now stands, tests for only one substance can show impairment; that substance is alcohol.
The National Institute on Drug Abuse of the U.S. Department of Health and Human Services states flatly that urinalysis testing can detect only prior drug use, not present impairment. "Although urine screening technology is effective in determining prior drug use, positive results of a urine screen do not prove intoxication or impaired performance. Drugs or their metabolites any appear in urine for several days, even weeks (depending upon the drug), without apparent impairment." National Institute on Drug Abuse, Consensus Summary: Interdisciplinary Approaches to the Problem of Drug Abuse in the Workplace 6 (1986).
G. Alternatives to Urinalysis
Defendants have presented no evidence that alternative methods of detecting drug use have been seriously considered or attempted. Defendants merely note that the nature of some jobs makes close supervision difficult because the employees often work alone. They also point out that drug tests result in some positive results when a trained observer would detect no impairment; in light of the foregoing that is both not surprising and not supportive of the government's position. Executive Order No. 12,564 requires that each agency's drug testing plan include "supervisory training to assist in identifying and addressing illegal drug use by agency employees." 3 C.F.R. 224, 226 (1987). However, this requirement is not incorporated in Department of Defense Directive 1010.9 or Interim Change I11 to Army Regulation 600-85.
Alternative methods of detecting drug use by employees are suggested by the plaintiffs, and criticized by the defendants, in the pleadings before the Court. The Court also finds helpful Judge Getzendanner's discussion of alternative methods of detection in Taylor v. O'Grady, 669 F. Supp. 1422, 1431-33 (N.D. Ill. 1987) (enjoining compulsory urine testing of county correctional officers).
The first alternative is observation by trained supervisors, which can detect chronic drug use and some on-duty drug use; it cannot detect off-duty use that does not manifest itself on the job. The second alternative is neurobehavioral testing, or testing the behavioral output of the brain to determine whether a worker's thinking or behavioral processes are impaired. There is no evidence in the record before the Court that defendants have seriously considered either alternative.
III. Conclusions of Law
Plaintiffs raise a number of constitutional and statutory issues in addition to their main challenge under the Fourth Amendment. The Court finds it unnecessary to address those issues at this juncture because Fourth Amendment considerations entitle plaintiffs to injunctive relief.
A. General Fourth Amendment Principles
The Fourth Amendment provides:
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.
It restricts the activities of civilian authorities as well as law enforcement officers, New Jersey v. T.L.O., 469 U.S. 325, 335-37, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985), and applies to the conduct of governmental employers. O'Connor v. Ortega, 480 U.S. 709, 107 S. Ct. 1492, 1497, 94 L. Ed. 2d 714 (1987) (plurality opinion).
Fourth Amendment does not restrict all searches and seizures by the government, but it does prohibit all unreasonable searches and seizures. Fourth Amendment analysis proceeds in two steps. First, the Court must determine whether the government's conduct constitutes a search or seizure by infringing upon a reasonable expectation of privacy. Compulsory urinalysis of public employees is a "search and seizure" in this Circuit. Jones v. McKenzie, 266 U.S. App. D.C. 85, 833 F.2d 335, 338 (D.C. Cir. 1987); National Federation of Federal Employees v. Weinberger, 260 U.S. App. D.C. 286, 818 F.2d 935, 942 (D.C. Cir. 1987) (NFFE). Second, if a search or seizure occurred, the Court must determine whether it was reasonable.
The interest served by the Fourth Amendment is the protection of the "privacy and security of individuals against arbitrary invasions by government officials." Camara v. Municipal Court, 387 U.S. 523, 528, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967). To safeguard this interest, "one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." Id. at 528-29. Even where warrantless searches are permitted, they ordinarily "must be based upon 'probable cause' to believe that a violation of the law has occurred." T.L.O., 469 U.S. at 340.
However, neither a warrant nor probable cause is an irreducible requirement of a valid search and seizure. "The fundamental command of the Fourth Amendment is that the searches and seizures be reasonable, and although 'both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, . . . in certain limited circumstances neither is required.'" Id. at 340 (quoting Almeida-Sanchez v. United States, 413 U.S. 266, 277, 37 L. Ed. 2d 596, 93 S. Ct. 2535 (1973) (Powell, J., concurring)).
There are even some rare circumstances where individualized suspicion is not necessary to validate a search. T.L.O., 469 U.S. at 342 n.8. Nevertheless, "some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure," id. (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 560-61, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976)), and "exceptions to the requirement of individualized suspicion are generally appropriate only where the privacy interests implicated by a search are minimal . . . ." T.L.O., 469 U.S. at 342 n.8.
Because the privacy intrusion represented by urinalysis is not "minimal ", Jones v. McKenzie, 833 F.2d at 339 ("strong privacy interests are involved"), the Fourth Amendment requires a heavy presumption against searches not based on individualized suspicion.
Only a compelling need of the government as employer could justify dispensing with the requirement of individualized suspicion. Random testing, of course, is based on no suspicion whatsoever, and there exist no grounds at all for suspecting that the search represented by urinalysis will turn up evidence. Indeed, the government's goal is to obtain no positive results.
The Supreme Court has been guided by a twofold inquiry in determining whether a search without a warrant or probable cause is reasonable: "first, one must consider 'whether the . . . action was justified at its inception.' Terry v. Ohio, 392 U.S. , 20, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [(1968)]; second, one must determine whether the search as actually conducted 'was reasonably related in scope to the circumstances which justified the interference in the first place,' ibid." T.L.O., 469 U.S. at 341.
This requirement that both the inception and scope of the intrusion be reasonable applies to the government workplace. O'Connor v. Ortega, 107 S. Ct. at 1502-03. Determining the "standard of reasonableness applicable to a particular class of searches requires 'balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. '" Id. at 1499 (quoting United States v. Place, 462 U.S. 696, 703, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983)).
The D.C. Circuit elaborated on this inquiry in the context of compulsory urinalysis in NFFE :
On the one side of this balance, in the matter at hand, are the employees' reasonable expectations of privacy -- those expectations which society is "prepared to recognize as legitimate." On the other side of the balance is "the governmental interest [in] the efficient and proper operation of the workplace." This balancing inquiry has two reference points: the court must determine first "whether the [search] was justified at its inception "-- i.e., whether "reasonable grounds [exist] for suspecting that the search will turn up evidence" of work-related drug use; and second, "whether the search as actually conducted 'was reasonably related in scope to the circumstances which justified the interference in the first place,'" -- i.e., whether "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive."