Kirk Homoky v. Jeremy Ogden
816 F.3d 448
7th Cir.2016Background
- Hobart PD placed Officer Kurt Homoky under administrative investigation and ordered him to submit to a voice stress (polygraph-type) test; refusal could lead to dismissal.
- The department told Homoky the investigation was administrative and that Garrity protections applied (statements and fruits of statements could not be used in criminal proceedings); Homoky signed a statement of rights reflecting that protection.
- At the testing site, Porter County Sgt. Manteuffel asked Homoky to sign a release stating he submitted voluntarily; Homoky refused to sign and declined the test after consulting his attorney.
- Chief White placed Homoky on administrative leave for insubordination, initiated termination proceedings, later dismissed the insubordination charge, reassigned Homoky to menial duties, and a news outlet published that Homoky was insubordinate.
- Homoky sued under 42 U.S.C. § 1983 alleging Fourteenth Amendment violations (compelled waiver/self-incrimination and stigma-plus due process) and state abuse of process; the district court granted summary judgment to defendants; Homoky appeals only the Fourteenth Amendment rulings as to White, Ogden, and Cisezweski.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants coerced Homoky to waive his Fifth Amendment/Garrity protection by forcing him to sign the release under threat of job loss | Forcing Homoky to sign would have waived Garrity/Fifth protections and was coercive because his only realistic alternative was job loss | The department had already advised Garrity protections; compelling answers with Garrity in place is lawful; Homoky never gave any statements or waived protection | No constitutional violation; Homoky produced no compelled statements and was protected by Garrity, so compelling cooperation (or facing discipline) was permissible |
| Whether refusing to allow alteration of the word "voluntarily" in the release created a triable coercion issue | The unalterable “voluntarily” term mischaracterized his compelled status and sought to eliminate protections; refusal to permit alteration was coercive | Disallowing strike-through is immaterial because Garrity protection was in effect and he still refused the order to take the test | Not material to outcome; no triable issue because he declined the test despite Garrity protection |
| Whether Homoky preserved and can pursue a stigma-plus due process claim | White’s public statements and initiation of termination damaged reputation and deprived property interest in employment (stigma plus loss of job) | Plaintiff failed to raise stigma-plus theory below; claim was not presented to district court | Waived on appeal; court will not consider the stigma-plus argument |
Key Cases Cited
- Garrity v. New Jersey, 385 U.S. 493 (protects public employees from use of compelled statements in subsequent criminal prosecutions)
- Gardner v. Broderick, 392 U.S. 273 (public employees may be compelled to answer about official duties if statements are immunized from criminal use)
- Lefkowitz v. Turley, 414 U.S. 70 (employer may require answers under immunity or discharge employee who refuses)
- Driebel v. City of Milwaukee, 298 F.3d 622 (Seventh Circuit interpreting Garrity and related precedent)
- Atwell v. Lisle Park Dist., 286 F.3d 987 (no duty to warn before specific questioning; consequences for refusing to cooperate)
- Riggins v. Walter, 279 F.3d 422 (refusal to take polygraph without more did not violate privilege against self-incrimination)
- Brown v. City of Mich. City, Ind., 462 F.3d 720 (stigma-plus due process framework)