1. Urinalysis

This finding however does not end the inquiry. The relevant question is not so much whether urinalysis can detect drug metabolites in a urine specimen but whether urinalysis can identify those employees who are using drugs and therefore possibly using drugs on the job (producing an impairment) or using drugs off duty (thereby affecting workforce integrity) or selling drugs or a combination of all these.

As to on-the-job impairments from drug abuse the uncontradicted testimony which I accept came from Dr. Schnoll. He explained that a positive urine test does not indicate impairment at the time the test was taken -- during the employee's work shift. He further explained that drug metabolites can remain in the urine long after the impairing effects of the drug have ceased and the particular metabolites that the urinalysis identifies may be inactive. In the case of marijuana in particular a person's urine may test positive several days after the person was exposed to marijuana and after there is no longer an impairment.

Based on this testimony I find that there is no substantial relationship between a positive urine test and an impairment at the time of testing. However Schnoll's testimony indicates that a positive urine test indicates that the employee may have been impaired either at some earlier point or at the time of testing. I therefore conclude that a urine test indicates only that a person was exposed to a drug at some point. It does not necessarily indicate impairment at the time of testing or at some other on-duty time. To the extent that the positive urine test may indicate some on-the-job impairment (either at the time of testing or on a previous day) I have been presented with no evidence how likely a positive test will suggest an on-the-job impairment.

Dr. Schnoll also provided testimony which leads me to believe that the procedure for eliciting urine from a correctional employee will result in some specimen-switching or tampering and will therefore impugn the veracity of the test results. After receiving an explanation of the stipulated procedures for eliciting urine (specifically inspection of the washroom patting down the employee observing the employee from a discreet distance unless facts already indicate tampering may occur) Schnoll stated that "any person who wants to could easily give a specimen that was not their own." Tr. at 45. He then indicated that a chronic abuser (but not an occasional abuser) would in behavior characteristic of an addict likely falsify her or his specimen. Id. at 45-46. From this I believe that some chronic drug abusers will go undetected.

After providing the above testimony Schnoll was then asked on direct examination to consider the possibility that the procedure for eliciting urine would include the provision that the employee to be tested would have her or his entire shift to provide a urine specimen. He testified that this would make urine-switching even easier. Id. 46.

On cross-examination it became apparent that the primary reason Schnoll believed there could be urine-switching or tampering was that he thought employees could go to a locker or some such place unsupervised and then provide a false specimen. This premise is incorrect because the actual procedures provide that an employee must wait under supervision in a designated area until able to urinate. Therefore I take Schnoll's entire testimony as establishing only a small likelihood but a likelihood nevertheless that a chronic drug abuser will falsify her or his specimen and therefore go undetected. This finding is confirmed by Schnoll's additional testimony given under cross-examination that the stipulated procedures "could minimize" the possibility for tampering. He does not state that the procedures would definitely minimize the possibility of tampering and he certainly never suggested that the procedures could or would eliminate that possibility entirely. Accordingly I find that under the urine-eliciting procedures of General Order 9.8A a small fraction of the chronic drug abusers will go undetected even after urinalysis. Conversely given Schnoll's testimony that occasional drug abusers will generally not attempt to impugn the urine test's veracity I find that the procedures will likely detect the occasional non-addictive abusers.

1. Trained Supervision

The defendants put in place about one year ago (see Tr. 384) a comprehensive supervisor evaluation form which provides an overall assessment of the performance of the correctional officers. See Pl. Ex. 7. Upon reviewing a copy of the new evaluation forms Dr. Schnoll testified without impeachment or contradiction that the DOC's evaluation process was sufficiently detailed to ensure that a correctional officer who is impaired on the job can be identified. Tr. 118-122.

Acting Director Glotz testified that this form was an important part of the employee evaluation process. Tr. 431. He believed however that in the year the form has been used he has not noticed a diminution in the problem of the correctional staff abusing drugs. Notwithstanding this belief Glotz also stated that the absenteeism rate at the DOC has dropped from about 10% per day prior to six months ago to 5% - 7% in the last six months. Tr. 441. Yet Glotz still believes that the drug problem at the DOC has not improved and has possibly worsened in the last six months.

