Breathalyzer for Cop In Queens Shooting Spurs Union Protests;
Detective Back on Full Duty But DEA, PBA Say Case Shows Policy's Flaws
By TOMMY HALLISSEY

Police Commissioner Raymond W. Kelly July 16 restored a Brooklyn Detective to full duty following union outcry over a modified-duty assignment after he failed a Breathalyzer test compelled by his off-duty shooting of an armed man.

MICHAEL PALLADINO: 'Cop treated like a criminal.'

Det. Ivan Davison, a 15-year veteran, was the first NYPD officer to fail a Breathalyzer test after a police-involved shooting since the new policy began last September in response to the 2006 police shooting of Sean Bell outside a Queens club. (The Detective who initiated the fatal confrontation had a couple of drinks inside the club while working undercover.)

Slightly Above Limit

Detective Davison, assigned to Brooklyn South Narcotics, registered a 0.09 on the sobriety test following the July 13 shooting, just above the department standard - and legal limit for DWI in New York - of 0.08, according to Paul J. Browne, the NYPD's chief spokesman.

He was first suspended because of the failed Breathalyzer, and a refusal to accompany Internal Affairs Bureau personnel to its site for more extensive testing, Mr. Browne said. Commissioner Kelly initially changed Detective Davison's status to modified duty before fully reinstating him at a time when media sentiment and Mayor Bloomberg turned in favor of the cop's actions.

PATRICK J. LYNCH: Breathalyzer 'wrong message.'

Mr. Kelly's reversal came a day after Detectives Endowment Association President Michael J. Palladino cried foul. "It's terrible; he was treated as though he was the criminal," he said. "The focus changed. He was now the subject of search warrants for blood and his car."

Patrolmen's Benevolent Association President Patrick J. Lynch also spoke out against the Breathalyzer tests. "Among [the sobriety test's] problems is that it fails to take real-life police situations into account, it sends a message to off-duty officers not to get involved in crime-fighting and prevention, it can make them hesitate to use their weapons even when quick action is called for, and it accomplishes nothing at all in the effort to determine whether or not a shooting was justified," he said.

Unions May Combine Suits

The PBA lawsuit filed in October challenging the post-shooting Breathalyzers, and similar suits from the other city police unions, could be combined in the coming weeks, according to Philip Seelig, a lawyer for the Captains Endowment Association. On the day Detective Davison got his gun back, a conference was canceled on the CEA lawsuit against the city because several court motions have not yet been decided. The case is scheduled to be back in Federal court on Nov. 6.

"To tell you the truth, we welcome it," said Roy Richter, president of the CEA. "We are in favor of consolidating the lawsuits. Just because you join the Police Department doesn't mean the Constitution of the United States doesn't apply to you."

RAYMOND W. KELLY: Took appropriate action.

The CEA lawsuit contends that the Breathalyzer tests are improper because there are not based on suspicion, but rather applied in every police-involved shooting. Violation of the Fourth Amendment - protecting citizens against unreasonable searches - is also charged.

Police unions expressed concern that Detective Davison's case may have a chilling effect on other officers. "You're crazy to get involved in anything off-duty - that's reality," said a Bronx Detective. He said the Breathalyzer test may discourage more officers from intervening off-duty, but added. "It didn't pay before to get involved."

'Drinking and Guns Don't Mix'

This Detective, who always carries an off-duty weapon, called the sobriety test "ridiculous." He said, however, he could understand where the Police Department was coming from. "Drinking and guns do not mix," he said. "It's been that way since the Wild West."

Mr. Palladino said the Police Department is sending the wrong message to its officers with the post-shooting Breathalyzers. "It will have a demoralizing effect on the department because the message that they are sending is if you're off-duty, get a description, call 911 and don't get involved any further, because you risk getting disciplined even if you're right."

At 2 a.m. July 13, Detective Davison was walking near Farmers and Linden boulevards in St. Albans, Queens with a group of six other men. He saw three men assaulting another man. After Detective Davison stepped in to intervene, Stephon Allston, 22, pulled out a Tech-9 and allegedly pointed it at the Detective's group, police said. Detective Davison identified himself and ordered Mr. Allston to put down his weapon. Mr. Allston allegedly opened fire, but missed the Detective, police said. Two 9-millimeter shell casings were found at the scene.

Detective Davison returned fire four times with his semi-automatic Glock, hitting Mr. Allston in the left arm and leg, police said. The off-duty officer called 911 to report the shooting. He was later taken to Jamaica Hospital, where he was treated for high blood pressure and released.

'Acted Heroically'

"He acted appropriately and heroically," said Mr. Palladino.

Mr. Allston and Rasheem Anderson, 24, who both have prior criminal records, were arrested at Franklin General Hospital in Nassau County, where Mr. Allston was treated for gunshot wounds. Mr. Allston faces attempted murder charges, but he has not been arraigned yet because he is still in the hospital, according to the Queens District Attorney's Office.

In July 2003, Mr. Allston spent four days in city jail for robbery, according to the city Department of Correction. In January 2007, he spent five days behind bars for second-degree assault. On May 29, he pleaded guilty to possession of marijuana. The judge gave him a one-year conditional discharge as well as 15 days of community service, according to state records.

A third man was later arrested in the July 13 incident.

Won't Alter Policy

The Police Commissioner said after reversing his initial decision that during the investigation, witnesses were located and it became apparent that the shooting did not violate department guidelines. Mr. Browne said the Police Department would not alter its policy in light of the public outcry over Detective Davison's case. "Alcohol test results are still weighed as part of the totality of circumstances in such cases," said Mr. Kelly. Change of duty status, Mr. Browne said, is not mandatory, according to department guidelines.

"We said from the beginning that it would be possible to have cases where officers might test positive for alcohol use, and also be found to have taken appropriate police action," Mr. Kelly said. "This is the first such case."