United States District Court,D. New Jersey.

Ben CAPUA, et al., Plaintiffs,

The CITY OF PLAINFIELD, et al., Defendants.

Monica TOMPKINS, Plaintiff,

The CITY OF PLAINFIELD, et al., Defendants.

Civ. A. No. 86-2992.

Sept. 18, 1986.

City fire fighters and police department employee brought actions challenging mass urine testing for drug abuse. The District Court, Sarokin, J., held that: (1) governmental taking of urine specimen constituted search and seizure within meaning of Fourth Amendment; (2) means chosen by city to achieve goal of ensuring fire fighters were free from drug-induced impairments and capable to perform their public service were not “reasonable” within meaning of Fourth Amendment; and (3) administration of urine testing program impermissibly violated constitutionally protected liberty and property reputational interests of city employees without due process.

Judgment for plaintiffs; injunctive relief ordered.

West Headnotes

[1] Constitutional Law 92 278.4(1)

92 Constitutional Law

92XII Due Process of Law

92k278.4 Regulations Affecting Public Officers and Employees

92k278.4(1) k. In General. Most Cited Cases

Even if mass urine testing of government employees for drug abuse were justified without individualized basis, such mass testing would nonetheless be illegal where employees' due process rights were flagrantly violated by coercion of long-time employees into testing without notice, without standards, and without probable cause or reasonable suspicion. U.S.C.A. Const.Amends. 5, 14.

[2] Searches and Seizures 349 78

349 Searches and Seizures

349I In General

349k78 k. Samples and Tests; Identification Procedures. Most Cited Cases

Assuming program of mass urine testing of government employees for drugs is warranted, before it may be implemented, its existence must be made known, its methods clearly enunciated, and its procedural and confidentiality safeguards adequately provided.

[3] Declaratory Judgment 118A 274.1

118A Declaratory Judgment

118AIII Proceedings

118AIII(B) Jurisdiction and Venue

118Ak274 Jurisdiction of Federal Courts

118Ak274.1 k. In General. Most Cited Cases

(Formerly 118Ak274)

Federal Courts 170B 221

170B Federal Courts

170BIII Federal Question Jurisdiction

170BIII(C) Cases Arising Under Laws of the United States

170Bk219 Civil Rights and Elective Franchise, Laws Relating to

170Bk221 k. Particular Cases and Questions. Most Cited Cases

Federal jurisdiction over civil rights action under 42 U.S.C.A. § 1983 is appropriate even where § 1983 action asserts claims for declaratory and injunctive relief.

[4] Searches and Seizures 349 14

349 Searches and Seizures

349I In General

349k13 What Constitutes Search or Seizure

349k14 k. Taking Samples of Blood, or Other Physical Specimens; Handwriting Exemplars. Most Cited Cases

As with blood, each individual has reasonable expectation of privacy in personal “information” bodily fluids contain, for purposes of determining whether testing of bodily fluids constitutes search and seizure within meaning of Fourth Amendment. U.S.C.A. Const.Amend. 4.

[5] Searches and Seizures 349 14

349 Searches and Seizures

349I In General

349k13 What Constitutes Search or Seizure

349k14 k. Taking Samples of Blood, or Other Physical Specimens; Handwriting Exemplars. Most Cited Cases

Governmental taking of urine specimen constitutes search and seizure within meaning of Fourth Amendment. U.S.C.A. Const.Amend. 4.

[6] Searches and Seizures 349 23

349 Searches and Seizures

349I In General

349k23 k. Fourth Amendment and Reasonableness in General. Most Cited Cases

Fundamental command of Fourth Amendment is that searches and seizures be “reasonable.” U.S.C.A. Const.Amend. 4.

[7] Searches and Seizures 349 23

349 Searches and Seizures

349I In General

349k23 k. Fourth Amendment and Reasonableness in General. Most Cited Cases

What is “reasonable” search and seizure under the Fourth Amendment depends upon context in which search takes place. U.S.C.A. Const.Amend. 4.

[8] Searches and Seizures 349 24

349 Searches and Seizures

349I In General

349k24 k. Necessity of and Preference for Warrant, and Exceptions in General. Most Cited Cases

Ordinarily, search requires both warrant and probable cause to qualify as constitutionally reasonable.

