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Roy Penny Et Al. Plaintiffs-Appellees (86-6280)
vs.
Thomas Kennedy Commissioner of Fire and Police of the City of Chattanooga Tennessee Et Al. Defendants-Appellants. Roland M. Lovvorn Et Al. Plaintiffs-Appellees (86-6281) v. The City of Chattanooga Tennessee Et Al. Defendants-Appellants
 
Case:
Nos. 86-6280 86-6281
 
Location:
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
 
Date:
October 4 1990 Decided
 
Attorneys:
Counsel for Defendants-Appellants: Michael A. McMahan Randall L. Nelson Argued Chattanooga Tennessee.
Counsel for Plaintiffs-Appellees: Charles Dupree Argued Chattanooga Tennessee. Thomas Woodley Argued Mulholland & Hickey Washington District of Columbia.
Counsel for Amicus Curiae City of Detroit: Donald Pailen Corporation Counsel Terri L. Hayles Assistant Corporation Counsel Samuel Gardner Detroit Michigan.
Counsel for Amicus Curiae Washington Legal Foundation: Daniel J. Popeo Paul D. Damenar Vickie S. Marani Washington Legal Foundation Washington District of Columbia.
Counsel for Amicus Curiae FOP: John Fisher Patricia Davidson James Phillips Vorys Sater Seymour & Pease Columbus Ohio.
 
Court:
Gilbert S. Merritt Chief Court; Damon J. Keith Cornelia G. Kennedy Boyce F. Martin Nathaniel R. Jones Robert B. Krupansky Harry W. Wellford H. Ted Milburn Ralph B. Guy David A. Nelson James L. Ryan Danny J. Boggs and Alan E. Norris Circuit Court; Pierce Lively * and Albert J. Engel ** Senior Circuit Court. Martin Jr. Circuit Court concurring. Wellford Circuit Court concurring. Albert J. Engle S.J. delivered the opinion of Court in which Gilbert S. Merritt C.J. Damon J. Keith Cornelia G. Kennedy Nathaniel R. Jones Robert B. Krupansky H. Ted Milburn Ralph B. Guy David A. Nelson James L. Ryan Danny J. Boggs Alan E. Norris JJ. and Pierce Lively S.J. joined. Boyce F. Martin J. delivered a separate concurring opinion in which Nathaniel R. Jones J. joined. Harry W. Wellford J. delivered a separate concurring opinion.
 
Author:
The Hon. Justice Engel
 

* Honorable Pierce Lively assumed senior status December 31 1988.

** Honorable Albert J. Engel assumed senior status October 1 1989.

These consolidated en banc appeals resulted from separate actions challenging the constitutionality of proposed mandatory urinalysis of the City of Chattanooga's fire fighters and police officers without reasonable cause or suspicion to believe that the employees so tested were using controlled substances. See Lovvorn v. City of Chattanooga Tenn. 647 F. Supp. 875 (E.D. Tenn. 1986) as to the fire fighters and Penny v. Kennedy 648 F. Supp. 815 (E.D. Tenn. 1986) concerning Chattanooga's police officers. The particularized facts in each of these appeals have been carefully summarized both in the reported district court opinions and in the now-vacated *fn1 but nonetheless reported panel opinions. See Lovvorn v. City of Chattanooga Tenn. 846 F.2d 1539 (6th Cir. 1988) and Penny v. Kennedy 846 F.2d 1563 (6th Cir. 1988).

In separate but concurrently considered opinions the United States District Court for the Eastern District of Tennessee concluded that the planned mandatory department-wide urinalysis testing of the individuals in question constituted a search and therefore was subject to the protections embodied in the fourth amendment as made applicable to the states by the fourteenth amendment. While recognizing Chattanooga's compelling need to ensure that fire fighters and police officers are free of impairment by the use of drugs in the performance of their tasks the district Court held that the reasonableness of the search on a department-wide basis had not been established. The district court further concluded that under existing Supreme Court and Sixth Circuit authority the program was violative of the fourth amendment in the absence of any reasonable individualized suspicion that the employee subject to testing is using illegal drugs. In so holding the trial Court was careful to exclude urinalysis testing conducted as part of the routine physical examinations administered to all employees except where such testing might be a pretext for an otherwise unreasonable search and seizure. Lovvorn 647 F. Supp. at 881 n.7.

