Chemical testing of officers in shooting incidents...a recent case

The 2^nd Circuit Court of Appeals rendered an important decision in the chemical testing of NYPD officers involved in shooting incidents.  The significance of this opinion, even it that Circuit isn’t necessarily authoritative in your jurisdiction, is that it is very clear in its analysis and follows case law from the U.S. Supreme Court.  It clearly distinguishes the “special needs” and “public safety” doctrines applicability to public employees and relationship to the Fourth Amendment provisions in criminal proceedings.

In November 2013 a panel of judges in the 2^nd Circuit Court of Appeals took up the appeal of a previously decided case, Lynch v. City of New York, 589 F.3d 94 (2 Cir. 2009) concerning the NYPD provision to test all officers involved in a fatal or wounding shooting while either on- or off-duty.  This court affirmed the district court’s award of summary judgment to the NYPD on the plaintiff’s Fourth Amendment challenge, which failed as a matter of law.  This court also was impressed with the narrow scope of the NYPD written provisions.

The NYPD adopted a written policy following a 2006 shooting incident involving undercover officers that resulted in the death of Sean Bell and wounding of two of his companions.  The NYPD convened a review committee and enacted a policy requiring alcohol testing “when a uniformed member of the (NYPD), on or off duty, is involved in a firearms discharge within New York City which results in injury to or death of a person.”  The procedure was that a Captain from Internal Affairs Bureau would respond to the scene or station and administer a portable breathalyzer to the involved personnel.  If the results were .08 or greater the officer would be tested by a second “more alcohol sensitive…Intoxilyzer machine” at another location.

Many law enforcement agencies have procedures when officers are involved in similar shooting incidents and actually have expanded those incidents to include other critical incidents such as in-custody deaths and fatal or serious vehicle accidents.  Many agencies also use blood or urine samples for these types of cases, as these tests will detect other chemical substances, prescription medicines, and anabolic steroids.  This case involving the NYPD did not address these issues and was much more narrow.  But the substance of this case is important to demonstrate the legal issues involved in these types of personnel investigations by a public safety agency.

“The stated purpose of IO–52 is “[t]o ensure the highest levels of integrity at the scene of police involved firearms discharges which result in injury to or death of a person.”  As explained further by Chief Campisi in opposing plaintiffs' motion for a preliminary injunction, IO–52 serves (1) to protect “the integrity of the NYPD”; (2) to protect “the safety of the public and NYPD officers”; (3) to deter “alcohol intoxication by NYPD who are carrying firearms”; and (4) to assure “the public that one of the most important and daunting powers of the police, the power to apply deadly force when necessary, is not being abused or used by officers who are under the influence of alcohol.”

This court discussed the “special needs” doctrine in its decision.  It indicated that “neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance…Warrantless, even suspicionless, searches can be constitutionally reasonable where ‘special needs, beyond the normal need for law enforcement,’ are present.”  The court cited National Treasury Emps. Union v. Von Raab (1989) and Skinner v. Ry. Labor Execs. Ass’n (1989).  It found that “that the interests served by the special needs outweigh the privacy interests at stake.”

The court found, “B. IO–52 Testing Is Constitutionally Reasonable Under the Special Needs Doctrine

When we apply these principles to this case, the record compels the following conclusions.

First, it is evident that IO–52 testing is conducted to determine an officer's sobriety at the time he discharged his firearm. Sobriety is a fitness-for-duty condition of employment with the NYPD. Thus, a sobriety determination serves special needs distinct from criminal law enforcement, specifically, personnel management of, and maintaining public confidence in, the NYPD. Indeed, these needs must be served in every police shooting case, without regard to whether the shooting implicates the criminal laws, which most police shootings, in fact, do not.

Second, the NYPD's interest in these special needs is not compatible with the warrant requirement applicable to criminal investigations.

Third, the NYPD's interest in these special needs sufficiently outweighs the privacy interests of tested police officers as to render warrantless, suspicionless IO–52 testing constitutionally reasonable.”

