This action was instituted by Tyrone Berry against the District of Columbia ("District" or "D.C.") Mayor Marion Barry and several unknown police officers after Berry was arrested several times on drug charges in 1984. *fn1 Berry claimed that during two of his arrests he was unlawfully assaulted by several police officers and that following one of his arrests he was denied a speedy presentment before a magistrate. Berry further claimed that when money seized from him during these arrests was later made subject to civil forfeiture proceedings notice of these proceedings should have been provided to his criminal defense Counsel.

In addition Berry claimed that his constitutional rights were violated when he was ordered to submit to drug testing and treatment as a condition of pretrial release. The District Court granted summary judgment in favor of the District on the notice claim and the drug testing and treatment claim. The assault and presentment claims were dismissed because Berry's Counsel failed to abide by the District Court's orders. On the record before us we reverse and remand in part and affirm in part.

First because we find that the District Court failed to consider significant constitutional issues raised by the District's drug testing and treatment program we reverse and remand on this claim. Second because we can find no adequate basis on the present record to justify a dismissal of Berry's assault and presentment claims we reverse and remand for further proceedings on these claims. Finally we affirm the District Court's grant of summary judgment with respect to Berry's spurious notice claim.

I. BACKGROUND

On March 6 1984 Berry was arrested on drug charges. The next day a D.C. Superior Court Commissioner ("Commissioner") released Berry on his own recognizance on the condition that he submit to an immediate urinalysis drug test. If Berry tested positive he was then supposed to participate in the drug testing and treatment program administered by the District's Pre-trial Services Agency ("PSA"). Apparently Berry did not submit to a drug test before he was released and he did not report to the PSA for further tests or treatment.

On June 20 1984 Berry was again arrested on drug charges. The next day a Commissioner released him into third-party custody with the same conditions that followed his March arrest. This time Berry did submit to a urinalysis drug test which was positive for cocaine and opiates. The PSA then instructed Berry to report for weekly drug tests. When Berry failed to report for his scheduled tests the PSA notified the D.C. Superior Court that he had violated his conditions of release.

*fn2 After a show cause hearing was held on August 14 to determine whether Berry's bail should be revoked Berry was released with the same conditions that followed his March and June arrests. *fn3 He did not report for testing however and a bench warrant was issued for his arrest on August 24. *fn4 At a hearing several weeks later the D.C. Superior Court quashed the warrant and set a $2000 surety bond; Berry was unable to post bond and was jailed. *fn5

On August 29 1984 Berry filed this action in the United States District Court for the District of Columbia. *fn6 Besides making several claims relating to his arrests *fn7 Berry claimed that the District's drug testing and treatment program violated his rights under the Fourth Fifth and Eighth Amendments. *fn8 In a memorandum order dated June 14 1985 the District Court granted the District's motion for summary judgment with respect to this last claim. Berry v. District of Columbia No. 84-2659 slip op. at 6-7 (D.D.C. June 14 1985) R.D. 47. *fn9 The District Court described Berry's arguments as "far-fetched " and stated that his claim did not present issues of "constitutional dimension." Id. at 6-7. Court merely noted that drug testing and treatment are reasonable conditions of pretrial release. Id. *fn10 On September 5 1985 the District Court dismissed Berry's remaining claims because Berry's Counsel had failed to abide by Court's orders regarding the management of the case. *fn11

II. ANALYSIS A. Pre-Arraignment Drug Testing

In his brief to this court Berry argues that pre-arraignment drug tests administered to nearly all persons arrested in the District are unconstitutional. See Appellant's Brief at 15. Berry did not raise this issue in his amended complaint however and the record does not show that he ever submitted to a pre-arraignment drug test. Since Berry failed to raise this claim in the District Court he may not assert it on appeal. See District of Columbia v. Air Florida Inc. 243 U.S. App. D.C. 1 750 F.2d 1077 1084 (D.C. Cir. 1984) ("It is well settled that issues and legal theories not asserted at the District Court level ordinarily will not be heard on appeal."). *fn12 Therefore we express no opinion on the validity of pre-arraignment tests performed in the District. *fn13

B. Drug Testing and Treatment as a Condition of Pre-trial Release

The District Court concluded that the District's pre-trial drug testing and treatment program ("testing program") does not raise issues of "constitutional dimension." Berry v. District of Columbia No. 84-2659 slip op. at 7 (D.D.C. June 14 1985) R.D.47. We disagree. Mandatory urinalysis clearly implicates rights secured under the Fourth Amendment. This court and virtually all others that have ruled upon the constitutionality of compulsory urinalysis have held or assumed that it amounts to a "search" or "seizure" within the meaning of the Fourth Amendment. *fn14