On the basis of this evidence I conclude that trained supervision including the sort contemplated by properly completing the evaluation form of Pl. Ex. 7 can detect those who chronically abuse any type of drug and who are impaired at work. It cannot detect the occasional drug abusers who abuse drugs only off-duty. Finally I find that the evaluation process has not in itself eliminated or significantly reduced the drug abuse problem among correctional officers in the year since the process was implemented. However judging from the reduced absenteeism rate and recalling that Glotz's testimony is based in part on hearsay which did not include cases of employee drug trafficking or on-duty employee possession I conclude that the evaluation process has had some effect.

I have little difficulty concluding that the evaluation process has not in itself reduced the drug abuse problem at the DOC. For that to happen there must of course be some productive method for disciplining or at least responding to those employees whose actions indicate an impairment. As to this it is instructive to observe the rather shocking testimony I heard regarding how the Merit Board handles information which according to Schnoll is suggestive of impairment. According to Glotz only one out of ten employees who exhibit an attendance problem can be terminated. Tr. 438. The problem is so extreme that as Glotz conceded only one out of ten correctional officers who are absent without excuse on twenty days over a six month period (i.e. a full month of work days) can be terminated. So it seems to me that if the drug problem at the DOC has not improved the supervisory evaluation form cannot be blamed. Rather the blame lies with how the DOC and the Merit Board respond to information contained in those forms.

Finally I note that the uncontradicted testimony at trial was that observation of behavioral changes at the workplace simply identifies those who are either chronic abusers of drugs or otherwise impaired on the job (by observing behavioral changes). It does not identify the cause of the impairment or behavioral changes. And of course supervision cannot identify those who use drugs only off-duty and are unimpaired on the job. This contrasts with urinalysis which indicates the nature of the drug that has been injected and who has injected it but cannot tell when the injection occurred or when the person tested may have been impaired. *fn3

1. Neurobehavioral Testing

Hartman recommended administering the tests in a battery of six to eight tests. This would include a finger tapping test the "digit symbol" test the Strube Color test the Wexler Memory Scale or Benton visual retention test the block design test the "trail" test and the Shipley test. The testing takes about one hour per person and can be administered by a properly trained lay person although the results must be evaluated by an expert. No elaborate or expensive equipment is needed. Hartman estimated the equipment would cost about $150 and a supply of scoring sheets would cost about $15 per hundred.

In Hartman's opinion neurobehavioral testing was an optimal method for detecting workplace impairments. Test results from an individual employee could be measured against a reestablished norm or against previous test results from that individual. Hartman conceded that a person could cheat on the test by strategically under performing on one occasion (when unimpaired) so that on a later date when she or he was impaired the impairment might go undetected. Given Schnoll's testimony that only the chronic drug abusers tend to devise elaborate strategies to avoid detection I believe that neurobehavioral testing can accurately detect current impairments in occasional drug users. It seems that the detection rate might be less with chronic abusers but since Hartman regards this testing as optimal I conclude that neurobehavioral testing is fairly good as to detecting the chronic drug abusers. However given the time it takes to administer each test and the size of the DOC work force I doubt that this test could easily be administered to every member of the entire work force one time each year.

1. Intrusiveness of Compulsory Urine Testing

Another aspect of the procedure applied to McNeal and deserving comment is the person who observed McNeal. It was a subordinate correctional officer. The current procedures specify that the employee being tested is to be observed by an "investigator or other officer." It appears that this could include a subordinate but ordinarily the observer would be a DOC investigator.

McNeal testified that her experience was humiliating and hateful. I found it painful to listen to her testimony when it was so obvious how embarrassing it was for her both at the time of the test and when relating it publicly in the courtroom before me. Based on her testimony I am convinced that compelling an individual to urinate at a particular time and place into a cup for subsequent chemical analysis can be and was for McNeal an extreme intrusion and invasion into her most narrow sphere of personal privacy. Beyond the intrusion of compelling an act of urination this intrusion was magnified even further by the officer's visual inspection of McNeal's act of urination. While not all people may react as negatively as McNeal did I received no other experiential evidence on intrusiveness. Moreover as discussed later in this opinion I conclude that McNeal's aversion to her experience was as a matter of law entirely reasonable under the circumstances.

