dissenting:
The majority holds that the plaintiffs in the present case have failed to state a claim “under the Fourth Amendment that the [drug testing policy provisions] for testing based on reasonable suspicion of alcohol or drug use or impairment are facially” unconstitutional. Maj. op. at 910-11. I disagree. I find that the decisions in American Federation of Government Employees, Local 2391 v. Martin, 969 F.2d 788 (9th Cir.1992), and National Treasury Employees Union v. Yeutter, 918 F.2d 968 (D.C.Cir.1990), do not provide a bright line rule with which to evaluate the City and County of Denver’s drug testing policy. Rather, I find that Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), and National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), establish that courts must first ascertain whether there are special needs beyond the need for normal law enforcement before balancing government interests in drug testing against individuals’ Fourth Amendment rights. I conclude that there are no special needs in this case, and that no interests need to be balanced. Were I to engage in such balancing, I would conclude that the drug testing policy is facially unconstitutional. I dissent.
*916I.
The majority’s analysis of the plaintiffs’ facial challenge to the constitutionality of the drug testing policy “is guided primarily by two recent decisions by the United States Court of Appeals, specifically, American Federation of Government Employees, Local 2391 v. Martin, 969 F.2d 788 (9th Cir.1992), and National Treasury Employees Union v. Yeutter, 918 F.2d 968 (D.C.Cir.1990).” Maj. op. at 911. The majority notes that these two cases rely on Skinner and Von Raab. The majority finds that Local 2391 and Yeutter provide the appropriate framework for determining whether drug testing policies contravene the Fourth Amendment to the United States Constitution. Maj. op. at 913. The majority concludes that, pursuant to Local 2391 and Yeutter, drug testing policies are unconstitutional if they:
(A) provide for mandatory testing of employees who do not hold public safety- or security-sensitive positions, based only on reasonable suspicion of off-duty alcohol or drug use or impairment, or (B) provide for mandatory testing of employees who do hold public safety- or security-sensitive positions, based on off-duty alcohol or drug use or impairment, but with less than objectively established reasonable suspicion of such use or impairment.
Id. Yeutter and Local 2391, however, neither establish such a bright line rule nor support the result reached by the majority.
A.
The Yeutter Decision
In Yeutter, the National Treasury Employees Union appealed a district court ruling that permitted the United States Department of Agriculture (USDA) “to proceed with random urinalysis drug testing of certain USDA motor vehicle operators and ‘reasonable suspicion’ drug testing of other Department workers.” Yeutter, 918 F.2d at 969. The United States Court of Appeals affirmed the USDA’s plan to test motor vehicle operators, but did not approve of that portion of the plan regarding “reasonable suspicion” testing. Id. at 969-70.
The Yeutter court commenced its analysis by reviewing the United States Supreme Court decisions in Skinner and in Von Raab. The Skinner Court approved “post-accident drug testing of railroad employees and permitted testing after rules violations or minor accidents, and upon suspicion of on-duty impairment.” Yeutter, 918 F.2d at 970. The Yeutter court observed that “the difficulty of detecting and deterring on-duty drug use through less intrusive means” was one of several important factors underlying the Skinner Court’s analysis. Id. at 971. The Von Raab Court approved a drug testing plan “that mandated urinalysis of employees directly involved in drug interdiction and those required to carry firearms.” Yeutter, 918 F.2d at 971. The Yeutter Court noted that the United States Supreme Court decisions in both Skinner and Von Raab followed the same analytic path wherein the public interest in drug testing was weighed against the reasonable privacy expectations of tested employees. Id.
With respect to motor vehicle operators, the Yeutter court relied on American Federation of Government Employees v. Skinner, 885 F.2d 884 (D.C.Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1960, 109 L.Ed.2d 321 (1990), which held that safety interests and “strong national security concerns supported testing of these employees.” Yeutter, 918 F.2d at 971. The Yeut-ter court balanced the reasonable privacy expectations of the motor vehicle operators against the government’s safety interests, and concluded that the privacy expectations were outweighed. Id. at 972. In so concluding, the Yeutter court noted that “the Supreme Court ‘has quite clearly eschewed an approach to drug testing based on bright lines.’ ” Id. (quoting Harmon v. Thornburgh, 878 F.2d 484, 490 n. 9 (D.C.Cir.1989), cert. denied, 493 U.S. 1056, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990)).
