Vol. 29 No. 1 – Federal Court Rules That A Warrantless Breathalyzer Test Of An Officer After An “OIS” Is Lawful


On November 15, 2013, the Second Circuit U.S. Court of Appeals ruled, inLynch v. City of New York, that the New York Police Department’s (NYPD) policy of administering a warrantless breathalyzer test to any officer who discharges a firearm, resulting in death or personal injury, is constitutional.

Patrick J. Lynch, as President of the Patrolmen’s Benevolent Association of the City of New York, Inc. (PBA), sued the City, the NYPD, and NYPD Commissioner Ray Kelly claiming that the policy violated the Fourth Amendment of the Constitution and was an unreasonable search and seizure.

On appeal, the Plaintiffs “challenged the district court’s determination that the policy is constitutionally reasonable under the ‘special  needs’ doctrine.” The PBA argued that “the policy does not serve a primary purpose distinct from normal criminal law enforcement, and, even if it did, that any special needs are sufficiently outweighed by officers’ privacy interests as to preclude warrantless, suspicionless breathalyzer testing.”

The Court of Appeal noted that this “case has previously been before this court. In Lynch v. City of New York (“Lynch I”), 589 F.3d 94 (2d Cir. 2009), we affirmed the denial of plaintiffs’ motion preliminarily to enjoin the operation of [Interim Order] IO-52, concluding that plaintiffs were unlikely to succeed on the merits of their Fourth Amendment challenge because IO-52 testing was supported by ‘special needs.’”

Following the denial of the injunction, plaintiffs’ brought this suit and the district court granted the City summary judgment.

The Court of Appeals held that “on our own review of an expanded record as well as relevant precedent, we conclude that IO-52 testing is reasonable under the special needs doctrine and that plaintiffs’ Fourth Amendment challenge fails as a matter of law. Accordingly, we affirm the award of summary judgment in favor of the NYPD.”


“IO-52 has its origins in events occurring in Queens, New York on November 26, 2006, when, during an undercover operation, NYPD officers shot and killed a man named Sean Bell and wounded two of his companions. In the wake of public criticism, the NYPD convened a Committee for Review of Undercover Procedures, chaired by Charles V. Campisi, Chief of the NYPD Internal Affairs Bureau (“IAB”), which is charged with investigating police misconduct.”

“The Committee ultimately released 19 recommendations, including a recommendation for mandatory breathalyzer testing of NYPD officers involved in shootings that resulted in death or personal injury. On September 30, 2007, the Police Commissioner implemented that recommendation by issuing 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 purpose of IO-52, as stated by the City, is “(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 NYPD 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, is not being abused or used by officers who are under the influence of alcohol.’”

Following an officer involved shooting (OIS), resulting in death or injury, the officer is ordered to remain “on the scene when feasible and consistent with safety (i.e., hospitalization not immediately required) until an IAB Duty Captain arrives to administer a portable breathalyzer test.”

The Order then states, “if the reading is .08 or greater, however, the officer must be transported to an IAB testing location for a second, more alcohol sensitive test on an Intoxilyzer machine. That process, which includes questioning the officer about recent alcohol and drug use, is recorded on videotape. If the Intoxilyzer reading exceeds .08, the videotape is provided to the IAB Duty Captain, who follows applicable procedures to ‘safeguard [it] for evidentiary purposes.’  The IAB Duty Captain then determines whether the officer is unfit for duty due to intoxication.”

A formal investigation would then be conducted and “within 90 days of the shooting, or as soon as possible thereafter, a commanding officer must complete a final report of findings and recommendations, including therein the Medical Examiner’s report (if applicable), a ballistics report, a summary of the shooting officer’s statements, and any applicable IAB, District Attorney, or grand jury findings.”

“Plaintiffs submit that since the 2007 implementation of IO–52, NYPD officers have been subjected to IO–52 breath testing on approximately 15 to 20 occasions. No tested officer has exceeded the .08 threshold on Intoxilyzer testing, nor has any officer been criminally charged in connection with the shootings at issue. Nevertheless, plaintiffs have submitted affidavits from some of the tested officers stating that they found IO–52 testing burdensome, embarrassing, stressful, and degrading. These same officers, like all their NYPD counterparts, are subject to periodic, and even random, drug testing throughout their NYPD careers.”

“Special Needs” Exception To The Fourth Amendment

The Court discusses the application of the Fourth Amendment’s prohibition on “unreasonable” searches and seizures, concludes that the compelled breathalyzer test is a search and, therefore, “IO–52 testing must satisfy the Fourth Amendment’s ‘reasonableness’ requirement.”

The Court, citing to several U.S. Supreme Court decisions, including Skinner v. Railway Labor Execs.’ Ass’n, 489 U.S. 602 (1989), notes that a warrant is usually necessary before the government can conduct a search, however, “warrantless, even suspicionless, searches can be constitutionally reasonable where ‘special needs, beyond the normal need for law enforcement,’ are “present.”

