## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-1431EA

_____________ J. D. Hill, Former member of the * Pulaski County Sheriff's Office, Pulaski * County Regional Detention Facility, * * Appellee, *

* v. * * Randy Johnson, Sheriff, Pulaski County; * Appeal from the United States Danny Bradley, Member of the Pulaski * District Court for the Eastern County Sheriff's Office; Carol Kimble, * District of Arkansas. Member of the Pulaski County Sheriff's * Office, Professional Standards Unit; * Michael Barkhurst, Member of the * Pulaski County Sheriff's Office; Lou * Hughes, Member of the Pulaski County * Sheriff's Office, * * Appellants. *

_____________ Submitted: September 22, 1998

Filed: November 16, 1998

_____________ Before McMILLIAN, HEANEY, and FAGG, Circuit Judges.

_____________ FAGG, Circuit Judge.-2-

Afte r the photograph of a beaten detainee disappeared from the desk o f supervi sing officer J.D. Hill, the Pulaski County Sheriff’s office undertook a n investigation. During its course, Hill refused to answer questions about the incident and failed to show up for a polygraph exam ination. Nevertheless, a fellow officer said he had placed the photograph on Hill’s desk in Hill’s presence , and another said he had disp osed of the photograph at Hill’s direction. Following the thorough investigatio n revealing Hill’s official misconduct, the Sheriff terminated Hill’s employme nt. Hill then brought this civil rights action against the Sheriff and other office members allegin g they v iolated his Fifth Amendment and due process rights. The Sheriff and officer s moved fo r summary judgment on both the merits and the issue of qualified immunity. The district court denied the motion, and the Sheriff and officers brought thi s interl ocutory appeal, see Collins v. Bellinghausen , 153 F.3d 591, 595 (8th Cir. 1998) (denial of motion for summary judgment on basis of qualified immunity is immediately appealable). We reverse.
When reviewing the district court’s summary judgment decision, w e examine the
rec ord in the light most favorable to the opposing party and draw all reasonabl e inferen ces in that party’s favor. See Burnham v. Ianni , 119 F.3d 668, 673 (8th Cir

. 1997). “Qualified immunity shields government officials from suit unless their conduct vi olates a clearly established constitutional or statutory right of which a reasonabl e person would have known.” Id.

Hill ass erts the Sheriff violated his Fifth Amendment rights by discharging him for refusin g to answer questions at his last meeting with the Sheriff and for remaining silent rather than obeying the Sheriff’s order to take a polygraph examination. Hil l asserts termination under these circumstances violated law that was clearly established in Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation , 392 U.S. 280, 284 (1968) (ho lding discharge of public employees for refusal to testify about official conduct on ground s of self-incrimination violated Fifth Amendment where employees were threatened with termination if they invoked right against self-incrimination and-3-

were told their answers could be used against them in later criminal proceedings)

. Examining the record in Hill’s favor, we conclude Hill has failed to allege the violation of clearly established Fifth Amendment rights of which a reasonable p erson would have known.

“The [Fifth] Amendment not only protects the individual against bein g inv oluntarily called as a witness against himself in a criminal prosecution but als o privileges him not to answer official questions put to him in any other proceeding, civil
or cr iminal, formal or informal, where the answers might incriminate him in futur e criminal proceedings.” Lefkowitz v. Turley , 414 U.S. 70, 77 (1973). The Amendment is violated whe n public employees are compelled to testify by employers who require the employees to either incriminate themselves or to forfeit their jobs. See Garrity v. New Jersey , 385 U.S. 493, 497-98 (1967); Uniformed Sanitation Men , 392 U.S. a t 284. A s long as a public employer does not demand that the public employe e reli nquishthe employee’s constitutional immunity from prosecution, however, th e employee can be required to either testify about performance of official duties or t o for feit employment. See Uniformed Sanitation Men , 392 U.S. at 284; Gulden v

