Opposition Brief — Lynch v. City of New York

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IWARD FA. HAR’

LAN M. SCHLI

ANE ILL. GORDON

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City of New York

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REASONS FOR DENYING THE PETITION

THE SECOND CIRCUITS DECISION

AFFIRMING THE DISTRICT COURT'S

ORDER DENYING PETITIONERS’

MOTION FOR A PRELIMINARY

INJUNCTION IS LEGALLY CORRECT

AND DOES NOT CONFLICT IN A

MEANINGFUL WAY WITH ANY

DECISION OF THIS COURT,

ANOTHER COURT OF APPEALS, OR

OTHERWISE WARRANT FURTHER

REVIEW BY THIS COURT

l. Having failed to move for summary

judgment, and having opposed

respondents cross-motion for summary

judgment with ae claimed need = for

discovery, petitioners’ request for a

decision on the merits now is

irreconcilable with their prior positions

[!. Petitioners ignore ample evidence of a

special need for IC 52 in order to frame

an issue worthy for this Court's review

CONCLUSION

ABLE OF AUTHORITIES

. 8B,

L aS@CS ‘

American Constr. Co. v. Jackson’

Tampa & ee ry W. Ry. Co

we)

148 LU! S Xe (17893)

Cassidy v. Chertoff,

471 F.3d 67 (2d Cir. 200

City of Indianapolis v. Edm

931 U.S. 32 (2000)

Jickerson v oe

604 F.3d 732 (2d Cir

Merguson v. City of Charlest

532 U.S. 67 (2001)

Gillespie v. U.S. Steel C

379 U.S. 148 (1964)

Cireene v. Camereta

988 F.3k

Hamilton-Brown Shoe C

Wolf Bros. & Co.,

240 U.S. 251 (1916

¥ ‘ ‘ ] ¢

Knox County Education Associati

7?

Knox County Board of Educati

158 F.3d 361 (th Cir. 1998)

Larson v. Domestic & FE

§7 U.S. 682 (1949

Nat! Treasury Employees Un

Von Raab,

489 US. 656 (198

Palladino v. City of New York

2008 U.S. Dist. Lexis 867%

(SDNY Sept. 30, 2008) DASSIN

Rescue Army v. Mun. Court of Los Ang

331 U.S. 549 (1947) 2]

Skinner v. Railway Labor Executives’ Ass'n

189 U.S. 602, 621 (1997) 14, 18, 24

nited States v. Rendon,

607 F.3d 982 (4th Cir. 2010) 24

IN THE

SUPREME COURT OF THE UNITED STATES

PATRICK J. LYNCH AND THE PATROLMAN'S

BENEVOLENT ASSOCIATION OF THE CITY OF

NEW YORK, INC

THE CITY OF NEW YORK, NEW YORK CITY

POLICE DEPARTMENT, AND POLICE

COMMISSIONER RAYMOND W KELLY

Respondents

‘

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

—— — = a _—

BRIEF IN OPPOSITION TO PETITION

——— ec a = = = ——

COUNTER-STATEMENT OF THE CASE

The New York City Police Department

NYPD") has approximately 35,000 uniformed

members of the service, including officers in all

ranks, from Police Officer to Chief (A64, 493).' All of

those officers are empowered to make arrests (/d@)

Unless otherwise indicated, parenthetical references refer

pages in the Jornt Appendix in the Court of Appeals

Most are required to carry handguns and ars

authorized to use them if that becomes necessary 1n

the course of the officer's duties (/d.)

\. Monitoring alcohol use by NYPD officers

Due to the responsibilities and powers vested

in each NYPD officer, the NYPD closely regulates

and monitors its officers (A64, 44). Uniformed

members are required to be fit for duty 24 hours a

day, except when on sick report (A64, 4/6). To the

extent that it renders them unfit for duty, they are

not permitted to drink alcohol (A64-65, 447-10)

The Department considers drinking on the

job to be a grave dereliction of duty. Any uniformed

member who causes physical injury to another

person while operating a motor vehicle, and is

determined to be unfit for duty due to the

consumption of alcohol, will ordinarily be

terminated (A65, 4/8). At the very least, that officer

will be placed on dismissal probation, which means

that he or she can be terminated during the

probationary period without a hearing or further

process (/d., at 49)

Any officer placed on dismissal probation

under the foregoing circumstances will be subject to

breathalyzer testing while on duty (A65, 410)

Under that procedure, a breathalyzer test above .02

is cause for a further, more sensitive test, on an

“Intoxilyzer” (A65, 910). If the officer tests abov:

04, the officer is considered unfit for duty (/d.)

