Justices Won't Review If Breathalyzer Tests Of New York City Officers Are Constitutional

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By Kevin P. McGowan  

May 27 — Denying a petition filed by the New York City police officers' union, the U.S. Supreme Court May 27 declined to review a federal appeals court decision that the city doesn't violate the Fourth Amendment by requiring an immediate, on-site Breathalyzer test of any police officer who fires his weapon in a shooting resulting in serious injury or death.

The justices left undisturbed the U.S. Court of Appeals for the Second Circuit's ruling that the city police department's “special needs” to ensure its officers comply with a ban on alcohol use while carrying their service revolvers and to maintain public confidence in the department outweigh any officer's privacy interest in avoiding a minimally intrusive search after a shooting incident (737 F.3d 150, 37 IER Cases 1 (2d Cir. 2013)).

Justice Sonia Sotomayor, who formerly served on the Second Circuit, took no part in consideration of the petition for review.

‘Special Needs' Doctrine Misused, Union Says

In its petition, the Patrolmen's Benevolent Association said the Second Circuit improperly expanded the “special needs” exception to the Fourth Amendment to a suspicionless and warrantless search conducted by law enforcement personnel—the police department's Internal Affairs Bureau—while investigating potential criminal incidents if the department determines the officer shouldn't have shot.

The Supreme Court has never held the special needs exception extends to law enforcement's investigation of potential crimes, and the Second Circuit decision conflicts with decisions from other federal circuits as well as state courts of last resort, the union said.

“If left uncorrected, the decision below will deprive NYPD officers in perpetuity of the baseline protections of the Fourth Amendment by authorizing the NYPD to continue to subject officers to nonconsensual searches in the course of police investigations in which the officers' conduct is being specifically scrutinized for evidence of crimes as serious as murder,” the union said.

Consistent With Precedent, City Says

In its brief opposing review, the city said the Second Circuit's “fact-intensive” analysis that the Breathalyzer requirement falls within the special needs exception to the Fourth Amendment is consistent with Supreme Court precedent and doesn't warrant further review.

No evidence supports the petitioners' suggestion that the Breathalyzer test policy is a pretext for gathering evidence for the possible criminal prosecution of police officers involved in shooting incidents, the city said.

Rather, the test results have never been used to prosecute a police officer, and the case therefore doesn't pose the Fourth Amendment issue presented if employer-required drug or alcohol test results subsequently are used against an employee in a criminal case, the city said.

Testing Policy Implemented in 2007

The union challenged Interim Order 52 (IO-52), which the police department implemented in 2007 after its investigation of a 2006 incident in which one person was fatally shot and two others seriously wounded by undercover police officers.

Amid suspicions that one or more of the officers involved might have been drinking prior to the shooting, IO-52 required that in any future police shooting that results in injury or serious death, the Internal Affairs Bureau (IAB) would take an immediate, on-site Breathalyzer test of any police officer involved.

The challenged order, “a minimally intrusive measure applied to officers with a low expectation of privacy in their fitness for duty,” the immediate Breathalyzer test directly addresses a profoundly dangerous public safety issue, the city said in opposing high court review.

The Patrolmen's Benevolent Association sued on behalf of some 35,000 union-represented city police officers, arguing the Breathalyzer test required by IO-52 violated the officers' Fourth Amendment rights. The union argued the test, conducted without a warrant and requiring no showing of probable cause or other individualized suspicion an officer was violating the ban on alcohol use while armed, violated the officers' reasonable expectation of privacy.

Since IAB could use the test results in potential criminal prosecutions of police officers, IO-52 can't be squared with Fourth Amendment precedent, the union said.

The city said the Breathalyzer test policy passed constitutional muster because it advanced the department's compelling interests in enforcing the alcohol ban and in maintaining public confidence that armed officers involved in serious shootings weren't under the influence of alcohol. The IO-52 test results aren't intended to be used to prosecute police officers, and the results in fact never have been so used, the city said.

The U.S. District Court for the Southern District of New York denied the union's request for a preliminary injunction against IO-52, and the Second Circuit affirmed in a 2009 opinion (589 F.3d 94, 30 IER Cases 124 (2d Cir. 2009).

The Supreme Court in 2010 denied the union's petition to review the preliminary injunction decision.

The district court subsequently granted the city summary judgment on the union's Fourth Amendment claims, and the Second Circuit affirmed in November 2013.

Resolve Conflict on Fourth Amendment Exception

The Supreme Court has recognized exceptions to the Fourth Amendment's usual requirement of individualized suspicion when “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable,” the union said, citing Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 4 IER Cases 224 (1989).

But the Second Circuit, in citing this “special needs” exception to uphold IO-52, minimized the fact that the IAB, in taking Breathalyzers of officers involved in shootings, is collecting evidence that could be used to prosecute those officers, the union said.

This case squarely presents a question left open in Skinner—whether the Fourth Amendment permits alcohol testing by law enforcement personnel without individualized suspicion or a warrant when the results could be used as evidence against the individuals tested in a criminal prosecution, the union said.

The Second Circuit said the city could rely on the special needs exception as long as criminal investigation was one purpose among many for conducting the Breathalyzer tests and the city could show another reason, such as maintaining the integrity and reputation of the department, was the primary purpose, the union noted.

But other courts have ruled a test administered by law enforcement in response to a specific incident and producing results that could be used in a criminal prosecution can't qualify for the special needs exception, the union said.

“This Court's review is needed to resolve the conflict among the lower courts and to confirm that a test with a criminal investigatory purpose—whether it is characterized as the ‘primary' purpose or otherwise—cannot qualify for an exception to the ordinary protections of the Fourth Amendment,” the union said.

Steven A. Engel of Dechert LLP in Washington was counsel of record for the police officers union.

No Conflict Exists, City Says

But the city in opposing review said the Second Circuit “correctly balanced” the “high-risk and safety-sensitive nature” of a police officer's job and the officer's “minimal privacy interest” in avoiding a Breathalyzer test after a shooting incident in ruling IO-52 can be enforced consistent with the Fourth Amendment.

“The opinion below is fully consistent with the decisions of the [Supreme] Court and does not create any conflict in authority for the Court to resolve,” the city said.

The union repeats many arguments from its unsuccessful 2010 petition for Supreme Court review and relies on an almost identical record, the city said. The union doesn't take issue with how the Second Circuit “undertook the requisite fact-intensive contextual analysis” to evaluate a “claimed special need,” but rather argues the appeals court “misapplied the law and arrived at the wrong result,” the city said.

Mere disagreement with an appeals court decision provides no grounds for Supreme Court review, the city said.

This case doesn't present the “open question” mentioned in Skinner on whether “routine use” by law enforcement of employer-procured testing results would raise a Fourth Amendment obstacle to testing conducted without individualized suspicion, the city said.

No evidence suggests the city's stated reasons for IO-52 are a pretext for gathering evidence of criminal activity by police officers for potential prosecution or that test results have been routinely used for that purpose, the city said.

“There is, therefore, no substantial question left unresolved by Skinner that would warrant the Court's review of this case,” the city said.

“IO-52, a minimally intrusive measure applied to officers with a low expectation of privacy in their fitness for duty,” directly addresses a profoundly dangerous public safety issue, the city said. “Based on an analysis of a fact-specific context, the Second Circuit correctly determined that it constitutes a special need. That decision is legally correct, and it does not conflict with any decisions of the Court, or any other state or federal courts, and it does not warrant further review.”

Richard Dearing of the Corporation Counsel of the City of New York represented the city.

To contact the reporter on this story: Kevin P. McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com