Employment Law Update: Eighth Circuit Concludes Kastigar Materials Not Shielded from Grand Jury Subpoena
The United States Court of Appeals for the Eighth Circuit recently affirmed a district court’s denial of a motion to quash a subpoena duces tecum, which required the Iowa Department of Public Safety (“IDPS”) to appear before a grand jury and provide documents related to an internal investigation of an Iowa State Patrol (“ISP”) officer’s misconduct or use of excessive force. In re Grand Jury Subpoena Dated August 14, 2019, No. 20-1404, 2020 WL 3955955 (8th Cir. 2020). The case is of great import to employment lawyers who work with law enforcement.
Upon its affirmation, the Eighth Circuit held that quashing the subpoena was not needed to protect IDPS employees’ Fifth Amendment privilege against self-incrimination since the privilege does not prohibit a grand jury from using compelled statements of other officers against the target of the investigation, but only applies to self-incrimination. Additionally, the district court did not abuse its discretion in deciding that IDPS failed to meet its substantial burden under Fed. R. Crim. P. 17(c)(2), which gave the court the right to quash a subpoena upon a finding that it gravely intruded on significant interests outside of the scope of a recognized privilege.
Background and Procedural History:
IDPS, which houses several different agencies, is tasked with conducting internal investigations and implementing an intervention program to prevent employee misconduct. An internal investigation was conducted by IDPS and the Professional Standards Bureau, an agency housed by IDPS and tasked with assisting IDPS in its investigations. On August 14, 2019, the United States District Court for the Southern District of Iowa issued a subpoena duces tecum to IDPS. The subpoena commanded IDPS to appear before a grand jury and provide documents in five different categories, all of which related to the ongoing internal investigation. In response, IDPS filed a motion to quash two of the five categories, citing to Fed. R. Crim. P. 17(c)(2), which the district court subsequently denied. The main issues on appeal are whether the officers’ Fifth Amendment privilege and the confidentiality of the internal investigation would be destroyed if the requested documents were produced.
The Eighth Circuit, upon its expedited review for abuse of discretion, first chose to address the Fifth Amendment argument, rejecting IDPS’s assertion that quashing the subpoena was needed to protect the Fifth Amendment rights of IDPS employees participating in internal investigations. Instead, the court noted that the government has every right to compel an officer to answer questions, but the Constitution is only violated when those compelled statements are used against the officer in a subsequent criminal proceeding. Additionally, citing to Kastigar v. United States, 406 U.S. 441 (1972), the court noted that if an officer in this situation is eventually indicted, they are entitled to a hearing in which the government has the burden of proving that the indictment was not based on the officer’s compelled statements or fruits thereof. This burden, known as the Kastigar prohibition, gives the government incentive to employ a “Garrity Screening Team” to remove any compelled statements of the target of the federal investigation before the subpoenaed material is given to the grand jury or prosecution team. In addition, when federal officials are barred from introducing both testimony and evidence derived from that testimony in a federal prosecution, the compelled statements of an employee do not present a danger of federal prosecution. Accordingly, the Fifth Amendment privilege does not prohibit a grand jury from using compelled statements of other officers against the target of an investigation, but only prohibits the use or derivative use of compelled statements and their fruits against the one making them.
Thereafter, the court discussed confidentiality, noting that the district court had discretion to quash a subpoena under Rule 17(c)(2) if IDPS had not shown that compliance with the challenged portions of the subpoena would be unreasonable or oppressive when balancing IDPS’s interest in confidentiality against the government’s interest in enforcement. IDPS’s concerns that a “blue wall of silence” may cause officers to be less than fully cooperative in investigations with fellow officers were too speculative. Thus, compliance with the federal grand jury subpoena would not gravely intrude on any IDPS internal investigation and is not unreasonable or oppressive when balanced against the government interests.
As a result, the Eighth Circuit affirmed the district court’s decision, holding that the Fifth Amendment was inapplicable to the subpoena at bar, and that the court did not abuse its Rule 17(c)(2) discretion in deciding to deny IDPS’s motion to quash.
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