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.”