United States District Court,D. New Jersey.
Ben CAPUA, et al., Plaintiffs,
v.
The CITY OF PLAINFIELD, et al., Defendants.
Monica TOMPKINS, Plaintiff,
v.
The CITY OF PLAINFIELD, et al., Defendants.
Civ. A. No. 86-2992.
Sept. 18, 1986.
City fire fighters and police department employee brought actions challenging mass urine testing for drug abuse. The District Court, Sarokin, J., held that: (1) governmental taking of urine specimen constituted search and seizure within meaning of Fourth Amendment; (2) means chosen by city to achieve goal of ensuring fire fighters were free from drug-induced impairments and capable to perform their public service were not “reasonable” within meaning of Fourth Amendment; and (3) administration of urine testing program impermissibly violated constitutionally protected liberty and property reputational interests of city employees without due process.
Judgment for plaintiffs; injunctive relief ordered.
West Headnotes
[1] Constitutional Law 92 278.4(1)
92 Constitutional Law
92XII Due Process of Law
92k278.4 Regulations Affecting Public Officers and Employees
92k278.4(1) k. In General. Most
Cited Cases
Even if
mass urine testing of government employees for drug abuse were justified
without individualized basis, such mass testing would nonetheless be illegal
where employees' due process rights were flagrantly violated by coercion of
long-time employees into testing without notice, without standards, and without
probable cause or reasonable suspicion. U.S.C.A.
Const.Amends. 5, 14.
[2] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Assuming
program of mass urine testing of government employees for drugs is warranted,
before it may be implemented, its existence must be made known, its methods
clearly enunciated, and its procedural and confidentiality safeguards
adequately provided.
[3] Declaratory Judgment 118A 274.1
118A Declaratory Judgment
118AIII Proceedings
118AIII(B) Jurisdiction and Venue
118Ak274 Jurisdiction of Federal Courts
118Ak274.1 k. In General. Most
Cited Cases
(Formerly 118Ak274)
Federal Courts 170B 221
170B Federal Courts
170BIII Federal Question Jurisdiction
170BIII(C) Cases Arising Under Laws of the United States
170Bk219 Civil Rights and Elective Franchise, Laws Relating to
170Bk221 k. Particular Cases and Questions. Most
Cited Cases
Federal
jurisdiction over civil rights action under 42
U.S.C.A. § 1983 is appropriate even where § 1983 action
asserts claims for declaratory and injunctive relief.
[4] Searches and Seizures 349 14
349 Searches and Seizures
349I In General
349k13 What Constitutes Search or Seizure
349k14 k. Taking Samples of Blood, or Other Physical
Specimens; Handwriting Exemplars. Most
Cited Cases
As with
blood, each individual has reasonable expectation of privacy in personal “information”
bodily fluids contain, for purposes of determining whether testing of bodily
fluids constitutes search and seizure within meaning of Fourth Amendment. U.S.C.A.
Const.Amend. 4.
[5] Searches and Seizures 349 14
349 Searches and Seizures
349I In General
349k13 What Constitutes Search or Seizure
349k14 k. Taking Samples of Blood, or Other Physical
Specimens; Handwriting Exemplars. Most
Cited Cases
Governmental
taking of urine specimen constitutes search and seizure within meaning of
Fourth Amendment. U.S.C.A.
Const.Amend. 4.
[6] Searches and Seizures 349 23
349 Searches and Seizures
349I In General
349k23 k. Fourth Amendment and Reasonableness in General. Most
Cited Cases
Fundamental
command of Fourth Amendment is that searches and seizures be “reasonable.” U.S.C.A.
Const.Amend. 4.
[7] Searches and Seizures 349 23
349 Searches and Seizures
349I In General
349k23 k. Fourth Amendment and Reasonableness in General. Most
Cited Cases
What is “reasonable”
search and seizure under the Fourth Amendment depends upon context in which
search takes place. U.S.C.A.
Const.Amend. 4.
[8] Searches and Seizures 349 24
349 Searches and Seizures
349I In General
349k24 k. Necessity of and Preference for Warrant, and Exceptions
in General. Most
Cited Cases
Ordinarily,
search requires both warrant and probable cause to qualify as constitutionally
reasonable.
[9] Searches and Seizures 349 23
349 Searches and Seizures
349I In General
349k23 k. Fourth Amendment and Reasonableness in General. Most
Cited Cases
Ultimate
determination of search's constitutional reasonableness requires judicious
balancing of intrusiveness of search against its promotion of legitimate
governmental interest.
[10] Searches and Seizures 349 26
349 Searches and Seizures
349I In General
349k25 Persons, Places and Things Protected
349k26 k. Expectation of Privacy. Most
Cited Cases
Degree of
intrusion engendered by any search must be viewed in context of individual's
legitimate expectation of privacy, in determining whether search is
constitutionally reasonable.
[11] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Mass urine
testing program for city fire fighters subjected fire fighters to relatively
high degree of bodily intrusion, for purposes of determining whether
individual's legitimate expectation of privacy was invaded by such testing, in
determining constitutional reasonableness of such search; urine is generally discharged and disposed of
under circumstances that warrant legitimate expectation of privacy, bodily
surveillance during urine collection was considered essential and standard
operating procedure in administration of urine drug tests, compulsory
urinalysis forced fire fighters to divulge private, personal medical
information unrelated to government's professed interest in discovering illegal
drug abuse, and there was no forewarning that submission to compulsory employee
urine testing would become condition of continued employment. U.S.C.A.
Const.Amend. 4.
[12] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Mass urine
testing of city fire fighters to detect drug abuse was not “reasonable” means
of assuring fire fighters were free from drug-induced impairments and capable
to perform their public service under the Fourth Amendment, despite claim that
widespread, large scale drug use in all segments of population led to
reasonable and logical inference that some of those affected might ultimately
be employed in public safety capacity and that mass urinalysis was most
efficient way to detect drug use, where city proceeded in urine testing
campaign without any specific information or independent knowledge that any
individual employee was under influence of drugs, and there had been no
increased incidence of fire-related accidents or complaints of inadequate fire
protection from community. U.S.C.A.
Const.Amend. 4.
[13] Searches and Seizures 349 82
349 Searches and Seizures
349I In General
349k80 Effect of Illegal Conduct;
Trespass
349k82 k. Curing Illegality;
Justification by Result. Most
Cited Cases
Results
achieved cannot justify means utilized for search, and constitutionality of
search cannot rest on its fruits.
[14] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
As to each
individual tested in mass urine testing of city fire fighters for drug abuse,
search was unreasonable, where government lacked any specific suspicion as to
that fire fighter.
[15] Searches and Seizures 349 23
349 Searches and Seizures
349I In General
349k23 k. Fourth Amendment and Reasonableness in General. Most
Cited Cases
Under the
Fourth Amendment, every individual has absolute right to be free from searches
and seizures absent establishment of some degree of reasonable suspicion
against him. U.S.C.A.