[9] Searches and Seizures 349 23

349 Searches and Seizures

349I In General

349k23 k. Fourth Amendment and Reasonableness in General. Most Cited Cases

Ultimate determination of search's constitutional reasonableness requires judicious balancing of intrusiveness of search against its promotion of legitimate governmental interest.

[10] Searches and Seizures 349 26

349 Searches and Seizures

349I In General

349k25 Persons, Places and Things Protected

349k26 k. Expectation of Privacy. Most Cited Cases

Degree of intrusion engendered by any search must be viewed in context of individual's legitimate expectation of privacy, in determining whether search is constitutionally reasonable.

[11] Searches and Seizures 349 78

349 Searches and Seizures

349I In General

349k78 k. Samples and Tests; Identification Procedures. Most Cited Cases

Mass urine testing program for city fire fighters subjected fire fighters to relatively high degree of bodily intrusion, for purposes of determining whether individual's legitimate expectation of privacy was invaded by such testing, in determining constitutional reasonableness of such search; urine is generally discharged and disposed of under circumstances that warrant legitimate expectation of privacy, bodily surveillance during urine collection was considered essential and standard operating procedure in administration of urine drug tests, compulsory urinalysis forced fire fighters to divulge private, personal medical information unrelated to government's professed interest in discovering illegal drug abuse, and there was no forewarning that submission to compulsory employee urine testing would become condition of continued employment. U.S.C.A. Const.Amend. 4.

[12] Searches and Seizures 349 78

349 Searches and Seizures

349I In General

349k78 k. Samples and Tests; Identification Procedures. Most Cited Cases

Mass urine testing of city fire fighters to detect drug abuse was not “reasonable” means of assuring fire fighters were free from drug-induced impairments and capable to perform their public service under the Fourth Amendment, despite claim that widespread, large scale drug use in all segments of population led to reasonable and logical inference that some of those affected might ultimately be employed in public safety capacity and that mass urinalysis was most efficient way to detect drug use, where city proceeded in urine testing campaign without any specific information or independent knowledge that any individual employee was under influence of drugs, and there had been no increased incidence of fire-related accidents or complaints of inadequate fire protection from community. U.S.C.A. Const.Amend. 4.

[13] Searches and Seizures 349 82

349 Searches and Seizures

349I In General

349k80 Effect of Illegal Conduct; Trespass

349k82 k. Curing Illegality; Justification by Result. Most Cited Cases

Results achieved cannot justify means utilized for search, and constitutionality of search cannot rest on its fruits.

[14] Searches and Seizures 349 78

349 Searches and Seizures

349I In General

349k78 k. Samples and Tests; Identification Procedures. Most Cited Cases

As to each individual tested in mass urine testing of city fire fighters for drug abuse, search was unreasonable, where government lacked any specific suspicion as to that fire fighter.

[15] Searches and Seizures 349 23

349 Searches and Seizures

349I In General

349k23 k. Fourth Amendment and Reasonableness in General. Most Cited Cases

Under the Fourth Amendment, every individual has absolute right to be free from searches and seizures absent establishment of some degree of reasonable suspicion against him. U.S.C.A. Const.Amend. 4.

[16] Searches and Seizures 349 78

349 Searches and Seizures

349I In General

349k78 k. Samples and Tests; Identification Procedures. Most Cited Cases

Mere possibility of discovering that some city fire fighters were using drugs and therefore might be impaired in their job performance at some future time because of drug use could not render mass urine testing constitutionally reasonable.

[17] Searches and Seizures 349 78

349 Searches and Seizures

349I In General

349k78 k. Samples and Tests; Identification Procedures. Most Cited Cases

Fourth Amendment allows city to demand urine of employee only on basis of reasonable suspicion predicated upon specific facts and reasonable inferences drawn from those facts in light of experience. U.S.C.A. Const.Amend. 4.

[18] Searches and Seizures 349 78

349 Searches and Seizures

349I In General

349k78 k. Samples and Tests; Identification Procedures. Most Cited Cases

Reasonable suspicion standard governing demanding of urine from city employees requires individualized suspicion, specifically directed to person who is targeted for search. U.S.C.A. Const.Amend. 4.