Any officer who may be experiencing trouble

with alcohol has access to confidential NYPD

assistance units, including the Counseling Service

Unit (A65, 411). The NYPD’s goal is “early

detection and referral of personne] for evaluation

and treatment before drinking causes problems in

work performance or worse” (/d.)(emphasis_ in

original)

If an off-duty officer consumes alcohol, he or

she 1s required to take precautions to ensure that

s/he does not become intoxicated while in

possession of a firearm (A66, 412). For example,

the officer can place the firearm in a locked safety

box U/d., at 4/13).

B. NYPD officers also routinely undergo testing for

substance abuse.

During their careers, NYPD officers are also

periodically subject to drug testing (A66, 914). For

example, the officer is drug tested at the beginning

and end of his or her probationary period (/d.).

Where an officer applies for various specialty

assignments, part of the screening will involve a

drug test (/d, at 415). Drug tests may also be

administered if there is reasonable suspicion that

the officer has ingested a controlled substance

(A66, 416).

All NYPD officers, of all ranks, are also

subject to random drug testing (A66, 917). NYPD

officers are selected at random, and without

reasonable suspicion, to provide samples for

analysis for controlled substances (/d.).

Drug testing has a variety of goals (A66,

18). It protects the public from officers who may

not be completely in control of themselves due to

the use of controlled substances (/d.). Drug testing

also protects the lives of fellow NYPD officers, who

rely on each other in life-threatening situations,

which can arise suddenly, without warning, and

which may require good judgment under the most

difficult of circumstances (/d.). Drug testing also

reinforces the public’s confidence in_ the

Department and the public's” willingness to

cooperate fully with the Department (/d@.). That

confidence and cooperation are essential to the

mission of the NYPD (/d@)

C. Evidence of alcohol-related incidents in the

Department.

The NYPD has long recognized that some

NYPD officers may have problems with alcohol

consumption (A67, $19). The NYPD maintains a

Counseling Unit, which is concerned with possible

alcohol abuse, and officers may attend the

Counseling Unit anonymously, that is, without

telling any member of the NYPD (/d.) Under

certain circumstances, NYPD officers may also be

directed to the Counseling Unit for an interview

(/d., at 4/20)

From 2005 to 2007, approximately 600

officers were interviewed by the Counseling Unit

(A62, 99). That number included 380 officers who

were new to the unit (/d.).

Unfortunately, the NYPD has also

experienced a probiem with officers being arrested

for Driving While Intoxicated (“DWI”) (A67, 921)

In 2005, 10 off-duty officers were arrested for

alleged DWI (/d.). In 2006, 16 off-duty officers were

arrested for DWI (/d@.). As of November 2007, 12

NYPD off-duty officers were arrested for alleged

DWI (/d.)

Tragically, the NYPD has also experienced

the suicide of a number of officers (A67, 4/22). From

2005-07 there were ten suicides (/d./. In four of

those suicides, there was either alcohol present at

the scene or a medical examiner's report found

alcohol in the body of the deceased officer (/d.)

These statistics show that, on a consistent

basis, NYPD officers with alcoho: problems have

been involved in illegal or life-threatening

behaviors (A67, 423). The risk to the public and to

fellow officers from this is real, and the NYPD has

responded by, snter alia, providing counseling

services, requiring that officers be fit for duty at all

times, and requiring that a NYPD officer who is

intoxicated be relieved of his or her weapon (/d.)

D. Firearms discharges by NYPD officers

According to NYPD records, in 2004 there

were 111 occasions, other than on the firing range,

when an NYPD officer discharged his or her

firearm (A68, 4/25). This figure includes on- and

off-duty firings and incidents in which no one was

injured and no property damaged (/d.). In 2005,

the number of firearms discharges was 130: in

2006, the number was 119; and as of November

2007, 104 firearms discharges had occurred (/d.).

Kivery discharge of a firearm by a NYPD

officer, whether on- or off-duty, that is not on a

firearms range, is investigated under a firearms

discharge procedure found in the NYPD Patrol

Guide (A68, 4/26). Following the discharge of a

firearm, a variety of superior officers and

investigators will respond to the scene of the

shooting, regardless of whether an injury has

resulted from the shooting (/d., at 427). Those

responding will almost always include the Patrol

Borough’s “Shooting Team Leader,” who is a

Captain or above and who leads the initial

investigation of any shooting (/d.)

A ranking IAB officer, as well as a superior

officer from the Patrol Borough in the command of

occurrence will also respond, unless the incident

occurs outside the City of New York (A69, 428). A

Chief or an Inspector who is on duty specifically to

supervise such investigations, called the Duty

Inspector or the Duty Chief, will also respond to the

scene and supervise the investigation into the

firearms discharpe (/d., at 429). The office of the

District Attorney for the borough where the

shooting occurred will be notified, and that office

may also decide ito have personnel respond to the

shooting (U/d., at 430). A community affairs officer

will also respond (/d., at 4/31)

The NYPD also maintains a Trauma

Counseling Program that can offer counseling to

any officer involved in a firearms discharge and

who may be traumatized by the experience (A69,

4/32). The officer may also use, or be sent to, the

NYPD’s Psychological Services Division for

evaluation (/d.).

