December 11, 2012


BCB Upholds Policy Of Breath-Testing Cops Involved in Shootings

By Mark Toor

PATRICK J. LYNCH: Will appeal ruling.  

The Board of Collective Bargaining has dismissed an improper-practice petition filed by four police unions seeking to forbid the NYPD from requiring breathalyzer tests of all officers involved in shootings in which someone is killed or wounded.

The order was issued in September 2007 in response to the fatal shooting of Sean Bell by undercover officers investigating prostitution allegations at a notorious Queens strip club.

Deem It a Disciplinary Issue

The BCB, in a decision dated Nov. 13 and made public last week, agreed with the city’s argument that the policy was related to discipline rather than a collective-bargaining issue. Therefore, the BCB said, it had no jurisdiction and denied the petition.

“We think the decision is wrong and we intend to appeal it,” said Patrick J. Lynch, president of the Patrolmen’s Benevolent Association.

DEA: It’s a Process Issue

Michael J. Palladino, president of the Detectives Endowment Association, said that the order dealt not with discipline but with process, since no officer had ever been disciplined under it. “This is a process to get to a disciplinary level and processes have always been negotiated,” he said. He compared it with random drug testing, a process issue that was negotiated.

An appeal would require bringing suit in State Supreme Court. The other unions that signed the petition are the Sergeants Benevolent Association and the Lieutenants Benevolent Association.

A suit the unions brought in Federal court challenging the order was rejected in June. U.S. District Judge George Daniels ruled that the policy mirrored other searches that have been approved by the U.S. Supreme Court, including random drug-testing for athletes and sobriety checkpoints for drivers.

Mr. Palladino said he thought the BCB decision was influenced by the court’s ruling.

The petition was filed a month after the department issued the Breathalyzer order, which applies to both on-duty and off-duty officers. The city did not discuss the new policy with the unions. The order sets a 0.08-percent level of alcohol in the blood as intoxicated. That’s the same level as under the state drunken-driving law.

‘Meant to Demean Members’

“The unions assert that there is no history of alcohol use in any case involving the misuse of a firearm by their members,” the decision said. “...According to the unions, the required breathalyzer a suspicionless search that serves only to humiliate and demean its members, treating them as criminal suspects when there is absolutely no reasonable suspicion of intoxication.”

The city argued that several court decisions have established that criminal investigations such as those into shootings by police officers cannot be the subject of collective bargaining. The decision said city lawyers also contended that “preserving the public’s confidence in the police outweighs any nominal employee interest in not being subject to a minimally-intrusive test.”

Police shooflies “want the breathalyzer process to take precedence over treatment for injuries,” Mr. Palladino said. He recalled the case of Det. Ivan Davidson, the only officer ever to test positive for alcohol use after a shooting. Mr. Davidson was off-duty when he shot and wounded a gunman at a Queens nightclub in July 2008. The gunman was one of several men beating another man, and when Mr. Davidson intervened, fired a weapon at him. Mr. Davidson returned fire.

Just Above the Number

A breathalyzer test at Jamaica Hospital showed that Mr. Davidson’s blood-alcohol level was slightly above 0.08. The Chief of the Internal Affairs Bureau, Charles Campisi, ordered Mr. Davidson to leave the hospital and go to a police facility with a more accurate testing machine, NYPD Confidential blogger Len Levitt reported at the time. Mr. Davidson was suffering from high blood pressure. When he refused to go, citing doctor’s orders that he remain where he was, Mr. Campisi suspended him, Mr. Levitt reported.

However, Mayor Bloomberg and Police Commissioner Raymond W. Kelly decided that Mr. Davidson had acted heroically. He was quickly restored to modified duty without his weapon and then, three days after the shooting, to full duty. The department said nothing more about the breathalyzer test.

In the Bell case, Det. Gescard Isnora, who fired the first of 50 police bullets at the car containing Mr. Bell and two friends in the early hours of Nov. 26, 2006, said he had two beers in the club as part of his cover. Police policy allows undercover officers at bars to consume up to two drinks as a way of blending in. Mr. Isnora was never tested for alcohol, although a supervisor at the scene declared him fit for duty.

Mr. Isnora testified at an administrative hearing that he had heard a threat by one of the three men, Joseph Guzman, that led him to believe the group was returning to their car to get a gun and shoot a man with whom they had quarreled.

Bell Was Intoxicated

He said that with no other officers nearby he approached the car, displayed his badge and ordered the driver to stop. Mr. Bell drove the car into him, striking his leg. Mr. Bell reversed and struck an unmarked NYPD van, then backed up and hit the metal gate of a building. Detective Isnora said he fired when he saw Mr. Guzman make a motion he interpreted as reaching for a gun. No gun was found in the vehicle or on any of the passengers. An autopsy found that Mr. Bell was legally drunk.

Police Commissioner Raymond W. Kelly fired Mr. Isnora in March of this year and forced three other officers involved in the shooting to retire. In July, Mr. Isnora sued the department in hope of getting his job back.

Mr. Isnora and two colleagues were acquitted of manslaughter charges in connection with the case by a Queens Supreme Court Justice in 2008.