McCloskey v. Honolulu Police Dept., 14221

• Decision Date: 25 October 1990
• Docket Number: No. 14221,14221
• Citation: 71 Haw. 568,799 P.2d 953
• Parties: , 5 IER Cases 1577 Shanda L. McCLOSKEY, Plaintiff-Appellant, v. HONOLULU POLICE DEPARTMENT; Douglas G. Gibb, Individually and in His Capacity as Chief of Police of the Honolulu Police Department; Frank Sua, Individually and in His Capacity as Major of Internal Affairs of the Honolulu Police Department; Robert Harper, Individually and in His Capacity as Major of Personnel of the Honolulu Police Department; Frank F. Fasi, Mayor of the City and County of Honolulu; City and County of Honolulu, Defendants-Appellees, and John Does 1-10; Jane Does 1-10; Doe Business Entities Partnerships 1-10; Doe Unincorporated Organizations 1-10; and Doe Governmental Agencies 1-10, Defendants.
• Court: Hawaii Supreme Court

Page 953

799 P.2d 953

71 Haw. 568, 5 IER Cases 1577

Shanda L. McCLOSKEY, Plaintiff-Appellant, v. HONOLULU POLICE DEPARTMENT; Douglas G. Gibb, Individually

and in His Capacity as Chief of Police of the Honolulu

Police Department; Frank Sua, Individually and in His

Capacity as Major of Internal Affairs of the Honolulu Police

Department; Robert Harper, Individually and in His Capacity

as Major of Personnel of the Honolulu Police Department;

Frank F. Fasi, Mayor of the City and County of Honolulu;

City and County of Honolulu, Defendants-Appellees,

and

John Does 1-10; Jane Does 1-10; Doe Business Entities

Partnerships 1-10; Doe Unincorporated

Organizations 1-10; and Doe

Governmental Agencies 1-10, Defendants.

No. 14221.

Supreme Court of Hawai'i.

Oct. 25, 1990.

Syllabus by the Court

1. Article I, section 6, of the Hawaii Constitution guarantees a right to privacy which protects an individual's interests both in avoiding disclosure of protected personal matters and in freely making certain kinds of important personal decisions.

2. The court need not decide in this case whether drug testing of a urine sample required as a condition of government employment impinges on the individual's right to privacy.

3. The government may constitutionally infringe upon a fundamental right such as the right to privacy in order to serve a compelling state interest by the least drastic means available.

4. Public safety, police safety and maintaining an effective police force are each compelling state interests, and the Honolulu Police Department's (HPD) drug testing program is the least restrictive method to achieve a drug free HPD, thereby achieving these compelling interests.

5. HPD's drug testing program requiring police officers to provide urine samples for testing involves searches under the Hawaii Constitution.

6. Police officers have a diminished expectation of privacy in respect to the intrusions of HPD's drug testing program, and HPD's drug testing program is tailored to minimize intrusions into privacy.

7. HPD's drug testing of police officers is reasonable under article I, section 7, of the Hawaii Constitution because the government's interest in public safety, police safety and maintaining an effective police force outweighs the intrusion upon the individual's privacy.

Elizabeth Jubin Fujiwara (Ronald T. Fujiwara, of counsel, Fujiwara & Fujiwara and Christine Kurashige, with her on the briefs), Honolulu, for plaintiff-appellant.

Jonathan Chun, Deputy Corp. Counsel, Office of Corp. Counsel, City and County of Honolulu, Honolulu, for defendants-appellees.

Daniel R. Foley, Honolulu, on the brief, for amicus curiae American Civil Liberties Union of Hawaii Foundation.

Before LUM, C.J., and PADGETT, HAYASHI and WAKATSUKI, JJ., and TANAKA, Intermediate Court of Appeals Associate Judge, in Place of MOON, J., disqualified.

LUM, Chief Justice.

This court is called upon to decide whether the drug testing program of the Honolulu Police Department (HPD) violates the Hawaii Constitution. We conclude that neither the right to privacy of article I, section 6, nor the right to be free of unreasonable searches of article I, section 7, is infringed upon by the HPD's program of urine testing.

I.

Plaintiff-Appellant Shanda McCloskey (Appellant) has been a police officer since October 1984, assigned to the patrol division. Before being hired, she submitted to an extensive investigation of her personal background and qualifications, including criminal and traffic history, prior employment, psychological profile, and neighborhood and personal references. She also submitted to a pre-employment physical for which she produced a urine sample for testing.

