This month, we discuss Lynch v. City of New York,1 in which the U.S. Court of Appeals for the Second Circuit considered a Fourth Amendment challenge to the New York City Police Department’s policy to administer breathalyzer examinations to any police officer who discharges a firearm resulting in death or personal injury. In an opinion by Judge Reena Raggi, joined by Circuit Judge Chester J. Straub and Eastern District Judge Brian M. Cogan (sitting by designation), the court held that the police department’s breathalyzer policy is reasonable under the “special needs” doctrine applicable to the Fourth Amendment’s proscription against unreasonable searches and seizures.2 The court found that the primary purpose of the police department’s policy is to determine an officer’s sobriety at the time he discharged his weapon, and that the police department’s interest in its special needs is not compatible with normal warrant requirements. The court also determined that the police department’s interests in this context sufficiently outweighed the privacy interests of tested police officers.

The Lynch decision presents a balance among the privacy rights of police officers, the police department’s interest in ensuring the sobriety and fitness of its force, and the public’s interest in ensuring confidence in police activities attendant to the use of deadly force.

Background

New York Police Department (NYPD) Interim Order 52 (IO-52) arose out of a Nov. 26, 2006, shooting in Queens, when, during an undercover operation, NYPD officers shot and killed Sean Bell and wounded two others. Facing public criticism, on Sept. 30, 2007, the NYPD implemented IO-52, which sets forth procedures for 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 stated purpose of IO-52 is “[t]o ensure the highest levels of integrity at the scene of police involved firearms discharges which result in injury to or death of a person.”3

IO-52 requires that any officer whose discharge of a firearm results in death or personal injury remain on the scene, when feasible and safe, until a duty captain arrives and administers a portable breathalyzer test. If the breathalyzer test reads less than .08 blood alcohol level, then the policy requires no further testing. If the reading is .08 or greater, then the officer must be transported to a testing location for a second, more sensitive Intoxilyzer test, and videotaped questioning about recent alcohol and drug use.

The videotape may be kept for “evidentiary purposes,” and the officer may be deemed unfit for duty. Under police department regulations, an officer who is “unfit for duty due to excessive consumption and intoxication from alcohol while armed with a firearm” is subject to administrative charges with “strict punitive sanctions” if the charge is sustained, including potential termination from the NYPD.4

Since the 2007 implementation of IO-52, NYPD officers have been subjected to breathalyzer testing on 15 to 20 occasions. No officer exceeded the .08 threshold during Intoxilyzer testing, and no officer was criminally charged in connection with the shootings. Some officers, however, found IO-52 testing burdensome, embarrassing, stressful, and degrading.

In 2007, the Patrolmen’s Benevolent Association of the City of New York Inc., a New York City police union representing 35,000 officers, and its president, sued New York City, the NYPD, and the NYPD police commissioner, in the U.S. District Court for the Southern District of New York, alleging that IO-52 is an unconstitutional search in violation of the Fourth and Fourteenth amendments.5

Prior Proceedings

Plaintiffs moved for a preliminary injunction prohibiting the enforcement of IO-52. In September 2008, U.S. District Judge George B. Daniels denied plaintiffs’ preliminary injunction motion. The district court reasoned that plaintiffs had not “argued that the text of IO 52 and the safety and reputation rationales proffered by defendants were crafted as pretext to enable the gathering of evidence against police officers for criminal prosecution[,]” and that, absent this showing of pretext, the court assessed IO-52 in light of its stated administrative purpose.6 The district court determined that, on the existing record, plaintiffs had not shown that their privacy concerns rose to an unconstitutionally prohibited level. Having determined that plaintiffs were unlikely to succeed on the merits, the district court denied their preliminary injunction motion. Plaintiffs appealed.

In 2009, the Second Circuit affirmed the district court’s denial of a preliminary injunction.7 In an opinion by Judge Jose Cabranes, the court first determined that IO-52 qualified as a “governmental action taken in the public interest” and “pursuant to a statutory or regulatory scheme.”8 The court reasoned that IO-52 facilitates “personnel management” by allowing the police department quickly to identify and take appropriate action against officers who fired guns while intoxicated. IO-52 testing also promoted the police department’s reputation by showing that the department takes its alcohol and firearms policies seriously. And IO-52 serves criminal law enforcement because it is one investigatory tool at the police department’s disposal to determine if an officer had violated the law.

