On Appeal from the United States District Court for The District of New Jersey.
Gibbons, Chief Judge, and Mansmann and Cowen, Circuit Judges.
The Township of Washington, New Jersey, appeals from a summary judgment in favor of the plaintiffs, Policemen's Benevolent Association of New Jersey, Local 318, and Edmund Giordano, a police officer, in a suit challenging on Fourth Amendment grounds the Township's drug testing program for police officers. The district court held that a drug testing program involving any selection method other than individualized reasonable suspicion violated the Fourth Amendment, and enjoined enforcement of the Township's random testing and annual medical examination programs for police officers. We will reverse.
The drug testing policy which the Township police officers challenge is embodied in a document entitled Drug Testing Program of the Township of Washington, adopted in November, 1986 and revised February 25, 1987. The police officers' lawsuit was filed, however, on September 8, 1986, in response to a memorandum from the Mayor of the Township to all department heads and municipal employees announcing that the Township would begin a mandatory drug testing program. That announcement, dated August 5, 1986, was apparently made in response to the call on August 4, 1986 by President Ronald Reagan for every level of government to take steps to assure a drug free work place. The August 5, 1986 announcement contained no details of the proposed plan. Nevertheless the complaint alleged that "no guidelines for the protection of police employee's privacy were announced nor was there announced a method of assuring that said test would accurately reflect the presence of controlled dangerous substances in an employee's system." Complaint, Count I, para. 4. The proposed program was alleged to violate the First, Fourth, Fifth, Ninth and Fourteenth Amendments of the United States Constitution, and Article I, paragraphs 1, 2 and 7 of the New Jersey Constitution. Injunctive relief and damages were requested solely on behalf of Township police officers.
The plaintiffs sought pendente lite relief, but since the complaint was obviously premature an ex parte temporary restraining order was dissolved and a preliminary injunction was denied. Thereafter the Township formulated and revised the drug testing program. The plaintiffs then stipulated that they now challenge the revised plan as unconstitutional in only three respects:
A. Those aspects which require random mandatory testing of employees represented by Plaintiff [police officers];
B. Those aspects which would require testing as part of any pre-textual physical examination, i.e., any physical examination which is not a bona fide medical examination given in the ordinary course of business and as a matter of the Township's policy for its police officers;
C. Those aspects which would require testing of all employees in mass form as within the dispositive facts of Capua v. City of Plainfield [643 F. Supp. 1507 (D.N.J. 1986)].
Stipulation dated May 18, 1987. Thus the plaintiffs withdrew any challenge to the plan on the basis of lack of assurance of privacy, or lack of assurance of accuracy.*fn1
The plan calls for both testing on reasonable suspicion and random testing. The effect of the stipulation is to withdraw any challenge to the requirement of drug testing based on reasonable suspicion. The plan also requires all employees to undergo an annual medical examination which includes urinalysis. The effect of the stipulation is to challenge the annual medical examination requirement for police officers only to the extent that it is a pretext for obtaining body fluids for drug testing. The reference in the stipulation to Capua v. City of Plainfield, 643 F. Supp. 1507 (D.N.J. 1986), is to the holding in that case that a universal mass urinalysis of fire department employees of the City of Plainfield was unconstitutional.*fn2 The stipulation also excludes any challenge to the plan as applied to applicants for jobs as policemen. Thus the area of dispute was by stipulation narrowed to two questions: (I) whether a police department may require that police officers submit to random selection for urinalysis which will detect drug use; and (2) whether a police department may require that all police officers submit to an annual urinalysis which will detect drug use.
The parties filed cross-motions for summary judgment. The district court, relying solely on the Fourth Amendment, answered both questions negatively and granted the plaintiffs a summary judgment, enjoining Washington Township "from requiring police officers to submit samples of their urine to be tested for the presence of illegal drugs, except when there exists an individualized, reasonable suspicion based on objective facts and reasonable inferences drawn therefrom, that a particular police officer has engaged in the use of illegal drugs."
This court addressed the problem of state-imposed compulsory drug testing as a condition of certain types of employment in Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.), cert. denied, 479 U.S. 986, 107 S. Ct. 577, 93 L. Ed. 2d 580 (1986). That case upheld, against a Fourth Amendment search and seizure challenge, requirement that jockeys employed in the New Jersey horse racing industry submit to universal daily breathalyzer and random urinalysis testing. Recognizing that both the universal breathalyzer test and the random urinalysis involved seizures within the meaning of the Fourth Amendment, we held that in a highly regulated industry such as horse racing the administrative search exception to the Fourth Amendment warrant requirement applied. That exception applied because the state had a strong interest in conducting an unannounced search, and because pervasive regulation in the industry reduced justifiable expectations of privacy. 795 F.2d at 1142. Because the Racing Commission's discretion was sufficiently circumscribed by the universal breathalyzer and random selection urinalysis requirements, we rejected the contention that the searches in question involved the exercise of standardless discretion. Id. at 1143.
The Washington Township Plan, as interpreted by the district court, involves both types of selection dealt with in Shoemaker. The plan's provision for random selection for urinalysis contains essentially the same procedural and privacy protections which we upheld in Shoemaker. The universal annual urinalysis for all police officers is the equivalent of the universal daily breathalyzer test for jockeys. Thus Shoemaker controls on the two issues presented in this appeal, unless we hold that the Washington Township Police Department is not a highly regulated industry to which the administrative search exception applies. The dispositive questions are (1) whether the state has a strong interest in determining whether police officers are using illegal substances, and (2) whether the pervasive regulation of the police industry reduced the justifiable privacy expectations of those officers.
The district court opined, and we agree, that "[t]he need to ensure that the Township's police are drugfree is an important one. Important public safety concerns are associated with a police officer's duties." Despite the recognition of this strong public interest, however, the district court concluded that police officers had expectations of privacy which mandated that urinalysis be required only upon individualized reasonable suspicion of illegal drug use. Our review of this legal conclusion is plenary.
Washington Township maintains a police department pursuant to authority delegated to it by N.J. Stat. Ann. § 40A (West Supp. 1987), which provides:
The governing body of any municipality, by ordinance, may create and establish, as an executive and enforcement function of municipal government, a police force, whether as a department or as a division, bureau or other agency thereof, and provide for the maintenance, regulation and control thereof. Any such advance ordinance shall, in a manner consistent with the form of government adopted by the municipality and with general law, provide for a line of authority relating to the police function and for the adoption and promulgation by the appropriate authority of rules and regulations for the government of the force and for the discipline of its members. The ordinance may provide for the appointment of a chief of police and such members, officers and personnel as shall be deemed necessary, the determination of their terms of office, the fixing of their compensation and the prescription of their powers, functions and duties, all as the governing body shall deem necessary for the effective government of the force. Any such ordinance, or rules and regulations, shall provide that the chief of police, if such position is established, shall be the head of the police force and that he shall be directly responsible to the appropriate authority for the efficiency and routine day to day operations thereof, and that he shall, pursuant to policies established by the appropriate authority:
a. Administer and enforce rules and regulations and special emergency directives for the disposition and discipline of the force and its officers and personnel;
b. Have, exercise, and discharge the functions, powers and duties of the force;
c. Prescribe the duties and assignments of all subordinates and other personnel;
d. Delegate such of his authority as he may deem necessary for the efficient operation of the force to be exercised under ...