Penny v. Kennedy

• Decision Date: 04 October 1990
• Docket Number: 86-6281,Nos. 86-6280,s. 86-6280
• Citation: 915 F.2d 1065
• Parties: Roy PENNY, et al., Plaintiffs-Appellees, (86-6280), v. Thomas KENNEDY, Commissioner of Fire and Police of the City of Chattanooga, Tennessee, et al., Defendants-Appellants. Roland M. LOVVORN, et al., Plaintiffs-Appellees, (86-6281), v. The CITY OF CHATTANOOGA, TENNESSEE, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1065

915 F.2d 1065

5 Indiv.Empl.Rts.Cas. 1290

Roy PENNY, et al., Plaintiffs-Appellees, (86-6280), v. Thomas KENNEDY, Commissioner of Fire and Police of the City

of Chattanooga, Tennessee, et al., Defendants-Appellants.

Roland M. LOVVORN, et al., Plaintiffs-Appellees, (86-6281), v. The CITY OF CHATTANOOGA, TENNESSEE, et al., Defendants-Appellants.

Nos. 86-6280, 86-6281.

United States Court of Appeals Sixth Circuit.

Argued Dec. 7, 1988.

Decided Oct. 4, 1990.

Michael A. McMahan, Randall L. Nelson (argued), Chattanooga, Tenn., for defendants-appellants.

Charles Dupree (argued), Chattanooga, Tenn., for plaintiffs-appellees in No. 86-6280.

Thomas Woodley (argued), Mulholland & Hickey, Washington, D.C., for plaintiffs-appellees in No. 86-6281.

Donald Pailen, Corp. Counsel, Terri L. Hayles, Asst. Corp. Counsel, Samuel C. Gardner, amicus counsel, Detroit, Mich., amicus curiae, City of Detroit.

John R. Fisher, James E. Phillips, Patricia A. Davidson, Vorys, Sater, Seymour, & Pease, Columbus, Ohio, amicus curiae, F.O.P.

Daniel J. Popeo, Paul D. Damenar, Vicki S. Marani, Washington Legal Foundation, Washington D.C., amicus curiae, Washington Legal Foundation.

Before MERRITT, Chief Judge; KEITH, KENNEDY, MARTIN, JONES, KRUPANSKY, WELLFORD, MILBURN, GUY, NELSON, RYAN, BOGGS and NORRIS, Circuit Judges; LIVELY ^* and ENGEL, ^** Senior Circuit Judges.

ENGEL, Senior Circuit Judge.

These consolidated en banc appeals resulted from separate actions challenging the constitutionality of proposed mandatory urinalysis of the City of Chattanooga's fire fighters and police officers without reasonable cause or suspicion to believe that the employees so tested were using controlled substances. See Lovvorn v. City of Chattanooga, Tenn., 647 F.Supp. 875 (E.D.Tenn.1986), as to the fire fighters, and Penny v. Kennedy, 648 F.Supp. 815 (E.D.Tenn.1986), concerning Chattanooga's police officers. The particularized facts in each of these appeals have been carefully summarized both in the reported district court opinions and in the now-vacated, ¹ but nonetheless reported, panel opinions. See Lovvorn v. City of Chattanooga, Tenn., 846 F.2d 1539 (6th Cir.1988), and Penny v. Kennedy, 846 F.2d 1563 (6th Cir.1988).

In separate but concurrently considered opinions, the United States District Judge for the Eastern District of Tennessee concluded that the planned mandatory department-wide urinalysis testing of the individuals in question constituted a search and therefore was subject to the protections embodied in the fourth amendment as made applicable to the states by the fourteenth amendment. While recognizing Chattanooga's compelling need to ensure that fire fighters and police officers are free of impairment by the use of drugs in the performance of their tasks, the district judge held that the reasonableness of the search on a department-wide basis had not been established. The district court further concluded that under existing Supreme Court and Sixth Circuit authority the program was violative of the fourth amendment in the absence of any reasonable individualized suspicion that the employee subject to testing is using illegal drugs. In so holding, the trial judge was careful to exclude urinalysis testing conducted as part of the routine physical examinations administered to all employees, except where such testing might be a pretext for an otherwise unreasonable search and seizure. Lovvorn, 647 F.Supp. at 881 n. 7.

The district court therefore entered injunctions in each case prohibiting drug tests on a wholesale basis. As to the fire fighters, the trial judge concluded that "[t]he tests which the City proposes at this time to administer to all Chattanooga fire fighters would violate the fire fighters' rights under the fourth amendment. This is not to say, however, that the City is foreclosed from testing fire fighters for drugs. The City may conduct such tests if it has a reasonable suspicion to do so; the scope of the tests is related to the objective engendered by the reasonable suspicion; and the intrusiveness of the tests is minimized to the extent it can be without jeopardizing the integrity of the tests." Lovvorn, 647 F.Supp. at 883.

