                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                               _____________

                               No. 98-1431EA
                               _____________

J. D. Hill, Former member of the         *
Pulaski County Sheriff's Office, Pulaski *
County Regional Detention Facility,      *
                                         *
                    Appellee,            *
                                         *
       v.                                *
                                         *
Randy Johnson, Sheriff, Pulaski County; * Appeal from the United States
Danny Bradley, Member of the Pulaski * District Court for the Eastern
County Sheriff's Office; Carol Kimble, * District of Arkansas.
Member of the Pulaski County Sheriff's *
Office, Professional Standards Unit;     *
Michael Barkhurst, Member of the         *
Pulaski County Sheriff's Office; Lou     *
Hughes, Member of the Pulaski County *
Sheriff's Office,                        *
                                         *
                    Appellants.          *
                                  _____________

                         Submitted: September 22, 1998
                             Filed: November 16, 1998
                              _____________

Before McMILLIAN, HEANEY, and FAGG, Circuit Judges.
                          _____________

FAGG, Circuit Judge.
       After the photograph of a beaten detainee disappeared from the desk of
supervising officer J.D. Hill, the Pulaski County Sheriff’s office undertook an
investigation. During its course, Hill refused to answer questions about the incident
and failed to show up for a polygraph examination. Nevertheless, a fellow officer said
he had placed the photograph on Hill’s desk in Hill’s presence, and another said he had
disposed of the photograph at Hill’s direction. Following the thorough investigation
revealing Hill’s official misconduct, the Sheriff terminated Hill’s employment. Hill then
brought this civil rights action against the Sheriff and other office members alleging
they violated his Fifth Amendment and due process rights. The Sheriff and officers
moved for summary judgment on both the merits and the issue of qualified immunity.
The district court denied the motion, and the Sheriff and officers brought this
interlocutory appeal, see Collins v. Bellinghausen, 153 F.3d 591, 595 (8th Cir. 1998)
(denial of motion for summary judgment on basis of qualified immunity is immediately
appealable). We reverse.

       When reviewing the district court’s summary judgment decision, we examine the
record in the light most favorable to the opposing party and draw all reasonable
inferences in that party’s favor. See Burnham v. Ianni, 119 F.3d 668, 673 (8th Cir.
1997). “Qualified immunity shields government officials from suit unless their conduct
violates a clearly established constitutional or statutory right of which a reasonable
person would have known.” Id.

       Hill asserts the Sheriff violated his Fifth Amendment rights by discharging him
for refusing to answer questions at his last meeting with the Sheriff and for remaining
silent rather than obeying the Sheriff’s order to take a polygraph examination. Hill
asserts termination under these circumstances violated law that was clearly established
in Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation, 392 U.S. 280,
284 (1968) (holding discharge of public employees for refusal to testify about official
conduct on grounds of self-incrimination violated Fifth Amendment where employees
were threatened with termination if they invoked right against self-incrimination and

                                          -2-
were told their answers could be used against them in later criminal proceedings).
Examining the record in Hill’s favor, we conclude Hill has failed to allege the violation
of clearly established Fifth Amendment rights of which a reasonable person would have
known.

        “The [Fifth] Amendment not only protects the individual against being
involuntarily called as a witness against himself in a criminal prosecution but also
privileges him not to answer official questions put to him in any other proceeding, civil
or criminal, formal or informal, where the answers might incriminate him in future
criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). The Amendment
is violated when public employees are compelled to testify by employers who require
the employees to either incriminate themselves or to forfeit their jobs. See Garrity v.
New Jersey, 385 U.S. 493, 497-98 (1967); Uniformed Sanitation Men, 392 U.S. at
284. As long as a public employer does not demand that the public employee
relinquish the employee’s constitutional immunity from prosecution, however, the
employee can be required to either testify about performance of official duties or to
forfeit employment. See Uniformed Sanitation Men, 392 U.S. at 284; Gulden v.
McCorkle, 680 F.2d 1070, 1073-74 (5th Cir. 1982). Given “the important public
interest in securing from public employees an accounting of their public trust[,] [p]ublic
employees may constitutionally be discharged for refusing to answer potentially
incriminating questions concerning their official duties if they have not been required
to surrender their constitutional immunity.” Lefkowitz v. Cunningham, 431 U.S. 801,
806 (1977). The Fifth Amendment is violated only by the combined risks of both
compelling the employee to answer incriminating questions and compelling the
employee to waive immunity from the use of those answers. See Harrison v. Wille,
132 F.3d 679, 682 (11th Cir. 1998).