And, “Rather, what the record does show is that the immediate purpose of IO–52 testing is personnel management of, and the maintenance of public confidence in, the NYPD, specifically with respect to officers' discharge of firearms in circumstances causing death or personal injury. The Supreme Court has specifically recognized a public employer's regulation of its employees' conduct as a special need that can support warrantless, suspicionless testing to ensure safe and responsible performance of hazardous duties, a conclusion that obtains without regard to whether the testing occurs before or after any harm actually occurs and whether the employer is itself involved in law enforcement. See National Treasury Emps. Union v. Von Raab, 489 U.S. at 679 (recognizing special need to conduct suspicionless drug testing of Customs employees involved in drug interdiction or required to carry firearms); Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. at 620–21 (recognizing special need to conduct blood and urine tests of all railroad employees involved in train accidents). Breathalyzer testing most obviously serves these special needs by promptly revealing whether a police officer was in compliance with department guidelines respecting alcohol use and fitness for duty when he discharged his firearm. The NYPD and the public have an interest in the answer to that question in every police shooting resulting in death or personal injury, without regard to whether the officer's conduct raises any criminal concerns.”

This decision further stated, “In sum, the record compels the conclusion that the primary, i.e ., immediate, purpose of IO–52 testing is personnel management and the maintenance of public confidence in the NYPD, needs present in every shooting case and distinct from normal law enforcement objectives to solve crimes and prosecute their perpetrators. In these circumstances, the possibility that IO–52 test results might ultimately be used as evidence in a criminal prosecution does not take the case out of the special needs doctrine. See Illinois v. Lidster, 540 U.S. at 423–27; United States v. Amerson, 483 F.3d at 80–83; Nicholas v. Goord, 430 F.3d at 667–69…The Supreme Court has further recognized that “the government's interest in dispensing with the warrant requirement is at its strongest when, as here, the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.” Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. at 623 (internal quotation marks omitted). Because “alcohol and other drugs are eliminated from the bloodstream at a constant rate, ․ breath samples taken to measure whether these substances were in the bloodstream when a triggering event occurred must be obtained as soon as possible.” Id. (internal citation omitted). Thus, a delay associated with obtaining a warrant could negatively affect the probative value of breathalyzer test results, undermining the NYPD's ability both to manage its personnel effectively and to assure the public that it is doing so. See id. (observing that delay in procuring warrant “may result in the destruction of valuable evidence”); see also Missouri v. McNeely, 133 S.Ct. 1552, 1560 (2013) (observing that “because an individual's alcohol level gradually declines soon after he stops drinking, a significant delay in testing will negatively affect the probative value of the results”)… Accordingly, we conclude that the primary non-law enforcement objectives of IO–52 testing—personnel management of and public confidence in the NYPD—are properly deemed “special needs” in that they are incompatible with the general warrant/individualized suspicion requirements and, further, that the mandatory, narrow, and specific nature of IO–52 testing greatly ameliorates the mischief that the warrant/individualized suspicion requirements were designed to prevent.”

“To summarize, we conclude that the record compels the following conclusions:

1. The immediate objectives of IO–52 testing are personnel management of, and public confidence in, the NYPD.

2. The identified objectives qualify as “special needs” for purposes of Fourth Amendment reasonableness review because they are distinct from normal law enforcement concerns and incompatible with the warrant and probable cause requirements for law enforcement searches.

3. The aforementioned special needs greatly outweigh officers' reduced expectation of privacy with respect to alcohol testing at the time of any firearms discharge causing death or personal injury, thereby rendering warrantless, suspicionless IO–52 testing constitutionally reasonable as a matter of law.

The district court's award of summary judgment to the NYPD on plaintiffs' Fourth Amendment challenge to IO–52 is AFFIRMED.”

Published a fiction novel about IA/OPS

For the past year I’ve been busy writing a fiction novel about Internal Affairs cases, along with my full schedule of training, audits and expert witness work.  This book has allowed me to discuss issues in a way that’s difficult when I’ve written professional journal pieces.  It’s pretty raw and rather uncensored.  I see that it’s already on the Ebook sites.  The print version should be out next week and it’ll be available from patc.com.

Broken Badges: cases from Police Internal Affairs Files

IA/OPS functions get a pretty bad rap in the movies and TV.  Maybe this can help those of us who know the value of our task and respect the stakeholders – citizens, cops, agency and the community they all have to live in.

If you like what I’ve been doing these past several months on this blog, I think you’ll like the book.  A quick, engrossing read!  And if you like it, give it a good rating.

Works' comp: our forgotten loss!

Last week I participated in the first annual Risk Management Seminar for the Legal and Liability Risk Management Institute in Indianapolis.  This is the company for which I do my consulting.  We brought risk managers and insurance pool personnel in for three days of presentations.  I did two sessions.  The first dealt with auditing special operations units and the second addressed how IA/OPS operations can predict the health of a police agency.