With respect to the USDA’s plan for drug testing of all Food and Nutrition Service (FNS) employees premised upon “reasonable suspicion,” the Yeutter court reiterated that the validity of the drug testing *917plan turns on a balancing of the intrusion on the individual’s Fourth Amendment interests against promotion of legitimate government interests. Yeutter, 918 F.2d at 973. The Yeutter court concluded that any legitimate government interest did not extend farther than the workplace, and invalidated that part of the USDA’s plan that permitted drug testing premised upon reasonable suspicion of off-duty drug use. In so concluding, the Yeutter court reiterated its holding in Harmon, wherein it stated that
“federal employment alone is not a sufficient predicate for mandatory urinalysis,” and that “the government may search its employees only when a clear, direct nexus exists between the nature of the employee’s duty and the nature of the feared violation.”
Yeutter, 918 F.2d at 974 (quoting Harmon, 878 F.2d at 490).
The Yeutter court separately considered that portion of the USDA’s plan which permitted drug testing based upon reasonable suspicion of on-duty drug use. The Yeut-ter court found that “mandatory urinalysis represents a substantial intrusion on employee privacy.” Id. Thus, the Yeutter court rejected the government’s “abortive suggestion that FNS' mission to advance human nutrition and protect the agricultural economy” outweighed the employees’ privacy interest. Id. at 975. The Yeutter court concluded, without identifying any additional government interests, “that employee privacy concerns [did not] outweigh the government’s interest in testing employees reasonably suspected of using drugs, or of being drug-impaired, while on duty.” Id. at 975.
In summary, the Yeutter court did not apply a bright line test when evaluating the different portions of the drug testing plan at issue; rather, the Yeutter court conducted an analysis in each instance that involved a balancing of individual privacy interests against government interests in drug testing. The Yeutter court additionally emphasized the importance of finding “direct nexus” between the nature of an employee’s job and the nature of the feared violation when evaluating the propriety of a drug testing plan.
B.
The Local 2391 Decision
In Local 2391, the United States Department of Labor (DOL) appealed from a district court order and argued that “the district court erred by holding that the Fourth Amendment bars drug testing of DOL employees in public health and safety-sensitive or security-sensitive positions based on reasonable suspicion of off-duty drug use.” Local 2391, 969 F.2d at 789 (emphasis added). The United States Court of Appeals opinion in Local 2391 was expressly limited to employees holding public health and safety-sensitive or security-sensitive positions. Id. at 790, 792.
At the outset of its analysis, the Local 2391 court noted that Yeutter did not address whether employees holding safety- or security-sensitive positions could be tested on reasonable suspicion of off-duty drug use or impairment. The Local 2391 court stated that “whether the government may validly require its employees to submit to drug testing is determined ‘ “by balancing its intrusion on the [employees’] Fourth Amendment interests against its promotion of legitimate government interests.” ’ ” Id. at 791 (quoting Skinner, 489 U.S. at 619, 109 S.Ct. at 1414 (quoting Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979))). The Local 2391 court stated that, “[w]here the government has a legitimate public health and safety or national security interest in confirming whether an employee is using illegal drugs on- or off-duty, the existence of reasonable suspicion weighs in favor of finding that a resulting search is reasonable.” Id. at 792. The Local 2391 court thus found the DOL’s plan to be facially constitutional, but expressly reserved a determination of the plan’s constitutionality as applied. Id. at 793.
C.
Application of Yeutter and Local 2391 to the Present Case
The majority states that “[t]he results in Yeutter and Local 2391, to the extent that they are relevant to the issue before us, *918accord with both precedent and reason.” Maj. op. at 913. The result reached in Local 2391 is not relevant to the issue on which we granted certiorari insofar as the result reached in Local 2391 is expressly limited to “employees holding clearly specified public health and safety- or national security-sensitive positions.” Local 2391, 969 F.2d at 792. The result reached in Yeutter, insofar as it concerns “reasonable suspicion” testing, does not, in my opinion, accord with either precedent or reason because the Yeutter court did not articulate government interests when attempting to engage in “balancing.” Further, the Yeut-ter court, after reiterating its previous holding, did not determine whether there was a “direct nexus” between all USDA employees and any feared violation.
I thus do not agree with the majority that the issue upon which we granted cer-tiorari is resolved by examining whether the drug testing policy in the present ease
(A) provide[s] for mandatory testing of employees who do not hold public safety- or security-sensitive positions, based only on reasonable suspicion of off-duty alcohol or drug use or impairment, or (B) provide[s] for mandatory testing of employees who do hold public safety- or security-sensitive positions, based on off-duty alcohol or drug use or impairment, but with less than objectively established reasonable suspicion of such use or impairment.
Maj. op. at 913. Neither Yeutter nor Local 2391 establishes such a bright line rule. Rather, both cases, in their analytical sections relying on Skinner and on Von Raab, dictate that this court balance government interests against individual employees’ privacy concerns in determining whether the drug testing policy is facially constitutional. When balanced, the interests of the City and County of Denver do not outweigh individual employee Fourth Amendment interests.
