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Law enforcement agencies are your post-shooting drug and alcohol testing programs in place?

As of August 25, 2017, Illinois law enforcement agencies are required to adopt drug and alcohol testing policies for officer involved shootings. Specifically, 50 ILCS 727/1-25 provides an unfunded mandate requiring each agency to develop a written policy for any discharge of an officer’s firearm that causes injury or death.

The law provides that the written policy must require that (1) the officer must submit to drug and alcohol testing and (2) that the testing must be performed on the same shift as the incident. This new section was added to the Police and Community Relations Improvement Act.

This new law leaves open the question of what “drugs” are included in the testing. The law also does not address the penalties or negative inferences that may be drawn when departments fail to implement and follow such post-incident policies.

The law may raise concerns regarding an officer’s post-incident rights under the Constitution, which are otherwise provided for in the Uniform Peace Officer’s Disciplinary Act, 50 ILCS 725/4. On its face, this new section requires mandatory testing without meeting the typical requirements to subject a person to a search and seizure under the Fourth Amendment.

The new law raises HIPAA issues as the use of certain drugs could reveal medical conditions. For example, the drug testing could reveal that an officer is using prescribed medication to treat a mental health condition that would be protected under the Illinois Mental Health Confidentiality Act.

This new law also impacts labor relations as it mandates immediate policy changes.

For more information about this development or other questions related to Municipal Liability or Employment issues, please contact Michael J. Lizzadro or Joseph F. Spitzzeri at Johnson & Bell, Ltd.