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Your Fifth or Your Job?

Does a city violate its employee's procedural due process rights when it requires him to choose between asserting his right against compelled self-incrimination, or continuing his employment with the city?  Yes, held a unanimous three-judge panel in Franklin v. City of Evanston, No. 99 C 8252, (7th Cir., Sept. 27, 2004) Applying Atwell v. Lisle Park Dist., 286 F.3d 987 (7th Cir. 2002), the panel held that a city cannot compel one of its employees to answer questions regarding a pending criminal case unless it both gives the employee use immunity and tells him that because he is being granted use immunity, a failure to answer questions will be held against him.

Edward Franklin was arrested for possession of a small amount of marijuana (a misdemeanor offense).  He was a city employee, but the arrest occured while he was off-duty.  The small hick newspaper, having nothing better to cover, put the arrest in "The Police Blotter."  A busybody co-worker, who is probably a big loser with no life prospects or any friends, showed the newspaper to Franklin's boss.

Boss called Franklin into a meeting and asked him whether the charges were true.  Franklin said he would not talk about his situation while the criminal charges were pending.  The city suspended Franklin without pay, pending its own investigation.

City officials then held an ex parte meeting where they determined that Franklin should have his ability to earn a living jeopardized because he was arrested for non-violent offense.  Pursuant to a collective bargaining agreement, Franklin was accompanied by a union representative for a full pre-termination hearing. 

City officials questioned him about his arrest.  Franklin said he would not answer any questions that could jeopardize his criminal case, but that if they continued the meeting, he would answer any questions after his criminal case was resolved.  The city said "No," and fired him. 

Franklin sued the city under section 1983, alleging, among other things, a violation of his procedural due process rights. [His other claims were very weak and thus promptly rejected by the court].  He alleged that since a formal review board fired him, it was a final policymaker for the city on this issue.  As such, it was liable under Monnell.

The court quickly disposed of the city's argument that it did not violate Franklin's PDP rights.  Since Franklin " was [ ] effectively forced to choose between his job and his Fifth Amendment rights, and this was an impermissible violation of his Fourteenth Amendment right to procedural due process."  Slip op. at *8.

Our concern is that in determining that Franklin had violated a City policy, the City did not provide him with a meaningful opportunity, as required by Atwell, to present his side of the story without fear of impairing his criminal defense. This was a violation of Franklin’s right to procedural due process. Because it occurred pursuant to an express City policy that skirted the need for Atwell warnings, the City is liable for a violation of § 1983.

Id. at *15-16.

(Panel: Cudahy, writing for Posner and Rovner).