Fight Looms on Cop Breath Test after Shootings; Unions Call Policy Unconstitutional, Stigmatizing

By REUVEN BLAU

The city's police unions are gearing up to challenge the NYPD's proposed policy to require that all officers take Breathalyzer tests after they fire their guns in cases that involve injury or death.

RAYMOND W. KELLY: Response to Bell shooting.

The unions plan to file a suit in Federal Court, arguing that subjecting their members to such screenings violates their constitutional rights. Their attorneys are also scheduled to file an improper practice complaint with the Board of Collective Bargaining, contending that the new policy must first be negotiated.

National Implications

The issue is being carefully watched by other law-enforcement groups throughout the country, which are worried that the NYPD's proposal could set a national precedent.

In June, Police Commissioner Raymond W. Kelly announced 19 recommendations of a special panel that he appointed to examine policies and procedures governing undercover officers after the Nov. 25, 2006 police shooting outside the Jamaica, Queens strip club Kalua, that left Mr. Bell dead and two friends wounded.

MICHAEL J. PALLADINO: Change unjustified.

The recommendations also include changing how undercover officers are selected, instructed, monitored and retained.

The police unions, however, are adamantly opposed to the Breathalyzer proposal, which the department previously said it would start this month. They have asked to meet with NYPD officials to discuss the issue, but no conference has been set yet.

DEA: Waiting to Hear

"I'm trying to figure out what the department's intention is with the Breathalyzer," said Michael J. Palladino, president of the Detectives Endowment Association. "You can't challenge a press release. I'm waiting to hear back from the department."

The DEA, which represents the NYPD's 9,000 Detectives, is heading the anticipated legal challenges.

Despite the strong union opposition, the NYPD still plans to implement the testing policy for all police officers, on or off duty, whose firearm discharge results in injury or death. "The department's view is that the Police Commissioner has the prerogative under the City Charter and the Administrative Code in matters pertaining to discipline," Paul J. Browne, the NYPD's chief spokesman, said shortly after the plan was announced.

JOSEPH POLLINI: Need grounds for suspicion.

Mr. Palladino, who is also the vice president of the National Association of Police Organizations, said that key officials in that organization have vowed to support the city's unions.

"It definitely is an issue of concern not only to members of the NYPD, but law enforcement throughout the country," he said. "I expect to raise some assistance from my brother officers around the county."

Patrolmen's Benevolent Association Patrick J. Lynch contends the alcohol tests would "cast a shadow" over all officers who fire their guns. According to the union president, department supervisors should be able to tell whether an officer is fit for duty.

'Chilling Effect'

In addition, the unions have said that they believe the policy would have a "chilling effect" on officers, who are sometimes forced to use their weapons while off duty.

"The mere firing of a weapon alone should not rise to the level that they have to submit to a Breathalyzer," asserted Mr. Palladino during a recent phone interview. "They are doing what they are paid to do, what the law allows them to do. And absent any other factors, they shouldn't have to submit to a Breathalyzer - it's innocent until proven guilty."

The police unions expect the NYPD to cite the 1989 Supreme Court decision that allowed rail officials to test employees involved in train accidents for alcohol. In that case, the Railway Labor Executives' Association unsuccessfully argued that those screenings would violate its members' Fourth Amendment rights. That amendment guarantees individuals the right to be secure in their "persons, houses, papers, and effects against unreasonable searches and seizures."

They also contended that in the absence of a warrant and probable cause, those tests were unconstitutional and not justified.

Cops Never Quite Off Duty

According to court filings, the Federal Railroad Administration implemented the testing program based on evidence indicating that alcohol abuse by railroad employees had caused or contributed to a number of significant train accidents.

The police unions, however, believe their members are different. "The distinct difference between a Police Officer and any other profession is that in any other profession, once you're off duty it's safe to assume you will remain off duty," said one union official. "In a Police Officer's life you can go from on duty to off duty in the blink of an eye."

The train operator situation also is not comparable in that train crashes are unintentional. "This isn't an accident," said another union source, referring to a police shootout. "They are shooting bullets at you and you're going to react to it."

'What's the Standard?

The unions have also questioned the details of the NYPD's proposal. "There's no legal standard for impairment other than for driving a vehicle," Mr. Axelrod said. "If someone has a beer at a picnic and six hours later he's involved in a shooting, it's the old story of when did you start kicking your dog? But you have to answer anyway."

Currently, the department allows undercover officers to have two drinks while on duty to help them keep their identities secret. But critics of the department have questioned why Det. Gescard Isnora, who followed Mr. Bell and his friends from inside the club and was the first to fire at the men, wasn't tested for alcohol after the shooting.

Mr. Palladino maintains that alcohol didn't factor into the fatal shooting, noting that a supervisor at the scene deemed Officer Isnora fit for duty. Officer Isnora said he drank two beers inside the club, according to the NYPD's initial report of the incident.

Joseph Pollini, an Assistant Professor at John Jay College of Criminal Justice, noted that officers have to always be fit for duty. "They should be able to establish some sort of reasonable suspicion that a person is intoxicated," he added. "Unless they establish that, I don't know if it's something that they should mandate officers do with no reasonable suspicion."

Drink in Moderation

Mr. Pollini, who worked as an undercover officer for seven years when he first started his career with NYPD, said that Detectives know they have to be careful. "I was definitely in an environment where you would have to have drinks with people, but certainly you would not drink to excess where you would be intoxicated," he said.

Undercover officers in narcotics units are required to sign a waiver allowing the department to test them even without cause, he pointed out.

The department, Mr. Pollini contended, continues to place additional restrictions on officers after every tragedy. "As time goes on, the job gets more and more restrictive," he said. "You lose more and more of your rights. Basically, there is more and more attention to these incidents and the department wants to respond to the public. They don't have the exact answer, so what they want to do is whitewash it."

Mr. Pollini also said that supervisors should be able to see if their underlings are fit for duty. "They shouldn't punish everybody for what one or two people do," he added, referring to past incidents involving fatal police shootings. "If you are a supervisor, you have to ensure that your personnel aren't out drinking when they shouldn't be."

The unions have had mixed results battling other departmental policy changes that they objected to over the past few years.

Hair-Test Precedent

They are also contending that the proposed Breathalyzer policy is not a disciplinary issue. The unions successfully used that same argument in blocking the department from switching from urine drug tests to hair screenings.

But one attorney familiar with Constitutional law said the union's legal argument may be weak. "The city has an interest in preventing irresponsible criticism of Police Officers," said Herbert Rubin, the senior partner of Herzfeld and Rubin. "I suspect that the law would favor the right of the Police Department to take such tests because the record of that type of conduct doesn't differ very much from the report records that they would automatically receive with respect to any unusual incident."

The issue is likely to lead to years of litigation, barring any change in the department's plan. "This may be a prolonged legal dispute," said one source. "The Police Department never backs down."