Again, citing to prior Supreme Court rulings, the Lynch court states that “the ‘special needs’ category of constitutionally permissible warrantless, suspicionless searches is ‘closely guarded.’ Thus, to ascertain whether a search program serves special needs beyond normal criminal law enforcement, a court must conduct a ‘close review of the scheme at issue’ in light of ‘all the available evidence’ to determine its ‘primary purpose.’”

The Court discusses all of the issues and arguments raised by the Plaintiffs’ but concludes that, “both by promptly determining whether officers who discharged their firearms were in compliance with NYPD fitness-for-duty requirements and by deterring officers generally from carrying firearms when not sober, IO–52 testing serves personnel management and public confidence needs distinct from normal law enforcement.”

The Court also concludes that “the primary non-law enforcement objectives of IO–52 testing—personnel management of and public confidence in the NYPD—are properly deemed ‘special needs’ in that they are 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.”

Privacy Interests

Nonetheless, states the Court, “the identification of special needs does not, by itself, mean that it is constitutionally reasonable to conduct such searches in the absence of a warrant or individualized suspicion. That conclusion requires a further finding that the interests served by the special needs outweigh the privacy interests at stake.”

Insofar as the privacy interests are concerned, the Court states that “with particular reference to public employees required to carry firearms in the line of duty, ‘[b]ecause successful performance of their duties depends uniquely on their judgment and dexterity, these employees cannot reasonably expect to keep from [their employers] personal information that bears directly on their fitness.’”

As such, “plaintiffs cannot claim that police officers who actually discharge their firearms, causing death or personal injury, have a strong privacy interest in avoiding IO–52 testing to confirm their fitness for duty.”


When evaluating the reasons for IO-52, the Court finds that the testing meets all of the criteria for a warrantless search.  “First, it is evident that IO–52 testing is conducted to determine an officer’s sobriety at the time he discharged his firearm. Sobriety is a fitness-for-duty condition of employment with the NYPD. Thus, a sobriety determination serves special needs distinct from criminal law enforcement, specifically, personnel management of, and maintaining public confidence in, the NYPD. Indeed, these needs must be served in every police shooting case, without regard to whether the shooting implicates the criminal laws, which most police shootings, in fact, do not.”

“Second, the NYPD’s interest in these special needs is not compatible with the warrant requirement applicable to criminal investigations.”

“Third, the NYPD’s interest in these special needs sufficiently outweighs the privacy interests of tested police officers as to render warrantless, suspicionless IO–52 testing constitutionally reasonable.”


To implement such a program it is necessary for a law enforcement agency to have a policy in place setting forth the process to be followed.  NYPD’s policy is very detailed and alerts all officers to what will occur following an OIS resulting in death or injury.

The primary challenge by the PBA focused on their contention that, despite the existence of the policy, a warrant was needed before subjecting the officer to such a search.

However, the Court found that, “having carefully weighed the relevant factors in the specific context of this case, we conclude that the NYPD’s special need to manage a force of officers authorized to carry firearms and to use deadly force, as well as its special need to maintain public confidence in the NYPD, outweigh the privacy interests of a police officer who has discharged his firearm so as to cause death or personal injury with respect to undergoing the negligible intrusion of breathalyzer testing.”

As such, “we conclude that warrantless, suspicionless IO–52 breath tests are supported by special needs and constitute reasonable searches under the Fourth Amendment. The district court therefore correctly entered summary judgment in favor of the NYPD.”

The Court refers to many U.S. Supreme Court decisions in reaching its conclusions, including Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989), which held that, in the case of train engineers, it would be “most impracticable” to require individualized suspicion of substance abuse in the aftermath of a train accident when conditions are chaotic at best.

The Court concluded that the tests pose only a limited threat to privacy interests in contrast to the government’s compelling need for [railroad] safety.  It appears that the same logic is applicable to peace officers and their use of deadly force.

In addition, although the Lynch decision is from the 2d Circuit U.S. Court of Appeals, it appears to be consistent with prior 9th Circuit decisions involving employees who hold “safety sensitive” jobs.

For example, in the case of International Brotherhood of Electrical Workers v. Skinner, 913 F.2d 1454 (9th Cir. 1990), the Court found that while random testing without individual suspicion intrudes on an employee’s privacy, there is a diminished expectation of privacy in working in an industry with strong safety needs.

Furthermore, following the 1989 U. S. Supreme Court decision in Skinner, the 9th Circuit, in 1991, in the case of Railway Labor Executives’ Assoc. v. Skinner, 934 F. 2d 1096 (9th Cir. 1991) held that random drug testing for “safety sensitive positions” does not violate the Fourth Amendment.

As in all matters involving the law, it is imperative that you seek out advice and guidance from your agency’s legal advisor.  However, and as always, if you wish to discuss this case in greater detail, feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.

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