Const.Amend. 4.
[16] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Mere
possibility of discovering that some city fire fighters were using drugs and
therefore might be impaired in their job performance at some future time
because of drug use could not render mass urine testing constitutionally
reasonable.
[17] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Fourth
Amendment allows city to demand urine of employee only on basis of reasonable
suspicion predicated upon specific facts and reasonable inferences drawn from
those facts in light of experience. U.S.C.A.
Const.Amend. 4.
[18] Searches and
Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
Reasonable
suspicion standard governing demanding of urine from city employees requires
individualized suspicion, specifically directed to person who is targeted for
search. U.S.C.A.
Const.Amend. 4.
[19] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
“Reasonable
suspicion” rather than “mere suspicion” is standard for urine testing of city
police and fire fighters, who are subject to constant observation by their
superiors and co-workers, such that one so under influence of drugs as to impair
performance of his duties must manifest some outward symptoms which would give
rise to reasonable suspicion. U.S.C.A.
Const.Amend. 4.
[20] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
City fire
fighters were not “voluntary participants in a highly-regulated industry,” so
as to justify subjecting them to mass urinalysis absent requirement of
individualized suspicion, where city fire department had traditionally not
invoked intrusive regulatory authority in supervising fire fighters' persons
and effects, fire fighters had no notice or warning they would be subject to
intrusive personal searches by city officials, and fire fighters were not
afforded opportunity to make informed employment decision based on knowledge
that they might be required to submit to intrusive government intervention on
the job.
[21] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
City did
not need to demonstrate propriety of its fire fighters by program of mass urine
testing for drug use, as ability of fire fighters to perform their jobs was not
dependent upon public's perception of their integrity, but rather, city was
concerned with determination of job-related capability, which did not require
mass urinalysis, but could be safely accommodated by individualized suspicion
standard; city's interest did not
require use of department-wide urinalysis.
[22] Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests;
Identification Procedures. Most
Cited Cases
In
balancing government's interest in conducting search against intrusiveness and
potential harms city fire fighters subjected to mass urine testing for drug use
might suffer, city had to meet much higher burden of reasonableness to justify
subjecting city fire fighters to potential criminal charges as result of urine
testing than if information were kept confidential from enforcement agents.
[23] Constitutional Law 92 277(2)
92 Constitutional Law
92XII Due Process of Law
92k277 Property and Rights Therein Protected
92k277(2) k. Public Office or Employment. Most
Cited Cases
New Jersey
statutory scheme conferring upon fire department employees reasonable
expectation of continued employment unless and until “just cause” is
established for their termination bestows property interest upon fire fighters
which cannot be abrogated by government employer without due process. U.S.C.A.
Const.Amend. 4;
N.J.S.A.
40A:14-7 et seq., 40A:14-19.
[24] Constitutional Law 92 278.4(3)
92 Constitutional Law
92XII Due Process of Law
92k278.4 Regulations Affecting Public Officers and Employees
92k278.4(3) k. Discipline, Suspension, Lay-Off, or Discharge. Most
Cited Cases
City fire
fighters derive constitutionally protected reputational interests in their
individual reputations and in honor and integrity of their good names from
their employment status as fire fighters, and such protected reputational
interests cannot be arbitrarily or capriciously infringed by government
officials.
[25] Constitutional Law 92 277(2)
92 Constitutional Law
92XII Due Process of Law
92k277 Property and Rights Therein Protected
92k277(2) k. Public Office or Employment. Most
Cited Cases
Constitutional Law 92 278.4(3)
92 Constitutional Law
92XII Due Process of Law
92k278.4 Regulations Affecting Public Officers and Employees
92k278.4(3) k. Discipline, Suspension, Lay-Off, or Discharge. Most
Cited Cases
Discharge
of city fire fighters on charges of drug abuse based on results of mass urine
testing could severely affect constitutionally protected reputational interests
deriving from employment status as fire fighters, and deprivation of fire
fighters' constitutionally protected liberty and property reputational
interests triggered constitutional requirements of procedural due process. U.S.C.A.
Const.Amends. 5, 14.
[26] Constitutional Law 92 278.4(1)
92 Constitutional Law
92XII Due Process of Law
92k278.4 Regulations Affecting Public Officers and Employees
92k278.4(1) k. In General. Most
Cited Cases
Subjecting
city fire fighters to mass urine testing without individualized suspicion
impermissibly violated fire fighters' constitutionally protected liberty and
property reputational interests without due process of law, where unannounced
mass urine testing took place and was completely lacking in procedural
safeguards, testing was unilaterally imposed by city as condition of employment
without prior notice to fire fighters and without opportunity for fire fighters
to voice objection or seek advice of counsel, and city effectively coerced
waiver of any rights by compelling fire fighters to participate in urine
testing under threat of immediate discharge.
U.S.C.A.
Const.Amends. 5, 14; N.J.S.A.
40A:14-7 et seq.
[27] Constitutional Law 92 278.4(5)
92 Constitutional Law
92XII Due Process of Law
92k278.4 Regulations Affecting Public Officers and Employees
92k278.4(5) k. Proceedings and Review. Most
Cited Cases
City's
refusal to afford fire fighters full opportunity to evaluate and review their
personal urine test results or to have their own urine specimens retested by
technician of their choice offended traditional notions of fundamental fairness
and due process. U.S.C.A.
Const.Amends. 5, 14.
[28] Injunction 212 99
212 Injunction
212II Subjects of Protection and Relief
212II(G) Personal Rights and Duties
212k99 k. Interference with Occupation in General. Most
Cited Cases
Invasion
of Fourth Amendment privacy rights and Fourteenth Amendment substantive and due
process rights resulting from administration of mass urine testing program with
respect to city fire fighters warranted injunctive relief, where absent
injunctive relief, fire fighters faced threat of immediate termination from
their jobs without pay and without opportunity for due process hearing, any
opportunity for other employment had been jeopardized by adverse publicity
generated by action which had left each fire fighter vulnerable to suspicion of
being “drug abuser,” and requiring individualized, reasonable suspicion for
urine testing would not unduly burden city's ability to ensure its citizens
safe, unimpaired fire fighting force. U.S.C.A.
Const.Amends. 4, 14.
[29] Civil Rights 78 1126
78 Civil Rights
78II Employment Practices
78k1124 Public Employment
78k1126 k. Particular Cases. Most
Cited Cases
(Formerly 78k146, 78k13.4(1))
City's
actions relating to mass urine testing of employees violated civil rights
statute, 42
U.S.C.A. § 1983, depriving fire fighters and police department employee of
constitutional rights and privileges secured to them.
*1510 Justin, Gast, & Kuhn, New Brunswick,
N.J., Loccke & Correia, P.A., Englewood, N.J., Robinson, Wayne, Levin,
Ricco & La Sala, Newark, N.J., for plaintiffs.