The district court therefore entered injunctions in each case prohibiting drug tests on a wholesale basis. As to the fire fighters the trial Court concluded that "the tests which the City proposes at this time to administer to all Chattanooga fire fighters would violate the fire fighters' rights under the fourth amendment. This is not to say however that the City is foreclosed from testing fire fighters for drugs. The City may conduct such tests if it has a reasonable suspicion to do so; the scope of the tests is related to the objective engendered by the reasonable suspicion; and the intrusiveness of the tests is minimized to the extent it can be without jeopardizing the integrity of the tests." Lovvorn 647 F. Supp. at 883.

Likewise as to the police officers the trial Court held that "there is no real difference in the balance of the respective rights of the City and the police officers under the fourth amendment from that in the fire fighters case. For reasons that are so obvious as to not require elaboration the public does not want a police force that uses illegal drugs. On the other hand police officers like fire fighters are possessed of a certain level of constitutional protection which cannot be lowered. For the reasons stated by this Court in its opinion in the fire fighters case the defendants must have reasonable suspicion before they may test police officers for illegal drugs. On the facts presented to this Court there is no reasonable suspicion which would justify the administration of these tests at this time. Therefore the current tests violate the fourth amendment rights of Chattanooga police officers . . . . As was emphasized in Court's opinion in the fire fighters case this does not mean that the Chattanooga Police Department may not administer urine tests to its police officers for the presence of illegal drugs. This decision does mean that if such tests are given they must be given on reasonable suspicion their scope must be related to their objective and they must not be excessively intrusive." Penny 648 F. Supp. at 817.

Appeals were taken in each case and were assigned to a regularly constituted three-Court panel of this court. In separate but concurrent opinions with Court Guy dissenting in each the decisions of the district Court were affirmed. Our full court granted a rehearing en banc and after further briefing oral arguments were held. Since it was apparent that similar cases were pending before the United States Supreme Court at that time the parties and the full court agreed that further decisions in these cases would be deferred until the Supreme Court decisions were forthcoming. Those decisions have been issued and indeed have proved most useful to the resolution of the issues presented in these appeals. See National Treasury Employees Union v. Von Raab 489 U.S. 656 109 S. Ct. 1384 103 L. Ed. 2d 685 (1989) and Skinner v. Railway Labor Exec. Ass'n 489 U.S. 602 109 S. Ct. 1402 103 L. Ed. 2d 639 (1989).

Based upon the Supreme Court decisions in Von Raab and Skinner we conclude that certain issues in the current appeals are no longer subject to question. First it is altogether evident that mandatory urinalysis testing conducted pursuant to state action infringes an employee's reasonable expectation of privacy and therefore constitutes a search under the fourth amendment. Further it is evident that as to the employees involved in each of these opinions *fn2 Chattanooga has a compelling interest in ensuring that the duties of fire fighters and police officers are performed free of any risk of impairment by the use of illegal drugs. Equally applicable in this case is the Supreme Court's statement in Skinner that employees "subject to the tests discharge duties fraught with such risks of injury to others [and themselves] that even a momentary lapse of attention can have disastrous consequences." 109 S. Ct. at 1419.

Next it is apparent that the district court's principal conclusion that drug-testing of these employees must be based upon particularized suspicion of drug or alcohol use would seriously impede the employer's ability to obtain information needed to advance the established compelling interest. Without reviewing all of the rationale or the various considerations marshaled by the majority in Von Raab and Skinner it is sufficient to hold here that the district court's conclusion that this employer must require a reasonable and particularized suspicion as a precondition to any such testing must perforce fail. The district court's rulings in this respect must be reversed.