Likewise, as to the police officers, the trial judge held that "[t]here is no real difference in the balance of the respective rights of the City and the police officers under the fourth amendment from that in the fire fighters case. For reasons that are so obvious as to not require elaboration, the public does not want a police force that uses illegal drugs. On the other hand, police officers, like fire fighters, are possessed of a certain level of constitutional protection which cannot be lowered. For the reasons stated by this Court in its opinion in the fire fighters case, the defendants must have reasonable suspicion before they may test police officers for illegal drugs. On the facts presented to this Court, there is no reasonable suspicion which would justify the administration of these tests at this time. Therefore, the current tests violate the fourth amendment rights of Chattanooga police officers.... As was emphasized in the Court's opinion in the fire fighters case, this does not mean that the Chattanooga Police Department may not administer urine tests to its police officers for the presence of illegal drugs. This decision does mean that if such tests are given, they must be given on reasonable suspicion, their scope must be related to their objective, and they must not be excessively intrusive." Penny, 648 F.Supp. at 817.

Appeals were taken in each case and were assigned to a regularly constituted three-judge panel of this court. In separate but concurrent opinions, with Judge Guy dissenting in each, the decisions of the district judge were affirmed. Our full court granted a rehearing en banc and after further briefing, oral arguments were held. Since it was apparent that similar cases were pending before the United States Supreme Court at that time, the parties and the full court agreed that further decisions in these cases would be deferred until the Supreme Court decisions were forthcoming. Those decisions have been issued and indeed have proved most useful to the resolution of the issues presented in these appeals. See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), and Skinner v. Railway Labor Exec. Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).

Based upon the Supreme Court decisions in Von Raab and Skinner, we conclude that certain issues in the current appeals are no longer subject to question. First, it is altogether evident that mandatory urinalysis testing, conducted pursuant to state action, infringes an employee's reasonable expectation of privacy and therefore constitutes a search under the fourth amendment. Further, it is evident that as to the employees involved in each of these opinions, ² Chattanooga has a compelling interest in ensuring that the duties of fire fighters and police officers are performed free of any risk of impairment by the use of illegal drugs. Equally applicable in this case is the Supreme Court's statement in Skinner that employees "subject to the tests discharge duties fraught with such risks of injury to others [and themselves] that even a momentary lapse of attention can have disastrous consequences." 109 S.Ct. at 1419.

Next, it is apparent that the district court's principal conclusion that drug-testing of these employees must be based upon particularized suspicion of drug or alcohol use would seriously impede the employer's ability to obtain information needed to advance the established compelling interest. Without reviewing all of the rationale or the various considerations marshaled by the majority in Von Raab and Skinner, it is sufficient to hold here that the district court's conclusion that this employer must require a reasonable and particularized suspicion as a precondition to any such testing must perforce fail. The district court's rulings in this respect must be reversed.

Because in each instance the district court and the prior panel held that the entire urinalysis program violated the constitution, it was not necessary fully to address other concerns that had been raised in the district court. In the fire fighters case in particular, the plaintiffs alleged that the proposed 1986 testing program, which was to look like the 1985 testing, was to be conducted without adequately established standards to protect against potential abuse. Although Von Raab and Skinner generally validate urinalysis for individuals in the categories of plaintiffs here, it by no means necessarily follows that all of the protections of the fourth amendment have thereby been fully satisfied regardless of the integrity of the test and of the manner and means by which the test is given. So much is apparent in the language of Justice Kennedy in Von Raab, where he observed that the intrusion of the drug-testing program challenged there was defined narrowly and specifically, particularly since the employee subject to testing "knows that he must take a drug test, and is likewise aware of the procedures the [Customs] Service must follow in administering the test. A covered employee is simply not subject 'to the discretion of the official in the field.' " Von Raab, 109 S.Ct at 1391 (quoting Camara v. Municipal Court, 387 U.S. 523, 532, 87 S.Ct. 1727, 1732-33, 18 L.Ed.2d 930 (1967)); see also Skinner, 109 S.Ct. at 1422 ("In light of the limited discretion exercised by the railroad employers under the regulations ... we believe that it is reasonable to conduct such tests in the absence of a warrant or reasonable suspicion that any particular employee may be impaired.").

Such concerns for confined discretion were also clearly on the mind of the district judge here in Lovvorn when he stated that "clearly defined standards are lacking in this case. No standards for the frequency, purpose,...