequent criminal proceeding. Do you understand what I've
just read to you?"
Spielbauer still refused to answer
questions, indicating that he would only do so if a formal grant of immunity was
received from a court.
The County fired Spielbauer for
insubordination for refusing to answer the investigator's questions, and for
untruthfulness in his dealings with the judge. Spielbauer challenged his
termination in court, arguing that no public employee could be compelled to
answer questions in a disciplinary investigation unless the employer first
obtained a formal grant of immunity from the use of the interview or the fruits
of the interview in a subsequent criminal prosecution.
In an exhaustive opinion, the Court upheld
Spielbauer's challenge. The Court first turned to the threshold for Fifth
Amendment self-incrimination analysis - in other words, when the Garrity
doctrine applies at all. In the Court's eyes, "the privilege against
compulsory self-incrimination can be asserted in any proceeding, civil or
criminal, administrative or judicial, investigatory or adjudicatory; and it
protects against any disclosures which the witness reasonably believes could be
used in a criminal prosecution or could lead to other evidence that might be so
used." The Court found that Spielbauer's investigation easily met this
test, and that he could have reasonably believed prosecution could be based upon
his answers.
The heart of the matter, the Court
observed, was whether Spielbauer "could be compelled to answer, or
disciplined for refusing to do so, despite the incriminating potential of his
answers." The basic proposition, the Court stated, was that "a state
agency cannot compel its employees to answer incriminating questions over a
Fifth Amendment objection unless it first grants them protection against the use
of their compelled answers, and evidence derived from those answers, in any
later criminal prosecution."
The County argued that the operation of
immunity under Garrity was automatic, and that the moment it used its authority
as an employer to compel Spielbauer to answer the questions, Spielbauer's
answers were immunized, and thus his constitutional rights were fully protected.
After reviewing the full line of cases decided in the wake of Garrity v. New
Jersey, 395 U.S. 493 (1967), the Court ultimately rejected the County's
arguments, and held that an employer's promise that compelled statements could
not be used in a criminal prosecution was an inadequate protection for an
employee's Fifth Amendment rights. Instead, the Court held, the employer must
obtain a formal grant of immunity before an employee can be forced to
participate in a disciplinary interview.
The Court's rationale bears quoting at
some length:
"The foregoing cases stand for the
rule that the state cannot compel a public employee to answer incriminating
questions 'unless and until he is protected' against the use of his answers to
make a criminal case against him. In the absence of such protection, the
interrogate is 'privileged to stand mute without fear of punishment for his
refusal to answer. The protection contemplated by these cases is a grant of immunity,
i.e., an undertaking by the state not to use the answers to
prosecute.
"This privilege to stand mute must be
distinguished from a second rule of federal constitutional law, which arises after
an individual has been unlawfully compelled to answer incriminating questions.
Under this rule, when a compulsion to answer violates the interrogatee's right
to remain silent, he may object to the admission of his answers, or any evidence
derived from them, in any criminal action brought against him. Thus, if a public
employee is compelled to answer incriminating questions under a threat of
dismissal, his responses will be excluded from a subsequent criminal
prosecution. This exclusionary rule is a remedial device predicated
upon an unlawful violation of the interrogational privilege.
"In sum, federal cases contemplate
two distinct shields, which become available at different stages of a
prospective or actual prosecution. The first arises in any official
interrogation, and entitles the interrogate to refuse to answer
incriminating questions unless immunity is granted. The second arises at
the time of a criminal trial, and entitles the defendant to exclude from
evidence any incriminating statement, or evidence derived from a statement,
that was extracted in violation of the first privilege. The interrogational
privilege preserves the right to remain silent; the exclusionary rule remedies
a breach of that right. These rights coexist because any attempt to compel
incriminating disclosures places the interrogate 'between the rock and the
whirlpool.' He is entitled to resist threats of punishment for his exercise of
the right to remain silent, but he may be excused if instead he succumbs. In
either case, the law strives to vindicate his right to remain silent in the
first situation by setting aside any adverse consequences visited upon him for
standing mute, and in the second by excluding from evidence his wrongfully
compelled statements, and any evidence derived from them. The first right is
preservative and protective; the second, restorative and remedial.
"Here, when Spielbauer's supervisor
sought to question him in a potentially incriminating manner, Spielbauer
asserted his right to remain silent, and the supervisor told him he must answer
or subject himself to discipline, including discharge, for insubordination.
Although the supervisor stated that Spielbauer's answers could not be admitted
in a criminal prosecution, an apparent allusion to the rule of exclusion, he
never granted or offered immunity. Under the foregoing authorities, the failure
to offer immunity was fatal to any attempt to discipline Spielbauer for
remaining silent. It follows that the Board's finding of insubordination cannot
survive."
