Penny v. Kennedy

846 F.2d 1563, 3 I.E.R. Cas. (BNA) 691, 1988 U.S. App. LEXIS 6679, 46 Empl. Prac. Dec. (CCH) 37,973, 1988 WL 50743
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 23, 1988
DocketNo. 86-6280
StatusPublished
Cited by10 cases

This text of 846 F.2d 1563 (Penny v. Kennedy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Penny v. Kennedy, 846 F.2d 1563, 3 I.E.R. Cas. (BNA) 691, 1988 U.S. App. LEXIS 6679, 46 Empl. Prac. Dec. (CCH) 37,973, 1988 WL 50743 (6th Cir. 1988).

Opinions

BOYCE F. MARTIN, Jr., Circuit Judge.

The single issue presented in this appeal is whether the City of Chattanooga’s mandatory urinalysis testing of its police officers, on a department-wide basis, without reasonable cause or suspicion to believe that the police officers tested used controlled substances, violates the plaintiffs’ rights under the fourth amendment to the United States Constitution. Six Chattanooga police officers brought this action against the City and its Commissioner of Fire and Police, Tom Kennedy. The defendants appeal the district court's decision enjoining the urinalyses as violative of the fourth amendment. 648 F.Supp. 815. Although filed and heard separately, this case [1565]*1565is essentially a companion case to Lovvorn, et al. v. The City of Chattanooga, et al. (the “fire fighters” case), [(846 F.2d 1539 (6th Cir.) ], which held unconstitutional the City of Chattanooga’s proposed mandatory urine testing of its fire department.

The facts in this case are very similar to those in the fire fighters case, and there is little, if any, dispute as to the facts relevant to our analysis here. Mandatory department-wide urine tests were first administered to all members of the Chattanooga Police Department beginning in early March 1985. The police officers, who were given four to six days’ notice of the test, were tested when they took their “in service” training. Approximately fifty percent of the tests were observed by police department personnel. Police Chief Eugene McCutcheon changed his policy to require observation when one officer, who had tested positive, told him that it was possible for an officer being tested to switch a “clean” sample of the officer’s urine. Chief McCutcheon had initiated the 1985 tests because of the arrest and conviction of two police officers on drug-related offenses in previous years. Also, on two or three other occasions, the department had acquired independent information that officers were using illegal drugs.

Of the 360 officers in the Chattanooga Police Department, only two tested positive for marijuana in the 1985 tests. According to the factual findings of the district court, a close monitoring of these individuals’ personnel records and behavior patterns prior to the time the tests were administered would have provided the City with “reasonable suspicion” to require these two officers to submit to urine tests for drugs. Prior to the testing of these two officers in 1985, in fact, Chief McCutcheon and other police department personnel strongly suspected one of them of drug dealing and had been conducting surveillance of that officer.

In 1986, defendants initiated a new round of mandatory tests for the entire police department based on the following information: (1) a statement by one of the two officers who tested positive in 1985 that it was possible to switch urine samples; (2) “rumors” of switched urine samples in the 1985 tests; (3) a tip from the Federal Bureau of Investigation that an officer of the department had been in contact with a drug dealer; (4) a statement made to Chief McCutcheon by an officer who admitted using marijuana (and was terminated) that “several” police officers used marijuana; and (5) a statement made to Commissioner Kennedy by a police officer who had gone through a drug rehabilitation program that there had been some switched samples in the 1985 drug tests.

Despite this information, Chief McCut-cheon stated before the trial of this case that the Chattanooga Police Department had no drug problem. By the conclusion of the trial, he still acknowledged that there was no drug problem in “ninety percent” of the department. No objective evidence of a drug problem was presented to the district court.

For the reasons stated by this court in our opinion in Lovvorn, we hold that the compulsory urinalysis of police officers constitutes a “search and seizure” within the meaning of the fourth amendment. In doing so, we join other circuits in holding that mandatory urinalyses of public sector employees constitutes a “search.” See National Fed’n of Fed. Employees v. Weinberger, 818 F.2d 935 (D.C.Cir.1987); National Treasury Employees Union v. Von Raab, 816 F.2d 170, 176 (5th Cir.1987), cert. granted, — U.S. -, 108 S.Ct. 1072, 99 L.Ed.2d 232 (1988); McDonell v. Hunter, 809 F.2d 1302, 1307 (8th Cir.1987); Division 241 Amalgamated Transit Union v. Suscy, 538 F.2d 1264, 1266-67 (7th Cir.), cert. denied, 429 U.S. 1029, 97 S.Ct. 653, 50 L.Ed.2d 632 (1976); cf. Shoemaker v. Handel, 795 F.2d 1136, 1142 (3d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 577, 93 L.Ed.2d 580 (1986).

Having said that mandatory urinalysis constitutes a search, we turn now to the critical question of whether such a search of police officers is unreasonable. Qualification as a “search” only ... begin[s] the inquiry into the standards governing such searches,” for the fourth amendment pro[1566]*1566scribes only “unreasonable searches and seizures.” New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 740, 83 L.Ed.2d 720 (1985). To determine whether the mandatory urinalysis of police officers is “reasonable,” we shall employ the same analysis we used in Lovvom. Thus, we seek to balance the constitutional liberties of the police officers and the legitimate interests of the government in “the efficient and proper operation of the work place.” O’Connor v. Ortega, 480 U.S. -, -, 107 S.Ct. 1492, 1501, 94 L.Ed.2d 714, 727 (1987).

Like fire fighters, the police officers reasonably expect that they will not be compelled to donate urine samples. They also reasonably expect that their urine will not be exposed to sophisticated chemical analyses that will provide the tester with an abundance of personal information about the officer.

On the other hand, we recognize that the City of Chattanooga possesses compelling reasons for determining whether any of its officers are using illegal drugs. We agree with the district court that it is obvious that the public does not want a police force that is charged with enforcing the laws to be using drugs in violation of the law. Moreover, police officers, like fire fighters, are often involved in emergency situations where it is critical that their perception, decision-making abilities, short-term memory, motor skills, and judgment not be impaired for any reason.

As we noted in our opinion in Lovvom, the Supreme Court has explained that, when conducting a balancing test of the government’s and the individual’s interests, “[c]ourts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979).

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846 F.2d 1563, 3 I.E.R. Cas. (BNA) 691, 1988 U.S. App. LEXIS 6679, 46 Empl. Prac. Dec. (CCH) 37,973, 1988 WL 50743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/penny-v-kennedy-ca6-1988.