Monday, October 2, 2017

New Officer-Involved Shooting Drug and Alcohol Testing Statute Raises More Questions Than It Answers

A recent amendment to the Illinois Police and Community Relations Act is drawing attention from municipalities and police unions alike.  Effective August 25, 2017, the new law provides that every law enforcement agency must adopt and follow a written policy regarding drug and alcohol testing for police officers involved in officer-involved shootings.  As defined by the statute, an “officer-involved shooting” encompasses any case in which “a law enforcement officer discharges his or her firearm, causing injury or death to a person or persons, during the performance of his or her official duties or in the line of duty”.  The written policy is to apply to each officer involved in an officer-involved shooting, and the statute provides that “drug and alcohol testing must be completed as soon as practicable after the officer-involved shooting but no later than the end of the involved officer’s shift or tour of duty”.
This simple, two paragraph statute gives rise to more questions than answers.  Following are a few of them:

Q.  What are the statutory guidelines as to the content of the written drug and alcohol policy that each law enforcement agency is to adopt?
A. Other than stating that every officer involved in an officer-involved shooting is to be tested for drugs and alcohol and that such testing must be completed no later than the end of the officer’s shift, there are none.  

Q. Can the law enforcement agency adopt the policy unilaterally?
A. In the absence of a union representing police officers, yes.  If the officers are represented by one or more police unions, however, the answer becomes less clear.
The Illinois Public Labor Relations Act provides that employers have a duty to bargain with the bargaining representative of an appropriate unit of public employees with respect to “wages, hours, and other conditions of employment”.  This duty precludes unilateral action on the part of the employer with respect to mandatory subjects of bargaining, including drug and alcohol testing.  But, since the new law requires the adoption of a drug and alcohol testing policy to apply to cases of officer-involved shootings, it can be argued that a police union cannot prevent the employer from adopting an officer-involved shooting policy and, further, that the employer may be entitled or required to adopt an interim policy to satisfy the statutory mandate until such time as collective bargaining can occur.  Before taking such a position, however, an employer is advised to seek advice from labor counsel.  

Q. What happens if there is already a collectively-bargained policy in place?
A. Many law enforcement agencies already have negotiated drug and alcohol testing policies covering police officers.  Although the content of drug and alcohol testing policies can vary, most existing policies provide for testing in one or more of three circumstances:  “reasonable suspicion” testing, random testing, and “specified situation” testing.  Whether an existing policy is broad enough to cover officer-involved shootings is a matter of interpretation.  While the employer may have a legitimate argument that the union has already agreed to a drug and alcohol testing policy, and that all that has to be done is apply it, the union may disagree.  Employers should review existing drug and alcohol testing policies with labor counsel before responding to a union demand to bargain over the substance or effects of the new legislation.

Q. What kinds of testing are contemplated by the new legislation?
A. Most existing drug and alcohol testing policies provide for testing by means of urine or, less frequently, blood samples.  The collected sample is divided into two parts:  an “A” sample and a “B” sample.  If the A sample shows positive for drugs or alcohol, the B sample may then be tested, either as a matter of course or at the officer’s request, to determine if the B sample results confirm the results of the A sample test.  Urine sample tests are commonly featured in collectively bargaining drug and alcohol tests, but, as reflected in the answer to the next question, blood sample testing can present problems if the current drug and alcohol policy does not provide for it.  Notably, the statute does not state what drugs should be tested for in these situations, or what should be considered a “positive” result.

Q. What happens if an officer-involved shooting results in the officer’s being hospitalized with a gunshot wound or other injury?
A. The statute seems not to have considered this contingency.  A severely wounded officer may not be able to comply with the requirement of giving a test sample prior to the end of his shift, as the statute mandates.  While there is an Illinois statute that permits chemical tests of blood and urine in the course of providing emergency medical treatment, that does not apply to tests conducted “at the request of law enforcement authorities”.  625 ILCS 5/11-501.4.  Also, with respect to testing from blood samples, the United States Supreme Court has ruled that blood tests implicate privacy concerns and may not be taken without consent or a warrant.  Birchfield v. North Dakota, 13 S.Ct. 2160 (2016).  While the existence of a policy, especially a collectively bargained policy, that provides for blood testing may establish consent, the warrant requirement that otherwise would apply to a blood sample drawn from a hospitalized officer could render impossible the meeting of the “end of the shift” requirement in the new statute.  

Q. What other concerns are implicated by the new statute?   
A. The principal concerns for the law enforcement agency is liability.  Because drug testing in the case of an officer-involved shooting is statutorily mandated, it is at least arguable, even probable, that the drug testing results will be considered to be public information subject to discovery under the Freedom of Information Act.  If the test results show the officer was impaired by drugs or alcohol, the victim of the officer-involved shooting may have an argument that he was injured as a result of officer negligence.  Other concerns, including concerns that are perhaps best addressed in collective bargaining, are the affected officer’s right to Union representation under case of NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the rights of the police officer under the Uniform Peace Officers’ Disciplinary Act, 50 ILCS 725, and, possibly, the affected officer’s right to protection against coerced self-incrimination under Garrity v. New Jersey, 385 U.S. 493 (1967).  

Q. What can the law enforcement agency do to minimize the possible adverse consequences of compliance with the officer-involved shooting statute?
A. The most important action that a law enforcement agency can take is to enforce an existing general drug and alcohol testing policy strictly and vigorously.  Because an on-duty officer under the influence of illegal (or even legal) drugs or alcohol is a liability risk for the agency, lax enforcement of the policy or disciplinary rules relating to the policy cannot be tolerated.  Secondly, however, the agency must work with labor counsel to insure that both the general and officer-involved shooting testing policies are as thorough and sound as possible.  The new statute virtually mandates that law enforcement agencies take a new look at their policies, even policies that have created no problems in the past, to be sure that they are adequate to deal with this new challenge.

Q. Can a home-rule municipality exempt itself from the operation of the officer-involved shooting statute?
A. The general rule is that a home rule municipality may enact a local ordinance that has requirements differing from a state statute so long as the General Assembly has not included language in the statute that denies or limits home rule powers.  Palm v. Lake Shore Drive Condominium Association, 2013 IL 110505.  There is no express pre-emption language in the officer-involved shooting statute or in the statute that it amends, the Police and Community Relations Improvement Act, 50 ILCS 727/1-1, et seq.  Nevertheless, courts have held in the past that, notwithstanding the absence of pre-emption language, a home rule ordinance is ineffective to exempt a jurisdiction from compliance with a statute enacted to address a matter of statewide, rather than local, concern.  LaSalle National Trust v. Village of Mettawa, 249 Ill.App.3d 550 (2d Dist.), cert. denied 53 Ill.2d 560 (1993) (home rule community ordinance cannot interfere with operation of statewide disconnection statute).  It is not at all certain that courts will uphold a home rule community’s exemption from this statute. 

As always, the labor and employment attorneys at Ancel Glink are available to assist you in reviewing your existing policies or drafting policies consistent with these new statutory requirements as well as advising you on your rights and obligations related to union demands. Contact Margaret Kostopulos (tel: 312-604-9106) or Don Anderson at (tel: 847-856-5439), or your regular corporate attorney at Ancel Glink for more information and assistance.