United States Court of Appeals,Third Circuit.
POLICEMEN'S BENEVOLENT ASSOCIATION OF NEW JERSEY, LOCAL 318 and Edmund Giordano, Individually, and as President of the Policeman's Benevolent Association of New Jersey, Local 318
v.
TOWNSHIP OF WASHINGTON (GLOUCESTER COUNTY), a Municipal Corporation Under the Laws of New Jersey, John Robertson, Mayor, Leonard Simmons, Daniel Mangini, Margaret Smith, Richard Marsella, and Virginia Weber, Council Members.
Appeal of TOWNSHIP OF WASHINGTON and John Robertson, Mayor.
No. 87-5793.
Argued May 3, 1988.
Decided June 21, 1988.
Rehearing and Rehearing In Banc Denied July 28, 1988.
Police union and police officer brought suit challenging on Fourth Amendment grounds township's drug testing program for police officers. The United States District Court for the District of New Jersey, 672 F.Supp. 779, Joseph H. Rodriguez, J., entered summary judgment in favor of police union and police officer and appeal was taken. The Court of Appeals, Gibbons, Chief Judge, held that township's plan for random drug testing and annual medical examination programs for police officers did not violate Fourth Amendment.
Reversed and remanded.
West Headnotes
Searches and Seizures 349 78
349 Searches and Seizures
349I In General
349k78 k. Samples and Tests; Identification Procedures. Most Cited Cases
Township's plan for mandatory random drug testing and annual medical examination programs for police officers fell within the administrative search exception to the Fourth Amendment warrant requirement because pervasive regulation of police department reduced justifiable expectation of privacy. U.S.C.A. Const.Amend. 4.
*134 Joseph A. Alacqua (argued), Turnersville, N.J., for appellants.
Ralph Henry Colflesh, Jr. (argued), Colflesh & Burris, Moorestown, N.J., for appellees.
James Katz, Tomar, Seliger, Simonoff, Adourian & O'Brien, Haddonfield, N.J., for amicus curiae, American Civil Liberties Union of New Jersey.
Before GIBBONS, Chief Judge, and MANSMANN and COWEN, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Chief Judge:
The Township of Washington, New Jersey, appeals from a summary judgment in favor of the plaintiffs, Policemen's Benevolent Association of New Jersey, Local 318, and Edmund Giordano, a police officer, in a suit challenging on Fourth Amendment grounds the Township's drug testing program for police officers. The district court held that a drug testing program involving any selection method other than individualized reasonable suspicion violated the Fourth Amendment, and enjoined enforcement of the Township's random testing and annual medical examination programs for police officers. 672 F.Supp. 779. We will reverse.
I.
The drug testing policy which the Township police officers challenge is embodied in a document entitled Drug Testing Program of the Township of Washington, adopted in November, 1986 and revised February 25, 1987. The police officers' lawsuit was filed, however, on September 8, 1986, in response to a memorandum from the Mayor of the Township to all department heads and municipal employees announcing that the Township would begin a mandatory drug testing program. That announcement, dated August 5, 1986, was apparently made in response to the call on August 4, 1986 by President Ronald Reagan for every level of government to take steps to assure a drug free work place. The August 5, 1986 announcement contained no details of the proposed plan. Nevertheless the complaint alleged that no guidelines for the protection of police employee's privacy were announced nor was there announced a method of assuring that said test would accurately reflect the presence of controlled dangerous substances in an employee's system. Complaint, Count I, Ά 4. The proposed program was alleged to violate the First, Fourth, Fifth, Ninth and Fourteenth Amendments of the United States Constitution, and Article I, paragraphs 1, 2 and 7 of the New Jersey Constitution. Injunctive relief and damages were requested solely on behalf of Township police officers.
