Jackson v. Gates

• Decision Date: 27 November 1992
• Docket Number: No. 90-55728,90-55728
• Citation: 975 F.2d 648
• Parties: , 7 IER Cases 1249, 8 IER Cases 192 Johnny Lee JACKSON, Plaintiff-Appellee, v. Daryl GATES; City of Los Angeles, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 648

975 F.2d 648

61 USLW 2189, 7 IER Cases 1249, 8 IER

Cases 192

Johnny Lee JACKSON, Plaintiff-Appellee, v. Daryl GATES; City of Los Angeles, Defendants-Appellants.

No. 90-55728.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 3, 1991.

Decided Sept. 17, 1992.

As Amended Nov. 27, 1992.

Arthur B. Walsh, Deputy City Atty., Los Angeles, Cal., for defendants-appellants.

Michael P. Stone, Stone, Feeley & DePasquale, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: PREGERSON, CANBY and RYMER, Circuit Judges.

PREGERSON, Circuit Judge:

The City of Los Angeles and Los Angeles Police Chief Gates (collectively "appellants") appeal the denial of their motions for summary judgment, directed verdict, new trial, and judgment notwithstanding the verdict, and the jury award in favor of Los Angeles Police Officer Johnny Lee Jackson. Jackson brought this action after being discharged for refusing to comply with an order to provide a urine sample for drug testing. We hold that appellants' termination of Jackson because he refused to comply with the order violated his Fourth Amendment rights. Further, we hold that the jury was properly instructed on the applicable Fourth Amendment standard, which required the police to demonstrate an articulable reasonable basis for suspecting Jackson of drug use before ordering him to submit to the urinalysis.

BACKGROUND

Los Angeles Police Department ("LAPD") Officers Leach and Jackson were assigned to the same police station. Sometime before February 1986, the Internal Affairs Division of the LAPD ("IAD") began conducting undercover surveillance of Officer John Leach, whom they suspected of illegal drug use. IAD undercover officers saw Jackson and Leach together on two separate occasions during their investigation.

On the afternoon of February 13, 1986, Jackson got into Leach's car, and the two drove to an apartment building in Hollywood. The building was known by the IAD officers to be the site of narcotics sales and use. Leach entered the building while Jackson remained in the car. Leach returned with a woman, and the three drove to another apartment building also considered by the IAD officers to be a location of illegal drug sales and use. Leach and the woman went into that building while Jackson again waited in the car. Leach returned alone, and the two drove to Leach's residence in North Hollywood.

After some time at Leach's residence, the two returned to the second apartment building. As before, Leach entered the building while Jackson waited in the car. The two left, with Leach driving in a manner characterized by the surveilling officers as "calculated to avoid being followed."

The IAD's undercover surveillance of Leach then ceased until February 20, 1986. On that day, undercover IAD officers saw Leach and Jackson leave the station together after both had finished their work shifts. Leach drove with Jackson to Exposition Park where, according to the officers, the two drank beer and talked. Later that evening, Leach returned alone to one of the buildings believed by police to be a "narcotics location."

The IAD officers then took Leach into custody. Pursuant to a warrant, the Officers searched Leach's car, uncovering "a tinfoil bindle which in size and shape was consistent with the packaging of cocaine."

Under orders from their captain, IAD officers went to Jackson's home on February 21, 1986, at 1:30 a.m., and ordered him to provide a urine specimen. Jackson objected. The officers then ordered Jackson to accompany them to Parker Center in downtown Los Angeles. ¹

Once there, Jackson met with a union representative of the Los Angeles Police Protective League ("League"). Jackson then received a formal order to provide a urine sample under contemporaneous observation by an IAD officer in the public restroom for drug testing. He refused the order. ²

On July 24, 1986, Jackson was suspended without pay pending a hearing on the charge of insubordination. An administrative panel found Jackson guilty of refusing to comply with a lawful order, and recommended discharge from the LAPD. Police Chief Gates accepted the panel's finding, and terminated Jackson effective July 24, 1986. See Charter of the City of Los Angeles §§ 202(12)-(13).

