Breathalyzer Tests of Police Officers Held Not to Violate Fourth Amendment
This month, we discuss Lynch v. City of New York,1 in which the U.S. Court of Appeals for the Second Circuit considered a Fourth Amendment challenge to the New York City Police Department's policy to administer breathalyzer examinations to any police officer who discharges a firearm resulting in death or personal injury. In an opinion by Judge Reena Raggi, joined by Circuit Judge Chester J. Straub and Eastern District Judge Brian M. Cogan (sitting by designation), the court held that the police department's breathalyzer policy is reasonable under the "special needs" doctrine applicable to the Fourth Amendment's proscription against unreasonable searches and seizures.2 The court found that the primary purpose of the police department's policy is to determine an officer's sobriety at the time he discharged his weapon, and that the police department's interest in its special needs is not compatible with normal warrant requirements. The court also determined that the police department's interests in this context sufficiently outweighed the privacy interests of tested police officers.
The Lynch decision presents a balance among the privacy rights of police officers, the police department's interest in ensuring the sobriety and fitness of its force, and the public's interest in ensuring confidence in police activities attendant to the use of deadly force.
New York Police Department (NYPD) Interim Order 52 (IO-52) arose out of a Nov. 26, 2006, shooting in Queens, when, during an undercover operation, NYPD officers shot and killed Sean Bell and wounded two others. Facing public criticism, on Sept. 30, 2007, the NYPD implemented IO-52, which sets forth procedures for 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 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."3
IO-52 requires that any officer whose discharge of a firearm results in death or personal injury remain on the scene, when feasible and safe, until a duty captain arrives and administers a portable breathalyzer test. If the breathalyzer test reads less than .08 blood alcohol level, then the policy requires no further testing. If the reading is .08 or greater, then the officer must be transported to a testing location for a second, more sensitive Intoxilyzer test, and videotaped questioning about recent alcohol and drug use.
The videotape may be kept for "evidentiary purposes," and the officer may be deemed unfit for duty. Under police department regulations, an officer who is "unfit for duty due to excessive consumption and intoxication from alcohol while armed with a firearm" is subject to administrative charges with "strict punitive sanctions" if the charge is sustained, including potential termination from the NYPD.4
Since the 2007 implementation of IO-52, NYPD officers have been subjected to breathalyzer testing on 15 to 20 occasions. No officer exceeded the .08 threshold during Intoxilyzer testing, and no officer was criminally charged in connection with the shootings. Some officers, however, found IO-52 testing burdensome, embarrassing, stressful, and degrading.
In 2007, the Patrolmen's Benevolent Association of the City of New York Inc., a New York City police union representing 35,000 officers, and its president, sued New York City, the NYPD, and the NYPD police commissioner, in the U.S. District Court for the Southern District of New York, alleging that IO-52 is an unconstitutional search in violation of the Fourth and Fourteenth amendments.5
Plaintiffs moved for a preliminary injunction prohibiting the enforcement of IO-52. In September 2008, U.S. District Judge George B. Daniels denied plaintiffs' preliminary injunction motion. The district court reasoned that plaintiffs had not "argued that the text of IO 52 and the safety and reputation rationales proffered by defendants were crafted as pretext to enable the gathering of evidence against police officers for criminal prosecution[,]" and that, absent this showing of pretext, the court assessed IO-52 in light of its stated administrative purpose.6 The district court determined that, on the existing record, plaintiffs had not shown that their privacy concerns rose to an unconstitutionally prohibited level. Having determined that plaintiffs were unlikely to succeed on the merits, the district court denied their preliminary injunction motion. Plaintiffs appealed.
In 2009, the Second Circuit affirmed the district court's denial of a preliminary injunction.7 In an opinion by Judge Jose Cabranes, the court first determined that IO-52 qualified as a "governmental action taken in the public interest" and "pursuant to a statutory or regulatory scheme."8 The court reasoned that IO-52 facilitates "personnel management" by allowing the police department quickly to identify and take appropriate action against officers who fired guns while intoxicated. IO-52 testing also promoted the police department's reputation by showing that the department takes its alcohol and firearms policies seriously. And IO-52 serves criminal law enforcement because it is one investigatory tool at the police department's disposal to determine if an officer had violated the law.
In light of these purposes, the court determined that criminal law enforcement was not the "primary purpose" of IO-52, and concluded that plaintiffs were unlikely to succeed on their Fourth Amendment challenge. The court also determined that IO-52 likely reflected a reasonable balance between the NYPD's special needs and the officers' privacy interests.
On remand, discovery proceeded and the parties cross-moved for summary judgment. Relying on the Second Circuit's previous analysis, the district court concluded that IO-52 testing is constitutionally reasonable as a matter of law and granted the NYPD's motion for summary judgment.9 Plaintiffs appealed.
The Second Circuit's Decision
The Second Circuit confronted two questions: (1) whether the objectives of IO-52 qualify as "special needs" for purposes of Fourth Amendment reasonableness; and (2) whether those special needs outweigh the officers' expectations of privacy.
The 'Special Needs' Doctrine and the NYPD's Objectives for IO-52. The court first discussed the "special needs" exception to the Fourth Amendment's warrant requirement and the NYPD's objectives for the IO-52 policy. The court explained that, generally, when a search is undertaken by law enforcement officials to discover evidence of criminal action, the Fourth Amendment requires obtaining a warrant supported by probable cause.10 However, warrantless searches are constitutionally reasonable where "special needs, beyond the normal need for law enforcement," are present.11 As the court explained, the standard that distinguishes a non-law enforcement need as "special" is its "incompatibility with the normal requirements of a warrant and probable cause, and, especially, the corollary that the nature of the search involved greatly attenuates the risks and harms that the warrant and probable cause requirements are intended to protect against."12