The plaintiffs sought pendente lite relief, but since the complaint was obviously premature an ex parte temporary restraining order was dissolved and a preliminary injunction was denied. Thereafter the Township formulated and revised the drug testing program. The plaintiffs then stipulated that they now challenge the revised plan as unconstitutional in only three respects:
*135 A. Those aspects which require random mandatory testing of employees represented by Plaintiff [police officers];
B. Those aspects which would require testing as part of any pre-textual physical examination, i.e., any physical examination which is not a bona fide medical examination given in the ordinary course of business and as a matter of the Township's policy for its police officers;
C. Those aspects which would require testing of all employees in mass form as within the dispositive facts of Capua v. City of Plainfield [643 F.Supp. 1507 (D.N.J.1986) ].
Stipulation
dated May 18, 1987. Thus the plaintiffs
withdrew any challenge to the plan on the basis of lack of assurance of
privacy, or lack of assurance of accuracy. FN1
FN1. The plan
contains detailed safeguards for maintaining the privacy of the testing and
test results, and for assuring accuracy of the test results.
The plan
calls for both testing on reasonable suspicion and random testing. The effect of the stipulation is to withdraw
any challenge to the requirement of drug testing based on reasonable
suspicion. The plan also requires all
employees to undergo an annual medical examination, which includes urinalysis. The effect of the stipulation is to
challenge the annual medical examination requirement for police officers only
to the extent that it is a pretext for obtaining body fluids for drug
testing. The reference in the
stipulation to Capua
v. City of Plainfield,
643 F.Supp. 1507 (D.N.J.1986), is to the holding
in that case that a universal mass urinalysis of fire department employees of
the City of Plainfield was unconstitutional. FN2 The stipulation
also excludes any challenge to the plan as applied to applicants for jobs as
policemen. Thus the area of dispute was
by stipulation narrowed to two questions:
(1) whether a police department may require that police officers submit
to random selection for urinalysis which will detect drug use; and (2) whether a police department may
require that all police officers submit to an annual urinalysis which will
detect drug use.
FN2. The Capua
court held (1) that the Plainfield plan contained no procedural protection or
confidentiality guarantees, and (2) that the fire department was not a highly
regulated industry. 643
F.Supp. at 1519, 1521. In this case the Washington Township Plan is
not challenged on the first Capua ground.
The
parties filed cross-motions for summary judgment. The district court, relying solely on the
Fourth Amendment, answered both questions negatively and granted the plaintiffs
a summary judgment, enjoining Washington Township from requiring police
officers to submit samples of their urine to be tested for the presence of
illegal drugs, except when there exists an individualized, reasonable suspicion
based on objective facts and reasonable inferences drawn therefrom, that a
particular police officer has engaged in the use of illegal drugs.
II.
This court
addressed the problem of state-imposed compulsory drug testing as a condition
of certain types of employment in Shoemaker
v. Handel,
795 F.2d 1136 (3d Cir.), cert. denied, ---
U.S. ----, 107
S.Ct. 577, 93 L.Ed.2d 580 (1986). That case upheld, against a Fourth Amendment
search and seizure challenge, requirement that jockeys employed in the New
Jersey horse racing industry submit to universal daily breathalyzer and random
urinalysis testing. Recognizing that
both the universal breathalyzer test and random urinalysis involved seizures
within the meaning of the Fourth Amendment, we held that in a highly regulated
industry such as horse racing the administrative search exception to the Fourth
Amendment warrant requirement applied.
That exception applied because the state had a strong interest in
conducting an unannounced search, and because pervasive regulation in the
industry reduced justifiable expectations of privacy. 795
F.2d at 1142.
Because the Racing Commission's discretion was sufficiently
circumscribed by the universal breathalyzer and random selection urinalysis
requirements, we rejected the contention that the *136 searches in
question involved the exercise of standardless discretion. Id.
at 1143.
The
Washington Township Plan, as interpreted by the district court, involves both
types of selection dealt with in Shoemaker. The plan's provision for random selection
for urinalysis contains essentially the same procedural and privacy protections
which we upheld in Shoemaker.
