IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 95-50582
DIANE PIERCE,
Plaintiff-Appellee,
versus
DAVID SMITH; LOUIS BINDER,
Defendants-Appellants,
and
TEXAS TECH UNIVERSITY HEALTH
SCIENCE CENTER,
Defendant.
________________________________________________
Appeal from the United States District Court for the
Western District of Texas
________________________________________________
July 15, 1997
Before GARWOOD, BARKSDALE, and DENNIS, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellee Dr. Diane Pierce (Dr. Pierce) brought this
suit against defendants-appellants Dr. David Smith (Dr. Smith) and
Dr. Louis Binder (Dr. Binder), claiming that appellants violated
her rights under the Fourth and Fourteenth Amendments when they, as
officials of the state medical residency program in which she was
enrolled, caused her to undergo a private urinalysis test for drugs
and submit the test results to program officials, by informing her
that she would be expelled from the program if she was not tested.
The jury returned a verdict in favor of Dr. Pierce, awarding her
compensatory and punitive damages. Dr. Smith and Dr. Binder
appeal. We hold appellants are protected by qualified immunity and
accordingly reverse.
Facts and Proceedings below
Dr. Pierce was a medical resident in the emergency medicine
residency program at the Texas Tech University Health Science
Center (TTUHSC) in El Paso, Texas, from 1988 to 1991. Texas Tech
is a state institution. As part of her TTUHSC residency program,
Dr. Pierce served a two-month rotation at St. Joseph’s Hospital in
Phoenix, Arizona, during January and February of 1990, where she
trained with the trauma team in emergency medicine.
On February 22, 1990, a patient was admitted to the St.
Joseph’s emergency room with head injuries sustained after smashing
his head through the windshield of his car in an automobile
accident. The patient, who was under the influence of alcohol and
drugs, was extremely uncooperative and aggressive.
Dr. Dale Stannard, the attending physician on the emergency
service that day, ordered that a CAT scan be performed to determine
whether the patient had suffered any internal head injury.
Hospital orderlies brought the patient to the CAT scan room and
placed him on the scan table. As part of the trauma team, Dr.
Pierce was called to the CAT scan room to see the patient. When
she arrived, she noticed that the orderlies were having difficulty
restraining the patient on the table. Dr. Pierce tried to help and
as she leaned over the patient to tighten his restraints, he spat
in her face. Dr. Pierce, in her words, “hard slapped” the patient
2
at least two times on his face.
Dr. Pierce, the only physician present, left the room to wash
off the saliva. When she returned, the nursing supervisor
forcefully escorted her out of the room, telling her to stay away
from the patient. Dr. Stannard, who was not present in the CAT
scan room when the incident occurred, was told by the night
supervisor that Dr. Pierce had “karate chopped” the patient. Later
on, however, Dr. Stannard learned that Dr. Pierce had actually
slapped the patient. He believed that there was no cause to
discipline her.
The following day, Dr. Pierce was called in to see Dr. Raymond
Shamos, the acting trauma director at St. Joseph’s. The
administrators at St. Joseph’s were upset by the incident and
wanted to promptly send Dr. Pierce back to TTUHSC in El Paso. Dr.
Shamos, however, felt such steps were unnecessary and instead
instructed Dr. Pierce to seek counseling with St. Joseph’s employee
counseling administrator. She underwent counseling and was allowed
to finish the remaining three days of her rotation at St. Joseph’s.
The counselor recommended that on her return to El Paso Dr. Pierce
“contact the University Psychiatric department to continue
counseling sessions.”
Dr. Smith, the residency director at TTUHSC at the time,
learned of the incident through Pat Jones, the emergency medicine
department administrator, who told Dr. Smith that Dr. Pierce had
“beat up a patient” at St. Joseph’s. Dr. Smith began his own
investigation of the incident, which included talking with Dr.
3
Brian Nelson, who was chairman of the faculty at TTUHSC, and Dr.
Shamos. During Dr. Smith’s telephone conversation with Dr. Shamos,
Dr. Smith was told that Dr. Pierce had karate chopped the patient
in the neck. Later, Dr. Smith met with Dr. Binder, Associate
Professor in the Department of Emergency Medicine at TTUHSC and
Assistant Dean, to discuss the incident. Due to incorrect
information received from St. Joseph’s, both Dr. Smith and Dr.
Binder thought that Dr. Pierce had karate chopped a patient and had
to be physically restrained from the patient. They discussed a
number of possible explanations for Dr. Pierce’s surprising
behavior, including drug use.
Upon Dr. Smith’s request, Dr. Pierce met with Dr. Smith in his
office on February 28. At that meeting, Dr. Smith handed Dr.
Pierce a letter and told her that she was being placed on
probation, with pay, pending an investigation into the incident.
This was not the first time Dr. Pierce had been on probation
in her TTUHSC residency. During the summer of 1989, she was placed
on probation for, among other reasons, excessive tardiness, poor
interpersonal relationship problems with the faculty and patients,
and failing to carry an acceptable volume of patients. At that
time (in 1989), there was some discussion among the faculty members
that drug use might be the cause of Dr. Pierce’s behavior. When
asked during 1989 by Dr. Nelson whether she was using drugs, Dr.
Pierce replied that she was not. Dr. Pierce was eventually taken
off this probation, and was not on probation when she slapped the
patient at St. Joseph’s.
4
Dr. Smith also told Dr. Pierce in the February 28 meeting that
she would have to undergo psychiatric evaluations. On March 2, Dr.
Smith met with Dr. Pierce again, and told her that she would be
required to undergo two psychiatric evaluations. One evaluation
would be performed by a doctor selected by TTUHSC and the other
evaluation by a doctor selected by Dr. Pierce.
On that same day, Dr. David Smith contacted Dr. Robert Smith
about performing the evaluation on Dr. Pierce on behalf of TTUHSC.
Dr. Robert Smith agreed to do so. Dr. David Smith understood that
the evaluation would include a urine drug test.
Dr. David Smith met with Dr. Pierce for a third time on March
9. Dr. Pierce handed to Dr. Smith letters written by Dr. Stannard
and Dr. Shamos on her behalf, describing their accounts of what had
happened at St. Joseph’s and, specifically, correcting earlier
stories that Dr. Pierce had karate chopped the patient and
explaining that Dr. Pierce instead had slapped the patient three
times on the face. Dr. Smith brought these letters to the
attention of Dr. Binder and Dr. Nelson. However, the letters did
not cause the doctors to rule out drug use as a possible
explanation for Dr. Pierce’s conduct.
Dr. Pierce arrived at Dr. Robert Smith’s office on March 14 to
undergo her psychiatric evaluation. At that time, she was informed
by Dr. Robert Smith that he had scheduled a urinalysis drug test
for their next appointment on March 17. Dr. Pierce objected to
taking the drug test, and went to speak with Dr. David Smith,
informing him of her objection to the urinalysis. Dr. David Smith
5
told her that he would bring the matter of the urinalysis up with
the faculty on March 20.1 Dr. Pierce met with Dr. Robert Smith on
March 17, and she told him she would likely refuse to take the
urinalysis test. Dr. Pierce next met with Dr. David Smith on March
19. Dr. Pierce testified that on this occasion Dr. David Smith
told her “if I didn’t take the urinalysis test, I’d be dismissed”
and “indicated that he had to be able to prove to Dr. Nelson
[TTUHSC faculty chairman] and Dr. Glass [a faculty member] that I
wasn’t using drugs.” Dr. Pierce did not indicate she would submit
to urinalysis, but did not definitely say she would not.
Nothing in the record suggests that either Dr. David Smith or
Dr. Binder, alone or in combination with each other, had or claimed
to have the authority to actually dismiss Dr. Pierce. The only
matter in the record speaking to this is the “Personnel Relations
& Disciplinary Action” attachment to the TTUHSC Graduate Medical
Education Program Agreement between TTUHSC and Dr. Pierce for the
period July 1, 1989, to June 30, 1990. This attachment provides
that the Program Director has the authority to recommend dismissal
to the dean of the Texas Tech medical school, “through” the TTUHSC
dean, who in 1990 was Dr. Joseph Brown (to whom Dr. Binder
reported), “for review and action.” It also provides that a
resident has the right to appeal a dismissal, with attendant due
process rights, and that compensation and benefits shall continue,
1
A faculty meeting took place on March 20. It is unclear from
the record what transpired at this meeting; however, it does not
appear that the faculty officially approved or disapproved of the
urinalysis.
6
and certifying boards and medical associations shall not be
notified of the dismissal, during the appeal process.
Although she still would not commit to take Dr. Robert Smith’s
urinalysis test, on March 23 Dr. Pierce decided to take a
urinalysis drug test at an independent laboratory, Pathlab. After
receiving the results, which were negative, from the laboratory,
Dr. Pierce hand-delivered the report to Dr. David Smith on March
30, which he accepted in place of the urinalysis which had been
arranged for by Dr. Robert Smith. The evidence indicates, and
there is no evidence to the contrary, that prior to receiving this
report neither Dr. David Smith nor Dr. Binder nor anyone else at
TTUHSC (nor Dr. Robert Smith) had any indication that Dr. Pierce
intended to take (or had taken) a urinalysis drug test,
independently or otherwise. On that same day, after reviewing the
urinalysis report and the psychiatric evaluations of Dr. Robert
Smith and Dr. Ann Salo,2 Dr. David Smith took Dr. Pierce off her
probation.
There is evidence that at some point after Dr. David Smith
first learned of the Phoenix incident and before March 20, but just
when is totally unclear, Dr. Binder recommended to Dr. David Smith
that Dr. Pierce undergo a drug test.
On February 24, 1992, Pierce filed this suit against Dr. David
Smith and Dr. Binder, seeking damages and declaratory relief
pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 2201 and the Fourth and
2
Dr. Pierce selected Dr. Salo, a clinical psychologist, to
conduct the second psychiatric evaluation.
7
Fourteenth Amendments to the United States Constitution. Her
claims included (1) taking of a property right without due process
of law by virtue of the suspension from her residency program; (2)
taking of a liberty interest by virtue of an unreasonable search of
her person; (3) violation of her right to equal protection by
virtue of her gender; and (4) intentional infliction of emotional
distress. The complaint was later amended to add TTUHSC as a
defendant, claiming that TTUHSC violated Dr. Pierce’s rights under
Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-
1688 (Title IX).
All defendants moved for summary judgment. The court granted
the defendants’ motion on all claims except the Fourth Amendment
claim and the claim for intentional infliction of emotional
distress. The court refused to dismiss the complaint on summary
judgment against the individual defendants on the basis of
qualified immunity.
The defendants then filed their answer, again raising the
affirmative defense of qualified immunity as to the individual
defendants. Two days later, the court permitted the defendants to
supplement their earlier motion for summary judgment as to the
remaining claims. The court granted the defendants’ motion on the
intentional infliction of emotional distress claim, but denied
summary judgment on the Fourth Amendment claim.
Over the defendants’ objections, the district court submitted
a jury instruction stating that, before a government employer may
compel an employee to undergo a drug test, the employer must have
8
individualized suspicion that the employee was using drugs. The
jury returned a verdict in favor of Dr. Pierce, awarding her
$30,000 actual damages against Dr. Smith and Dr. Binder, jointly
and severally; $10,000 punitive damages against Dr. Smith; and
$10,000 punitive damages against Dr. Binder.
The district court overruled the defendants’ motions for
judgment as a matter of law or for a new trial, and entered final
judgment on the verdict. The court also awarded Dr. Pierce
$31,153.41 in attorney’s fees and expenses and $2,770.82 court
costs. Dr. Smith and Dr. Binder bring this appeal.3
Discussion
I. Qualified Immunity; Standards and Review
Appellants argue on appeal that, as government officials, they
are entitled to qualified immunity.4
A state official exercising discretionary authority whose
conduct deprives another of a right secured by federal
constitutional or statutory law is nonetheless shielded from
personal liability for damages under section 1983 by the doctrine
of qualified immunity, unless at the time and under the
circumstances of the challenged conduct all reasonable officials
would have realized that it was proscribed by the federal law on
3
We address only Dr. Pierce’s Fourth Amendment claim against
Dr. Smith and Dr. Binder as she does not challenge the district
court’s dismissal of her other claims.
4
The failure to take an interlocutory appeal from the denial
of a pretrial motion to dismiss or for summary judgment does not
waive the defense of qualified immunity. Matherne v. Wilson, 851
F.2d 752, 756 (5th Cir. 1988). See also Spann v. Rainey, 987 F.2d
1110, 1114 (5th Cir. 1993).
9
which the suit is founded. See, e.g., Anderson v. Creighton, 107
S.Ct. 3034, 3038-3040 (1987). In order for qualified immunity to
be unavailable, at the time the challenged action occurred the
federal law proscribing it must have been clearly established not
only as an abstract matter but also “in a more particularized . .
. sense” such that “[t]he contours of the right” are “sufficiently
clear that a reasonable official would understand that what he is
doing violates that right.” Id. at 3039. For example, where the
complained of conduct is a law enforcement warrantless search of a
residence, qualified immunity turns not only on whether it was then
clearly established that such a search required probable cause and
exigent circumstances, but also on whether it was then “clearly
established that the circumstances with which” the officer “was
confronted did not constitute probable cause and exigent
circumstances.” Id. Qualified immunity protects “‘all but the
plainly incompetent or those who knowingly violate the law.’”
Hunter v. Bryant, 112 S.Ct. 534, 537 (1991) (quoting Malley v.
Briggs, 106 S.Ct. 1092, 1096 (1986)).5
5
In a section 1983 suit, the relevant law addressed for this
purpose is only the federal law the asserted violation of which
provides the basis for the claim sued on. In Davis v. Scherer, 104
S.Ct. 3012, 3018-20 (1984), the Supreme Court rejected the
proposition that conduct which violates the clear command of a
state statute or regulation is not “‘objectively reasonable’” and
hence may not be shielded by “qualified immunity” in a section 1983
action. Davis makes plain that the “objective reasonableness”
inquiry in section 1983 qualified immunity cases is addressed only
in respect to the federal constitutional right allegedly violated.
Id. at 3019. The Court went on to observe that “[n]either federal
nor state officials lose their immunity by violating the clear
command of a statute or regulation——of federal or state law——unless
that statute or regulation provides the basis for the cause of
action sued upon.” Id. n.12.
10
The issue of whether and when a right is clearly established
is typically treated as a question of law. Pfannstiel v. City of
Marion, 918 F.2d 1178, 1183 (5th Cir. 1990). Likewise, to the
extent that the relevant discrete, historic facts are undisputed,
as they essentially are here, the question of the objective
reasonableness of the defendant’s conduct——i.e., whether at the time
and under the circumstances all reasonable officials would have
realized the particular challenged conduct violated the
constitutional provision sued on——is also a question of law.
Mangieri v. Clifton, 29 F.3d 1012, 1015-1016 (5th Cir. 1994). See
also Hunter at 536-37 (whether under the circumstances a reasonable
officer could believe probable cause for arrest existed, thus
giving rise to qualified immunity, is a question of law); Blackwell
v. Barton, 34 F.3d 298, 305 (5th Cir. 1994); United States v.
Basey, 816 F.2d 980, 988 (5th Cir. 1987) (reasonable suspicion).
Where, as here, a section 1983 defendant pleads qualified
immunity and shows he is a governmental official whose position
involves the exercise of discretion, the plaintiff then has the
Moreover, because the issue is one of objective reasonableness
in respect to whether the challenged action violated the
constitutional provision sued on, the defendant’s subjective
motivation and subjective belief as to the lawfulness of his
conduct or what facts justified it are irrelevant. Anderson at
3040 (“Anderson’s subjective beliefs about the search are
irrelevant”); Mangieri v. Clifton, 29 F.3d 1012, 1017 (5th Cir.
1994) (“The subjective beliefs of [the officer-defendants] as to
what facts they relied upon in forming the probable cause to arrest
[plaintiff] are irrelevant to the objective reasonableness of their
actions”); Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th
Cir. 1990) (“even an officer who subjectively intends to act
unreasonably is entitled to immunity if his actions are objectively
reasonable”).
11
burden “to rebut this defense by establishing that the official’s
allegedly wrongful conduct violated clearly established law.”
Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992). We do “not
require that an official demonstrate that he did not violate
clearly established federal rights; our precedent places that
burden upon plaintiffs.” Id.
In Siegert v. Gilley, 111 S.Ct. 1789 (1991), the Court stated
that in a qualified immunity case, “the first inquiry” is whether
the plaintiff has “failed to allege the violation of a clearly
established constitutional right.” Id. at 1793. Accordingly, as
explained in Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d
521, 530 (5th Cir. 1996):
“‘In assessing qualified immunity, we engage in a two-
step analysis. First, we determine whether a plaintiff
has alleged the violation of a clearly established
constitutional right under the current state of the law.’
R.A.M. Al-Ra’id v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995).
‘Second, if the plaintiff has alleged such a
constitutional violation, we decide whether this
defendant’s conduct was “objectively reasonable,”
measured by reference to the law as clearly established
at the time of the challenged conduct.’ Id. at 31
(internal citations omitted).”
The first step will generally involve analysis at a higher level of
generality than the second, which focuses not only on the state of
the law at the time of the complained of conduct, but also on the
particulars of the challenged conduct and/or of the factual setting
in which it took place. Thus, for example, in an arrest case the
first step may be satisfied by finding that the law is (and was)
clearly established in requiring probable cause; at the second
step, we assess whether the defendant, under the particular
12
circumstances, could have reasonably concluded that probable cause
was present. See, e.g., Hunter; Anderson; Blackwell. In none of
these cases was there any relevant change in the law between the
complained of conduct and the court’s decision; and, these
decisions plainly authorized denial of relief on the basis of
qualified immunity without ultimately determining whether a
constitutional violation in fact occurred.6
II. Fourth Amendment
A. Search
The Fourth Amendment, applicable to the states by virtue of
the Fourteenth Amendment, forbids governmental violation of “[t]he
right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, . . . .”
The Supreme Court has held that this guarantee extends to searches
and seizures not only by law enforcement authorities, but also by
government officials who conduct various civil activities. See,
6
Likewise, in Gunaca v. State, 65 F.3d 467 (5th Cir. 1995), a
suit by an investigator for a district attorney’s office alleging
he was dismissed because of his political preferences contrary to
the First Amendment, we held the first step was satisfied by
Supreme Court decisions establishing that “the practice of
patronage dismissals ‘clearly infringes First Amendment
interests,’” id. at 473, and then held at the second step that the
defendant was entitled to qualified immunity because it was also
established that there was “a class of public employees . . . whose
First Amendment interests are outweighed by a governmental interest
in the employees’ political loyalty,” but “neither the Fifth
Circuit nor the Supreme Court had addressed the issue of political
patronage in the hiring or firing of investigators in district
attorneys’ offices, and neither had addressed an issue sufficiently
analogous.” Id. at 474, 475. We resolved only the issue of
qualified immunity, not whether there was in fact a constitutional
violation. Again, there was no change in the relevant law between
the time of the complained of conduct and this Court’s decision.
13
e.g., O’Conner v. Ortega, 107 S.Ct. 1492, 1496 (1987) (state
hospital officials); New Jersey v. T.L.O., 105 S.Ct. 733, 739-40
(1985) (school officials).
It is clear that, under certain circumstances, the collection
and testing of urine by the government constitutes a search subject
to Fourth Amendment constraints. Chandler v. Miller, 65 U.S.L.W.
4243 (April 15, 1997); Vernonia School District 47J v. Acton, 115
S.Ct. 2386 (1995); Skinner v. Railway Labor Executives’ Ass’n, 109
S.Ct. 1402, 1413-14 (1989); Treasury Employees v. Von Raab, 109
S.Ct. 1384, 1390 (1989); Aubrey v. School Bd. of Lafayette Parish,
92 F.3d 316, 318 (5th Cir. 1996).7
B. Non-law enforcement standards generally; Individualized
suspicion
As the Supreme Court said in Skinner, “to hold that the Fourth
Amendment is applicable to” the instant drug test:
“is only to begin the inquiry into the standard governing
such intrusions. [citations] For the Fourth Amendment
does not proscribe all searches and seizures, but only
those that are unreasonable. [citations] What is
7
In Chandler, the Supreme Court held that the Fourth Amendment
proscribed a state statute which conditioned ballot eligibility on
the candidate’s having undergone a urine test showing the absence
of drugs, notwithstanding that the urine sample could be provided
in the office of the candidate’s private physician and the test
results were first given the candidate, who controlled further
dissemination. It might be argued that Chandler’s holding that the
test taken there was one subject to Fourth Amendment constraints is
inapplicable here because, in contrast to the Chandler situation,
the private test Dr. Pierce underwent, and her disclosure to Dr.
Smith of its negative results, was not something that Dr. Smith, or
any other state official, had called for or anticipated (and Dr.
Pierce was not disciplined for failure to undergo the drug test
called for by Dr. Smith; nor did Dr. Smith or Dr. Binder have
authority to dismiss Dr. Pierce). We do not resolve this possible
question, but rather assume, arguendo, that Dr. Pierce actually
underwent a search subject to Fourth Amendment constraints.