[19] Searches and Seizures 349 78

349 Searches and Seizures

349I In General

349k78 k. Samples and Tests; Identification Procedures. Most Cited Cases

“Reasonable suspicion” rather than “mere suspicion” is standard for urine testing of city police and fire fighters, who are subject to constant observation by their superiors and co-workers, such that one so under influence of drugs as to impair performance of his duties must manifest some outward symptoms which would give rise to reasonable suspicion. U.S.C.A. Const.Amend. 4.

[20] Searches and Seizures 349 78

349 Searches and Seizures

349I In General

349k78 k. Samples and Tests; Identification Procedures. Most Cited Cases

City fire fighters were not “voluntary participants in a highly-regulated industry,” so as to justify subjecting them to mass urinalysis absent requirement of individualized suspicion, where city fire department had traditionally not invoked intrusive regulatory authority in supervising fire fighters' persons and effects, fire fighters had no notice or warning they would be subject to intrusive personal searches by city officials, and fire fighters were not afforded opportunity to make informed employment decision based on knowledge that they might be required to submit to intrusive government intervention on the job.

[21] Searches and Seizures 349 78

349 Searches and Seizures

349I In General

349k78 k. Samples and Tests; Identification Procedures. Most Cited Cases

City did not need to demonstrate propriety of its fire fighters by program of mass urine testing for drug use, as ability of fire fighters to perform their jobs was not dependent upon public's perception of their integrity, but rather, city was concerned with determination of job-related capability, which did not require mass urinalysis, but could be safely accommodated by individualized suspicion standard; city's interest did not require use of department-wide urinalysis.

[22] Searches and Seizures 349 78

349 Searches and Seizures

349I In General

349k78 k. Samples and Tests; Identification Procedures. Most Cited Cases

In balancing government's interest in conducting search against intrusiveness and potential harms city fire fighters subjected to mass urine testing for drug use might suffer, city had to meet much higher burden of reasonableness to justify subjecting city fire fighters to potential criminal charges as result of urine testing than if information were kept confidential from enforcement agents.

[23] Constitutional Law 92 277(2)

92 Constitutional Law

92XII Due Process of Law

92k277 Property and Rights Therein Protected

92k277(2) k. Public Office or Employment. Most Cited Cases

New Jersey statutory scheme conferring upon fire department employees reasonable expectation of continued employment unless and until “just cause” is established for their termination bestows property interest upon fire fighters which cannot be abrogated by government employer without due process. U.S.C.A. Const.Amend. 4; N.J.S.A. 40A:14-7 et seq., 40A:14-19.

[24] Constitutional Law 92 278.4(3)

92 Constitutional Law

92XII Due Process of Law

92k278.4 Regulations Affecting Public Officers and Employees

92k278.4(3) k. Discipline, Suspension, Lay-Off, or Discharge. Most Cited Cases

City fire fighters derive constitutionally protected reputational interests in their individual reputations and in honor and integrity of their good names from their employment status as fire fighters, and such protected reputational interests cannot be arbitrarily or capriciously infringed by government officials.

[25] Constitutional Law 92 277(2)

92 Constitutional Law

92XII Due Process of Law

92k277 Property and Rights Therein Protected

92k277(2) k. Public Office or Employment. Most Cited Cases

Constitutional Law 92 278.4(3)

92 Constitutional Law

92XII Due Process of Law

92k278.4 Regulations Affecting Public Officers and Employees

92k278.4(3) k. Discipline, Suspension, Lay-Off, or Discharge. Most Cited Cases

Discharge of city fire fighters on charges of drug abuse based on results of mass urine testing could severely affect constitutionally protected reputational interests deriving from employment status as fire fighters, and deprivation of fire fighters' constitutionally protected liberty and property reputational interests triggered constitutional requirements of procedural due process. U.S.C.A. Const.Amends. 5, 14.

