Dimeo v. Griffin, No. 89-3025

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore BAUER, Chief Judge, and CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION and KANNE; POSNER; HARLINGTON WOOD, Jr., Circuit Judge, with whom BAUER, Chief Judge, and FLAUM, and RIPPLE; Posner
Citation943 F.2d 679
Decision Date26 September 1991
Docket NumberNo. 89-3025
Parties, 120 Lab.Cas. P 56,789, 6 IER Cases 1288, 6 IER Cases 1440 Vincent DIMEO, et al., Plaintiffs-Appellees, v. Farrell J. GRIFFIN, in his official capacity as Chairman of the Illinois Racing Board, and David L. Diana, et al., in their official capacities as members of the Illinois Racing Board, Defendants-Appellants.

Page 679

943 F.2d 679
60 USLW 2150, 120 Lab.Cas. P 56,789,
6 IER Cases 1288,
6 IER Cases 1440
Vincent DIMEO, et al., Plaintiffs-Appellees,
v.
Farrell J. GRIFFIN, in his official capacity as Chairman of
the Illinois Racing Board, and David L. Diana, et al., in
their official capacities as members of the Illinois Racing
Board, Defendants-Appellants.
No. 89-3025.
United States Court of Appeals,
Seventh Circuit.
Argued Sept. 11, 1990.
Decided Feb. 4, 1991.
Reargued En Banc June 11, 1991.
Decided Aug. 12, 1991.
As Amended Sept. 26, 1991.

Page 680

Harvey M. Grossman (argued), Alan K. Chen, Roger Baldwin Foundation, Steven R. Gilford, Scott J. Frankel, Mayer, Brown & Platt, Chicago, Ill., for plaintiffs-appellees.

Thomas A. Ioppolo, Asst. Atty. Gen. (argued), Chicago, Ill., for defendants-appellants.

Before BAUER, Chief Judge, and CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION and KANNE, Circuit Judges.

POSNER, Circuit Judge.

The Illinois Racing Board promulgated a rule that requires jockeys and other participants in horse races in Illinois to submit to random drug testing not founded on any suspicion of wrongdoing. A class action on behalf of these participants was brought

Page 681

against the Board, charging that the rule violated their Fourth Amendment right to be free from unreasonable searches. The district court granted a preliminary injunction. 721 F.Supp. 958 (N.D.Ill.1989). A panel of this court, by a divided vote, affirmed the district court, agreeing that the rule violated the Fourth Amendment. 924 F.2d 664 (7th Cir.1991). We granted rehearing en banc to enable the full court to consider the unclear, delicate, and important question of where the Fourth Amendment should be deemed to strike the balance between the interest of the state in using drug testing as a regulatory instrument and the interest of persons in preserving their physical privacy.

The operative word in the Fourth Amendment is "reasonable," the legal standard therefore is reasonableness, and the decision whether a particular public program that invades interests protected by the amendment is nonetheless reasonable, and therefore lawful, requires a judgmental, forward-looking, balance-striking, probabilistic assessment, rather than, as the plaintiffs would have it, a conclusive demonstration of measurable harms certain to be inflicted if the program is struck down. New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 740, 83 L.Ed.2d 720 (1985); Treasury Employees v. Von Raab, 489 U.S. 656, 674, 109 S.Ct. 1384, 1395, 103 L.Ed.2d 685 (1989); International Brotherhood of Teamsters v. Department of Transportation, 932 F.2d 1292, 1304-05 (9th Cir.1991); Willner v. Thornburgh, 928 F.2d 1185, 1187-88 (D.C.Cir.1991); Harmon v. Thornburgh, 878 F.2d 484, 487-88 (D.C.Cir.1989). The weaker the interest asserted, therefore, the less showing of countervailing harms the government must make. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 633, 109 S.Ct. 1402, 1421, 103 L.Ed.2d 639 (1989); Willner v. Thornburgh, supra, 928 F.2d at 1188 ("decreasing levels of intrusiveness require decreasing levels of justification"), 1190; Taylor v. O'Grady, 888 F.2d 1189, 1199 (7th Cir.1989); Thomson v. Marsh, 884 F.2d 113, 115 (4th Cir.1989) (per curiam). And since the plaintiff's interest--the privacy interest--cannot be quantified, neither need the regulatory interest be quantified. Although the appeal is from a preliminary injunction, the parties have asked us to decide the ultimate question, which is whether the drug-testing program violates the Fourth Amendment. Chicago Observer, Inc. v. City of Chicago, 929 F.2d 325, 329 (7th Cir.1991); Cronin v. U.S. Department of Agriculture, 919 F.2d 439, 445 (7th Cir.1990).

