308 F.3d 380 (4th Cir. 2002), 97-2512, Ferguson v. City of Charleston, S.C.

Docket Nº:97-2512.
Citation:308 F.3d 380
Party Name:Crystal M. FERGUSON; Paula S. Hale; Ellen L. Knight; Patricia R. Williams; Lori Griffin; Pamela Pear; Sandra Powell; Laverne Singleton; Theresa Joseph; Darlene M. Nicholson, Plaintiffs-Appellants, and State-Record Company, Incorporated; The Evening Post Publishing Company, Intervenors-Plaintiffs, v. CITY OF CHARLESTON, SOUTH CAROLINA; Harrison L. P
Case Date:October 17, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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308 F.3d 380 (4th Cir. 2002)

Crystal M. FERGUSON; Paula S. Hale; Ellen L. Knight; Patricia R. Williams; Lori Griffin; Pamela Pear; Sandra Powell; Laverne Singleton; Theresa Joseph; Darlene M. Nicholson, Plaintiffs-Appellants,


State-Record Company, Incorporated; The Evening Post Publishing Company, Intervenors-Plaintiffs,


CITY OF CHARLESTON, SOUTH CAROLINA; Harrison L. Peoples, Dr.; Thomas C. Rowland, Jr., Dr.; Stanley C. Baker, Jr., Dr.; Charles B. Hanna, Dr.; Cotesworth P. Fishburne, Dr.; E. Conyers O'Bryan, Dr.; Melvyn Berlinsky; Patricia T. Smith; M.J. Cooper; Herbert C. Granger; Robert C. Lake, Jr.; Phillip D. Sasser; Claudia W. Peoples; Carroll V. Bing, Jr., Dr., as Trustees of the Medical University of South Carolina in their official capacities; Reuben Greenberg; Charles Molony Condon; David Schwacke; Shirley Brown, R.N.; Edgar O. Horger, III, M.D.; Victor Del Bene; John Sanders; William B. Pittard, M.D.; Roger Newman, M.D.; Harold Bivens, M.D.; Melesia Henry, R.N., personally and in their official capacities, Defendants-Appellees.

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Center for Constitutional Rights; South Carolina Medical Association; American Public Health Association; American Academy on Physician and Patient; Society of General Internal Medicine; American Academy of Addiction Psychiatry; Association of Maternal and Child Health Programs; National Medical Association; Global Lawyers and Physicians; Adrienne Asch, Ph.D., M.S.; John Arras, Ph.D.; Jeffrey Blustein, Ph.D.; James Campbell; Arthur Caplan, Ph.D.; Nancy Neveloff Dubler, J.D.; Ruth Faden, Ph.D., M.P.H.; John Fletcher, Ph.D.; Jeanine Gage, M.S., R.N., C.S.; Leonard Glantz, J.D.; Susan Dorr Goold, M.D., M.H.S.A., M.A.; Michael Grodin, M.D., F.A.A.P.; Jeffrey Kahn, Ph.D., M.P.H.; Jay Katz, M.D.; Loretta Kopelmann, Ph.D.; Steven Leuthner, M.D., M.A.; Ruth Macklin, Ph.D.; Mary Faith Marshall, Ph.D.; Anna C. Mastroianni, J.D., M.P.H.; Steven H. Miles, M.D.; Lawrence J. Nelson, Ph. D.; Robert M. Nelson, M.D., Ph.D.; Linda Farber Post, B.S.N., M.A., J.D.; Howard B. Radest, Ph.D.; Sally Webb, M.D., Amicus Curiae.

No. 97-2512.

United States Court of Appeals, Fourth Circuit

October 17, 2002

Argued Jan. 22, 2002.

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Priscilla Joyce Smith, Center for Reproductive Law and Policy, New York,

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New York, for Appellants. Robert Holmes Hood, Hood Law Firm, L.L.C., Charleston, South Carolina, for Appellees.


Julie Rikelman, Center for Reproductive Law and Policy, New York, New York; Susan K. Dunn, Charleston, South Carolina; David Rudovsky, Kairys, Rudovsky, Epstein, Messing & Rau, Philadelphia, Pennsylvania; Lynn Paltrow, National Advocates for Pregnant Women, New York, New York; Seth Kreimer, Philadelphia, Pennsylvania; Susan Frietsche, David Cohen, Women's Law Project, Philadelphia, Pennsylvania, for Appellants. Barbara W. Showers, Mary Agnes Hood Craig, Deborah Harrison Sheffield, Hood Law Firm, L.L.C., Charleston, South Carolina, for Appellees. Kimani Paul Emile, Barbara Olshansky, Center for Constitutional Rights, New York, New York, for Amicus Curiae Center. Daniel N. Abrahamson, San Francisco, California, for Amici Curiae Medical Association, et al.

Before WILKINS and NIEMEYER, Circuit Judges, and CATHERINE C. BLAKE, United States District Judge for the District of Maryland, sitting by designation.

Affirmed in part and reversed and remanded in part by published opinion. Judge WILKINS wrote the majority opinion, in which Judge BLAKE joined. Judge NIEMEYER wrote an opinion concurring in the judgment and dissenting in part.


