Back to Table of Contents By Michael Murray

Alcohol testing is a violation of the NYC police officer’s right to be free of unreasonable government searches and seizures... The policy results in the humiliating and traumatizing testing of police officers without cause.

Since I became PBA president in 1999, there have been over 500 onduty officer-involved shootings and not a single one where an officer was found unfit for duty. The mandatory Breathalyzer policy was a knee jerk reaction to community unrest for the sake of political expediency. There is no reason or justification to subject an officer who legally fires a weapon as trained within the guidelines of department policy to the humiliation and psychological trauma of a mandatory Breathalyzer test. Trained police professionals and the district attorney’s office investigate every police shooting. There is simply no cause to implement another layer of unnecessary procedures in the already vigorous investigative process.

Good policy is developed as a response to a documented problem after serious consideration and careful analysis. This is clearly a policy in search of a problem to solve. We are asking the court to examine the process leading up to the establishment of this wrongheaded policy that presumes our officers to be guilty when they are doing their jobs within the guidelines of the NYPD policy and within the confines of the law. Police officers should, at minimum, enjoy the same constitutional protections as the people they are sworn to protect. This policy tramples upon the rights of our officers by denying them the presumption of innocence.

End of article.

 

PBA Continues to Fight the Injustice of Alcohol Testing of Policre Officers Without Cause

“Before conducting a search, the Fourth Amendment requires probable cause and a warrant ‘because to require less would be to require citizens to surrender their privacy to prove their innocence, rather than requiring authorities to justify invading privacy by showing a good reason to believe that the citizen harbored evidence of a crime.’”
Nicholas v. Goord, 430 F. 3d 652, 680
(Lynch, J., concurring).

“Police [officers,] like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.”
Garrity v. New Jersey,
385 U.S. 493, 500 (1997).

Almostlmost immediately after the department implemented the policy requiring alcohol testing of police officers who discharge their weapons and wound or kill someone, the PBA legally challenged the action. The PBA believed that the policy was not only illegal but also unnecessary, designed only to placate a community angered by a highly publicized shooting in Queens.

The Department implemented the policy on alcohol testing on Sept. 30, 2007. Less than three weeks later, the PBA filed an action in federal court seeking a temporary restraining order, a preliminary injunction and a permanent injunction of the alcohol testing procedure.

The case was assigned to U.S. District Court Judge George Daniels, a former mayoral counsel in the Dinkins administration. From the outset, the judge expressed an unfavorable view of the police officers’ Constitutional claims, at least partly as a result of what the PBA believes was a misapplication of the law. He compared the alcohol-testing regime, which arises in the context of a criminal investigation, to random drug testing administered in connection with employment, a position that has been rejected by other courts. The judge heard arguments on November 20, 2007, but did not issue a decision for almost a year. On Sept. 30, 2008, the District Court denied the PBA’s request for a preliminary injunction.

The PBA has appealed this decision to the U.S. Court of Appeals for the Second Circuit. The PBA and the city have both filed briefs, and arguments are scheduled for this summer.

Why has the union continued to challenge alcohol testing? Because the PBA believes strongly in protecting the rights of its members and ensuring that their reputation as professional law enforcement officers is not collectively tarnished by the presumption of guilt associated with alcohol testing. PBA President Pat Lynch, on Oct. 8, 2007, summarized the union’s strong views on the issue (see text box at right) and why the union will continue to pursue the case vigorously: