Lovvorn v. City of Chattanooga, Tenn., CIV-1-86-389.

• Decision Date: 13 November 1986
• Docket Number: No. CIV-1-86-389.,CIV-1-86-389.
• Citation: 647 F. Supp. 875
• Parties: Roland M. LOVVORN, Richard Jarvis and Michael S. Kennedy, on their behalf and behalf of all others similarly situated, Plaintiffs, v. The CITY OF CHATTANOOGA, TENNESSEE; Gene Roberts, Individually and as the Mayor of the City of Chattanooga, Tennessee; Thomas Kennedy, Paul Clark, James Eberle and John Franklin, Individually and as Commissioners for the City of Chattanooga, Tennessee; and Jerry W. Evans, Individually and as the Chief of the Fire Department of the City of Chattanooga, Tennessee, Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

647 F. Supp. 875

Roland M. LOVVORN, Richard Jarvis and Michael S. Kennedy, on their behalf and behalf of all others similarly situated, Plaintiffs, v. The CITY OF CHATTANOOGA, TENNESSEE; Gene Roberts, Individually and as the Mayor of the City of Chattanooga, Tennessee; Thomas Kennedy, Paul Clark, James Eberle and John Franklin, Individually and as Commissioners for the City of Chattanooga, Tennessee; and Jerry W. Evans, Individually and as the Chief of the Fire Department of the City of Chattanooga, Tennessee, Defendants.

No. CIV-1-86-389.

United States District Court, E.D. Tennessee, S.D.

November 13, 1986.

Thomas A. Woodley, Erick J. Genser, Gregory K. McGillivary, Mulholland & Hickey, Washington, D.C., Jerry H. Summers, Summers & McCrea, Chattanooga, Tenn., for plaintiffs.

Eugene N. Collins, Randall L. Nelson, Chattanooga, Tenn., for defendants.

MEMORANDUM

EDGAR, District Judge.

This action is brought by three fire fighters employed by the City of Chattanooga, against the City, the members of the City's Board of Commissioners, and the Chief of the City's Fire Department. Plaintiffs seek injunctive and declaratory relief under 42 U.S.C. §§ 1983 and 1988, various amendments to the Constitution of the United States including the fourth and fourteenth, and 28 U.S.C. §§ 2201 and 2202. Plaintiffs have sought to have this case certified as a class action under Federal Rule of Civil Procedure 23. However, since all parties have conceded that class action certification will not further any important purpose in this litigation, the Court finds it unnecessary to rule on plaintiffs' certification request. The case will not, therefore, proceed as a class action.

The Chattanooga Fire Department has notified all of its personnel that they will soon be subjected to a urinalysis test for drugs. Plaintiffs ask that these tests be enjoined and that this Court enter a declaratory judgment that the proposed tests are unconstitutional.

FACTS:

A recitation of some recent history is here necessary. In 1983, Tom Kennedy was elected as Commissioner of Fire and Police for the City of Chattanooga. In this position, he is responsible for running the Chattanooga Fire and Police Departments, subject to the overall supervision of a five-member Board of Commissioners, of which he is a member. The Chattanooga Fire Department includes not only fire fighting personnel but personnel who provide emergency medical services to the City as well. In early 1984, some "civilian" employees of either the Police or Fire Department were "caught or almost caught" smoking marijuana and were appropriately disciplined. Apparently as a result of this, Commissioner Kennedy, along with Police Chief Gene McCutcheon and then Fire Chief A.O. Powell, decided to administer urine tests for marijuana to all members of the Chattanooga Fire and Police Departments.¹ Word that this was going to occur was put out through the "grapevine" but formal notice of the testing was not given until shortly before the testing was to begin. On April 16, 1985, then Fire Chief A.O. Powell sent a memorandum to all fire fighters advising that while on duty they were to report to Allied Clinical Laboratories, an independent laboratory, for blood testing beginning April 22, 1985. In late April and early May 1985, groups of fire fighters were taken to Allied Labs and were required to give both blood and urine samples.² Commissioner Kennedy had "information" that one or more firemen to be tested were carrying clean urine samples in balloons in their pants. Therefore, some of the initial donors were "patted down" in an effort to determine if they were carrying anything which could result in a switched or an adulterated urine sample. Except for fifteen or less donors, all urine samples were given by the firemen under the direct observation of a Deputy or Assistant Fire Chief. Allied Laboratories subjected the samples to the enzyme multiple immunoassay technique (EMIT) test, which on the average is about ninety-five percent accurate.³ All uniformed fire fighters were tested. The urine tests were mandatory. One fire fighter was terminated for refusing to submit to the test.