The universal annual urinalysis for all police officers is the
equivalent of the universal daily breathalyzer test for jockeys. Thus Shoemaker controls on the two
issues presented in this appeal, unless we hold that the Washington Township
Police Department is not a highly regulated industry to which the administrative
search exception applies. The
dispositive questions are (1) whether the state has a strong interest in
determining whether police officers are using illegal substances, and (2)
whether the pervasive regulation of the police industry reduced the justifiable
privacy expectations of those officers.
The
district court opined, and we agree, that [t]he need to ensure that the
Township's police are drug-free is an important one. Important public safety concerns are
associated with a police officer's duties.
Despite the recognition of this strong public interest, however, the
district court concluded that police officers had expectations of privacy which
mandated that urinalysis be required only upon individualized reasonable
suspicion of illegal drug use. Our
review of this legal conclusion is plenary.
Washington
Township maintains a police department pursuant to authority delegated to it by
N.J.Stat.Ann.
§ 40A:14-118 (West Supp.1987), which provides:
The
governing body of any municipality, by ordinance, may create and establish, as
an executive and enforcement function of municipal government, a police force,
whether as a department or as a division, bureau or other agency thereof, and
provide for the maintenance, regulation and control thereof. Any such advance ordinance shall, in a
manner consistent with the form of government adopted by the municipality and
with general law, provide for a line of authority relating to the police
function and for the adoption and promulgation by the appropriate authority of
rules and regulations for the government of the force and for the discipline of
its members. The ordinance may provide
for the appointment of a chief of police and such members, officers and personnel
as shall be deemed necessary, the determination of their terms of office, the
fixing of their compensation and the prescription of their powers, functions
and duties, all as the governing body shall deem necessary for the effective
government of the force. Any such
ordinance, or rules and regulations, shall provide that the chief of police, if
such position is established, shall be the head of the police force and that he
shall be directly responsible to the appropriate authority for the efficiency
and routine day to day operations thereof, and that he shall, pursuant to
policies established by the appropriate authority:
a. Administer and enforce rules and regulations
and special emergency directives for the disposition and discipline of the
force and its officers and personnel;
b. Have,
exercise, and discharge the functions, powers and duties of the force;
c.
Prescribe the duties and assignments of all subordinates and other personnel;
d.
Delegate such of his authority as he may deem necessary for the efficient
operation of the force to be exercised under his direction and
supervision; and
e. Report at least monthly to the appropriate
authority in such form as shall be prescribed by such authority on the
operation of the force during the preceding month, and make such other reports
as may be requested by such authority.
As used in
this section, appropriate authority means the mayor, manager, or such other
appropriate executive or administrative officer, such as a full-time director
of public safety, or the governing body or any designated committee or member
thereof, or any municipal board or commission established by ordinance *137
for such purposes, as shall be provided by ordinance in a manner consistent
with the degree of separation of executive and administrative powers from the
legislative powers provided for in the charter or form of government either
adopted by the municipality or under which the governing body operates.
Except as
provided herein, the municipal governing body and individual members thereof
shall act in all matters relating to the police function in the municipality as
a body, or through the appropriate authority if other than the governing body.
Nothing
herein contained shall prevent the appointment by the governing body of
committees or commissions to conduct investigations of the operation of the
police force, and the delegation to such committees or commissions of such
powers of inquiry as the governing body deems necessary or to conduct such
hearing or investigation authorized by law.
Nothing herein contained shall prevent the appropriate authority, or any
executive or administrative officer charged with the general administrative
responsibilities within the municipality, from examining at any time the
operations of the police force or the performance of any officer or member
thereof. In addition, nothing herein
contained shall infringe on or limit the power or duty of the appropriate authority to act to provide
for the health, safety or welfare of the municipality in an emergency situation
through special emergency directives.
In one
form or another the power to adopt regulations for the organization and
discipline of a police force has been conferred on New Jersey municipalities
since at least 1884. See,
e.g., Hermann v. Town of Guttenberg,
86 N.J.L. 681, 94 A. 308 (1914). See also N.J.Stat.Ann.
§ 40:48-1 (West Supp.1987) (general and regulatory powers of municipalities).
