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Posted: 12/14/2013 12:12:34 PM EST
The 2nd Circuit Court of Appeals rendered an important decision in the chemical testing of NYPD officers involved in shooting incidents. The significance of this opinion, even if that Circuit isn’t necessarily authoritative in your jurisdiction, is that it is very clear in its analysis and follows case law from the U.S. Supreme Court. It distinguishes the “special needs” and “public safety” doctrines applicability to public employees and relationship to the Fourth Amendment provisions in criminal proceedings.

In November 2013 a panel of judges in the 2nd Circuit Court of Appeals took up the appeal of a previously decided case, Lynch v. City of New York, 589 F.3d 94 (2 Cir. 2009) concerning the NYPD provision to test all officers involved in a fatal or wounding shooting while either on- or off-duty. This court affirmed the district court’s award of summary judgment to the NYPD on the plaintiff’s Fourth Amendment challenge, which failed as a matter of law. This court also was impressed with the narrow scope of the NYPD written provisions.

The NYPD adopted a written policy following a 2006 shooting incident involving undercover officers that resulted in the death of Sean Bell and wounding of two of his companions. The NYPD convened a review committee and enacted a policy requiring alcohol testing “when a uniformed member of the (NYPD), on or off duty, is involved in a firearms discharge within New York City which results in injury to or death of a person.” The procedure was that a Captain from Internal Affairs Bureau would respond to the scene or station and administer a portable breathalyzer to the involved personnel. If the results were .08 or greater the officer would be tested by a second “more alcohol sensitive Intoxilyzer machine” at another location.

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