14
reasonable, of course, ‘depends on all of the
circumstances surrounding the search or seizure and the
nature of the search or seizure itself.’ [citations]
Thus, the permissibility of a particular practice ‘is
judged by balancing its intrusion on the individual’s
Fourth Amendment interests against its promotion of
legitimate governmental interests.’ [citations]” Id. at
1414.
“In most criminal cases” this balancing of interests is struck
“in favor of the procedure described by the Warrant Clause of the
Fourth Amendment.” Id. However, “where a Fourth Amendment
intrusion serves special governmental needs, beyond the normal need
for law enforcement” a more particularized balancing is necessary
to determine reasonableness and “neither a warrant nor probable
cause, nor, indeed, any measure of individualized suspicion, is an
indispensable component of reasonableness in every circumstance.”
Von Raab at 1390. As the Court recently said in Chandler, although
Fourth Amendment reasonableness “ordinarily must be based on
individualized suspicion of wrongdoing,” nevertheless “exceptions
to the main rule are sometimes warranted based on ‘special needs,
beyond the normal need for law enforcement’ [citing Skinner at
1414]. When such ‘special needs’——concerns other than crime
detection——are alleged in justification of a Fourth Amendment
intrusion, courts must undertake a context-specific inquiry,
examining closely the competing private and public interests
advanced by the parties.” Id. at 4245-46.8 Cf. Akhil R. Amar,
Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 784 n.100
8
We note, however, that even in certain crime detection
contexts, the Court has found “special needs” obviating the
necessity for individualized reasonable suspicion. See, e.g.,
Michigan Department of State Police v. Sitz, 110 S.Ct. 2481 (1990).
15
(1994) (“. . . individualized suspicion makes sense as a
prerequisite for warrants, but it does not make sense as the test
for all searching and seizing——outside the criminal context, for
example”).
C. Special needs situations
“Special needs” for these purposes have been found in a
variety of circumstances, including “[t]he Government’s interest in
regulating the conduct of railroad employees to ensure safety . .
. its supervision of probationers or regulated industries, . . .
[and] its operation of a government office . . . [or] school.”
Skinner at 1415. And in Von Raab such a “special need” was found
respecting drug testing of Customs Service employees who would be
required to either carry firearms or engage in drug interdiction,
the Court observing “the Government’s need to discover such latent
or hidden conditions, or to prevent their development, is
sufficiently compelling to justify the intrusion on privacy
entailed by conducting such searches without any measure of
individualized suspicion.” Id. at 1392 (emphasis added). This was
so despite the fact that there was “no perceived drug problem among
Customs employees.” Id. at 1395.
On the other hand, it is clear that where the “need” is in
essence simply “symbolic”——the desire to “project” a public
“image”——it is not a “special” need for these purposes. Chandler
at 4248.
Plainly, this is a “special needs” case. It is clear that the
instant challenged search was “not designed to serve the ordinary
16
needs of law enforcement,” Von Raab at 1391, and no law enforcement
personnel were in any way involved. The present setting not only
involves the practice of medicine, an endeavor subject to extensive
governmental regulation, but also both a student-school and an
employee-supervisor relationship. Dr. Pierce was undergoing
training in the medical school’s emergency medicine residency
program, and was in essence both a student and an employee
providing professional services to the public. “In the case of
searches conducted by a public employer, we must balance the
invasion of the employees’ legitimate expectations of privacy
against the government’s need for supervision, control, and the
efficient operation of the workplace.” O’Connor at 1499. What the
Court said of the railroad employees in Skinner is true “in spades”
as to Dr. Pierce, practicing and learning emergency medicine,
namely that she “discharge[d] duties fraught with such risks of
injury to others that even a momentary lapse of attention can have
disastrous consequences.” Id. at 1419.9 Likewise, “the
9
Physicians are not immune to drug abuse. Dr. Briones,
appellants’ expert witness, a current and long-time member (and
former chairman) of the El Paso County Medical Society committee
dealing with physician substance abuse, testified that drug use was
indeed a problem among physicians. Also, one scientific study of
drug and alcohol abuse among physicians reflects that physicians
are more likely to use alcohol, benzodiazepine tranquilizers, and
opiate analgesics than their age and gender peers in the general
public. Hughes et al., Prevalence of Substance Use Among U.S.
Physicians, 267 J.A.M.A. 2333, 2336 (May 6, 1992). See also Nelson
et al., Substance-Impaired Physicians: Probationary and Voluntary
Treatment Programs Compared, 165 W.J. Med. 31 (July 17, 1996). The
Hughes study also revealed that almost eight percent of physicians
admitted to substance abuse or dependence problems at some time in
their lives. Id. See also Gary Logan, “Stress and Access Make
Doctors Vulnerable,” Wash. Post Sept. 3, 1996, at Z11 (quoting
Ronald Dougherty, a specialist in addiction medicine, as stating
“[o]ne in six physicians regularly uses opiates, one in nine
17
substantial need of teachers and administrators for freedom to
maintain order in the schools” is a special need such that “the
legality of a search of a student should depend simply on the
reasonableness, under all the circumstances, of the search.”
T.L.O. at 742.
D. Privacy expectations; Obtrusiveness
Of course, the fact that “special needs” are present does not
alone resolve the matter. The privacy interests of the party
searched must also be weighed in the balance. “[W]hether a
particular search meets the reasonableness standard is judged by
balancing its intrusion on the individual’s Fourth Amendment
interests against its promotion of legitimate governmental
interests.” Acton at 2390 (internal quotation marks omitted).
This requires consideration of, inter alia, whether the
individuals’ expectation of privacy is decreased and the relative
obtrusiveness or otherwise of the search. Id. at 2396 (“Taking
into account all the factors we have considered above——the decreased
expectation of privacy, the relative unobtrusiveness of the search,
and the severity of the need met by the search . . .”). Dr.
Pierce’s status as a student-employee in the emergency medicine
residency program diminished her legitimate expectations of privacy
vis-à-vis the search at issue. “The employee’s expectation of
privacy must be assessed in the context of the employment
relation.” O’Connor at 1497. “[I]t is plain that certain forms of
public employment may diminish privacy expectations even with
regularly uses benzodiazepines and sleeping pills, and one in 10 is
alcohol-dependent.”).
18
respect to . . . personal searches.” Von Raab at 1394. And, as
the Court said of Customs employees required to carry firearms or
interdict illegal drugs, so also with those similarly situated to
Dr. Pierce, “[b]ecause successful performance of their duties
depends uniquely on their judgment and dexterity, these employees
cannot reasonably expect to keep from the Service personal
information that bears directly on their fitness.” Id. “Unlike
most private citizens or governmental employees in general,” such
employees “reasonably should expect effective inquiry into their
fitness and probity.” Id.10
Moreover, the intrusiveness of the search here was entirely
minimal. There is no evidence that anyone observed, listened to,
or otherwise monitored the excretion of the urine sample. The
record suggests that Dr. Pierce excreted the sample alone in a
bathroom with the door closed. There is certainly nothing to the
contrary, or even to suggest that anyone listened at the door.11
Moreover, Dr. Pierce took the urinalysis at Pathlab, an independent
10
See also Chandler at 4246: “railway employers ‘by reason of
their participation in an industry that is regulated pervasively to
ensure safety’ had diminished expectations of privacy” (quoting
Skinner at 1418).
11
In Skinner and Von Raab, the urinalysis testing involved a
“monitor of the same sex as the employee remain[ing] close at hand
to listen for the normal sounds of urination” or to observe
directly as the employee produced the sample. Von Raab at 1388;
Skinner at 1413. This type of intrusive monitored testing, which
Justice Scalia found “offensive to personal dignity,” Von Raab at
1398 (dissenting opinion), and which the Court relied on in finding
a Fourth Amendment search, Skinner at 1413, was not used in the
present case.
19
laboratory that she had hand picked herself,12 without Dr. Smith (or
anyone else) being aware that she was going to undergo (or had
undergone) such a test, much less at Pathlab, until she turned over
the completely negative results to him. There is no evidence that
she disclosed to Pathlab any personal medical information, such as
what prescription medications she was using. Von Raab, 109 S.Ct.
at 1394-95 n.2. There is no evidence that the urinalysis was used
to look for, or that its results reflected, anything other than the
presence or absence of drugs, such as whether Dr. Pierce was
“epileptic, pregnant, or diabetic.” Acton, 115 S.Ct. at 2393. The
results of the test were negative for drugs, and thus, so far as
the evidence shows, nothing else about Dr. Pierce was disclosed
thereby. Moreover, had the results been positive, Dr. Pierce could
have elected not to disclose them.
Finally, other circumstances of the test also point to
nonintrusiveness. Dr. Pierce did not take the test until
approximately nine days after Dr. Robert Smith had requested that
she undergo a test as arranged for by him. This factor was deemed
important in Wyman v. James, 91 S.Ct. 381, 384, 387 (1971) (six
days advance notice of requested home visitation of AFDC welfare
recipient factor in finding of Fourth Amendment reasonableness),
which was cited with approval in this respect in Von Raab at 1394
n.2. And, as noted, the test was not undertaken for law
enforcement purposes, law enforcement personnel were not involved,
12
Dr. Pierce testified that she chose Pathlab because “that was
the only lab in downtown where I knew I could get that test done
independently.”
20
and there was no threat of force and no potential criminal or civil
penalty for refusing. All these factors were deemed important in
Wyman v. James. Id. at 386-90. Dr. Pierce was orally threatened
by Dr. David Smith with dismissal from the residency program if she
did not ultimately undergo a drug test arranged by Dr. Robert
Smith. However, only the dean of the medical school had the
authority to dismiss her (and any dismissal by the dean was subject
to suspensive appeal); and, in any event, Dr. Pierce never
underwent the test contemplated by the Drs. Smith. Dr. Pierce was
never tested by anyone acting for any governmental agency or
official; and, the wholly noninvasive private test she underwent
was not one commanded, requested, or anticipated by any state
actor.
All in all, the search here intruded only in the absolutely
most minimal way on Dr. Pierce’s Fourth Amendment interests;
certainly less so than did the searches in Acton, Von Raab, and
Skinner. In Chandler, the Court observed that the Georgia testing
“permits a candidate to provide the urine specimen in the office of
his or her private physician; and the results of the test are given
first to the candidate, who controls further dissemination of the
report,” labeled this as “relatively noninvasive,” and stated
“therefore, if the ‘special need’ showing had been made, the State
could not be faulted for excessive intrusion.” Id. at 4247.13
Here, there is plainly no more intrusiveness than in Chandler, if,
13
As previously noted, the holding in Chandler then turned
solely on the absence of any “special” need, as the need there was
in essence merely “symbolic,” a desire to “project” a public
“image.” Id.
21
indeed, as much.
E. Absence of testing policy; Individualized suspicion
Dr. Pierce does not essentially challenge the foregoing
analysis, nor does she contend that appellants were required to
obtain a warrant or establish probable cause. Instead, she
contends that, as it is undisputed that TTUHSC had no drug testing
policy for its physicians or residents, the Fourth Amendment
accordingly precluded appellants from telling her she would be
dismissed if she did not undergo urinalysis arranged by Dr. Robert
Smith, unless appellants had reasonable, individualized suspicion
that she was using illicit drugs. The character of reasonable,
individualized suspicion which Dr. Pierce contends is necessary
appears to be essentially that required for a law enforcement Terry
stop14 where the officer’s only concern respecting the person
stopped is that he may then have drugs. Dr. Pierce further
contends that there was no basis here for that character of
suspicion.
However, we conclude that the clearly established law does not
now, and did not in March 1990, categorically mandate that sort of
reasonable, individualized suspicion for all non-law enforcement,
minimally intrusive searches in special needs situations, whenever
there was no pre-existing policy authorizing the search.
To begin with, neither the Supreme Court nor this Court has
ever articulated such a categorical requirement. To the contrary,
the Court has repeatedly stated: “the Fourth Amendment imposes no
14
See Terry v. Ohio, 88 S.Ct. 1868 (1968).
22
irreducible requirement of such suspicion,” Acton at 2391; “neither
a warrant nor probable cause, nor, indeed, any measure of
reasonable suspicion is an indispensable component of
reasonableness in every circumstance,” Von Raab at 1390; “We have
made it clear, however, that a showing of individualized suspicion
is not a constitutional floor, below which a search must be
presumed unreasonable,” Skinner at 1417; “the Fourth Amendment
imposes no irreducible requirement of reasonable suspicion,” United
States v. Martinez-Fuerte, 96 S.Ct. 3074, 3084 (1976). It is true,
of course, that in each of these cases there was some sort of
policy. However, in none of these cases did the Court condition
its quoted statements with any sort of proviso, such as “so long as
there was a general policy pursuant to which the search was
conducted” or the like. To the contrary, as further elaborated
below, these opinions indicate that whether individualized
suspicion may be dispensed with depends on the particular context
and a weighing of the invasiveness of the search against the
“special needs” presented. Indeed, in T.L.O. and also in O’Connor,
in neither of which was the challenged search conducted pursuant to
any general policy, the Court, although sustaining the search after
finding reasonable suspicion, went on to expressly leave open
whether such a finding was necessary to the search’s validity.
Thus, in T.L.O. the Court stated:
“We do not decide whether individualized suspicion
is an essential element of the reasonableness standard we
adopt for searches by school authorities. In other
contexts, however, we have held that although ‘some
quantum of individualized suspicion is usually a
prerequisite to a constitutional search or seizure[,] .
. . the Fourth Amendment imposes no irreducible
23
requirement of such suspicion . . . Because the search
of T.L.O.’s purse was based upon an individualized
suspicion that she had violated school rules, . . . we
need not consider the circumstances that might justify
school authorities in conducting searches unsupported by
individualized suspicion.” T.L.O. at 743 n.8 (internal
citation omitted; emphasis added).
Two years later in O’Connor the same approach was taken, viz:
“Because petitioners had an ‘individualized suspicion’ of
misconduct by Dr. Ortega, we need not decide whether individualized
suspicion is an essential element of the standard of reasonableness
that we adopt today.” O’Connor at 1502. What the Supreme Court
has expressly left open cannot easily be described as clearly
established, particularly as we have never ruled on the matter.
Moreover, Dr. Pierce’s categorical approach seems counter to
the Supreme Court’s context-specific, balancing approach focusing
on reasonableness under all the particular circumstances. Thus, in
Chandler the Court noted that, when “‘special needs’” “other than
crime detection” were present, whether individualized suspicion was
required depended on “a context specific inquiry, examining closely
the competing private and public interests.” Id. at 4246. And, in
Acton the Court stated:
“. . . the ultimate measure of the constitutionality of
a governmental search is ‘reasonableness.’ . . .
[W]hether a particular search meets the reasonableness
standard ‘”is judged by balancing its intrusion on the
individual’s Fourth Amendment interests against the
promotion of legitimate governmental interests.”’” Id.
at 2390 (emphasis added; citations omitted).
. . . .
“It is a mistake, however, to think that the phrase
‘compelling state interest,’ in the Fourth Amendment
context, describes a fixed, minimum quantum of
governmental concern, so that one can dispose of a case
by answering in isolation the question: Is there a
24
compelling state interest here? Rather, the phrase
describes an interest which appears important enough to
justify the particular search at hand, in light of other
factors which show the search to be relatively intrusive
upon a genuine expectation of privacy.” Id. at 2394-95
(emphasis added).
Skinner also puts the matter thusly:
“. . . the Fourth Amendment does not proscribe all
searches and seizures, but only those that are
unreasonable. [citation] 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.’” Id. at 1414 (quoting United States v.
Hernandez, 105 S.Ct. 3304, 3308 (1985); emphasis added).
O’Connor states that for Fourth Amendment purposes “‘. . . [w]hat
is reasonable depends on the context within which the search takes
place.’” Id. at 1498 (emphasis added); quoting T.L.O. at 470).
O’Connor continues by explaining:
“A determination of 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.’ [citation] In the case of
searches conducted by a public employer, we must balance
the invasion of the employees’ legitimate expectations of
privacy against the government’s need for supervision,
control, and the efficient operation of the workplace.”
Id. at 1498-99 (emphasis added).
. . . .
“. . . [P]ublic employer intrusions on the
constitutionally protected privacy interests of
government employees . . . should be judged by the
standard of reasonableness under all the circumstances.”
Id. at 1502 (emphasis added).
Dr. Pierce relies on Delaware v. Prouse, 99 S.Ct. 1391 (1979).
There, Prouse was indicted for illegal possession of marihuana
seized from the car he was riding in when it was stopped by a
Delaware police officer who thereafter observed the marihuana in
25
plain view on the car floor. The patrolman stopping the vehicle
“had observed neither traffic or equipment violation nor any
suspicious activity,” and “made the stop only in order to check the
driver’s license and registration”; he “was not acting pursuant to
any standards, guidelines, or procedures pertaining to document
spot checks, promulgated by either his department or the State
Attorney General.” Id. at 1394. The only reason given for the
stop was “‘I saw the car in the area and wasn’t answering any
complaints, so I decided to pull them off.’” Id. The state trial
court granted Prouse’s motion to suppress the marihuana, “finding
the stop and detention to have been wholly capricious and therefore
violative of the Fourth Amendment.” Id. This ruling was affirmed
by the Delaware Supreme Court and, ultimately, by the Supreme Court
of the United States. The Court observed that it had “only
recently considered the legality of investigative stops of
automobiles where the officers . . . have neither probable cause to
believe nor reasonable suspicion that either the automobile or its
occupants are subject to seizure under applicable criminal laws.”
Id. at 1397 (emphasis added). It analogized the case before it to
United States v. Brignoni-Ponce, 95 S.Ct. 2574 (1975), where the
Court had rejected the assertion that “Border Patrol agents
conducting roving patrols . . . near the international border”
could constitutionally “stop at random any vehicle in order to
determine whether it contained illegal aliens or was involved in
smuggling,” and had held that such stops were valid only if based
on the reasonable suspicion required for a Terry stop. Prouse at
1397. The Court noted that both stops such as that in Prouse and
26
those in Brignoni-Ponce “generally entail law enforcement officers”
exhibiting “a possibly unsettling show of authority.” Prouse at
1398 (emphasis added). This was contrasted to the fixed checkpoint
stops, upheld in Martinez-Fuerte, “where all vehicles are brought
to a halt or a near halt, and all are subjected to a show of the
police power” and “‘the motorist can see that other vehicles are
being stopped, he can see visible signs of the officers’ authority,
and he is much less likely to be frightened or annoyed by the
intrusion.’” Prouse at 1398. The Court went on to hold violative
of the Fourth Amendment “subjecting every occupant of every vehicle
on the roads to a seizure . . . at the unbridled discretion of law
enforcement officials.” Id. at 1400 (emphasis added). It
explained that “absent reasonable suspicion that the driver is
unlicensed or his vehicle unregistered . . . we cannot conceive of
any legitimate basis upon which a patrolman could decide that
stopping a particular driver for a spot check would be more
productive than stopping any other driver.” Id. The Court
observed that it did “not preclude” other “spot checks that involve
less intrusion or that do not involve the unconstitutional exercise
of discretion,” and concluded “we hold only that persons in
automobiles on public roadways may not for that reason alone have
their travel and privacy interfered with at the unbridled
discretion of police officers.” Id. at 1401 (emphasis added).
Though Prouse is doubtless somewhat supportive of Dr. Pierce’s
contentions, we conclude that it does not suffice to clearly
establish that in the present context her Fourth Amendment rights
were violated unless Drs. Smith and Binder had such reasonable
27
suspicion that she was using drugs as would be required for a law
enforcement Terry stop where the only concern is that the person
stopped may then have illegal drugs.
To begin with, as Prouse states over and over, it is a law
enforcement stop by police case. That is certainly not this case.
And that makes a real difference, as explained in O’Connor:
“Even when employers conduct an investigation, they have
an interest substantially different from ‘the normal need
for law enforcement.’ [citation] Public employers have
an interest in ensuring that their agencies operate in an
effective and efficient manner, and the work of these
agencies inevitably suffers from the inefficiency,
incompetence, mismanagement, or other work-related
misfeasances of its employees. Indeed, in many cases,
public employees are entrusted with tremendous
responsibility, and the consequences of their misconduct
or incompetence to both the agency and the public
interest can be severe. In contrast to law enforcement
officials, therefore, public employers are not enforcers
of the criminal law; instead, public employers have a
direct and overriding interest in ensuring that the work
of the agency is conducted in a proper and efficient
manner.” Id. at 1501.
O’Connor goes on to state: “We hold, therefore, that public
employer intrusions on the constitutionally protected privacy
interests of government employees . . . should be judged by the
standard of reasonableness under all the circumstances.” Id. at
1502. O’Connor then expressly declines to “decide whether
individualized suspicion is an essential element of the standard of
reasonableness we adopt today.” Id. As the O’Connor search was
not pursuant to any general policy, and as O’Connor was decided
after Prouse, Prouse cannot have clearly established what Dr.
Pierce contends it did.