Daniel A.
Williamson, Plainfield, N.J., for defendant, City of Plainfield.
OPINION
SAROKIN,
District Judge.
INTRODUCTION
In the
face of widespread use of drugs and its intrusion into the workplace, it is
tempting to turn to mass testing as a solution. The issue presented by this case is the
constitutionality of such testing of current employees by governmental entities. *1511 Whether such testing may be
done in the private sector or be imposed as a condition of accepting
employment, even in the public sector, is not here presented. Government has a vital interest in making
certain that its employees, particularly those whose impairment endangers their
co-workers or the public, are free of drugs.
But the question posed by this litigation challenges the means by which
that laudable goal is attained, not the goal itself.
Urine
testing involves one of the most private of functions, a function traditionally
performed in private, and indeed, usually prohibited in public. The proposed test, in order to ensure its
reliability, requires the presence of another when the specimen is created and
frequently reveals information about one's health unrelated to the use of
drugs. If the tests are positive, it
may affect one's employment status and even result in criminal prosecution.
We would
be appalled at the spectre of the police spying on employees during their free
time and then reporting their activities to their employers. Drug testing is a form of surveillance,
albeit a technological one.
Nonetheless, it reports on a person's off-duty activities just as surely
as someone had been present and watching.
It is George Orwell's “Big Brother” Society come to life.
To argue
that it is the only practical means of discovering drug abuse is not
sufficient. We do not permit a search
of every house on a block merely because there is reason to believe that one
contains evidence of criminal activity.
No prohibition more significantly distinguishes our democracy from a
totalitarian government than that which bars warrantless searches and
seizures. Nor can the success of
massive testing justify its use. We
would not condone the beatings of suspects and the admissibility of their
confessions merely because a larger number of convictions resulted.
[1] [2] In this
matter, long time employees were coerced into testing without notice, without
standards and without probable cause or reasonable suspicion. Even if such testing were justified without
such individualized basis, it nonetheless,
would be illegal because of the flagrant violation of plaintiffs' due process
rights in this instance. Assuming a
program of drug testing is warranted, before it may be implemented, its
existence must be made known, its methods clearly enunciated, and its
procedural and confidentiality safeguards adequately provided.
The
harassment, coercion and tactics utilized here, even if motivated by the best
of intentions, should cause us all to recognize the realities of government
excesses and the need for constant vigilance against intrusions into
constitutional rights by its agents. If
we choose to violate the rights of the innocent in order to discover and act
against the guilty, then we will have transformed our country into a police
state and abandoned one of the fundamental tenets of our free society. In order to win the war against drugs, we
must not sacrifice the life of the Constitution in the battle.
FACTS
On May 26,
1986 all fire fighters and fire officers employed by the defendant, City of
Plainfield, were ordered to submit to a surprise urinalysis test. At 7:00 A.M. on May 26, the Plainfield Fire
Chief and Plainfield Director of Public Affairs and Safety entered the city
fire station, secured and locked all station doors and awakened the fire
fighters present on the premises. Each
fire department employee was required to submit a urine sample while under the
surveillance and supervision of bonded testing agents employed by the
city. Defendants repeated a
substantially similar procedure on May 28 and June 12, 1986 until approximately
all of the 103 employees of the Plainfield Fire Department were tested.
Prior to
May 26, the Plainfield fire employees had no notice of defendants' intent to
conduct mass urinalysis. Such
urinalysis had not been provided for in the collective bargaining agreement
between the fire fighters and the City.
Nor was any written directive, order, departmental policy or *1512
regulation promulgated establishing the basis for such testing and prescribing
appropriate standards and procedures for collecting, testing, and utilizing the
information derived.
Between
July 10 and July 14, 1986, sixteen firefighting personnel were advised that
their respective urinalysis had proved positive for the presence of controlled
dangerous substances. They were
immediately terminated without pay.
Those who tested positive were not informed of the particular substance
found in their urine or of its concentration.
Neither were they provided copies of the actual laboratory results. Written complaints were served ten days
later on July 24, 1986, charging these fire fighters with numerous violations
including “commission of a criminal act”.
At about
the same time, employees of the Plainfield Police Department were subjected to
similar urine testing. On May 26, 1986,
plaintiff Monica Tompkins, a communications operator for the Plainfield Police
was ordered to submit a urine sample under the surveillance of a female testing
agent. On July 10, Ms. Tompkins was
advised by the Chief of Police that her urinalysis had been positive. As a result, Ms. Tompkins was informed that
she could either resign without charges being brought or she would be
immediately suspended.
Plaintiff
fire fighters instituted this action on July 30, 1986, by way of an Order to
Show Cause and Verified Complaint.
Plaintiff Monica Tompkins filed a related action which will be
considered jointly. The Court issued a
Temporary Restraining Order mandating the immediate reinstatement of the
suspended Plainfield fire fighters and prohibiting further urine testing by
defendants pending a plenary determination in this case.
On July
31, 1986 defendants moved to vacate the restraining order. The court denied defendants' motion, but
granted leave to re-apply if specific, individualized evidence could be
produced demonstrating that a particular fire fighter's job performance was
impaired as a result of drugs. To date,
no such evidence has been brought before the court.
[3] Plaintiffs bring this action pursuant to 42
U.S.C. § 1983 seeking declaratory and injunctive relief. FN1 They seek to have
the urine testing declared unconstitutional and to enjoin the City of
Plainfield and its agents from further conducting standardless, department-wide
urine testing in violation of the Fourth Amendment. The parties have agreed to submit the matter
for a final determination on the record before the court conceding that no
factual issues exist which would require a hearing.
FN1. This
Court notes that plaintiffs' cause of action is properly in federal court. The Supreme Court has unambiguously ruled
that exhaustion of State judicial or administrative remedies is not a
prerequisite to a federal lawsuit under 42
U.S.C. § 1983. See generally Patsy
v. Florida Board of Regents,
457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). Similarly, federal jurisdiction is appropriate
even where, as here, the § 1983 action
asserts claims for declaratory and injunctive relief. Cheyney
State College Faculty v. Hufstedler,
703 F.2d 732, 737 (3d Cir.1983).
DISCUSSION
The Fourth
Amendment to the United States Constitution states:
The right
of the people to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated ...
The
essential purpose of the Fourth Amendment is to “impose a standard of
reasonableness upon the exercise of discretion by government officials” in
order to “safeguard the privacy and security of individuals against arbitrary
invasions by government officials.” Delaware
v. Prouse,
440 U.S. 648, 653-54, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); Camara
v. Municipal Court,
387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967). “The Fourth
Amendment thus gives concrete expression to a right of the people which ‘is
basic to a free society.’ ” Id.,
(quoting Wolf
v. Colorado,
338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949)). The
constitutional issue here arises only if *1513 the Fourth Amendment is
implicated by defendants' conduct. The
threshold question then is whether urinalysis constitutes a search and seizure
within the meaning of the Fourth Amendment.