The Court then turned to the next
substantial question before it - who could grant the immunity necessary before a
disciplinary investigation could proceed? In the Court's eyes, that immunity
could only be granted by a prosecutor in a judicially-supervised process. The
process suggested by the Court was a petition to the local prosecutor to obtain
a protective order immunizing the employee. Such an approach, the Court
reasoned, "reflects a meticulous balancing of the needs of would-be
interrogators against the prerogative of the Legislature to define crimes and
their punishments, and the power and duty of the executive to prosecute the
offenses thus defined. An integral part of this balancing is judicial
supervision of the process. The immunity thus entails, first, legislative
authority implied from statutes applicable to the controversy in which the
request for immunity arose; second, due consideration of the risk the immunity
may significantly hinder enforcement of the criminal laws; and third, direct
involvement of a court by whom the merits of a particular request may be
considered, and conflicting interests weighed.
"Requiring a clear grant of immunity
provides superior protection to prosecutorial interests precisely because it
disables other officials from unilaterally compelling statements that may taint
later prosecutions. If an official wants to compel incriminating disclosures, he
will have to secure immunity; if he fails to do so, the employee is entitled to
stand on his right of silence without fear of repercussions. If the employee
does this, no tainted disclosures will be made, and no prosecutor will be
required to overcome a later claim that his case has been poisoned. To be sure,
the employee's assertion of this right may pose impediments to disciplinary
investigations, but surely it is not for the courts to solve that problem with a
blanket regime of automatic immunity."
Because Spielbauer's termination was based
in part on the insubordination charge, the Court reversed the termination, and
remanded the case back to the County for reconsideration of the appropriate
punishment for the remaining of Spielbauer's offenses.
Spielbauer v. County of Santa Clara, No.
H029345 (Cal. App. 2007).
Please Read a Personal Message
From Mrs. Donna Lamonaco
MY
NAME IS DONNA E LAMONACO AND MY HUSBAND WAS TROOPER PHILIP LAMONACO GUNNED DOWN
AND MURDERED ON DEC 21, 81 BY TWO MEMBERS OF A REVOLUTIONARY TERRORIST GROUP
CALLED THE UNITED FREEDOM GROUP. THIS GROUP BEGAN 30 YEARS AGO BY RAY
LEVASAUR AND THOMAS MANNING. THEY WENT TO COLLEGES AROUND THE NEW ENGLAND
STATES, RECRUITING FRESH YOUNG MINDS THAT WERE SCREWED UP BY DRUGS AND THE
BURNING OF OUR FLAG; THE PROTEST OF VIET NAM AND FLEEING TO CANANDA; SHOWING
PROTEST AGAINST OUR COUNTRY AND GOVERNMENT.
DURING
THIS TIME THEY ALSO ENTERED PRISONS AND BEFRIENDED "SHORT TERM" NO
BODY'S THAT HAD NO LIFE OUT SIDE OF JAIL THUS RICHARD WILLIAMS. THIS GROUP
WAS OVER 15 MEMBER STRONG WITH FAMILIES OF EACH MEMBER. THEY FINANCED
THEMSELVES BY ROBBING BRINKS TRUCKS, THEY SHOWED PROTEST AGAINST OUR GOVERNMENT
BY BOMBINGS AND THEIR PLAN TO OVER THE THROW THE US GOVERNMENT WAS #2 KILL ALL
LAW ENFORCEMENT OFFICERS. MANNING AND LEVASAUR WERE ON THE FBI'S 10 MOST
WANTED LIST.
ON
DEC 21, 1981 THINGS CHANGES, THE FBI, THE CIA, THE DEA, COULD NOT FIND NOR STOP
THIS GROUP, BUT TROOPER PHILIP J LAMONACO AND NEW JERSEY STATE TROOPER OF 11
YEARS, DID. HE WAS A HIGHLY DECORATED TROOPER RECEIVING THE TROOPER OF THE
YEAR AWARD IN 1979, THE NIGHT AFTER JO ANN CHEISAMARD ESCAPED ANNANDALE PRISON.
IN NOVEMBER OF 81, HE WENT TO NYC TO DO AN ARTICLE AND PHOTO FOR THE NEW JERSEY
MAGAZINE AS ONE OF 82 PEOPLE TO LOOK FOR IN 1982.
