Appellant, a police officer, was subpoenaed by and appeared
before a grand jury which was investigating alleged bribery and
corruption of police officers, and was advised that the grand jury
proposed to examine him concerning the performance of his official
duties. He was advised of his privilege against self-incrimination,
but was asked to sign a "waiver of immunity" after being told that
he would be fired if he did not sign. He refused to do so, was
given an administrative hearing, and was discharged solely for his
refusal, pursuant to § 1123 of the New York City Charter. The New
York Supreme Court dismissed his petition for reinstatement, and
the New York Court of Appeals affirmed, holding that Garrity v.
New Jersey, 385 U. S. 493
not controlling, and distinguishing Spevack v. Klein,
385 U. S. 511
(both decided after appellant's discharge).
If appellant, a policeman, had refused to answer
questions directly relating to the performance of his official
duties, without being required to waive his immunity with respect
to the use of his answers or the fruits thereof in a criminal
prosecution of himself, Garrity, supra,
against self-incrimination would not have been a bar to his
dismissal. However, his dismissal solely for his refusal to waive
the immunity to which he is entitled if he is required to testify
despite his constitutional privilege, and the New York City Charter
provision pursuant to which he was dismissed, cannot stand. Pp.
392 U. S.
20 N.Y.2d 227, 229 N.E.2d 184, reversed.
Page 392 U. S. 274
MR. JUSTICE FORTAS delivered the opinion of the Court.
Appellant brought this action in the Supreme Court of the State
of New York seeking reinstatement as a New York City patrolman and
back pay. He claimed he was unlawfully dismissed because he refused
to waive his privilege against self-incrimination. In August, 1965,
pursuant to subpoena, appellant appeared before a New York County
grand jury which was investigating alleged bribery and corruption
of police officers in connection with unlawful gambling operations.
He was advised that the grand jury proposed to examine him
concerning the performance of his official duties. He was advised
of his privilege against self-incrimination, [Footnote 1
] but he was asked to sign a "waiver of
immunity" after being told that he would be fired if he did not
sign. [Footnote 2
Page 392 U. S. 275
his refusal, he was given an administrative hearing and was
discharged solely for this refusal, pursuant to § 1123 of the New
York City Charter. [Footnote
Page 392 U. S. 276
The New York Supreme Court dismissed his petition for
reinstatement, 27 App.Div.2d 800, 279 N.Y.S.2d 150 (1967), and the
New York Court of Appeals affirmed. 20 N.Y.2d 227, 229 N.E.2d 184
(1967). We noted probable jurisdiction. 390 U.S. 918 (1968).
Our decisions establish beyond dispute the breadth of the
privilege to refuse to respond to questions when the result may be
self-incriminatory, and the need fully to implement its guaranty.
See Spevack v. Klein, 385 U. S. 511
(1967); Counselman v. Hitchcock, 142 U.
, 142 U. S.
-586 (1892); Albertson v. SACB, 382 U. S.
, 382 U. S. 80
(1965). The privilege is applicable to state as well as federal
proceedings. Malloy v. Hogan, 378 U. S.
(1964); Murphy v. Waterfront Commission,
378 U. S. 52
(1964). The privilege may be waived in appropriate circumstances if
the waiver is knowingly and voluntarily made. Answers may be
compelled regardless of the privilege if there is immunity from
federal and state use of the compelled testimony or its fruits in
connection with a criminal prosecution against the person
testifying. Counselman v. Hitchcock, supra,
142 U. S.
-586; Murphy v. Waterfront Commission,
at 378 U. S.
The question presented in the present case is whether a
policeman who refuses to waive the protections which the privilege
gives him may be dismissed from office because of that refusal.
About a year and a half after New York City discharged
petitioner for his refusal to waive this immunity, we decided
Garrity v. New Jersey, 385 U. S. 493
(1967). In that case, we held that, when a policeman had been
compelled to testify by the threat that otherwise he would be
removed from office, the testimony that he gave could not be used
against him in a subsequent prosecution. Garrity had not signed a
waiver of immunity, and no immunity statute was applicable in the
Page 392 U. S. 277
Our holding was summarized in the following statement (at
385 U. S.
"We now hold the protection of the individual under the
Fourteenth Amendment against coerced statements prohibits use in
subsequent criminal proceedings of statements obtained under threat
of removal from office, and that it extends to all, whether they
are policemen or other members of our body politic."
The New York Court of Appeals considered that Garrity
did not control the present case. It is true that Garrity
related to the attempted use of compelled testimony. It did not
involve the precise question which is presented here: namely,
whether a State may discharge an officer for refusing to waive a
right which the Constitution guarantees to him. The New York Court
of Appeals also distinguished our post-Garrity
Spevack v. Klein, supra.
that a lawyer could not be disbarred solely because he refused to
testify at a disciplinary proceeding on the ground that his
testimony would tend to incriminate him. The Court of Appeals
concluded that Spevack
does not control the present case
because different considerations apply in the case of a public
official such as a policeman. A lawyer, it stated, although
licensed by the state, is not an employee. This distinction is now
urged upon us. It is argued that, although a lawyer could not
constitutionally be confronted with Hobson's choice between
self-incrimination and forfeiting his means of livelihood, the same
principle should not protect a policeman. Unlike the lawyer, he is
directly, immediately, and entirely responsible to the city or
State which is his employer. He owes his entire loyalty to it. He
has no other "client" or principal. He is a trustee of the public
Page 392 U. S. 278
the burden of great and total responsibility to his public
employer. Unlike the lawyer, who is directly responsible to his
client, the policeman is either responsible to the State or to no
one. [Footnote 4
We agree that these factors differentiate the situations. If
appellant, a policeman, had refused to answer questions
specifically, directly, and narrowly relating to the performance of
his official duties, [Footnote
] without being required to waive his immunity with respect to
the use of his answers or the fruits thereof in a criminal
prosecution of himself, Garrity v. New Jersey, supra,
privilege against self-incrimination would not have been a bar to
The facts of this case, however, do not present this issue.