Further, in Prouse the Court stressed that there was nothing
which distinguished the vehicle stopped from any other vehicle on
28
the highway. In Skinner, however, the Court sustained a regulation
giving railroad officials discretion to select particular employees
for drug testing, without individualized suspicion of drug use,
provided they had been involved in certain operating rule
violations, including noncompliance with a sign and excessive
speeding. Id. at 1410. Similarly, in Martinez-Fuerte, all
vehicles had to go through the fixed checkpoint, but “most” went
through “without any oral inquiry or close visual examination,”
being barely stopped or allowed to “merely ‘roll’ slowly through
the checkpoint.” Id. at 3078 & n.1. “In a relatively small number
of cases,” vehicles were required to proceed “to a secondary
inspection area, where their occupants are asked about their
citizenship and immigration status” and at which “the average
length of an investigation” was “three to five minutes.” Id. at
3078.15 The Court held the selective reference to the secondary
inspection area did not have to be made on the basis of any
articulable, individualized suspicion. Id. at 3078, 3085.
Obviously, the intrusion selectively suffered by occupants of the
less than one percent of vehicles at the checkpoint which were
referred to secondary was far greater than that undergone by all
the other vehicles which merely barely stopped or rolled slowly
through the checkpoint without any oral inquiry or close visual
examination. Nevertheless, the Court concluded that “[a]s the
intrusion here is sufficiently minimal . . . no particularized
15
In one eight-day period, “roughly 146,000 vehicles passed
through the checkpoint” and “[o]f these, 820 vehicles were referred
to the secondary inspection area.” Id. at 3081.
29
reason need exist to justify” the referral to secondary. Id. at
3085.
Moreover, the presence of a testing policy would not have
materially ameliorated the situation from the point of view of one
in Dr. Pierce’s position. Following Skinner and Martinez-Fuerte,
a presumably permissible policy could have provided that a resident
guilty of program misconduct sufficient to justify dismissal——as Dr.
Pierce surely was——could, in the discretion of the supervisory
program officials as part of their evaluation of whether the
underlying misconduct should result in the dismissal of the
particular resident, be directed to provide the results of a urine
drug test in connection with a psychological evaluation, with the
penalty for the underlying misconduct to be dismissal in the event
of refusal to furnish the test results. While such a policy would
have given Dr. Pierce advance notice that a drug test might be
required if she engaged in dismissable program misconduct, the
penalty for not providing the drug analysis would simply be that
the underlying misconduct would be penalized by dismissal as it
could have been whether or not a test was requested and refused, a
matter common sense would adequately notify Dr. Pierce of. And,
under such a policy, there would be no more discretion than in
Skinner for discretionary tests for rules violations or in
Martinez-Fuerte for discretionary referral to secondary inspection.
We conclude that in a situation of this character——a non-law
enforcement, employer-school search where there are very special
needs and the intrusiveness of the search and the subject’s privacy
interests are minimal——there is not now, and was not in March 1990,
30
any clearly established Fourth Amendment requirement for either an
existing general search policy or individualized suspicion of the
type required for a law enforcement Terry stop for drug possession.
This is not to say that there must not be some legitimate reason
for the individual being singled out.16 The search must be
reasonable under all the circumstances, balancing the individual’s
privacy interests against the interests of the governmental
institution.
III. Qualified Immunity Here
We turn now to the final qualified immunity issue: would all
reasonable state medical school residency program supervisors,
similarly situated to Drs. Smith and Binder and with the
information they had, have realized that their conduct was
unreasonable under all the circumstances, balancing Dr. Pierce’s
privacy interests against the interests of TTUHSC, and hence
invaded Dr. Pierce’s Fourth Amendment rights? On the basis of the
undisputed historical facts, we answer this question in the
negative.
When Dr. Smith, director of the TTUHSC residency program,
learned of the February 22 incident at St. Joseph’s in Phoenix, he
was objectively faced with what could reasonably be considered as
a most serious situation. Dr. Pierce, one of the TTUHSC residents
in its emergency medicine residency program, while on brief
16
We do not suggest that those in state medical school
residency programs may for that reason alone be required, on pain
of dismissal, to undergo ad hoc drug testing at the whim and
unbridled discretion of program officials having no more reason to
single out one resident than another. But that, of course, is not
the situation here.
31
rotation at St. Joseph’s, had slapped an emergency room patient in
the face. The patient was about to undergo a CAT scan for a
possible internal head injury following an automobile accident in
which he had smashed through his car’s windshield. He was flat on
his back on the CAT scan table, was under restraints, and
technicians were holding him down. Dr. Pierce stated that after
she tightened his restraints he spat in her face, and she then
slapped him, not for any therapeutic purpose but in an impulsive
reaction of surprise or anger. However, she slapped him at least
twice, three times according to the March 2 letter to Dr. Smith
from Dr. Shamos, director of the St. Joseph’s trauma center. Dr.
Pierce described the slaps as “hard” and “fairly hard.” After she
had “hard slapped” the patient, Dr. Pierce, who was the only
physician present, left the room and washed her face. She returned
and approached the patient, whereupon, as she described it, “a
nursing supervisor came and grabbed me by the arm and physically
pulled me away from” the patient, saying something like “get away
from him.” Dr. Pierce thereafter remained outside the room, where
she was when, some time later, the other physician on duty arrived.
The St. Joseph’s administration initially wanted to
immediately terminate Dr. Pierce, but she was ultimately allowed to
participate in the remaining three days of her rotation, provided
she underwent counseling, which she did. The counselor recommended
that on her return to El Paso “she contact the University
Psychiatric department to continue counseling sessions.”
Dr. Pierce, a licensed physician, was in the residency program
in order to become a board certified emergency room physician. She
32
admitted the obvious: that she was in the program both to learn
and to be taught; that she sought a diploma or certificate from
Texas Tech which would in substance attest to her special
competence as an emergency room physician; that it was “common to
have aggressive patients in the ER” and not “a rare occasion” for
“a hostile or aggressive patient” to come in; that her slapping the
patient was inappropriate; that the practice of medicine “requires
that a doctor be able to make calm, rational decisions in life or
death situations,” and emergency medicine physicians need to be
“capable of remaining calm and engaging in rational behavior in the
heat of emergency situations” and “able to react calmly and coolly
in tough situations”; and that it was appropriate for those in
charge of the residency program to assess her ability to do those
things, as well as to assess whether she had good interpersonal
skills, which would be needed in an emergency room setting, and
also to investigate the reasons why she engaged in inappropriate
behavior.
This was not the first time Dr. Pierce had come to the
unfavorable attention of the TTUHSC faculty and administration.
During the previous summer, a faculty committee had found that her
“performance was not up to the level of acceptable standards” and
she had been placed on probation for, among other things, excessive
tardiness, failing to carry an acceptable number of patients, and
poor interpersonal relationships with faculty and patients. At
that time in 1989 some of the faculty discussed drug use as one of
the possible explanations for Dr. Pierce’s behavior. Dr. Nelson
had even questioned her about drug use, receiving a negative
33
response.17 Although her probation had ended before her St.
Joseph’s rotation——and the St. Joseph’s personnel were unaware of
it——some of Dr. Pierce’s same problems continued. Dr. Shamos’s
written evaluation of her at St. Joseph’s ranked her in the very
lowest category in each of the areas of “Patient Relationships” and
“Professional Relationships.”
Dr. Smith, as a result of learning of the February 22
incident, placed Dr. Pierce on probation, with pay, pending
investigation. It was determined to have Dr. Pierce undergo a
psychiatric evaluation and, in connection with it, a drug urine
test. When Dr. Pierce was informed of this, she objected to the
drug analysis. Dr. Smith told her he would take it up with the
faculty, and she was ultimately told by Dr. Smith she would be
dismissed if she refused to be tested.18 However, Dr. Pierce did
not commit herself and no action was taken. On March 23——some nine
days after first being notified of the drug test scheduled for her
by Dr. Robert Smith——Dr. Pierce, without any prior notice to anyone
at TTUHSC, was tested in a wholly unobtrusive manner by a private
laboratory of her own choosing that furnished the results, which
were negative, to her only. After Dr. Smith received this report
from Dr. Pierce, and after he also received the psychiatric
17
In fact, Dr. Pierce testified that she had smoked marihuana
prior to or during the summer of 1989 with other TTUHSC residents.
However, neither the appellants nor any member of the TTUHSC
faculty knew of this in March 1990.
18
As noted, Dr. Smith did not have the authority to discharge
Dr. Pierce; if she had been discharged by the Texas Tech medical
school dean, she would have had appeal and hearing rights before
the discharge could have become effective.
34
evaluations of Dr. Pierce by Dr. Robert Smith and Dr. Salo,19 Dr.
Pierce’s probation was lifted.
Objectively, there was ample, reasonable basis for singling
out Dr. Pierce for special scrutiny and investigation of a kind not
applicable to others in the residency program. Dr. Pierce, not
long after coming off probation, committed serious professional
misconduct in her capacity as a member of the residency program.
In light of these occurrences, a decision had to be made as to
whether, or under what circumstances, TTUHSC would allow her to
remain a part of its emergency medicine residency program. Drug
test results——like the psychiatric evaluations——were simply to be
one part of that decision-making process, not its ultimate focus or
sole determinant. Objectively, something caused Dr. Pierce’s
behavior in the program to be seriously inappropriate. What things
associated with her brought this about? Information in this
respect could objectively enhance the reliability of the ultimate
decision to be made as to the appropriate future for Dr. Pierce in
the residency program.
As we have observed, drug use among physicians has indeed been
a problem (see note 9, supra). Appellants’ expert witness Dr.
Briones testified that Dr. Pierce exhibited many of the behavioral
problems that are symptomatic of drug use, such as incidents of
unprofessional and out-of-character behavior, unexplained absences,
and tardiness. See also Michael Fleming, Physician Impairment:
Options for Intervention, 50 Am. Fam. Physician 41 (July 1, 1994)
19
Dr. Salo was the clinical psychologist selected by Dr.
Pierce.
35
(explaining that substance problem indicators include “changes in
work habits, unusual work schedule, a change in prescribing habits,
procedural errors, complaints from staff and patients, and severe
medical record tardiness”). Drug use, though not objectively shown
to be a likely cause in Dr. Pierce’s case, could at least be
reasonably considered as one possible contributing factor, and it
was not objectively unreasonable to want some further information
which could either confirm or render less likely that possibility.
This approach was not necessarily calculated to be detrimental to
Dr. Pierce. She could only benefit from a negative drug test.