A surprisingly interesting presentation was done by Mark Filburn, KY League of Cities, concerning law enforcement workers’ compensation.  It’s the cause of more insurance loss than excessive force claims.  Unfortunately, we don’t spend enough time or attention to workers’ comp.  Consider the loss of personnel time and the overtime necessary to overcome this loss. 

I was surprised to find out that the 5 most common instances of workers’ comp in law enforcement were slip/fall not involving arrests, training injuries, motor vehicle accidents mostly during backups, strains during foot pursuits, and injuries related to arrest incidents.

Mark demonstrated the significant importance of using a safety officer during all training practical programs, not just those on the firing range. In slip/fall cases one thing that could assist in reducing the occurrences is wearing better shoes.  Shoes with a good griping sole and ankle supports.  Wearing seat belts and controlling backups would significantly reduce injuries in vehicle accidents.

I don’t think we pay enough attention to the workers’ comp issue in law enforcement.  We simply allow the officers to write out their injury reports and sometimes a supervisor has to lay another one on top of that.  But rarely is there a reasonable investigation done to validate the injury and the job relationship.  Then when the employee is off they’re often forgotten after a couple of weeks.  Not feeling loved or appreciated, the employee just looks for a way out and some extra money and, hopefully, good medical coverage.

What might be a reasonable answer is to expand the focus on what we now use for fleet safety and shootings.  We do a pretty good job evaluating whether the traffic accident was preventable and then what was necessary to remediate the employee.  We do a good job similarly with officer involved shootings.

What if we expanded that concept of the safety committee to include worker’s comp injuries and other uses of force?  Require this committee to designate a buddy for the injured employee to maintain continuous contact.  That might help the employee feel loved and want to come back to work even earlier.  It seems like an easy win-win!  We should be able to get some valuable information to reduce our overall losses from workers’ comp injuries on top of that. 

Rambling musings

I’ve been doing this blog for 9 months now.  I’ve seen that it has received nearly 1500 hits and have heard that several of you regularly access it.  What I have found interesting is that I’ve never had any comments.  Maybe the site from Google doesn’t make that convenient or it could be that nobody has been stimulated to that extent.  Regardless, I would appreciate hearing from you either through the site or directly to my Email: loureiter@gmail.com.  Thanks

Here are a couple of rambling muses:

I was at the AARP Convention this weekend in downtown Atlanta at the Georgia World Congress Convention Center.  Sure, I’m old, but I still learn each time I attend one of these.  But, my comment regards an issue with law enforcement at the Center.  I noticed a strange black plastic box in one of the large planters alongside the roadway at the entrance.  Being on somewhat high alert these days I mentioned it to a young Georgia State Trooper directing traffic.  He thanked me and I left, but I noted that neither he nor the Center officer went over to the suspicious package.  The next day the ‘suspicious’ package was in the same place.  This time, however, I looked closer and it turned out to be an exterminator mouse/rat trap.  Sure, I was somewhat amused and a trifle embarrassed.  In retrospect I imagine the Trooper had a decision to make: should I tell this guy he’s a dumb ass or should I simply say it’s a mouse trap.  Either one would have been okay.  Not saying anything could have resulted in another person making a big stink.  Like the Fire Chief I mentioned in one of my last posts…”Be Nice!”

My wife had a similar experience with a different ending.  Marilyn, who is an attorney and was a certified officer and reserve deputy in Florida, noticed a K9 unit outside a restaurant she and one of our daughters went into.  It was one of those hot and humid days in Northern Georgia.  She asked the deputy whether he had any concern about his dog partner out in the SUV.  The deputy pulled out a smaller device and showed her that he could see the vehicle was running, what the inside temp was, and how long he had been away from his partner.  She and I didn’t know they have these neat devices to protect their partner.  A simple explanation resolved the issue.

Another incident she had with a Georgia State Trooper shortly after we moved to George occurred during a traffic stop.  Marilyn tends to have a lead foot.  She mentioned to the trooper that she had been a deputy down in Florida.  He politely asked if she was carrying.  Marilyn told him she wasn’t and didn’t know the carry laws in Georgia.  The Trooper told her it was rather easy, if you didn’t have a gun you could go by any police station and they would give you one.  Of course he was joking.  Surprisingly she didn’t get a ticket.  Blondes and cops, what can I say?

You must feed your brain now and then.

