A Breath of Prejudgment

Police Commissioner Ray Kelly has insisted from the time that he created a special panel to examine how undercover cops are deployed in the wake of the fatal shooting of Sean Bell last November that it was not intended to investigate that incident.

But one recommendation released by the task force last week - that any officer involved in a shooting undergo a Breathalyzer test - can't help but be viewed as a response to that case. Police unions, in addition to their belief that such a policy should be negotiated rather than unilaterally imposed, have concerns that the panel's proposal - and Mr. Kelly's swift embrace of it - could influence public opinion about the case as three of the officers who fired their guns await trial.

There's no way to know at this point whether that will happen. But announcing such a policy before that case has been decided strikes us as having rushed to judgment about what happened that night and making a conclusion not necessarily supported by the facts.

The undercover cop who initiated the shooting, Det. Gescard Isnora, has said that he drank two beers inside the club Kalua as a way of blending in with the crowd. Department policy permits undercovers to have two drinks while on duty.

Normally, undercover officers are not supposed to be involved in making busts during probes of suspected illegal activity at a club, leaving that chore to their back-up teams. But according to Detective Isnora, when he heard a loud argument just outside the club in which a friend of Mr. Bell's allegedly referred to a gun he was going to get, he decided the situation was too urgent to wait for help, and set off after the men. It was not until Mr. Bell drove his car into Detective Isnora, then backed up and veered towards him again, he has said, that he began shooting, and with fellow officers fired 50 shots at the vehicle. No gun was found inside, and Mr. Bell was killed and two of his companions wounded.

Subsequent tests showed that Mr. Bell was legally drunk, which likely impaired his judgment and may have prevented him from realizing that Mr. Isnora was a cop even though the Detective stated that he clearly displayed his shield when he approached the car.

A supervisor at the scene following the shooting concluded that Mr. Isnora was fit for duty. That does not definitively establish that he wasn't impaired, but until contradicted by evidence, it suggests that there is no reason to believe that he was.

Detectives' Endowment Association President Mike Palladino contended last week that by announcing the Breathalyzer policy, the task force and Commissioner Kelly might lead jurors to conclude "that there was fault on the side of police." We would have to agree with him.

Commissioner Kelly maintains that this change does not have to be negotiated with the affected unions because it falls under his broad disciplinary powers, which were upheld last year by the Court of Appeals. The police unions counter with the same claim they successfully used to prevent the NYPD from unilaterally making hair screenings the standard form of testing officers for drug use: that this is a change in the conditions of employment rather than a disciplinary matter.

They may get further aid in their legal battle from a bill that would reduce the Police Commissioner's disciplinary powers that was approved at the close of the legislative session last week. Governor Spitzer vetoed a similar measure in April, citing its technical flaws, but Patrolmen's Benevolent Association President Pat Lynch said last week that the amended bill addresses all the Governor's objections. If Mr. Spitzer signs it, discipline would become a mandatory subject of bargaining.

Many of the recommendations by Mr. Kelly's task force are worthwhile, including ongoing psychological testing and counseling for undercover officers in acknowledgment of the stress that assuming other roles while associating with suspected criminals places on them.

But the timing of the Breathalyzer proposal has the effect of making the cops in the Bell case suspects, when to this point there is no evidence that what occurred resulted from anything more than a misapprehension - on both sides - that produced a tragedy.