Illinois Cop Must Consent to Lie Detector Test Order

     CHICAGO (CN) – A police officer can be forced to take a lie detector test under threat of termination, the Seventh Circuit ruled.
     Indiana police officer Kirk Homoky sued the Hobart Police Department and his supervisors while on paid administrative leave for insubordination pending his termination, the opinion states, an action that was never ultimately taken.
     The department was investigating Homoky for misconduct related to “various complaints of wrongdoing while performing his professional duties, including improper conduct at a traffic stop,” said U.S. Circuit Judge Ann Claire Williams, writing for a three-judge panel.
     Before ordering him to take the voice stress test, a type of lie detector, his police department reminded him of his protections under the Garrity rule, originating in the 1966 Supreme Court decision in Garrity v. New Jersey, which states that an employee’s statements during an internal or administrative investigation cannot be used against them in any criminal investigation.
     But when Homoky arrived at the Porter County Sheriff’s department to take the test and was asked to sign a form stating he was there “voluntarily, without duress, coercion, promise, reward or immunity,” he refused, a decision his attorney confirmed via phone, the opinion states.
     While there is factual disagreement over what happened next – the sheriff’s department claims they offered to strike “voluntarily” and Homoky refused, while Homoky maintains that he asked them to remove it and they refused – Homoky refused to sign the form and release his right to sue the sheriff’s department later, Williams wrote, and thus did not take the test.
     Homoky was then forced to relinquish his gun and badge and was placed on unpaid – later amended to paid – administrative leave pending his discharge for insubordination because he had disobeyed an order, according to the opinion.
     When Homoky’s lawyer cried foul over a lack of notice and untimely hearing dates, Hobart Police Chief Jeffrey White dropped the charges and placed Homoky on “garage duty, which included scrubbing toilets” out of uniform, the opinion states. More than a month later, he was placed on “modified uniform duties” such as taking fingerprints.
     Before the charges were dropped and he returned to work, Homoky filed the civil rights lawsuit, but a trial judge ultimately granted summary judgment to the employment review board, the police department, White and the two sheriffs who attempted to administer the test, Williams wrote.
     Homoky brought only his Fourteenth Amendment claims against White and the sheriff’s deputies to the appeals court, arguing they compelled him to revoke his Fifth Amendment right against self-incrimination by forcing him to sign the release or face termination.
     Williams dismisses these claims bluntly.
     “Homoky’s claim fails because no constitutional violation occurred,” she writes. “Homoky never took the voice stress test, a fact he does not dispute, so he produced no coerced statements that the government might use against him in a subsequent criminal proceeding.
     “There was also no Fifth Amendment violation because his employer compelled him to testify with Garrity protections in place,” she continues.
     With that disclosure, Williams writes, a government employer has the same privileges as a private one when it comes to requiring employees to comply with internal investigations.
     Homoky’s separate due process claim against White was brought for the first time on appeal, Williams wrote, and so the court does not address it.
     Williams was joined in the unanimous majority opinion by U.S. Circuit Judge Frank Easterbrook and Judge Richard Posner.

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