In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 14-3788 

KIRK HOMOKY, 

Plaintiff-Appellant, 

v.

JEREMY OGDEN, et al., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Indiana, Hammond Division 

No. 12 CV 491 — Theresa L. Springmann, Judge

____________________ 

ARGUED SEPTEMBER 16, 2015 — DECIDED FEBRUARY 24, 2016 

____________________ 

Before POSNER, EASTERBROOK, and WILLIAMS, Circuit Judges. 

WILLIAMS, Circuit Judge. Police Officer Kirk Homoky was 

under investigation by the Hobart Police Department for officer misconduct. As part of the investigation, he was ordered to submit to a voice stress test, a type of lie detector 
2 No. 14-3788 

test, and if he did not he would be subject to dismissal. 

Homoky refused to sign a release form because his participation was not voluntary, and he was charged with insubordination and placed on administrative leave. He claims that by 

forcing him to sign the release form under threat of dismissal, he was giving up his right against self-incrimination in 

violation of the Constitution. We disagree. The department 

informed him that any statement made would not be used 

against him in a criminal proceeding, so it was free to compel him to answer any question, even incriminating ones. 

For the first time on appeal, Homoky also asserts a stigmaplus due process claim. Because it was not presented to the 

district court, Homoky waived this argument, and we will 

not review its merits. 

I. BACKGROUND 

In October 2012, the Hobart Police Department notified 

Police Officer Kurt Homoky that he was under an internal 

investigation by the department. This investigation involved 

various complaints of wrongdoing while performing his 

professional duties, including improper conduct at a traffic 

stop. 

On November 13, 2012, Homoky received a letter from 

the Hobart Deputy Chief of Police requiring him to report to 

the Porter County Sheriff’s Department for a voice stress test 

on November 19, 2012. The department’s letter stated that 

the investigation was an administrative investigation, not a 

criminal one. The letter also advised Homoky that he was 

“afforded protection of the Garrity Rule.” The Garrity rule 

states that incriminating answers given during any examination of a public employee during an internal investigation of 

the employee’s official conduct cannot be used against him 
No. 14-3788 3

in any subsequent criminal proceeding. See Garrity v. New 

Jersey, 385 U.S. 493, 500 (1967). 

On November 15, 2012, Homoky received and signed his 

statement of rights, which included an acknowledgment that 

any statements made during the investigation, or fruits of 

those statements, could not be used against Homoky in a 

subsequent criminal proceeding. It also reminded him that 

he was ordered to cooperate and warned that refusal to answer questions would subject him to dismissal. 

On the day of the voice stress test, Homoky arrived at the 

Porter County Sheriff’s station. Hobart Police Detectives Jeremy Ogden and Garrett Cisezweski were present at the station in the room next door to the examination room but were 

not administering the voice stress test. Porter County Sheriff’s Department Sergeant Tim Manteuffel was to administer 

the test. Manteuffel instructed Homoky to sign a release 

form that released the Porter Country Sherriff’s Department 

from liability and stated that Homoky “voluntarily, without 

duress, coercion, promise, reward or immunity” submitted 

to the examination. Homoky expressed concern about signing the document because he was not there voluntarily. 

Homoky then spoke on the phone to his attorney, and then 

repeated to Manteuffel that he could not sign the form. 

Homoky insisted that he was not there voluntarily and 

would not promise that he would not sue. Appellees claim 

that Manteuffel offered to cross out the term “voluntarily,” 

but Homoky still refused to sign the form. However, 

Homoky contends that he was never given that option and 

that he asked Manteuffel to cross out that word, but Manteuffel stated that he could not. Cisezweski entered the room 

and told Homoky to sign the form. Ogden remained in the 
4 No. 14-3788 

room next door, but Homoky was aware of his presence at 

the station. Homoky refused to sign the form and did not 

take the voice stress test. 

Later that same day, Hobart Police Chief Jeffrey White 

notified Homoky that he was on unpaid administrative 

leave for insubordination because of his refusal to take the 

voice stress test and that White had begun the process of 

terminating Homoky. White ordered Homoky to relinquish 

his Department property, including his gun and badge. 