Courts
have clearly established that individuals retain an expectation of privacy and
a right to be free from government intrusion in the integrity of their own
bodies. See Schmerber
v. California,
384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); United
States v. Ramsey,
431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1978). “One's anatomy is draped with constitutional
protection.” United
States v. Afanador,
567 F.2d 1325, 131 (5th Cir.1978). The “taking” of urine has been likened to the
involuntary taking of blood which the Supreme Court found to constitute a
search and seizure within the Fourth Amendment. See Schmerber, supra. Though urine, unlike blood, is routinely
discharged from the body so that no actual intrusion is required for its
collection, it is normally discharged and disposed of under circumstances that
merit protection from arbitrary interference.
[4] [5] Both blood
and urine can be analyzed in a medical laboratory to discover numerous
physiological facts about the person from whom it came, including, but not
limited to recent ingestion of alcohol or drugs. “One does not reasonably expect to discharge
urine under circumstances making it available to others to collect and analyze
in order to discover the personal physiological secrets it holds.” McDonnell
v. Hunter,
612 F.Supp. 1122, 1127 (D.Iowa 1985). As with blood, each individual has a
reasonable expectation of privacy in the personal “information” bodily fluids
contain. For these reasons,
governmental taking of a urine specimen constitutes a search and seizure within
the meaning of the Fourth Amendment. See
McDonnell
v. Hunter, supra; Allen
v. City of Marietta,
601 F.Supp. 482, 288-89 (N.D.Ga.1985); Storms
v. Coughlin,
600 F.Supp. 1214, 1218 (S.D.N.Y.1984); City
of Palm Bay v. Bauman,
475 So.2d 1322 (D.C.App.Fla.1985). Most recently, the Third Circuit implicitly
confirmed the applicability of Fourth Amendment prohibitions to the taking of
urine samples, invoking Fourth Amendment doctrine to determine the
constitutionality of urine testing of race horse jockeys. Shoemaker
v. Handel,
795 F.2d 1136, 1142 (3d Cir.1986) (“the question
that arises in this case is whether the administrative search exception extends
to warrantless [urine] testing of persons”).
[6] [7] [8] [9] Having determined
that urine testing constitutes a search and seizure, this court must now
evaluate defendants' search under the Fourth Amendment's dictates. The fundamental command of the Fourth
Amendment is that searches and seizures be “reasonable.” New
Jersey v. TLO,
469 U.S. 325, 105 S.Ct. 733, 743, 83 L.Ed.2d 720 (1985); Carroll
v. United States,
267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543 (1925). What is
reasonable depends upon the context in which a search takes place. Ordinarily a search requires both a warrant
and probable cause to qualify as constitutionally reasonable. Yet the Supreme Court has stated that
neither element is “an irreducible requirement of a valid search.” New
Jersey v. TLO, supra,
105 S.Ct. at 743. Instead, the ultimate determination of a
search's reasonableness requires a judicious balancing of the intrusiveness of
the search against its promotion of a legitimate governmental interest. See Illinois
v. Lafayete,
462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983); United
States v. Villamonte-Marquez,
462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983). The Supreme Court has explained:
The test
of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application.
In each case it requires a balancing of the need for the particular
search against the invasion of personal rights that the search entails. Courts must consider the scope of the
particular intrusion, the manner in which it is conducted, the justification
for initiating it, and the place in which it is conducted.
Bell
v. Wolfish,
441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979).
*1514 Even in the limited circumstances where
the Supreme Court has created explicit exceptions to the stringent Fourth
Amendment probable cause requirements-e.g. administrative and regulatory
searches-the Court has held such exempted searches to a reasonableness standard
in order to protect individuals from the abuses possible when government
officials are entrusted with “almost unbridled discretion ... as to when ...
and whom to search.” Marshall v. Barlow's Inc.,
436 U.S. 307, 323, 98 S.Ct. 1816, 1826, 56 L.Ed.2d 305 (1978) (invalidating warrantless administrative searches by OSHA
where professed enforcement needs were outweighed by privacy interests of
employers subjected to inspections); see
also Delaware
v. Prouse,
440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).
This Court
must determine whether the intrusion occasioned by compelling members of the
Plainfield Fire Department to submit to compulsory urine testing is
sufficiently justified by the governmental interest in ferreting out drugs so
as to be “reasonable” within the meaning of the Fourth Amendment.
Expectation of Privacy
[10] The degree of intrusion engendered by any search must be
viewed in the context of the individual's legitimate expectation of
privacy. The test for determining when
an expectation of privacy is “legitimate” was articulated by Justice Harlan in Katz
v. United States: “[T]here is a
twofold requirement, first that a person have exhibited an actual (subjective)
expectation of privacy and, second, that the expectation be one that society is
prepared to recognize as ‘reasonable.’ ”
389
U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967).
Courts
have used this standard to differentiate between levels and degrees of
intrusiveness among searches and seizures.
As measured by the expectation of privacy, inspections of personal
effects are generally least intrusive, while breaches of the “integrity of the
body” result in the greatest invasion of privacy.
[11] Applied to
the facts at hand, defendants' mass urine testing program subjected plaintiffs
to a relatively high degree of bodily intrusion. As stated earlier, while urine is routinely
discharged from the body, it is generally discharged and disposed of under
circumstances that warrant a legitimate expectation of privacy. The act itself, totally apart from what it
may reveal, is traditionally private.
Facilities both at home and in places of public accommodation recognize
this privacy tradition. In addition,
society has generally condemned and prohibited the act in public. The “interests of human dignity and privacy”
which compelled Justice Brennan to find mandatory blood extractions greatly
intrusive, Schmerber,
supra,
384 U.S. at 770, 86 S.Ct. at 1835, are implicated
with equally compelling force when individuals are directed to urinate in the
presence of a government agent. The
requirement of surveillance during urine collection forces those tested to
expose parts of their anatomy to the testing official in a manner akin to strip
search exposure. Body surveillance is
considered essential and standard operating procedure in the administration of
urine drug tests, (See Brief Submitted on Behalf of Defendants' at 3), thus
heightening the intrusiveness of these searches. FN2 A urine test done
under close surveillance of a government representative, regardless of how
professionally or courteously conducted, is likely to be a very embarrassing
and humiliating experience. See United
States v. Sandler,
644 F.2d 1163, 1167 (5th Cir.1981) (en banc).
FN2. The
district court in deciding Shoemaker
v. Handel,
608 F.Supp. 1151 (D.N.J.1985); aff'd 795
F.2d 1136 (3rd Cir.1986), concluded that
urinalysis was a more minimal bodily intrusion than either blood extractions or
body cavity and strip searches. In Shoemaker
though, urine specimens were collected privately by the individual being tested
and later submitted for analysis absent any personal identification other than
a testing number. No surveillance was
imposed on those tested. The Shoemaker
urinalysis was therefore qualitatively different from that at issue in this
case and the district court's assessment of the intrusiveness of urinalysis is
not controlling here.
