Fifth Amendment privilege may not be prohibited penalty if defendant's silence weighed in light of the evidence shows that plaintiff deserves judgment).
The penalties that the Supreme Court has held may not be meted out in return for asserting the Fifth Amendment privilege include the loss of a job, loss of state contracts, loss of future contracting privileges with the state, loss of political office, and loss of the right to run for political office in the future. See Spevack v. Klein, supra, 385 U.S. at 514-19 (attorney may not be disbarred for exercising Fifth Amendment privilege); Gardner v. Broderick, 392 U.S. 273, 278-79, 20 L. Ed. 2d 1082, 88 S. Ct. 1913 (1968) (public employees may not be forced to choose between termination from employment and self-incrimination); Lefkowitz v. Turley, 414 U.S. 70, 95, 38 L. Ed. 2d 274, 94 S. Ct. 316 (1973) (architects may not be forced to choose between loss of state contracts and self-incrimination); Lefkowitz v. Cunningham, supra, 431 U.S. at 804-09 (political party officer may not be required to decide between loss of office and five-year bar on holding another office on the one hand and self-incrimination on the other hand); Garrity v. New Jersey, 385 U.S. 493, 500, 17 L. Ed. 2d 562, 87 S. Ct. 616 (1967) (statements obtained under threat of discharge from employment could not be used in subsequent criminal proceedings).
Mr. Chan claims violation of a constitutional right by alleging that he was substantially penalized in return for asserting the Fifth Amendment privilege. However, Mr. Chan was not suspended or terminated from his position as a police officer with the CPD. He was transferred out of the Task Force and the Intelligence Section. In 1989, i.e., the year that Mr. Chan was transferred, whether a transfer could violate an individual's rights under the Fifth Amendment was questionable. See FOP, Lodge No. 5 v. City of Philadelphia, 859 F.2d 276, 282 n.10 (3rd Cir. 1988) ("The FOP has not cited a single case in the employment context in which any consequence short of suspension or dismissal from employment has been held to constitute compulsion for fifth amendment purposes. We have searched and found none ourselves.").
In resolving the defendants' motion for summary judgment, I did not grant Mr. Wodnicki's request for qualified immunity because I found that the evidence before the court created a jury question as to the extent of Mr. Chan's pecuniary injury. See Chan v. City of Chicago, supra, No. 91 C 4671, 1995 U.S. Dist. LEXIS 10191, 1995 WL 431238 at *3. "Although the qualified immunity determination is a legal question it is not answered in the abstract but in reference to the particular facts of the case." Eversole v. Steele, 59 F.3d 710, 717 n.8 (7th Cir. 1995). I concluded that even if Mr. Chan had not lost his job, if his loss of income was great, it might be considered so substantial a penalty that Mr. Wodnicki could be charged with knowing that it could result in compulsion.
Following trial, the jury awarded Mr. Chan only $ 21,000 for lost earnings and benefits. Mr. Chan's transfer -- a sanction which the jury found cost him $ 21,000 -- does not rise to the level of penalties which have been labeled "substantial" because it is not comparable to the penalties which the Supreme Court has found impose an unconstitutional cost on the exercise of the Fifth Amendment privilege.
Mr. Chan was not required to relinquish his livelihood -- he did not lose his job as a police officer in the CPD, and his base pay was not affected. Notably, Mr. Chan argued that he suffered financially only because he lost overtime opportunities and the use of a car to drive to and from work. Moreover, it is enlightening to view the $ 21,000 loss over the period from August, 1989 to July, 1995, the time during which Mr. Chan claims he incurred the loss. According to the jury, Mr. Chan should have earned $ 274,782.51 over those years. In actuality, he earned $ 253,782.51. Thus, he lost only 7.6 percent of his income. An loss of 7.6 percent of one's income is not the type of injury that either the Supreme Court or the Seventh Circuit has in the past found to be substantial. See LaSalle Bank Lake View v. Seguban, supra, 54 F.3d at 389.
A 7.6 percent loss in income is not something that most wage earners probably would think insignificant. Nevertheless, it is not the equivalent of a loss of job, loss of the privilege to contract with the state, loss of political office or loss of the right to run for political office in the future. Thus, whether or not an appellate court might hold that it is so substantial as to constitute an impermissible penalty in the future, any right not to face this penalty was not clearly established in 1989.
Mr. Chan argues that the injury to his reputation renders his transfer a substantial penalty, citing Lefkowitz v. Cunningham, supra, 431 U.S. at 806, for the proposition that
the touchstone of the Fifth Amendment is compulsion, and direct economic sanctions and imprisonment are not the only penalties capable of forcing the self-incrimination which the Amendment forbids.
The Supreme Court in Cunningham discussed the ramifications of the appellee's loss of his political offices:
Appellee's party offices carry substantial prestige and political influence, giving him a powerful voice in recommending or selecting candidates for office and in other political decisions. The threatened loss of such widely sought positions, with their power and perquisites, is inherently coercive. Additionally, compelled forfeiture of these posts diminishes appellee's general reputation in his community.