1. Conclusions of Law

1. General Fourth Amendment Principles

First as the court wrote:

Compulsory urinalysis of public sector employees we hold in common with our sister circuits qualifies as a "search and seizure" within the meaning of the Fourth Amendment. See National Treasury Employees Union v. Von Raab 816 F.2d 170 176 (5th Cir.1987); McDonell v. Hunter 809 F.2d 1302 1307 (8th Cir.1987); Division 241 Amalgamated Transit Union v. Suscy 538 F.2d 1264 1266-67 (7th Cir.) cert. denied 429 U.S. 1029 97 S. Ct. 653 50 L. Ed. 2d 632 (1976); cf. Shoemaker v. Handel 795 F.2d 1136 1142 (3d Cir.1986). This is true whether or not the urinalysis procedures employed involve direct visual inspection of urination. See American Fed'n of Gov't Employees v. Weinberger 651 F. Supp. 726 732-34 (S.D. Ga. 1986); Allen v. City of Marietta 601 F. Supp. 482 488-89 (N.D. Ga. 1985).

National Federation 818 F.2d at 942. The principle that compulsory urinalysis is a "search and seizure" comports with the evidence I heard in this case and with reality. Employees have a reasonable expectation of privacy in the act place and decision of urination:

There are few activities in our society more personal or private than the passing of urine. Most people describe it in euphemisms if they talk about it at all. It is a public function traditionally performed without public observation; indeed its performance in public is generally prohibited by law as well as social custom.

National Treasury Employees Union v. Von Raab 816 F.2d 170 175 (5th Cir. 1987). Not only does compulsory urination invade a reasonable expectation of privacy but so does the actual urine testing both of which are involved here.

Urine testing may disclose not only the presence of drug traces but much additional personal information about an employee -- whether the employee is under treatment for depression or epilepsy suffering from diabetes or in the case of a female pregnant. Even tests limited to the detection of controlled substances will reveal the use of medications prescribed for relief of pain or other medications.

Id. at 175-76.

That compulsory urinalysis constitutes a "search and seizure" does not of course end the fourth amendment inquiry. The Fourth Amendment safeguards persons only against 'unreasonable searches and seizures.' National Federation 818 F.2d at 942. The determination of whether a search is reasonable requires a balancing of the nature and quality of the intrusion against the importance of the government 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); National Federation 818 F.2d at 942.

On the one side of this balance is the strength of "the employee's reasonable expectations of privacy -- those expectations which society is 'prepared to recognize as legitimate.'" Id. (citing New Jersey v. T.L.O. 469 U.S. 325 338 83 L. Ed. 2d 720 105 S. Ct. 733 (1985); O'Connor 107 S. Ct. at 1497-99. In this case I must assess the strength of an employee's interest in not having to urinate at the order of an employer and in not having her or his urine chemically analyzed at the employer's insistence. In O'Connor v. Ortega 480 U.S. 709 107 S. Ct. 1492 94 L. Ed. 2d 714 (1987) eight justices explicitly agreed that a public employee generally has a reasonable expectation of privacy in his desk and file cabinets. See O'Connor 107 S. Ct. at 1499 (plurality opinion written by O'Connor J. and joined by Rehnquist C.J. White J. and Powell J.); id. at 1510 (dissenting opinion of Blackmun J. joined by Brennan J. Marshall J. and Stevens J.). The plurality concluded that the employee of that case enjoyed a reasonable expectation of privacy in his desk and files because he did not share these items with other employees and often used his desk for the storage of personal items. Id. at 1499. However the plurality also observed that the intrusion was not particularly great because the case really only involved office space not the home and the employee could avoid exposing personal belongings at work to a search "by simply leaving them at home." Id. at 1502. Given this reasoning it follows that an employee must be deemed to have a fairly strong expectation of privacy in the act of urination and in the urine itself. In contrast to O'Connor this case involves the search and seizure of a person not an office. "Persons" is one of the categories explicitly guaranteed protection in the fourth amendment. This case also involves the search and seizure of urine. Virtually everyone disposes of urine in a fashion to preclude the public from witnessing the urine itself thus making the urine a personal item at least during the act of urination. The very purpose of the urine testing program of this case is to make sure an employee's urine is seized at work. Thus unlike O'Connor one cannot avoid the seizure and search by "leaving at home" one's urine. In view of all this I must conclude the correctional employees of this case have a fairly strong expectation of privacy in the place act and decision of urination.

Having concluded this I must then consider the other side of the balance in the reasonableness inquiry: "The governmental interest [in] the efficient and proper operation of the workplace." O'Connor 107 S. Ct. at 1501; National Federation 818 F.2d at 942; McDonell v. Hunter 809 F.2d 1302 1308 (8th Cir.1987). Defendants contend this interest is of overriding significance in this case. Accordingly they seek to compel urination of an employee even in the absence of some individualized reasonable suspicion that the employee may be abusing drugs.

Ordinarily the government must obtain a warrant before a valid search may be executed. The warrant requirement however is not appropriate in a case like this when "the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search." New Jersey v. T.L.O. 469 U.S. at 340 (quoting Camara v. Municipal Court 387 U.S. 523 533 18 L. Ed. 2d 930 87 S. Ct.1727 (1967)). Also ordinarily a search -- even one that may permissibly be carried out without a warrant - must be based upon 'probable cause' to believe that a violation of the law has occurred. Id. (citing Almeida-Sanchez v. United States 413 U.S. 266 273 37 L. Ed. 2d 596 93 S. Ct.2535 (1973); Sibron v. New York 392 U.S. 40 62-66 20 L. Ed. 2d 917 88 S. Ct.889 (1968)). "However 'probable cause' is not an irreducible requirement of a valid search." Id. Thus in certain cases the Supreme Court has recognized the legality of searches and seizures based on suspicions that although "reasonable do not rise to the level of probable cause. Id. at 341 (collecting cases). Where a careful balancing of governmental and private interests suggest that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause such a standard should be adopted. Id. There are even some rare circumstances where no individualized suspicion is necessary to validate a search. See id. at 342 n.8. Nevertheless, some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure id. (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 560-61, 49 L. Ed. 2d 1116, 96 S. Ct.3074 (1986)), and exceptions to the requirement of individualized suspicion are generally appropriate only where the privacy interests are minimal." Id. Since I have already held that the privacy interests in this case are not minimal it follows that there should be a heavy presumption against searches based on no individualized reasonable suspicion. However in a compelling case the needs of the government as an employer may be so strong as to justify dispensing with the individualized suspicion requirement in a urine testing program. Cf. O'Connor 107 S. Ct. at 1501-03.

Thus it is crucial that I assess the documented strength of the government interest in this case and determine whether it is sufficiently strong to justify compulsory urination in the absence of a reasonable suspicion of substance abuse. This will depend on two factors. First whether "reasonable grounds" exist for suspecting that the urinalysis will turn up evidence of "work-related drug use." National Federation 818 F.2d at 943 (citing New Jersey v. T.L.O. 469 U.S. at 342). This is another way of saying that the search must be justified "at its inception." Id. (citing T.L.O. 469 U.S. at 341-42). I must also determine whether the search as it is actually conducted is "reasonably related in scope to the circumstances which justified the interference in the first place." Id. (quoting Terry v. Ohio 392 U.S. 1 20 20 L. Ed. 2d 889 88 S. Ct. 1868 (1968)). This means that "'the measures adopted [must be] reasonably related to the objectives of the search and not excessively intrusive.'" Id. (quoting T.L.O. 469 U.S. at 342).

Finally those seeking to invoke an exception to the warrant requirement bear the burden of establishing that circumstances required dispensing with that requirement. United States v. Longmire 761 F.2d 411 417 (7th Cir.1985) (collecting cases). Similarly whenever the government seeks to avoid the requirement of probable cause and reasonable suspicion prior to a search the government bears the burden of demonstrating the necessity for doing so. See O'Connor 107 S. Ct. at 1503-04. As just discussed this must be especially true when the privacy interests to be intruded upon are not minimal. With these general principles in mind I now apply them to the evidence of this case.

1. The Law Applied to This Case

As to the first interest asserted -- drug trafficking -- there was no direct evidence on the extent to which the number of drug abusers indicates the number of drug traffickers. One court has asserted that it is "logical" to assume "that employees who use the drugs and who come into regular contact with the prisoners are more likely to supply drugs to the inmates." McDonell v. Hunter 809 F.2d 1302 1308 (8th Cir.1987) (disagreeing with the trial court's finding on this point and doing so without following the "clearly erroneous" standard for appellate review of facts); but see id. at 1311-12 (Lay J. dissenting and chastising majority for ignoring lower court finding that no evidence connected drug users to traffickers). In this case based on Schnoll's evidence about the behavioral attributes of a chronic drug abuser versus those of the occasional abuser I can conclude that generally the chronic abusers of illegal drugs and generally not the occasional users are likely to be involved in drug trafficking. Thus only one-tenth of a small part of 3 % of the work force (around three employees) is involved in drug trafficking at one time. This figure would be consistent with the hearsay evidence on trafficking had that evidence been admitted for its truth. This confirms my earlier factual finding that the problem of correctional officers trafficking drugs at the DOC "exists" but is not serious.

I also found that those who chronically abuse drugs (i.e. those who usually go to work impaired and are most likely the drug traffickers) can generally be detected through the "trained supervision" about which Schnoll testified. Further I found that in the short time the DOC has implemented such supervision there has been some reduction in the drug problem - as reflected through decreased absenteeism -- albeit to an undefined extent. Finally I observed that the DOC has often failed to act on information which Schnoll indicated could be indicative of chronic drug abuse.

As to impairments on the job there was no direct evidence on the extent to which occasional non-alcohol drug abusers were drug-impaired on duty. Again I know that this group comprises slightly under 3 % (around fifty employees) of the work force. Again given Schnoll's testimony regarding the nature of addictive and non-addictive behavior I believe that most occasional users will not use drugs or become impaired on-duty. However for those that do I found that trained supervision could detect the impairments.

Next as to maintaining the integrity of the work force as law-abiding officers the 3 % figure is directly relevant. Since 3 % of the work force either chronically or occasionally abuse illegal drugs that number reflects the extent to which the integrity of the work force is now corrupted.

Finally I found that urinalysis would not identify those who are impaired at the time of the urine tests but would probably identify chronic drug abusers. It would also identify any type of user who has ingested drugs within the relevant time frame and who were impaired at some previous time perhaps including some on-duty time. Therefore urinalysis would likely identify those officers who might be trafficking drugs (because they are chronic abusers) and those officers who are impugning the integrity of the work force (because they abuse drugs at least occasionally). As just explained I also found that trained supervision would likely detect chronic abusers (and therefore probably drug traffickers) and those who were impaired on duty. It would not detect occasional abusers who are never impaired during work but nevertheless use illegal drugs. These people however are unlikely to be traffickers.

With this set of facts I conclude as follows. There are reasons for suspecting that the defendants' urinalysis program will successfully turn up evidence of work-related drug use. In this sense a urinalysis search is indeed "justified at its inception the first requirement for the reasonableness of a government search. The urinalysis program fails, however, at the second step: whether the measures adopted are reasonably related to the objectives of the search and not excessively intrusive." T.L.O. 469 U.S. at 342. Trained supervision can usually detect the chronic abusers and therefore most if not all of the traffickers as well as those who usually go to work impaired. Trained supervision also can detect those of the occasional drug abusers who go to work impaired. Thus trained supervision -- an unintrusive mode of analysis -- will successfully promote the first two government interests (the third is discussed below). Indeed urinalysis will not substantially promote the second interest of detecting on-the-job impairments since there is no necessary relationship between the presence of drug metabolites in the urine and on-duty impairments.

Given that trained supervision substantially promotes the first two government interests perhaps even more successfully than urinalysis. Urinalysis does not qualify as a search method that is both "reasonably related" to those two interests and not "excessively intrusive." Given trained supervision urinalysis is excessively intrusive. Accordingly compulsory urination for the purpose of advancing the first two government interests (drug trafficking and on-the-job impairments) conducted in the absence of some reasonable individualized suspicion is unnecessarily intrusive and therefore necessarily violative of the fourth amendment.

Having concluded this I recognize that not all employees who exhibit the behavioral manifestations of an impairment at work will in fact be drug abusers. If the DOC is interested in identifying who among the suspected abusers (based on their on-the-job behavior) are in fact using drugs it may then be justified in compelling a urine test. The peculiar behavioral traits which Schnoll explained were indicative of drug abuse (i.e. increased absences tardiness decreased ability to perform tasks changes in relationships with supervisors and coworkers) might well establish the sort of reasonable cause that justifies the invasive technique of urinalysis. But in the absence of any individualized reasonable suspicion of drug abuse the availability of trained supervision as an equally successful but completely unintrusive means of identifying suspected drug abusers renders urinalysis unconstitutional.

Possibly some chronic drug abusers may not be detected by trained supervision. If so I believe this number will be extremely small in light of Schnoll's persuasive testimony on the effectiveness of supervision and the limited nature of the problem at the DOC. Even if some chronic drug abusers do go undetected this alone does not mean that compulsory urinalysis of the entire work force is justified. First I also believe based on the testimony recited earlier that a small number of chronic abusers will escape urinalysis detection because they will be able to devise strategies of urine-switching or tampering. So urinalysis may be no better than supervision. Second since the number of chronic drug abusers at the DOC is already so small (around three employees) the even smaller number of abusers who may escape detection through supervision is so minuscule that it cannot possibly justify subjecting the remainder of the correctional work force to compelled urine testing without reasonable suspicion of the individual abuse.

It is also possible that beyond the above concerns some drug traffickers may escape detection. This could happen if there are some drug traffickers who do not abuse drugs chronically and do not come to work impaired. In these cases trained supervision would be unavailing. However there was no evidence suggesting that drug trafficking is likely to occur outside of the chronic drug abuser group. Furthermore even if it did urinalysis may not detect these people either. Finally no evidence was presented indicating that under a reasonable suspicion standard these additional drug traffickers should they exist could not be quickly detected. Given the heavy presumption against indiscriminate searches where the privacy interest is strong this omission weighs against the validity of the urine testing program. For all those reasons trained supervision remains comparable to urine testing in its effectiveness.

The third government interest deserves special mention. This interest -- integrity in the work force -- is the only interest which trained supervision cannot detect but which urinalysis can. Since the integrity interest seeks to identify those who abuse drugs off-duty as well as on-duty only urinalysis is helpful. Nevertheless this interest alone is insufficient to justify compulsory urinalysis.

Unlike the other two interests urinalysis for purposes of maintaining integrity is not a search that is justified at its inception. First this interest only applies to law enforcement officers at the DOC. Yet General Order 9.8A compels urinalysis of all employees of the DOC. As to the non-law enforcement personnel compelled urinalysis for purposes of this third interest is unjustified.

Second even as to the DOC law enforcement officers defendants have failed to meet their burden of justifying the urinalysis program at its inception for purposes of this third interest. As I stated before I do believe that off-duty illegal drug abuse occurs (among about 26 employees). However there was no evidence presented at trial on the degree to which there is a public perception that law enforcement personnel at the DOC are flouting the drug laws. Nor was there any evidence suggesting some tangible consequence to an integrity problem were one actually perceived. Nor has any court ever considered this interest sufficient to justify mandatory urinalysis. In these circumstances there is insufficient justification for compelling all correctional employees to a urine test simply for the sole purpose of ensuring that the integrity of the employees as law enforcement officers is intact.

Thus I reach my overall conclusion that defendants have failed to establish sufficient justification for compulsory urine testing of correctional employees in the absence of some reasonable individualized suspicion of drug abuse. Little argument in this case was devoted to the question of what level of suspicion would justify a urinalysis (i.e. probable cause vs. Reasonable suspicion). However the Seventh Circuit's approval of a reasonable suspicion standard for testing public employees in Division 241 Amalgamated Transit Union v. Suscy 538 F.2d 1264 (7th Cir.) cert. denied 429 U.S. 1029 50 L. Ed. 2d 632 97 S. Ct.653 (1976) (bus drivers tested after serious accident or when suspected of using drugs) indicates that the acceptable level of "cause" is indeed reasonable suspicion. Therefore all aspects of General Order 9.8A which authorize urine testing of correctional employees in the absence of reasonable individualized suspicion of drug abuse are declared unconstitutional.

I reach this conclusion only after examining the case law which has recently developed in the area of public employee urine testing. The clear majority of courts considering the issue have held that mandatory urine testing of public law enforcement employees including police fire fighters and other sworn personnel requires at least reasonable suspicion that the particular employee to be tested is using or has used illegal drugs. See e.g. American Federation of Government Employees v. Weinberger 651 F. Supp.726 (S.D. Ga. 1986) (reasonable suspicion required for testing of Department of Defense civilian police officers); Penny v. City of Chattanooga 648 F. Supp.815 (E.D. Tenn. 1986) (reasonable suspicion required for police officers); Lovvorn v. City of Chattanooga 647 F. Supp.875 (E.D. Tenn1986) (same - fire fighters); Capua v. City of Plainfield 643 F. Supp.1507 (D. N.J.1986) (individualized suspicion required for testing of city fire fighters and police officers); Bostic v. McClendon 650 F. Supp.245 (N.D. Ga. 1986) (individualized suspicion required for police officers); Caruso v. Ward 133 Misc. 2d 544 506 N.Y.S.2d 789 (Sup.Ct.1986) (same based on federal fourth amendment); Turner v. Fraternal Order of Police 500 A.2d 1005 (D.C. Court App. 1985) (same based on federal fourth amendment); City of Palm Bay v. Bauman 475 So.2d 1322 (Fl. App. 1985) (reasonable suspicion to test fire fighters and police officers based on federal fourth amendment); cf. King v. McMickens 120 A.D.2d 351 501 N.Y.S.2d 679 (1st Dept. 1986) (reasonable suspicion sufficient for testing correctional officers based on federal fourth amendment; court did not address whether reasonable suspicion was necessary). But see National Treasury Employees Union v. Von Raab 816 F.2d 170 176 (5th Cir.1987); McDonell v. Hunter 809 F.2d 1302 (8th Cir.1987); Shoemaker v. Handel 795 F.2d 1136 (3d Cir.) cert. denied 479 U.S. 986 107 S. Ct.577 93 L. Ed. 2d 580 (1986). Also cf. Mack v. United States 814 F.2d 120 (2d Cir.1987) (affirming the validity of taking a urine sample from an FBI agent because the evidence unequivocally showed he had consented; court declined to consider the "more complex" fourth amendment question presented in the absence of consent).

Each of these cases presented different programs for eliciting urine and so different levels of intrusion. The cases also presented different asserted government interests and different evidence as to the existence of a government problem. Finally the cases also differ on the extent to which it was shown that urinalysis (and only urinalysis) could successfully combat the demonstrated problem. Therefore I do not place substantial weight on the mere number of cases approving or disapproving urine tests. Rather in resolving this case I have found it more instructive to take my guidance from the general standards courts have set forth in urine testing cases. Nevertheless given the relative authority of decisions of the Courts of Appeals I feel it necessary to examine the rationales of those cases.

The most thorough appellate opinion is from the Fifth Circuit in National Treasury Employees Union v. Von Raab. There in a 2-1 decision the Court upheld urine testing of United States Customs Service employees seeking to transfer to particularly sensitive positions. (These were positions involving the interdiction of drugs the carrying of firearms or the access to classified information). The testing occurred once -- when the employee sought to be transferred to the sensitive position. Specifically the Customs Service gave a qualified transfer applicant five days notice before the urine sample would be taken. This is critically different from the urine testing program in this case. Here the testing not only occurs more often (annually) but unlike the Von Raab program the testing here is not triggered by a specific event within the employee's control (like the decision to seek a transfer to a sensitive position). However the feature of the Von Raab program that most makes the program constitutionally acceptable is not just that the urine testing occurs when the employee takes some affirmative action to alter her or his employment status but also that no adverse consequences flow if the employee decides to withdraw from that action. See Von Raab 816 F.2d at 173 (employee's decision to withdraw transfer application during the five days after notification of urine test is permitted and no adverse inference is drawn from the decision). Here employees are tested even though they have not sought to change their employment status and they will be terminated if they do not submit to the test.

My own unpublished case on this subject also confirms the above reasoning. In Harris v. Washington No. 84 C 8812 slip op. (N.D. Ill. Feb. 6 1985) I upheld the constitutionality of a urine testing program for Chicago police officers. The Police Department had implemented a policy of drug testing urine samples as part of "routine physicals given upon promotion return from medical leave return from injured-on-duty status return from suspension return from leave of absence or return from military leave." Id. at 7-8. The police officers had already been subject to routine physicals for some time under the above conditions to determine their fitness for re-employment or promotion. Id. at 2. This program of routine physicals had not itself been objected to. The lawsuit in Harris was prompted after the Department began to test for drugs the urine specimens already received from the physicals without notifying the police officers of these investigations. I found this program constitutionally acceptable for two reasons. First the circumstances under which a police officer's urine would be tested for drugs were limited predictable and as far as the pleadings indicated in that case could be avoided without any apparent adverse effect on an officer's current employment status. (Of course not submitting to the test would likely prevent an employee from returning from leave just as the employee in Von Raab could not be transferred.) Second the police officers had already willingly submitted their urine samples for chemical analysis as part of the routine physicals in the traditional doctor office setting. Thus the only real interest that they could claim had been intruded was their interest in already-voluntarily-discharged urine. Considering the strong government interest in ensuring that all police officers are fit for re-employment I believed that the minimal interest in already-discharged urine was insufficient to prohibit the drug screening especially when the events which prompted the drug screening were both limited and within the employee's control in the first place. *fn5

Significantly in reaching my conclusion in Harris I cautioned: "Where there are no standards whatever for determining which employees are chosen to submit forced urine samples such unfettered discretion might indeed pose fourth amendment problems." Id. at 7. This case of course poses those problems. unlike Harris the correctional officers in this case have not already agreed to provide urine samples as part of routine physicals. And unlike Harris the urine samples are not provided in the familiar setting of the doctor's office -- instead the prison facility is used. Furthermore unlike both Harris and Von Raab the "triggering events" which prompt the compelled urinalysis are not limited nor are they changes within the employee's control. Instead all employees are indiscriminately tested every year. Finally unlike Von Raab and apparently also Harris an employee cannot decide to withdraw from the "triggering events" without suffering adverse employment consequences. A correctional employee who declines to submit to the mandatory urination is subject to termination proceedings. These differences transform an acceptable intrusion in Von Raab and Harris into a constitutionally unacceptable one in this case.

The next case which deserves some comment is the Eighth Circuit's decision in McDonell v. Hunter 809 F.2d 1302 (8th Cir.1987) upholding in a 2-1 decision the urine testing of correctional employees of the Iowa Department of Corrections. While the urinalysis program and factual setting is obviously similar to this case there is one critical difference. As a factual matter the Eighth Circuit held that the evidence established a drug problem at the prison which could be remedied only through urine testing:

In our opinion the use of drugs by employees who come into contact with the inmates in medium or maximum security facilities on a regular day-to-day basis poses a real threat to the security of the prison. The only way this can be controlled in a satisfactory manner is to permit limited uniform and random testing. The least intrusive method of doing so is through urinalyses. In our opinion it is also logical to assume that employees who use drugs and who come into regular contact with the prisoners are more likely to supply drugs to the inmates although the trial court did not agree with this observation.

Id. at 1308. These factual findings are materially different from those in this case. I specifically found that the nature of the drug problem at the DOC is such that drug traffickers (chronic abusers) and those who are most likely to be impaired at work (chronic abusers) are both not serious in number and readily identifiable through trained supervision. I found they were probably not more readily identifiable through urinalysis. I also found that those few occasional abusers who came to work unimpaired could also be identified through supervision. Finally I indicated that a supervisor's or superior's belief that an employee's behavior indicates an impairment might establish a reasonable suspicion that would then justify testing. In these circumstances the "need" cited by the Eighth Circuit for urine testing -- and nothing less -- simply does not exist here. (It is also noteworthy that not even the Eighth Circuit relied on the "integrity" argument to justify the urinalysis program.)

The only other court of appeals decision to uphold urine testing did not involve public employees. Shoemaker v. Handel 795 F.2d 1136 (3d Cir.) cert. denied 479 U.S. 986 107 S. Ct.577 93 L. Ed. 2d 580. Shoemaker involved the urine testing of jockeys in the heavily regulated racing industry. The Third Circuit in upholding the testing procedures relied almost entirely on the fact that horse racing is a highly regulated industry. See id. at 1141-42. The Supreme Court has held that to ensure compliance with a regulatory scheme applicable to highly regulated industries the government may inspect the premises occupied by those industries without a warrant Donovan v. Dewey 452 U.S. 594 598-600 69 L. Ed. 2d 262 101 S. Ct.2534 (1981) and without any degree of individualized suspicion United States v. Biswell 406 U.S. 311 32 L. Ed. 2d 87 92 S. Ct.1593 (1972). Extending that rationale to persons the Third Circuit found the urinalysis program justified in light of the strong public interest in a drug-free racing industry.

No case dealing with the searches of public employees has held that the "administrative search" exception applies. Indeed not even the Eighth Circuit in McDonell relied on this exception to justify urine testing of correctional officers. Defendants have not argued in this case that the government has so heavily regulated correctional institutions in Illinois that the "administrative search" exception to the individualized suspicion requirement applies to not only the premises of the institutions but also the employees themselves. Accordingly I am persuaded that the decision in Shoemaker is not inconsistent with my decision here. I therefore stand by my holding on the unconstitutionality of General Rule 9.8A.

1. Conclusion

1. Order