Barrett v. Claycomb

• Decision Date: 13 September 2013
• Docket Number: No. 2:11–CV–04242–NKL.,2:11–CV–04242–NKL.
• Citation: 976 F.Supp.2d 1104
• Parties: Michael BARRETT, IV, et al., Plaintiffs, v. Donald M. CLAYCOMB, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

976 F.Supp.2d 1104

Michael BARRETT, IV, et al., Plaintiffs,

v.Donald M. CLAYCOMB, et al., Defendants.

No. 2:11–CV–04242–NKL.

United States District Court,

W.D. Missouri,

Central Division.

Sept. 13, 2013.

Anthony E. Rothert, Grant R. Doty, American Civil Liberties Union of Eastern MO, St. Louis, MO, Jason D. Williamson, New York, NY, for Plaintiffs.

Kent L. Brown, Judith A. Willis, Missouri Law Center, Jefferson City, MO, for Defendants.

ORDER

NANETTE K. LAUGHREY, District Judge.

In September 2011, Defendant Donald Claycomb, President of Linn State Technical College (“Linn State”), implemented a policy requiring all new Linn State students to be drug tested using urinalysis. Plaintiffs, representing a class of current and future students of the college, immediately filed suit against the Defendants in their official capacities seeking a declaratory judgment that this mandatory, suspicionless drug-testing violated their constitutional rights. Plaintiffs moved for a preliminary injunction, which this Court granted after an evidentiary hearing. Defendants filed an interlocutory appeal and the Eighth Circuit vacated the preliminary injunction, finding that Defendants had identified a special need sufficient to justify the suspicionless drug testing of some Linn State students. Specifically, the court held that the testing may be reasonable based on the “interest in deterring drug use among students engaged in programs posing significant safety risks to others.” Barrett v. Claycomb, 705 F.3d 315, 322 (8th Cir.2013). Because Defendants' policy was constitutional as to some Linn State students who were enrolled in safety sensitive training programs, such as the Aviation Maintenance program, the Eighth Circuit rejected Plaintiffs' facial challenge. Plaintiffs thereafter clarified their claims in this Court to assert an as-applied challenge. On July 1, 2012, the Court held a second evidentiary hearing to address Plaintiffs' request for a permanent injunction on both their applied and facial challenges. Given the Eight Circuit's previous ruling on Plaintiffs' facial challenge, the primary issue to be resolved now is whether Defendants' suspicionless drug-testing policy, as applied, violates the Fourth Amendment rights of any Linn State student.¹

I. The Fourth Amendment and Special Governmental Needs

The Fourth Amendment protects the right of Americans to be free from unreasonable searches and seizures. It is well-established that a urine drug test constitutes a search under the Fourth Amendment. E.g., Chandler v. Miller, 520 U.S. 305, 313, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997); Skinner v. Railway Labor Execs.' Ass'n, 489 U.S. 602, 617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); Hess v. Ables, 714 F.3d 1048, 1052 (8th Cir.2013). Ordinarily, a search is unreasonable if it is conducted without individualized suspicion. Chandler, 520 U.S. at 308, 313, 117 S.Ct. 1295;Barrett, 705 F.3d at 321. But there is a “closely guarded category of constitutionally permissible suspicionless searches.” Chandler, 520 U.S. at 309, 117 S.Ct. 1295. Of particular relevance here, a suspicionless search may be reasonable if it “serves special governmental needs, beyond the normal need for law enforcement.” Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). If such a special need exists, a reviewing court must balance the weight of this interest against the privacy expectations intruded on by the search to determine whether the search is reasonable in the particular context. Id. at 665–66, 109 S.Ct. 1384;Barrett, 705 F.3d at 322.

Because the constitutionality of a suspicionless search is a “context-specific inquiry,” Chandler, 520 U.S. at 314, 117 S.Ct. 1295, the Court must make a program-by-program assessment of the activities engaged in by the students enrolled at Linn State. See Am. Fed'n of State, Cnty. & Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 866–67 (11th Cir.2013) (“[T]he test we apply is a job-category-by-category balancing of the individual's privacy expectations against the Government's interests, ....” (quotation omitted)); Nat'l Fed'n of Fed. Emps.-IAM v. Vilsack, 681 F.3d 483, 489, 492 (D.C.Cir.2012) (“[T]he Supreme Court has differentiated between job categories designated for testing, rather than conducting the balancing test more broadly....”). And the Court must evaluate each program offered at Linn State to ensure that the category of students subject to the drug-testing policy has not been defined more broadly than necessary to meet the policy's purposes. See Von Raab, 489 U.S. at 678, 109 S.Ct. 1384. With respect to each program, the Court must balance the special need asserted by Defendants ² against Plaintiffs' reasonable privacy expectations to determine whether the search is reasonable. See id. at 665–66, 109 S.Ct. 1384;Barrett, 705 F.3d at 322. Three factors guide this analysis: “(1) ‘the nature of the privacy interest allegedly compromised by the drug testing’; (2) ‘the character of the intrusion imposed by the Policy’; and (3) ‘the nature and immediacy of the government's concerns and the efficacy of the Policy in meeting them.’ ” Barrett, 705 F.3d at 322 (quoting Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 830, 832, 834, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002)).