In light of these purposes, the court determined that criminal law enforcement was not the “primary purpose” of IO-52, and concluded that plaintiffs were unlikely to succeed on their Fourth Amendment challenge. The court also determined that IO-52 likely reflected a reasonable balance between the NYPD’s special needs and the officers’ privacy interests.

On remand, discovery proceeded and the parties cross-moved for summary judgment. Relying on the Second Circuit’s previous analysis, the district court concluded that IO-52 testing is constitutionally reasonable as a matter of law and granted the NYPD’s motion for summary judgment.9 Plaintiffs appealed.

The Second Circuit’s Decision

The Second Circuit confronted two questions: (1) whether the objectives of IO-52 qualify as “special needs” for purposes of Fourth Amendment reasonableness; and (2) whether those special needs outweigh the officers’ expectations of privacy.

The ‘Special Needs’ Doctrine and the NYPD’s Objectives for IO-52. The court first discussed the “special needs” exception to the Fourth Amendment’s warrant requirement and the NYPD’s objectives for the IO-52 policy. The court explained that, generally, when a search is undertaken by law enforcement officials to discover evidence of criminal action, the Fourth Amendment requires obtaining a warrant supported by probable cause.10 However, warrantless searches are constitutionally reasonable where “special needs, beyond the normal need for law enforcement,” are present.11 As the court explained, the standard that distinguishes a non-law enforcement need as “special” is its “incompatibility with the normal requirements of a warrant and probable cause, and, especially, the corollary that the nature of the search involved greatly attenuates the risks and harms that the warrant and probable cause requirements are intended to protect against.”12

The court then assessed the primary purpose of IO-52. The factual record showed that testing employed through the IO-52 procedures determined sobriety, and nothing in the record showed that IO-52 testing itself indicated a suspicion of criminal behavior. While IO-52 testing results might ultimately be used as evidence in an officer’s criminal prosecution, the record did not show that the immediate purpose of IO-52 was to gather evidence in order to prosecute. Instead, the record showed that the immediate purpose of IO-52′s sobriety testing regime is to manage police personnel and to maintain public confidence in the NYPD.

Analogizing to other special needs exceptions in the workplace for things like drug testing for customs employees and railroad workers, the court determined that “[b]reathalyzer testing most obviously serves these special needs by promptly revealing whether a police officer was in compliance with department guidelines respecting alcohol use and fitness for duty when he discharged his firearm.”13 For instance, if an officer fired a gun while not under the influence of alcohol, the IO-52 testing assures the NYPD and the public that the officer was fit for duty when he fired; conversely, if the IO-52 testing showed intoxication, the results provide evidence of violation of NYPD policy, allowing appropriate discipline and the maintenance of public confidence in police actions. The court determined that IO-52 also serves the purposes of personnel management and increasing public confidence “by providing an added deterrent to officers who might otherwise consider carrying their firearms while unfit for duty due to alcohol.”14

The court next assessed whether the non-law enforcement objectives of IO-52 qualified as “special needs,” because they were incompatible with the usual warrant and probable cause requirements of the Fourth Amendment. The court noted that a warrant normally serves to advise citizens that a privacy intrusion is authorized by law. In the case of IO-52, however, the mandatory testing regime is well known to police officers without additional notice. The court also noted that the NYPD’s interest in dispensing with the warrant requirement was strongest when the burden of obtaining the warrant was likely to frustrate the purpose behind the search. Because alcohol in the bloodstream diminishes over time, the delay associated with obtaining a warrant could negatively affect the probative value of breathalyzer results.

