BARKETT, Circuit Judge, dissenting:
As the majority recognizes, there is no question that the
mandatory drug testing in this case is an unreasonable search
prohibited by the Fourth Amendment unless it is required by
"special governmental needs beyond the normal need for law
enforcement," and those needs outweigh the candidates' privacy
interests. National Treasury Employees v. Von Raab, 489 U.S.
656, 665-66, 109 S.Ct. 1384, 1390-91 (1989) (citing Skinner v.
Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1401,
1413-14 (1989)). I dissent because I do not believe that the
suspicionless search in these circumstances serves any special
governmental need beyond the normal need for law enforcement,
and, if it did, I believe that the candidates' privacy interests
outweigh the governmental interests when the factors of Von Raab
are properly considered.
Before balancing the candidates' privacy expectations
against the government's interests in conducting suspicionless
drug-screening, the court must first ascertain whether this case
presents a special governmental need beyond the normal need for
law enforcement.1 In simpler terms, before the court can
balance the competing interests in this case, it must first ask
what is so impractical about requiring a warrant or
individualized suspicion in the circumstances presented here. It
1
Whether "[s]pecial needs are involved" in this case is
determined not by how urine test results will be used against any
particular candidate, but by whether the "need" for such testing
is already served by ordinary law enforcement, and is of such a
"special" nature as to render the Fourth Amendment's warrant
requirement impracticable.
is in this threshold inquiry that I believe the majority first
errs.
The majority frames its analysis in terms of whether
"unlawful drug use is . . . fundamentally incompatible with high
state office." Certainly, the answer to that question is
patently obvious, but the question assumes unlawful drug use.2
This case is not about the incompatibility of drug use and
elected office, but rather about whether Fourth Amendment
protections can be constitutionally suspended when there is no
individualized suspicion, when there is no immediate or direct
threat to public safety, when those being searched are not
directly involved in the frontlines of drug interdiction, when
there is no institutional setting involved such as a prison or
public school requiring swift and informal discipline, and when
there are no dire consequences as a result of waiting to obtain a
warrant if a candidate, or anyone else for that matter, is
suspected of violating the law. The first question for the court
is not whether the state's interest is great enough and its
chosen method effective enough to outweigh the privacy interests
involved. Rather, it is whether, under Von Raab, the
circumstances in this case give rise to a special governmental
need beyond the ordinary needs of law enforcement in the first
place. I think not, and the majority's analysis does not support
2
O.C.G.A. § 21-2-140 bars from public office either
candidates who refuse to take the test because they are
ideologically opposed to the government's intrusion upon their
privacy, or candidates who fail the test and are thereby only
suspected of having committed a crime.
2
its conclusion to the contrary.3
Essentially, the majority's justification for suspending the
requirements of the Fourth Amendment is the state's interest in
officeholders who are "drug free," "honest[ ], clear-sighted[ ],
and clear-thinking," as well as "appreciative of the perils of
drug use" and "[]sympathetic to drug interdiction efforts."
Putting aside First Amendment concerns as to whether these
subjective traits, as desirable as they may be, can be legislated
as valid qualifications for public office, this standard not only
fails to address why ordinary law enforcement methods are
insufficient to protect these interests, but it makes
suspicionless searches the rule and obtaining a warrant almost
always irrelevant.4 Moreover, this rationale seriously erodes
the Fourth Amendment's protections for many people beyond the
parties involved here.
The Supreme Court has rejected such an overbroad standard in
assessing the reasonableness of various governmental drug-testing
schemes. In Skinner and Von Raab, the Court suspended Fourth
Amendment protections only when the risks of drug impairment
3
The majority's reference to the Tenth Amendment
interest in setting qualifications for public office misses the
point. Georgia's power under the Tenth Amendment to regulate its
electoral process is not absolute. As the majority notes, the
state's power to do so is subject to federal constitutional
limitations, the extent of which are at issue here.
4
Under this standard, what Fourth Amendment protections
would candidates retain to prevent suspicionless testing to
research for a physical or mental impairment, AIDS, alcohol or
prescription drug abuse, screening DNA for genetic information,
or to prevent warrantless invasions of homes to search for drugs,
pornography, or other contraband?
3
affected those directly on the frontline of drug interdiction
efforts, or those who, if under the influence of drugs, could
pose an imminent physical threat to the public. The Court found
a nexus between the risks of drug use and imminent hazards to
public safety, for example, where government employees "discharge
duties fraught with such risks of injury to others that even a
momentary lapse of attention can have disastrous consequences."
Skinner, 489 U.S. at 628, 109 S.Ct. at 1419. The Court held that
railway safety is a special governmental need beyond the normal
need for law enforcement and justifies the suspicionless urine
testing of those employees whose drug and alcohol abuse can
"cause great human loss," but noted that the regulations
"narrowly and specifically" limited testing to the aftermath of a
serious accident when individualized suspicion is "most
impracticable," or when employees are otherwise directly involved
in safety-rules violations. Id. at 622, 631, 109 S.Ct. at 1416,
1420-21. Moreover, the Court upheld drug testing only after a
showing of past history linking drug and alcohol abuse with
serious train accidents. Id. at 606-08, 109 S.Ct. at 1407-08.