The broad
grant of regulatory authority to Washington Township in the matter of the
government and discipline of its police force is subject to general law,
which includes an extensive body of state statutory law. Among other things the state regulates hours
of service, N.J.Stat.Ann.
§ § 40A:14-108, 40A:14-132, minimum salaries, § §
40A:14-110, 40A:14-131, age, §
40A:14-127, days of employment and days off, § 40A:14-133, emergency service and
compensation for such service, §
40A:14-134, and suspension and removal, § § 40A:14-156, 40A:14-147-14-151. State law confers on full-time municipal
police officers the full power of arrest for any crime committed in their
presence in the territorial limits of New Jersey. §
40A:14-152.1. Police officers
exercising police powers outside the territorial limits of the municipality
which employs them are granted the same statutory immunity from suit as they
have within that community. § 40A:14-152.2. State law mandates attendance at and
regulates the content of training courses for municipal policemen. 52:17B-66-17B-77.3; N.J.Admin.Code tit. 13, § § 1-1.1-1-11.12. Under the common law New Jersey police
officers are considered to be municipal officers as distinguished from other
municipal employees, and thus, except as modified by legislation, subject to
the no work no pay rule, and the residency rule applicable to public
officers. See
Township of Springfield v. Pedersen,
73 N.J. 1, 5-6, 372 A.2d 286, 288 (1977); Trainor
v. City of Newark,
145 N.J.Super. 466, 473-74, 368 A.2d 381, 385 (App.Div.1976), certif. denied, 74
N.J. 255, 377 A.2d 661 (1977).
Acting
pursuant to the authority delegated by the legislature, the governing body of
Washington Township has adopted detailed regulations for the government and
discipline of its police force, of which we take judicial notice. Fed.R.Evid.
201(b), (f).
Those in effect at the time the challenged plan was adopted were enacted
pursuant to Washington Township Ordinance No. 39-1974 and Resolution No.
105-1974. The ordinance authorized the
Township Committee from time [to time] to make and establish, amend or repeal,
by resolution or ordinance, such rules and regulations, not inconsistent with
the laws of this state or the ordinances of the township, for the government
and control of the members of the Police Department, as may be deemed *138
expedient and proper to carry out the objects of this ordinance and with the
view to making the Police Department and all the officers and members thereof
efficient, vigilant, prompt and useful to the township. Ordinance No. 39-1974, § 19-4.
The powers and duties of police officers are specified in section
19-5. These include the power and duty
to keep
order in all public places of this township;
to prevent, restrain and suppress any riot, row, disturbance, disorderly
assembly or breach of the peace ..., to restrain vagrants, mendicants and
street bargainers; and to require any
persons unnecessarily congregated upon the sidewalks or corners of the street
to disperse, and if they refuse, to arrest them....
Section
19-5 also provides that members of the Police Department shall devote full time
and attention to the service of the Department, and although hours are allotted
for the performance of regular tours of duty, officers are considered at all
times available for duty and must act promptly at any time their services are
required, except when on authorized leave or in the event of disability. The ordinance cross-references to Department
Rules and Regulations, the current version of which was adopted by Resolution
No. 105-1974. This 72 page manual in a
forward states:The success of a police department in the performance of its
duties is largely measured by the degree of support and cooperation it receives
from the people of the community which it serves. It is of paramount importance that we secure
the confidence, respect, and approbation of the public. The cultivation of such desirable attitudes
is dependent upon proper performance of duty by all the members of the
department.
Chapters 1
and 2 of the regulations set forth the organizational structure of the
Department, which in broad terms may be described as quasi-military. Chapter 3 sets forth General Rules and
Regulations; Chapter 4, Personnel Regulations; and Chapter 5, Disciplinary Regulations. Among the General Rules and Regulations,
those particularly relevant to the question whether police officers may have
lowered expectations of privacy because they have chosen to enter a highly
regulated industry include:
3:1.1 Standard
of Conduct. Members and employees
shall conduct their private and professional lives in such a manner as to avoid
bringing the department into disrepute.