Jackson pursued the grievance procedures available to him, which provided that his dispute with the LAPD be submitted to binding arbitration. The arbitrator concluded that the labor agreement between the League and the LAPD did not authorize compulsory urinalysis in Jackson's case. A year and one-half later, the LAPD reinstated Jackson and restored his lost benefits, including back pay, in accordance with the arbitrator's decision.

Jackson filed this lawsuit claiming damages under 42 U.S.C. § 1983 for alleged violations of his Fourth, Fifth, and Fourteenth Amendment rights. The parties on both sides filed motions for summary judgment. ³ The district court granted summary judgment for all defendants sued in their individual capacity, including Police Chief Gates, on grounds of qualified immunity. ⁴ Appellants' motion for summary judgment on the issues of Jackson's Fourth Amendment claim and municipal liability was twice denied.

Following trial, the jury returned a verdict for Jackson of $154,747. The district court entered judgment on the verdict, and denied motions filed by appellants for a directed verdict, for judgment notwithstanding the verdict or, in the alternative, for a new trial. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291.

DISCUSSION

I. Fourth Amendment Claim

Appellants contend that the district court erred by denying their motion for summary judgment on Jackson's Fourth Amendment claim under 42 U.S.C. § 1983. Specifically, appellants argue that the order to Jackson to submit to a urinalysis drug test was reasonable under the Fourth Amendment even absent a reasonable individualized and articulated suspicion of drug use, impairment, or ingestion. ⁵

A. Jackson's Rights Under the Fourth Amendment

We review the district court's grant of a motion for summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). Viewing the evidence in the light most favorable to the non-moving party, we must determine whether there are any genuine issues of material fact, and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).

Appellants argue that the Supreme Court's decisions in 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 Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), require no degree of individualized suspicion before ordering a police officer to submit to an administrative drug test. Thus, they contend that the order compelling Jackson to submit to urinalysis was not constitutionally unreasonable. We do not agree that these cases support the result appellants suggest.

It is well established that a urinalysis drug test is a search within the meaning of the Fourth Amendment. See Von Raab, 489 U.S. at 665, 109 S.Ct. at 1390; Railway Labor, 489 U.S. at 617, 109 S.Ct. at 1412; International Bhd. of Teamsters v. Department of Transp., 932 F.2d 1292, 1299 (9th Cir.1991). To be deemed reasonable, a search generally must be supported by a warrant issued upon probable cause. Von Raab, 489 U.S. at 665, 109 S.Ct. at 1390. However, "neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance." Id.

In Von Raab, the Supreme Court considered the constitutionality of drug testing of U.S. Customs Service employees interested in transfer or promotion to positions involving exceptional duties such as drug interdiction and the use of firearms. The Court held that "where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context." Id. at 665-66, 109 S.Ct. at 1390 (emphasis added). Applying this balancing test, the Court concluded that the government's interests in safeguarding the national border and in public safety outweighed the privacy expectations of employees who sought certain promotions. Id. at 677, 109 S.Ct. at 1396.

In Railway Labor, the Court upheld the constitutionality of the drug testing of railway employees involved in certain accidents or who violated certain safety rules. The Court concluded that the government's compelling interest in ensuring public safety outweighed employee privacy concerns and justified post-accident drug testing even absent individualized suspicion. Railway Labor, 489 U.S. at 633, 109 S.Ct. at 1421.

The purpose of requiring the government to obtain a warrant, or to have probable cause or reasonable suspicion before conducting a search, is to prevent random or arbitrary intrusions by government agents. Id. at 621-22, 109 S.Ct. at 1415. Von Raab and Railway Labor provide an exception to this requirement where the government demonstrates a compelling safety interest.

In the present case, appellants demonstrate no special compelling interests under Von Raab or Railway Labor, which would justify a search because there was no triggering event or employment pre-promotion requirement ⁶ involved.

Appellants also offer National Federation of Federal Employees v. Cheney, 884 F.2d 603 (D.C.Cir.1989) to support their contention that no degree of individualized suspicion is required for administrative...