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November 17, 2013
  Lynch v. City of New York
Headline: Second Circuit Upholds NYPD Policy of Administering Breathalyzer to Any Officer Who Discharges a Firearm and Causes Injury or Death

Area of Law: Constitutional Law

Issue(s) Presented: Whether a NYPD policy that requires breathalyzer tests for officers whose discharge of a firearm has caused death or injury to another person authorizes unconstitutional searches under the Fourth Amendment.

Brief Summary: The Patrolmen's Benevolent Association of the City of New York, a union representing New York City's police officers, challenged NYPD Interim Order 52 as unconstitutional under the Fourth Amendment. Order 52 requires officers who discharge their firearms causing injury or death to submit to breathalyzers immediately after the incident. New York City and the NYPD argued that Order 52 was constitutional under the "special needs" exception to the warrant and probable cause requirements of the Fourth Amendment. The Second Circuit agreed with the defendants and found that Order 52 served special needs distinct from the normal criminal law enforcement activities of the NYPD - namely, "personnel management and the maintenance of public confidence in the NYPD" - and otherwise fit within the exception to the warrant and probable cause requirements of the Fourth Amendment. Therefore, the Second Circuit affirmed the district court's ruling that Order 52 was constitutionally reasonable under the Fourth Amendment. To read the full opinion, please visit: ">http://www.ca2.uscourt.../de.....1/2/hilite/


Extended Summary: The Fourth Amendment protects the people's right to be secure in their persons and free from unreasonable searches. The Supreme Court has interpreted this Fourth Amendment protection to require a judicially sanctioned warrant or probable cause when the police undertake a search to discover evidence of criminal wrongdoing. In certain cases, however, a search without a warrant or probable cause can be constitutionally reasonable under the Fourth Amendment. One such exception to these requirements is applicable when there is a "special need" for the search beyond discovery of evidence or other normal law enforcement needs. The special needs exception recognizes that some searches are incompatible with the Fourth Amendment's warrant and probable cause requirements and do not involve the risks and harms the amendment was intended to protect. To fall within this exception, (1) the primary purpose of the search must be something other than normal criminal law enforcement activities, (2) the "special purpose" must serve an interest that outweighs the privacy interests at stake, and (3) the non-law enforcement objective must be incompatible with the usual warrant and probable cause requirements of the Fourth Amendment.

In Lynch v. The City of New York, The U.S. Court of Appeals for the Second Circuit applied the special needs exception to the New York City Police Department (NYPD) Interim Order 52 (Order 52). Order 52 requires the administration of a breathalyzer test to any officer whose discharge of his firearm results in death or injury to any person. Plaintiffs in the case were a union representing almost all of New York City's police officers and its President. They challenged Order 52 in the United States District Court for the Southern District of New York arguing it violated the Fourth Amendment. The district court found the law constitutional based on the special needs exception and granted summary judgment to the defendants.

On appeal to the Second Circuit, plaintiffs argued that Order 52 did not meet the requirements for the special needs exception to apply. Specifically, plaintiffs argued that Order 52 did not have a primary purpose distinct from normal criminal law enforcement and, even if it did, those special needs did not outweigh the invasion of the officer's privacy interest. The Second Circuit rejected these arguments and found Order 52 constitutionally reasonable under the special needs exception to the Fourth Amendment.

The court first examined Order 52 to determine whether it had a primary purpose distinct from normal criminal law enforcement activities. After reviewing the record, the court held that the primary purpose of the law was to determine an officer's sobriety at the time he discharged his firearm. Since sobriety is a fitness-for-duty condition of NYPD employment, Order 52 served interests related to managing personnel and maintaining the public's confidence in the NYPD. Moreover, the court noted that both the NYPD and the public have an interest in finding out whether officers were complying with department sobriety guidelines when he discharges his firearm and causes injury or death. Therefore, Order 52 had a primary purpose that was distinct and separate from normal law enforcement activities. Next, the court found that the personnel and public confidence objectives of Order 52 were incompatible with the usual warrant requirements. Finally, the court relied on Supreme Court precedent to find that Order 52 was reasonable because special needs outweighed the privacy intrusion. The court held officers have little privacy expectations because they are entrusted with firearms and must be fit for duty and that a breathalyzer imposes a minimal intrusion on the officer's privacy. The NYPD's need to promptly confirm whether officers who discharge their weapons were fit for duty outweighs this intrusion. Therefore, according to the court, the special needs exception applied and the law was constitutional.

To read the full opinion, please visit: ">http://www.ca2.uscourt.../de.....1/2/hilite/


Panel: Circuit Judges Raggi and Straub; District Judge Cogan

Argument Date: May 16, 2013

Argument Location: New York

Date of Issued Opinion: November 15, 2013

Docket Number: 12-3089-cv

Decided: Affirmed

Case Alert Author: Christopher Roma

Counsel: Andrew L. Frey, Mayer Brown LLP, for Patrolmen's Benevolent Association of the City of New York, Inc.; Edward F.X. Hart, for The City of New York, New York City Police Department and Raymond W. Kelly.

Author of Opinion: Circuit Judge Raggi

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 11/17/2013 01:14 PM     2nd Circuit  

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