The U.S. Supreme Court will hear arguments Feb. 20 in an appeal by the city of Hays in a federal civil rights case filed against the city by a former police officer.
At question is whether statements made by Matthew Vogt in an internal Hays Police Department investigation that were later used in a criminal case against him violates the Fifth Amendment’s protection against self-incrimination.
Because the case addresses similar claims in federal prosecutions, U.S. Solicitor General Noel Francisco filed a motion, which was granted, to participate in the argument.
In briefs filed with the Supreme Court, both the city and federal government argue a compelled statement violates the Fifth Amendment only if the statement is used to determine a person’s guilt — that no person should become a “witness against himself.”
Both argue that is not the case with Vogt, because his statements in the HPD investigation were used in a preliminary hearing, whose purpose is to determine if there is sufficient evidence to proceed with a trial.
Vogt’s attorneys, in their response, argue because the preliminary hearing is part of a criminal case, the Fifth Amendment does apply.
“A defendant is just as much a ‘witness against himself’ when his compelled, incriminating and testimonial statement is admitted as evidence of his guilt in an in-court probable cause hearing as he would be if it were admitted at a subsequent trial,” they wrote.
Vogt was working as an officer for the Hays Police Department in 2013 when, during a job interview with the Haysville Police Department, he disclosed he kept a knife obtained while working for HPD. The Haysville department offered Vogt a job contingent on returning the knife to the Hays police.
Vogt returned the knife, and Hays Police Chief Don Scheibler opened an internal affairs investigation to determine if Vogt had violated department policy. Vogt gave a statement about the knife, then gave his two weeks notice, according to court documents.
HPD asked Vogt for a more detailed statement, which Vogt provided. Scheibler then ended the internal investigation and turned the information over to the Kansas Bureau of Investigation.
Vogt was charged with two felony criminal charges, and Haysville withdrew its job offer.
The statements Vogt made in the Hays police internal investigation were used in his preliminary hearing. However, the judge dismissed the charges, citing a lack of probable cause to proceed.
Vogt sued the city, the city of Haysville and four officers of both police departments in U.S. District Court. He claimed, according to the city’s petition, that by threatening to terminate his job if he did not provide additional information about the knife, he was compelled to make incriminating statements that were then used in the preliminary hearing. The district court dismissed the case.
Vogt appealed the dismissal to the Denver-based 10th Circuit Court of Appeals, which affirmed the dismissal of claims against Haysville and the four individual officers, but concluded he had a valid claim against the city of Hays for violating the Fifth Amendment.
The U.S. Supreme Court agreed to hear the case in September. Because Justice Neil Gorsuch sat on the 10th Circuit prior to his Supreme Court appointment, he has recused himself from the case.