We are unable to pass judgment on the testing program however because the record with respect to this issue is virtually barren. As this court noted in National Federation of Federal Employees v. Weinberger 260 U.S. App. D.C. 286 818 F.2d 935 942 (D.C. Cir. 1987) ("NFFE") "the absence of a factual record militates against [reaching the constitutional issues] for it is clear that certain of the legal judgments yet to be rendered will hinge on findings of fact yet to be made with respect to the nature and scope of the drug testing program." There is no adequate factual record in this case because the District Court summarily concluded that appellant's claim did not raise issues of constitutional dimension.

While the parties and amici curiae have attempted to furnish the essential details about the testing program in their submissions to this court our review is limited to the information that was before the District Court. Because our review of the testing program "would be materially assisted by the development of a factual record and the district court's conclusion thereupon " Lucas v. Hodges 235 U.S. App. D.C. 63 730 F.2d 1493 1501 (D.C. Cir.) vacated as moot 238 U.S. App. D.C. 246 738 F.2d 1392 (D.C. Cir. 1984) we reverse the grant of summary judgment on this claim and remand for a "full exploration" by the District Court. Wylie v. District of Columbia 204 U.S. App. D.C. 1 634 F.2d 1356 1357 (D.C. Cir. 1980) (per curiam) (reversal required when summary judgment based upon incomplete record). *fn15

Although we recognize that factual determinations must be made by the District Court "we can provide some guidance for the task to be tackled on remand." NFFE 818 F.2d at 942. We note at the outset that neither the District nor the United States as amicus curiae has argued that the drug tests in this case are not "searches" or "seizures." Moreover as noted above the great weight of authority holds that compulsory drug tests are "searches" or "seizures" within the meaning of the Fourth Amendment.

The Fourth Amendment inquiry is not at an end however with a finding that the pretrial drug tests constitute "searches" or "seizures " for the Fourth Amendment proscribes only unreasonable "searches" or "seizures." In determining the standard of reasonableness applicable to a particular type of "search" or "seizure " a court must balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." O'Connor v. Ortega 480 U.S. 709 107 S. Ct. 1492 1499 94 L. Ed. 2d 714 (1987) (plurality opinion) (quoting United States v. Place 462 U.S. 696 703 77 L. Ed. 2d 110 103 S. Ct. 2637 (1983)); see also NFFE 818 F.2d at 942. *fn16

In the instant case the District advances the following argument to justify its testing program: there is a positive correlation between drug use and the likelihood that an arrestee released on bail will commit crimes or fail to appear for scheduled court dates; it is therefore necessary to test certain arrestees to determine the likelihood of their using drugs when released on bail; when deemed necessary a Commissioner may condition release on periodic drug testing and treatment; then if users fail to comply with their conditions of release they can be cited for contempt or have their bail revoked for failing to remain drug-free pending trial thereby reducing the frequency of pretrial criminality or non-appearance.

The critical assumption underlying the District's line of reasoning is that there is in fact a positive correlation between drug use and pretrial criminality or non-appearance. While we have no reason to doubt this assertion there is nothing in the record to support it. On remand the District must proffer reliable evidence statistical or otherwise from which the trial court can reasonably conclude that drug use makes it significantly more likely that an arrestee will commit crimes of fail to appear for scheduled court dates. *fn17

Even if a significant positive correlation is established the District Court must also determine whether there is a reasonable basis for the apparent assumption that arrestees ordered into the testing program are potential drug users. See NFFE 818 F.2d at 943 (quoting New Jersey v. T.L.O. 469 U.S. 325 342 83 L. Ed. 2d 720 105 S. Ct. 733 (1985)). If the trial court finds that drug testing and treatment are only required when there is an individualized determination that an arrestee will use drugs while released pending trial then the District's testing program will more likely than not be found reasonable. Individualized suspicion should be based on evidence of prior drug use such as drug-related convictions *fn18 or self-reported drug use. *fn19

