Garrity Offers No Protection For Dishonesty

Written on 09/02/2022
Will Aitchison

James MacColl, a police officer with Wilmington, Delaware, shot a fleeing carjacking suspect in 2019. During the resulting deadly force investigation, MacColl turned in his Department-issued gun for testing. The ballistics results showed a mismatch between the grooves on the test rounds and the grooves on the bullets recovered from the scene. Closer inspection revealed that the gun barrel was not a Depart­ment-standard issue barrel.

The Department believed that MacColl’s gun barrel was switched af­ter the shooting and began an internal affairs investigation. Before MacColl’s interviews, the Department gave him “reverse Garrity” warnings, ordering him to answer all questions or face potential termination.

MacColl denied changing his gun barrel after the shooting. Instead, Mac­Coll stated that he replaced the barrel a year earlier to improve the accuracy of the firearm. Despite that timeline, MacColl produced what he claimed was the “original” barrel to the Depart­ment in the middle of an interview. In the end, MacColl never admitted to a crime or any wrongdoing, but could not harmonize his answers with the ballistics test results. He also couldn’t provide consistent accounts of his post-shooting whereabouts, which seemed to include an unsupervised trip to a Department weapons locker.

The State indicted MacColl for: (1) Providing a False Statement to Law En­forcement; (2) Tampering with Physical Evidence; and (3) Official Misconduct. MacColl moved to dismiss the indict­ment and to exclude his interview state­ments from evidence, contending that the rule in Garrity v. New Jersey barred the State from prosecuting him for any of his incriminating interview statements because he made his statements under penalty of termination.

A Delaware trial court denied MacColl’s motions. The Court held that “Garrity did not rewrite the Fifth Amendment. Garrity immunity paral­lels Fifth Amendment immunity, and the Fifth Amendment does not protect perjury. So Garrity does not protect false testimony. Indeed, Garrity protection is not a license to lie. Accordingly, every post-Garrity decision has held that Garrity immunizes only truthful statements made by police officers under penalty of termination.

“False statements are not considered ‘coerced’ under the Fifth Amendment or Garrity. As a result, false statements are not immune to charges based on the statements’ falsity even when an officer makes the statements between the ‘rock’ of self-incrimination and the ‘whirlpool’ of termination. Giving a false statement is an independent criminal act that occurs when the individual makes the false statement; it is separate from the events to which the statement relates. Garrity-insulated statements regarding past events under investigation must be truthful to avoid future prosecution for such crimes as perjury and obstruction of justice.

“Crediting the indictment’s alle­gations as true, MacColl made false statements during his IA interviews about his gun barrel and post-shooting whereabouts. Because his statements may be false, the State is permitted under Garrity to use his statements against him to prove perjury, obstruction, and public corruption. MacColl’s statements are admissible and not privileged.”

Delaware v. MacColl, 2022 WL 2388397 (Del. Super. 2022).

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