The Chief
October 12, 2007

Unions Suing Over Breathalyzer Policy

Cops in Shooting Tested

By REUVEN BLAU

The NYPD required Breathalyzer tests from three Detectives, two of whom were grazed by bullets during a gunfight in a Bronx alley on Oct. 3, marking the first time that law-enforcement officers involved in a shootout in any U.S. jurisdiction have been routinely subjected to that alcohol screening.

PATRICK J. LYNCH: Tests unwarranted.
PATRICK J. LYNCH: Tests unwarranted.
As this newspaper went to press Oct. 5, the police unions prepared to go to Federal court to have the policy nullified.

A Rights Violation?

The unions contend that subjecting their members to such screenings violates their constitutional rights. Their attorneys are also scheduled to file an improper practice complaint with the Board of Collective Bargaining, contending that the new policy must first be negotiated.

The NYPD's Interim Order issued Sept. 30 states that all officers involved in shootings that hit another person must be tested, no matter what the circumstances were that caused the incident.

"In an effort to ensure the highest levels of integrity at the scene of firearms discharges, all uniformed members of the service involved in firearms discharges, which result in injury to or death of a person, will be subject to Department-administered alcohol testing," the directive states.

PBA: It's Excessive

Patrolmen's Benevolent Association President Patrick J. Lynch last week blasted the policy, calling it "unnecessary" and "excessive." He noted that the Detectives - Thomas Murphy, William Gonzalez and Daniel Rivera - successfully apprehended the suspect, Jermaine Taylor, who was wanted for shooting and wounding two people earlier this year at a bodega in The Bronx.

The 5:30 a.m. shooting occurred in the Tremont section of the borough after Mr. Taylor shot at least six times at the Detectives as they tried to arrest him, according to the police. Mr. Taylor jumped two stories from a back window in a second-floor apartment at 2422 Webster Avenue.

Police Commissioner Raymond W. Kelly told reporters that the suspect then opened fire on the officers with a 9-millimeter semiautomatic pistol.

Did It By the Book

"This is a perfect example of members of the service returning fire when fired upon, which policy clearly allows, and yet, they are being treated as if their actions were reckless," Mr. Lynch said in a statement.

Detective Gonzalez suffered a graze wound to the right shin and his partner, Detective Rivera, was grazed on the forehead. Both officers were in stable condition when they were admitted to St. Barnabas Hospital for treatment. (Mr. Taylor sustained a fractured right pelvis after his jump from the apartment.)

"They should be receiving praise and commendations, not alcohol-testing," Mr. Lynch asserted.

The Breathalyzer screening policy for all officers after they fire their guns in cases that involve injury or death is being carefully watched by other law-enforcement groups throughout the country, which are worried that the NYPD's proposal could set a national precedent.

Response to Club Killing

In June, Commissioner Kelly announced 19 recommendations of a special panel that he appointed to examine policies and procedures governing undercover officers after the Nov. 25, 2006 police shooting outside the Jamaica, Queens strip club Kalua that left Mr. Bell dead and two friends wounded.

Presently, the department allows undercover officers to have two drinks while on duty to help them keep their identities secret. But critics of the department questioned why Det. Gescard Isnora, who followed Mr. Bell and his friends from inside the club and was the first to fire at the men, wasn't tested for alcohol after the shooting.

Detectives Endowment Association President Michael J. Palladino maintains that alcohol didn't factor into the fatal shooting, noting that a supervisor at the scene deemed Officer Isnora fit for duty. Officer Isnora said he drank two beers inside the club, according to the NYPD's initial report of the incident.

The unions have also questioned the details of the NYPD's proposal. Currently, there is no legal standard for impairment other than for driving a vehicle, they have pointed out.

"The department's view is that the Police Commissioner has the prerogative under the City Charter and the Administrative Code in matters pertaining to discipline," Paul J. Browne, the NYPD's chief spokesman, said shortly after the plan was announced.