*1515 Furthermore, compulsory urinalysis forces
plaintiffs to divulge private, personal medical information unrelated to the
government's professed interest in discovering illegal drug abuse. Advances in medical technology make it
possible to uncover disorders, including epilepsy and diabetes, by analyzing
chemical compounds in urine. Plaintiffs
have a significant interest in safeguarding the confidentiality of such
information whereas the government has no countervailing legitimate need for
access to this personal medical data.
The dangers of disclosure as a result of telltale urinalysis range from
embarrassment to improper use of such information in job assignments, security
and promotion.
Both the
Supreme Court and the Third Circuit have recognized a right of privacy in
medical information. See Whalen
v. Roe,
429 U.S. 589, 602, 97 S.Ct. 869, 878, 51 L.Ed.2d 64 (1977); United
States v. Westinghouse Electric Corp.,
638 F.2d 570, 577 (3d Cir.1980). In Shoemaker v. Handel, the Third
Circuit acknowledged that the medical disclosure resulting as a by-product of
urinalysis created cause for grave confidentiality concerns. 795
F.2d 1136 (1986). The Shoemaker court nonetheless
upheld the urine testing of jockeys as constitutionally reasonable. But it based its ruling on the fact that
such confidentiality concerns had been carefully addressed in statutory
regulations strictly limiting the use and publication of test results so as to
guarantee the jockeys utmost confidentiality.
795
F.2d at 1144.
The court's decision in Shoemaker is thus readily distinguishable
from the case at hand. Plainfield had
not established any procedural guidelines to govern the urine testing, and in
particular had not taken any precautions to vouchsafe confidentiality. Quite to the contrary, following the
suspension of those fire fighters who had tested positive for drugs, the City
of Plainfield publicized its actions to the media. While no individuals were identified by
name, the exposure has subjected all Plainfield fire fighters to public
suspicion and degradation.
There can
be no doubt on this record that the members of the Plainfield Fire Department
reasonably expected to be free from intrusive government urine testing while on
the job. No provisions for mass urine
testing were included in the collective bargaining agreement signed by the fire
fighters and the City. No directive or
policy statement authorizing the City of Plainfield to conduct such tests was
ever written or communicated to the plaintiffs. There was absolutely no warning prior to the
rude awakening on May 26, 1986 that submission to compulsory employee urine
testing would become a condition of continued employment. Plaintiffs' reasonable expectations of
privacy fell subject to the unbridled discretion of their government employer,
contrary to the very tenet of the Fourth Amendment. See Delaware
v. Prouse, supra,
440 U.S. at 654, 99 S.Ct. at 1396 (Fourth
Amendment safeguards are necessary “to assure that the individual's reasonable
expectation of privacy is not ‘subject to the discretion of the official in the
field’ ”).
The State's Interest
Defendants
contend that fire fighters, as public servants, have a diminished expectation
of privacy, or in fact, no expectation of privacy at all with respect to
job-related inquiries by the municipality.
As employer, the City bears ultimate responsibility for insuring that
its firefighting force is fully capable of protecting the welfare and public
safety of Plainfield's citizenry.
Consequently, defendants claim that their interest in the discovery and
elimination of drug abuse among fire personnel overrides any privacy rights
fire fighters may have.
Defendants
urge the court to find that theirs was an exempted search properly within the “employment
context searches of government employees” exception to the Fourth
Amendment. See, e.g., United
States v. Collins,
349 F.2d 863 (2d Cir.1965), cert. denied, 383
U.S. 960, 86 S.Ct. 1228, 16 L.Ed.2d 303 (1966); Allen
v. City of Marietta,
601 F.Supp. 482 (N.D.Ga.1985). This emerging body of case law suggests that
the government as employer “has the same right as any private employer*1516 to oversee its employees and investigate
potential misconduct relevant to the employee's performance of his duties.” Allen
v. City of Marietta,
601 F.Supp. at 491.
The
fundamental distinction between City of Marietta and this case, is that
the warrantless search in City of Marietta was nevertheless based upon
some reasonable, individualized suspicion that the employees subjected to
urinalysis were under the influence of drugs while on the job. In City of Marietta, certain
employees of the Board of Lights and Water had been observed smoking marijuana
on the job. Only those employees toward
whom a reasonable suspicion of drug use on the job was established were
compelled to submit urine samples or resign.
Similarly, in another employment context case involving urine testing of
government employees, Division
241 Amalgamated Transit Union (AFL-CIO) v. Suscy,
538 F.2d 1264, (8th Cir.1976), the court upheld
warrantless testing of city bus drivers who were involved in serious accidents
or suspected of being intoxicated on the job, but only after two supervisory
employees concurred as to the necessity of the test based on individualized,
reasonable suspicion.
In each of
these cases the city was able to insure the public welfare while still
respecting individual employee's Fourth Amendment rights. The intrusiveness of the search was
minimized because the government established an individualized basis for its
need to search and carefully circumscribed the search's scope.
The City
of Plainfield proceeded in its urine testing campaign without any specific
information or independent knowledge that any individual fire department
employee was under the influence of drugs.
None of the 103 individual fire fighters compelled to submit to urine
testing had received prior notice that their job performance was below standard. None of the 103 fire fighters tested were
under investigation for drug use on the job.
There was not an increased incidence of fire-related accidents or
complaints of inadequate fire protection from the community. Defendants had no general job-related basis
for instituting this mass urinalysis, much less any individualized basis.
The Constitutional Standard
[12] The deleterious effects of drug consumption upon public
safety officers' ability to properly perform their duties is undeniably an
issue legitimately within the City's concern.
But the merits of the City's efforts to assure that all fire fighters
are free from drug induced impairments and capable to perform their public
service is not at issue in this case.
Rather the question to be answered is whether the means chosen by the
City to achieve this laudable goal are “reasonable” within the meaning of the
Fourth Amendment. This court is
compelled to conclude that they are not.
As
justification for undertaking the department-wide search, defendants explain
that the widespread, large scale drug use in all segments of the population
leads to the “reasonable and logical inference that some of those affected may
ultimately be employed in a public-safety capacity.” See Brief Submitted on Behalf of
Defendants at 14. Defendants contend
that mass round-up urinalysis is the most efficient way to detect drug use.
[13] It is beyond dispute that the taking and testing of urine
samples achieves the city's desired goal, namely the identification of
employees who use drugs. But under the
law, the results achieved cannot justify the means utilized and the
constitutionality of a search cannot rest on its fruits. See McDonell
v. Hunter,
612 F.Supp. 1122 (D.Iowa 1985).
[14] The sweeping manner in which defendants set about to
accomplish their goals violated the fire fighter's individual liberties. As to each individual tested the search was
unreasonable because defendants lacked any specific suspicion as to that fire
fighter. See e.g. Terry
v. Ohio,
392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968) (“[F]irst, one must consider ‘whether the ... action was
justified at its inception,’ ... second, one must determine *1517
whether the search as actually conducted ‘was reasonably related in scope to
the circumstances which justified the interference in the first place’ ”).
