Patrick J. LYNCH, as President of the Patrolmen's Benevolent Association of the City of New York, Inc., Patrolmen's Benevolent Association of the CIty of New York, Inc., Plaintiffs-Appellants,
The CITY OF NEW YORK, New York City Police Department, Raymond W. Kelly, Police Commissioner of the New York City Police Department, Defendants-Appellees.
Argued: May 16, 2013.
[Copyrighted Material Omitted]
Eileen Penner (Andrew L. Frey, Mayer Brown LLP, New York, NY; Michael T. Murray, Michael T. Murray & Associates, P.C., New York, NY, on the brief), Mayer Brown LLP, Washington, D.C., for Appellants Patrick J. Lynch and Patrolmen's Benevolent Association of the City of New York, Inc.
Jane L. Gordon (Edward F.X. Hart, Alan Schlesinger, on the brief), of Counsel, for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Appellees The City of New York, New York City Police Department and Raymond W. Kelly.
Before: RAGGI and STRAUB, Circuit Judges, COGAN, District Judge. [*]
REENA RAGGI, Circuit Judge.
Plaintiffs, the Patrolmen's Benevolent Association of the City of New York, Inc., a union representing New York City's 35,000 police officers (except certain ranks of detective), and its President, Patrick J. Lynch, appeal from an award of summary judgment entered on June 28, 2012, in the United States District Court for the Southern District of New York (George B. Daniels, Judge ) in favor of defendants, the City of New York, the New York City Police Department, and Police Commissioner Raymond W. Kelly (collectively, the " NYPD" ) on plaintiffs' Fourth Amendment challenge to NYPD Interim Order 52 (" IO-52" ), which requires the administration of a breathalyzer test to any officer whose discharge of his firearm within New York City results in death or injury to any person. See Palladino v. City of New York, 870 F.Supp.2d 350 (S.D.N.Y.2012). The case has previously been before this court. In Lynch v. City of New York (" Lynch I " ), 589 F.3d 94 (2d Cir.2009), we
affirmed the denial of plaintiffs' motion preliminarily to enjoin the operation of IO-52, concluding that plaintiffs were unlikely to succeed on the merits of their Fourth Amendment challenge because IO-52 testing was supported by " special needs." Id. at 100-05.
While the district court relied on Lynch I 's special needs analysis in granting judgment to the NYPD, plaintiffs submit that Lynch I 's rulings do not control our summary judgment review. See Brody v. Vill. of Port Chester, 345 F.3d 103, 110 (2d Cir.2003). They argue that the record does not in fact support, much less compel, the conclusion that the primary purpose of IO-52 testing is special needs distinct from normal criminal law enforcement. In any event, plaintiffs contend that any such special needs do not sufficiently outweigh officers' privacy interests to make warrantless, suspicionless breathalyzer testing constitutionally reasonable. Even assuming that a panel reviewing a summary judgment award is free to revisit not only the merits predictions of a prior panel, but also that panel's resolution of purely legal issues, we see no reason to depart from Lynch I's sound legal analysis of the special needs doctrine. On our own review of an expanded record as well as relevant precedent, we conclude that IO-52 testing is reasonable under the special needs doctrine and that plaintiffs' Fourth Amendment challenge fails as a matter of law. Accordingly, we affirm the award of summary judgment in favor of the NYPD.
A. NYPD Interim Order 52
1. Circumstances Giving Rise to IO-52
IO-52 has its origins in events occurring in Queens, New York on November 26, 2006, when, during an undercover operation, NYPD officers shot and killed a man named Sean Bell and wounded two of his companions. In the wake of public criticism, the NYPD convened a Committee for Review of Undercover Procedures, chaired by Charles V. Campisi, Chief of the NYPD Internal Affairs Bureau (" IAB" ) which is charged with investigating police misconduct. The Committee ultimately released 19 recommendations, including a recommendation for mandatory breathalyzer testing of NYPD officers involved in shootings that resulted in death or personal injury. On September 30, 2007, the Police Commissioner implemented that recommendation by issuing IO-52, which sets forth procedures for alcohol testing " when a uniformed member of the [NYPD], on or off duty, is involved in a firearms discharge within New York City which results in injury to or death of a person." IO-52, Joint Appendix (" J.A." ) 45. 
2. Stated Purpose of IO-52
The stated purpose of IO-52 is " [t]o ensure the highest levels of integrity at the scene of police involved firearms discharges which result in injury to or death of a person." IO-52, J.A. 45. As explained further by Chief Campisi in opposing plaintiffs' motion for a preliminary injunction, IO-52 serves (1) to protect " the integrity of the NYPD" ; (2) to protect " the safety of the public and NYPD officers" ; (3) to deter " alcohol intoxication by NYPD who are carrying firearms" ; and (4) to assure " the public that one of the most important and daunting powers of the police, the power to apply deadly force when
necessary, is not being abused or used by officers who are under the influence of alcohol." Campisi Decl. ¶ 70, J.A. 104.