Because in each instance the district court and the prior panel held that the entire urinalysis program violated the constitution it was not necessary fully to address other concerns that had been raised in the district court. In the fire fighters case in particular the plaintiffs alleged that the proposed 1986 testing program which was to look like the 1985 testing was to be conducted without adequately established standards to protect against potential abuse. Although Von Raab and Skinner generally validate urinalysis for individuals in the categories of plaintiffs here it by no means necessarily follows that all of the protections of the fourth amendment have thereby been fully satisfied regardless of the integrity of the test and of the manner and means by which the test is given. So much is apparent in the language of Justice Kennedy in Von Raab where he observed that the intrusion of the drug-testing program challenged there was defined narrowly and specifically particularly since the employee subject to testing "knows that he must take a drug test and is likewise aware of the procedures the [Customs] Service must follow in administering the test. A covered employee is simply not subject 'to the discretion of the official in the field.'" Von Raab 109 S. Ct. at 1391 (quoting Camara v. Municipal Court 387 U.S. 523 532 87 S. Ct. 1727 18 L. Ed. 2d 930 (1967)); see also Skinner 109 S. Ct. at 1422 ("In light of the limited discretion exercised by the railroad employers under the regulations . .. we believe that it is reasonable to conduct such tests in the absence of a warrant or reasonable suspicion that any particular employee may be impaired.").

Such concerns for confined discretion were also clearly on the mind of the district Court here in Lovvorn when he stated that "clearly defined standards are lacking in this case. No standards for the frequency purpose or methods of conducting the tests have been established by Chattanooga's City Commission." 647 F. Supp. at 881. What seems to be of great concern to the parties at least in the district court is the integrity of the tests the intrusiveness in the manner of their taking and the scope of the testing. *fn3 In their briefs and arguments before this court however the parties have not focused upon these issues. The inadequate presentation is largely due to the fact that these issues were largely subsumed in the principal challenge to the lack of a "reasonable suspicion" requirement in the procedure.

In short we are uncertain from the record here whether the due process and fourth amendment aspects of the actual carrying out of the search to the extent they have been raised have been adequately addressed. *fn4 As Court Guy stated in his dissent in Lovvorn it may well be that after the 'reasonable suspicion' hurdle is removed, the program may have other deficiencies. 846 F.2d at 1539 n.32 (Guy J. dissenting).

Based upon this observation Court Guy urged a reversal and remand for further proceedings. Upon reflection we conclude that this is the better course than one that would immerse us at this stage in issues which have not been adequately presented to us. Much time has passed and a great deal has been written on the subject and no doubt the City of Chattanooga the parties and Court will profit from that additional experience and particularly by a reconsideration of the procedures in light of the Supreme Court's language in Von Raab and Skinner. The scope of the remand of course will be limited to those issues which have been or are properly raised in the instant proceedings.

Accordingly the judgments of the district court in Lovvorn and Penny are

VACATED and the causes REMANDED for further proceedings consistent herewith and particularly consistent with the Supreme Court's decisions in Von Raab and Skinner.

CONCUR: MARTIN JR. Circuit Court concurring.

It is beyond doubt that persons entrusted with enforcing laws and ensuring public safety should be exceedingly circumspect in their own behavior and comport their personal lives in accordance with the laws and practices they are sworn to uphold. See Skinner v. Railway Labor Exec. Ass'n 489 U.S. 602 __ 109 S. Ct. 1402 1418 103 L. Ed. 2d 639 666 (1989); National Treasury Employees Union v. Von Raab 489 U.S. 656 __ 109 S. Ct. 1384 1393-94 103 L. Ed. 2d 685 705-06 (1989). This duty however was not newly-born during the recently declared "war" on illegal drugs. Public safety officers have unfortunately always been subject to the same temptations afforded to ordinary citizens in their communities. These temptations however will not be removed by stampeding those officers' constitutional rights.

As the Skinner majority stated:

the Fourth Amendment does not proscribe all searches and seizures but only those that are unreasonable. What is reasonable of course depends on all the circumstances surrounding the search or seizure and the nature of the search or seizure itself. Thus the permissibility of a particular practice "is Courtd by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."