      Here, Hill was neither forced to answer incriminating questions under threat of
termination nor required to relinquish immunity from the use of his answers in criminal
proceedings. He did not face the choice of either forfeiting his job or making a

                                           -3-
statement that could be used to prosecute him. Contrary to Hill’s assertion, the only
reasonable inference from the record is that the meeting and the polygraph examination
were part of the Sheriff’s internal administrative investigation, not the criminal
investigation. Before the meeting, Hill received a “Notice of Consideration of
Disciplinary Action,” stating “suspension, demotion, or termination is being
considered.” The transcript of the last meeting shows the Sheriff said it was an
“administrative hearing, . . . not a criminal hearing,” and that it concerned “disciplinary
action.” Hill was also told the polygraph “would be . . . strictly for administrative
purposes only, not for any criminal purposes.” Even if Hill was not expressly told that
his answers at the meeting and polygraph examination could not be used against him
in the criminal prosecution, the mere failure affirmatively to offer immunity is not an
impermissible attempt to compel a waiver of immunity, see id. at 683; Gulden, 680
F.2d at 1075. Because Hill was not asked to waive his constitutional privilege against
self-incrimination to answer job-related questions, his dismissal for refusal to answer
does not violate that privilege. See Wiley v. Mayor & City Council, 48 F.3d 773, 777
(4th Cir. 1995); Gulden, 680 F.2d at 1074. As for the polygraph examination, it is
undisputed that Hill did not even show up, and discharging Hill for refusing to
participate at all did not violate his Fifth Amendment right against self-incrimination.
See Gulden, 680 F.2d at 1075-76.

       In sum, Hill failed to submit sufficient facts from which a reasonable jury could
conclude that he was compelled to waive his Fifth Amendment rights. Hill’s due
process claim fails because it depends on a Fifth Amendment privilege to refuse to
attend a polygraph as the basis for a protected property interest. Because the Sheriff’s
conduct did not violate a clearly established constitutional or statutory right of which
a reasonable person would have known, the Sheriff and the officers are entitled to
qualified immunity. We thus reverse the district court’s denial of summary judgment
on that ground.

HEANEY, Circuit Judge, dissenting.

                                           -4-
       Because Hill presented sufficient evidence to create a jury question as to whether
the Sheriff and other officers (defendants) violated his clearly established Fifth
Amendment rights of which a reasonable person would have known, I would affirm the
district court’s denial of defendants’ motion for summary judgment on the basis of
qualified immunity. I respectfully dissent.

       The law is clear that public employees may not constitutionally be discharged for
“refusal to expose themselves to criminal prosecution based on testimony which they
would give under compulsion, despite their constitutional privilege.” Uniformed
Sanitation Men Ass’n., Inc. v. Commissioner of Sanitation, 392 U.S. 280, 283 (1968);
see also Gardner v. Broderick, 392 U.S. 273, 279 (finding it unconstitutional to
discharge a police officer for refusing to waive his Fifth Amendment privilege). In this
case, a reasonable person in the defendants’ position would have known of this right,
and the fact that on one occasion Hill was advised of his Garrity rights shows that
defendants did know of Hill’s rights.

       I disagree with the majority that in viewing the evidence in the light most
favorable to Hill, the only reasonable inference is that the meeting and polygraph
examination were part of the Sheriff’s internal administrative investigation. Hill
presented evidence showing that the nature of the January 29, 1997 request to appear
for a polygraph test the following day and the February 6 hearing were ambiguous.
Prior to these events, in early January, Hill had been given both Miranda and Garrity
warnings. The Garrity warnings, administered by form before the January 10 meeting
with the Professional Standards Unit, indicated that they were applicable for only that
meeting.

