{"id":3629,"date":"2010-03-23T08:28:58","date_gmt":"2009-12-13T11:43:44","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-12-13T11:43:44","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3629","title":{"rendered":"CA2: NYPD policy to do BAC test in all duty firearms discharges with injury is constitutional under “special needs” exception"},"content":{"rendered":"

The NYPD policy that officers who discharge their firearms resulting in death or injury must be subjected to a breath test is constitutional. Lynch v. City of New York<\/a>, 589 F.3d 94 (2d Cir. 2009):<\/p>\n

We hold as follows: (1) the District Court did not make a “clearly erroneous assessment of the evidence” when it found that the primary purpose of the breathalyzer policy was not the NYPD’s “general interest in crime control” and thus fell under the “special needs” doctrine of our Fourth Amendment jurisprudence; (2) the fact that crime control was one purpose–but not the primary purpose–of the breathalyzer policy does not bar the application of the “special needs” doctrine to the breathalyzer policy; and (3) based on the record at this stage of the proceedings, the breathalyzer policy is reasonable under the three-factor balancing test of the “special needs” doctrine. We conclude, therefore, that the District Court’s denial of plaintiffs’ motion for a preliminary injunction was not an abuse of discretion.<\/p>\n

. . .<\/p>\n

Finally, we recognize that the NYPD’s reputation in the eyes of the public is directly tied to its effectiveness as a police force. See, e.g., Pappas v. Giuliani, 290 F.3d 143, 149 (2d Cir. 2002) (explaining that negative “public perception … [can] harm the mission of the Police Department”); see also Lidster, 540 U.S. at 425 (noting that information volunteered by the public plays a “vital role in police investigatory work”). Thus, to the extent that the breathalyzer policy improves the NYPD’s public reputation, it furthers an important governmental interest.<\/p>\n

In light of each of these factors, we conclude that “‘the special need[s]'” asserted by the NYPD outweigh the “‘privacy interest advanced'” by plaintiffs. Amerson, 483 F.3d at 83 (quoting Cassidy, 471 F.3d at 75). Accordingly, we hold that, on the record before us, plaintiffs have not demonstrated a “likelihood of success on the merits,” Plaza Health, 878 F.2d at 580, because the breathalyzer program is reasonable under the Fourth Amendment, based on this record. As a result, the District Court did not abuse its discretion in denying plaintiffs’ motion for a preliminary injunction.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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