The
invidious effect of such mass, round-up urinalysis is that it casually sweeps
up the innocent with the guilty and willingly sacrifices each individual's
Fourth Amendment rights in the name of some larger public interest. The City of Plainfield essentially presumed
the guilt of each person tested. The
burden was shifted onto each fire fighter to submit to a highly intrusive urine
test in order to vindicate his or her innocence. Such an unfounded presumption of guilt is
contrary to the protections against arbitrary and intrusive government
interference set forth in the Constitution.
Although plaintiffs' privacy and liberty interests may be diminished on
the job, these interests are not extinguished and therefore must be accorded
some constitutional protection.
[15] The Fourth Amendment speaks in terms of individual
guarantees. Every individual has the
absolute right to be free from searches and seizures absent the establishment
of some degree of reasonable suspicion against him or her. Even with respect to law enforcement
investigations at the scene of a crime, courts have refused to permit police
agents to transfer reasonable suspicion established against one individual to
other individuals also present at the crime site. In these situations the court has reasoned
that “the fourth amendment does not permit any automatic or casual transference
of ‘suspicion’ ”. United
States v. Afanador,
567 F.2d 1325, 1331 (5th Cir.1978). “ ‘Reasonable suspicion’ must be specifically
directed to the person to be searched.” Id.,
at 1331. “An
investigatory search will be found constitutionally permissible only when
supported by reasonable suspicion directed to the person to be searched”. Ybarra
v. Illinois,
444 U.S. 85, 89-91, 100 S.Ct. 338, 341, 62 L.Ed.2d 238 (1979); See United
States v. Clay,
640 F.2d 157, 160 (8th Cir.1981). If we cannot impute suspicion from one
individual legitimately under investigation to others in his presence, we
cannot impute suspicion to an entire fire fighter force when no reasonable
suspicion exists as to any one of the individuals to be searched.
[16] Defendants undertook
this search driven by the mere possibility of discovering that some fire
fighters were using drugs and therefore might be impaired in their job
performance at some future time because of this drug use. Such attenuated protestations of concern for
the welfare of the Plainfield community, without more, cannot render the
seizure of urine specimens constitutionally reasonable.
[17] [18] The Fourth
Amendment allows defendants to demand urine of an employee only on the basis of
a reasonable suspicion predicated upon specific facts and reasonable inferences
drawn from those facts in light of experience.
McDonell v. Hunter, supra, at 1130; Division
241 Amalgamated Transit Union (AFL-CIO) v. Suscy,
538 F.2d 1264, 1267 (7th Cir.1976). The reasonable suspicion standard requires
individualized suspicion, specifically directed to the person who is targeted
for the search. See Ybarra
v. Illinois, supra,
444 U.S. at 89-91, 100 S.Ct. at 341; Hunter
v. Augur,
672 F.2d 668 (1982); Division 241 Amalgamated Transit Union v.
Suscy, supra. Divorcing the
requirement of individualized suspicion from the reasonable suspicion standard,
would leave “no readily apparent limitation on ... public officials' power to
search.” U.S.
v. Davis,
482 F.2d 893, 905-08 (9th Cir.1973). Absent a requirement of individualized
suspicion, the Fourth Amendment would cease to protect against arbitrary
government intrusion.
[19] Defendants argue that “mere suspicion” rather than “reasonable
suspicion” should be the standard for urine testing of government employees
given the weighty interest the state has in protecting the general public from
the danger of impaired, unfit fire fighters.
Concededly the state's interest is a weighty one, but the Fourth
Amendment requires that it be balanced against the significant intrusion
urinalysis imposes upon the individual fire fighters. *1518 In this case it has been
demonstrated that the intrusion engendered upon the many dedicated fire
fighters and fire officials of Plainfield was severe. The humiliation experienced by governmental
intrusion into, and surveillance of, a highly private bodily function; the compelled disclosure of personal
physiological data not properly within the government's possession, without any
confidentiality safeguards; the complete
absence of notice or opportunity to refute such testing; the implied presumption of guilt borne by
each individual fire fighter; the
compulsion exercised upon threat of discharge-for all these reasons, the
government may not continue to usurp unregulated and standardless discretion,
but must instead comply with the minimal constitutional mandates.
The
state's interest will not be significantly impaired by the individualized
reasonable suspicion standard. The
standard is not unduly burdensome. It
does not leave the City without means of combatting the influence of drugs upon
employees while on duty. Police
officers and fire fighters are subject to constant observation by their
superiors and co-workers. Certainly one
so under the influence of drugs as to impair the performance of his or her
duties must manifest some outward symptoms which, in turn, would give rise to a
reasonable suspicion. Further, the
imposition of an individualized, reasonable suspicion standard rather than the
more stringent probable cause standard is already a significant concession of
deference to the state's legitimate interests.
By mandating the individualized, reasonable suspicion standard, courts
have recognized the government's legitimate need to diminish employee's privacy
rights in certain limited situations in order to better serve the public welfare.
[20] Finally, defendants contend that the recent Third Circuit
ruling in Shoemaker
v. Handel,
795 F.2d 1136 (1986), upholding the
constitutionality of breathalyzer and urinalysis testing of race horse jockeys
absent any requirement of individualized suspicion, provides controlling
precedent for the case at hand. This
court disagrees.
In
balancing the state's interest against that of individual jockeys, the
considerations before the Shoemaker court differed dramatically from
those in the instant case. First, horse
racing unlike fire fighting, is an intensely regulated industry within the
administrative search exception to the Fourth Amendment. See, e.g. Donovan
v. Dewey,
452 U.S. 594, 602-05, 101 S.Ct. 2534, 2539-41, 69 L.Ed.2d 262 (1981) (coal mines); United
States v. Biswell,
406 U.S. 311, 316-7, 92 S.Ct. 1593, 1597, 32 L.Ed.2d 87 (1972) (gun selling); Colonnade
Catering Corp. v. United States,
397 U.S. 72, 76-77, 90 S.Ct. 774, 777, 25 L.Ed.2d 60 (1970) (liquor industry).
Such
pervasive regulation puts jockeys on notice that they will be subject to the
intrusive authority of the Racing Commission.
As explained in Shoemaker, the Commission has historically
exercised its rule making authority in ways that reduce the justifiable privacy
expectations of participants in the horse racing industry, most notably by
endorsing warrantless searches of stables.
Id., at 1142. The Shoemaker
court held that jockeys who become involved in this pervasively regulated
industry do so with full knowledge that the Commission will exercise its
authority to assure public confidence in the integrity of the races. Therefore, the court concludes, consent to
personal searches is implied by each jockey's participation.
