Chandler v. Miller

BARKETT, Circuit Judge, dissenting:

As the majority recognizes, there is no question that the

mandatory drug testing in this case is an unreasonable search

prohibited by the Fourth Amendment unless it is required by

"special governmental needs beyond the normal need for law

enforcement," and those needs outweigh the candidates' privacy

interests. National Treasury Employees v. Von Raab, 489 U.S.

656, 665-66, 109 S.Ct. 1384, 1390-91 (1989) (citing Skinner v.

Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1401,

1413-14 (1989)). I dissent because I do not believe that the

suspicionless search in these circumstances serves any special

governmental need beyond the normal need for law enforcement,

and, if it did, I believe that the candidates' privacy interests

outweigh the governmental interests when the factors of Von Raab

are properly considered.

Before balancing the candidates' privacy expectations

against the government's interests in conducting suspicionless

drug-screening, the court must first ascertain whether this case

presents a special governmental need beyond the normal need for

law enforcement.1 In simpler terms, before the court can

balance the competing interests in this case, it must first ask

what is so impractical about requiring a warrant or

individualized suspicion in the circumstances presented here. It

1

Whether "[s]pecial needs are involved" in this case is

determined not by how urine test results will be used against any

particular candidate, but by whether the "need" for such testing

is already served by ordinary law enforcement, and is of such a

"special" nature as to render the Fourth Amendment's warrant

requirement impracticable.

is in this threshold inquiry that I believe the majority first

errs.

The majority frames its analysis in terms of whether

"unlawful drug use is . . . fundamentally incompatible with high

state office." Certainly, the answer to that question is

patently obvious, but the question assumes unlawful drug use.2

This case is not about the incompatibility of drug use and

elected office, but rather about whether Fourth Amendment

protections can be constitutionally suspended when there is no

individualized suspicion, when there is no immediate or direct

threat to public safety, when those being searched are not

directly involved in the frontlines of drug interdiction, when

there is no institutional setting involved such as a prison or

public school requiring swift and informal discipline, and when

there are no dire consequences as a result of waiting to obtain a

warrant if a candidate, or anyone else for that matter, is

suspected of violating the law. The first question for the court

is not whether the state's interest is great enough and its

chosen method effective enough to outweigh the privacy interests

involved. Rather, it is whether, under Von Raab, the

circumstances in this case give rise to a special governmental

need beyond the ordinary needs of law enforcement in the first

place. I think not, and the majority's analysis does not support

2

O.C.G.A. § 21-2-140 bars from public office either

candidates who refuse to take the test because they are

ideologically opposed to the government's intrusion upon their

privacy, or candidates who fail the test and are thereby only

suspected of having committed a crime.

2

its conclusion to the contrary.3

Essentially, the majority's justification for suspending the

requirements of the Fourth Amendment is the state's interest in

officeholders who are "drug free," "honest[ ], clear-sighted[ ],

and clear-thinking," as well as "appreciative of the perils of

drug use" and "[]sympathetic to drug interdiction efforts."

Putting aside First Amendment concerns as to whether these

subjective traits, as desirable as they may be, can be legislated

as valid qualifications for public office, this standard not only

fails to address why ordinary law enforcement methods are

insufficient to protect these interests, but it makes

suspicionless searches the rule and obtaining a warrant almost

always irrelevant.4 Moreover, this rationale seriously erodes

the Fourth Amendment's protections for many people beyond the

parties involved here.

The Supreme Court has rejected such an overbroad standard in

assessing the reasonableness of various governmental drug-testing

schemes. In Skinner and Von Raab, the Court suspended Fourth

Amendment protections only when the risks of drug impairment

3

The majority's reference to the Tenth Amendment

interest in setting qualifications for public office misses the

point. Georgia's power under the Tenth Amendment to regulate its

electoral process is not absolute. As the majority notes, the

state's power to do so is subject to federal constitutional

limitations, the extent of which are at issue here.

4

Under this standard, what Fourth Amendment protections

would candidates retain to prevent suspicionless testing to

research for a physical or mental impairment, AIDS, alcohol or

prescription drug abuse, screening DNA for genetic information,

or to prevent warrantless invasions of homes to search for drugs,

pornography, or other contraband?

3

affected those directly on the frontline of drug interdiction

efforts, or those who, if under the influence of drugs, could

pose an imminent physical threat to the public. The Court found

a nexus between the risks of drug use and imminent hazards to

public safety, for example, where government employees "discharge

duties fraught with such risks of injury to others that even a

momentary lapse of attention can have disastrous consequences."

Skinner, 489 U.S. at 628, 109 S.Ct. at 1419. The Court held that

railway safety is a special governmental need beyond the normal

need for law enforcement and justifies the suspicionless urine

testing of those employees whose drug and alcohol abuse can

"cause great human loss," but noted that the regulations

"narrowly and specifically" limited testing to the aftermath of a

serious accident when individualized suspicion is "most

impracticable," or when employees are otherwise directly involved

in safety-rules violations. Id. at 622, 631, 109 S.Ct. at 1416,

1420-21. Moreover, the Court upheld drug testing only after a

showing of past history linking drug and alcohol abuse with

serious train accidents. Id. at 606-08, 109 S.Ct. at 1407-08.