EK. Investigation procedures for shootings.

Additionally, and in recognition of the fact

that criminal charges may result against the NYPD

officer or a civilian, all shootings are treated as part

6

of a possible criminal investigation (A69, 433). Of

course, whether criminal charges will result cannot

be determined until] the investigation is completed,

and that is why the NYPD treats all firearms

discharges as an investigation into a_ possibly

criminal matter (/d.). Therefore, the Crime Scene

Unit often responds to the scene of a shooting (/d.)

All shooting investigations include an initial

report prepared by the Shooting Team Leader (A70

34). That is followed by a final report completed

by a commanding officer, a review by a Borough

Firearms Discharge Advisory Board, and a final

review by the Chief of Department firearm

Discharge Review Board (/d.)

The initial report will contain a narrative of

the shooting based on the information obtained in

the preliminary investigation (A70, 935). Any

officer who fired a weapon will have that weapon

examined and inspected (/d., at 436). For example

the number of live and spent shells will be recorded

(/d.). Any ammunition possessed by the officer will

be taken for safekeeping (/d.)

lhe initial report may also contain a

preliminary evaluation of whether the discharge

was within NYPD ruideline and a

recommendation of whether corrective action o1

disciplinary proceedings should be initiated. Thi

report will also include information concerning any

arrests made, and will record the activities of the

Crime Scene Unit, which often recovers and takes

custody over physical evidence found at the scen:

(A70, 4437-38). The Crime Scene Unit may al

take photographs to record the physical layout of

the scene (/d@.)

Within 90 days of the shooting, or as soon

thereafter as possible, the Commanding Officer of

the Borough Investigation Unit or the precinct ol

occurrence prepares a follow up report. This report

includes’ findings and recommendation: the

Medical Examiner's report Gf applicable), thi

ballistics report, a synopsis of the police officer’

statements, and, 1f applicable, District Attorney o1

yrand jury findings as well as IAB findings (A70

4| 37-38)

A Borough Firearms Discharge \dvisor

Board reviews the incident and can sustain or alte!

findings and recommendations that were made

earlier in the investigation (A71, 9/40). ‘Typically

that Board has seven members, including ons

officer who is of the same rank as the officer who

discharged the firearm (/d.) The remaining s1x

members will be at or above the rank of Captain

and will include the Commander of the Patrol

Borough (/d.). The Board then prepares a report. t

the Chief of Department's Firearms Discharge

Review Board that include finding and

recommendations (A71, $41)

The NYPD’s Firearms Discharge Review

Board is chaired by the Cmef of Department and

includes the Deputy Commissioner for Training

the Devuty Commissioner for Legal Matters, Chief

of Personnel, an Operational Bureau Chief and the

Commanding Officer of the Firearms and Tactr

Section (A7], 4,42)

Any officer who dischargt hi firearm

whether on-duty or off-duty, and regardless of

whether the shooting ts justified or not, will attend

an NYPD tactics review session (A711, 4143)

IO 52 applies only if (1) there is a shooting;

(2) in New York City; (3) by a uniformed member of

the NYPD; (4) resulting in injury or death: (5) to a

person (A74, 456). IO 52 is in addition to, not in

place of, the investigation of firearms discharges

described above (A74, 457)

The procedures of IO 52 are applicable even

when there is littl or no risk of criminal

prosecution, as long as there has been a shooting by

an NYPD officer in New York City that has injured

a person (A74, 958). For example, where an officer

accidentally discharges his weapon injuring

himself, there is generally very lhttle msk of

criminal prosecution, and yet IO 52 is to be

followed in that situation (A74, 958)

To be effective, a breathalyzer test must be

administered very soon after the shooting (A75,

459). Otherwise, it will not detect alcohol (/d.). In

short, accurate information will be lost if not

collected and preserved quickly (/d.). Therefore, 1O

52 requires that the test be administered at the

scene, but also in a way that maximizes the privacy

of the officer to whom the test is administered (/d.)

The NYPD has the necessary experience in

administering breathalyzer tests, especially in the

NYPD’s Highway Patrol Unit, which administers

breathalyzers to civilians who are suspected of

driving while intoxicated (A75, $60). Procedures in

IO 52 will take advantage of this expertise to

ensure that the test is administered properly so

that the results are reliable (A75, 961)

Under the New York State Vehicle and

Traffic Law (“VTL”). an individual cannot drive

while under the influence of alcohol, as evidenced

by a score of .08 on a breathalyzer test (A75, 4/62)

IO 52 incorporates the same standard (/d.)