. McCo rkle , 680 F.2d 1070, 1073-74 (5th Cir. 1982). Given “the important publi c interest in securing from public employees an accounting of the ir public trust[,] [p]ublic emplo yees may constitutionally be discharged for refusing to answer potentiall y incriminating questions concerning their official duties if they have not been required to surrender their consti tutional immunity.” Lefkowitz v. Cunningham , 431 U.S. 801, 806 ( 1977). The Fifth Amendment is violated only by the combined risks of both compelli ng the employee to answer incriminating questions and compelling th e employee to waive immunity from the use of those answers. See Harrison v. Wille , 132 F.3d 679, 682 (11th Cir. 1998).
Here, Hill was neither forced to answer incriminating questions under threat of termination nor required to relinquish immunit y from the use of his answers in criminal proceedings. He did not face the choice of either forfeiting his job or making a-4-

statement that could be used to prosecute him. Contrary to Hill’s assertion, the only reasonable inference from the record is that the meetingand the polygraph examination
were part of the Sheriff’s internal administrative investigation, not the crimina l investi gation. Before the meeting, Hill received a “Notice of Consideration o f Disc iplinary Action,” stating “suspension, demotion, or termination is bein g considered.” The transcript of the last meeting shows the Sheriff said it was a n “administrative hearing, . . . not a criminal hearing,” and that it concerned “disciplinary actio n.” Hill was also told the polygraph “would be . . . strictly for administrativ e purposes only, not for any criminal purpose s.” Even if Hill was not expressly told that his answers at the meeting and polygraph examination could not be used against him in the criminal prosecution, the mere failure affirmatively to offer immunity is not an impermissible attempt to compel a waiver of immunity, see id. at 683; Gulden , 68 0 F.2d at 1075. Because Hill was no t asked to waive his constitutional privilege against sel f-incrimination to answer job-related questions, his dismissal for refusal to answer does not violate that privilege. Se e Wiley v. Mayor & City Council , 48 F.3d 773, 777 (4th Ci r. 1995); Gulden , 680 F.2d at 1074. As for the polygraph examination, it i s undisputed that Hill did not even show up, and discharging Hill for refusing t o participate at all did not violate his Fifth Amendment right against self-incrimination. See Gulden , 680 F.2d at 1075-76.
In sum, Hill failed to sub mit sufficient facts from which a reasonable jury could conclu de that he was compelled to waive his Fifth Amendment rights. Hill’s du e process clai m fails because it depends on a Fifth Amendment privilege to refuse t o attend a polygraph as the basis for a protected property interest. Because the Sheriff’s
c o nduct did not violate a clearly established constitutional or statutory right of which
a reasonable person would have known, the Sheriff and the officers are entitled t o quali fied immunity. We thus reverse the district court’s denial of summary judgment on that ground.
HEANEY, Circuit Judge, dissenting.-5-

Because Hill presented sufficient evidence to create a jury question as to whether the Sher iff and other officers (defendants) violated his clearly established Fifth Amendment rights of which a reasonable person would have known, I would affirm the district c ourt’s denial of defendants’ motion for summary judgment on the basis o f qualified immunity. I respectfully dissent.
The law is clear that public employees may not consti tutionally be discharged for “refusal to expose themselves to criminal prosecution based on testimony which they
wou ld give under compulsion, despite their constitutional privilege.” Uniforme d Sanitation Men Ass’n., Inc. v. Commissioner of Sanitation , 392 U.S. 280, 283 (1968);
see al so Gardner v. Broderick , 392 U.S. 273, 279 (finding it unconstitutional t o discharge a police officer for re fusing to waive his Fifth Amendment privilege). In this case, a reasonable person in the defendants’ position would have known of this right, and the fact that on one occasion Hill was advised of his Garrity rights shows tha t defendants did know of Hill’s rights.

I dis agree with the majority that in viewing the evidence in the light mos t favorabl e to Hill, the only reasonable inference is that the meeting and polygrap h
exam inationwere part of the Sheriff’s internal administrative investigation. Hil l presented evidence showing that the nature of the January 29, 1997 request to appear fora p olygraph test the following day and the February 6 hearing were ambiguous

. Pri or to these events, in early January, Hill had been given both Miranda and Garrit y warnings. Th e Garrity warnings, administered by form before the January 10 meeting with the Professional Standards Unit, indicated that they were applicable for only that meeting.
Meanwhile, a criminal investigation was “ongoing” during this ent ire period. Hill state d in his deposition that he thought the request for the polygraph and the meetin g with Johnson were part of the criminal investigation. Hill’s belief was rea sonable in light of the fact that some of the same people were involved with both the-6-

criminal a nd administrative investigations, Hill witnessed communication between the parties involved in both investigations, and t he February 6 meeting was with the Sheriff who coul d reasonably have been expected to oversee both of the investigations tha t
were proceeding in his department. Viewing the evidence in the light most favorable to Hill, there can be no doubt that a reasonable juror could conclude that the polygraph test and meeting were part of the continuing crim inal investigation. Even assuming that the hearing was administrative, Hill could still not be constitutionally discharged fo r refusing to waive his Fifth Amendment rights in answering questions at the meeting.

The heart of my disagreement with the majority lies principally in its statement that a mere failure affirmatively to offer immunity is not an impermissible attempt t o
com pel a waiver under Uniformed Sanitation Men . Under this analysis, a publi c employer could discharge an employee for refusing to answer a question as lo ng as there was no explicit request for a waiver, irrespective of whether the employee knew of the natur e of the proceeding. I believe that this reading of the constitutional right s established in Uniformed Sanitation Men and Gardner is too narrow. See Gardner , 392 U.S. at 279 (“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.”).

As a pr actical matter, the majority’s analysis impermissibly leaves publi c employees such as Hill uninformed and guessing as to how their statements may b e used, what their constitutional rights are, and how to respond to ambiguous requests for stat ements, answers to questions, or a polygraph examination. I do not find this to be constitutionally allowable. See Benjamin v. City of Montgomery , 785 F.2d 959, 962 (11th C ir. 1986) (“[W]e cannot require public employees to speculate whether thei r statements will later be excluded under Garrity .”). This burden is particularly troubling in this case where Hill was still not given explic it immunity after he expressed concerns ab out the nature of the meeting and the polygraph examination and asked to have hi s law yer present. Absent a requirement that the employee’s rights be clearl y communicated, a public employer such as the Pulaski County Sheriff’s Office will be-7-

free to characterize any proceeding where it seeks to compel statements a s “adminis trative” after the employee has been fired, and avoid the rights of publi c employees laid out by the Supreme Court in Uniformed Sanitation Menand Gardner

.
Accordin gly, I would hold that, given the ambiguity surrounding the nature o f polygraph test and meeting and s ince Hill was not informed of his constitutional rights, defendants are unable to show, as a matter of law, that his discharge did not violate his clearly established Fifth Amendment rights. See Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation , 426 F.2d 619, 627 (2d Cir. 1970 ) ( Uniformed Sanitation Men II ) (h olding that discharge of public employee who refused to account for hi s performance was constitutional on ly where the employee had refused after being “duly
a d vised of his options and the consequences of his choice.”); Confederation of Police
v. Conlis k , 489 F.2d 891, 895 (7th Cir. 1973) (discharging policemen for refusing t o answer questions in an Internal Affairs Division meeting where they were not informed that any information they gave would not be used against them in criminal proceedings was clea rly unconstitutional under Uniformed Sanitation Men and Gardner ); Kalkines v. Un ited States , 473 F.2d 1391, 1393 (Ct. Cl 1973) (adopting procedures set forth in Uniformed Sanitation Men II ).

Ther efore, I would affirm the district court’s denial of defendant’s motion fo r
su mmaryjudgment. A jury should be given the chance to determine whethe r defenda nts’ actions were an attempt to compel a waiver of Hill’s Fifth Amendmen t pri vilege and if Hill was discharged for refusing to waive those rights. I therefor e respectfully dissent.
A true copy.

Attest.
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.