The next day, White served Homoky with written notice 

of the charges. The notice stated that White would be presenting formal charges against Homoky to the City of Hobart Board of Public Works and Safety on November 21, 

2012. White also served a letter to the Board, and copied 

Homoky’s attorney, stating that he would seek to terminate 

Homoky’s employment. In response, Homoky’s attorney 

sent the Board a document complaining about the lack of 

reasonable notice and due process and requested a hearing. 

On November 21, 2012, the Board held its regular meeting. It changed Homoky’s administrative leave from unpaid 

to paid and set a hearing on Homoky’s termination for January 23, 2013. The Board also instructed the Hobart City Attorney to provide notice to Homoky and his counsel of the 

hearing and of Homoky’s rights. Five days after the meeting, 

a news outlet quoted White as stating that Homoky was insubordinate. 

A little over a week after the board meeting, Homoky’s 

attorney notified the Hobart City Attorney that the January 

23, 2013 hearing was not within thirty days of his November 

20, 2012 request for a hearing, as required by Indiana Code 
No. 14-3788 5

§34-8-3-4(c). On December 3, 2012, the Hobart City Attorney 

notified Homoky’s attorney that the evidentiary hearing was 

rescheduled from January 23, 2013 to December 13, 2012, 

which was within the thirty-day period. However, on December 5, 2012, White moved to dismiss the insubordination 

charges against Homoky. The Board granted White’s motion 

to dismiss and struck the December 13, 2012 hearing date. 

Also, on December 5, 2012, White sent Homoky a letter 

stating that Homoky was to dress down and report to work 

on December 7, 2012. Homoky was assigned to garage duty, 

which included scrubbing toilets. The garage duty continued 

until January 25, 2013 when Homoky was ordered to report 

for modified uniform duties, which included fingerprinting 

and checking vehicle identification numbers. 

Meanwhile, Homoky had filed his complaint in this case 

on November 26, 2012 against the Board, Chief White, and 

Detectives Ogden and Cisezweski alleging violations of his 

First and Fourteenth Amendment rights pursuant to 42 

U.S.C. § 1983 and abuse of process under state law. Each defendant moved for summary judgment. The district court 

granted summary judgment in favor of all defendants finding no constitutional violation. Homoky does not appeal the 

grant of summary judgment in favor of the Board and the 

judgment in favor of the defendants on the First Amendment claims. He only challenges the grant of summary 

judgment in favor of White, Ogden, and Cisezweski as to the 

Fourteenth Amendment claims. 

II. ANALYSIS 

On appeal, Homoky argues that the district court erred 

by granting Ogden’s, Cisezweski’s, and White’s motions for 
6 No. 14-3788 

summary judgment as to his Fourteenth Amendment claims. 

Specifically, Homoky maintains that the attempts to force 

him to sign the release were attempts to compel Homoky to 

waive his privilege against self-incrimination and remove his 

Garrity protection. He contends that their actions were coercive in violation of the Fourteenth Amendment because he 

only had a choice between signing the unaltered release—

which would have waived his right against selfincrimination, permitting his answers to be used against him 

in any subsequent criminal proceedings—or losing his job. 

He also argues that he suffered a constitutional violation 

under a stigma-plus due process theory. We review the district court’s decision granting summary judgment de novo

and construe all facts in favor of Homoky. Sorensen v. WD-40 

Co., 792 F.3d 712, 722 (7th Cir. 2015). “Summary judgment 

was appropriate if, on the evidence presented, no reasonable 

juror could return a verdict in [Homoky’s] favor.” Id.

Since Homoky brought his claims pursuant to 42 U.S.C 

§ 1983, to survive summary judgment, he must present sufficient evidence to create a genuine dispute of material fact 

that a constitutional deprivation occurred. See Delapaz v. 

Richardson, 634 F.3d 895, 899 (7th Cir. 2011). There are two 

relevant constitutional provisions. Under the Fourteenth 

Amendment, statements that the government compelled a 

public employee to give by the threat of job loss are coerced 

and cannot be used in any subsequent criminal proceeding. 