Skinner 489 U.S. 602 109 S. Ct. at 1414 103 L. Ed. 2d at 661 (citations omitted). Standardless surprise drug testing of public safety officers not only violates the balance sought by Court in Skinner but recalls bleak periods in our history where society winked at the Constitution in its zeal to achieve what we now know in retrospect were ill-conceived goals. As Justice Marshall stated in his dissent in Skinner:

The issue in this case is not whether declaring a war on illegal drugs is good public policy. The importance of ridding our society of such drugs is by now apparent to all. Rather the issue here is whether the Government's deployment in that war of a particularly draconian weapon - the compulsory collection of railroad workers' blood and urine - comports with the Fourth Amendment. Precisely because the need for action against the drug scourge is manifest the need for vigilance against unconstitutional excess is great. History teaches that grave threats to liberty often come in times of urgency when constitutional rights seem too extravagant to endure. The World War II relocation-camp cases and the Red Scare and McCarthy-Era internal subversion cases are only the most extreme reminders that when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency we invariably come to regret it.

Skinner 489 U.S. 602 109 S. Ct. at 1422 103 L. Ed. 2d at 671 (citations omitted). "There is no drug exception to the Constitution any more than there is a communism exception or an exception for other real or imagined sources of domestic unrest." Id. at __ 109 S. Ct. at 1426 103 L. Ed. 2d at 675.

Despite my view that random drug testing violates the fourth amendment recent Supreme Court decisions clearly uphold the general constitutionality of random drug testing against fourth amendment challenges where no particularized probable cause or reasonable suspicion showing was made by the government employer. See Skinner v. Railway Labor Exec. Ass'n 489 U.S. 602 109 S. Ct. 1402 103 L. Ed. 2d 639 (1989); National Treasury Employees Union v. Von Raab 489 U.S. 656 109 S. Ct. 1384 103 L. Ed. 2d 685 (1989). To that extent I am bound to concur with the majority in this case. However it is also clear that the government employer here the City of Chattanooga Tennessee must narrowly and specifically define its drug testing program so that the employees subject to such testing both know that they are subject to such random testing and more importantly are aware of the procedures the City must follow in administering the testing program. See Von Raab 489 U.S. at 656 109 S. Ct. at 1391 103 L. Ed. 2d at 703.

As pointed out by the majority in Von Raab and Skinner the employers' constitutional drug testing programs were distinguished by the limited discretion given to the employer in performing such tests. In this case the district court expressed concern that clearly defined standards for the drug testing program were lacking. It is my belief that even under Skinner the Chattanooga drug testing program before us lacks the precision necessary to protect the public safety officers in this case from unconstitutional intrusion and inquiry by the City of Chattanooga.

For example the Chattanooga program fails to test certain "civilian" employers with direct public safety responsibility - the asserted governmental concern. In Von Raab Court while generally upholding government's testing program remanded in part because one of the drug testing directives included Customs department employees who were not likely to gain access to sensitive information - the asserted reason for the enactment of the directive. Von Raab 489 U.S. at 656 109 S. Ct. at 1397 103 L. Ed. 2d at 710. Like the testing directives in Von Raab it is unclear whether Chattanooga's testing program is tailored to test those public safety employees who have direct contact with citizens of Chattanooga in their efforts to enforce that city's laws and to protect its citizens. Here Chattanooga distinguishes between "civilian" employees and "noncivilian" employees as a justification for not testing its radio dispatchers. For argument's sake I agree that certain "civilian" employees whose jobs do not directly entail the protection of Chattanoogans such as accountants clerks or secretaries within the police or fire departments should not be tested under the asserted purpose for the City's testing program. However I am concerned that radio dispatchers escape the testing mandate because they are "civilians." Those dispatchers are as any frantic 911 caller knows vital to the protection of lives and property. The all-too facile dismissal of dispatchers from the city's testing mandate increases my concern that the testing program is not tailored with the precision required to pass the constitutional standard adopted in Von Raab and Skinner. The use of broad categories such as civilian/noncivilian results in a program that does not meet the City's asserted purposes in enacting the program.

My only hope is the district court and the City of Chattanooga endeavor to limit the proposed drug testing procedures to comply with the Skinner and Von Raab majority's demand for limited official discretion and heed the Skinner dissent's concerns that drug testing policies and procedures represent the lessons we have learned from other "witch hunts".