II. Evidentiary Issues

There is some dispute as to whether the evidence presented at the preliminary injunction hearing automatically became part of the record for the permanent injunction hearing. Due to the unique characteristics of a motion for a preliminary injunction, which by its nature often requires an expeditious hearing and decision, evidence that would ordinarily be inadmissible, such as affidavits, may be received at a preliminary injunction hearing. See Wounded Knee Legal Def./Offense Comm. v. Fed. Bureau of Investigation, 507 F.2d 1281, 1286–87 (8th Cir.1974); see also Sierra Club, Lone Star Chapter v. F.D.I.C., 992 F.2d 545, 551 (5th Cir.1993). With respect to whether evidence received on a motion for a preliminary injunction also becomes part of the trial record, Federal Rule of Civil Procedure 65(a)(2) provides that “evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial.” (emphasis added).

At the preliminary injunction hearing, Defendants submitted a number of affidavits from various Linn State faculty members. On Plaintiffs' motions in limine, these affidavits were excluded from the trial record as inadmissible hearsay. At trial, however, the parties stipulated to the admission of eight of these affidavits. Consequently, only those affidavits that were admitted pursuant to the stipulation will be considered by the Court. Pursuant to Rule 65(a)(2), the other evidence offered at the preliminary injunction hearing will be considered part of the trial record to the extent that it is admissible under the Federal Rules of Evidence.

III. Burden of Proof

Once Plaintiffs show that a suspicionless search has occurred, there is a presumption that it is unconstitutional. Scott, 717 F.3d at 866–67. The burden of production then shifts to the government to show either consent or a recognized exception to the Fourth Amendment. Der v. Connolly, 666 F.3d 1120, 1127–29 (8th Cir.2012). While the “risk of non-persuasion must remain squarely on the plaintiff,” id. at 1128 (quotation omitted), if the government does not produce evidence to support a recognized exception to the Fourth Amendment, the presumption prevails.

Applying this rule in cases involving suspicionless drug testing, the Eleventh Circuit has held that such a search cannot be upheld where the testing proponent fails to present evidence to support the special need that justifies the search. Scott, 717 F.3d at 880–82 (citing, inter alia,Der, 666 F.3d at 1127–28;Valance v. Wisel, 110 F.3d 1269, 1279 (7th Cir.1997)); Lebron v. Sec'y, Fla. Dep't of Children & Families, 710 F.3d 1202, 1211 n. 6, 1213 (11th Cir.2013). As discussed at length by the court in Scott, requiring this threshold showing has considerable support in the Supreme Court's precedent on suspicionless searches. See Scott, 717 F.3d at 881;see also Chandler, 520 U.S. at 318–19, 117 S.Ct. 1295 (striking down a suspicionless drug-testing statute where the state “ failed to show, in justification of [its drug-testing statute], a special need” (emphasis added)); Von Raab, 489 U.S. at 677, 109 S.Ct. 1384 (finding that “ the Government has demonstrated that its compelling interests ... outweigh the privacy expectations of employees.” (emphasis added)); Lebron, 710 F.3d at 1211 n. 6 (“[T]he Supreme Court has unequivocally stated that it is the state which must show a substantial special need to justify its drug testing.”).

Similarly, in Doe ex rel. Doe v. Little Rock Sch. Dist., 380 F.3d 349, 356 (8th Cir.2004), the Eighth Circuit held that a suspicionless search was unreasonable where the defendant school district “ failed to demonstrate the existence of a need sufficient to justify” the search. Little Rock Sch. Dist., 380 F.3d at 356–57 (emphasis added). In reaching this conclusion, the court rejected the school district's “generalized concerns about the existence of weapons and drugs in its schools,” because there was “nothing in the record regarding the magnitude of any problems with weapons or drugs that it has actually experienced.” Id. at 356. The court concluded that the suspicionless search at issue could not be upheld based on an alleged special need that was substantiated by nothing more than “a mere apprehension” or “assertion.” Id. at 356–57;accord Scott, 717 F.3d at 877.

Defendants thus bear the burden of producing evidence to show that their case falls within the limited circumstances in which suspicionless searches are permissible based on a concrete safety concern. See Der, 666 F.3d at 1128–29;see also Chandler, 520 U.S. at 308, ...