Here I am in Santa Claus, Indiana.  It’s really in the middle of nowhere amongst cornfields already harvested but waiting for the rigid, orderly stalks to be removed.  This is the 4^th annual meeting of the Emerson Society Summit.  Bill Westfall, an old friend and training colleague, has again gathered 35 police professionals and budding young up and comers in the public safety field from all corners of the country to this idyllic neighborhood for a weekend of sharing and growing professionally.  As Ralph Waldo Emerson, who used to have these meetings with his closest colleagues, would say, “Tell me, what has become clear to you since we last met?”

This is a rare meeting where everyone can share ideas, new directions, network with other professionals, and maybe ask for help with some new challenge or discuss a heartache of a problem left unsolved.  It’s casual with absolutely no distractions!

Alan Brunacini, retired, longtime Fire Chief of Phoenix, was the featured presenter.  He talked about his opportunity to change the culture of his 2,000-person agency.  The turning point for him was when he realized that “being nice” and consumer-oriented was as important, if not more so, than efficiency and effectiveness in firefighting.  On a sad note, he acknowledged that his agency reverted to its past autocratic ways almost before the door hit him in the ass on his retirement.

A young Connecticut State Trooper who was a lead investigator in the Sandy Hook school shooting made a passionate presentation.  This tragedy forced every law enforcement officer even indirectly involved in this investigation to face personal conflicts.  He strongly made the point that everything anyone did during this investigation was prefaced with the thought, “What impact will this have on the survivors.”  What the police might have thought was important for the investigation was really not that significant when considered against the impact it might have on the surviving family members.  Troopers and police officers were assigned to each family who lost someone in this tragedy.  While this may now become the norm for agencies experiencing this type of tragedy, he cautioned us to ensure that these uniformed men and women need to be prepared for the psychological trauma they themselves will face. 

Pat Gallagher, my old best friend for the past 36 years, forcefully proposed that our police agencies must service two communities – the external one and the community within our agency of our employees.  He and several other presenters stressed the point that we need to reexamine our basic beliefs in what we are in business for.  Are we just law enforcers, or are we guardians of the peace and helpers for those who need our help.  This is a significant cultural change.  Can everyone in your agency define what the culture of your agency is and what direction it’s going?

Pete Sarna, another old friend and longtime retired Captain from the Oakland CA Police Department, harped on the need to seek purpose in what we’re doing.  Are we doing the right thing at the right time?  He lamented the problems perplexing his old agency, but knows it was foreseen and not addressed when it could have been. 

A young trainer from Raleigh Police Department talked about the need for situational training based on learned habits.  He asked that at the conclusion of a field incident how would you answer the question, “Was I good or just lucky?” 

This two-day meeting of aged and new thinkers in law enforcement and public service was reinvigorating for even an old-timer like me.  But it’s something that should be replicated throughout our ranks.  We can never sit contented or rest on today’s successes or our past laurels.  We need to learn from our histories and our shared experiences.  Tomorrow is here and it’s time to build each person’s and each agency’s legacy.  How about yours’? 

Is decentralizing IA/OPS a good idea?

Last week I taught an IA seminar in Kansas City.  By the way, they have one of the finest police training facilities you’ll find these days.

One of the students offered a suggestion that I quickly gave a knee jerk reaction to and dismissed.  But the thought intrigued me as I chewed on it for a few moments. 

His suggestion was whether it might be beneficial to assign an IA investigator to decentralized police stations as a local resource.  It may only be practical in an agency with more than one station or maybe a statewide agency.  Progressive agencies today do that when they insert a local prosecutor into the station.  In that case the attorney helps with search warrant applications, legal questions and provides some roll-call training.  Some agencies currently have a victim advocate in-house who can help with difficult emotional cases including child sex, rape and domestic violence.

Now what would an IA rep in the station house do?  You might rush to say it wouldn’t work because s/he would simply be considered a snitch.  In some agencies that might be true.  It would be a constant challenge for the IA investigator to build trust and show that IA expertise can be beneficial.  But, s/he could become a valuable resource for local supervisors and the station management.  The vast majority of citizen complaints are usually delegated to the field sergeant.  The IA rep could be a resource to help that supervisor and could even assist with a critique of the completed investigation.  Local station managers are often the ones who have to review administrative investigations done by IA and make recommendations.  The local rep could assist and the final product will most likely be better.  The IA investigator assigned to this local station would still carry a normal workload; just do it at another location other than the IA/OPS office.  This might encourage the investigator to make more face-to-face calls to complainants and civilian witnesses rather than wait for them to come to the central office or conduct them on the phone.  It could also cut down on the overtime or loss of field time by not having agency witnesses and targeted employees going to the main administration building.  