       Meanwhile, a criminal investigation was “ongoing” during this entire period. Hill
stated in his deposition that he thought the request for the polygraph and the meeting
with Johnson were part of the criminal investigation. Hill’s belief was reasonable in light
of the fact that some of the same people were involved with both the

                                           -5-
criminal and administrative investigations, Hill witnessed communication between the
parties involved in both investigations, and the February 6 meeting was with the Sheriff
who could reasonably have been expected to oversee both of the investigations that
were proceeding in his department. Viewing the evidence in the light most favorable
to Hill, there can be no doubt that a reasonable juror could conclude that the polygraph
test and meeting were part of the continuing criminal investigation. Even assuming that
the hearing was administrative, Hill could still not be constitutionally discharged for
refusing to waive his Fifth Amendment rights in answering questions at the meeting.

       The heart of my disagreement with the majority lies principally in its statement
that a mere failure affirmatively to offer immunity is not an impermissible attempt to
compel a waiver under Uniformed Sanitation Men. Under this analysis, a public
employer could discharge an employee for refusing to answer a question as long as there
was no explicit request for a waiver, irrespective of whether the employee knew of the
nature of the proceeding. I believe that this reading of the constitutional rights
established in Uniformed Sanitation Men and Gardner is too narrow. See Gardner, 392
U.S. at 279 (“Petitioner could not have assumed--and certainly he was not required to
assume--that he was being asked to do an idle act of no legal effect.”).

        As a practical matter, the majority’s analysis impermissibly leaves public
employees such as Hill uninformed and guessing as to how their statements may be
used, what their constitutional rights are, and how to respond to ambiguous requests for
statements, answers to questions, or a polygraph examination. I do not find this to be
constitutionally allowable. See Benjamin v. City of Montgomery, 785 F.2d 959, 962
(11th Cir. 1986) (“[W]e cannot require public employees to speculate whether their
statements will later be excluded under Garrity.”). This burden is particularly troubling
in this case where Hill was still not given explicit immunity after he expressed concerns
about the nature of the meeting and the polygraph examination and asked to have his
lawyer present. Absent a requirement that the employee’s rights be clearly
communicated, a public employer such as the Pulaski County Sheriff’s Office will be

                                          -6-
free to characterize any proceeding where it seeks to compel statements as
“administrative” after the employee has been fired, and avoid the rights of public
employees laid out by the Supreme Court in Uniformed Sanitation Men and Gardner.

       Accordingly, I would hold that, given the ambiguity surrounding the nature of
polygraph test and meeting and since Hill was not informed of his constitutional rights,
defendants are unable to show, as a matter of law, that his discharge did not violate his
clearly established Fifth Amendment rights. See Uniformed Sanitation Men Ass’n, Inc.
v. Commissioner of Sanitation, 426 F.2d 619, 627 (2d Cir. 1970) (Uniformed Sanitation
Men II) (holding that discharge of public employee who refused to account for his
performance was constitutional only where the employee had refused after being “duly
advised of his options and the consequences of his choice.”); Confederation of Police
v. Conlisk, 489 F.2d 891, 895 (7th Cir. 1973) (discharging policemen for refusing to
answer questions in an Internal Affairs Division meeting where they were not informed
that any information they gave would not be used against them in criminal proceedings
was clearly unconstitutional under Uniformed Sanitation Men and Gardner); Kalkines
v. United States, 473 F.2d 1391, 1393 (Ct. Cl 1973) (adopting procedures set forth in
Uniformed Sanitation Men II).

      Therefore, I would affirm the district court’s denial of defendant’s motion for
summary judgment. A jury should be given the chance to determine whether
defendants’ actions were an attempt to compel a waiver of Hill’s Fifth Amendment
privilege and if Hill was discharged for refusing to waive those rights. I therefore
respectfully dissent.

      A true copy.

             Attest.

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

                                          -7-