THIS
PERSON WAS MY HUSBAND, FRIEND, MY LOVE. HE WAS THE FATHER OF OUR THREE
CHILDREN. HE WAS MURDERED THAT DAY AND LEFT ON THE SIDE OF THE ROAD TO
DIE, HAVING THREE MORE BULLETS IN THE BACK OF THE HEAD BEFORE MANNING AND
WILLIAMS LEFT THE SCENE.
THIS
PAST WEDNESDAY I RECEIVED A PHONE CALL FROM A JERSEY TROOPER ADVISING ME OF THE
UNIVERSITY OF SOUTHERN MAINE HAVING AN "ART GALLERY" EXPO FROM NOW
TILL OCT 4. HAVING A WEB SITE CALLED "CAN'T JAIL THE
SPIRIT". THING IS, THE PORTRAITS, DRAWINGS, PAINTINGS AND SELF
PORTRAIT WERE DONE BY NONE OTHER THAN THOMAS MANNING. ONE OF THE TWO THAT
MURDERED MY HUSBAND THAT COLD DECEMBER NIGHT. LEAVING HIS FAMILY TO BURY
HIM ON CHRISTMAS EVE DAY WITH A 5 YEAR OLD, 4 YEAR OLD AND 10 MONTH OLD BABY.
NOT
ONLY WAS THIS COMMON LAW CONVICTED MURDERER WHO SITS BEHIND FEDERAL PRISON
FOR CHARGES OF OVER THROWING THE GOVERNMENT AND BOMBINGS, WAITING TO COME TO NEW
JERSEY TO BEGIN SERVING TIME FOR PHIL' DEATH, BUT THE GUEST SPEAKER SCHELDED FOR
SEPT 15TH., WAS RAY LEVASAUR; THE MAIN PERSON BEHIND THE UNITED FREEDOM FRONT
WHO AFTER SERVING ONLY PART OF HIS FEDERAL TIME FOR THE BOMBINGS AND OVER THROW
OF THE GOVERNMENT.
FROM
THE AFTERNOON OF WEDNESDAY TO THIS VERY MOMENT AND HAD BEEN ON THE PHONE WITH
THE MAINE TROOPERS ASSOCIATION, THE CHIEF OF POLICE, THE NEWSPAPERS AND OTHER
COPS SETTING UP AN AGENDA FOR MY ARRIVAL ON FRIDAY THE 15TH. I TOLD THEM
AND I TELL ANYONE, WHEN YOU KILL A COP, YOU LEAVE BEHIND A FAMILY THAT IS SO BIG
AND SO STRONG AND POWERFUL THAT WHEN IGNORANT PEOPLE SUCH AS THE ONES IN CHARGE
OF THIS EXHIBIT DECIDE TO BRING IN COP KILLERS WORKS AND SPEAKERS, WE WILL
PREVAIL.
THERE
WERE TROOPERS FROM NEW JERSEY ALL THE WAY TO MAINE WITH EVERY STATE IN BETWEEN
WRITING LETTERS AND DRIVING TO MAINE TO STAND WITH ME AND ALONG SIDE OF ME AS WE
STAND TALL IN OUR ANGER AND FIGHT TO BRING OUR SIDE OF JUST WHO WAS THIS
"POLITICAL PRISONER" EXHIBIT INVOLVING AND WHAT THEY REALLY ARE.
THANKS
TO THE BACKING OF ALL LAW ENFORCEMENT, I RECEIVED A PHONE CALL TODAY TELLING ME
THAT THE PRESIDENT OF THE UNIVERSITY SHUT THE EXHIBIT DOWN. CLOSED IT UP.
REMOVED ALL PAINTINGS AND CANCELLED ANY AND ALL SPEAKERS.
WE
WON. WE FOUGHT WITH MIGHT AND STRENGTH AND A CAUSE THAT WAS NOTHING SHY OF
RIGHT, AND WE WON.
TO
ANY OF YOU WHO HAD ANY HAND IN HELPING ME SUCEED IN THIS ;MAJOR; MAJOR
ACTION.....I THANK YOU.....I THANK YOU ALL FOR SUPPORTING ME, THE MANY MANY
PHONE CALLS AND RESEARCH THAT MAINE LAW ENFORCEMENT WENT THROUGH AND FOR ONCE
AGAIN PROVING THAT OUR FAMILY IS A STRONG FAMILY AND WE LOOK OUT FOR EACH OTHER.
DON'T MESS WITH THE MEN AND WOMEN IN BLUE AND OH YEAH THE SURVIVORS.
GOD
BLESS AND STAY SAFE
DONNA
E LAMONACO
Troopers Werner
Foerster, Philip Lamonaco and Lt. Lester Pagano
ATTORNEY
GENERAL RELEASES INDEPENDENT SHOOTING REPORTS
Read
the final reports justifying the use of deadly force in officer involved
shooting in Sanford and Jay.