The facts that bear on the balance of the competing interests in this case, and therefore on the reasonableness of the challenged rule, are set forth in the panel majority opinion, and can be summarized briefly. Horse racing in Illinois, as everywhere else in the civilized world (as far as we know), is a heavily regulated activity, and this for three reasons. It is highly dangerous to jockeys and to their counterparts in harness racing, called drivers; it is a magnet for gambling; and it has an unsavory, or at least a shadowed, reputation, growing out of a long history of fixing, cheating, doping of horses, illegal gambling, and other corrupt practices. Phillips v. Graham, 86 Ill.2d 274, 286, 56 Ill.Dec. 355, 360, 427 N.E.2d 550, 555 (1981); Garifine v. Monmouth Park Jockey Club, 29 N.J. 47, 56-57, 148 A.2d 1, 5 (1959); U.S. Commission on the Review of the National Policy Toward Gambling, "Second Interim Report" 52, 54 (July 1976); cf. Marrone v. Washington Jockey Club, 227 U.S. 633, 33 S.Ct. 401, 57 L.Ed. 679 (1913). The second and third points are of course related. Gambling on horse races as on other sports and games has generally been illegal in this country, and illegal activities create and attract unsavory characters and methods: especially horse racing, because of the enormous sums bet on it. Illinois allows parimutuel betting (where the odds are determined automatically by the amount bet on each horse rather than set by bookmakers), but betting through bookmakers continues to flourish though illegal and the industry has never been able wholly to dispel an aura of scandal.

The Illinois Racing Board has a dual concern with the use of illegal drugs by participants in horse races. First is a concern

Page 682

with the personal safety of those participants, who might be injured or killed in accidents that would not have occurred but for such use. Second is a financial concern. Illinois derives tens of millions of dollars in tax revenues annually from parimutuel betting. Those revenues would fall if betting declined as a result of a belief by the public that the fairness of the races was being impaired because jockeys and other participants were using drugs. Pelling v. Illinois Racing Board, 214 Ill.App.3d 675, 158 Ill.Dec. 322, 325-26, 574 N.E.2d 116, 119-120 (1991).

Members of the Jockeys' Guild first approached the Illinois Racing Board in 1984 with expressions of concern about drug use by participants in horse races. In 1985 the Board adopted a pilot drug test screening program for jockeys and harness drivers; 17 percent tested positive for cocaine, marijuana, or both. The validity of the test methodology is challenged but there is doubtless some drug use among horse-race participants, for the Jockeys' Guild has instituted a drug counseling program for its members. In 1988 the Board, acting pursuant to a statute that gives it broad regulatory authority over horse racing in Illinois, adopted the rule challenged in this case. The plaintiffs do not argue that the enabling statute is invalid or that the rule is not authorized by it. Nor do they challenge the entire rule. They do not challenge the part that forbids horse-race participants to use on the grounds of any race track any illegal drug (technically, any "controlled substance" not lawfully prescribed by a physician). They challenge the method of enforcement--random drug testing, up to five times a year per participant. The individual is permitted to give his urine specimen in the (relative) privacy of a toilet stall, with a representative of the Board standing by but not actually watching the individual urinate.

The Fourth Amendment, as interpreted in the modern cases, protects privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Janik, 723 F.2d 537, 547-48 (7th Cir.1983). Urination is generally a private activity in our culture, though, for most men, not highly private. Men urinate side by side in public restrooms without embarrassment even though there is usually very little, and often no, attempt to partition the urinals. In hospitals and physicians' offices, urine samples of both men and women are generally taken by female nurses or technicians under conditions of privacy similar to those prescribed by the racing board's rule (there are female as well as male jockeys). The affront to the cluster of emotions that define the sense of privacy that is caused by the giving of a urine sample is not the same for everybody and of particular relevance here it is slight for people who for whatever reason are subject to frequent medical examinations. Boxers receive complete medical examinations before each match, which may be several times a year. Many Americans have an annual physical examination in which they provide a urine sample, expose their most private parts to inspections, and are poked, squeezed, and kneaded in these and other private places--all this with a minimum sense of embarrassment and certainly none of affront. Athletes (not limited to boxers), actors, and airline pilots are illustrative of the many types of worker whose job is of a character that requires the worker to submit to frequent medical examinations. As Hamlet said, "The hand of little employment hath the daintier sense." The less habituated a person is to undergoing medical or other intrusions into his private realm, the more sensitive he is apt to be to such intrusions; the more habituated he is to them, the less sensitive he is apt to be. A further point, which distinguishes the person who has frequent medical examinations because of illness from the person who has frequent medical examinations because his job requires it, is that the latter voluntarily trades away some of his privacy for other goods. Cf. Willner v. Thornburgh, supra, 928 F.2d at 1190, 1193. Self-selection will tend to allocate jobs in which privacy is limited to persons who value privacy less.

