# Opposition Brief — Lynch v. City of New York

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2306%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 995

## Text

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POLICK DEPARTMEN' ¥

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IWARD FA. HAR’
LAN M. SCHLI
ANE ILL. GORDON

of Coun

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City of New York
\ttorney for he pond
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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
primarily intended to serve the ordinary need |

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2306%3A2. Public record. Not legal advice.