In Von Raab, the Court likewise required such a nexus in
upholding suspicionless urine testing of Customs employees who
are involved directly in enforcing drug laws, or are required to
carry firearms. Von Raab, 489 U.S. at 670-71, 109 S.Ct. at 1393.
While the Court found compelling the Customs Service's interest
in "ensuring that front-line interdiction personnel are
physically fit, and have unimpeachable integrity and judgment,"
4
it also specifically explained how that compelling interest would
be undermined by unlawful drug use among such front-line
personnel: "A drug user's indifference to the Service's basic
mission, or, even worse, his active complicity with malefactors,
can facilitate importation of sizable drug shipments or block
apprehension of dangerous criminals." Von Raab, 489 U.S. at 670,
109 S.Ct. at 1393. The Court recognized that "the public should
not bear the risk that employees who may suffer from impaired
perception and judgment will be promoted to positions where they
may need to employ deadly force." Id. at 671, 109 S.Ct. at 1393
(emphasis added).
The narrow focus of these exceptions was reaffirmed in
Vernonia School District 47J v. Acton, ___ U.S. ___, 115 S.Ct.
2386 (1995). The Court held that special governmental needs
justify randomly testing the urine of schoolchildren, who hold a
diminished expectation of privacy in the public school custodial
setting, but noted that "it must not be lost sight of that this
program is directed more narrowly to drug use by school athletes,
where the risk of immediate physical harm to the drug user or
those with whom he is playing his sport is particularly high."
Acton, 115 S.Ct. at 2395 (emphasis added). Thus, it appears that
even (unathletic) schoolchildren enjoy greater Fourth Amendment
protections than the majority accords the candidates in this
case.
There is nothing so special or immediate about the
generalized governmental interests involved here as to warrant
5
suspension of the Fourth Amendment's requirement of
individualized suspicion for searches and seizures. There are no
exigent circumstances. There is no imminent threat of grave
physical harm. The prospective candidates are not on the
frontlines of drug interdiction. And, we cannot ignore that
candidates are subjected to the ultimate screening program--the
voice of the electorate. Thus, I believe the majority errs in
concluding that a special governmental need beyond the normal
need of law enforcement is present in this case.
In addition to being troubled by the majority's assumption
that a special governmental need beyond the normal need for law
enforcement exists which makes obtaining a warrant impractical in
this case, I am troubled by the majority's assessment and
balancing of the competing interests involved. This case
presents a more serious constitutional question than that in Von
Raab and Skinner because of the nature and magnitude of the
individual rights involved.
Even if privacy interests are viewed in the narrowest sense,
a candidate's legitimate expectation of privacy in his or her
bodily fluids is greater than the employees in Von Raab or
Skinner. In balancing the privacy interests of the employees in
Von Raab, the Court recognized that Customs officers already
agree to undergo intrusive screening as a condition of
employment: "Unlike most private citizens or government
employees in general, employees involved in drug interdiction
reasonably should expect effective inquiry into their fitness and
6
probity." Von Raab, 489 U.S. at 672, 109 S.Ct. at 1394 (emphasis
added). The Court likened the necessity in those circumstances
to the "extraordinary assurances of trustworthiness and probity"
and "intrusive inquiries into . . . physical fitness" required of
those who undertake "special positions" such as in our military
or intelligence services. Id. at 671, 109 S.Ct. at 1394. In
Skinner, the Court likewise recognized that "the expectations of
privacy of covered employees are diminished by reason of their
participation in an industry that is regulated pervasively to
ensure safety, a goal dependent, in substantial part, on the
health and fitness of covered employees." Skinner, 489 U.S. at
627, 109 S.Ct. at 1418.
I recognize that employment choices may indeed diminish
expectations of privacy. An individual need not choose to become
a drug interdiction agent, military intelligence officer, or
railway engineer, thereby avoiding the intensive training and
intrusive screening required by that particular job. But, an
individual does not have a constitutional right to a specific
kind of employment. The Constitution, however, protects
participation in government. While candidates relinquish to the
people a great deal of their privacy in choosing to run for
public office, the price should not include sacrificing one's
Fourth Amendment right to be free from unreasonable searches and
seizures.
In conducting the Von Raab balancing test, the majority
fails to adequately consider the totality of the government's
7
"interference with individual liberty." Von Raab, 489 U.S. at
671, 109 S.Ct. at 1393. Not only is the privacy surrounding an
individual's bodily functions at stake, but all of the rights
associated with participating in a democracy--rights of
association, freedom of speech, ballot access, and the right to
cast an effective ballot. We are not dealing merely with the
denial of a job opportunity, but with the denial of opportunity
to participate in our democratic form of government. In light of
the interference with these liberty interests, giving the
governmental interests here the greater weight seems especially
unreasonable.