Although Shoemaker
creates an exception to the individualized suspicion requirement, it is
instructive that the exception created is very narrowly tailored. The court explicitly ties its decision to
the unique circumstances surrounding “closely regulated industries”. In the court's own words: “Our holding applies only to breathalyzer and
urine sampling of voluntary participants in a highly-regulated industry.” Id., at 1142, n. 5. To read this exception broadly would violate
the court's apparent intention.
Precisely because fire fighting is not a pervasively regulated industry,
the determination of what constitutes*1519 a “reasonable” invasion of a fire fighter's
privacy cannot be informed by the standards applied in Shoemaker.
Traditionally,
the Plainfield Fire Department has not invoked intrusive regulatory authority
in supervising its fire fighters' persons and effects. Plaintiffs in this case had no notice or
warning that they would be subject to intrusive personal searches by Fire
Department officials or other City officials.
Nothing in the initial employment agreement nor any civil service
requirements permits the conclusion that these fire fighters voluntarily
forfeited their privacy interest in the same way as jockeys. Plaintiffs were not afforded an opportunity
to make an informed employment decision based on the knowledge that they might
be required to submit to intrusive government intervention on the job. Given these facts, the plaintiffs do not
qualify as “voluntary participants in a highly regulated industry”. The circumscribed ruling in Shoemaker
cannot be applied to the instant search.
The
reasonableness of a search is arrived at by balancing the interests of the
state in conducting the search against the individual's privacy interest. That the Plainfield fire fighters retain a
greater privacy interest on the job than do race horse jockeys is evident from
the fact that racing is a closely regulated industry and fire fighting is
not. What remains then is to compare
the state's interest in the two cases.
[21] The Third Circuit's determination in Shoemaker was
largely influenced by concerns specific to the horse racing industry. For instance, the Court afforded great
deference to the state's interest in “assuring the public of the integrity of
the persons engaged in the horse racing industry” because the state had a
direct financial stake in the revenue generated by public wagering on horses
and because the court recognized the industry's unique vulnerability to “untoward
influences”. Id., at 1141. Drug testing was the only “effective” means
the state could employ in its effort to dispel long standing public suspicion
of criminal influences permeating the organized gambling associated with horse
racing.
In Shoemaker,
the court placed great emphasis upon the public's “perception” of the
industry's integrity because, “[p]ublic confidence forms the foundation for the
success of an industry based on wagering”.
Id., at 1142. Although
there may exist ways to detect drug use among jockeys, other than subjecting
them to mandatory urinalysis, what was at stake in Shoemaker was the
appearance of propriety. The state's
interest was to demonstrate to the public that drug abuse was not interfering
with racing. Mandatory, mass urinalysis
provided such a demonstration.
Clearly,
no one can deny that the public has an interest in the integrity of its fire
fighting forces. Yet, the ability of
fire fighters to perform their jobs is not dependent upon the public's “perception”
of this integrity in the same way as the racing industry's. In other words, fire fighters can still
continue to serve the public effectively, even in the face of unpopular public “perception”. For the municipality of Plainfield then, it
is not the demonstration of propriety that is essential but rather the
determination of job-related capability.
Such determination does not require mandatory, mass urinalysis, but can
be safely accommodated by an individualized suspicion standard.
The
Plainfield Fire Department has a long record of satisfactory service in
protecting the safety of its citizenry.
The citizens of Plainfield have not voiced any concern regarding their
performance or their efforts. The
public is well aware of the careful screening tests and exhaustive training
undergone by all fire fighters. The
civil service test and, the physical capacity requirements, all attest to the
meticulous and conscientious manner in which fire fighters are selected. It is this process that establishes and
ensures public confidence in its fire fighters.
The City
of Plainfield is not seeking to combat public perception of “untoward influence”
undermining its fire force. On the
contrary, these fire fighters daily prove *1520 their ability and their
commitment on the job. Therefore, the
state's interest in this case does not require the use of departmentwide
urinalysis. Having determined that both
the fire fighter's privacy rights in this case are greater than those of the
jockeys, and that the state's interest is less than that of the Racing Commission,
this court finds that the search in question does not fall within the Shoemaker
exception.
Perhaps
the most critical distinction between these two searches though, is the very
careful procedural protections built into the Shoemaker testing system
and the complete absence of procedural safeguards in defendants' urinalysis
program. The jockeys in Shoemaker
were assured that the results of their tests would be published only to a very
few Commissioners. Specific agreement
was obtained to keep such information confidential from enforcement agents.
[22] The City of Plainfield is in an entirely different
posture. Governmental agents, once they
possess incriminatory information concerning drug use, may not have the
authority to withhold such information from prosecuting agents, even if that is
their desire. More specifically, in the
instant case, Plainfield charged the plaintiffs with “acts of criminal
misconduct” in their formal written complaints. The potential for criminal prosecution that
exists vis a vis the Plainfield fire fighters poses a greater intrusion
than that faced by the Shoemaker jockeys. “ ... [G]overnment investigations of employee
misconduct always carry the potential to become criminal investigations”. Allen v. Marietta, supra, at 491. In balancing the government's interest in
conducting the search against the intrusiveness and potential harms plaintiffs
may suffer, it is clear that Plainfield defendants must meet a much higher
burden of reasonableness to justify subjecting plaintiffs to potential criminal
charges. For these reasons, Shoemaker
is not controlling on the present facts.
A
balancing of the state's interest against the significant invasion of privacy
occasioned by the urine testing requires a determination that defendants'
conduct was unreasonable and violative of the Fourth Amendment.
Due Process Claims
[23] As civil servants employed by the Plainfield Fire
Department, plaintiffs are endowed with constitutionally protected property
interests in their tenure pursuant to the New Jersey statutory scheme governing
municipal fire fighters. See N.J.S.A.
§ § 40A:14-7
et seq. Specifically, N.J.S.A.
§ 40A:14-19
confers upon plaintiffs, as fire department employees, a reasonable expectation
of continued employment unless and until “just cause” is established for their
termination. N.J.S.A. § 40A-14-19 provides in pertinent part as
follows:
Except as
otherwise provided by law no permanent member or officer of the paid or
part-paid fire department or force shall be ... suspended, removed, fined or
reduced in rank ... except for just cause as herein above provided and then
only upon a written complaint, setting forth the charge or charges as against
such member or officer so charged, with notice of a hearing ... which shall be not less than 10 nor more than
30 days from the date of service of the complaint. A failure to substantially comply with said
provisions as to the service of the complaint shall require a dismissal of the
complaint.
This
statutory scheme bestows a property interest upon plaintiffs which cannot be
abrogated by their government employer without due process. See Cleveland
Board of Education v. Loudermill,
470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Johnson
v. United States,
628 F.2d 187, 194 (D.C.Cir.1980); Jones
v. McKenzie,
628 F.Supp. 1500, 1504 (D.D.C.1986).
[24] Furthermore, plaintiffs have constitutionally recognized
liberty and property interests in their individual reputations, and in the
honor and integrity of their good names.