[If the officer scores less than a .08, no further

testing 1s done (A75, 963). If the officer scores a .08

or greater on the breathalyzer, then further testing

will be done to determine whether the officer is

intoxicated (A75, 964)

Any officer scoring greater than .08 will bs

tested on a more sensitive instrument, t

Intoxilyzer (A76, 465) That test will be

administered by the Highway Patrol District's

Intoxicated Driver Testing Unit, which has

experience in administering that test (/d)

The results of the alcohol] testing may result

in discipline of the officer who has been involved in

a shooting while under the influence of alcohol

(A76, 466). The results may also be used in thi

criminal investigation of the shooting (/d)

For all of the forgoing reasons, 10 52 also

advises members not to ingest alcohciic beverages

up to four hours prior to the commencement of

their tour of duty (A76, 4167)

H. 1O 52 is not a law enforcement initiati\

The NYPD recognizes that some of. it:

officers may be experiencing problems with alcoho]

and that may render them unfit for duty (A76.

468). The alcohol problem may also surface in a

more extreme manner, such as a DW] arrest or in

suicide (/d.). The NYPD has an obligation to the

public and to fellow NYPD officers to require

fitness for duty and the removal of weapons of an

1%

i

intoxicated officer (/@.). The NYPD also recognizes

its duty to the officer by providing counseling

services on a confidential basis and encouraging the

ise of those services (/d@.)

Public confidence in the NYPD 1s eritical to

the accomplishment of the NYPD’s mission of

preserving and protecting the health, safety and

welfare of the public (A76, 469). The possibility

that an NYPD officer might be involved in a

shooting while under the influence of alcohol

undermines that trust and risks the integrity of the

NYPD (/d.}

IO 52 serves the NYPD’s interests in (1)

protecting the integrity of the NYPD: (2) protecting

the safety of the public and NYPD officers: (3)

deterring alcohol intoxication by NYPD officers who

are carrying firearms: and (4) assuring the public

that one of the most important and daunting

powers of the police -- the power to use deadly force

when necessary is not being abused or used by

officers who are under the influence of alcohol (A77.

W770)

This Action

In October 2007, petitioners challenged IO

2 as an unreasonable search and seizure under

the Fourth Amendment (A25-26). Petitioners

sought, and respondents opposed, the issuance of a

temporary restraining order (A31-42), which the

District Court denied (A46). They also sought a

preliminary injunction (A47-58)

The following month, and detailing all the

foregoing history, respondents opposed the issuance

of an injunction and cross-moved to dismiss thi

complaint or, alternatively, for summary judgment

(A59-121). The District Court heard argument on

those motions on November 2O,. 2007 (A143-2.17

The District Court's Order

In denying petitioners motion {f

preliminary injunction, — the District Court

determined that, although petitioners had

“adequately pled their claims to withstand a motion

to dismiss,” those allegations were insufficient t

sustain injunctive relief (A223)

The District Court found that petitione:

Fourth Amendment claim was unlikely to succeed

on the merits because immediate alcohol testing

fell within the “special needs” exception where, as

here, there is a “legitimate public safety concern

(A225). Citing to Skinner v. Railway Labor Exec

Ass'n, 489 U.S. 602, 621 (1989), the Court pointed

to the government’s interest in ensuring the publi

2 There are two additional sets of plaintiffs wh

participated in the District Court motion practice

but did not participate in the appeal: unions

representing the ranks of detective, sergeant, and

heutenant (the “Palladino” plaintiffs) and the

Captains Endowment Association (the “Richter

plaintiffs). All the plaintiffs moved for a

preliminary injunction, and the Palladino plaintiffs

also cross-moved for summary judgment (A218

219).

’ Palladino v. City of New York, 2008 U.S. Di

Lexis 86757 (SDNY Sept. 30, 2008)

safety, which depends on prohibiting the use of

alcohol or drugs “on duty, or while subject to being

called for duty.” /d

The Court also found that petitioners had

failed to show why that special need analysis was

not applicable here (A227). Pointing out that a

sober police force advances public safety and that

lO 52 encourages sobriety, the Court reasoned that

respondents have “a substantial interest in the

safety of its citizens, visitors, and the _ police

department” (/d.)

Significantly, the Court found that

petitioners had failed to show that IO 52 1s

primarily concerned with law enforcement, a

threshold showing necessary to defeat the

application of the special need analysis (A227).

Indeed, the Court noted, “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” (1d.). Nor, the Court noted, have

petitioners claimed the regulation is pretextual

(A228).