I must admit that I find this an interesting concept.  A couple of years ago the Texas DPS began a program of decentralizing its IA process.  It trained sergeants to conduct IA investigations and assigned a cadre to each of its seven district areas throughout the state.  I’m not sure how the DPS program has worked out and it seems to be still in the developmental stage.  NYPD has integrity lieutenants in each precinct house who are supposed to do checks, audits and other types of oversight; but it appears to be less effective and they spend most of the time with trying to ferret out accepting gratuities, checking on overtime usage and officers who are sleeping on the job.  New Orleans recently has placed compliance officers in each of its stations to do some IA type tasks as well as audits and training.

Maybe we could take this decentralized IA/OPS concept a little further and even use it in an agency with a single station.  Too often the IA/OPS function is either in some office down the hall from the Chief or in some outside location away from the station.  The only time the uniformed cops see someone from IA is when they’re under the gun either as a target or witness officer. 

We’ve continuously worked to get detectives to visit uniformed officers’ briefings and roll calls.  The idea was they could share current crime trends, offer some suspect information and answer any questions.  Unfortunately, most of those attempts have failed.  We can all argue why and come up with a bunch of reasonable answers!

What could regular visits to uniformed cops by an IA investigator do?  One is that the uniformed cop would now see the investigator without being under the gun.  The investigator could discuss completed administrative investigations where the work of the officers and the IA investigation ended up clearing the accused employees.  Or the IA investigator could grab some case from the Internet where an officer got jammed up in another city and use that as a catalyst to discuss agency protocols and safeguards.  IA gives an investigator valuable experiences that most cops never get.  Sharing these can only make everyone a better cop and further professionalize the police agency.

It’s an intriguing concept; something we should not rush to kick aside.  At least it’s something to chew on….

Oversight needed or we may have too many Rambos!

I imagine many of you saw the YouTube tirade of the Chief of Gilberton, PA.  After his profanity laced tongue lashing, he shows himself firing three different types of fully automatic weapons.  The interesting part of this is he’s the only cop in this borough of 769 people.  The news articles say he bought the weapons with his own money and donated them to the town.  The town council acknowledged that they approved this donation.  An unanswered question is, “What the hell does a town of less than 800 people and one cop need with this armory?”  Other unanswered questions are whether the Chief has been trained and certified to use these weapons and whether the town has any written policy covering their use.  You and I know that the answers are no and, again, no! 

A few years ago I conducted an audit of a 40-officer police department in Georgia.  The first thing that struck me as unusual when I initially visited the agency was the large black van with ‘SWAT’ painted on the side positioned the parking lot in front of the agency so everybody passing by could see it.  I later found that the Chief had also taken possession of an APC (military armored personnel carrier).  I asked him whether it had ever been used.  “Not officially,” the Chief answered.  What did happen is a couple of his officers on the graveyard shift took it out one morning and filmed themselves riding in it which they then posted on YouTube.  Again, training and policy was lacking.  No one from City Hall apparently had objected!  This agency had the use of the County SWAT unit by just a phone call.

I’ve referred you to an interesting site for constant updating of what’s happening throughout the country in the arena of police misconduct – PoliceMisconduct.net.  The CATO INSTITUTE runs this site.  Another publication of this group is the 2006 report “Overkill: The Rise of Paramilitary Police Raids in America” by Radley Balko.  You can download it from this site.  You might not like the subject matter, but you should be aware of this line of questioning occurring throughout the country.

My good friend Harry Dolan, retired Chief of Raleigh, NC, gets on his soapbox when the issue of officers wearing BDUs comes up.  “Now they want to wear them black pajamas!” he retorts.  I remember the fight by field officers to eliminate wearing police hats during the 1970s.  But when baseball caps suddenly appeared everyone wanted to wear those. 

Now there’s a need for all of these police tools and tactics.  The problem, however, is that often they are done without some detailed thought.  What’s the problem these tools and tactics are going to resolve?  What’s the risk management potential?  Do you have reasonable written policies, training and supervisory oversight?  Until these questions can be answered reasonably the Chief, city officials and the community being served must say no…or at least slow down the process.