Mandatory Post-Shooting Breathalyzer Testing of NYPD Officers is Legal

The special needs doctrine permits reasonable warrantless, suspicionless searches when there is a governmental interest that outweighs the privacy interest asserted by the person searched. In Skinner v. Railway Execs Association, 489 U.S. 602 (1989), for example, the governmental interest was ensuring that train engineers not operate locomotives while under the influence of intoxicants and that the engineers, knowing testing would occur in the event of any accident, would serve as a deterrent to those who might otherwise do so. The Supreme Court ruled that minimally invasive testing outweighed employees’ expectation of privacy and was therefore reasonable under the Fourth Amendment.

In a recent case, the Second Circuit Court of Appeals applied the special needs doctrine to post-shooting breathalyzer tests of police officers. As a result of a highly publicized shooting, the New York Police Department issued a policy requiring that all officers who discharge a firearm resulting in death or injury of another must immediately on scene submit to a breathalyzer test to be administered by a captain or higher rank. All officers firing a gun regardless of suspicion of intoxication are required to submit to the test.

The stated purposes of the policy were: (1) To protect the integrity of the NYPD; (2) to protect the safety of the public and NYPD officers; (3) to deter alcohol intoxication by officers who are carrying firearms; and (4) to assure the public that one of the most important and daunting powers of the police, the power to apply deadly force when necessary, was not being abused or used by officers who were under the influence of alcohol.

The Court ruled that the special needs doctrine applied to the NYPD testing because the “immediate purpose” of the testing was found not to be the collection of evidence of criminal activity, even though all shootings were investigated as crimes and the scenes treated as crime scenes. The Court found instead that the immediate purpose of the policy was to protect the integrity of the NYPD and the safety of the public by ensuring that officers using deadly force were in fact “fit for duty” at the time the force was used. The Court specifically found relevant that the testing was done in every case regardless of suspicion and was mandatory, not discretionary.

The Court concluded that the NYPD’s need to manage employees engaged in high risk, hazardous duties, such as carrying and discharging firearms, constituted a special need. Accordingly, the Court found no warrant or reasonable suspicion was required even if the test incidentally revealed evidence of criminal activity. The Court concluded that the government interest in protecting the public by ensuring only officers who were fit for duty may carry firearms outweighed the officers’ expectation of privacy.

The Court also pointed to the fact that officers were put on notice of the policy and the breathalyzer testing was required to be done in private by a captain or above in a respectful manner. In the Court’s judgment, those procedures adequately protected the officers’ privacy rights. The Court found that even if such breathalyzer tests required a warrant, the exigency of declining blood alcohol levels over a short period of time required that the test be performed without delay.

Lynch v. NYPD, 2013 WL6037215 (2d Cir. 2013).