Different questions will arise if it is found that arrestees are compelled to participate in the testing program even in the absence of individualized suspicion of potential drug use. In its brief and at oral argument the United States as amicus curiae asserted that an exceptionally large percentage of persons arrested in the District are current drug users who are likely to use drugs while released pending trial. See Brief of United States at 7. From this circumstance and from the additional claim that there is no "less restrictive means [than urinalysis drug testing] by which drug use by arrestees can accurately be detected " id. at 29 the United States argues that individualized suspicion is not required. Id. We note however that "exceptions to the requirement of individualized suspicion are generally appropriate only where the privacy interests implicated by a search are minimal. " T.L.O. 469 U.S. at 342 n.8. Moreover we do not know what the evidence on remand will show about drug use among arrestees. Therefore we offer no judgment on this point. *fn20

Apart from whether the District's testing program is "justified at its inception " the District Court must also find that the testing program is "reasonably related in scope to the circumstances which justified the interference in the first place." T.L.O. 469 U.S. at 341 (quoting Terry v. Ohio 392 U.S. 1 20, 20 L. Ed. 2d 889 88 S. Ct. 1868 (1968)). In performing this analysis the District Court "must consider the scope of the particular intrusion the manner in which it is conducted and the place in which it is conducted." Bell v. Wolfish 441 U.S. 520 559 60 L. Ed. 2d 447 99 S. Ct. 1861 (1979). Furthermore the District Court must consider whether the District has taken adequate steps to prevent unnecessary disclosure of test results. See Shoemaker v. Handel 795 F.2d 1136 1144 (3d Cir.) cert. denied 479 U.S. 986 107 S. Ct. 577 93 L. Ed. 2d 580 (1986). In short the District Court must determine whether the testing program is "no more degrading than is reasonably necessary." Storms v. Coughlin 600 F. Supp. 1214 1222 (S.D.N.Y. 1984). *fn21

C. Notice of Civil Forfeiture Proceedings

In the course of three of Berry's arrests money was seized from him which was later made subject to successful civil forfeiture proceedings in the D.C. Superior Court. See Defendants' Supplemental Answers to Interrogatories at para. 11 R.D. 45. Berry claims that he was somehow denied due process under the Fifth Amendment or his right to Counsel under the Sixth Amendment because notice of these proceedings was not provided to his criminal defense Counsel.

This claim is without merit. We have not found any authority which suggests that the Counsel for a defendant in a criminal case is entitled to receive notice of a separate civil forfeiture proceeding. Due process requires notice "reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co. 339 U.S. 306 314 94 L. Ed. 865 70 S. Ct. 652 (1950) (emphasis added). *fn22 Since Berry has not suggested that his Counsel has any claim to the money seized we agree with the District Court that Berry's Counsel was not an "interested party" in the forfeiture proceedings who was entitled to notice. *fn23 Thus the District Court's grant of summary judgment to the District on this claim is affirmed.

D. Dismissal of the Assault and Presentment Claims

After Berry's Counsel failed to file a pretrial brief by the date specified by the District Court Berry's remaining assault and presentment claims were dismissed. Berry v. District of Columbia 107 F.R.D. 663 (D.D.C. 1985) R.D. 57. In the order of dismissal the District Court noted that Berry's Counsel had also failed to attend a status conference at the scheduled time and had failed to file a pleading specifically requested by Court. *fn24

As the District virtually concedes in its brief this court's decision in Shea v. Donohoe Construction Co. 254 U.S. App. D.C. 175 795 F.2d 1071 (D.C. Cir. 1986) requires that the order of dismissal be reversed. In Shea this court held that dismissal for Counsel misconduct is warranted only when the misconduct severely prejudices the opposing party places an intolerable burden on the judicial system or has been approved in some manner by the Counsel's client. Id. at 1074-79. Because there is nothing in the record to suggest that any of the Shea criteria were satisfied in this case Berry's remaining claims should not have been dismissed. It was incumbent upon the District Court to consider measures less drastic than dismissal. Accordingly we reverse the District Court's dismissal of the assault and presentment claims and direct that they be reinstated.

III. CONCLUSION

For the reasons stated above we reverse the grant of summary judgment on the drug testing and treatment claim and remand to the District Court for proceedings not inconsistent with this opinion. Furthermore we order that Berry's assault and presentment claims be reinstated. Finally we affirm the grant of summary judgment with respect to the notice claim.

Because of their significant interest in this litigation and their invaluable assistance in briefing and arguing this appeal both the United States and the Public Defender Service shall be accorded intervenor status during any further trial or appeal of the claim relating to the testing program. *fn25