However, she delayed for several days.20
We recognize that in order to preclude qualified immunity it
20
Dr. Pierce maintains that a drug test would have been too
late to shed any light on the February 22 incident. It is true
that it was rather unlikely that drugs present then would show up
as late as March 17, twenty-three days later, when the test
arranged by Dr. Robert Smith was initially scheduled to be
performed. But it is not wholly improbable. See, e.g., Von Raab
at 1396 (“Petitioners’ own expert indicated below that the time it
takes for particular drugs to become undetectable in urine can vary
widely depending on the individual, and may extend for as long as
22 days”; and noting this Court’s “reliance on certain academic
literature that indicates that testing of urine can discover drug
use for . . . weeks after the ingestion of the drug” [internal
quotation marks omitted]); 49 C.F.R. § 219.309(b)(2) (1987)
(“Because of its sensitivity, the urine test may reveal whether or
not you have used certain drugs within the recent past (in a rare
case, up to sixty days before the sample is collected) . . . if you
provide a blood sample there will be no presumption of impairment
from a positive urine test. If you have used any drug off the job
(other than a medication that you possessed lawfully) in the prior
sixty days, it may be in your interest to provide a blood sample.
If you have not made unauthorized use of any drug in the prior
sixty days, you can expect that the urine test will be negative;
and you may not wish to provide a blood sample”). More
importantly, if drugs played a part in Dr. Pierce’s behavioral
problems, it was not unlikely that she ingested them with some
regularity. Finally, this sort of argument was rejected in both
Von Raab and Skinner.
36
is not necessary that “the very action in question has previously
been held unlawful,” Anderson at 3039, or that the plaintiff “point
to a previous case that differs only trivially from his case.”
K.H. Through Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990)
(emphasis added). However, the facts of the previous case “do need
to be materially similar.” Lassiter v. Alabama A&M University, 28
F.3d 1146, 1150 (11th Cir. 1994) (en banc) (emphasis added). We
also recognize that the egregiousness and outrageousness of certain
conduct may suffice to obviously locate it within the area
proscribed by a more general constitutional rule: “There has never
been a section 1983 case accusing welfare officials of selling
foster children into slavery; it does not follow that if such a
case arose, the officials would be immune from damages liability .
. .” K.H. Through Murphy at 851. But the same common sense which
informs this teaching likewise prevents its expansion to the point
of rendering qualified immunity an insignificant aberration or
infringing on the settled doctrine that “[i]t is not enough, to
justify denying immunity, that liability in a particular
constellation of facts could have been, or even that it was,
predicted from existing rules and decisions. . . . Liability in
that particular set [of facts] must have been established at the
time the defendant acted.” Id. As the en banc Eleventh Circuit
stated in Lassiter: “For qualified immunity to be surrendered,
pre-existing law must dictate, that is, truly compel (not just
suggest or allow or raise a question about), the conclusion for
every like-situated, reasonable government agent that what
defendant is doing violates federal law in the circumstances.” Id.
37
at 1150. These principles have particular force where, as here,
resolution of whether the defendant’s conduct violated the
constitutional provision sued on is heavily dependent on a
balancing or weighing against each other of different factors
according to the degree they are present in the matrix of facts
constituting the particular context in which the asserted violation
occurred. See, e.g., Gunaca at 474-75; Noyola v. Texas Department
of Human Resources, 846 F.2d 1021, 1025 (5th Cir. 1988).21 See also
Lassiter at 1150.22
Considering that Skinner authorized drug tests on a
21
In Gunaca, we approvingly described and quoted from our
decision in Noyola, as follows:
“Because our consideration of such First Amendment claims
involves a case-specific balancing of the employee’s
First Amendment rights and the government’s interest in
maintaining discipline and efficiency in the work place,
[citing Noyola], we held that ‘[t]here will rarely be a
basis for a priori judgment that the termination or
discipline of a public employee violated “clearly
established” constitutional rights.’” Gunaca at 474
(quoting Noyola at 1025).
22
Thus Lassiter states:
“The line is not to be found in abstractions——to act
reasonably, to act with probable cause, and so forth——but
in studying how these abstractions have been applied in
concrete circumstances. [citation and internal quotation
marks omitted] And, as the en banc court recently
accepted:
‘When considering whether the law applicable
to certain facts is clearly established, the
facts of cases relied upon as precedent are
important. The facts need not be the same as
the facts of the immediate case. But they do
need to be materially similar. [citation]
Public officials are not obligated to be
creative or imaginative in drawing analogies
from previously decided cases.’” Id. at 1150
(citations omitted).
38
discretionary, ad hoc basis if the employee had been involved in
certain rule violations but without further individualized
suspicion, that that principle had not (and has not) been held by
the Supreme Court or this Court to be dependent on the prior
existence of a rule so providing, and that objective factors
distinguished Dr. Pierce from other residents in the program so
that she was not singled out arbitrarily or capriciously, and
considering also the minimal intrusiveness and extent of the
invasion of Dr. Pierce’s Fourth Amendment interests and the
legitimate special needs of the medical school program where she
was a student-employee, we conclude that Drs. Smith and Binder are
entitled to qualified immunity as a matter of law. The question is
not whether other reasonable or more reasonable courses of action
were available. It is, rather, whether of medical school officials
similarly situated to Drs. Smith and Binder “all but the plainly
incompetent” would have realized at the time that what they did
violated Dr. Pierce’s Fourth Amendment rights. Hunter at 537;
Blackwell at 304. Under the circumstances, that question must be
answered in the negative.
Conclusion
We hold that appellants are entitled to qualified immunity as
a matter of law. The judgment of the district court is accordingly
reversed, and the cause is remanded with directions to enter
judgment for appellants.
REVERSED
39
ENDRECORD
40
DENNIS, Circuit Judge, dissenting.
I emphatically disagree with the majority’s conclusion that
the state attorney general has shown that this case falls within
the closely guarded “special needs” category recently recognized by
the Supreme Court within which a state officer without reasonable
individualized suspicion of wrongdoing may require a person to
submit to an urinalysis drug test. In this case state medical
school administrative officers, without reasonable individualized
suspicion that a physician-resident trainee’s urine contained
evidence of illegal drug usage (and in the absence of any
established drug testing policy) ordered her to submit to an
urinalysis drug test, on pain of termination of her employment,
residency training, and severe or fatal damage to her medical
professional career. The state attorney general concedes that the
state compelled drug test effected a search within the meaning of
the Fourth and Fourteenth Amendments. See Defendants-Appellants’
Brief p. 11. Both the currently applicable law, and the clearly
established law at the time the state officers ordered the
physician-resident to submit to urinalysis drug testing (March,
1990), require that a state officer have an individualized
reasonable suspicion that illegal drug use evidence is contained in
a person’s urine before ordering her to submit to an urinalysis
drug test. The majority’s erroneous conclusion that the state’s
proffered “special need” for drug testing justified the suppression
of the Fourth Amendment’s normal requirement of individualized
suspicion led to its mistaken reversal of the district court’s
judgment implementing jury awards to the plaintiff of compensatory
41
and punitive damages. Accordingly, I respectfully dissent.
I. Issues On Appeal
On appeal, the state attorney general, on behalf of the
defendants-appellants, assigns and argues for reversal of the
district court’s judgment and the plaintiff’s jury-awarded damages
on four issues: (1) The district court erred in denying defendants’
motion for judgment as a matter of law because no individualized
suspicion was required to justify the defendants in compelling Dr.
Pierce to submit to an urinalysis drug test; (2) Alternatively,
the district court erred in not granting defendants’ motion for
judgment as a matter of law because reasonable minds could not
differ that the defendants had reasonable grounds to suspect that
Dr. Pierce was using illegal drugs at the time she was ordered to
submit to an urinalysis; (3) The district court erred in denying
defendants’ motions for summary judgment and judgment as a matter
of law because at the time the defendants ordered Dr. Pierce to
take the drug test the law was not clearly established that an
individualized reasonable suspicion of wrongdoing was required
before a state officer could order a public employee or public
professional school student to submit to an urinalysis drug test;
and (4) The district court erred in denying judgment as a matter
of law on the question of punitive damages.
That the state officers’ actions invaded an expectation of
privacy that society is prepared to recognize as reasonable is not
disputed. The state attorney general, on behalf of the defendants-
appellants, expressly does “not contest that whether the actions
that were taken constituted a ‘search’ within the meaning of the
42
Fourth Amendment.” Defendants-Appellants’ Brief p. 11.
II. Analysis of Overlapping Issues
Issues 1. & 3. The clearly established law now and always has
required that state officers have at least reasonable
individualized suspicion of wrongdoing before ordering a free adult
person to submit to an urinalysis drug test.
The currently applicable law and the clearly established law
at the time the state officers ordered the physician-resident
trainee to submit to urinalysis in March, 1990 require that a
state officer have an individualized reasonable suspicion that a
person’s urine contains evidence of illegal drug use before
ordering her to submit to an urinalysis drug test. In 1989, the
Supreme Court, in Skinner v. Railway Labor Executives Ass’n., 489
U.S. 602 (1989) and National Treasury Employees Union v. Von Raab,
489 U.S. 656 (1989), recognized a “special needs” category of cases
involving train operators and Customs Service agents and permitted
suspicionless government mandated urinalysis of such persons under
the particular and unique circumstances and regulated drug testing
programs in those cases. Previously, Supreme Court Justices, in
dicta and separate opinions, had spoken of “special needs” in
contexts other than urinalysis drug testing but clearly had not
designated a “special needs” category for suspicionless searches or
seizures. Subsequent to Skinner and Von Raab the Supreme Court, in
Vernonia School District 47J v. Acton, 115 S.Ct. 2386 (1995),
recognized a “special needs” category for suspicionless random
sample urinalysis of secondary school athletes with parental
43
consent under the particular, unique circumstances and detailed
written drug-testing policy in that case. Recently, in Chandler v.
Miller, ---U.S.---, 117 S.Ct. 1295 (1997), the Supreme Court held
that a state’s statutory requirement that candidates for state
office submit to an urinalysis drug test does not fit within the
closely guarded “special needs” category of constitutionally
permissible suspicionless searches established by Skinner, Von Raab
and Vernonia and that those precedents remain the guides for
determining whether any proffered “special needs” for suspicionless
drug testing passes constitutional muster. In the present case, it
is clear that the state officers’ order that the adult physician-
resident trainee submit to urinalysis drug testing, which was not
based on reasonable individualized suspicion, did not fit within
the closely guarded “special needs” category of constitutionally
permissible suspicionless searches, because the ad hoc drug test
order was not supported by an established drug testing program or
a showing of any of the factors necessary to justify a “special
needs” category and suspicionless drug testing policy or program.
A. Overview, Including The Law At
The Time Of The Urinalysis Drug Test
Order In The Present Case And Prior
Thereto.
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
44
by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be
seized.
Until the late 1960's, the steadfast rule was that in order
for a search to be “reasonable,” law enforcement officials must
first obtain a warrant from a neutral and detached magistrate by
establishing probable cause that a law had been violated; and that
in the few specific situations in which obtaining a warrant was
deemed impracticable probable cause was still required. See, e.g.,
Carroll v. United States, 267 U.S. 132 (1925); Agnello v. United
States, 269 U.S. 20 (1925). As the Supreme Court considered
nontraditional applications of the Fourth Amendment, however, such
as searches by public inspections officials, See Camara v.