Such protected reputational interests derive directly from plaintiffs'
employment status as fire fighters and cannot be arbitrarily or capriciously
infringed by *1521 government officials either. See, e.g., Paul
v. Davis,
424 U.S. 693, 708-09, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976); Board
of Regents of State Colleges v. Roth,
408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972); Jones
v. McKeinzie,
628 F.Supp. at 1505.
[25] [26] It is
beyond argument that discharge on charges of drug abuse could severely affect
these interests. The deprivation of
plaintiffs' liberty and property interests trigger constitutional requirements
of procedural due process. Defendants'
actions impermissibly violated these protected liberty and property interests
without due process of law.
The
unannounced mass urinalysis testing that took place on May 26, 1986 and
subsequently, was completely lacking in procedural safeguards. Such testing was unilaterally imposed by
defendants as a condition of employment without prior notice to plaintiffs and
without opportunity for plaintiffs to voice objection or seek the advice of
counsel. There were no standards
promulgated to govern such department-wide drug raids, nor any provisions made
to protect the confidentiality interests of the fire fighters whose personal
physiological information unexpectedly came into the hands of government
authorities. Defendants precipitously
exercised their unbridled discretion exhibiting a total lack of concern for the
constitutional rights of their employees.
By
compelling plaintiffs to participate in the urine testing under the threat of
immediate discharge, defendants effectively coerced a waiver of any rights,
including the right against self-incrimination, plaintiffs may have had under
the collective bargaining agreement to challenge such unilateral actions. Defendants' conduct was in flagrant
violation of the due process rights that inure to plaintiffs under both the New
Jersey statutory regulations and the Fourteenth Amendment of the United States
Constitution.
[27] Defendants' actions are cause for particular concern given
numerous reports challenging the reliability and accuracy of the urinalysis
tests themselves. The procedural
dangers inherent in relying on the results of such tests are well documented in
both legal and medical literature. See
e.g. Jones
v. McKenzie,
628 F.Supp. at 1505-06 and authorities cited
therein; see also M.K. Divoll and D.J.
Greenblatt, The Admissibility of Positive EMIT Results as Scientific
Evidence: Counting Facts, Not Heads,
5 Journal of Clinical Psychopharmacology 114-116 (1985). In light of these concerns, defendants'
refusal to afford plaintiff a full opportunity to evaluate and review their
personal test results or to have their own specimens re-tested by a technician
of their choice offends traditional notions of fundamental fairness and due
process.
On its
face, N.J.S.A.
§ 40A:14-19
explicitly mandates that no suspension shall occur until an opportunity has
been provided for the presentation of charges, hearing, opportunity for defense
and an adjudication of guilt or innocence.
This statute has been interpreted by the New Jersey courts to permit
pre-hearing suspension where the suspension is clearly “procedural”-a temporary
measure pending further investigation and a due process hearing-but
impermissible where pre-hearing suspension is invoked as a punitive measure
prior to the adjudication of guilt. See
D'Ippolito
v. Maguire,
33 N.J.Super. 477, 111 A.2d 78 (App.Div.1955). In the instant action, defendants conducted
and terminated their investigation with the urinalysis testing conducted in
late May and early June. The
terminations without pay that followed for those who tested positive were
unquestionably punitive in nature.
Defendants gave no indication that they would conduct second tests to
corroborate their initial findings, nor was mention made of a hearing procedure
in the written complaints served upon the plaintiffs. Absent a sufficient procedural framework,
defendants' delay in issuing the written complaints setting forth the charges
against those terminated is unjustifiable.
Having
held that defendants' search violated plaintiffs Fourth and Fourteenth *1522
Amendment rights, this court finds that plaintiffs' termination was without
just cause and therefore violative of due process. Apart from the constitutional adjudication,
defendants complaint is hereby dismissed pursuant to N.J.S.A.
§ 40A:14-19.
Permanent Injunction
This matter
was originally opened to the court on a motion for preliminary injunction
pursuant to Rule
65(a) of the Federal Rules of Civil Procedure.
By consent
the parties have agreed to submit the matter for a final determination on the
record, conceding that no factual issues exist which would require additional
hearings. In accordance with Federal Rule
65(a)(2), the court will consider this to be an
application for permanent injunction.
This court
finds that plaintiffs have met their burden of demonstrating that defendant
City of Plainfield and its agents violated their constitutional rights by
instituting compulsory, departmentwide, urine testing absent individualized
reasonable, suspicion.
[28] The invasion of Fourth Amendment privacy rights and
Fourteenth Amendment substantive and due process rights as a result of
defendants' conduct warrants the issuance of injunctive relief.
Absent
injunctive relief, plaintiffs face the threat of immediate termination from
their jobs without pay and without an opportunity for a due process
hearing. Any opportunity for other
employment has been jeopardized by the adverse publicity generated by this
action, which has left each Plainfield fire fighter vulnerable to the suspicion
of being a “drug abuser”. Such harm
cannot be adequately remedied at law.
Further,
this court finds that requiring individualized, reasonable suspicion will not
unduly burden the defendants' ability to insure its citizens a safe, unimpaired
fire fighting force.
[29] Title
42 Section 1983 of the United States Code,
creates a federal statutory cause of action against any person “who, under
color of any statute, ordinance, regulation, custom or usage, of any State ...
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges or immunities secured by the Constitution and laws [of the United
States].” Defendants' by their actions
have violated Title
42 Section 1983, depriving plaintiffs Plainfield
Fire Fighters and Plaintiff Monica Tompkins, a Police Department employee, of
the constitutional rights and privileges secured to them. See e.g. McKinley
v. City of Eloy,
705 F.2d 1110, 1116 (9th Cir.1983) (cities and
their officials and agents may be held liable under Section
1983 for causing violations of the constitutional
or civil rights of other city employees).
CONCLUSION
The threat
posed by the widespread use of drugs is real and the need to combat it
manifest. But it is important not to
permit fear and panic to overcome our fundamental principles and protections. A combination of interdiction, education,
treatment and supply eradication will serve to reduce the scourge of drugs, but
even a reduction in the use of drugs is not worth a reduction in our most
cherished constitutional rights.
The public
interest in eliminating drugs in the work place is substantial, but to invade
the privacy of the innocent in order to discover the guilty establishes a
dangerous precedent; one which our
Constitution mandates be rejected.
For the
foregoing reasons final judgment shall be entered in favor of the plaintiffs
and an appropriate injunction shall issue against the defendant forthwith.
Counsel
for the plaintiffs should submit an appropriate form of order in accordance
with this opinion.
D.N.J.,1986.
Capua v.
City of Plainfield
643
F.Supp. 1507, 1 IER Cases 625, 55 USLW 2170, 41 Empl. Prac. Dec. P 36,538
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