Testing NYPD Shooting Edict

A week after three Detectives involved in a Bronx shooting were required to take a Breathalyzer test under a new NYPD policy, several police unions are about to file suit in Federal court seeking to have the policy declared unconstitutional.

The NYPD maintains that the policy - which requires such testing following any incident in which someone is struck by a bullet fired by cops - is consistent with Police Commissioner Ray Kelly's right to establish disciplinary procedures for members of the force. It was implemented based on a June recommendation by a special panel he had tapped to examine the department's procedures for undercover cops in the wake of the fatal shooting of Sean Bell last Thanksgiving weekend outside a Queens club.

The three cops who were tested last week - Dets. Daniel Rivera, William Gonzalez and Thomas Murphy - all came up clean. Detectives Rivera and Gonzalez were trying to execute a warrant on a criminal suspect, Jermaine Taylor, who after jumping out a second-floor window to escape them, allegedly began shooting at the two cops and Detective Murphy, prompting them to return fire. Detectives Rivera and Gonzalez suffered minor wounds. Mr. Taylor, who suffered a broken hip from his leap from the window, was charged with two counts of attempted murder of a police officer and illegal gun possession.

Under the circumstances, it seemed a clearly justifiable use of deadly force by the Detectives, and that was the preliminary pronouncement by the NYPD. Nonetheless, the three Detectives had to undergo Breathalyzers, and the reason is understandable, given the policy: if the NYPD exempted cops when it was clear that the shooting was appropriate, it would cast a shadow over officers who were compelled to take the test in situations where their conduct was not as obviously beyond reproach.

The filing of the lawsuit by the unions, as well as a pending complaint to the Office of Collective Bargaining that will assert that the NYPD is required to bargain such a policy with the unions before attempting to implement it, mean that the matter will ultimately be decided based on legal issues.

Our problem with the policy apart from whether it runs afoul of either the Constitution of the city's Collective Bargaining Law, is, as we've stated previously, that it amounts to a reaction to a case that has yet to be decided in court.

While advocates for Mr. Bell and the two men who were in the car with him when police fired 50 shots claim that the undercover officer who initiated the gunfire may have been drunk, there is no evidence to substantiate that allegation.

Mr. Bell, on the other hand, was found to be heavily intoxicated after spending hours at a strip club on the same day that he was supposed to be married. Those circumstances may very well have affected his judgment; if he believed complying with the order from the undercover officer not to move could lead to his being incarcerated on the day he was to be married, that could explain why he instead crashed into the officer and then into a police van when he put the car in reverse.

Commissioner Kelly undoubtedly implemented the policy with an eye toward calming a minority community that was upset over the fatal shooting of an unarmed man. A jury may very well find, however, that the cops became justified in using deadly force once Mr. Bell began using his car as a weapon. Launching the Breathalyzer testing prematurely puts an onus on other officers before a jury has given some indication as to whether there was a substantive problem - as opposed to a public-relations one - that needed to be addressed.