In Von Raab, the Court likewise required such a nexus in

upholding suspicionless urine testing of Customs employees who

are involved directly in enforcing drug laws, or are required to

carry firearms. Von Raab, 489 U.S. at 670-71, 109 S.Ct. at 1393.

While the Court found compelling the Customs Service's interest

in "ensuring that front-line interdiction personnel are

physically fit, and have unimpeachable integrity and judgment,"

4

it also specifically explained how that compelling interest would

be undermined by unlawful drug use among such front-line

personnel: "A drug user's indifference to the Service's basic

mission, or, even worse, his active complicity with malefactors,

can facilitate importation of sizable drug shipments or block

apprehension of dangerous criminals." Von Raab, 489 U.S. at 670,

109 S.Ct. at 1393. The Court recognized that "the public should

not bear the risk that employees who may suffer from impaired

perception and judgment will be promoted to positions where they

may need to employ deadly force." Id. at 671, 109 S.Ct. at 1393

(emphasis added).

The narrow focus of these exceptions was reaffirmed in

Vernonia School District 47J v. Acton, ___ U.S. ___, 115 S.Ct.

2386 (1995). The Court held that special governmental needs

justify randomly testing the urine of schoolchildren, who hold a

diminished expectation of privacy in the public school custodial

setting, but noted that "it must not be lost sight of that this

program is directed more narrowly to drug use by school athletes,

where the risk of immediate physical harm to the drug user or

those with whom he is playing his sport is particularly high."

Acton, 115 S.Ct. at 2395 (emphasis added). Thus, it appears that

even (unathletic) schoolchildren enjoy greater Fourth Amendment

protections than the majority accords the candidates in this

case.

There is nothing so special or immediate about the

generalized governmental interests involved here as to warrant

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suspension of the Fourth Amendment's requirement of

individualized suspicion for searches and seizures. There are no

exigent circumstances. There is no imminent threat of grave

physical harm. The prospective candidates are not on the

frontlines of drug interdiction. And, we cannot ignore that

candidates are subjected to the ultimate screening program--the

voice of the electorate. Thus, I believe the majority errs in

concluding that a special governmental need beyond the normal

need of law enforcement is present in this case.

In addition to being troubled by the majority's assumption

that a special governmental need beyond the normal need for law

enforcement exists which makes obtaining a warrant impractical in

this case, I am troubled by the majority's assessment and

balancing of the competing interests involved. This case

presents a more serious constitutional question than that in Von

Raab and Skinner because of the nature and magnitude of the

individual rights involved.

Even if privacy interests are viewed in the narrowest sense,

a candidate's legitimate expectation of privacy in his or her

bodily fluids is greater than the employees in Von Raab or

Skinner. In balancing the privacy interests of the employees in

Von Raab, the Court recognized that Customs officers already

agree to undergo intrusive screening as a condition of

employment: "Unlike most private citizens or government

employees in general, employees involved in drug interdiction

reasonably should expect effective inquiry into their fitness and

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probity." Von Raab, 489 U.S. at 672, 109 S.Ct. at 1394 (emphasis

added). The Court likened the necessity in those circumstances

to the "extraordinary assurances of trustworthiness and probity"

and "intrusive inquiries into . . . physical fitness" required of

those who undertake "special positions" such as in our military

or intelligence services. Id. at 671, 109 S.Ct. at 1394. In

Skinner, the Court likewise recognized that "the expectations of

privacy of covered employees are diminished by reason of their

participation in an industry that is regulated pervasively to

ensure safety, a goal dependent, in substantial part, on the

health and fitness of covered employees." Skinner, 489 U.S. at

627, 109 S.Ct. at 1418.

I recognize that employment choices may indeed diminish

expectations of privacy. An individual need not choose to become

a drug interdiction agent, military intelligence officer, or

railway engineer, thereby avoiding the intensive training and

intrusive screening required by that particular job. But, an

individual does not have a constitutional right to a specific

kind of employment. The Constitution, however, protects

participation in government. While candidates relinquish to the

people a great deal of their privacy in choosing to run for

public office, the price should not include sacrificing one's

Fourth Amendment right to be free from unreasonable searches and

seizures.

In conducting the Von Raab balancing test, the majority

fails to adequately consider the totality of the government's

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"interference with individual liberty." Von Raab, 489 U.S. at

671, 109 S.Ct. at 1393. Not only is the privacy surrounding an

individual's bodily functions at stake, but all of the rights

associated with participating in a democracy--rights of

association, freedom of speech, ballot access, and the right to

cast an effective ballot. We are not dealing merely with the

denial of a job opportunity, but with the denial of opportunity

to participate in our democratic form of government. In light of

the interference with these liberty interests, giving the

governmental interests here the greater weight seems especially

unreasonable.

