of his position, so long as there is "reasonable suspicion" that he uses drugs. It does not, however, distinguish between on-duty and off-duty drug use or impairment.
In Bangert v. Hodel, 705 F. Supp. 643 (D.D.C. 1989) this Court held that, as a general rule, reasonable suspicion testing was constitutional as long as there was individualized suspicion of on duty drug use or drug related job impairment. Id. at 650. See also, Hartness v. Bush, 712 F. Supp. 986, slip. op. at 16 (D.D.C. 1989)(requiring individualized suspicion of on-duty drug use or impairment); NTEU v. Lyng, 706 F. Supp. 934, 948-50 (D.D.C. 1988)(same).
Defendant asserts that the requirement in Bangert of a reasonable suspicion of on-duty drug usage or impairment is untenable in light of Jones v. Jenkins, 279 U.S. App. D.C. 19, 878 F.2d 1476 (D.C. Cir. 1989) and NFFE v. Cheney, 280 U.S. App. D.C. 164, 884 F.2d 603 (D.C. Cir. 1989). Jones, however, does not address the issue, and Cheney stands for a somewhat different proposition.
In Cheney, the Court of Appeals rejected the argument that drug testing was unconstitutional because it could not distinguish between on-duty and off-duty impairment. Id. at 609-10 & n. 8. In other words, the Court refused to reject the only available scientific test for determining on-duty impairment because it also detected off-duty impairment.
This limited holding does not support defendant's far broader claim that it does not matter whether the impairment is on-duty or off-duty since the government has an interest in deterring both. The Court of Appeals may have implicitly rejected this type of argument in Jones. That decision explained that drug testing of District of Columbia school bus drivers was constitutional because it "ensures that employees . . . not be under the influence of drugs while on duty." Jones, 878 F.2d at 1477 (emphasis added). Were it of no consequence whether the impairment is on-duty or off-duty, as defendant claims, the last portion of the quoted sentence would be gratuitous.
The government's argument also appears to fly in the face of the Supreme Court's careful balancing of the government's safety-related concerns and employee privacy interests. At issue in Skinner was post-crash testing of train crews. The government had a "compelling" safety interest because "even a momentary lapse of attention can have disastrous consequences". Skinner, 109 S. Ct. at 1418-19. For similar reasons, the crew members had a diminished expectation of privacy. Id. at 1418. In Von Raab, the Customs agents at issue were either directly involved in interdiction of illegal drugs, carried firearms, or both. Applying the same balancing test as in Skinner, the Court concluded that the government had an especially strong interest in ensuring that these agents did not use drugs and that the agents, for the same reasons, had a diminished expectation of privacy.
When the Supreme Court addressed the issue of off-the-job drug usage in Von Raab, it was careful to emphasize the on-the-job implications of such usage and the exceptional circumstances that gave rise to the government's interest:
Indeed, the almost unique mission of the [Customs] Service gives the Government a compelling interest in ensuring that many of these [agents involved in interdiction] do not use drugs even off-duty, for such use creates risks of bribery and blackmail against which the Government is entitled to guard.