The plaintiffs do not doubt that the Board could if it wanted require them to undergo a complete medical examination

Page 683

before each race, and such an examination would require the giving of a urine specimen. The only difference would be the...

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26 practice notes
  • Morales v. Daley, No. H-00-1010.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • June 7, 2000
    ...that he is not engaging in a dangerous activity that would require information concerning his medical condition as in Dimeo v. Griffin, 943 F.2d 679, 684 (7th Cir.1991), nor is he seeking a sensitive informational position that would justify mandatory drug testing as in National Treasury Em......
  • U.S. v. Johnson, Nos. 97-2021
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 12, 1999
    ...on the field. Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995); see also Dimeo v. Griffin, 943 F.2d 679, 682-83 (7th Cir.1991) (en banc) (fourth amendment permits drug tests of jockeys and other horse race participants in light of the sport's dange......
  • Hill v. National Collegiate Athletic Assn., No. S018180
    • United States
    • United States State Supreme Court (California)
    • January 28, 1994
    ...or technicians under conditions of privacy similar to those prescribed by [athletic drug testing rules]." (Dimeo v. Griffin (7th Cir.1990) 943 F.2d 679, 13 For example, in the leading case of Schaill by Kross v. Tippecanoe County School Corp. (7th Cir.1988) 864 F.2d 1309, the federal court ......
  • University of Colorado Through Regents of University of Colorado v. Derdeyn, No. 92SC86
    • United States
    • Colorado Supreme Court of Colorado
    • November 1, 1993
    ...Bhd. of Elec. Workers, Local 1245 v. United States Nuclear Regulatory Comm'n (NRC), 966 F.2d 521, 525 (9th Cir.1992); Dimeo v. Griffin, 943 F.2d 679, 681 (7th Cir.1991) (en banc); National Fed'n of Fed. Employees v. Cheney, 884 F.2d 603, 608 CU advances alternative theories to support its c......
  • Request a trial to view additional results
26 cases
  • Morales v. Daley, No. H-00-1010.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • June 7, 2000
    ...that he is not engaging in a dangerous activity that would require information concerning his medical condition as in Dimeo v. Griffin, 943 F.2d 679, 684 (7th Cir.1991), nor is he seeking a sensitive informational position that would justify mandatory drug testing as in National Treasury Em......
  • U.S. v. Johnson, Nos. 97-2021
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 12, 1999
    ...on the field. Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995); see also Dimeo v. Griffin, 943 F.2d 679, 682-83 (7th Cir.1991) (en banc) (fourth amendment permits drug tests of jockeys and other horse race participants in light of the sport's dange......
  • Hill v. National Collegiate Athletic Assn., No. S018180
    • United States
    • United States State Supreme Court (California)
    • January 28, 1994
    ...or technicians under conditions of privacy similar to those prescribed by [athletic drug testing rules]." (Dimeo v. Griffin (7th Cir.1990) 943 F.2d 679, 13 For example, in the leading case of Schaill by Kross v. Tippecanoe County School Corp. (7th Cir.1988) 864 F.2d 1309, the federal court ......
  • University of Colorado Through Regents of University of Colorado v. Derdeyn, No. 92SC86
    • United States
    • Colorado Supreme Court of Colorado
    • November 1, 1993
    ...Bhd. of Elec. Workers, Local 1245 v. United States Nuclear Regulatory Comm'n (NRC), 966 F.2d 521, 525 (9th Cir.1992); Dimeo v. Griffin, 943 F.2d 679, 681 (7th Cir.1991) (en banc); National Fed'n of Fed. Employees v. Cheney, 884 F.2d 603, 608 CU advances alternative theories to support its c......
  • Request a trial to view additional results

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