WILKINS, Circuit Judge.

In 1989, the Medical University of South Carolina (MUSC) established, in cooperation with local law enforcement officials, a policy (the Policy) intended to reduce cocaine use by pregnant women. As implemented, the Policy involved the testing of patients' urine to gather evidence of cocaine use and the disclosure of evidence so obtained to law enforcement authorities. Appellants are ten former obstetrical patients at MUSC whose urine was tested pursuant to the Policy; they brought this action claiming, inter alia, that the testing of their urine for cocaine constituted a warrantless, unreasonable search in violation of the Fourth Amendment.1

Following trial, the district court submitted to the jury the question of whether Appellants had consented to the urine drug screens. The jury found in favor of Appellees. We now must decide whether the district court erred in denying Appellants' subsequent motion for judgment as a matter of law. For the reasons set forth below, we hold that no rational jury could conclude, from the evidence presented at trial, that Appellants gave their informed consent to the taking and testing of their urine for evidence of criminal activity for law enforcement purposes. Our holding encompasses two determinations: first, that as to most of the Appellants, the record evidence does not support a finding that Appellants knew that their urine was being analyzed for evidence of criminal activity for law enforcement purposes; and second, that the record evidence does not support a finding that Appellants, for Fourth Amendment purposes, voluntarily submitted to the searches. Excluded from our holding is Ellen Knight, who, as explained

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below, suffered no Fourth Amendment violation. Additionally, we remand for further proceedings as to Darlene Nicholson, who may not have been searched pursuant to the Policy. In sum, we affirm in part and reverse and remand in part.


Because we are reviewing the denial of Appellants' motion for judgment as a matter of law, we must view the evidence in the light most favorable to Appellees and draw all reasonable inferences in their favor without weighing the evidence or assessing the witnesses' credibility. See Sales v. Grant, 158 F.3d 768, 775 (4th Cir. 1998). Viewed in light of that standard, the evidence at trial demonstrated the following facts.


In the fall of 1989, MUSC instituted a policy providing for the testing of the urine of pregnant women for cocaine use and for the reporting, under certain circumstances, of test results to law enforcement officials. The Policy was implemented both at the MUSC hospital and at the MUSC clinic.2 The impetus for the Policy came from Nurse Shirley Brown, a case manager in the obstetrics department at the MUSC hospital. In the previous year, personnel in the obstetrics department had noted an increase in cocaine use by pregnant women. Although these women were referred to substance abuse treatment, such referrals were ineffective in stemming the tide of "cocaine babies" being born at the MUSC hospital. After hearing a report regarding a program in place elsewhere in South Carolina, which involved bringing charges of child abuse against women who used cocaine during pregnancy, Brown spoke with an MUSC official, who in turn contacted the Ninth Circuit Solicitor (chief prosecuting attorney) concerning the development of a program for application at MUSC to detect and deter cocaine use by pregnant women.3

Eventually, a task force was formed that included Nurse Brown, the Solicitor, the Chief of the Charleston City Police Department (CCPD), representatives from the Charleston County Substance Abuse Commission (CCSAC), and doctors from various departments at MUSC involved in perinatal care. By mid-October 1989, these meetings had produced the initial version of the Policy at issue in this litigation. According to the terms of the initial Policy, MUSC maternity patients were to be tested if any of nine criteria was met.4 The initial Policy provided that if a patient had not yet delivered her baby, she was to be given a referral to CCSAC and counseling regarding the harmful effects of drug use during pregnancy. Upon a second

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positive test or a failure to comply with treatment obligations, the patient would be arrested.5 If a patient tested positive for cocaine upon delivering a child, she was to be arrested "as soon as medically possible." J.A. 1448.

In early 1990, the Policy was amended to focus more on patient education. To that end, two of the doctors involved with the Policy drafted a letter to be given to all women who received prenatal care at the MUSC clinic. Known as the "To Our Patients" letter, it warned patients of the dangers of prenatal drug use and further stated:

If you are using drugs, please stop! If you are unable to stop, please let your doctor know. We want to help mothers get off drugs for the benefit of both you and your baby. We will provide you counseling about the harms of drug abuse and will make arrangements for you to be seen at the Substance Abuse Clinic. We realize that drug abuse is a very difficult problem and we will do all that we can to help you.

If, however, we continue to detect evidence of drug abuse or a failure to follow recommended treatment, we will take action to protect your unborn child. The Charleston Police, the solicitor's office, and the Protective Service Division of [the Department of Social Services] are also committed to the protection of unborn and newborn children from the harms of illegal drug abuse.

We hope that you can understand the tragedy which is being caused by the continued use of illegal drugs during pregnancy. This policy of providing warning, counseling and treatment for pregnant women using illegal drugs is the best way for us to help. For those women who fail this treatment, we must ask for help to protect the life and health of our most innocent unborn children.

Id. at 1437.6 Additionally, patients were shown a video regarding the dangers of drug abuse during pregnancy.

In an effort to publicize the Policy, the Solicitor recorded a public service announcement (PSA) that...

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