Sanford
Shooting Report
State
Police Shooting in Jay
New Policy
on Sending MAP Communications to Local Units
In regards to announcements that need to be sent to the
locals:
Announcements and other communications will be faxed to your
local PD rather then mailing them. We are still having issues with people
advising us that they do not receive the mailing, or it has been misplaced.
Faxing these announcements will allow us to reduce our
mailing costs, especially if we have to get multiple copies to the same local
for the above listed issues. We will continue to mail larger documents and items
needing to be sent by hard copy. Please advise your dispatch or office staff to
be aware of this change to make sure these important announcements are forwarded
to the proper person.
Thank you.
MAP
Designates New Primary Contact for Critical Incidents
Review,
download, Print & POST the updated Critical Incident Procedures Here
IMPORTANT NOTICE ON LD 936
"IMMUNITY" BILL
LD 936, or the bill which will change the immunity of
police officers in discretionary functions (Vehicle Chases, etc.) recently
passed in the legislature. There has been considerable discussion
and misinformation in regards the effects this bill will have on individual
officers and how it was passed. Sadly, this misinformation comes from within
our own membership. In communicating with the Maine State Troopers Association
and researching the bill the following information below is the accurate
ramifications of this bill!
It is important that if questions arise like this we do
not work on rumor, conjecture or let our personal assumptions to communicate
frustrations or dissatisfaction. Contact your Vice-Presidents, or get the
facts before spouting off. As it is often said in the academy, If we don't
have an answer to your question, we will get the answer and get back to you.
Please post, distribute and communicate to your local chapters this important
information!
This morning I received an inquiry about the status of LD936,
the bill to change the Immunity of Law Enforcement Officers on Discretionary
Functions (motor vehicle operation). After we were able
to get the bill withdrawn by its sponsors, the bill went back to committee
for work and "consideration". A couple of weeks later, the
bill came back to the floor of the House of Representatives in a much more
watered down version. The bill passed both the House and Senate and was
signed by the Governor. A number of senators and representatives that
voted against it the first time, voted in favor of the newly worded bill.
The long and the short of it is that this new bill actually
helps us more than it hurts us. Here's what the new version changed.
Under previous state law, Law Enforcement Officers were
personally liable for up to $10,000 if there was a ruling against them in a
civil suit. Most of the time, the towns, counties or the state would of
covered the officers liability, but the fact was that there was always a
possibility that you and I would of had to come up with 10-grand if we were at
fault in a car accident. This new bill removes all personal
liability on the part of the police officer.
The most notable change is that now, if a local or county
police officer is found to be in gross negligence while
operating his cruiser, his town or county can be sued. NOTHING changed
as far as the State is concerned. A person still needs permission to be
able to sue the State and that can only be done through an act of the
Legislature. If gross negligence is proven, then a person who sues a
county or municipality can only be awarded the insurance policy liability
coverage (up to $400,000 max).
State Law Enforcement Officers: No changes on being
able to be sued. Plaintiff still needs permission of the Legislature to
sue.
Plaintiff
needs to prove gross negligence on the part of the police officer.
$10,000 personal liability to the police officer is removed.
Local & County Officers:
Plaintiff needs to prove gross negligence on the part of the police
officer.
Towns and Counties can now be sued if the gross negligence is proven.
Plaintiff can only recover up to $400,000 if the town or county
is found liable. $10,000 personal liability to the
police officer is removed.
As I mentioned before, this bill and the changes were the
result of the Cumberland County deputy's accident in which 2 young
boys were killed. Norton vs. Hall. The
deputy was at fault in this accident and was operating her cruiser without
siren at speeds in the high 80'MPH range, responding to a 6-yr old out of
control. Even though fault was obvious in this case, Cumberland County
refused to give the Norton family permission to sue. Had the County
stepped up to the plate and offered a settlement in this case, this bill would
of never been proposed. This new bill basically gives people like
Michelle Norton her day in court and some sense of justice.
Read
Change to Bill Text Here
Read
History of Bill Here
(Note:
If you try to access a document on this page and receive a username/password
prompt, click "cancel" and you will be allowed to view the item or
document.)
Case law of Interest
This case involves the City of Boston against
the Patrolman's Association. In this case the city was able to vacate an
arbitrator's ruling, contrary to public policy, when the arbitrator overturned
the termination of an untruthful police officer.
Read
the Case Summary Here
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prompt, click "cancel" and you will be allowed to view the item or
document.)
