he NYPD interim order issued by Commissioner Kelly on Sept. 30 that requires all uniformed police officers involved in a firearms discharge that results in injury or death be subjected to the indignity of a sobriety test is a flagrant violation of our members’ constitutional rights, and the PBA has sued in federal court to stop this misguided and unwarranted policy.

As a further indication of how radical a step this is, it should be noted that the NYPD is the only police department in the country to implement such a policy.

The politically-fueled order is not only unnecessary given the many effective procedures already in place to determine an officer’s fitness for duty but tramples on the officers’ Fourth Amendment protection againstunreasonable government searches — which is why we sued in the U.S. District Court in the New York Southern District Oct. 18 in an effort to stop the practice.

The PBA’ s petition for a permanent injunction ending the policy is pending.

Because it is clear that the policy was implemented unilaterally without negotiating with the PBA and we believe that it is a mandatory subject of collective bargaining, we are also challenging it as a violation of the New York City collective bargaining law. Accordingly, in cooperation with the DEA, LBA and SBA, we filed an improper practice petition at the Board of Collective Bargaining.

Since the policy was introduced, several incidents have demonstrated its injustice, the first of them coming a few days later.

On Oct. 3, three uniformed officers from the 48 Pct. were trying to arrest a man involved in a double-shooting. The suspect fired at the cops six times with a semi-automatic, and they returned fire in self-defense. The suspect and two cops were shot in the exchange. All three officers were taken to the hospital and not allowed to drink anything until they were tested. The suspect was indicted for 13 felonies, including three counts of attempted murder of a police officer. The cops — after being shot at, wounded and taking heroic action — were deprived of their Fourth Amendment rights, subjected to the indignity of a Breathalyzer test, and found, of course, to be fit for duty.

Three days later, an off-duty officer walked out of a diner where he had been having breakfast with his girl friend and saw a man stabbing a 67-year-old woman in the neck after having slashed another man in the neck. He ignored the officer’s commands to stop and came at him with a long knife in each hand. When the man was about three feet away, the officer fired one shot, wounding the man and stopping the threat. Again, his heroic action was rewarded by the indignity of an unconstitutional sobriety test.

Although the commissioner claims the policy is not politically motivated, he does say he based his decision on the recommendations of a panel created amid community agitation over the Nov. 2006 shooting of Sean Bell. The department has made no finding that on-duty intoxication is a significant problem and has not even suggested the possibility of such a problem. What inspired the policy, therefore, was not a demonstrated risk to public safety but a controversy arising from a shooting death. And that’s not political?

So politics has created a situation where cops taking appropriate police action are subjected to testing even if it’s abundantly clear that the firearms discharge was necessary and appropriate and even in the absence of any indication that the officer had consumed alcohol or was under its influence.

Apart from the outrageous constitution violation involved, let’s reduce the policy to the absurd by imagining a purely hypothetical, but not uncommon, situation requiring skilled and resourceful police action: A lunatic not responsible for his actions is about to attack an innocent victim with a machete. A police officer summoned to the scene un-holsters his service weapon and, with one accurately aimed shot, hits the assailant in the hand, disarming him and saving all lives at stake, including that of the disturbed person.

According to the policy, that police officer, who so efficiently served and protected must be submitted to the stigma of a sobriety test. If the officer had been less efficient, in other words, if the bullet had missed its mark and the victim’s life had been lost, there would be no sobriety test. That’s the topsy-turvy scenario created by the department in pursuing this policy and one of the many reasons why the PBA has sued to stop it.

Pat Lynch
President