None of the methods for testing, nor any of the standards for analyzing the urine specimens, nor any procedures for implementation of discipline and release of testing information were ever put in writing.

There is some confusion as to the precise test result that triggered disciplinary action. Urine testing 100 nanograms of cannaboids (ng) per milliliter (ml) or more was considered positive. Urine testing from 50 to 100 ng/ml was considered "trace." Urine testing from 20 to 50 ng/ml was considered "minus trace." All fire fighters testing at minus trace or above, e.g., over 20 ng/ml, were retested.

Those fire fighters with two positive EMIT tests were then suspended from their jobs, informed of the test results, and given a hearing before Chief Powell. Their names were released to the press at the time of their suspension. The suspended fire fighters were informed of the charge against them, and at the hearing before Chief Powell they were permitted to make whatever explanation they could of the test results. These fire fighters were cited for disobeying Chattanooga Fire Department Rules and Regulations § 38, General Conduct, 38.11 which states:

No member shall report for, or be on duty under the influence of any intoxicating liquors, drugs or compounds, nor shall he absent himself from duty, or render himself unfit to fully perform his duties for reasons, attributable to, or produced by indulgence in intoxicants.

Commissioner Kennedy disciplined these fire fighters based on Powell's recommendation. The discipline included probation, suspension, demotion in rank, or termination depending upon the numerical level of test results and the rank of the fire fighter.

As a result of the May tests, and after some additional tests in August and September 1985, ten employees were terminated by the City, five resigned, and seventeen were placed on probation. Fire fighters who tested trace or minus trace were put on probation and subjected to future unannounced drug screens. A number of the terminated fire fighters took advantage of their right under a City ordinance for a post-termination hearing before the full Chattanooga City Commission. The Commission upheld the terminations. Several of these fire fighters have taken their cases, pursuant to state law, to the Chancery Court of Hamilton County, Tennessee where the cases will be reviewed on the record.

After the May testing was complete and most of the discipline administered, Commissioner Kennedy decided to have the positive EMIT tests confirmed by Compu-chem Laboratories, in Raleigh, North Carolina. Compu-chem performed gas chromotography/mass spectrometry (GCMS) tests on the samples. These tests, which are virtually one hundred percent accurate,⁴ apparently confirmed the results of the earlier administrated EMIT tests.

Several of the fire fighters who were terminated in 1985 participated in a drug rehabilitation program at Valley Psychiatric Hospital. That treatment was covered by the City's health insurance program. A number of these employees have been rehired and are subject to unannounced urine retests.

Because one of the rehired fire fighters again tested positive, and because Commissioner Kennedy was told by one or more of the fire fighters who were disciplined in 1985 that some fire fighters in 1985 had switched urine samples, Commissioner Kennedy in the summer of 1986 decided to give mandatory urine tests to the entire Fire Department once again. These tests would not be limited to those fifteen or less fire fighters who gave unobserved samples in 1985, but would again encompass the entire Fire Department. The Commissioner has not conducted any kind of conventional investigation of drug use in the Chattanooga Fire Department nor has there been any objective indication that the performance of any member of the department, or the department as a whole, has been affected by the use of drugs.

As stated above, there are no written procedures or standards for the proposed tests. The parties have stipulated that the proposed tests will be performed in substantially the same manner as they were in 1985. However, Commissioner Kennedy now states that a 50 nanogram (ng) per milliliter (ml) standard will be used as a "bright line" test for passing or failing, and that there will be no trace or minus trace categories. It is not clear whether GCMS test confirmation would be obtained prior to the administration of any discipline.

It is the proposed 1986 testing that forms the basis of this lawsuit.

DISCUSSION:

A. Fourth Amendment

The fourth amendment to the United States Constitution states in its entirety:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The fourth amendment prohibits unreasonable searches and seizures by the states by virtue of the fourteenth amendment. This includes municipalities and municipal officials. Mapp v. Ohio, 367 U.S. 643 (1961); Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949).

The fourth amendment protects people, not places. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). Since a blood test is subject to fourth amendment constraints, Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908 (1966), it seems clear that a urine test likewise amounts to a search and seizure from a person within the fourth amendment. Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.1986); McDonell v. Hunter, 612 F.Supp. 1122 (S.D. Iowa 1985); Allen v. City of Marietta, 601 F.Supp. 482 (N.D.Ga.1985). The...