Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, December 4, 2013

Police Department's policy of requiring a police officer who discharges a firearm causing death or personal injury to submit to a Breathalyzer test sustained

Patrolmen's Benevolent Association of the City of New York, Inc., v New York City Police Department, Raymond W. Kelly, Police Commissioner, US Circuit Court of Appeals, 2nd Circuit, Docket No. 12-3089
The Patrolmen's Benevolent Association of the City of New York, Inc., appealed the District Court’s granting summary judgment dismissing its petition challenging the New York City Police Department’s [NYPD] administration of a Breathalyzer test to any officer whose discharge of his firearm within New York City results in death or injury to any person.
The Circuit Court of Appeals denied the PBA’s appeal, holding that such testing “is reasonable under the special needs doctrine" and that [the PBA’s] Fourth Amendment challenge "fails as a matter of law.”
The “Special Needs” Doctrine is an exception to the Fourth Amendment's protection against unreasonable searches and seizures. Typically when law enforcement seek to discover evidence of criminal wrongdoing, “reasonableness” generally requires the officer first obtaining of a judicial warrant supported by probable cause.
The court said that “neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance” and “[w]arrantless, even suspicionless, searches can be constitutionally reasonable where 'special needs, beyond the normal need for law enforcement' are present." However, warrantless, suspicionless searches is “closely guarded” and a court must conduct a “close review of the scheme at issue” in light of “all the available evidence” to determine its “primary purpose.”
The tests applied by the Circuit Court in holding that the “Special Needs Doctrine” applied in this instance were:
1. Sobriety is a fitness-for-duty condition of employment with the NYPD and a sobriety determination serves special needs distinct from criminal law enforcement, specifically, personnel management of, and maintaining public confidence in, the NYPD;
2. NYPD's interest in these special needs is not compatible with the warrant requirement applicable to criminal investigations; and
3. NYPD's interest in these special needs sufficiently outweighs the privacy interests of tested police officers as to render warrantless, suspicionless testing constitutionally reasonable.
The court’s conclusion: these 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 testing constitutionally reasonable as a matter of law.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

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