3:1.6 Duty
Responsibilities. Members of the
department are always subject to duty although periodically relieved of its
routine performance. They shall, at all
times, respond to the lawful orders of superior officers and other proper
authorities as well as calls for police assistance from citizens. Proper police action must be taken whenever
required. The administrative delegation
of the enforcement of certain laws and ordinances to particular units of the
department does not relieve members of other units from the responsibility of
taking prompt, effective police action within the scope of those laws and
ordinances when the occasion so requires.
Members assigned to special duties are not relieved from taking proper
action outside the scope of their specialized assignment when necessary.
3:1.26 Debts-Incurring
and Payment
(D)
Members and employees shall pay all just debts and legal liabilities incurred
by them.
3:1.27 Intercession-Soliciting. Members and employees shall not solicit
anyone to intercede with the Chief of Police, Mayor, or members of the Township
Committee in relation to promotion assignments, disposition of pending charges,
or findings in a department trial or other related matter.
3:1.28 Persons
and Places of Bad Reputation.
Member [sic] and employees shall not frequent places of bad reputation,
nor associate with persons of bad reputation, *139 except as may be
required in the course of police duty.
3:1.19 Withholding
Information. Members and employees
shall not, at any time, withhold any information concerning criminal activity.
3:1-30 Reporting
Violations of Laws, Ordinances, Rules or Orders. Members and employees knowing of other
members or employees violating laws, ordinances, or rules of the department, or
disobeying orders, shall report same in writing to the Chief of Police through
official channels. If the member or
employee believes the information is of such gravity that it must be brought to
the immediate personal attention of the Chief of Police, official channels may
be bypassed.
3:2.2 Alcoholic
Beverages and Drugs.
(A) No
member or employee of the department will appear for or be on duty under the
influence of liquor or drugs or be unfit for duty because of their excessive
use.
(B)
Members or employees of the department shall not drink any kind of intoxicating
beverage while on duty or take any drugs not duly prescribed and necessary for
health at any time.
(C)
Employees of the department shall refrain from drinking intoxicating beverages
for a period of at least four (4) hours before going on duty.
(D) No
member of the department shall, at any time when in uniform, except in the
performance of duty, enter any place in which intoxicating liquor is served.
(E)
Intoxicating beverages may not be consumed at any police station.
(F)
Members and employees shall not bring into or keep any intoxicating liquor or
drugs on department premises except when necessary in the performance of a
police task. Liquor or drugs brought
into department premises in the furtherance of a police task shall be properly
identified and stored according to department policy.
3:2.5 Physical
Fitness For Duty. Members shall
maintain good physical condition so that they can handle the strenuous physical
contacts often required of a law enforcement officer.
3:2.6 Loitering. Members on duty or in uniform shall not
enter theatres or other public places except to perform a police task. Loitering and unnecessary conversation in
such locations are forbidden. Members
and employees off duty and not on any official standby shall not loiter in
police department areas.
3:2.7 Smoking
While On Duty. Members shall not
smoke on duty while in direct contact with the public nor when in uniform in
public view, except that smoking is permitted in public view at mealtimes and
while patrolling in police automobiles at which times it shall be as
inconspicuous as possible.
3:3.1 Regulation
Uniforms Required. All members
shall maintain regulation uniforms.
Uniforms shall be kept neat, clean, and well-pressed at all times.
3:3.2 Manner
of Dress On Duty. Normally members
will wear the duty uniform on a tour of duty;
however, commanding officers may prescribe other clothing as required by
the nature of the duty which a particular member is assigned. Employees will wear and maintain an employee
uniform when so directed by the Chief of Police.
3:3.3 Wearing
or Carrying Badge or I.D. Card. A
member, when in uniform, shall wear the regulation badge on the outside of the
outermost garment over the left breast and always in sight. When not in uniform or off duty, he shall
carry his badge or I.D. Card in his pocket.