The Court denied the cross-motions for

summary judgment as “premature,” reasoning that

both the Palladino plaintiffs and respondents had

“failed to make the requisite showing that no issue

of material fact exists” (A222. n.4)

The Order of the Second Circuit

Court of Appeals

The Second Circuit affirmed, finding that the

District Court did not abuse its discretion in

denying petitioners’ motion for a_ preliminary

injunction. In doing so, the Second Circuit found,

based on the record, that the NYPD’s breathalyzer

policy “has multiple purposes,” including one

“directly related to the NYPD's role as an

investigator of crimes” but others that are “related

to ‘special needs’ apart from the NYPD's general

interest in crime control.” Lynch v. City of New

York, 589 F.3d 94, 100 (2d Cir. 2009). After

reviewing the NYPD’s_ protocols, the Court

reasoned that there are “multiple purposes of the

breathalyzer policy -- some unrelated to crime

control and one directly related to crime control--

and the critical question in determining whether

the special needs doctrine applies is whether the

NYPD's general interest in crime control is the

policy's ‘primary purpose.” /d., at 102.

In light of the District Court's finding that

petitioners had “’proferred no evidence that

[Interim Order] 52 is a _ regulation primarily

concerned with law enforcement, nor _ have

plaintiffs ‘shown that a primary purpose of the

regulation is to generate evidence for prosecution,”

the Court held that the District Court “did not err

in reaching that conclusion.” 589 F.3d, at 102. The

Court also determined that the District Court

correctly applied the special needs doctrine to

evaluate the IO 52, because “the mere fact that

crime control 1s one purpose -- but not the primary

16

purpose -- of a program of searches does not bar the

application of the special needs doctrine.” /d., at 94.

That is because, the Court reasoned, “even if crime

control is one purpose of a program of searches, the

program may nevertheless be reasonable under the

special needs doctrine so long as crime contro] is

not the program's primary purpose.” /d., at 102.

The Court then found that IO 52 1s

reasonable under the three-factor special needs

balancing test. As to the first factor -- the nature of

the privacy interest involved -- the Court, relying

on Nat? Treasury Employees Union v. Von Raab,

489 U.S. 656 (1989), pointed out that the police

have a diminished expectation of privacy when it

comes to carrying and using firearms.

589 F.3d, at 103. Recounting the many times when

NYPD officers are subject to random testing, the

Court noted, “NYPD officers are already subject to

drug screening as part of their employment in the

NYPD, and although breathalyzer testing may be

intrusive in some workplaces, the ‘operational

realities of the workplace’ for NYPD officers ‘render

entirely reasonable certain work-related intrusions

by supervisors and co-workers that might be

viewed as unreasonable in other contexts.” Jd.

As to the second factor to be considered -- the

character and degree of the governmental intrusion

- the Court noted that “NYPD officers who

discharge their weapons are, under separate,

preexisting NYPD policies, already subject to close

scrutiny in the form of an administrative

investigation.” 589 F.3d, 103-104.

As a result, the Court reasoned, the

breathalyzer test is not an “unexpected intrusion

17

on privacy.” 589 F.3d, 103, citing Von Raab, 489

US, at 672 n.2. Additionally, the Court found that

the policy does not carry “the grave potential” for

arbitrary violations of privacy because it is “applied

uniformly in every situation in which an NYPD

officer causes injury by firing his or her gun.” /d

103-104.

As for the third factor -- the nature and

immediacy of the government’s needs and the

efficacy of its policy in addressing those needs — the

Court found the government's to be “manifest,” and

the policy “straightforwardly addresses’ those

needs.” 589 F.3d, 104. The Court, citing Von Raab,

489 U.S. at 670 and Skinner, 489 U.S., at 628,

reasoned that “l[lJike the Customs Service

employees in Von Raab, NYPD officers ‘who may

use deadly force plainly ‘discharge duties fraught

with such risks of injury to others that even a

momentary lapse of attention can have disastrous

consequences.” As a result, the Court found that

the challenged policy is “vital to public safety,” and

that the NYPD has a substantial interest in both

detecting and disciplining officers who violate those

policies and in deterring its officers from using

their firearms while intoxicated. 589 F.Cd, 104

Indeed, the Court noted, “lbly quickly and

unequivocally determining whether alcohol was

involved in an NYPD officer's use of his or her

firearm, the breathalyzer policy will assist the

NYPD in disciplining officers whe use _ their

firearms while intoxicated and will provide an

incentive to officers to stow their firearms before

drinking alcohol.” /d..

The Court then recognized that “the NYPD’s

reputation in the eyes of the public is directly tied

Ls

to its effectiveness as a police force.” 589 F.3d, 104

To the extent the breathalyzer policy “improves the

NYPD's public reputation,” the Court found, “it

furthers an important governmental interest.” /d

REASONS FOR DENYING THE PETITION

THE SECOND CIRCUITS AFFIRMANCE OF

THE DISTRICT COURTS ORDER DENYING

PETITIONERS’ MOTION FOR A PRELIMINARY

INJUNCTION IS LEGALLY CORRECT AND

DOES NOT CONFLICT IN A MEANINGFUL

WAY WITH ANY DECISION OF THIS COURT,

ANY LOWER COURT, OR OTHERWISE

WARRANT FURTHER REVIEW BY _ THIS

COURT.

