Berry v. District of Columbia

• Decision Date: 24 November 1987
• Docket Number: No. 85-6158,85-6158
• Citation: 833 F.2d 1031,266 U.S.App.D.C. 127
• Parties: Tyrone G. BERRY, Appellant v. DISTRICT OF COLUMBIA, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1031

833 F.2d 1031

266 U.S.App.D.C. 127

Tyrone G. BERRY, Appellant v. DISTRICT OF COLUMBIA, et al.

No. 85-6158.

United States Court of Appeals,

District of Columbia Circuit.

Argued Sept. 11, 1987.

Decided Nov. 24, 1987.

Melvin A. Marshall, Washington, D.C., for appellant.

Charles L. Reischel, Deputy Corp. Counsel, with whom James R. Murphy, Acting Corp. Counsel, and Karen S. Dworkin, Asst. Corp. Counsel, Washington, D.C., were on the brief, for appellees.

David A. Reiser, Staff Atty., with whom James W. Klein, Chief, Appellate Div., and Henderson Hill, Sp. Litigation Counsel, Washington, D.C., were on the brief, for amicus curiae, Public Defender Service, urging reversal.

Michael W. Farrell, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Washington, D.C., was on the brief, for amicus curiae, U.S., urging affirmance.

Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., were on the brief for amicus curiae, American Civil Liberties Union Fund of the Nat. Capital Area, et al., urging reversal.

Before MIKVA, EDWARDS and BUCKLEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This action was instituted by Tyrone Berry against the District of Columbia ("District" or "D.C."), Mayor Marion Barry and several unknown police officers after Berry was arrested several times on drug charges in 1984. ¹ Berry claimed that, during two of his arrests, he was unlawfully assaulted by several police officers, and that, following one of his arrests, he was denied a speedy presentment before a magistrate. Berry further claimed that, when money seized from him during these arrests was later made subject to civil forfeiture proceedings, notice of these proceedings should have been provided to his criminal defense attorney. In addition, Berry claimed that his constitutional rights were violated when he was ordered to submit to drug testing and treatment as a condition of pretrial release. The District Court granted summary judgment in favor of the District on the notice claim and the drug testing and treatment claim. The assault and presentment claims were dismissed because Berry's attorney failed to abide by the District Court's orders. On the record before us, we reverse and remand in part, and affirm in part.

First, because we find that the District Court failed to consider significant constitutional issues raised by the District's drug testing and treatment program, we reverse and remand on this claim. Second, because we can find no adequate basis on the present record to justify a dismissal of Berry's assault and presentment claims, we reverse and remand for further proceedings on these claims. Finally, we affirm the District Court's grant of summary judgment with respect to Berry's spurious notice claim.

I. BACKGROUND

On March 6, 1984, Berry was arrested on drug charges. The next day, a D.C. Superior Court Commissioner ("Commissioner") released Berry on his own recognizance on the condition that he submit to an immediate urinalysis drug test. If Berry tested positive, he was then supposed to participate in the drug testing and treatment program administered by the District's Pretrial Services Agency ("PSA"). Apparently, Berry did not submit to a drug test before he was released, and he did not report to the PSA for further tests or treatment.

On June 20, 1984, Berry was again arrested on drug charges. The next day, a Commissioner released him into third-party custody with the same conditions that followed his March arrest. This time Berry did submit to a urinalysis drug test, which was positive for cocaine and opiates. The PSA then instructed Berry to report for weekly drug tests. When Berry failed to report for his scheduled tests, the PSA notified the D.C. Superior Court that he had violated his conditions of release. ² After a show cause hearing was held on August 14 to determine whether Berry's bail should be revoked, Berry was released with the same conditions that followed his March and June arrests. ³ He did not report for testing, however, and a bench warrant was issued for his arrest on August 24. ⁴ At a hearing several weeks later, the D.C. Superior Court quashed the warrant and set a $2000 surety bond; Berry was unable to post bond and was jailed. ⁵