Finally, I am concerned about the majority's conclusion that

the government's actions in this case do not violate the First

Amendment. The majority maintains that the government's purpose

is not suppression of free expression. Yet, it supports its

holding by citing the importance of ensuring that elected

officials are "persons appreciative of the perils of drug use"

and "[]sympathetic to drug interdiction efforts." Establishing a

certain ideology as a "qualification" for holding public office

appears to be a content-based restriction on free expression.5

5

The Supreme Court struck down a previous attempt by the

Georgia legislature to disqualify a citizen from public office on

the basis of his ideology, noting that: "Madison and Hamilton

anticipated the oppressive effect on freedom of expression which

would result if the legislature could utilize its power of

judging qualifications to pass judgment on a legislator's

political views." Bond v. Floyd, 385 U.S. 116, 135-37 n.13, 87

S.Ct. 339, 349-50 n.13 (1966) (holding legislature's use of oath

provisions to exclude from its ranks one with whom its majority

disagreed on federal government's policy in Vietnam War violated

First Amendment).

8

Drug policy is a politically charged issue confronting many

government officials who have disparate points of view regarding

the "Drug War" and the efficacy of the means employed in fighting

it. It is the function of public office holders to write,

enforce, and interpret the laws, including drug laws. By

conditioning holding public office upon submission to drug

screening, however, the Georgia legislature effectively bans from

positions of political power not only those candidates who might

disagree with the current policy criminalizing drug use, but also

those who challenge the intrusive governmental means to detect

such use among its citizenry. This statute is neither neutral nor

procedural, but, in the majority's own characterization, attempts

to ensure that only candidates with a certain point of view

qualify for public office.

It is beyond peradventure that a bodily search is

significantly intrusive. It is almost equally obvious that the

means utilized here would not accomplish the goals purportedly

justifying the search.6 Thus, this search is more a symbolic

gesture than an effective tool to ferret out drug-users or

assure exemplary public officials.7 Surely, symbolic gestures

6

The majority recognizes that, considering the notice

given, any drug user could disguise drug use, and that "[p]ersons

who would be caught by Georgia's limited testing would seem to be

people who are out of control about drugs . . . ." It also seems

that these "worst cases" would be ideal candidates for some form

of individualized suspicion.

7

The majority has delineated the government's purported

interest in ensuring that candidates "have what it takes" to hold

public office as justification for the suspicionless urine

9

testing of candidates. However, the available subsequent

legislative history indicates that in passing O.C.G.A. §§ 21-2-

140, the Georgia General Assembly did not appear to be motivated

by concerns that state politicians exercise their "best judgment

and skill," but rather by the desire to enact a symbolic measure:

"One of the sponsor's of the original 1990 legislation

. . . proposed the legislation out of a sense of

fairness rather than any genuine fear that state

politicians were not drug free. The sponsor of the

1990 legislation felt that if city council or state

politicians require drug testing of state employees,

they too should undergo drug testing. Additionally, if

in order to appease public concern about the use of

illegal drugs politicians must infringe upon the rights

of government employees, the politicians themselves

should be treated similarly."

Edith M. Shine, Legislative Review, 9 Ga. St. U. L. Rev. 212, 218

(1992) (citing Telephone Interview with Rep. Bob Holmes, House

District No. 28 (Apr. 10, 1992)) (footnotes omitted).

Representative Holmes stated that the legislation was proposed in

response to similar legislation that required school teachers to

undergo urine testing because it was unfair to subject teachers

to urine tests unless the politicians enacting such a law also

were tested. Id. at 218 n.61. Nonetheless, the law did not

apply to politicians who were already in office, but only to

prospective candidates for those offices. In any event, the

Applicant Drug Screening Act, which precipitated the mandate for

suspicionless testing of political candidates, was struck down

later as an unconstitutional infringement of employment

applicants' Fourth and Fourteenth Amendment rights. Georgia

Ass'n of Educators v. Harris, 749 F.Supp. 1110, 1114 (N.D. Ga.

1990) (holding generalized governmental interest in maintaining

drug-free workplace not sufficiently compelling so as to outweigh

applicants' Fourth Amendment rights).

On a final note, Representative Holmes' comments are

incapable of "chang[ing] the legislative intent . . . expressed

before the Act's passage," as in Blanchette v. Connecticut

General Insurance Corps., 419 U.S. 130, 132, 95 S.Ct. 335, 353

(1974) because, as the majority notes, no "official" history of

legislative intent exists. Rather, this case is closer to Galvan

v. Press, 347 U.S. 522, 526-27, 74 S.Ct. 737, 740 (1954) (relying

on 1951 memorandum by Senator McCarran in interpreting ambiguous

legislative intent of 1950 statute he sponsored). We are left,

therefore, with the wisdom of Mr. Chief Justice John Marshall

that "[w]here the mind labours to discover the design of the

legislature, it seizes everything from which aid can be derived."

United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304 (1805)

(quoted in Consumer Product Safety Commission v. GTE Sylvania,

10

are not enough to trump the constitutional imperatives of the

Fourth Amendment or the right to participate in government.

Inc., 447 U.S. 102, 100 S.Ct. 2051 (1980)).

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