Contrary to the argument petitioners urge in

their petition, there is no important conflict among

the Circuit Courts of Appeals or the state courts

regarding the special needs doctrine, nor does this

case raise any issues under this Court’s opinion in

Skinner. Rather, petitioners’ contentions rest on a

mischaracterization of the facts regarding the

primary purpose of IO 52, as both lower courts

correctly determined.

1. Having failed to move for summary judgment,

and having opposed respondents’ cross-motion for

summary judgment with a claimed need for

discovery, petitioners’ request for a decision on the

merits now is irreconcilable with their prior

positions.

As a threshold matter, petitioners urge that

this Court may _ dispose of this proposed

interlocutory appeal on the merits because all

parties agree that the present record is sufficient

for that purpose (Pet.. at 10-11). They make that

assertion even though they never moved for

Summary judgment, and despite the fact the

District Court expressly denied cross-motions by

both the respondents and the Palladino plaintiffs

because, it found, neither had made the requisite

showing that no material dispute of fact exists

(A222, n.4)

And while petitioners now contend that this

record is nevertheless sufficiently complete for a

merits review, they opposed respondents’ cross-

motion for summary judgment specifically because

they sought to take discovery “as to the actual,

programmatic purpose of IO 52 and the extent, if

any, to which IO 52 un fact serves the purposes

advanced by the City as justifications for its

suspicionless searches” (emphasis in _ original)

(A138). In short, petitioners have expressed a

consistent lack of consistency, depending on the

procedural context, regarding whether the case is

“sufficiently complete” for a merits review

Not surprisingly, then, their representation

to this Court, that “if the Court grants review and

affirms, petitioners will dismiss their complaint”

(Pet., at 11), does not foreclose yet another sea

change regarding their need for discovery should

this Court deny review and the matter is returned

to the District Court.

Moreover, petitioners do not even ask the

Court to review the propriety of the Second

Circuit's affirmance of the District Court’s denial of

their motion for a preliminary injunction. Instead,

petitioners ask the Court to address the merits of

20

its Fourth Amendment challeny in | w that

neither of the lower courts has had the opportunity

to reach. Thus. the Court will not have the benefit

of the lower courts full consideration

Although this Court certainly may revi

the merits of a case after appeal of an interlocutor

judgment, the Court has generally declined to do so

absent special circumstances. See Va. Military Inst

v. United States, 508 U.S. 946, 946 (1993) (Scalia

J., concurriny)(denying a writ of certiorari becaust

the petition “seeks our intervention before the

litigation below has come to final judgment”)

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 24|

U.S. 251, 258 (1916) (“lElxcept in extraordinary

cases, the writ lof certiorari| not }] ued until!

final decree.”)

The Court’s reluctance to grant review on the

basis of an interiocutory order reflects its moré¢

veneral poly Y avgalinsi di) posing oO] action

prematurely or unnecessarily See American

Constr. Co. v. Jacksonville, Tampa & Key W. Ry

Co., 148 U.S. 372, 384 (1893)(“IMJanvyv orders made

in the progress of a suit become quite unimportant

by reason of the final result, or of intervening

matters. Clearly. therefore. this court should not

issue a writ of certiorari to review a decree of the

Circuit Court of Appeals on appeal from an

interlocutory order: "); see also Rescue Army |

Mun. Court of Los Anpveles, 331 U.S. 549, 568

(1947)(reiterating that the Court “has followed a

policy of strict necessity in_ disposing of

constitutional issues’ and that “perhaps the most

effective implement for making the policy effectiv:

has been the certiorari jurisdiction conferred upon

this Court by Congr |

th) yeneral rule avalnsi ( VIN nter| ute

judgment those ex eplion tend tl be Ww hi

unlike here there are fully de veloped legal } ut

fundamental to the turther conduct of the ast

l/nited Stat v. Gen. Motor Corp 23 |

$/7 (1945); see, e.g., Yeager v. United Stat Ld

Ct. 2360 (2009)(preclusion issus irom a previ

rial must be determined before the present actio:

an continue); Gillespie v. U.S. Stee/ Cor;

