NYPD police shooting drug and alcohol testing policy apparently will survive Skinner; TRO denied

In a suit brought by the officers’ union, a TRO is denied against NYPD’s policy of drug and alcohol testing officer’s involved in a shooting. Likelihood of success on the merits not shown under Skinner. Palladino v. City of New York, 2008 U.S. Dist. LEXIS 86757 (S.D. N.Y. September 30, 2008):

At this stage in the proceedings, plaintiffs have not sufficiently shown, in contravention to defendants’ assertions, that IO 52 and its enforcement likely does not constitute a special need. As in Skinner, the City of New York has a substantial interest in the safety of its citizens, visitors, and the police department. Defendants contend that a sober police force serves to further that interest and that IO 52 encourages sobriety. Morever, plaintiffs have proffered no evidence that IO 52 is a regulation primarily concerned with law enforcement. To date, there has been no evidence proffered that alcohol monitoring of police officers pursuant to the regulation has been used primarily for any other purpose than deterring alcohol consumption and increasing public confidence in police force action following a shooting. Moreover, plaintiffs have not argued, nor cited any evidence to conclude, that IO 52 has been applied in any particular manner that uniquely raises specific constitutional violations beyond their general challenge to the need for such a regulation.

Aspects of law enforcement, such as the use of police personnel to collect Breathalyzer samples, are undoubtedly involved in the administration of IO 52. However, at this juncture, plaintiffs have not shown that a primary purpose of the regulation is to generate evidence for prosecution. In fact, none of the four police officers cited, who have been subjected to Breathalyzer tests as a result of IO 52, were subject to prosecution or even found to be intoxicated.

Plaintiffs have 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. Absent a persuasive showing that the NYPD’s Breathalyzer testing is pretextual, it is to be initially assessed in light of its stated administrative purpose. No officer has been subject to criminal prosecution following an IO 52 search. At most, plaintiffs have alleged that criminal prosecution of offending officers may be an incidental purpose and future intended consequence of IO 52. The present record before this Court cannot support a conclusion that significant privacy concerns rise to an unconstitutionally prohibited level. On the record, as it presently exists, plaintiffs’ allegations are insufficient to warrant a preliminary injunction.