WELLFORD Circuit Court concurring.

I would emphasize in this case the compelling interest of the City of Chattanooga that policemen and firefighters in that city be free from risk of impairment while on duty or subject to immediate call for duty by use of controlled substances or illicit drugs. This government interest in ensuring the safety of the . . . public and of the employees themselves plainly justifies prohibiting covered employees from using alcohol or drugs on duty, or while subject to being called for duty. Skinner v. Railway Labor Executives Association 489 U.S. 602 109 S. Ct. 1402 1415 103 L. Ed. 2d 639 (1989). I agree therefore that limited mandatory testing in this case is permissible from a substantive constitutional standpoint if reasonably conducted.

I agree further with Chief Court Gibbons' statements in Policeman's Benev. Ass'n of N.J. v. Washington Township 850 F.2d 133 (3d Cir. 1988) cert. denied 490 U.S. 1004 109 S. Ct. 1637 104 L. Ed. 2d 153 (1989) about the nature of the "business" of policing and believe what he says in relation to New Jersey is equally applicable in Tennessee:

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 [v. Handel 795 F.2d 1136 (3d Cir.) cert. denied 479 U.S. 986 93 L. Ed. 2d 580 107 S. Ct. 577 (1986) ] 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.

Id. at 141.

Examples of testing procedures that meet due process requirements are set out in Skinner and in National Treasury Employees Union v. Von Raab 489 U.S. 656 103 L. Ed. 2d 685 109 S. Ct. 1384 (1989). The defendant city has therefore established guidelines for future mandatory urinalysis and/or blood testing. Surely Chattanooga may take appropriate and reasonable action to foreclose service by police officers and firefighters who may be found to violate a reasonable policy designed to detect the use or possession of illegal drugs and/or alcohol by these persons so closely tied to public safety. See Smith v. White 666 F. Supp. 1085 (E.D. Tenn. 1987) aff'd 857 F.2d 1475 (6th Cir. 1988) (table).

I CONCUR under these principles with the decision of Court Engel in REVERSING and REMANDING to the district court the consolidated cases before us.

 
Notes:

*fn1 Rule 14(a) of the Sixth Circuit Rules provides in part: "The effect of the granting of a rehearing en banc shall be to vacate the previous opinion and judgment of this court to stay the mandate and to restore the case on the docket as a pending appeal."

*fn2 The individual plaintiffs in Penny are all police officers. In Lovvorn individual plaintiffs Roland Lovvorn Richard Jarvis and Michael Kennedy are fire fighters. Plaintiffs Roland Lovvorn and Michael Kennedy also were cross-trained as emergency medical personnel.

*fn3 In his special concurrence in Lovvorn Court Johnstone stressed other dangers implicit in urinalysis such as the danger that the testing will reveal medical or physical conditions other than drug use thus affecting privacy interests. Lovvorn 846 F.2d at 1550 (Johnstone Dist. Court concurring). Court Johnstone was particularly concerned that the lack of an articulable suspicion of individualized drug use would endanger disclosure of other conditions as well. In our view there is no difference in the risk of disclosure between the tests challenged here and tests taken as part of a routine physical. Further there is no allegation of this kind of abuse in the litigation before us.

*fn4 One issue that appears no longer subject to question is the adequacy of the procedures which were followed by the Chattanooga Fire Department in processing those cases in which the presence of illegal drugs in the urine had been detected under the prior drug-testing program. To the extent that these procedures were to be followed in the proposed program the district court after a careful review concluded that the employer's pre- and post-deprivation procedures and the due process available under state law constituted a sufficient procedural framework to review the test results and the administration of discipline. That this issue has been resolved was similarly recognized by the panel decision in Lovvorn which acknowledged that "the fire fighters do not challenge the district court's holding that the 1986 testing program did not violate due process requirements." 846 F.2d at 1542. Further we should note that none of the plaintiffs argues that he was adversely affected by such procedures. In fact the plaintiffs in both Lovvorn and Penny actually challenged the proposed 1986 program which the parties stipulated would be conducted similarly to the 1985 testing.