Confidentiality and Privileged Communications

Church Law and Tax 1990-01-01 Recent Developments Confidentiality and Privileged Communications Richard R. Hammar, J.D.,

Church Law and Tax 1990-01-01 Recent Developments

Confidentiality and Privileged Communications

Can the delivery of a gun to a minister constitute a “privileged communication” that is not admissible in court? Yes, concluded a New York appeals court. A New York City police officer also served as assistant pastor of a local church. One evening, while off duty and presiding over a church function (in civilian clothes), the minister stepped outside momentarily. While on the front steps of the church, he was approached by an elderly gentleman who addressed the minister by name and stated that he had something at home that he wanted to give the minister. A few minutes later, the individual returned, and was escorted into an office where he handed the minister a plastic bag containing a .38 caliber revolver. Not wanting to the leave the gun on church premises overnight, the minister flagged a patrol car that was passing by the church, and handed the gun to the officer driving the vehicle. A few months later, the minister was accused of violating several police department regulations in the proper disposition of the gun. The minister claimed that the incident could not give rise to any disciplinary action since it was a “privileged communication” under New York law and therefore could not be used in any legal proceeding. A trial judge found the minister guilty of all charges, and concluded that the “privileged communication” defense was not available since the gun had been delivered to the minister in his capacity as a police officer rather than a clergyman. A state appeals court reversed this ruling, and dismissed the charges. The appeals court concluded that the gun had been delivered to the minister in his capacity as a minister, and that the manner in which the gun was delivered constituted a “confidential” nonverbal communication. The court found it significant that the elderly gentleman had gone to the church with the gun rather than to a police facility, and that the minister was wearing civilian clothes. The ruling illustrates that the concept of “privileged communications” made to clergy is not necessarily restricted to verbal communications, but in some cases can extend to conduct that is intended to communicate some message. Of course, the conduct must be confidential. Since the plastic bag was presented to the minister in the privacy of a church office, this requirement was satisfied. Lewis v. New York City Housing Authority, 542 N.Y.Y.2d 165 (1989).

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