Topic: What Security Offices Need to Know About Garrity Rights

Speaker: Beau Barnes, United States Department of Justice

Beau Barnes is a Trial Attorney in the Counterintelligence and Export Control Section, National Security Division of the U.S. Department of Justice. In this position, he investigates and prosecutes espionage, export control, sanctions, malign foreign influence, and cyber intrusion matters, among others. Prior to his current position, Beau was in private practice at two separate international law firms in Washington, DC, where he represented individuals and companies facing government investigations, prosecutions, and regulatory enforcement actions related to national security, fraud and corruption, and privacy and cybersecurity issues. Beau previously served as a law clerk in the U.S. District Court for the District of Massachusetts. Beau is a graduate of Boston University Law School, the Fletcher School of Law & Diplomacy at Tufts University, and Lewis & Clark College.

Garrity Rights protect public employees from being compelled to incriminate themselves during investigatory interviews conducted by their employers. This protection stems from the 5th Amendment to the United States Constitution, which declares that the government cannot compel a person to be a witness against him/herself.

For a public employee, the employer is the government itself. When questioned by their employer, they are being questioned by the government. Therefore, the Fifth Amendment applies to that interrogation if it is related to potentially criminal conduct.

Garrity Rights stem not just from the Fifth Amendment, but also the 14th Amendment. While the Fifth Amendment could be said to apply only to the federal government, the “equal protection” clause of the Fourteenth Amendment makes the Fifth Amendment applicable to state, county, and municipal governments as well (determined by the United States Supreme Court in 1964’s Malloy v. Hogan)

Garrity Rights originate from a 1967 United States Supreme Court decision, Garrity v. New Jersey.

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