3. IO-52 Testing Procedures
Toward these ends, IO-52 mandates, inter alia, that a Patrol Services Bureau Duty Captain or Inspector respond to the scene of any police shooting in New York City resulting in death or personal injury, advise each officer who discharged a firearm that he will be tested for alcohol consumption, and ensure that each such officer " remain[s] on the scene when feasible and consistent with safety ( i.e., hospitalization not immediately required)" until an IAB Duty Captain arrives to administer a portable breathalyzer test. IO-52, J.A. 45.
Upon arrival, the IAB Duty Captain must administer a breathalyzer test to each officer who discharged his firearm in a " private setting ( e.g., Nearest Department facility [or] Department auto being used by the supervisor concerned)" and in " a dignified, respectful fashion." IO-52, J.A. 46. If the breathalyzer test, which takes about five minutes to complete, produces a reading of less than .08— the legal limit for operating a motor vehicle under N.Y. Veh. & Traf. Law § 1192— IO-52 requires no further testing. If the reading is .08 or greater, however, the officer must be transported to an IAB testing location for a second, more alcohol sensitive test on an Intoxilyzer machine. That process, which includes questioning the officer about recent alcohol and drug use, is recorded on videotape. If the Intoxilyzer reading exceeds .08, the videotape is provided to the IAB Duty Captain, who follows applicable procedures to " safeguard [it] for evidentiary purposes." IO-52, J.A. 46. The IAB Duty Captain then determines whether the officer is unfit for duty due to intoxication.
4. NYPD Alcohol Use Guidelines
IO-52 testing operates within a larger administrative context addressing alcohol use by NYPD officers. NYPD Patrol Guide Procedures (" PG" ) require officers to be " fit for duty at all times, except when on sick report." PG 203-04, J.A. 111. Consistent with this requirement, officers are instructed that they " SHOULD NOT be in possession of their firearms if there is any possibility that they may become unfit for duty due to the consumption of intoxicants." Id. (emphasis in original). NYPD supervisors are authorized and, indeed, obligated to remove firearms from any officer " who appears unfit for duty due to intoxication." PG 206-12, J.A. 131. An officer who is " unfit for duty due to excessive consumption and intoxication from alcohol while armed with a firearm" is subject to the administrative charge of being " Unfit for Duty While Armed," with " strict punitive sanctions" if the charge is sustained at a disciplinary proceeding. PG 203-04, J.A. 111. An officer's " misuse of a firearm while unfit for duty due to excessive consumption of, and intoxication from, alcohol will result in that [officer's] termination from the [NYPD]." Id. 
5. NYPD Procedures for Investigating Police Shootings
IO-52 testing also operates within a larger set of procedures whereby the
NYPD investigates every incident in which an officer discharges his firearm other than at the firing range. See PG 212-29, J.A. 134 (" Firearms Discharge by Uniformed Member of the Service" ); PG 212-53, J.A. 144 (" Command Responsibilities When a Person Dies or Sustains a Serious Injury in Connection with Police Activity" ). These procedures require that the initial investigation into a police shooting be conducted by an NYPD officer with the rank of captain or higher, who must prepare a narrative report of the relevant events, which may or may not also contain a preliminary evaluation of whether the shooting comported with NYPD guidelines and a recommendation as to possible corrective or disciplinary action. At the same time, procedures require the shooting site to be treated in the same manner as a crime scene. As explained by Chief Campisi, this is done " to assure the public and the NYPD's own officers that the truth of the shooting will be brought out and appropriate actions taken," Campisi Decl. ¶ 45, J.A. 99, and because " whether criminal charges against anyone will result cannot be determined until the investigation is completed," id. ¶ 33, J.A. 96.
Within 90 days of the shooting, or as soon as possible thereafter, a commanding officer must complete a final report of findings and recommendations, including therein the Medical Examiner's report (if applicable), a ballistics report, a summary of the shooting officer's statements, and any applicable IAB, District Attorney, or grand jury findings. The matter is then reviewed further first by the Borough Firearms Discharge Advisory Board and then by the Chief of the Department's Firearms Discharge Review Board to decide what action, if any, should be taken. Such action may provide for " additional training," " disciplin[e]," or, " in relatively rare circumstances," criminal prosecution. Id. ¶ 46, J.A. 99.
6. Reported Frequency and Perceptions of IO-52 Testing
Plaintiffs submit that since the 2007 implementation of IO-52, NYPD officers have been subjected to IO-52 breath testing on approximately 15 to 20 occasions. No tested officer has exceeded the .08 threshold on Intoxilyzer testing, nor has any officer been criminally charged in connection with the shootings at issue. Nevertheless, plaintiffs have submitted affidavits from some of the tested officers stating that they found IO-52 testing burdensome, embarrassing, stressful, and degrading. These same ...