Here, petitioner was summoned to testify before a grand jury in an
investigation of alleged criminal conduct. He was discharged from
office not for failure to answer relevant questions about his
official duties, but for refusal to waive a constitutional right.
He was dismissed for failure to relinquish the protections of the
privilege against self-incrimination. The Constitution of New York
State and the City Charter both expressly provided that his failure
to do so, as well as his failure to testify, would result in
dismissal from his job. He was dismissed solely for his refusal to
waive the immunity to which he is entitled if he is required to
testify despite his constitutional privilege. Garrity v. New
We need not speculate whether, if appellant had executed the
waiver of immunity in the circumstances, the effect of our
subsequent decision in Garrity v. New Jersey, supra,
have been to nullify the effect of
Page 392 U. S. 279
the waiver. New York City discharged him for refusal to execute
a document purporting to waive his constitutional rights and to
permit prosecution of himself on the basis of his compelled
testimony. Petitioner could not have assumed -- and certainly he
was not required to assume -- that he was being asked to do an idle
act of no legal effect. In any event, the mandate of the great
privilege against self-incrimination does not tolerate the attempt,
regardless of its ultimate effectiveness, to coerce a waiver of the
immunity it confers on penalty of the loss of employment. It is
clear that petitioner's testimony was demanded before the grand
jury in part so that it might he used to prosecute him, and not
solely for the purpose of securing an accounting of his performance
of his public trust. If the latter had been the only purpose, there
would have been no reason to seek to compel petitioner to waive his
Proper regard for the history and meaning of the privilege
against self-incrimination, [Footnote 6
] applicable to the States under our decision in
Malloy v. Hogan, 378 U. S. 1
and for the decisions of this Court, [Footnote 7
] dictate the conclusion that the provision of
the New York City Charter pursuant to which petitioner was
dismissed cannot stand. Accordingly, the judgment is
MR. JUSTICE BLACK concurs in the result.
[For opinion of MR. JUSTICE HARLAN, concurring in the result,
p. 392 U. S.
The Assistant District Attorney said to appellant:
"You understand . . . that, under the Constitution of the United
States, as well as the Constitution of New York, no one can be
compelled to testify against himself, and that he has a right, the
absolute right to refuse to answer any questions that would tend to
Appellant was told:
"You understand . . . that, under the Constitution of New York,
as well as the Charter of the City of New York, . . . a public
officer, which includes a police officer, when called before a
Grand Jury to answer questions concerning the conduct of his public
office and the performance of his duties, is required to sign a
waiver of immunity if he wishes to retain that public office?"
The document appellant was asked to sign was phrased as
"I . . . do hereby waive all benefits, privileges, rights and
immunity which I would otherwise obtain from indictment,
prosecution, and punishment for or on account of, regarding or
relating to any matter, transaction or things, concerning the
conduct of my office or the performance of my official duties, or
the property, government or affairs of the State of New York or of
any county included within its territorial limits, or the
nomination, election, appointment or official conduct of any
officer of the city or of any such county, concerning any of which
matters, transactions or things I may testify or produce evidence
documentary or otherwise, before the [blank] Grand Jury in the
County of New York, in the investigation being conducted by said
That section provides:
"If any councilman or other officer or employee of the city
shall, after lawful notice or process, willfully refuse or fail to
appear before any court or judge, any legislative committee, or any
officer, board or body authorized to conduct any hearing or
inquiry, or having appeared shall refuse to testify or to answer
any question regarding the property, government or affairs of the
city or of any county included within its territorial limits, or
regarding the nomination, election, appointment or official conduct
of any officer or employee of the city or of any such county, on
the ground that his answer would tend to incriminate him, or shall
refuse to waive immunity from prosecution on account of any such
matter in relation to which he may be asked to testify upon any
such hearing or inquiry, his term or tenure of office or employment
shall terminate and such office or employment shall be vacant, and
he shall not be eligible to election or appointment to any office
or employment under the city or any agency."
Section 6 of Article I of the New York Constitution
"No person shall be . . . compelled in any criminal case to be a
witness against himself, providing, that any public officer who,
upon being called before a grand jury to testify concerning the
conduct of his present office . . . or the performance of his
official duties . . . refuses to sign a waiver of immunity against
subsequent criminal prosecution, or to answer any relevant question
concerning such matters before such grand jury, shall by virtue of
such refusal, be disqualified from holding any other public office
or public employment for a period of five years . . . and shall be
removed from his present office by the appropriate authority or
shall forfeit his present office at the suit of the attorney
Cf. Spevack v. Klein, supra,
at 385 U. S.
-520 (concurring in judgment).
The statements in my separate opinion in Spevack v. Klein,
at 385 U. S.
-520, to which the New York Court of Appeals
referred, are expressly limited to situations of this kind.
See Miranda v. Arizona, 384 U.
, 384 U. S.
-466 (1966), and authorities cited therein.
See, e.g., Griffin v. California, 380 U.
(1965); Malloy v. Hogan, supra.