The court accordingly concluded that the non-law enforcement objectives of IO-52 were properly deemed “special needs” because they were “incompatible with the general warrant/individualized suspicion requirements and, further, that the mandatory, narrow, and specific nature of IO-52 testing greatly ameliorates the mischief that the warrant/individualized suspicion requirements were designed to prevent.”15

Balancing the NYPD’s Special Needs With Police Officers’ Privacy Interests. Finally, the court assessed the “reasonableness” of IO-52 by balancing the NYPD’s special needs with the officers’ privacy interests. The court assessed IO-52′s reasonableness against three factors: “(1) the nature of the privacy interest involved; (2) the character and degree of the governmental intrusion; and (3) the nature and immediacy of the government’s needs, and the efficacy of its policy in addressing those needs.”16

The court concluded that IO-52 is reasonable and that the relevant factors weighed in favor of the NYPD. First, because police officers are authorized to carry firearms and use deadly force in appropriate circumstances, they already have a diminished expectation of privacy in police department testing of their fitness for duty. Thus the officers could not claim a strong privacy interest in avoiding testing that confirms their fitness.

Second, the court determined that the breathalyzer testing at issue in IO-52 is not the type of testing that traditionally implicates significant privacy concerns. The breath testing is minimally invasive, when compared to alternate methods such as blood tests or urinalysis. The testing also does not threaten the health or safety of officers.

Third, the court determined that the NYPD’s need to confirm promptly that officers were fit for duty is manifest and is directly addressed by IO-52, because the NYPD has a substantial interest in promptly confirming for itself and the public that officers discharging firearms are fit. The court also determined that the NYPD was not required to show that less-intrusive, suspicion-based testing was not practical before implementing IO-52. The NYPD was not required to choose the least intrusive means of search, and other mechanisms (such as observation by other officers) were unlikely to inspire the public confidence that the policy seeks to bolster.

Having found the IO-52 policy both supported by special needs and reasonable, the court determined that IO-52 breath testing did not violate the officers’ Fourth Amendment rights.

The Implications of ‘Lynch’

The Second Circuit’s holding in Lynch has two important implications. First, the Lynch decision formalizes the reduced privacy expectations that law enforcement and other security personnel have due to their public safety responsibilities. The court’s decision effectively permits the government to engage in more intrusive searches if individuals are placed in a position of ensuring public safety, such as police officers and train operators. This reduced privacy expectation may be a functional condition of the job. Where the courts draw this line in years to come will have important consequences for individuals holding such positions.

Second, the court’s holding may lend credence to suspicionless breathalyzer testing in other circumstances. The court noted that this form of testing entailed no harm to the individual, was minimally intrusive in physical space and in time, and was viewed as particularly legitimate by the public. While the court’s Lynch opinion itself is limited to its unique law enforcement context, it may have implications for broader use of suspicionless breath testing in other contexts. In this way, the Lynch decision marks an important contribution to Fourth Amendment jurisprudence.

Martin Flumenbaum and Brad S. Karp are members of Paul, Weiss, Rifkind, Wharton & Garrison. They specialize in complex commercial litigation and white-collar criminal defense matters. Blaise Warren, a litigation associate at the firm, assisted in the preparation of this column.

Endnotes:

1. No. 12-3089-cv, —F.3d—, 2013 WL 6037215 (2d Cir. Nov. 15, 2013).

2. U.S. CONST. AMEND. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”).

3. Lynch, 2013 WL 6037215, at *1-2 (internal citations omitted); see Palladino v. City of New York, 870 F.Supp.2d 350 (S.D.N.Y. 2012).

4. Lynch, 2013 WL 6037215, at *2.

5. Palladino v. City of New York, No. 07 CV 9246, 2008 WL 4539503, at *1 (S.D.N.Y. Sept. 30, 2008).

6. Id. at *5.

7. Lynch v. City of New York, 589 F.3d 94 (2d Cir. 2009).

8. Id. at 99 (citing Plaza Health Labs. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989)).

9. Palladino, 870 F.Supp.2d at 352-57.

10. Lynch, 2013 WL 6037215, at *5 (citing Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995)). There was no dispute that the Fourth Amendment applies to the NYPD and that IO-52′s breathalyzer procedure constitutes a search within the meaning of the Fourth Amendment.

11. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 619 (1989) (internal citations omitted).

12. United States v. Amerson, 483 F.3d 73, 82 (2d Cir. 2007).

13. Lynch, 2013 WL 6037215, at *8.

14. Id.

15. Id. at *11.

16. Id.