Garrity v. New Jersey, 385 U.S. 493, 500 (1967). Under the Fifth 

Amendment, which applies to a state actor through the 

Fourteenth Amendment, a state actor cannot usually compel 

a person to testify if the testimony would incriminate the 

person. See U.S. Const. amend. V; see also Lefkowitz v. Turley, 

414 U.S. 70, 73, 77 (1973). However, a public employee may 
No. 14-3788 7

be compelled to answer questions in a formal or informal 

proceeding investigating allegations of misconduct, even if 

the answers are incriminating, so long as the state does not 

use the statements in any subsequent criminal proceeding. 

See Gardner v. Broderick, 392 U.S. 273, 276 (1968); see also 

Turley, 414 U.S. at 77; Lefkowitz v. Cunningham, 431 U.S. 801, 

806 (1977) (“Public employees may constitutionally be discharged for refusing to answer potentially incriminating 

questions concerning their official duties if they have not 

been required to surrender their constitutional immunity.”);

Driebel v. City of Milwaukee, 298 F.3d 622, 638 n.8 (7th Cir. 

2002) (interpreting Garrity and its progeny). Disciplinary action may not be taken against the public employee for his 

refusal to give a statement, unless he is first advised of his 

Garrity protection that evidence obtained as a result of his 

testimony will not be used against him in subsequent criminal proceedings. See United States v. Devitt, 499 F.2d 135, 141 

(7th Cir. 1974). 

Homoky’s claim fails because no constitutional violation 

occurred. 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. So there was no violation of the Fourteenth 

Amendment’s prohibition against the use of coerced statements. 

There was also no Fifth Amendment violation because 

his employer compelled him to testify with Garrity protections in place. See Gardner, 392 U.S. at 278 (holding that a policeman, who has not waived his Garrity protection but refuses to answer specific questions about his official duties, 
8 No. 14-3788 

may not shield himself from dismissal by the privilege 

against self-incrimination). Homoky argues: 

The attempts to cause [Homoky]—over his repeated 

protests—to sign [the release form], in which if 

[Homoky] had waived as was sought, he would have attested to [the] voluntariness of [his] participation in the 

test[] and would have attested that the statements were 

given without coercion and duress. [Homoky] contends 

the action to cause [him] to sign the form was an attempt 

to force [Homoky] to waive his Fifth Amendment right 

not to incriminate himself as well as to obviate the [Garrity] warnings he had been previously given. 

Appellant’s Br. 14. The heart of the constitutional violation 

alleged is that the government cannot compel its employee 

to make incriminating disclosures and provide no protection 

against the use of the disclosures in any future criminal proceeding. See Turley, 414 U.S. at 84. Given protection against 

the use of the incriminating statements or the fruit of the 

statements, however, “the [government] may plainly insist 

that employees either answer questions under oath about the 

performance of their job or suffer” job loss. See Turley, 414 

U.S. at 84. Homoky’s circumstances indicate that he was ordered to cooperate with the investigation and take the voice stress 

test. The evidence does not show a genuine dispute of material fact as to whether he was compelled to waive his Fifth 

Amendment right. Homoky signed a statement of rights acknowledging that nothing he said in the course of the investigation could be used against him in a criminal proceeding. 

Pursuant to the investigation, he went to take the voice stress 

test. When he objected to signing the release at the voice 

stress test, he complained that he did not want to sign the 

release for two reasons: (1) the release stated he was there 

voluntarily, which he says was untrue because he was there 
No. 14-3788 9

on White’s orders;1 and (2) he did not want to promise not 

to sue Porter County’s Sheriff’s Department. These facts do 

not create a triable issue regarding whether the government 

compelled him to give statements without Garrity protection. 

