NYPD breathalyzer policy does not violate Fourth Amendment

The NYPD imposed a policy that any officer who causes an injury as a result of gunfire must submit to a breathalyzer test to see if he was drinking. The police union challenged the policy as a Fourth Amendment violation. It's legal.

The case is Lynch v. City of New York, decided on December 11. The Fourth Amendment is quite brief. It says that the government may not subject you to unreasonable searches and seizures. Applying the Fourth Amendment is not so easy. What's reasonable? The answer to that question depends on the legal standard devised by the courts to make the amendment work. The standard here is "special needs."

The Second Circuit (Kearse, Cabranes and Straub) tells us that "The Fourth Amendment requires that searches and seizures be reasonable, and a search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Nonetheless, the Supreme Court has upheld certain regimes of suspicionless searches where the program was designed to serve special needs, beyond the normal need for law enforcement."

How do we apply the "special needs" doctrine? The court must determine the purpose of the search. Under "special needs," the primary purpose of the program must be unrelated to the government's general interest in crime control. If the search relates to a special need and is unrelated to a general interest in crime control, the court has to determine if the search is reasonable, i.e., "weighing the special need ... against the privacy interest advanced." This balancing test involves weighing (1) the nature of the privacy interest, (2) the nature of the government intrusion and (3) "the nature and immediacy of the government's needs, and the efficacy of its policy in addressing those needs."

Again, this balancing test appears nowhere in the Fourth Amendment. But the general language in the Fourth Amendment is not going to resolve any cases. "Reasonableness" is not specific enough to assess government policies, street searches and other intrusions. Here, the "special needs" test upholds the breathalyzer search, which is primarily unrelated to crime control; it ensures that an officer who fires his gun while intoxicated is quickly disciplined or removed from duty. The point is not to prosecute the officer. The policy also deters officers from carrying their guns while intoxicated. Personnel management is not crime control, the Court of Appeals concludes, and neither is NYPD's desire to promote its reputation.

What complicates things is that there is one crime control objective here: every shooting is a potential crime and breathalyzer tests produce useful evidence against the officer. But while the policy has multiple purposes -- "some unrelated to crime control and one directly to crime control" -- crime control is not the primary purpose. Since law enforcement officers have a diminished expectation of privacy and they already submit to drug testing, the three-part balancing test favors the City, and the police union is not entitled to a preliminary injunction against the policy. The City's "special needs" outweigh the union's privacy interests.