Court Upholds Requirement That NYPD Officers Undergo Breathalyzer Tests Following Shooting Incidents

Last week, federal Judge George B. Daniels upheld (in response to a Fourth Amendment challenge) NYPD “Interim Order 52”, which requires that a breathalyzer test be administered to any NYPD officer involved in a shooting that results in injury or death to a person in New York City.  The decision in Palladino et al. v. City of New York et al., 07-CV-9246 is accessible here.

Judge Daniels initially concluded that crime control was not IO 52’s primary purpose, thus permitting the application of the “special needs doctrine” exception to the Fourth Amendment’s general prohibition against suspicionless searches:

[T]he primary purpose of IO 52 is personnel management—specifically, to deter police officers from becoming intoxicated and discharging their weapons. Armed police officers are given awesome power. The NYPD has a substantial and practical interest in ensuring that its officers, especially its armed officers, are fit for duty. Personnel regulations prohibit officers, whether on or off duty, from becoming intoxicated while carrying a weapon. Patrol regulations require “that firearms be removed from any member of the service that is intoxicated, either on or off duty.” ... IO 52 provides the NYPD with the ability to quickly identify officers who abuse alcohol and discharge their firearms. As a result, IO 52 deters officers from consuming alcohol “to the extent that [they] become[ ] unfit for duty.” ... IO 52 also supplements other procedures already in place to investigate the underlying circumstances of each shooting involving NYPD officers. Also, the immediate confirmation that alcohol is not involved fosters public confidence and eliminates speculation of wrongdoing. As a result, IO 52 serves the NYPD interest in personnel management and promotes public confidence in the NYPD by ensuring that its officers are fit for duty.

The court then turned to the 3-prong balancing test to determine the reasonableness of the search, namely:  “(1) the nature of the privacy interest involved; (2) the character and degree of the governmental intrusion; and (3) the nature and immediacy of the government’s needs, and the efficacy of its policy in addressing those needs.”

As to prong 1, the court found that “NYPD officers carrying and discharging firearms have diminished expectations of privacy” and that they are “subject to considerable scrutiny and regulation that might be unreasonable in other workplaces.”  The court pointed to the fact that NYPD officers are subject to alcohol and drug testing in other contexts, as well as the fact that every firearm discharge will result in an investigation.

As to prong 2, the court found that the “character and degree of the governmental intrusion” was, in context, de minimis, given that the test itself lasts only minutes, is “applied uniformly ‘in every situation in which an NYPD officer causes injury by firing his or her gun'”, and “is another routine step of NYPD post-shooting protocol.”  The court also disagreed that the test is an “unreasonably traumatic intrusion”, given the fact that it is a brief, mandatory process that officers understand will occur.

As to prong 3, the court pointed to the NYPD’s “very practical and important interest in managing its personnel and ensuring that officers comply with the Patrolman’s Guide regulations concerning officer fitness for duty”, and the fact that the test “deters officers from violating” the rule against possessing a firearm if they are intoxicated and “serves to identify those officers who do discharge their weapons while under the influence of alcohol.”

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