Robert Ethan Saylor and the Garrity Precedent

by Tim Lynch
Feb. 21, 2013

Ethan Saylor had Down syndrome. He was in a movie theatre and Zero Dark Thirty had just ended. Saylor wanted to watch the film all over again. A theatre employee said he either had to buy another ticket or leave. When Saylor didn’t budge, they called security, which turned out to be some off-duty sheriff’s deputies working security in the mall. The deputies claim Saylor resisted arrest and died while being restrained. The coroner has now ruled Saylor’s death a homicide.

According to a story in today’s Washington Post, Saylor idolized the police and loved to watch police TV shows. Here’s an excerpt:
When Foss learned of Saylor’s death, he said, he informed about 60 members of the church that night. The following Sunday, they brought bouquets to fill Saylor’s empty chair. The flowers overflowed onto the floor and an adjoining seat.

Cam Overs has a son Saylor’s age and has been friends with his family for 30 years. He remembered how Saylor would run curiously toward whatever caught his eye and was a pro at hide and seek because he had the endurance to stay in the same spot until he was found.

Saylor would get breakfast with Overs every Sunday at McDonald’s. Both scoffed at change, and so their orders were always the same: a No. 1 for Overs and a No. 7 for Saylor.

“Now I don’t have my buddy for breakfast every Sunday morning,” Overs said. “There’s a void that nobody expected.”

Overs said Saylor knew how to spell “satellite” because of his fascination with satellite photos and was thrilled when Overs’s son Jonathan, who is in the military, brought him a Kevlar vest. Overs said Saylor didn’t understand that he could call a non-emergency number for the police and dialed 911 so often that he was known to members of the law enforcement community.

On the day of Saylor’s funeral, two law enforcement officers sent a text that was read aloud; it said they, too, would miss him.

“What a fitting memorial it would be if a training module was created in his name,” Overs said, “so no other family or police force would have to suffer this pain.”
A spokeswoman for the Sheriff’s office says “We’re taking it very seriously.” The deputies involved in the incident, however, have thus far declined to speak with investigators.

One would think that such noncooperation would be unacceptable under the circumstances. Can’t the Sheriff call them in and say, “A young man lost his life in your custody. I want to know what happened and why. If you decline to answer, surrender your badge and gun.”

That sounds like a sensible response to me, but the law is perverted. There is a Supreme Court precedent on the books by the name of Garrity v. New Jersey–and that case says the above procedure would violate a police officer’s right against self-incrimination. The reasoning was lousy. If the officers accused of wrongdoing want to remain silent and speak to a lawyer–that is their right, just the same as everyone else. What they cannot do is remain silent and also demand to keep exercising police powers in the community. If the police commanders determine that a sworn officer’s conduct is egregious or criminal, the culprit should be given his walking papers.

Garrity is an obstacle to police accountability and should be overturned. In 1967, the year it was decided, four Supreme Court justices thought it was a mistake. Here is an excerpt from their dissenting opinion:
It can hardly be denied that New Jersey is permitted by the Constitution to establish reasonable qualifications and standards of conduct for its public employees. Nor can it be said that it is arbitrary or unreasonable for New Jersey to insist that its employees furnish the appropriate authorities with information pertinent to their employment. Cf. Beilan v. Board of Education, 357 U.S. 399 ; Slochower v. Board of Education, 350 U.S. 551 . Finally, it is surely plain that New Jersey may in particular require its employees to assist in the prevention and detection of unlawful activities by officers of the state government. The urgency of these requirements is the more obvious here, where the conduct in question is that of officials directly entrusted with the administration of justice. The importance for our systems of justice [385 U.S. 493, 508] of the integrity of local police forces can scarcely be exaggerated. Thus, it need only be recalled that this Court itself has often intervened in state criminal prosecutions precisely on the ground that this might encourage high standards of police behavior. See, e. g., Ashcraft v. Tennessee, 322 U.S. 143 ; Miranda v. Arizona, supra. It must be concluded, therefore, that the sanction at issue here is reasonably calculated to serve the most basic interests of the citizens of New Jersey.
Garrity came down in the heyday of the liberal Warren Court. Today’s Supreme Court is much more conservative–and it is highly doubtful that Justice William O. Douglas’s fanciful interpretation of the self-incrimination clause would find the support of five justices. Here’s the thing: In order to get the Supreme Court to reconsider Garrity, the precedent has to be challenged. Right now, police chiefs around the country abide the current rule with a shrug, “Can’t do anything about this situation.”

What we need is a good test case. Maybe this Saylor incident is the case, maybe it isn’t. But where the evidence of police wrongdoing is strong and the culprits invoke their “Garrity rights” and decline to tell investigators what happened, we need a police chief to fire them. Let the discharged officers appeal their case to the Supreme Court so that the justices can overturn Garrity.

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