U.S 148% (1964)(unresolved preemption iss

govern the outcome of! the litigation): arson

Domestic & Foreign Commerce Corp 37 US. ¢

1949)QGurisdictional issues must be settled bef

the case can proceed); Land v. Dollar, 330 |

(1947)(necessaryv to determine whether the |

tate hould have been the party to the

Hiere, however, there are no issues that need

resolved by this Court before the District Cou

could render an opinion on the on

petitioners d t cont d othe)

hu mm tn) Da aioné Une |

be denied \iternative! the proposed e {

review 18 nit sufficiently compelling LO Warrant

(Lourt di) retionary grant ol certiorari 1

Il. Petitioners ignore ample evidence of a spe

need for lO 52 1n order to frame an issue worthy fe

this Court's review

retitione! not LAK! ul

econd Circuit three-part analysi i th pec

needs doctrine as the Court applied it t these

fact Instead, they o1 again contend that 10 5

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just as in Skinner, the petitioners here do not

seriously contend that IO 52 is a pretext to “enable

law enforcement authorities to gather evidence of

penal law violations.” J/d. Thus, the only question

that the Court “left for another day” is “whether

routine use in criminal prosecutions of evidence

obtained pursuant to the administrative scheme

would give rise to an inference of pretext, or

otherwise impugn the administrative nature of the

program. /d@. Given that petitioners have no

evidence whatsoever of pretext, much less a

persuasive showing that IO 52 is pretextual, “the

policy must be assessed in light of its obvious

administrative purpose.” /d.

Nor is there is something inherently suspect

where, as here, test results may in some cases be

used for law enforcement purposes (Pet., at 12-13).

The issue is whether law enforcement is_ the

primary purpose of the search, as even Ferguson v.

City of Charleston, 532 U.S. 67 (2001), on which

petitioners so heavily rely (Pet., at 13-14),

recognizes. In Ferguson, the decisive factor was

that “the central and indispensable feature of the

policy from its inception was the use of law

enforcement to coerce the patients into substance

abuse treatment.” Jd, at 83. See also Dickerson v.

Napolitano, 604 F.3d 732, 750 (2d Cir. 2010)('To

determine whether the ‘special needs’ of the

government permit a search that would otherwise

be impermissible under the Fourth Amendment,

courts first examine whether the search serves as

its immediate purpose an objective distinct from

the ordinary evidence-gathering associated with

criminal investigations’ ).4

Petitioners are equally misguided when they

urge that the Second Circuit's opinion conflicts with

Ferguson (Pet., at 15-22). In fact, the question

posed in Ferguson was: “whether the interest in

using the threat of criminal sanctions to deter

pregnant women from using cocaine can justify a

departure from the general rule that an official

nonconsensual search is unconstitutional if not

authorized by a valid warrant.” 532 U.S., 70. In

Fercuson, unhke here, the “immediate” intent was

“to prosecute women who tested positive for cocaine

while pregnant,” zd@., at 71, and thus, “the central

and indispensable feature of the policy from its

inception was the use of law enforcement to coerce

the patients into substance abuse treatment.” /d.,

at 8Q.

Additionally, petitioners’ reliance on

Ferguson's “excessive entanglement” language is a

red herring. We can all agree that the NYPD is a

law enforcement agency, and that, long before 1O

52 was ever implemented, the NYPD investigated

whenever a member of the service was involved in

a shooting. But the NYPD is also an employer

responsible for enforcing necessarily strict rules

governing, iter alia, the use of deadly force by its

officers, and that makes NYPD “entanglement” a

' Significantly, petitioners cannot identify even a

single instance when an [JO 52 breathalyzer test

has been used for a law enforcement purpose

Indeed, as of August 8, 2010, there have been 133

breathalyzer tests pursuant to IO 52, and none has

resulted in criminal charges

fact of everyday life when an officer uses his or her

weapon. However, the Department's role at the

scene of a shooting does not inevitably trump its

role as an employer, nor does it mean that every

NYPD policy has, as “the central and indispensable

feature ... from its inception’ a law enforcement

purpose. Ferguson, 532 U.S., at 83

Indeed, the ferguson Court never ruled

there was something inherently suspect where, as

here, there may be an incidental law enforcement

purpose. Rather, in referring to New York v.

Burger, 482 U.S. 691 (1987), the Court recognized

just the opposite. In Burger, the Court rejected a

contention that a statute authorizing

administrative inspections by the NYPD of closely

regulated chop shops was in fact “designed to

gather evidence to enable convictions under the

penal laws” because the “discovery of evidence of

other violations would have been merely incidental

to the purposes of the administrative search.” Jd,

at n. 21. That same reasoning applies here, where

the Department routinely monitors officers very

closely, and where officers consequently have a

greatly reduced expectation of privacy

Petitioners urge that I0 52s _ law

enforcement purpose necessarily trumps its other

purposes because, according to petitioners, it 1s the

‘Immediate objective” here (Pet., at 18-21), but that

attempt to now discredit the unchallenged evidence

in the record does not create an issue worthy of this

Court’s discretionary review. There is, moreover,

nothing in this record to support that assertion

other than petitioners’ own “interpretation” of IO

52’s primary purpose and their shuffling of the

purposes for IO 52 that respondents set out in their

= Yow]