Finally, I am concerned about the majority's conclusion that
the government's actions in this case do not violate the First
Amendment. The majority maintains that the government's purpose
is not suppression of free expression. Yet, it supports its
holding by citing the importance of ensuring that elected
officials are "persons appreciative of the perils of drug use"
and "[]sympathetic to drug interdiction efforts." Establishing a
certain ideology as a "qualification" for holding public office
appears to be a content-based restriction on free expression.5
5
The Supreme Court struck down a previous attempt by the
Georgia legislature to disqualify a citizen from public office on
the basis of his ideology, noting that: "Madison and Hamilton
anticipated the oppressive effect on freedom of expression which
would result if the legislature could utilize its power of
judging qualifications to pass judgment on a legislator's
political views." Bond v. Floyd, 385 U.S. 116, 135-37 n.13, 87
S.Ct. 339, 349-50 n.13 (1966) (holding legislature's use of oath
provisions to exclude from its ranks one with whom its majority
disagreed on federal government's policy in Vietnam War violated
First Amendment).
8
Drug policy is a politically charged issue confronting many
government officials who have disparate points of view regarding
the "Drug War" and the efficacy of the means employed in fighting
it. It is the function of public office holders to write,
enforce, and interpret the laws, including drug laws. By
conditioning holding public office upon submission to drug
screening, however, the Georgia legislature effectively bans from
positions of political power not only those candidates who might
disagree with the current policy criminalizing drug use, but also
those who challenge the intrusive governmental means to detect
such use among its citizenry. This statute is neither neutral nor
procedural, but, in the majority's own characterization, attempts
to ensure that only candidates with a certain point of view
qualify for public office.
It is beyond peradventure that a bodily search is
significantly intrusive. It is almost equally obvious that the
means utilized here would not accomplish the goals purportedly
justifying the search.6 Thus, this search is more a symbolic
gesture than an effective tool to ferret out drug-users or
assure exemplary public officials.7 Surely, symbolic gestures
6
The majority recognizes that, considering the notice
given, any drug user could disguise drug use, and that "[p]ersons
who would be caught by Georgia's limited testing would seem to be
people who are out of control about drugs . . . ." It also seems
that these "worst cases" would be ideal candidates for some form
of individualized suspicion.
7
The majority has delineated the government's purported
interest in ensuring that candidates "have what it takes" to hold
public office as justification for the suspicionless urine
9
testing of candidates. However, the available subsequent
legislative history indicates that in passing O.C.G.A. §§ 21-2-
140, the Georgia General Assembly did not appear to be motivated
by concerns that state politicians exercise their "best judgment
and skill," but rather by the desire to enact a symbolic measure:
"One of the sponsor's of the original 1990 legislation
. . . proposed the legislation out of a sense of
fairness rather than any genuine fear that state
politicians were not drug free. The sponsor of the
1990 legislation felt that if city council or state
politicians require drug testing of state employees,
they too should undergo drug testing. Additionally, if
in order to appease public concern about the use of
illegal drugs politicians must infringe upon the rights
of government employees, the politicians themselves
should be treated similarly."
Edith M. Shine, Legislative Review, 9 Ga. St. U. L. Rev. 212, 218
(1992) (citing Telephone Interview with Rep. Bob Holmes, House
District No. 28 (Apr. 10, 1992)) (footnotes omitted).
Representative Holmes stated that the legislation was proposed in
response to similar legislation that required school teachers to
undergo urine testing because it was unfair to subject teachers
to urine tests unless the politicians enacting such a law also
were tested. Id. at 218 n.61. Nonetheless, the law did not
apply to politicians who were already in office, but only to
prospective candidates for those offices. In any event, the
Applicant Drug Screening Act, which precipitated the mandate for
suspicionless testing of political candidates, was struck down
later as an unconstitutional infringement of employment
applicants' Fourth and Fourteenth Amendment rights. Georgia
Ass'n of Educators v. Harris, 749 F.Supp. 1110, 1114 (N.D. Ga.
1990) (holding generalized governmental interest in maintaining
drug-free workplace not sufficiently compelling so as to outweigh
applicants' Fourth Amendment rights).
On a final note, Representative Holmes' comments are
incapable of "chang[ing] the legislative intent . . . expressed
before the Act's passage," as in Blanchette v. Connecticut
General Insurance Corps., 419 U.S. 130, 132, 95 S.Ct. 335, 353
(1974) because, as the majority notes, no "official" history of
legislative intent exists. Rather, this case is closer to Galvan
v. Press, 347 U.S. 522, 526-27, 74 S.Ct. 737, 740 (1954) (relying
on 1951 memorandum by Senator McCarran in interpreting ambiguous
legislative intent of 1950 statute he sponsored). We are left,
therefore, with the wisdom of Mr. Chief Justice John Marshall
that "[w]here the mind labours to discover the design of the
legislature, it seizes everything from which aid can be derived."
United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304 (1805)
(quoted in Consumer Product Safety Commission v. GTE Sylvania,
10
are not enough to trump the constitutional imperatives of the
Fourth Amendment or the right to participate in government.
Inc., 447 U.S. 102, 100 S.Ct. 2051 (1980)).
11