McPhillips claims state violated officers’ Garrity protections

Published 11:01 am Wednesday, April 10, 2019

In a motion filed last week, Montgomery attorney Julian McPhillips called on the state to suppress all testimony provided by the three Selma Police Department (SPD) placed on leave last year over an ongoing investigation.

McPhillips claims that using statements made by the officers during an internal investigation violates the protections provided under the U.S. Supreme Court case Garrity v. New Jersey, which ruled that “coerced statements” made by public employees “under threat of removal from office” cannot be used in “subsequent criminal proceedings.”

“As stated by the Supreme Court, in Garrity, the law protects public officers from having to choose between cooperating with an internal investigation and making potentially incriminating statements,” the motion asserts. “Stated simply, Garrity immunity precludes an officer’s statements made in the course of the internal investigation from being used against that officer in any subsequent criminal proceeding.”

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The motion cites the City of Selma’s Personnel Rules and Regulations as requiring employees to “fully cooperate in city investigations” at the risk of disciplinary action up to termination.

Likewise, the motion states, the SPD’s guidelines require that all orders be followed in any internal investigation and advise that statements made during the course of such an investigation will not be used against an officer in any criminal court.

The motion stated that SPD Chief Spencer Collier launched the internal investigation which implicated the three officers – Jeffrey Hardy, Toriano Neely and Kendall Thomas – in April 2017 and a month later provided at least one officer with a written Garrity Warning, advising that no statements or evidence could be used in a criminal proceeding.

On May 30, 2017, Collier was informed by Assistant Attorney General Andrew Arrington that the Bureau of Alcohol, Tobacco and Firearms (ATF) and the Alabama Attorney General’s office would be joining the SPD’s investigation and special agents would be conducting interviews.

Two days later, Collier informed Rob Lasky at the Federal Bureau of Investigations (FBI) office in Mobile that the department would ensure full cooperation with the growing investigation and, around this time, he directed all SPD officers and employees to cooperate or risk termination.

“In direct contradiction to Garrity protections defined by the United States Supreme Court, and after obtaining information and statements from each defendant subject to termination or prosecution, the state proceeded to seek and obtain an indictment against each named defendant,” the motion states. “…Garrity protects any officer from having to choose between cooperating and making a potentially incriminating statement. More importantly, and directly applicable to the present facts, Garrity precludes an officer’s statement or information provided in the course of an investigation from being used against that officer in any subsequent criminal proceeding.”

By this measure, the motion claims that the state violated the protections provided by the U.S. Supreme Court ruling by mandating that the officers cooperate in an investigation and then using “whatever statements or information it had gained to prosecute” the officers, a move “specifically prohibited by the United States Supreme Court.”

For that reason, the motion concludes, McPhillips is asking the Circuit Court of Dallas County to suppress “any and all information and evidence obtained by any agent or investigator during the investigation of the Selma Police Department and now attempted to be presented be [the] state in the criminal actions brought against” the three officers.

Collier declined to comment on the new motion.