cross-motion. Certainly, that sleight of hand falls

far short of showing that the purpose of 10 52 1s

ultimately indistinguishable from a_ general

interest in crime control

And while petitioners contend that 10 52 is

in practice, implemented too late to protect the

public safety, meaning, after the shooting has

occurred (Pet., at 21), that ignores the measure’s

deterrent effect. Thus far, that effect has been quite

substantial, given that, after 133 breathalyze1

tests, not a single officer has been found to have

been impaired. That is exactly the result the

Department hopes for, and is certainly not, at any

rate, attributable to a law enforcement purpose

Recognizing that their reading of Ferguson's

reach may be overstated, petitioners alternatively

urge the Court to nevertheless grant review in

order to “clarify whether © significant law

enforcement entanglement and _ purpose

precludes ‘special needs’ exemption” (Pet., at 22)

That issue, however, 1s unpreserved for this Court's

review. At any rate, given this Court's decision in

New York v. Burger, 482 U.S. 691, there is no need

for such a “clarification,” particularly where, as

here, the employer imposing the test is the NYPD

itself.

In order to argue that there is “disarray” in

the state courts regarding the special needs

doctrine, petitioners rely on various state cases

involving motorists and equally distinguishable

local statutes (Pet., at 23-27). As none of thos

cases involve an administrative personnel initiative

applied to employees who, like the officers here

have a diminished expectation of privacy, they art

inapposite, and this proposed interlocuciory appeal

is therefore ill-suited to resolve those myriad and

factually distinct issues

Petitioners concede that there is no conflict

in the federal appellate courts but nevertheless

urge there are analogous questions (Pet., at 27°29).

However, the factual circumstances are not at all

analogous. For example, in Greene v. Camereta,

588 F.3d 1011, 1030, n. 17 (9t Cir. 2009), the

Court recognized that there were no exigent

circumstances surrounding the questioning of the

child, but here, the breathalyzer test will be

meaningless if NYPD needs to first obtain a

warrant (A75, $59). Likewise, in Anox County

Education Association v. Knox County Board of

Education, 158 F,3d 361 (6t Cir. 1998), where the

Court never even reached the issue, the question

was Whether the police, acting in a purely law

enforcement capacity, could breathalyzer school

mployees

Most tellingly, petitioners ask this Court to

exercise its certiorar! review powers based on the

wholly speculative “potential” reach of the Second

Circuit's seh (Pet., at 30). A preliminary

determination of likelihood of success on the merits

is ordinarily considered tentative and therefore has

questionable value as precedent. At any rate; the

application and issues involving of 1O 52 are so

fact-specific that the Second Circuit’s decision has

limited application outside these unique

Circumstances.

This record demonstrates that mandatory

testing serves many important purposes beyond

simply determining if a particular officer fired his

29

weapon while under the influence of alcohol. The

goal is to deter officers from alcohol consumption by

immediately testing every single time a person 1s

injured or killed in a shooting by a member of the

service. Mandatory testing also is the most reliable

way to monitor officers and their use of firearms to

make sure that no officer uses his or her weapon

while impaired because of alcohol consumption.

Equally important, the NYPD should be able

to assure the public that alcohol has not played a

role in a shooting injury or death. Officers have

been entrusted with the authority to use deadly

force, and along with that power is a_ public

expectation that it will be very carefully monitored.

Unfortunately, this record demonstrates that

alcohol use by police officers is a serious, continuing

problem that poses grave risk to the public and

other officers. In less than three years, more than

600 officers were interviewed by the Department's

Counseling Unit, including 380 new cases (A62,

9). During the same time period, 38 off-duty

officers were picked up for DWI (A67, 4/21), and

there were ten suicides, including four involving

alcohol (Jd, at 4/22)

As the Second Circuit correctly determined,

respondents defeated the motion for a preliminary

injunction by demonstrating that [IO 52 is

minimally intrusive, advances the Department’s

need to make sure the official use of deadly force is

not the result of alcohol abuse, and instills

essential public confidence in the police force. That

decision is legally correct, and does not conflict with

any decision of this Court or of any other state or

federal courts, and it does not otherwise warrant

further review by this Court

CONCLUSION

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED

New York, New York

September 17, 2010

Respectfully submitted

MICHAEL A. CARDOZO,

Corporation Counsel! of the

City of New York,

Attorney for Respondents

100 Church Street,

New York, New York 10007

212) 788-1043 or 0835

7

LEONARD J. KOERNER

KE DWARD F.X. HART,

ALAN M. SCHLESINGE!

JANE L. GORDON,

of Counse!

MATTHEW SMITH

Law Student On 1 Pe