[26] Constitutional Law 92 278.4(1)

92 Constitutional Law

92XII Due Process of Law

92k278.4 Regulations Affecting Public Officers and Employees

92k278.4(1) k. In General. Most Cited Cases

Subjecting city fire fighters to mass urine testing without individualized suspicion impermissibly violated fire fighters' constitutionally protected liberty and property reputational interests without due process of law, where unannounced mass urine testing took place and was completely lacking in procedural safeguards, testing was unilaterally imposed by city as condition of employment without prior notice to fire fighters and without opportunity for fire fighters to voice objection or seek advice of counsel, and city effectively coerced waiver of any rights by compelling fire fighters to participate in urine testing under threat of immediate discharge. U.S.C.A. Const.Amends. 5, 14; N.J.S.A. 40A:14-7 et seq.

[27] Constitutional Law 92 278.4(5)

92 Constitutional Law

92XII Due Process of Law

92k278.4 Regulations Affecting Public Officers and Employees

92k278.4(5) k. Proceedings and Review. Most Cited Cases

City's refusal to afford fire fighters full opportunity to evaluate and review their personal urine test results or to have their own urine specimens retested by technician of their choice offended traditional notions of fundamental fairness and due process. U.S.C.A. Const.Amends. 5, 14.

[28] Injunction 212 99

212 Injunction

212II Subjects of Protection and Relief

212II(G) Personal Rights and Duties

212k99 k. Interference with Occupation in General. Most Cited Cases

Invasion of Fourth Amendment privacy rights and Fourteenth Amendment substantive and due process rights resulting from administration of mass urine testing program with respect to city fire fighters warranted injunctive relief, where absent injunctive relief, fire fighters faced threat of immediate termination from their jobs without pay and without opportunity for due process hearing, any opportunity for other employment had been jeopardized by adverse publicity generated by action which had left each fire fighter vulnerable to suspicion of being “drug abuser,” and requiring individualized, reasonable suspicion for urine testing would not unduly burden city's ability to ensure its citizens safe, unimpaired fire fighting force. U.S.C.A. Const.Amends. 4, 14.

[29] Civil Rights 78 1126

78 Civil Rights

78II Employment Practices

78k1124 Public Employment

78k1126 k. Particular Cases. Most Cited Cases

(Formerly 78k146, 78k13.4(1))

City's actions relating to mass urine testing of employees violated civil rights statute, 42 U.S.C.A. § 1983, depriving fire fighters and police department employee of constitutional rights and privileges secured to them.

*1510 Justin, Gast, & Kuhn, New Brunswick, N.J., Loccke & Correia, P.A., Englewood, N.J., Robinson, Wayne, Levin, Ricco & La Sala, Newark, N.J., for plaintiffs.

Daniel A. Williamson, Plainfield, N.J., for defendant, City of Plainfield.

OPINION

SAROKIN, District Judge.

INTRODUCTION

In the face of widespread use of drugs and its intrusion into the workplace, it is tempting to turn to mass testing as a solution. The issue presented by this case is the constitutionality of such testing of current employees by governmental entities. *1511 Whether such testing may be done in the private sector or be imposed as a condition of accepting employment, even in the public sector, is not here presented. Government has a vital interest in making certain that its employees, particularly those whose impairment endangers their co-workers or the public, are free of drugs. But the question posed by this litigation challenges the means by which that laudable goal is attained, not the goal itself.

Urine testing involves one of the most private of functions, a function traditionally performed in private, and indeed, usually prohibited in public. The proposed test, in order to ensure its reliability, requires the presence of another when the specimen is created and frequently reveals information about one's health unrelated to the use of drugs. If the tests are positive, it may affect one's employment status and even result in criminal prosecution.

We would be appalled at the spectre of the police spying on employees during their free time and then reporting their activities to their employers. Drug testing is a form of surveillance, albeit a technological one. Nonetheless, it reports on a person's off-duty activities just as surely as someone had been present and watching. It is George Orwell's “Big Brother” Society come to life.

To argue that it is the only practical means of discovering drug abuse is not sufficient. We do not permit a search of every house on a block merely because there is reason to believe that one contains evidence of criminal activity. No prohibition more significantly distinguishes our democracy from a totalitarian government than that which bars warrantless searches and seizures. Nor can the success of massive testing justify its use. We would not condone the beatings of suspects and the admissibility of their confessions merely because a larger number of convictions resulted.