Municipal Court, 387 U.S. 523 (1967), and frisks by police
officers, Terry v. Ohio, 392 U.S. 1 (1968), it found it needed more
flexibility than the warrant and probable cause requirements could
provide. The Court began, in limited circumstances, to recognize
specific permissible departures from the traditional probable cause
requirement, after “balancing the need to search against the
invasion which the search entails”. Camara, 387 U.S. at 537; See
Terry, 392 U.S. at 21. The departures have been of two different
kinds: (1) those requiring only reasonable individualized
suspicion; and (2) those requiring no individualized suspicion but
only a random or other nonarbitrary selection process. See Wayne
R. LaFave, Computers, Urinals, and Fourth Amendment: Confessions of
a Patron Saint, 94 MICH. L. REV. 2553, 2575-1576 (1996)[hereinafter
45
LaFave]; Cf. Terry v. Ohio, supra, and Camara v. Municipal Court,
supra.
Each situation in which the Supreme Court has created an
exception that allows an intrusion without reasonable
individualized suspicion is markedly different from the state
mandated urinalysis test situation in the present case. In
comparison, each of those cases is clearly distinguishable from the
present case on one or more of the following grounds: (1) the
nature of the intrusion was much less severe; (2) the magnitude of
the governmental need for the search was far greater; and/or (3) it
was impracticable or impossible to respond to the governmental
need with the individualized suspicion requirement. See LaFave at
2577. (citing and referencing cases).
For example, the premises inspection cases do not involve a
serious intrusion upon personal privacy because even the housing
inspections, and especially the business inspections, are not
“personal in nature.” Camara, 387 U.S. at 537. The concern of the
inspector is directed toward such facilities as the plumbing,
heating, ventilation, gas and electrical systems, and toward the
accumulation of garbage and debris, and there is no rummaging
through private papers and effects of the householder. By
comparison, the type of search at issue in the present case is very
personal in nature, intruding upon “an excretory function
traditionally shielded by great privacy.” Skinner, 489 U.S. at
626; LaFave at 2577-2578.
The present case is distinguishable from the “special needs”
urinalysis cases, and from other Fourth Amendment cases, in which
46
searches without individualized suspicion were permitted, because
those cases involved far greater magnitudes of risks. The searches
in those cases were responsive to situations in which even one
undetected instance of wrongdoing could have injurious consequences
for a great number of people: as in the case of building
inspections, even a single safety code violation can cause fires
and epidemics that ravage large urban areas. Camara, 387 U.S. at
535; as in airport screening, where even a single hijacked plane
can result in the destruction of hundreds of human lives and
millions of dollars of property. United State v. Edwards, 498 F.2d
496, 500 (2d Cir. 1974); as in particular comprehensive drug-
testing programs, in Skinner for example, where a single drug-
impaired train operator could produce disastrous consequences
including great human and property loss, Skinner, 489 U.S. at 628;
in Von Raab, where a customs official using drugs could cause the
noninterdiction of a sizable drug shipment and consequently injury
to the lives of many, and perhaps a breach of national security,
Von Raab 489 U.S. at 670, 674.; and in Vernonia in which the
significant government interest in a drug free secondary
educational and athletic environment has a national impact of great
magnitude on vast numbers of school children who are not free
adults but are under the guardianship of public school districts
throughout the country. Vernonia Sch. Dist. 47J v. Acton, ---U.S.--
-, 115 S.Ct. 2386 (1995); See LaFave at 2578.
Most important of all, the cases allowing a search without
individualized suspicion upheld the suspicionless searches only
after recognizing the Fourth Amendment’s general rule requiring at
47
least reasonable individualized suspicion, and then pointed to
sound reasons why that standard would be unworkable under the
unusual circumstances presented. In Camara, the court emphasized
that an individualized suspicion test was impracticable for safety
inspections because evidence of code violations ordinarily was not
observable from outside the premises. Camara, 387 U.S. at 537.
Suspicionless searches of prisoners after contact visits are
permissible precisely because the extent of scrutiny necessary to
obtain individualized suspicion would cause obvious disruption of
the confidentiality and intimacy that these visits are intended to
afford. Bell v. Wolfish, 441 U.S. 520, 560 n.40 (1979) In
Skinner, requiring individualized suspicion for testing train
operators after an accident was not feasible because “the scene of
a serious rail accident is chaotic.” Skinner, 489 U.S. at 631. In
Von Raab, the suspicion requirement for testing customs officials
was impractical because it was “not feasible to subject [such]
employees and their work product to the kind of day-to-day scrutiny
that is the norm in more traditional office environments.” Von
Raab, 489 U.S. at 174. The border search and airport search cases
are obviously distinguishable because in each the authorities are
in a now-or-never situation as to large numbers of travelers who
could not feasibly have been subjected to prior unintrusive
scrutiny. See, e.g., United States v. Ramsey, 431 U.S. 606 (1977);
United States v. Moreno, 475 F.2d 44 (5th Cir. 1974); LaFave at
2578-2579.
By contrast, there is no comparable justification or precedent
for allowing the state medical school administrative officers in
48
the present case to order physician-resident trainee drug tests
without individualized suspicion. Each relatively small group of
residents is under constant supervision and/or observation by
veteran doctors, nurses, hospital workers, administrators and
peers. In this case, Dr. Pierce was one of only six residents in
Texas Tech’s emergency medicine program. Plainly, there has been
no showing that the reasonable individualized suspicion test would
likely be ineffectual under the circumstances of the Physician-
residents’ employment and training.
B. The Pre-Skinner Urinalysis Cases
Prior to Skinner v. Railway Labor Executive’s Ass’n., 489 U.S.
602 (1989), and National Treasury Employees Union v. Von Raab, 489
U.S. 656 (1989), the consensus of courts, which ruled upon the
validity of urine tests for public employees required as a
prerequisite some articulable basis for suspecting that the
employee was using illegal drugs, usually framed as “reasonable
suspicion.” See 4 LaFave, SEARCH AND SEIZURE--A TREATISE ON THE FOURTH
AMENDMENT, §103(e), p.498 (3d ed. 1996)(citing cases at n.180);
Miller, Mandatory Urinalysis Testing and the Privacy Rights of
Subject Employees: Toward a General Rule of Legality Under the
Fourth Amendment, 44 U.PITT.L.REV. 201, 218-230 (1986)(discussing
cases). “[V]irtually all the reported cases...concluded that such
testing is unconstitutional in the absence of some reasonable
individualized suspicion.” Fraternal Order of Police v. City of
Newark, 524 A.2d 430, 436 (N. J. 1987)(The “reasonable
49
individualized suspicion test fairly accommodates the legitimate
interest of employee privacy without unduly restricting the public
employer’s opportunity to monitor and control the use of drugs by
employees.”)
There were exceptions to this general rule for positions
involving some unusually pressing public safety or security
concerns, such as correctional officers in direct contact with
dangerous prisoners, utility employees with access to vital areas
of nuclear power plants, or narcotics officers with dangerous
undercover assignments. But suspicionless testing was generally
rejected for public employees with less unusual responsibilities,
including ordinary police officers. Schulhofer, On the Fourth
Amendment Rights of the Law-Abiding Public, 1989 SUP. CT. REV. 87,
129-130 (1990)(citing cases).
C. The Majority’s Mistaken Reliance
On Pre-Skinner “Special Needs” Dicta
In Inapposite Non-Drug Test Cases
The Supreme Court did not actually establish and apply the
“special needs” category permitting suspicionless urinalysis drug-
testing of certain types of employees until 1989 in Skinner and Von
Raab. Previously, the Supreme Court Justices had spoken of
“special needs” in dicta and in a separate opinion in a few cases
that did not involve drug testing or a personal privacy invasion as
serious as the compelled collection and analysis of a person’s
urine. Moreover, the Supreme Court in those cases upheld the
search or seizure as having been based upon a reasonable
50
individualized suspicion.
In New Jersey v. T.L.O., 469 U.S. 325 (1985), the Court found
that a teacher’s report that a high school student had been smoking
on school premises contrary to rules amounted to a reasonable
suspicion that the student’s purse contained cigarettes. In
O’Connor v. Ortega, 480 U.S. 709 (1987), the Court found that
charges of specific improprieties gave an employer the
individualized suspicion of employment related sexual and other
misconduct of Dr. Ortega to justify a search of his desk on
government premises. In Griffin v. Wisconsin, 483 U.S. 868 (1987),
the Court found that the tip received by a police officer that a
probationer was storing guns in his apartment provided reasonable
suspicion of wrongdoing.
The majority opinion’s attempt to characterize these cases as
representing the establishment of expansible “special needs”
categories prior to and unlimited by Skinner, Von Raab and
Vernonia, is untenable. The majority’s reasoning is not only
inconsistent with the Skinner trilogy, it is based entirely on
dicta and it completely disregards the incongruous subject matter
and holdings of those decisions as well as other statements
contradictory to its thesis in the opinions. See Griffin, 483 U.S.
at 876; O’Connor, 480 U.S. at 726; T.L.O., 469 U.S. at 342 & n.8.
D. The Currently Existing Law
The Supreme Court in its most recent urinalysis drug test
51
case, reaffirmed that the Fourth Amendment requires the government
to respect the right of people to be secure in their persons
against unreasonable searches and seizures, and that to be
reasonable under the Fourth Amendment, a search ordinarily must be
based on individualized suspicion of wrongdoing. Chandler v.
Miller, 117 S.Ct. 1295, 1298 (1997)(citing Vernonia School Dist.
47J v. Acton, 115 S.Ct. 2386, (1995)). However, in limited
circumstances, where the privacy interests implicated by the search
are minimal, and where an important governmental interest furthered
by the intrusion would be placed in jeopardy by a requirement of
individualized suspicion, a search may be reasonable despite the
absence of such suspicion. Chandler, 117 S.Ct. at 1298, (quoting
Skinner, 489 U.S. at 624); see also Von Raab, 489 U.S. at 665-66.
