Judge Declines to Halt Cop Breathalyzers As Unions' Suit Proceeds

A Federal judge has refused to grant an injunction sought by three police unions to halt the post-shooting Breathalyzer tests for NYPD officers.

ROY T. RICHTER: A constitutional issue.

In his Sept. 30 decision, U.S. District Court Judge George B. Daniels also ruled that the unions' case against the city could proceed. This lawsuit is the consolidation of three complaints filed by Detectives Endowment Association President Michael J. Palladino, Patrolmen's Benevolent Association President Patrick J. Lynch, and Captains Endowment Association President Roy T. Richter, challenging an NYPD policy implemented last year in response to the Sean Bell shooting. In that case, the Detective who touched off the fatal confrontation admitted that as part of his undercover role he had a couple of drinks at the nightclub outside which the shooting took place.

Came Up Smelling Like Roses

In July, Det. Ivan Davison was the first officer to fail a sobriety test that became standard for all cops who fired their weapons and hit somebody. Detective Davison registered 0.09 — a hair over the legal limit of 0.08 — when he was tested following the shooting of an armed man who fired first at him. The Detective was immediately disciplined by the NYPD, but several days later — after both the media and Mayor Bloomberg praised his actions — Police Commissioner Raymond W. Kelly lauded him as a hero.

The three unions have challenged the sobriety test in lawsuits and with the Office of Collective Bargaining, because, they assert, the Breathalyzer constitutes an unreasonable search without suspicion. The unions also contend that previous officers were subjected to "embarrassment" and felt "sequestered," even though no criminal charges were filed against them.

Judge Daniels ruled the court could not immediately dismiss the lawsuits, because a decision must ultimately be made on the constitutionality of the sobriety test. He declined to order a halt to the post-shooting Breathalyzers because of "insufficient" arguments.

"I am disappointed the injunction was not granted but am pleased the Court denied the City's motion to dismiss," Mr. Richter said in a statement. "My members work hard at enforcing the law in a manner that protects the constitutional rights of NYC citizens. I hope the Court finds that these same constitutional rights apply to members of the Police Department."

Pivots on 4th Amendment

Judge Daniels said his ruling would come down to the Fourth Amendment, which in part deals with the right to be free from unreasonable search and seizure. "Subjecting police officers to a Breathalyzer exam, without a warrant, probable cause, or individualized suspicion, may constitute a search, which in turn, ignites a Fourth Amendment inquiry," Judge Daniels wrote. "This court must therefore continue its Fourth Amendment inquiry to determine if such searches are ... unreasonable."

In certain cases, searches are permitted without suspicion, if there is a "special need." Prior to this case, no court has decided if a Breathalyzer test following a police shooting qualifies as a special need.

"The present record before this court cannot support a conclusion that significant privacy concerns rise to an unconstitutionally prohibited level," the judge wrote.