3:3.4 Wearing
of Name Badge. A member, when in
uniform, shall wear the regulation name badge on his uniform shirt or dress
jacket, whichever is outermost, in accordance with department instructions.
3:3.8 Carrying
Equipment Off Duty. When off duty,
each member will carry or have in his immediate possession, his *140
badge, department revolver, or a pistol or revolver of not less than .32
caliber as authorized by the department, and the identification card. This rule shall not apply when members are
engaged in sports and activities of such a nature as to make it impractical.
3:3.9 Civilian
Clothing-Manner of Dress. Male
members and employees permitted to wear civilian clothing during a tour of duty
shall wear either a business suit or sport coat and slacks. A dress-type shirt with tie shall be
worn. Commanding officers may prescribe
other types of clothing when necessary to meet a particular police objective. Female members and employees permitted to
wear civilian clothing shall conform to standards normally worn by office
personnel in private business firms, unless otherwise directed.
3:3.12 Personal
Appearance. Every member and
employee of the department, while on duty, must at all times be neat and clean
in person, his clothes clean and pressed, and his uniform in conformity with
the rules and regulations. He shall, as
often as necessary, examine and clean his equipment and keep it always in good
serviceable condition. Male members and
employees shall conform to the following additional standards of appearance:
(A) Hair
shall be evenly trimmed at all times while on duty. The hair shall at no point extend downward
over the shirt collar in normal posture.
(B)
Sideburns shall not extend below the bottom of the ear. The maximum width at the bottom of the
sideburns shall not exceed 1 3/4 inch.
(C) A
clean-shaven appearance is required except that mustaches are permitted. Mustaches shall be neatly trimmed and shall
not extend more than 1/2 inch beyond the corners of the mouth nor more
than 1/4
inch below the corners of the mouth.
Remainder of the face shall be clean shaven.
(D)
Beards shall not be permitted.
(E)
Personnel with a medical condition which precludes shaving shall be required to
present a written statement, signed by a medical doctor, verifying such
condition.
3:8.3 Use
of Derogatory Terms. Members and
employees shall:
(A)
Neither speak disparagingly of any race or minority group nor refer to them in
insolent or insulting terms of speech, whether prisoners or otherwise.
(B)
Neither use uncomplimentary terms of speech when referring to any prisoner or
other person nor willfully antagonize any person with whom he comes in contact.
3:10.1 Conduct
Toward the Public. Members and
employees shall be courteous and orderly in their dealings with the
public. They shall perform their duties
quietly, avoiding harsh, violent, profane, or insolent language and shall
always remain calm regardless of provocation.
Upon request, they are required to supply their names and badge numbers
in a courteous manner. They shall
attend to requests from the public quickly and accurately, avoiding unnecessary
referral to other parts of the department.
3:10.2 Impartial
Attitude. All members, even though
charged with vigorous and unrelenting enforcement of the law, must remain
completely impartial toward all persons coming to the attention of the department. Violations of the law are against the people
of the state and not against the individual officer. All citizens are guaranteed equal protection
under law. Exhibiting partiality for or
against a person because of race, creed, or influence is conduct unbecoming an
officer. Similarly, unwarranted
interference in the private business of others when not in the interests of
justice is conduct unbecoming an officer.
3:10.3 Disparaging
Nationality, Race, or Creed.
Courtesy and civility toward the public is required of all members of
the department. Members shall not use
words which humiliate, disparage, demean, degrade, ridicule, or insult a person
because of his race, creed, color, national origin, or ancestry.
*141 3:10.8 Commercial Testimonials. Members and employees shall not permit their
names or photographs to be used to endorse any product or service which is in
any way connected with law enforcement without the permission of the Chief of
Police. They shall not, without the
permission of the Chief of Police, allow their names or photographs to be used
in any commercial testimonial which alludes to their positions or employment
with the department.
3:10.9 Public
Appearance Requests. All requests
for public speeches, demonstrations, and the like, will be routed to the Chief
of Police for approval and processing.
