NYPD Can Test Breath|of Officers in Shootings


     MANHATTAN (CN) – The New York Police Department’s policy of administering a breathalyzer test to any officer who kills or injures someone with a gun does not violate officers’ civil rights, a federal judge ruled.
     The Patrolmen’s Benevolent Association of the City of New York – a union representing 35,000 New York City police officers – and its president, Patrick Lynch, claimed that NYPD Interim Order 52, the breath-test requirement, violated the officers’ Fourth Amendment protection against unreasonable searches and seizures.
     The 2nd Circuit in Manhattan upheld the lower court’s dismissal of the case, saying the policy falls under the “special needs” doctrine and serves multiple purposes, such as testing an officer’s sobriety.
     “Sobriety is a fitness-for-duty condition of employment with the NYPD,” according to the unsigned opinion. “Thus, a sobriety determination serves special needs distinct from criminal law enforcement, specifically, personnel management of, and maintaining public confidence in, the NYPD.”
     The 2nd Circuit rejected the union’s claim that the policy was motivated by suspicion of a crime. “Nothing in the record indicates that IO-52 testing is premised on any assumption that every time a police officer discharges his firearm causing death or personal injury he commits a crime,” the ruling states.
     The policy had been put into place to bolster public confidence in the department’s ability to investigate and handle officers who kill or injure people with their guns, accidentally or otherwise, the court noted.
     “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,” the three-judge panel wrote.
     This purpose outweighs an officer’s privacy interest, the judges added.
     “Because NYPD officers are authorized to carry firearms and to use deadly force, they have a diminished expectation of privacy in employer testing that ensures their fitness for duty,” the ruling states.
     The court also said breath tests are less invasive than blood samples and urine tests. And despite the union’s claim that breath testing is “degrading and traumatic” to officers, the court said the plaintiffs failed to explain how the test was any more intrusive than drug, urine or blood testing.
     “IO-52 specifically instructs that the initial breathalyzer test be performed in a “private setting” and in a “dignified, respectful fashion,” the 2nd Circuit wrote. “There is no record basis to think that a five-minute breath test conducted under such circumstances imposes a significant burden on officers.”
     The court found the testing policy “constitutionally reasonable as a matter of law.”

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