II.
A.
Fourth Amendment Analysis
“[T]he Fourth Amendment protects individuals from unreasonable searches conducted by the Government, even when the Government acts as an employer....” Von Raab, 489 U.S. at 665, 109 S.Ct. at 1390 (relying on O’Connor v. Ortega, 480 U.S. 709, 717, 107 S.Ct. 1492, 1497, 94 L.Ed.2d 714 (1987)); Skinner, 489 U.S. at 613-16, 109 S.Ct. at 1410-13. “What is reasonable, of course, ‘depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.’ ” Skinner, 489 U.S. at 619, 109 S.Ct. at 1414 (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 3308, 87 L.Ed.2d 381 (1985)). It is well settled that blood tests and urine tests constitute searches under the Fourth Amendment. Skinner, 489 U.S. at 616-17, 109 S.Ct. at 1412-13.
In criminal cases generally, “a search or seizure ... is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause.” Id. at 619, 109 S.Ct. at 1414 (relying on Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980)); see Von Raab, 489 U.S. at 665, 109 S.Ct. at 1390. The United States Supreme Court has “recognized exceptions to this rule, however, ‘when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’ ” Skinner, 489 U.S. at 619, 109 S.Ct. at 1414 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987)). Thus, when faced with special needs beyond the normal need for law enforcement, the United States Supreme Court “[has] not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements in the particular context.” Id.; see Von Raab, 489 U.S. at 665, 109 S.Ct. at 1390.
B.
The United States Supreme Court Decisions
In Skinner, the Railway Labor Executives’ Association appealed from a determi*919nation upholding the Federal Railroad Administration’s drug testing plan requiring employees to submit to blood and urine tests upon the occurrence of an accident or specified incident. Skinner, 489 U.S. at 612-13, 109 S.Ct. at 1410-11. The United States Supreme Court first found that the “Government’s interest in regulating the conduct of railroad employees to ensure safety ... ‘presents “special needs” beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.’ ” Skinner, 489 U.S. at 620, 109 S.Ct. at 1414 (quoting Griffin v. Wisconsin, 483 U.S. at 873-74, 107 S.Ct. at 3168). The Supreme Court noted in Skinner that “[t]he problem of alcohol use on American railroads is as old as the industry itself, and efforts to deter it by carrier rules began at least a century ago,” and that accidents involving alcohol or drug use from 1972 through 1983 “ ‘resulted in 25 fatalities, 61 non-fatal injuries, and property damage estimated at $19 million.’ ” Skinner, 489 U.S. at 606-07, 109 S.Ct. at 1408 (quoting 48 Fed.Reg. 30726 (1983)).
After first making a finding of special needs, the Supreme Court reviewed the regulations at issue and found that the plan applied only to employees engaged in safety-sensitive tasks. Id. at 620, 109 S.Ct. at 1414. The Supreme Court found that the Government prescribed the plan in order “ ‘to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs.’ ” Id. at 620-21, 109 S.Ct. at 1415 (quoting 49 C.F.R. § 219.1(a) (1987)). Thus, the Supreme Court stated that the “governmental interest in ensuring the safety of the traveling public and of the employees themselves plainly justifies prohibiting covered employees from using alcohol or drugs on duty.” Id. at 621, 109 S.Ct. at 1415. The Supreme Court then considered whether the governmental interests justified the privacy intrusions at issue. The Supreme Court engaged in extensive analysis of the Government’s interests and the individual privacy concerns involved, and concluded that the Government’s compelling interests in safety outweighed individual privacy concerns. Id. at 624-33, 109 S.Ct. at 1417-22.
In Von Raab, a union of federal employees appealed from a determination upholding the United States Customs Service (the Customs Service) drug testing program. Von Raab, 489 U.S. at 663-65, 109 S.Ct. at 1389-91. Under the plan, “[djrug tests were made a condition of placement or employment for positions that [met] one or more of three criteria”: direct involvement in drug interdiction, requirement that the employee carry a firearm, or requirement that the employee handle classified information. Id. at 660-61, 109 S.Ct. at 1387-88.
The Supreme Court noted at the outset that “[i]t is clear that the Customs Service’s drug testing program is not designed to serve the ordinary needs of law enforcement.” Id. at 666, 109 S.Ct. at 1391. The Supreme Court noted that “[t]he purposes of the program are to deter drug use among those eligible for promotion to sensitive positions within the Service.” Id. The Supreme Court considered the Government’s interests and the privacy interests of the employees seeking promotion to the covered positions.