He acknowledged that he was advised of his Garrity protection in the days leading to the test. His argument regarding 

the voluntariness of submitting to the voice stress test fails 

because under Garrity and Gardner, the police department 

could compel Homoky to take the voice stress test and answer questions. So there was no constitutional violation. See 

Turley, 414 U.S. at 84; see also Driebel, 298 F.3d at 639 (finding 

“if an officer declines to cooperate with an investigation ... 

he exposes himself to the same potential consequences [of 

work-related discipline or termination] as an employee in 

the private sphere”); Atwell v. Lisle Park Dist., 286 F.3d 987, 

991 (7th Cir. 2002) (“[T]here can be no duty to warn [about 

Garrity protection] until the employee is asked specific questions. The [government] employee has no right to skip the 

interview merely because he has reason to think he’ll be 

asked questions the answers to which might be incriminating. He may be asked other questions as well. Or he may be 

told that he can take the Fifth without repercussions. Or that 

the interviewer will merely draw an adverse inference from 

the employee’s taking the Fifth ... .”); Riggins v. Walter, 279 

F.3d 422, 430–31 (7th Cir. 1995) (noting that the relationship 

between a public employee and her employer is similar to a 

prisoner and the prison disciplinary committee and finding 

 1 Again, he only argues that he did not want to sign the release form 

because it stated that he was taking the voice stress test voluntarily and 

without coercion or duress. He did not argue that the release’s use of the 

word “immunity” waived his Garrity protection. 
10 No. 14-3788 

that the prison disciplinary committee’s act of punishing a 

prisoner for refusal to take a polygraph examination, without more, did not to violate the prisoner’s privilege against 

self-incrimination). 

In sum, a police department may, without violating the 

Constitution, compel a police officer to answer incriminating 

questions and prohibit him from invoking his Fifth Amendment right when it warns the officer that it will not use the 

information gained in any future criminal prosecution. 

Gardner, 392 U.S. at 276; see also Atwell, 286 F.3d at 990. The 

practice is unconstitutional when the police department fails 

to tell the officer that it will not use the information in a subsequent criminal prosecution, a mistake that the police department did not make here. See id.

Furthermore, none of the other factual disputes are material. For example, whether Homoky was allowed to strike 

out “voluntarily” does not affect the outcome of the case. 

Homoky refused to obey the order to submit to the voice 

stress test, even though he was under Garrity protection. 

When he failed to obey that order, he was charged with insubordination. Homoky’s claim that he was completely cooperating with the investigation fails because he acknowledges that he refused to comply with the order to take the 

voice stress test. He has no constitutional right to avoid being charged with insubordination under these facts. See 

Gardner, 392 U.S. at 278. 

Homoky brought a separate due process claim against 

White only. We do not reach the merits of this claim because 

Homoky did not raise the argument that he raises on appeal 

before the district court. Before the district court, Homoky 

claimed that White deprived him of a property interest 
No. 14-3788 11

without due process by suspending him without pay and 

attempting to terminate him without providing him timely 

notice of the termination hearing and an opportunity to be 

heard. Now on appeal, Homoky abandons that argument 

and raises his due process claim against White as a stigmaplus due process claim. A stigma-plus due process claim 

arises when defamatory statements by the government alter 

or extinguish a right or status previously recognized by state 

law, like when “an employee’s good name, reputation, honor, or integrity [is] called into question in a manner that 

ma[kes] it virtually impossible for the employee to find new 

employment in his chosen field.” Brown v. City of Mich. City, 

Ind., 462 F.3d 720, 730 (7th Cir. 2006). Under the stigma-plus 

theory, Homoky contends that White deprived him of his 

property interest of continued employment as a police officer and damaged his reputation. We find that Homoky did 

not raise this argument in his opposition to the motions for 

summary judgment. Homoky seems to recognize this and 

asserts that he raised the argument generally as reputational 

damage. However, “a party waives the ability to make a specific argument for the first time on appeal when the party 

failed to present that specific argument to the district court, 

even though the issue may have been before the district 

court in more general terms.” Hannemann v. S. Door Cty. Sch. 

Dist., 673 F.3d 746, 754 (7th Cir. 2012). Even liberally construing Homoky’s arguments before the district court, we do not 

find a stigma-plus due process violation argument. So, we 

find that Homoky waived his stigma-plus argument since he 

raised it for the first time on appeal. 

III. CONCLUSION 

The judgment of the district court is AFFIRMED.