The court clearly indicated that Skinner and Von Raab must be
read in their unique contexts. Skinner concerned Federal Railroad
Administration (FRA) regulations that required blood and urine
tests of rail employees involved in train wrecks. The FRA adopted
the drug-testing program in response to evidence of on the job drug
and alcohol abuse by railroad train crews, the enormous safety
hazard posed by such abuse, and the documented nexus between
impaired employees and the incidence of train accidents. Factors
tending to offset the privacy concerns were that the regulations
reduced intrusiveness; the fact that the industry was regulated
pervasively for safety diminished privacy expectations; the
surpassing safety risks and interests; the illegal drug and alcohol
use by rail employees could cause great human loss before signs of
impairment were noticeable to supervisors; the program helped
52
obtain invaluable information about major train wreck causes and;
an individualized suspicion requirement in the chaotic aftermath of
a train accident would impede detection of causation. See Chandler,
117 S.Ct. at 1301.
In Von Raab, drug interdiction had become the Customs
Service’s primary enforcement mission; the covered posts directly
involved drug interdiction or otherwise required Customs officers
to carry firearms; the employees had access to vast sources of
contraband; officers had been targets and some had succumbed to
bribery; and it was not feasible to subject Customs Service
employees to the kind of day to day scrutiny that is the norm in
more traditional work environments. Chandler, 117 S.Ct. at 1301-02.
In Chandler the Supreme Court also pointed out the set of
unique circumstances in Vernonia School District 47J v. Acton, 115
S.Ct. 2386 (1995), under which it had sustained a random sample
drug-testing program for high school students engaged in inter-
scholastic athletics, with written consent of each athlete’s
parents, during the season of each sport: public school systems
bear large responsibilities as “guardian and tutor” of children
entrusted to their care; there was an “immediate crisis” caused by
a sharp increase in drug use in the school district; student
athletes were leaders of the drug culture; students within the
school environment have a lesser expectation of privacy than
members of the population generally; it is important to deter drug
use by school children and to reduce the risk of injury caused by
drug use among student athletes. Chandler, 117 S.Ct. at 1302.
According to the Chandler court, Skinner, Von Raab and
53
Vernonia establish that the government’s “proffered special need
for drug testing must be substantial--important enough to override
the individual’s acknowledged privacy interest, sufficiently vital
to suppress the Fourth amendment’s normal requirement of
individualized suspicion.” Chandler, 117 S.Ct. at 1303. The
Supreme Court in Chandler rejected the state’s invitation to apply
a more deferential framework, stating that “[o]ur guides remain
Skinner, Von Raab, and Vernonia.” Id. at 1302.
Before Chandler, it was already very clear that the present
case does not fit into the Skinner-Von Raab-Vernonia “Special
Needs” category. For the reasons previously discussed, the present
case is clearly distinguishable from other cases allowing
suspicionless searches or seizures in terms of the nature of the
intrusion, the magnitude of risks to human lives and property,
and/or the practicability of application of the reasonable
individualized suspicion test. Chandler confirms, however, that,
in the present case, the governmentally proffered special need for
suspicionless drug testing has not been demonstrated to be real,
substantial or sufficiently vital to suppress “the Fourth
Amendment’s normal requirement of individualized suspicion[,]” Id.
at 1300, 1303, when measured by “[o]ur guides...Skinner, Von Raab,
and Vernonia.” Id. at 1303.
First, the state government in the present case has not
established by legislated law or legislatively authorized
government regulation any need, system or procedure for the
suspicionless drug testing of physicians in hospital residency
programs. In Skinner, Von Raab and Vernonia, the urinalysis tests
54
were administered pursuant to well defined programs established by
governmentally promulgated regulations or written policy statements
based on documented needs, not by purely ad hoc decisions guided
only by untrammeled supervisory discretion, as in the present case.
In Vernonia, the drug testing was also authorized by the written
consent of the parents of each student-athlete.
Second, there has been no demonstration here that public
safety is genuinely in jeopardy or that there is a critical and
immediate need to suppress the Fourth Amendment’s normal
requirement of individualized suspicion.
Unlike the situation presented in Skinner, the record here
indicates that neither the government nor the medical school had
established a drug-testing program of any kind for resident
physicians. Consequently, there were no regulations, guidelines or
procedures established for drug testing. Moreover, prior to the
state officer’s drug-test order, the medical school had undertaken
no systematic study of drug abuse by residents. Consequently, the
school had not established a documented link between drug abuse by
residents and any medical accident. Further, the record does not
reflect that residents participate in an industry that is regulated
pervasively to ensure safety; the practice of medicine, like that
of law, is a profession, which is largely self-governed by its own
ethical and disciplinary system. There was no indication of a
surpassing safety interest in guarding against the risk that
residents would cause loss of large numbers of human lives and
millions of dollars of property damage due to drug use before any
signs of impairment would become noticeable to supervisors. Of
55
course, because there was no drug-testing program and no history of
drug-related medical accidents in the residency program, it cannot
be argued that any valuable medical data had been derived from
urinalysis. There was no evidence that the individualized
suspicion requirement for a drug test of resident physicians would
seriously impede the employer’s ability to identify and eliminate
or rehabilitate drug-impaired residents.
By the same token, the present case, in contrast with Von
Raab, does not relate to the use of drug tests as a condition of
promotion or transfer. Also, of course, it does not involve
employees exposed to the vicissitudes of illicit drug smuggling and
interdiction, firearm usage, exposure to narcotics sources,
bribery, and blackmail.
Finally, the present case, which is quite distinguishable from
Vernonia, involves free adult physicians working and training in a
hospital resident program, not high school and junior high school
student athletes to whom the public school system owed a duty as
guardian and tutor to protect from moral corruption and physical
injury due to drug use during an immediate crisis caused by a sharp
increase in drug use in the school district.
In sum, under the current law, as under the clearly
established law at the time of the state officer mandated drug
test, the record in the present case is notably lacking in the
presentation of a concrete danger demanding departure from the
Fourth Amendment’s main rule that, to be reasonable under the
Fourth Amendment, a search must be based on individualized
suspicion. See Chandler, 117 S.Ct. at 1303.
56
Issues 2. and 3. The District Court Correctly Denied the State
Officers’ Motions For Summary Judgment And Judgment As A Matter Of
Law. The Officers Were Not Entitled To Qualified Immunity Because
A Reasonable Officer Would Have Known The Drug-Test Order Was
Unlawful Due To An Absence Of Reasonable Individualized Suspicion.
Under 42 U.S.C. § 1983, every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any state,
subjects, or causes to be subjected, any citizen of the United
States to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress. Therefore, when a state officer acts under
a state law in a manner violative of the Federal Constitution, he
comes in conflict with the superior authority of that Constitution,
and he is in that case stripped of his official or representative
character and is subjected in his person to the consequences of his
individual conduct. Scheuer v. Rhodes, 416 U.S. 232, 237 (1974)
Although § 1983 on its face admits of no immunities, the Supreme
Court has read it in harmony with general principles of tort
immunities and defenses rather than in derogation of them. Imbler
v. Pachtman, 424 U.S. 409, 418 (1976) In the absence of
congressional directions to the contrary, however, it is untenable
to draw a distinction for purposes of immunity law between suits
brought against state officials under § 1983 and suits brought
directly under the Constitution against federal officials. Malley
v. Briggs, 475 U.S. 335, 340, n. 2 (1986); Butz v. Economou, 438
U.S. 478, 504 (1978); Harlow v. Fitzgerald, 457 U.S. 800, 818, n.
57
30 (1982).
The Supreme Court cases have generally provided government
officials performing discretionary functions with a qualified
immunity, shielding them from civil damages liability as long as
their actions could reasonably have been thought consistent with
the rights they are alleged to have violated. Anderson v.
Creighton, 483 U.S. 635, 638-639 (1987) (citing Malley v. Briggs,
475 U.S. 335 (1986)); Mitchell v. Forsyth, 472 U.S. 511 (1985);
Davis v. Scherer, 468 U.S. 183 (1984); Harlow v. Filtzgerald 475
U.S. 800 (1982). Whether an official protected by qualified
immunity may be held personally liable for an allegedly unlawful
official action generally turns on the “objective legal
reasonableness” of the action, assessed in light of the legal rules
that were “clearly established” at the time it was taken. Anderson
v. Creighton, 483 U.S. at 639 (quoting Harlow, 457 U.S., at 818-
819.
Moreover, the right that the official is alleged to have
violated must have been “clearly established” in a sufficiently
particularized and relevant sense: “The contours of the right must
be sufficiently clear that a reasonable official would understand
that what he is doing violates that right. This is not to say that
an official action is protected by qualified immunity unless the
very action in question has previously been held unlawful, see
Mitchell, supra, 472 U.S., at 535, n. 12, 105 S.Ct., at 2820, n.
12; but it is to say that in the light of pre-existing law the
unlawfulness must be apparent. See, e.g., Malley, supra, 475 U.S.,
at 344-345, 106 S.Ct., at 1097-1098; Mitchell, supra, 472 U.S., at
58
528, 105 S.Ct., at 2816; Davis, supra, 468 U.S., at 191, 195, 104
S.Ct., at 3017, 3019.” Anderson, 483 U.S. at 639. (emphasis
added).
As demonstrated above, the clearly established law at the time
the state officers ordered the physician resident-trainee to submit
to an urinalysis drug test required that the officers have
individualized reasonable suspicion that she had used illegal drugs
and that evidence of such usage could be detected in her urine.
Therefore, the contours of the physician-resident’s Fourth
Amendment right were sufficiently clear that reasonable officials
would understand that before ordering the collection and analysis
of her urine, on pain of terminating her employment and residency
training, they must have reasonable individualized suspicion, i.e.,
something more substantial than inarticulate hunches, that she had
consumed drugs and that evidence of that usage could be detected by
urinalysis.
Applying these principles, in the light of the pre-existing
law a reasonable official would understand that ordering her to
submit to urinalysis violated her right to privacy because the
meager information available could not give rise to a reasonable
individualized suspicion that her urine contained the evidence of
illegal drug usage. The doctors on the scene when she slapped the
unruly, amphetamine-drugged patient immediately after he spat in
her face did not think her reaction was drug induced or influenced.
Approximately one month elapsed between this incident and the
officers’ order that she submit to a monitored urinalysis test or
be removed from the residency program. The record is devoid of any
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evidence even slightly suggesting drug usage by her between the
slapping incident and the officers’ drug test ultimatum. Under all
of the circumstances, the absence of any basis for reasonable
individualized suspicion and the resulting unlawfulness of the
officers’ drug test order were clearly apparent.
Issue 4. The Officers Failed To Preserve The Issue Of Insufficiency
Of Evidence To Support A Punitive Damages Award For Our Review.
A post-verdict motion under Rule 50(b) for judgment as a
matter of law cannot be made unless a previous motion for judgment
as a matter of law was made by the moving party at the close of all
the evidence. Rule 50(b); In re Owners of “Harvey Oil Center,” 788
F.2d 275, 278 (5th Cir. 1986); Quinn v. Southwest Wood Products,
Inc., 597 F.2d 1018, 1024 (5th Cir. 1979). Because the defendants-
appellants failed to move at the close of all the evidence for
judgment as a matter of law on the issue of the sufficiency of
evidence as to punitive damages, that issue has not been preserved
for our review.
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