Police officers are required to follow prescribed rules and regulations, and a code of ethics regarding their public and private life. They are required to conduct themselves so as not to bring disrepute upon HPD, to maintain themselves mentally and physically, and to avoid the use of drugs and narcotics. Furthermore, as police officers, they must always be mentally and physically alert while driving motor vehicles, and must exercise good judgment in the use of guns.

II.

In response to concerns of illegal drug use within the police department, HPD implemented, in October 1986, a drug testing program. It required police officers to submit to drug tests on either a random, frequent, or regular basis, depending on the officer's duties.

An officer being tested must produce a urine specimen, in the privacy of a bathroom stall. No observation by a monitor is needed or used. Potential problems of adulteration or switching of urine samples are dealt with both by testing the temperature and specific gravity of the sample, and by dyeing the water in the toilet blue to prevent use of that water.

The samples are identified only by a control number, and a strict chain of custody procedure is utilized whenever the samples are transported. Half of each sample is forwarded for testing to an independent laboratory and half retained at HPD. Upon receiving the urine sample, the laboratory tests it only for indications of marijuana and cocaine use. Although urine tests can reveal any number of things about a person such as pregnancy, the samples taken by HPD are tested only for evidence of illegal drug use.

To prevent false reports of the presence of drugs, the laboratory performs confirmatory tests on any specimen testing positive. On receiving a positive test report, HPD sends the retained sample to a different independent laboratory for a confirmatory test. Only if the sample again tests positive, is it considered to be positive for drug use by HPD.

After a sample tests positive, the Internal Affairs Division of HPD administratively investigates whether there is a legitimate reason why the officer's urine tested positive for drugs. The investigation includes analyzing a list of medications taken by the officer for a medical determination on whether they could have caused a false positive result. All reports and test results are kept confidential by HPD.

Under the HPD program, on first testing positive an officer is not disciplined but is required to enroll at an approved drug abuse program at the officer's own expense. A second positive test results in termination proceedings which can mean the end of the officer's employment with HPD.

Despite orders to submit to drug testing on several occasions, Appellant refused. As a result, HPD required her to surrender her police badge, service revolver, identification card and uniform, and assigned her to a desk job.

In July 1989, the circuit court held a declaratory relief hearing wherein Appellant sought an injunction. The court denied the request for an injunction against HPD's testing program, and this appeal was taken.

III.

Appellant makes no challenge based upon the United States Constitution. However, before passing upon her constitutional challenges under the Hawaii Constitution, we first note that the United States Supreme Court has expressly held that drug screening tests at the work place do not per se violate the fourth amendment to the federal constitution. The Court rejected the requirement of individualized suspicion and held that public safety outweighs the minimal intrusion imposed upon employees by urine testing. See Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). In addition, a number of other courts have upheld drug testing of police officers. ¹

IV.

Appellant contends that HPD's drug testing policy violates her right of privacy as guaranteed by article I, section 6, of the Hawaii Constitution.

A.

Appellant first argues that the framers intended to limit government intrusion into matters of informational and personal autonomy and, unless a compelling state interest exists coupled with a showing that less restrictive alternatives are unavailable, no such intrusion is justified.

Article I, section 6, of the Hawaii Constitution reads:

The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right.

The assembly of the Constitutional Convention of Hawaii of 1978 which adopted this right of privacy reported that:

By amending the Constitution to include a separate and distinct privacy right, it is the intent of your Committee to insure that privacy is treated as a fundamental right for purposes of constitutional analysis. Privacy as used in this sense concerns the possible abuses in the use of highly personal and intimate information in the hands of government or private parties but is not intended to deter the government from the legitimate compilation and dissemination of data. More importantly, this privacy concept encompasses the notion that in certain highly personal and intimate matters, the individual should be afforded freedom of choice absent a compelling state interest. This right is similar to the privacy right discussed in cases such as Griswold v. Connecticut, 381 U.S. 479 [85 S.Ct. 1678, 14 L.Ed.2d 510] (1965), Eisenstadt v. Baird, 405 U.S. 438 [92 S.Ct. 1029, 31 L.Ed.2d 349] (1972), Roe v. Wade, 410 U.S. 113 [93 S.Ct. 705, 35 L.Ed.2d 147] (1973), etc. It is a right that, though unstated in the federal Constitution, emanates from the penumbra of several guarantees of the Bill of Rights. Because of this, there has been some confusion as to the source of the right and the importance of it. As such, it is treated as a fundamental right subject to interference only when a compelling state interest is demonstrated. By inserting clear and specific language regarding this right into the Constitution, your Committee intends to alleviate any possible confusion over the source of the right and the existence of it.

Comm. of the Whole...