[1] [2] In this matter, long time employees were coerced into testing without notice, without standards and without probable cause or reasonable suspicion. Even if such testing were justified without such individualized basis, it nonetheless, would be illegal because of the flagrant violation of plaintiffs' due process rights in this instance. Assuming a program of drug testing is warranted, before it may be implemented, its existence must be made known, its methods clearly enunciated, and its procedural and confidentiality safeguards adequately provided.

The harassment, coercion and tactics utilized here, even if motivated by the best of intentions, should cause us all to recognize the realities of government excesses and the need for constant vigilance against intrusions into constitutional rights by its agents. If we choose to violate the rights of the innocent in order to discover and act against the guilty, then we will have transformed our country into a police state and abandoned one of the fundamental tenets of our free society. In order to win the war against drugs, we must not sacrifice the life of the Constitution in the battle.

FACTS

On May 26, 1986 all fire fighters and fire officers employed by the defendant, City of Plainfield, were ordered to submit to a surprise urinalysis test. At 7:00 A.M. on May 26, the Plainfield Fire Chief and Plainfield Director of Public Affairs and Safety entered the city fire station, secured and locked all station doors and awakened the fire fighters present on the premises. Each fire department employee was required to submit a urine sample while under the surveillance and supervision of bonded testing agents employed by the city. Defendants repeated a substantially similar procedure on May 28 and June 12, 1986 until approximately all of the 103 employees of the Plainfield Fire Department were tested.

Prior to May 26, the Plainfield fire employees had no notice of defendants' intent to conduct mass urinalysis. Such urinalysis had not been provided for in the collective bargaining agreement between the fire fighters and the City. Nor was any written directive, order, departmental policy or *1512 regulation promulgated establishing the basis for such testing and prescribing appropriate standards and procedures for collecting, testing, and utilizing the information derived.

Between July 10 and July 14, 1986, sixteen firefighting personnel were advised that their respective urinalysis had proved positive for the presence of controlled dangerous substances. They were immediately terminated without pay. Those who tested positive were not informed of the particular substance found in their urine or of its concentration. Neither were they provided copies of the actual laboratory results. Written complaints were served ten days later on July 24, 1986, charging these fire fighters with numerous violations including “commission of a criminal act”.

At about the same time, employees of the Plainfield Police Department were subjected to similar urine testing. On May 26, 1986, plaintiff Monica Tompkins, a communications operator for the Plainfield Police was ordered to submit a urine sample under the surveillance of a female testing agent. On July 10, Ms. Tompkins was advised by the Chief of Police that her urinalysis had been positive. As a result, Ms. Tompkins was informed that she could either resign without charges being brought or she would be immediately suspended.

Plaintiff fire fighters instituted this action on July 30, 1986, by way of an Order to Show Cause and Verified Complaint. Plaintiff Monica Tompkins filed a related action which will be considered jointly. The Court issued a Temporary Restraining Order mandating the immediate reinstatement of the suspended Plainfield fire fighters and prohibiting further urine testing by defendants pending a plenary determination in this case.

On July 31, 1986 defendants moved to vacate the restraining order. The court denied defendants' motion, but granted leave to re-apply if specific, individualized evidence could be produced demonstrating that a particular fire fighter's job performance was impaired as a result of drugs. To date, no such evidence has been brought before the court.

[3] Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive relief. ^FN1 They seek to have the urine testing declared unconstitutional and to enjoin the City of Plainfield and its agents from further conducting standardless, department-wide urine testing in violation of the Fourth Amendment. The parties have agreed to submit the matter for a final determination on the record before the court conceding that no factual issues exist which would require a hearing.

FN1. This Court notes that plaintiffs' cause of action is properly in federal court. The Supreme Court has unambiguously ruled that exhaustion of State judicial or administrative remedies is not a prerequisite to a federal lawsuit under 42 U.S.C. § 1983. See generally Patsy v. Florida Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). Similarly, federal jurisdiction is appropriate even where, as here, the § 1983 action asserts claims for declaratory and injunctive relief.