The Supreme Court noted that “[t]he Customs Service is our Nation’s first line of defense against one of the greatest problems affecting the health and welfare of our population.” Id. at 668, 109 S.Ct. at 1392. The Supreme Court additionally stated that “the Government has a compelling interest in ensuring that the front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment,” and 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 670-71, 109 S.Ct. at 1393. The Supreme Court opined that the “national interest in self-protection could be irreparably damaged if those charged with safeguarding it were, because of their own drug use, unsympathetic to their mission of interdicting narcotics.” Id. at 670, 109 S.Ct. at 1393.
The Supreme Court concluded that the possible harm against which the Customs *920Service sought to guard was substantial, and that “the need to prevent its occurrence furnishes an ample justification for reasonable searches calculated to advance the Government’s goal.” Id. at 675, 109 S.Ct. at 1395. The Supreme Court, however, did not approve of that portion of the Customs Service’s plan concerning employees who handle classified information. In assessing that category of employees, the Supreme Court stated that “[i]t is not clear ... whether the category defined by the Service’s testing directive encompasses only those Customs employees likely to gain access to sensitive information.” Id. at 678, 109 S.Ct. at 1397. The Supreme Court queried whether the Customs Service had defined the category more broadly than necessary in order to meet the stated purposes, and thus rejected that part of the drug testing plan. Id.
C.
Fourth Amendment Analysis in the Present Case
As the Court of Appeals noted in Casados v. City and County of Denver, 832 P.2d 1048 (Colo.App.1992), the drug testing plan requires employees to submit to blood or urine tests “where there is reasonable suspicion of illicit use or the employee is under the influence of or impaired by alcohol or drug.” See id. at 1050. The drug testing policy thus condones conduct that constitutes a search under the Fourth Amendment.
Under Skinner and Von Raab, such searches may be reasonable if the “Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement.” Von Raab, 489 U.S. at 665, 109 S.Ct. at 1390-91. The drug testing policy states as follows:
As an employer, the City is required to adhere to various federal, state and local laws and regulations regarding alcohol or drug abuse....
The City also has a vital interest in maintaining safe, healthful and efficient working conditions for its employees. Being under the influence of a drug or alcohol on the job may pose serious safety and health risks not only to the user but to all those who work with the user.
Other than compliance with regulations and an interest in maintaining a safe work environment, the drug testing policy does not contain any additional justifications for drug testing. In fact, the drug testing policy states that, “[w]hen a supervisor has reasonable suspicion that an employee appears to be in possession of or selling or transferring illicit drugs, the police are to be contacted.” The drug testing policy evinces, by its plain language, an intent to comply with laws which, in my opinion, is best served by normal law enforcement. Thus, under Skinner and Von Raab, we need not balance government interests against privacy interests because there is no special need for drug testing beyond normal law enforcement expressed in the drug testing policy. Accordingly, the blood and urine searches authorized by the policy amount to an impermissible, unreasonable search under the Fourth Amendment.
Were I to engage in balancing, however, I would find the government’s interest in maintaining a safe work environment does not justify the privacy intrusions at issue. Government interest in the safety of a workplace has been recognized as being reasonable. The drug testing policy is not limited to employees holding safety- or security-sensitive positions. The City and County of Denver, as a governmental unit, does not serve a specialized function such as the interdiction of illegal narcotics which, by its nature, involves safety- or security-sensitive functions. There is no direct nexus between all positions held by City and County of Denver employees and an unasserted, feared violation. Without more, I would not find that the interest in a safe work environment alone justifies the substantial intrusions into all City and County of Denver employees’ rights to bodily integrity occasioned by blood and urine testing. See Bolden v. Southeastern Pennsylvania Transp. Auth., 953 F.2d 807 (3d Cir.1991) (holding that drug testing plan was unconstitutional because the plan subjected a maintenance custodian to suspi-cionless testing, where no showing that employees’ position involved any unusual degree of danger or that there were inju*921ries to maintenance custodians generally); American Fed’n of Gov’t Employees, AFL-CIO, Council 33 v. Thornburgh, 720 F.Supp. 154 (N.D.Cal.1989) (entering a preliminary injunction to enjoin enforcement of a drug testing scheme requiring testing of all employees of the Federal Bureau of Prisons, regardless of job function and in light of the fact that no evidence was provided demonstrating a special need for indiscriminate testing); Bangert v. Hodel, 705 F.Supp. 643 (D.D.C.1989) (entering an injunction enjoining random urinalysis testing of United States Department of the Interior employees that held routine job classifications, such as mail and file clerks).
Based on the foregoing, I dissent.
I am authorized to say that Justice KIRSHBAUM joins in this dissent.