Members and employees directly approached for this purpose shall suggest
that the party submit his request to the Chief of Police.
Among the
Personnel Regulations one, bearing particularly on the police officer's
diminished lowered expectations of privacy, reads:
4:1.1 (G)
He shall submit to and pass such physical examination as may be prescribed by
the Chief of Police with the approval of the Township Committee.
(H) He shall
submit to and pass such written, oral, psychiatric, physiological, or
performance evaluation tests as are prescribed by the Chief of Police with the
approval of the Township Committee.
These
statutes and regulations speak for themselves.
They establish that the police industry is probably the most highly
regulated, with respect to performance of its employees, of any industry in New
Jersey. When compared with the history
of regulation held in Shoemaker to be sufficient for application of the
administrative search exception, the occupation of police officer is far more
intensely regulated. The Washington
Township police officers are members of quasi-military organizations, called
upon for duty at all times, armed at almost all times, and exercising the most
awesome and dangerous power that a democratic state possesses with respect to
its residents-the power to use lawful force to arrest and detain them. The need in a democratic society for public
confidence, respect and approbation of the public officials on whom the state
confers that awesome power is significantly greater than the state's need to
instill confidence in the integrity of the horse racing industry. The plaintiffs' efforts to distinguish Shoemaker
are unavailing. That case controls, and
requires the reversal of the summary judgment in their favor. Plaintiffs' remaining arguments simply
dispute the Shoemaker precedent.
This panel is not free, however, to disregard it. FN3
FN3. Other
courts have followed it. See,
e.g., National Treasury Employees Union v. Von Raab,
816 F.2d 170, 179-80 (5th Cir.1987) (analogizing
Customs Service to highly regulated industry), cert. granted, 108
S.Ct. 1072 (1988); McDonnell
v. Hunter,
809 F.2d 1302, 1308 (8th Cir.1987) (correctional
officers); Rushton
v. Nebraska Pub. Power Dist.,
653 F.Supp. 1510, 1524-25 (D.Neb.1987) (nuclear
power plant employees). But
see, e.g., Railway Labor Executive's Ass'n v. Burnley,
839 F.2d 575, 585 (9th Cir.1988) (distinguishing Shoemaker
); American
Fed'n of Gov't Employees v. Weinberger,
651 F.Supp. 726, 734-35 (S.D.Ga.1986)
(distinguishing and criticizing Shoemaker ); Fraternal
Order of Police, Newark Lodge No. 12 v. City of Newark,
216 N.J.Super. 461, 469, 524 A.2d 430, 434-35 (App.Div.1987) (distinguished Shoemaker, but did not reach federal
constitutional issue); Caruso
v. Ward,
133 Misc.2d 544, 506 N.Y.S.2d 789, 798 (N.Y.Sup.Ct.1986) (distinguishing Shoemaker ), aff'd, 131
A.D.2d 214, 520 N.Y.S.2d 551 (N.Y.App.Div.1987).
III.
The
parties are in agreement that there are no material issues of disputed
fact. On the present record the
Township is entitled to a judgment in its favor on the plaintiffs' Fourth
Amendment claim. The district court did
not address the plaintiffs' contention that the plan also violated Article
I, paragraphs 1, 2 and 7
of the New Jersey Constitution. We express no view on the question whether
the New Jersey Constitutional provisions on which the plaintiffs rely would
afford greater protection from random or universal mandatory urinalysis of
police officers than does the Fourth Amendment.
FN4 The judgment appealed *142 from will
be reversed and the case remanded for further proceedings consistent with this
opinion.
FN4. See
Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark,
216 N.J.Super. 461, 477, 524 A.2d 430, 438-39 (App.Div.1987).
C.A.3
(N.J.),1988.
Policemen's
Benev. Ass'n of New Jersey, Local 318 v. Washington Tp. (Gloucester County)
850 F.2d
133, 3 IER Cases 699, 57 USLW 2014, 46 Empl. Prac. Dec. P 38,064
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DOCUMENT