On August 29, 1984, Berry filed this action in the United States District Court for the District of Columbia. ⁶ Besides making several claims relating to his arrests, ⁷ Berry claimed that the District's drug testing and treatment program violated his rights under the Fourth, Fifth and Eighth Amendments. ⁸ In a memorandum order dated June 14, 1985, the District Court granted the District's motion for summary judgment with respect to this last claim. Berry v. District of Columbia, No. 84-2659, slip op. at 6-7 (D.D.C. June 14, 1985), R.D. 47. ⁹ The District Court described Berry's arguments as "far-fetched," and stated that his claim did not present issues of "constitutional dimension." Id. at 6-7. The court merely noted that drug testing and treatment are reasonable conditions of pretrial release. Id. ¹⁰ On September 5, 1985, the District Court dismissed Berry's remaining claims because Berry's attorney had failed to abide by the court's orders regarding the management of the case. ¹¹

II. ANALYSIS

A. Pre-Arraignment Drug Testing

In his brief to this court, Berry argues that pre-arraignment drug tests administered to nearly all persons arrested in the District are unconstitutional. See Appellant's Brief at 15. Berry did not raise this issue in his amended complaint, however, and the record does not show that he ever submitted to a pre-arraignment drug test. Since Berry failed to raise this claim in the District Court, he may not assert it on appeal. See District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C.Cir.1984) ("It is well settled that issues and legal theories not asserted at the District Court level ordinarily will not be heard on appeal."). ¹² Therefore, we express no opinion on the validity of pre-arraignment tests performed in the District. ¹³

B. Drug Testing and Treatment as a Condition of Pre-Trial Release

The District Court concluded that the District's pre-trial drug testing and treatment program ("testing program") does not raise issues of "constitutional dimension." Berry v. District of Columbia, No. 84-2659, slip op. at 7 (D.D.C. June 14, 1985), R.D. 47. We disagree. Mandatory urinalysis clearly implicates rights secured under the Fourth Amendment. This court and virtually all others that have ruled upon the constitutionality of compulsory urinalysis have held or assumed that it amounts to a "search" or "seizure" within the meaning of the Fourth Amendment. ¹⁴

We are unable to pass judgment on the testing program, however, because the record with respect to this issue is virtually barren. As this court noted in National Federation of Federal Employees v. Weinberger, 818 F.2d 935, 942 (D.C.Cir.1987) ("NFFE "), "the absence of a factual record militates against [reaching the constitutional issues], for it is clear that certain of the legal judgments yet to be rendered will hinge on findings of fact yet to be made with respect to the nature and scope of the drug testing program." There is no adequate factual record in this case because the District Court summarily concluded that appellant's claim did not raise issues of constitutional dimension. While the parties and amici curiae have attempted to furnish the essential details about the testing program in their submissions to this court, our review is limited to the information that was before the District Court. Because our review of the testing program "would be materially assisted by the development of a factual record and the district court's conclusion thereupon," Lucas v. Hodges, 730 F.2d 1493, 1501 (D.C.Cir.), vacated as moot, 738 F.2d 1392 (D.C.Cir.1984), we reverse the grant of summary judgment on this claim and remand for a "full exploration" by the District Court. Wylie v. District of Columbia, 634 F.2d 1356, 1357 (D.C.Cir.1980) (per curiam) (reversal required when summary judgment based upon incomplete record). ¹⁵

Although we recognize that factual determinations must be made by the District Court, "we can provide some guidance for the task to be tackled on remand." NFFE, 818 F.2d at 942. We note at the outset that neither the District nor the United States, as amicus curiae, has argued that the drug tests in this case are not "searches" or "seizures." Moreover, as noted above, the great weight of authority holds that compulsory drug tests are "searches" or "seizures" within the meaning of the Fourth Amendment.

The Fourth Amendment inquiry is not at an end, however, with a finding that the pretrial drug tests constitute "searches" or "seizures," for the Fourth Amendment proscribes only unreasonable "searches" or "seizures." In determining the standard of reasonableness applicable to a particular type of "search" or "seizure," a court must balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." O'Connor v. Ortega, --- U.S. ----, 107 S.Ct. 1492, 1499, 94 L.Ed.2d 714 (1987) (plurality opinion) (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983)); see also NFFE, 818 F.2d at 942. ¹⁶

In the instant case, the District advances the following argument to justify its testing program: there is a positive correlation between drug use and the likelihood that an arrestee released on bail will commit crimes or fail to appear for scheduled court dates; it is therefore necessary to test certain arrestees to determine the likelihood of their using drugs when released on bail; when deemed necessary, a Commissioner may condition release on periodic drug testing and treatment; then, if users fail to comply with their...